United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1237_94_2303

Appeal No. EAT/1237/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 23rd March 1995

HIS HONOUR JUDGE D M LEVY QC

MISS D WHITTINGHAM

MR G H WRIGHT MBE

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J O'KEEFE          APPELLANT

NAVSTAR SYSTEMS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR L T LEWIS

Chamberlain Walker Ltd

Human Resource Consultants

12 Canon Harnett Court

Warren Farm

Stratford Road

Wolverton Mill

Milton Keynes

MK12 5NF


 


JUDGE LEVY QC: Mr J O'Keefe commenced his employment with the proposed respondent of this Appeal or its predecessor Navstar Systems Ltd on 6th December 1990. His employment ended on 31st October 1993. He commenced proceedings in the Industrial Tribunal on 8th January 1994. In his IT1 he complained that there was unfair dismissal, discrimination and breach of contract of employment. The matter was heard by an Industrial Tribunal at Bury St. Edmunds on 4th and 5th, 25th and 26th May 1994.

Pausing for one instant, the heading in the Decision of the Industrial Tribunal does not reflect the three earlier days of the hearing as we think it should have done. But Mr Lewis who is the consultant appearing for the appellant on this hearing says that there were those hearing days and we are satisfied that he is correct.

After the end of the hearing, the Tribunal's decision was sent to the parties on 9th November 1994. The unaminous decision of the Tribunal was that the applicant was not unfairly dismissed.

The bones of the matter behind the hearing was that there was suspicion, putting it no higher, by the respondent company as to the manner in which Mr O'Keefe had been behaving in the light of a commercial decision taken by the Company following a takeover. They had reason to believe that there was some sort of interference with computer systems in the Company, in which the appellant might have been involved.

There was as we say a four day hearing before the Industrial Tribunal. We see from the full and thorough judgement that the matter was well and truly investigated by them. The decision which they reached, from the four corners of the decision, is one that was open to them on the facts.

They are careful not to enter too far into the ring, but they say in paragraph 13 of their Decision, having looked at the facts:

"The Tribunal must ask itself first of all whether the respondent has discharged the burden of proof which is upon it Section 57(1) of the Employment Protection (Consolidation) Act 1978 and shown us the reason for dismissal. The two possible reasons are conduct, that is to say either the chain of behaviour complained of which lay behind the letter of 25 October or the refusal to attend the disciplinary meeting and submit to the disciplinary process. As an alternative the dismissal may have been for some other substantial reason justifying dismissal, namely, the applicant's refusal to fit in with the new culture and ethos of the respondent following the takeover. Whilst it is not particularly important to look closely at the labels people put on things we have a duty to find the principal reasons for dismissal and it is clear to us on the evidence that the real reason for dismissal was one relating to the applicant's conduct, no the whole list of complaints which were made against him by subordinates and colleagues or the inability to co-operate with the new management structure and reporting regime but the refusal to submit to the disciplinary process by his response to the letter of the 25 October. We have had the opportunity of hearing the witnesses at centre stage in all of this case and we are sure that Mr Rissinger and Mr Haddrell, we have not heard from Mr Holmes, that those two did all they could int eh light of the applicant's refusal to attend the meeting to try to deal with the problem they perceived."

"14. We are satisfied that the respondent treated the stated reason for dismissal as a sufficient reason. The respondent had a genuine belief in the complaints which came from perceived reliable sources and demanded an explanation. We are sure that by 28 October there was really nothing else which could have been done. We must ask ourselves whether nevertheless, there was unfairness in the procedure. We have decided that there was not. The ad hoc procedure which was adopted by Mr Rissinger in the circumstances of last October in our view was not all an unreasonable one. Particularly bearing in mind the fact that a right of appeal was offered, the offering of right of appeal does go to fairness. The neglect to exercise it goes to remedy. But we are disturbed that in this case we have been referred by the applicant to the letter of 16 November which on any fair understanding of the evidence, and on any test of balance or probabilities was not sent. That does go considerably to credit. We are sure the letter was not sent and regret the applicant chose to seek to use it in evidence as if it had been sent."

"15. We have decided that the potentially unfair dismissal was not rendered unfair by any procedural irregularities and in those circumstances we regretfully can only come to the conclusion that the application shall be dismissed."

"16. In our decision we have made findings which in relation to Mr Witworth and the inferred instruction on which he bugged the source code. In this case we are not a criminal court we are not making any findings of criminal liability. What we do say is this. On the material we have heard and on our own findings of fact in this case if we are wrong on the matter of dismissal and if the dismissal for instance because it was procedurally unfair. It is perfectly clear to us that the after acquired knowledge arising from the disciplinary process with Mr Witworth had the applicant still been present with the respondent, would have amounted in itself to sufficient reason to dismiss the applicant as Mr Witworth's line manager, and in those circumstances the measure of compensation for unfair dismissal would be reduced in our view to zero, applying the usual test."

Mr Lewis has taken us through a somewhat wordy Notice of Appeal, which runs to some five pages. But what he is really trying to do is two things. First of all, he rails against the findings of fact, which were made in the Tribunal's decision. After a full investigation at a long hearing we have no doubt that the Appellant's complaint was fully investigated and are satisfied that the findings of fact were within the parameters that the Tribunal could have found. They cannot be interfered with by an Appellate Tribunal, unless there is a perversity in the findings and we find that there is no perversity.

The other thing which Mr Lewis is trying to do is suggest that the hearing below was in some way flawed because the appellant there acted in person. It is well-known that the Appeal Tribunal will not normally consider a "complaint of bias" or the "conduct" of an Industrial Tribunal unless full and sufficient particulars are set out in the ground of appeal. If that has happened, then directions are given so that this Tribunal obtains the comments of the Industrial Tribunal. They are not so set out in the Notice of Appeal. There has been some effort by Mr Lewis to suggest otherwise. But we do not accept this is so.

There is nothing in the decision to suggest that Mr O'Keefe as a litigant in person, was in anyway disadvantaged simply because of that. There seems, in our view to have been an overwhelming case against him and it comes as no surprise to us that the decision went the way it did.

In our view the Tribunal was absolutely right to dismiss the application and, even if they

should have found some procedural irregularity, we are quite satisfied from what we have seen that if there had been a procedural irregularity rendering the dismissal unfair, then on the facts of this case no compensation would have been awarded to Mr O'Keefe.

In those circumstances we see no point in letting this preliminary hearing go to a full appeal and we therefore dismiss it at this stage.