United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 79_94_0412

Appeal No. EAT/79/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 4 December 1995

Before

HIS HONOUR JUDGE H J BYRT QC

MRS E HART

MRS M E SUNDERLAND JP

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BASS TAVERNS LTD          APPELLANTS

MR G FOY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants JOHN STOBART

(of Counsel)

Messrs Andersons

Queen's Bench Chambers

42 The Ropewalk

Nottingham

NG1 5EJ

For the Respondent NIGEL GRUNDY

(of Counsel)

Messrs Rowley Dickinson

Halifax House

93/101 Bridge Street

Manchester

M3 2GX


 


JUDGE BYRT QC: This is an appeal against the decision, promulgated on 20 December 1993 of the Industrial Tribunal sitting in Liverpool, when unanimously they held that the Applicant (who in this case I shall refer to as Mr Foy) had been unfairly dismissed.

Mr Foy had been employed by the Appellants between 1987 and 13 August 1992 as Manager of the Jolly Brewer Public House in Runcorn, at which address he was also expected to reside.

On 20 July 1992 Mr Foy was arrested and subsequently charged with an indecent assault on his 16 year old stepdaughter. He quite properly immediately informed his line Manager, Mr Flaig and the result was that he was suspended that very day.

On 22 July he was granted bail by the Magistrate's Court. A term and condition of that bail was that he did not live in the borough of Halton. Therefore, this meant that he could not get to his public house in order to carry out his duties there.

On 31 July he was notified that there would be a disciplinary hearing on 6 August, and on 6 August he attended such a hearing. This was conducted by Mr Thompson who was the Retail Operations Director. Mr Foy was represented by his union and, in the course of that hearing, he indicated that there was approximately a 50/50 chance of the criminal charges against him being dropped. It would seem, as a result of that, that Mr Thompson agreed to adjourn the hearing for seven days and the hearing re-convened on 13 August.

In that time, it had been learned that the charges were not to be dropped and that the case would proceed to the Crown Court. The crucial question which nobody seemed to be able to answer at that stage, was when that would be. Anyway, the result of the hearing on 13 August, was that Mr Thompson dismissed Mr Foy as from that date, he being paid four weeks' pay in lieu of notice. The stated reason for his dismissal was, in accordance with clause 11(2) of the disciplinary code, that he was no longer able to carry out his contractual obligations.

When the Industrial Tribunal came to consider this part of the case, they summarised Mr Thompson's reasons for so thinking. First, he had said that there was no way he could know when the proceedings against Mr Foy would be concluded, and in those circumstances, although cost was not a factor in the consideration, suspension was inappropriate. Secondly, he said that there were no vacancies of alternative employment for Mr Foy in his region (that is Mr Thompson's region); and thirdly, he said, he was also influenced by the attitude of the local licensing committee who were apparently becoming increasing concerned at what were known as "revolving licences", namely applications for transfer of licences in view of temporary transfers and so on. It was accepted that had Mr White been transferred elsewhere, this would necessarily have involved two such applications.

In any event, having been dismissed, Mr Foy's case in the Crown Court proceeded, and in December 1992, he was acquitted of all charges.

When this matter came before the Industrial Tribunal, they made certain findings. First, when considering section 57(1) of the Employment Protection (Consolidation) Act 1978, they stated they were not satisfied the employers had truthfully stated their reasons for dismissing Mr Foy. Their conclusion was that the real reason for dismissing him was the emotive nature of the serious criminal charges against him. Thereafter, instead of finding that the employers had not proved their reason as they were required to do by section 57(1), they proceeded to consider the other issues arising under S.57(3) and, in particular, the sufficiencies of the reasons for dismissal. They found that the employers had never put their true reason to Mr Foy, that they had never investigated the allegations against him, and had never asked Mr Foy for his explanation of the charges. For these reasons they found that the reason for his dismissal was insufficient.

In the alternative, they went on to say that had they accepted the employers' reasons for dismissal, they would still have found the dismissal unfair on the basis that a reasonable employer would have postponed the disciplinary process until the conclusion of the criminal proceedings and suspended Mr Foy on full pay or relocating him elsewhere in the North West in the meantime.

The points arising in this case are comparatively short. The case for the Appellants has been argued by Mr Stobart who says that the reason advanced by the Industrial Tribunal for the employers' decision, namely the emotive nature of the serious criminal charges against Mr Foy, was not supported by the evidence. In other words, he says decision in this respect was a perverse finding, one which no reasonable Tribunal could have come to. The Tribunal's decision turned on the evidence of Mr Thompson. Mr Stobart referred us to the minutes of 6 August as an illustration of the employers' thinking at the time. In those minutes, it is recorded that it was neither the responsibility and nor the position of the employers to pass any comment on the criminal court proceedings and when dealing with alternative jobs, Mr Thompson's evidence was that the notice of the charge was irrelevant because in any event there were no vacancies to be considered. And indeed, he says that the whole thrust of the Applicant's case before the Industrial Tribunal really was based on inconsistency of treatment, inconsistency of the way the Respondents had treated him in comparison with the way they had treated other of their employees over the course of time.

