United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1223_94_2911

Appeal No. EAT/1223/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 29th November 1995

HIS HONOUR JUDGE H J BYRT QC

LORD GLADWIN OF CLEE CBE JP

MRS M E SUNDERLAND JP

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MR B ATTI          APPELLANT

LONDON BOROUGH OF LAMBETH          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON

For the Respondents MISS N JOFFE

(Of Counsel)

Legal & Central Support Services

London Borough of Lambeth

Lambeth Town Hall

Brixton Hill

London

SW2 1RW


 


JUDGE BYRT QC: This is an appeal from a decision promulgated on 8 November 1994 by the Industrial Tribunal sitting at London (South), when they unanimously decided that the Applicant, now the Appellant, was fairly dismissed. The facts which I have taken largely from the Tribunal reasons are as follows: the Appellant worked for the Respondents from July 1989 until June 1993, in various departments and latterly in the Equalities Unit. Between May and October 1992 he worked in that unit together with a Winston Marshall in carrying out an enquiry into an issue relating to the registration of a Tenants' Association. Mr Marshall had been at the Ruopell Neighbourhood Management Office and he collaborated with the Applicant who came from the Equalities Unit. The result of their investigation was contained in a report they made in October of that year. During November another group of his colleagues in the Equalities Unit were carrying out certain investigations, relating to complaints made by women in the Ruopell neighbourhood management office, to the effect that Mr Marshall was guilty of sexual harassment. This spelt trouble for the Appellant as he was now a close colleague of Mr Marshall's, and it surfaced when those colleagues in his own unit complained that he was interfering with the investigation by undermining their efforts and in that respect, acting unprofessionally.

The substance of their complaint was set out in a memorandum dated 30 November 1992. Matters came to a head very shortly after that, on 1 December. Mr Marshall had written a letter to the Director of Housing in which he somewhat querulously complained about the visits of these investigating officers from the Equalities Unit, demanding that they cease making them without notice. The same day, notes were found on the desk of the Appellant, suggesting that he had in fact been responsible for drafting that letter to the Director of Housing. If that were the case, it would corroborate the complaints which had been made by the investigating officers from the Equalities Unit. As a result of that discovery, the Appellant was summoned for an investigatory hearing. That was held on 9 December. The investigative meeting was conducted by the Head of Equalities Unit and by the Head of Projects.

Having heard what the Appellant had to say, they decided to suspend him on full pay. Thereafter, a disciplinary hearing was fixed for 7 January. The Appellant did not attend and gave no notice that he was not attending. Subsequently, at the insistence of the manager of his department, he obtained a medical certificate dated 18 January, indicating that at the time of the hearing on 7 January he was suffering from stress. A further date was fixed for the hearing on the 18 February. Again, the Appellant did not attend and the matter had once more to be adjourned. It was adjourned to 5 March. Once more the Appellant did not attend. On 8 March, the second day of the disciplinary hearing, a letter was received dated the 4 March from the Brixton Law Centre indicating that the Appellant had flown away to Nigeria, in order to look after the personal affairs of the family, following the death of his father on 29 January. The letter was apparently vague and indefinite: it contained no indication as to when he went, or when he would be coming back. As a result of considering that letter, the disciplinary panel decided to proceed with its hearing and came to a conclusion by the end of that day, that the Appellant should be dismissed. The Industrial Tribunal found that that letter of 4 March received on the 8th from the Law Centre, was the first contact by the Appellant since the commencement of February. They found that the Appellant had flown to Nigeria without leave of his employers, and without prior notification to them.

The decision reached by the Tribunal on 8 March, had to be confirmed by senior management. As the Appellant had not attended that hearing, senior management postponed their decision whether to confirm until the Appellant had been afforded a further opportunity of appearing before a disciplinary panel on 30 April. Unhappily on 28 April, two days before the hearing, the Law Centre sent in a medical certificate to the Respondents, indicating that the Appellant was ill and that he would be unable to return to work, or appear before the disciplinary panel, for a further period of two months.

