United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 167_95_2605

Appeal No. EAT/167/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26th May 1995

HIS HONOUR JUDGE SMITH Q.C.

MR L D COWAN

MISS A MADDOCKS OBE

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MR K ALLEYNE          APPELLANT

THE POST OFFICE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR K ALLEYNE

(In person)


 


JUDGE SMITH Q.C.: We have to take the view, in order to allow this matter to proceed to a full hearing, that there is an arguable point of law. It will be very difficult for Mr Alleyne successfully to challenge this decision of the Industrial Tribunal, because on the face of it, they appear to have applied their minds to the correct test under Section 57(3), as is the reasonableness of the Post Office's actions in dismissing Mr Alleyne for gross misconduct. It is difficult to impugn their decision when they have applied the apparently correct test. It must be said, as well, that they have carefully gone into the matter of the letters and the mix up that there was in relation to the disciplinary interview. But, having entered those considerable qualifications on the likelihood of this appeal succeeding, we all take the view that there is an arguable point here that the Industrial Tribunal did not correctly apply their minds to the very considerable importance of what could be called consultation, or alternatively what could be described as a basic principle of natural justice in relation to a gross misconduct allegation, namely that the employee should be given an opportunity to state his own position across the table to the employer, before he is dismissed for gross misconduct. That is simply a common sense proposition and must fall squarely within Section 57(3).

We consider that, although it is right that the Tribunal took the view that it could have been followed up on an appeal, the circumstances are somewhat different when a dismissal has been arrived at on the basis of gross misconduct, and matters cannot always be rectified by way of an appeal procedure.

In the circumstances we take the view that it is arguable that the Industrial Tribunal did not sufficiently take into account the fact that the employers failed to grant Mr Alleyne an opportunity, through no fault of his own, to deal with the very serious allegation made against him namely that he had been guilty of gross misconduct in absenting himself without a medical certificate. In our judgment it is arguable that he should have been given an opportunity to explain that matter. It is arguable that in the circumstances a reasonable employer should have afforded him another opportunity for an interview at what was a disciplinary hearing in effect before taking the draconian step of dismissing him for gross misconduct. We consider that it is arguable that the Industrial Tribunal did not give sufficient consideration to that aspect of the question as to whether the Post Office had acted reasonably within Section 57(3). We do not want to encourage Mr Alleyne into believing that there is more than a limited chance of this appeal succeeding. However, we do consider that the matter should proceed to a full hearing. We strongly recommend that Mr Alleyne should make efforts to get Legal Aid for the hearing of any such appeal, or at least take advice, perhaps from a Citizens Advice Bureau or similar organisation, with a view to getting somebody who has some experience of industrial relations law to represent him on the hearing of the appeal. There is no doubt, of course, that the Post Office will be fully represented, and it is, in our judgment, important that Mr Alleyne should take all steps to get proper representation on the hearing of the appeal.

We will order that the Chairman's notes of evidence be produced for the hearing of the appeal.