United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 289_95_0910

Appeal No. EAT/289/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 9 October 1995

Before

THE HONOURABLE MR JUSTICE MAURICE KAY

MR R H PHIPPS

MR R LAMBERT

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MR D MCKENZIE          APPELLANT

WEST MIDLANDS TRAVEL LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MS J POLLARD

(Of Counsel)

Messrs Shakespeares

Solicitors

10 Bennetts Hill

Birmingham.

B2 5RS


 


MR JUSTICE MAURICE KAY: Mr McKenzie was a bus driver employed by West Midlands Travel Ltd from March 1987 until August 1994. He was dismissed on 8 August 1994 following a disciplinary hearing. This took place because his employers had received a number of complaints about rude or aggressive behaviour towards passengers. When his application came before the Industrial Tribunal upon his claim that he had been unfairly dismissed, the Tribunal found numerous matters of fact. These included a finding that there was a picture of customer complaints relating to Mr McKenzie almost from the day he started in 1987 and continuing at various intervals and of varying severity, up until 1994 when five complaints were made by five different passengers within a period of a month. He had received warnings in the past, including one described as a final written warning but such previous warnings were spent, at the time with which we are concerned. The Tribunal found that the spent warning was not considered in the dismissal and formed no part of the employers case against Mr McKenzie.

In December 1993 Mr Delaney the General Manager (Traffic) of the employers, gave Mr McKenzie an informal warning to the effect that if he found he was being aggressive or rude to passengers, he would deal with him within the formal disciplinary procedure. As we have indicated the events came to a head following five complaints in the month of May 1994. These were referred to the disciplinary procedure and it is necessary that we should refer briefly to the procedure in operation at this work place.

Under the heading "Disciplinary Action" the agreed procedure between the employer and the Transport & General Workers Union provides as follows:

"(a) The immediate Supervisor is responsible for the day to day operation of their section and the normal action in the event of a breach of discipline in the first instance shall be an informal/formal warning, except in the case of gross misconduct.

(b) Repetition of similar breaches of discipline or incidents more serious in nature may require a formal warning or final warning from the Supervisor/Manager. In this case the Supervisor/Manager will confirm the formal/final warning in writing setting out the circumstances and the disciplinary action to which the employee will be liable for further breaches of discipline....

(c) SUBSEQUENT ACTION

In cases where it is decided that further or more serious disciplinary action is necessary, the following measures may be applied by the Manager not involved in the earlier stage:-

(a) Suspension without pay, together with a formal warning.

(b) Final Written Warning.

(c) Dismissal with notice.

(d) Dismissal without notice (confined to cases of gross misconduct)."

The procedure goes on to give a non-exhaustive list of examples of gross misconduct.

What happened in the present case is that in relation to the five complaints arising from the month of May, there was a Level 1 disciplinary hearing, at which Mr McKenzie's immediate manager considered that the case needed more serious penalties than he could give, so he instigated a Level 2 hearing before Mr Delaney. The Level 2 hearing took place on 10 June 1994 and again thereafter. The outcome of that hearing was that the employers dismissed Mr McKenzie with notice. His subsequent appeal was rejected. He therefore presented his case to the Industrial Tribunal claiming that he had been unfairly dismissed. The Industrial Tribunal unanimously rejected his complaint.

Mr McKenzie appeals to this Tribunal pursuant to a Notice of Appeal dated 11 March 1995. He has been represented before us by Ms Pollard, who in addition to the grounds set out in the original Notice of Appeal, has argued for the amendment of that Notice by the addition of certain further grounds. The original and main ground of this appeal is that, as a matter of construction, the procedure did not permit the dismissal with notice of Mr McKenzie at this particular time. The Industrial Tribunal had considered whether the procedure which we have described, was an incremental procedure, whereby an employee would receive in any case a succession of sanctions, unless it was a case of gross misconduct, or a menu-type procedure, whereby the employer could pick an appropriate sanction from the list, even if the lesser sanctions had not all been imposed in the recent past.

The Tribunal were strongly of the view that this was a menu-type procedure. Ms Pollard, who has represented Mr McKenzie before us in a most spirited way, drew our attention to aspects of construction of the documents. It is clear to us that what took place in this case was in accordance with the procedure. The provisions of Part 2(c) apply to cases where it is decided that further "or more serious" disciplinary action is necessary. It is clear to us that what occurred in this case is that it was considered and decided that more serious disciplinary action was necessary. The procedure was then followed. It was a procedure which had been agreed by Mr McKenzie's union and in relation to it, after some difficulties of personnel and preference, he was represented by union officials. Having regard to the Industrial Tribunal's findings of fact, we are not in the slightest bit surprised that the employers considered that this was a case for dismissal and they proceeded to dismiss Mr McKenzie with notice.

We have come to the conclusion that to the extent that it is sought to construe a contractual right which would have prevented such a course, this appeal is bound to fail. The enlarged grounds of appeal which Mr Pollard has placed before us today, tend to depend upon the suggestion either that the Tribunal was perverse and/or wrong in law in the decision that it reached or that the procedure itself, although an agreed procedure, was a fundamentally flawed procedure. We have scrutinised the decision of the Industrial Tribunal with care. It seems to us to be clear that the Industrial Tribunal directed itself correctly as to the law and in particular did so in paragraph 6 of its decision. They looked specifically at matters of both substance and procedure and they considered the law in the light of the factual findings which they made.

In essence, they were mindful of the fact that the procedure did not or may not have been in accord with the letter of the ACAS Code of Practice but they came to the conclusion as a careful industrial jury, that the procedure was within the range of acceptable procedures for this kind of case and concluded "we find no procedural fault within this dismissal". It is interesting to observe that in the internal hearings the union officials representing Mr McKenzie do not appear to have asserted either that the procedure was not being correctly applied or that the procedure was in any way flawed. We think their reticence was well placed because in our judgment the procedure was correctly applied and was not fundamentally flawed.

We have considered with care whether this appeal would have any prospect of success, if we were now to allow it to go forward. In spite of Ms Pollard having said everything that could be said on behalf of this Appellant, we are unanimously of the view that this appeal both as originally formulated and in its proposed amended form, would be bound to fail and we therefore dismiss it.