The panel considered the matter once more. It considered the Law Centre's request for a postponement and decided to refuse it. Without calling additional evidence, the panel went ahead and ratified the decision it had come to on 8 March, and confirmed the Appellant's dismissal. That decision was finally placed before senior personnel management for confirmation. That took place at the end of a period of two months (following the hearing of 30 April) on 30 June. The decision to dismiss the Appellant was ratified by the Chief Personnel Officer and the Director of Housing. The Appellant then launched his appeal through the internal appeals procedure of the authority. That hearing commenced on 21 October and was conducted in short spells over a period of five days spanning between 21 October and 25 November. The hearing was conducted by an appeals sub-committee of the Council (they were all councillors). On this occasion the Appellant attended and was represented. The sub-committee decided that the hearing should be on the basis of a hearing de novo and all the witnesses that had hitherto given evidence, were called once more before the sub-committee. They were cross-examined in due course by the Appellant or his representative. It ended up with the appeals sub-committee dismissing the Appellant's appeal.

There were certain findings which the employers came to which were endorsed in due course by the Industrial Tribunal. The first was that despite the evidence given by the Appellant and his witness Mr Marshall, they were satisfied that the notes in the Appellant's hand, which had been discovered in his desk, were in fact the draft of the letter sent by Mr Marshall on 1 December. The Appellant's case was that the text of the letter had been drafted by Mr Marshall and had then been dictated over the telephone to the Appellant. That was rejected. The second was that, in advancing that case, the Appellant had clearly been lying and had been lying because he realised the seriousness of what it was that was alleged he had done. As a result of it, they took that as an important benchmark of the Appellant's credibility and were not minded to lend credence to other important parts of his evidence. The Industrial Tribunal when considering these matters afresh, came to the conclusion that the appeals sub-committee were fully justified in their approach and indeed that the way in which the evidence had accumulated against the Appellant, there was no need for further investigation by the Respondents. The substance of the Appellant's case had been that there was a conspiracy amongst dissenting and discontented fellow employees in the Equalities Unit and he was but the victim of such conspiracy. In coming to their conclusion, the appeals sub-committee had rejected that contention, and that was the end of the matter.

The Industrial Tribunal then considered whether there had been breaches of natural justice, by reason of the hearings in the Appellant's absence on 5,8 March and 30 April. The Appellant contended that he had been deprived of the opportunity of putting his case, and that the Council should have taken more trouble to find out where he was and what he was up to. The Tribunal found that the root cause of the problem was that the Appellant seemed to have paid no attention to the fact that until dismissed he was still an employee of the local authority, and accordingly he had the responsibility to liaise with and keep in touch with his manager, as on several occasions he was warned in correspondence that he should. Despite three warnings, he had failed to keep in touch. He had flown to Nigeria without permission and without notice.

The Respondents, they found, had, on the contrary, made every effort to allow the Appellant the opportunity to put his case, but had no alternative but to proceed in March. It is right perhaps at this stage, to bear in mind the difficulties which the repeated postponements of the disciplinary hearing was causing the Council. These are alluded to in the letter from the Senior Assistant Director dated 22 April addressed to the Law Centre, in which he said that the delays in the resolution of this matter was having considerable adverse affect on Council business.

The Industrial Tribunal then took a second line. They said that if there was any residual unfairness in these procedures, the matter was set to rights by the Appeals hearing in October, when the appeals sub-committee conducted a hearing de novo. The Appellant had ample opportunity on that occasion of meeting the charges against him and of putting his case, with the aid of representation. At the end of their reasons, the Tribunal concluded that there was ample evidence upon which the Respondents could have found against the Appellant, as they did, that they did so after reasonable investigation, and, furthermore, that the disciplinary procedures they had followed, were reasonable. Accordingly, the Industrial Tribunal dismissed the Appellant's claim.

Mr Atti has appeared before us in person and argued his appeal. He has made criticisms of the Industrial Tribunal hearing and of the Respondent's procedures under three headings. First he has complained that there had been inadequate investigation leading to his dismissal. Secondly, he said that it was to misunderstand the situation to say that the re-hearing in October cured or corrected any procedural defects in the two earlier disciplinary hearings in his absence; and thirdly, he alleges that the proceedings in October were vitiated by the presence of a Councillor Roche on the panel, he being a person who knew something about the earlier report on which the Appellant had been engaged on behalf of the Council and as a consequence, would have been biased against him.

