At the Tribunal
HIS HONOUR JUDGE C SMITH QC
MR J R CROSBY
MR P DAWSON OBE
JUDGMENT
Revised
APPEARANCES
For the Appellants MR A J WOMERSLEY
(Representative)
Confederation of British
Wool Textiles Ltd
Merrydale House
Roydsdale Way
Bradford
BD4 6SB
For the Respondent MR A HILLIER
(Of Counsel)
Mr S Iqbal
Messrs Jordans
Solicitors
Neil Jordan House
Wellington Road
Dewsbury
West Yorkshire
WF13 1HL
JUDGE C SMITH QC: We have been greatly assisted by the arguments we have heard in this matter, a short case but not an altogether easy one from Mr Womersley, on behalf of the Appellants' employers and from Mr Hillier on behalf of Mr Hussain, the Respondent.
In this appeal, the Appellant employers, Hield Brothers Ltd, submit that in holding that the Respondent, Mr Nazhar Hussain, was unfairly dismissed for misconduct, the Tribunal misapplied or misconstrued the statutory test under Section 57(3) of the 1978 Act by in effect on a proper interpretation, a reasonable interpretation of its decision, submits the Appellant employer, deciding how it would itself have acted had it been the employer rather than by considering whether the Appellants' decision to dismiss was one which was open to a reasonable employer to take in all the circumstances of the case.
Against that it is submitted, very skilfully, by Mr Hiller, on behalf of the Respondent, Mr Hussain, that if one looks at the decision carefully, and to some extent reads between the lines (although he did not use that expression) that is not the position. What the Tribunal was in fact doing, he submits, was criticising the procedure of the Respondent employers and concluding that they had not acted reasonably in reaching the decision that they had reached, because of defects in their procedure in relation to the matter and that accordingly, says the Respondent, unless one takes a very nit-picking approach, it would not be fair to categorise the decision as being one where the Tribunal had substituted their decision for that of the employer.
So those are really the submissions and cross-submissions that are made in this appeal. The circumstances, the factual background, can be quite shortly stated. The Respondent, Mr Hussain, was employed as a supervisor in the Grey Room of the Appellants' mill in Bradford. He had been employed there for six years and was apparently a good employee and supervisor with about 14 people working under him.
What happened was that, on 13 September 1993, it was alleged that Mr Hussain had punched and struck one of the employees under his supervision, namely a Mr Khan when they were both in the course of their employment in the Grey Room.
The matter was reported to Mr Wright, the mill manager, via Mr Blackhall, the manager of the department, and Mr Wright then set about investigating the matter, as of course was his obligation and responsibility to do. He saw Mr Hussain, whom, it is fair to say, at once denied hitting Mr Khan, although he agreed and accepted that there had been some kind of argument and pushing and shoving of a trolley between the two men.
Mr Wright then, following the procedure correctly in our judgment, saw Mr Khan and the employees who claimed to witness the incident and asked them about what they had seen, necessarily through an interpreter in the case of most of them, and obtained quite short statements from them, but we can see no criticism of those statements being short in all the circumstances, and thereby received some degree of confirmation of Mr Khan's account that he had been punched by the Respondent.
The Respondent was then suspended, again quite properly as far as we can see, and told to telephone in the next day. Meanwhile, Mr Wright went about taking statements from the witnesses and I have already mentioned what we have to say about those statements. Statements were obtained, in our judgment properly, having regard to the fact that they had to be taken through an interpreter.
Then what happened was that when the Respondent, Mr Hussain telephoned in on 14 September, and this is of importance in our judgment, he was told to come in the next day. There is no doubt about the fact that he was asked to come in for a disciplinary interview on Wednesday, 15 September. There is a finding of fact to that effect in paragraph 3 of the Tribunal's decision.
But he did not come in. Instead of that, he sent a fax setting out his account of the matter, having telephoned to say that he was embarrassed to come in, but would instead be sending a fax. However much one puts a gloss on the meaning of the word "embarrassed", bearing in mind one is dealing with somebody whose first language certainly is not English, in our judgment that was an unfortunate attitude for the Respondent to have taken, especially as he was in a supervisory capacity, because one would have expected a very considerable degree of co-operation to have been forthcoming from a supervisor, and then there followed a situation where what appears to have happened is, from the findings of the Tribunal, is that the Respondent before us simply contented himself by saying that he did not think the witnesses were telling the truth, but he apparently said, and there is a finding of fact to this effect, that if they would swear on the Koran, he would be prepared to accept what they said. And there was a finding to that effect by the Tribunal in paragraph 3.
What then happened was that what Mr Wright did, and one can see perhaps an element of considerable commonsense in this, is that he then went down and spoke to these men to see whether they were prepared to swear on the Koran that what they said was the truth, to which they said that they would do so. He then, having invited the Respondent again to attend, apparently not necessarily on the 16th, but certainly at the time when the decision was going to be taken so at least he would learn the outcome of the decision, Mr Wright then decided to dismiss the Respondent who was accordingly sent a letter of dismissal.
