United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1240_94_2211

Appeal No. EAT/1240/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 November 1995

Judgment delivered on 14 March 1996

HIS HONOUR JUDGE H J BYRT QC

LORD GLADWIN OF CLEE CBE JP

MISS D WHITTINGHAM

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OTTO SCHIFF HOUSING ASSOCIATION          APPELLANTS

MRS E KAN          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR R SCUPLAK

Personnel Consultant

IRPC Hinton Ltd

Stockwell House

New Buildings

Hinkley

Leicestershire

LE10 1HW

For the Respondent MR MARCUS GRANT

(of Counsel)

Free Representation Unit

1 Temple Gardens

Temple

London

EC4Y 9BB


 


JUDGE BYRT QC: This is an appeal against the decision of the Industrial Tribunal sitting at London North on 21 October 1994. The decision was unanimous to the effect that the Applicant, Mrs Kan, had been unfairly dismissed. The employers now appeal that decision.

Mrs Kan was employed by the Appellants as Assistant Head of Home at a residential centre for elderly people. She was dismissed for gross misconduct. It was said she had improperly locked an elderly resident in her room for a period of time.

The Tribunal's findings were that there had been a dismissal because the Appellants believed Mrs Kan had committed that misconduct.

When it came to consider those matters relevant to a finding under Section 57(3) of the Employment Protection (Consolidation) Act 1978, it found the dismissal to be unfair because they thought the disciplinary procedures leading to that dismissal to be unfair.

The Tribunal were critical in two respects. First, though Miss Copsey had been a principal witness for management in its case against Mrs Kan, she had also conducted the disciplinary hearing at the end of which she took the decision to dismiss her. They found that the unfairness of this procedure was not cured by either of the appeal hearings subsequently held. They held that this breach of a fair procedure to be sufficiently substantial in itself to justify a finding that Mrs Kan had been unfairly dismissed.

The Tribunal further criticised the Appellants' refusal to permit cross-examination of relevant witnesses by the Respondent's Solicitor. Whilst accepting that management is not obliged to permit cross-examination of other employees or witnesses in every case, they said that, since Mrs Kan's Solicitor had been allowed to put in written questions to be put to two witnesses, the Appellants should have put all those questions to them and not edit them so as to put only those they thought relevant. The Tribunal thought this unfair procedure to be such a substantial breach of what would be proper that they felt obliged, on this ground too, to hold the dismissal to be unfair.

They then considered compensation. They assessed the Respondent's chances of retaining her job had there been no substantial breaches of a fair procedure as being only two in five. Accordingly, they reduced the amount of her basic and compensatory awards by 60%.

They also considered whether the amount of her award should be further reduced on account of any conduct of Mrs Kan which might be said to have been contributory to her dismissal. They decided it would not be just and equitable to make any further reduction on this account.

The Appellants criticise the Tribunal's reasons for the decision because the latter set out its conclusions about certain matters, crucial to the application of Section 57(3), without summarising the basic factual findings or reasonings upon which those crucial conclusions are based. In this way, they say, the parties, and any appellate tribunal who might need to reconsider the matter, are deprived of the opportunity to check out the reasonableness of those conclusions or question whether an issue of law arises upon them.

In support of their submissions, they cited the case of Meek v Birmingham City Council [1987] IRLR 250 in which Bingham L J said:

"... the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. ... There should be sufficient account of the facts and of the reasoning to enable the EAT or on further appeal, this Court to see whether any question of law arises ..."

The Appellants say these observations are particularly apposite when the process by which the Tribunal reaches its conclusions is via a route which comprises a number of earlier findings of fact or mixed fact and law. Unless those findings are spelt out, there is no way of verifying whether the ultimate conclusions are sound.

Applying those principles to the facts of the present case, Mr Scuplak for the Appellants says the Tribunal's reasons were defective, first, because they do not spell out why Mrs Copsey's role in the investigation disqualified her from conducting the disciplinary hearing, and from making the decision to dismiss Mrs Kan. The fact that she had carried out the investigation is not of itself sufficient reason to disqualify her: see Slater v Leicestershire Health Authority [1989] IRLR 17 and Sartor v P & O European Ferries (Felixstowe) Ltd [1992] IRLR 271. The Reasons state she was disqualified because she was a principal witness for management but nowhere is it spelt out what other factual conclusions lie behind that descriptive phrase. Without knowing what they are, there is no way of verifying that the Tribunal had taken account of the ratios of the above cited cases so as to justify their conclusion that her role did indeed disqualify her.

Likewise, the Appellants ask which of the questions they declined to put to the witnesses did the Tribunal find to be relevant so as to make the refusal to put them unfair? If it is conceded that management is not obliged to permit cross-examination of other employees and witnesses, why was the refusal unfair in this instance? Why was the unfairness so serious as to make the defect fundamental? Why could it not be cured by the internal appeals procedure?