In considering this first point, the EAT has taken note that all Mr Stobart's submissions were based upon the evidence of Mr Thompson. The fact is that the Tribunal just did not accept Mr Thompson's evidence and if one wanted explicit evidence of this, one has to refer to a letter, put in by the request of both the parties to this hearing. The letter written by the Chairman of the Industrial Tribunal who heard this case dated 26 October 1994 says:

"The fact of the matter is that there is no reference to this finding in the notes of evidence. We simply did not believe the evidence of Mr Thompson who dismissed Mr Foy."

Bearing in mind that clear statement of the Chairman of the Industrial Tribunals, coupled with the fact that before the Industrial Tribunal the Appellants placed almost total reliance upon the evidence of Mr Thompson, we do not think that we can, in any way, call the decision of the Industrial Tribunal perverse. An issue of credibility is essentially one for the Tribunal to decide.

The second of Mr Stobart's submissions was to the effect that, during the formulation of their decision, the Industrial Tribunal shifted the goal posts. Whereas the case had been contested on the basis of incapacity, it was moved to a case relating to conduct. What Mr Stobart says is that, if the Industrial Tribunal were going to base their decision on conduct, the matter ought to have been put fairly and squarely to the employers so that they could have made their comment. It should have been put either by Mr Foy and his representative or, alternatively, it should have been put by the Tribunal itself and it was not.

Mr Stobart then referred us to two cases, in particular the Hereford & Worcester County Council v Neile [1986] IRLR 168 and Mercia Rubber Mouldings v Lingwood [1974] ICR 256 in which it was made plain that, basing a decision on a point which was not put to the parties, is a fundamental breach of the rules of natural justice. This is a proposition which was not disputed by Mr Grundy for the Respondent and therefore, there has been no need to refer to those cases specifically.

Mr Grundy's answer is that the employers' reason, whatever it might be, was certainly an issue in the case. First, Mr Foy's written statement said that the reason for his dismissal was because the employers were concerned about the adverse publicity which would attend upon his being charged with these particular offences. Although that statement went in only when Mr Foy gave evidence and he confirmed the truth of it, the employers or their representative should have been alerted straight away to what was the thrust of the Applicant's case. Certainly, it would have been a matter which anybody with any experience in court proceedings would have seen was something which had to be challenged for instance by way of cross examination.

The next point made by Mr Grundy is that a Mr Simpkins, the Union representative appearing on behalf of Mr Foy, cross examined Mr Thompson and Mr Flaig about the inclusion of a newspaper cutting which recorded the charges made against Mr Foy in the employers' bundle of documents. He questioned these witnesses as to why it had been included if, in fact, they had not attached any importance to the criminal charges. There is some significance attaching to the fact that the newspaper cutting was dated 6 August, a date which coincided with the date of the first disciplinary hearing.

Then, Mr Grundy points out that even although Mr Thompson had been deprived in the first instance of the opportunity of commenting upon Mr Foy's evidence because the latter went second into the witness box, he was in fact recalled and given the opportunity by the Tribunal to answer a number of matters which had arisen for the first time in Mr Foy's evidence. He then had the opportunity of refuting what Mr Foy had said. Further, Mr Grundy says that, even if that opportunity was not enough, Mr Simpkins concluded his final submissions by making reference again to the issue of the reason for the dismissal and he said the employers, at that stage, would have had the right of reply. Although this is not, strictly speaking, part of the record of the Industrial Tribunal, it has not been disputed by Mr Stobard. And once more, however imprecisely it might have been put in cross-examination of Mr Thompson during the course of the case, here was another opportunity for the employers' representative to answer the allegations being made by Mr Foy.

One appreciates that hearings of this sort are attended by representatives and legal advisers who are not necessarily professionally trained in court advocacy. In this instance, the employers were represented by a Personnel Director and one does not know what experience he had of court proceedings, but for that reason where it is not entirely clear how an Applicant puts his case, it is desirable that the Chairman should step in to ascertain that precisely. This, in fact, is what happened here.

We, as the Employment Appeal Tribunal, have considered the submissions made both by Mr Stobart and Mr Grundy and are satisfied that the reason for dismissal was raised as an issue in these proceedings. Whilst it might not have featured in headlines, it is, in our view, clear that it was raised sufficiently for it to have alerted the Appellants to the case that they had to meet.

In these circumstances, we are not able to say that there has been a fundamental breach of the rules of natural justice here and accordingly the appeal must be dismissed.