So that is the background to the matter in outline. It is set out in rather more detail in the Tribunal decision. It is right to record that the Respondent did not avail himself of the appeal procedure and, accordingly, the dismissal stood.
There was unresolved dispute as to whether the Respondent had called in on 14 September. We do not derive a great deal of assistance from that aspect of the matter.
Now it is against that background that the Tribunal came to express its conclusion and its ratio (so to speak), of its decision in effect in paragraph 4 of its decision which is clearly the crucial paragraph. It is right to say that the Tribunal referred, rightly, to the leading case on this whole matter, very well known of course to this Appeal Tribunal, and to the advocates appearing before us today, namely British Homes Stores v Burchell [1978] IRLR 379, and in the opening sentence of that paragraph, correctly set out the proper test, but what the Tribunal then proceeded to do was to proceed as follows.
Having set out the correct test the Tribunal went on to say:
"4. .... This tribunal accepts that Mr Wright believed that the applicant [the Respondent before us, Mr Hussain] had struck Mr Khan ....".
But the Tribunal then goes on in this way:
"The tribunal however cannot say that there were reasonable grounds for that belief. The applicant had denied striking Mr Khan and so there is a conflict of evidence".... ".
And then crucially, in our judgment, we come to this sentence:
"We have not had the benefit of hearing evidence from Mr Khan who was not called, [obviously before the Tribunal they mean by that] nor have we heard from the witnesses, although their statements have been produced ....".
And then they go on to deal with the content of the statements by saying:
"In those statements Mr Amanat Ali says he is not sure if the applicant punched Mr Khan, Mr Colin Green says he saw the applicant punch Mr Khan and Mohammed Ghias says he saw the applicant punch Mr Khan twice on the neck".
And what they go on to say is:
"The applicant did not have the opportunity to confront these witnesses either at his disciplinary hearing nor of challenging them before the tribunal....".
And then they go on a little later:
"We are not satisfied therefore that there were reasonable grounds for believing on the balance of probabilities that the applicant struck Mr Khan. Consequently we find the dismissal unfair".
In our judgment, looking at this matter as fairly as we can, without we hope taking a nit-picking approach, we are all of the view that in substance what the Tribunal were in effect doing here was substituting their own judgment as to whether Mr Hussain had struck Mr Khan, and they were reaching their own decision in the matter instead of looking at it in order to determine whether the Appellant employers had reached a reasonable decision in all the circumstances.
In our judgment, what has happened here is that unfortunately, the Tribunal having stated the correct test, has then departed from it and substituted their own decision for that of the employer.
We have taken into account the submission that was made to us, namely that the sentence where the Tribunal say they have not had the benefit of hearing evidence from
Mr Khan, who was not called, nor have they heard from the witnesses although their statements have been produced is perhaps to be explained as referring to a means whereby the Tribunal could in some way test the reasonableness or give Mr Hussain the opportunity of challenging the reasonableness of the employer's decision, and in that way it is submitted it is a proper observation by the Tribunal and one that does not indicate that they have substituted their own decision. We really cannot read those words in that way in all the circumstances, and accordingly we take the view that the Tribunal has erred in law in substituting its decision for that of the reasonable employer.
With regard to the employer's procedure and the way in which Mr Wright went about the procedure, we accept as really is clear from the decision to which we were rightly and helpfully referred by Mr Hillier of Bentley Engineering Company Ltd v Mistrey [1979] ICR 47, that where there is an allegation of fighting or of an assault of this kind which is disputed, then normally a reasonable employer would be expected to go on to hold a hearing of some kind, certainly a confrontation of some kind or another, but in our judgment here the employers were put in a position where they were obliged, as Mr Womersley put it, to accept second best, due, in our judgment, to the unreasonable response of Mr Hussain to the way in which the matter was being dealt with, especially having regard to the fact that Mr Hussain was in a supervisory position.
In our judgment, he should have responded to the request that was made of him to attend for a disciplinary interview, and he was the author of his own misfortune in failing so to do. And then what seems to have happened here is that the Tribunal has taken upon itself, in those circumstances, for the reasons I have already attempted to state, to substitute their own view of the matter whereas what they should have done and limited themselves to doing, was looking at what the employer had done in all the circumstances, and reaching conclusions, perhaps more detailed conclusions, as to whether what the employer had done in all the circumstances was or was not unreasonable and whether the employer had reached a reasonable decision in all the circumstances. The Tribunal allowed itself to be diverted into taking its own decision in the matter.
It is an unfortunate situation especially as this is a short and relatively simple case, but most regrettably, for the reasons I have attempted to state which are the unanimous views of this Appeal Tribunal, the appeal will have to be allowed and the matter will have to be remitted back to a fresh Tribunal.