Having challenged the Tribunal's findings on those two issues, they then raise what they would claim to be an even more serious omission in the Reasons. In paragraph 4, the Tribunal correctly addressed themselves to the three principal questions which have to be answered under Section 57(3) of the Act before they could conclude that the decision to dismiss was reasonably fair or unfair. Having decided that the Appellants had failed at the first which relates to a fair procedure, they failed, it would seem, to consider either of the remaining two questions. Specifically, say the Appellants, the Tribunal failed to express their findings as to the precise nature of the employer's belief, as to Mrs Kan's misconduct and as to any mitigating factors they may have found, both those matters being relevant to the issues of compensation and contributory conduct. Without knowing the factual base upon which the Tribunal approached the matter, there is no way of making sense of the 60% reduction in compensation and the zero assessment for contributory conduct.

Mr Grant, for Mrs Kan, submitted that the Tribunal's Reasons were adequate and therefore the decision should be left undisturbed. He supported that submission by citing UCATT v Brain [1981] ICR 551 and Martin v Glynwed Distribution Ltd [1983] ICR 511.

In commenting on the sufficiency of the Reasons, Mr Grant said they passed the required test because the parties know from them succinctly and precisely why and to what extent Mrs Kan won and the employers lost. The parties before the Tribunal knew that the evidence of Miss Copsey was the centre of a dispute of fact, and that this made her an important witness in the case. This was what the Tribunal were referring to when they described her as "a principal witness for management".

When dealing with the Appellants' editing of the questions to be put to the witnesses, Mr Grant said that, in so doing, they reneged on an agreement to allow the questions to be put.

When he came to deal with compensation, he said that whilst it might be thought to be desirable that the Tribunal's Reasons should set out the basis of their findings, was it really necessary? The Tribunal made plain they had weighed all the factors, one against the other, in coming to their decision, and in this difficult process of assessment, this was all they really could do. Their conclusion reflected their overall perception of the case.

So much for the respective arguments. How do we find?

We are of the view that the observations of Bingham L J, as he then was, in the case of Meek (supra) is the most useful of the citations made to us. In it, the learned Lord Justice reviewed the earlier cases cited to us and, in making his observations, expressly said that he did not believe his views of what was required was in any way inconsistent with those earlier authorities. This is confirmed by the fact that Sir John Donaldson, as he then was, had given the guidance in the earlier authorities and in Meek (supra), now as Master of the Rolls, was giving a concurring judgment. Whilst, through all the cases, there is a clear desire expressed by the Court of Appeal to avoid placing an unrealistic burden on the shoulders of the Chairmen who have to write up the Tribunal's Reasons, there is now a requirement that the Reasons should tell the story which, on the facts, is meaningful to the parties, and, on the law, would be meaningful to their legal advisers and an appellate court.

In our judgment, the Reasons, in the present case, are inadequate in those respects submitted by the Appellants and, pro tanto, are defective. Though they strive admirably to achieve the virtue of brevity, they fail to tell the story. The substance of the Appellants' criticism is that nowhere in the Reasons is it spelt out what were the Tribunal's specific findings about Mrs Kan's misconduct and the employer's belief of it. We were told, for nowhere in the Reasons is it stated, that it was alleged Mrs Kan locked-up the elderly resident for the whole of a morning whereas she contended that she had done so for only a few minutes in circumstances which substantially mitigated such offence as there was. The difference between what was alleged and what was admitted was clearly a relevant matter when considering the sufficiency of the reason for dismissal, compensation, and contributory conduct. Had the Reasons told the story, they would inevitably have revealed the Tribunal's factual conclusion about this central issue even though they would not necessarily have related the evidence upon which that conclusion was based. In our judgment, their failure to do so amounts in this instance to a fundamental defect. The next question is what to do about it.

For the reasons given by the Appellants, the Tribunal's decision should have set out what it was which disqualified Miss Copsey from participating in the disciplinary hearing as an adjudicator and in the process of dismissal. In the course of the hearing, we were told that Miss Copsey claimed Mrs Kan had admitted to her that she had locked up the resident for the whole morning but that, next day, Mrs Kan had telephoned her and complained that she, Miss Copsey, had misunderstood what she had said the day before. Since Miss Copsey did not accept that she had either misheard or misunderstood, it was plain that her evidence of what she believed to be the correct version of events was crucial. If this was what was before the Tribunal, and Mr Scuplak and Mr Grant agreed that it was, then we can well understand why the Tribunal below classed Miss Copsey as a principal witness, why they felt she was disqualified from playing the role that she did, and why they thought her participation rendered the disciplinary procedures fundamentally unfair. We think it would be a complete waste of time to remit this case to the same Tribunal in order to secure an explicit record of why they thought the procedures fundamentally flawed when both sides of the case know what was meant by the reference to Miss Copsey as a principal witness. Likewise, it would make even less sense to remit it to a differently constituted Tribunal to hear the matter de novo when that would mean a replication of the original hearing which lasted five days.

Our view is that the justice of the case will be met by leaving undisturbed the finding of unfair dismissal by reason of a procedural unfairness and by remitting the case to the same Tribunal for further consideration to be given to their assessment of compensation and contributory conduct. As they have not told the story earlier in their judgment, they should do so now, setting out precisely what they found the employers' belief as to the gravity of the misconduct to have been, and what difference, if any, a fair disciplinary procedure would have made. In considering contributory conduct, they should set out precisely the factors they had taken into account in deciding that it would not be just and equitable to make any further reduction in their award. To extent, this Appeal succeeds.