Dealing with those points in turn; so far as the inadequate investigation is concerned, the Appellant complained that at no time did the Respondents conduct an interview with Mr Marshall or take a statement from him. He said that had they done so, that would have effectively cleared him of all the allegations made against him. Furthermore, he says that if the investigations had been carried out thoroughly, the Respondents would have taken into account the fact that he and Mr Marshall had been working together for the best part of the last seven or eight months, and that although they had delivered their report jointly in October, the decision on that report was not taken until December, and so they had ample innocent reason for a continued association. Here was an innocent context in which to view the allegations, made by his colleagues in the Equalities Unit.

The Tribunal found that the investigations conducted by the Respondents were reasonable in the circumstances. They attached importance to the fact that, at an early stage, they had decided that the Appellant was lying about the manuscript notes on his desk. In the context of that discovery and in establishing that, they were satisfied that the investigations were reasonable. At this particular point, we reflect that the Appellant did call Mr Marshall as his own witness before the sub-committee on appeal, and the sub-committee disbelieved the evidence of Mr Marshall. One has good reason to suppose that, even had he featured as part of the Respondent's investigations, it would not have made any difference to their outcome. In the circumstances, this Appeal Tribunal finds that it is unable to disturb the Industrial Tribunal's findings relating to their complaint.

The next ground of complaint is that the Tribunal misled itself in thinking that the re-hearing in October cured the defects in the procedures of the 8 March and 30 April. The twist is whether the Appellant had a fair opportunity of putting his case before the sub-committee in the October? It would seem that the Respondents' case at the hearing was strong in that the sub-committee emphatically disbelieved the Appellant and his witness Mr Marshall. Further, it would seem that, by outward appearances the hearing was a fair hearing. However, the Appellant complains he did not have the opportunity to put his case before fellow officers, as would have been the case at the disciplinary hearing. Instead, he had to rely on the opportunity to put his case before Councillors. The Industrial Tribunal came to the finding that in conducting this hearing de novo, the Respondents did the best they could in the circumstances. This Tribunal has to ask itself whether any defect in procedures there might have been, leading to the Appellant's dismissal, was a defect which was sufficient to make the Respondents overall procedures unfair. In order to establish that, the Appellant has to satisfy the Tribunal that the defect about which complaint is made was a fundamental defect, going to the root of the fairness of the proceedings. Our view is that there was nothing about the manner in which that appeal was conducted by the sub-committee which suggests that anything approaching that degree of unfairness had taken place, or indeed, that the failure of the Appellant to attend before the disciplinary hearing on 8 March or 30 April, brought those hearings into that category either.

There is a third ground upon which the Appellant makes complaint today. That is the presence of Councillor Roche on the Appellant's sub-committee. Councillor Roche had been the Chairman of the sub-committee which had commissioned Mr Marshall and the Appellant to make their report in May 1992. The enquiry and investigation was into the registration or non-registration of a Tenants' Association. As I have already indicated, Mr Marshall and the Appellant reported on that in October. The Appellant says that apparently Councillor Roche was dissatisfied with the terms of that report. As a result, he was concerned lest he took the opportunity of sitting upon the appeal board to get his own back at the Appellant.

The first point to notice about this allegation is that Councillor Roche had nothing to do with the present case whatsoever before he sat on the appeals sub-committee. He was one of a board consisting of two others whose task was to determine whether the decision to dismiss was open to criticism in any way. Second, had the Appellant felt strongly about the Councillor's anticipation, the time to have registered his protest was at the time the appeal sub-committee sat at the very beginning of their enquiries on 21 October. The question is, did he in fact avail himself of that opportunity? The Appellant says that he did. The Industrial Tribunal enquired into this aspect of the case, and bearing in mind the total absence of any record of such a protest in the Minutes of the meeting of the appeal sub-committee, they came to the conclusion that the Appellant or his representative had not made any such protest on that occasion.

We are not in a position on the documents in front of us to come to any contrary findings about that matter and indeed it is not our function to do so. The Industrial Tribunal came to a finding upon that and we are not in a position to disturb it. The Employment Appeal Tribunal is an appellant tribunal. It can only disturb the decisions of an Industrial Tribunal on a question of law, or where it becomes apparent that the conclusions of an Industrial Tribunal are so unreasonable as to be perverse. We are unable to criticise the findings of the Industrial Tribunal in either respect. It is plain to us that they applied the law correctly and their conclusions on facts are not ones which we can say are findings of an unreasonable tribunal. Accordingly this appeal will be dismissed.