United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 705_95_1212

Appeal No. EAT/705/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 December 1995

HIS HONOUR JUDGE H J BYRT QC

MR D J JENKINS MBE

MR R H PHIPPS

---

P A C T           APPELLANTS

MS C CLARK          RESPONDENT

---

Transcript of Proceedings

JUDGMENT

Revised


 


---

APPEARANCES

For the Appellants MR Q BARRY

Solicitor

Messrs Donne Mileham & Haddock

Frederick Place

Brighton

East Sussex

BN1 1AT

For the Respondent MR M D BROWN

Trade Union Representative


 


JUDGE BYRT QC: This is an appeal from the decision promulgated on 31 May 1995 at the Brighton Industrial Tribunal when they held unanimously that the Applicant (now the Respondent) had been unfairly dismissed.

The Respondent, Miss Clark, had been employed by the Appellants since December 1990, and was so employed until 2 March 1994.

The Appellants themselves are a charity who provide for the needs of East and West Sussex in community and individual affairs. One of its projects is called Stopover which provides housing and support services for homeless and vulnerable young women.

The events leading up to Ms Clark's dismissal centre around complaints made by two young women aged 16 and 17, who were in residence at the project's housing centre. Ms Clark was the only full-time employee on duty at that house.

On 13 February 1994 one of the girls, called Kate, showed some distress. This was picked up by Mrs Saunders, who was a sessional worker (a volunteer as I understand it). The girl complained that Ms Clark touched her in a way that was unwelcome, that she shouted at her, ordered her around and so on. The other girl called Kim supported the complaints made by Kate. Neither of them were willing to make a formal complaint at that stage. A point which came out in the interview by Mrs Saunders, was to the effect that the touching about which they were talking, was essentially not sexual.

These complaints were relayed to Mrs Lythell, who was the chair of the management committee of the organisation. When she heard what was complained about, her view was that this was not a disciplinary matter but that it could be put right by supervision and training.

However, when her view became known to Mrs Saunders and another voluntary worker there called Mrs Thomas, they thought that this response was not good enough, and they contacted Social Services Department of the local authority. The upshot of it was that Ms Clark was suspended and invited to attend a meeting on 31 March.

There seems to have been some issue before the Industrial Tribunal as to whether Ms Clark had ever been notified that this meeting was to be a disciplinary hearing. They found that there was no express statement to the effect that it would be. Indeed, the way in which the proceedings were conducted before the panel, indicate that it was not of the nature of a disciplinary hearing, but rather more of an investigatory nature.

It did however feature in the employer's dismissal procedures as the one and only disciplinary hearing. It was flawed in a number of respects. Mr Barry, who has argued this case on behalf of the employers, has acknowledged that. The main problem seems to have been that this was not a witness hearing. Those who came to give evidence were interviewed individually by the panel and Ms Clark was just such a witness and had no opportunity of hearing the evidence against her or, indeed, of testing it in any way.

The problem, which undoubtedly caused difficulty for that panel, was that they had taken advice from Mr Barton who was the team manager of the Child Protection Unit, and he strongly advised the panel against interviewing the girls again, to test their account or their complaints, and also he advised that the details of the allegations should not be disclosed to Ms Clark and that, of course, is a handicap to any accused who has to meet the challenge presented by this sort of complaint.

In any event, the upshot of that hearing was that Ms Clark was dismissed. She exercised her rights of appeal and the appeal came before a panel consisting of a Mr Joyce, who is the vice-chairman of the organisation, a Mrs Hill who was a member of the management committee, and a Mr Pattison who had been the team manager of the Child Protection Unit before Mr Barton.

Before them, at the outset of their hearing, was a briefing note prepared by Mr Nichols. It set out in summary form the evidence that had been given to the previous disciplinary panel. It was a summary and did not pretend to be anything else. In addition, they had the original notes taken by Mrs Saunders of the interview with the two young girls. Mr Brown, the Respondent's representative, did not have those notes until the start of the second day of the appeal when he got them as a result of asking for them, but even then he was allowed them only temporarily and they had to be returned to the appeal panel. In addition to that, they had a note from one of the two complainants, the girl Kate, in which she expressed in fulsome terms, her distress at the turn of events which had resulted in Ms Clark being dismissed and indicated that, in her view, everything had got out of control.

In any event, the result of the appeal was that they upheld the original decision to dismiss Ms Clark, and did so on the grounds that she was guilty of gross misconduct as a result of what they called "inappropriate touching".

The matter then went before the Industrial Tribunal. The Industrial Tribunal came to the conclusion that the disciplinary hearing was flawed. They were highly critical of the proceedings. They thought that it was more of an investigatory hearing than any disciplinary proceeding. They criticised the seeing of the witnesses in the absence of Ms Clark. They criticised the fact that Ms Clark did not have the opportunity herself to hear the evidence against her, and as I have already indicated, Mr Barry does not seek to disturb the Industrial Tribunal's findings relating to that disciplinary hearing.

About the appeal; the Industrial Tribunal began by acknowledging that any Appellant before an appeal body starts off with a disadvantage, that of having to reverse a decision by some Tribunal or body below, which has gone against them. That is always a disadvantage and one which sometimes it is difficult to reverse.

So they were aware of the difficulties Ms Clark suffered mounting an appeal. But then they went on to say that, in their view, it was unsatisfactory that the appeal panel should have been primed by the briefing Mr Nichols gave them to which I will refer in a minute. They were critical of the fact that Ms Clark did not have a copy of the notes of the interview with the complainants taken by Mrs Saunders and Mrs Thomas. They make no comment to the effect that eventually Mr Brown had sight of them on the second day, but nonetheless, they thought that was a fair criticism to make of the appeal procedure. They also criticised the fact that nobody, either at the disciplinary proceedings level, or at the appeal saw fit to see the complainants again in order to check out their accounts. They felt that this was particularly significant in view of what Kate had written in her letter. They took the view that had they done so, the outcome of the proceedings might well have been different.

Of course, the problem was that there was the advice of the Child Protection Unit that the complainants should not be interviewed again, but the Industrial Tribunal took the view that proper diplomatic kindly handling and the proper professional approach, which should have been available to the employers as a result of their contact with the local services, would surely have enabled the appeal panel to have checked out the story sufficiently to give them a firm feeling of where they stood in relation to the complaints following that letter.

The view of the Industrial Tribunal was that whilst the disciplinary proceedings were flawed, the appeal process had not remedied those defects. And so we come to the hearing before this Tribunal and the Appellants' case (the employer's case) can be summarised in three propositions.

First of all Mr Barry says that the appeal process clearly overcame the defects of the disciplinary hearing and he referred us to two cases; the West Midlands Co-operative Society Ltd v Tipton [1986] IRLR 112 and Byrne v BOC Ltd [1992] IRLR 505 for the proposition that an appeal process was satisfactory where the employee who was engaged in the process of appeal, knew the charge that he or she had to meet, had a full opportunity to state his case in answer to those charges, and the employers had acted in good faith. The hearing had been de novo by a panel, he said, who are quite uninvolved in the earlier investigations.

The second criticism he makes of the Industrial Tribunal's findings is that it failed to take into account the advice that the employers were receiving from the Child Protection Unit, and in the result chose to substitute their own decision for that of the employers. Thirdly, he criticised the Industrial Tribunal's decision on a number of details, but he did not, in fact, focus his argument primarily on those mistakes. They were matters which were essentially within the province of the Industrial Tribunal to make decisions about it. Then last, he says that the contributory conduct of Ms Clark should have been 100% even although she had been dismissed unfairly.

The Respondent's reply by Mr Brown was to the effect that the appeal procedures were definitely flawed. He stressed that it was unsatisfactory for the appeal panel to have been furnished with Mr Nichols's summary. He says that inevitably, however fairly one endeavours to draw up such a summary, there is a slant on it from the start and indeed, Mr Nichols, as I understand it, presented the case for the management on that appeal hearing.

He then says that neither himself nor his client, Ms Clark were provided with the crucial notes of the interview with the complainant. Indeed, they contained the basis of the complaint against Ms Clark. He saw them temporarily for the second day only and then had to hand them back, again doubtless because everybody was so sensitive due to the advice given by Mr Barton. Thirdly, he says that this is a case where there had been a wholly inadequate investigation because the principal complainants had never been revisited at any stage after they gave the initial interview to Mrs Saunders and Mrs Thomas, and that they certainly should have been revisited following the receipt of the letter from Kate which had been put before the appeal hearing.

So these were all ways in which the procedures were defective, but he says that, in addition to that, there was an additional substantive failure in that the employer's thinking was totally dominated by a desire to protect the children and as a result of that, they failed to get the balance right between protecting the children on the one hand and the interests and rights of the employee, on the other. He referred us to a case of Linford Cash & Carry Ltd v Thomson [1989] IRLR 235 for guidance the Employment Appeal Tribunal has given in dealing with cases of this sort. In the Linford case the problem was that the employers had pressed charges based upon information given by informants who wished their identity to be concealed. In other words, the source of the evidence was to be confidential and that, of course, caused evidential problems when the disciplinary proceedings were pressed against the employee. The EAT set out five or six ways in which the interests of the informant can in those circumstances be protected at the same time as those of the employee. But to our mind the crucial passage in the headnote is that which stresses that where allegations concerning an employee's conduct are made by an informant, a careful balance must be maintained between the desire to protect informants who are genuinely in fear, and of providing a fair hearing of issues for employees who are accused of misconduct. In this particular instance, Mr Brown says that the employers overlooked the interests and rights of Ms Clark in their real concern to protect the girls.

So far as the findings of this Employment Appeal Tribunal are concerned, we find that Mr Barry's first point in his Notice of Appeal to the effect that the Industrial Tribunal went wrong in failing to make a finding as to the reasons for Ms Clark's dismissal, cannot be substantiated.

This Tribunal, must as has been repeatedly stated, look at the Industrial Tribunal's reasons as a whole and avoid scrutinizing them to find fault as if with a tooth comb. The Industrial Tribunal's reasons do not question the employer's belief or their bona fide in that belief, but they questioned the degree of investigation that was carried out. They point to the procedural defects and say that as a result any decision to dismiss in those circumstances, had to be an unreasonable one. So in our view, although they do not expressly address themselves to the Burchell questions in answering Section 57(1) and (2), the overall decision of the Tribunal makes their position clear and unmistakable.

Our view of the reasons is that the Industrial Tribunal felt that the employers had got the balance wrong, both at the disciplinary hearing and at the hearing of the appeal, the balance between the rights of the girls and the rights and interests of Ms Clark. We are satisfied that the Industrial Tribunal sought to get the balance right when giving their decision. They took the view that, however sensitive the case, something must be done to protect the rights of the employee as well as those of the children. The overall picture one gets from the reasons is that they were satisfied that nothing was done by way of investigation or otherwise to protect the interests of the Applicant.

The Industrial Tribunal pinpointed the problem before the disciplinary hearing, to be the advice given by Mr Barton. This prevented the employers giving detailed accounts of the allegations to Ms Clark, which if she was properly to meet the charges, was fundamental to her rights and interests. It also inhibited the investigation by not allowing either of the panels conducting the disciplinary hearing or the appeals process, to visit the girls to ask them further questions and to check on their account. The Tribunal obviously took the view that that was absolutely crucial, having regard to the contents of Kate's letter. In fact, they said, that had that aspect been attended to, the whole outcome of the case might well have been different. For those reasons, they concluded that the dismissal was a decision which no reasonable employer could have come to.

We are satisfied that the Industrial Tribunal made their way through the difficulties this case presented with commendable care, weighing up the respective interests of the employers, the complainants and that of the employee in a way that previously had not been done. They had well in mind, the sensitive aspects of the case introduced by the advice given by the Child Protection Unit, but they thought that that advice should not override everything else. Their reasons show they had well in mind both sides of the argument, and in our view, they came to a balanced judgment. We see no grounds for disturbing it.

In the circumstances therefore, we dismiss the appeal against the decision of unfair dismissal. On the issue relating to contributory conduct, alleged against Ms Clark; this is an issue upon which the Industrial Tribunal heard the evidence of a number of witnesses, people who had occupied Ms Clark's position before she had. They heard evidence about the ethos and culture which operated within the centre and, as a result, came to the conclusion that if there was a fault in Ms Clark, it related to her capability and possibly, lack of training but not to her own conduct. They found she had done her best throughout.

We are satisfied that the Industrial Tribunal was in the best position, far better than we would be, to decide this question of contributory conduct. If they came to a conclusion that she was blameless in this respect, we are not disposed to alter that finding.

Appeal dismissed.