United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 928_94_2510

Appeal No. EAT/928/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 25 October 1995

HIS HONOUR JUDGE J HULL QC

MR D A C LAMBERT

MR T C THOMAS CBE

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TATE & LYLE SUGARS          APPELLANTS

MR H DANIEL          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR A LYNCH

(of Counsel)

Gillian Howard Associates

34 Lyndale Avenue

Childs Hill

London

NW2 2QA

For the Respondent MR A SENDALL

(of Counsel)

Messrs Duthie Hart & Duthie

Solicitors

517-519 Barking Road

Greengate

Plaistow

London

E13 8PT


 


JUDGE HULL QC: This is an appeal to us by Tate & Lyle Sugars against a decision of the Industrial Tribunal sitting at London North on 1 and 2 August 1994. The Tribunal was chaired by Mrs Prevezer, there were the two industrial members and the decision was promulgated on 25 August.

Mr Daniel, the Respondent to the appeal, who is a gentleman in his early 30s, had been employed since May 1979 by Tate & Lyle Sugars and he was employed as a maintenance assistant. He is, to some extent at any rate, handicapped in some way, but that does not prevent him (as we understand) giving every satisfaction as an electrician or maintenance man and so he was employed satisfactorily for a substantial period.

He complained that he had been unfairly dismissed and he complained that he would wish to be reinstated or to be awarded compensation. The employers, in reply to his complaint, said that he had been dismissed for gross misconduct. They said that he had been found guilty, by the employers, of theft of money and deceit; on reasonable grounds, as the employers said.

So that was the question into which the Tribunal had to enquire and I take the account of what had happened from the Industrial Tribunal's account of the matter. It was on a Bank Holiday, Easter Monday, 12 April 1993 when he was, in fact, at work with others and according to his supervisor, Mr Honeywell (and there seems to be no dispute about this) he asked whether he could leave the site at about 2.30 that afternoon and permission was given, on the basis that he had finished the job that he was on, or would finish it.

In fact what happened was that Mr Daniel did not leave the site; he went to a nearby block of offices called Cube House and there he was seen at about 2.45 pm by a Mr Geoffrey Brown, a Project Engineer. Mr Brown said that he saw him in the office of a Mr Boyle.

There was some dispute about the facts. It appears that, at any rate at first, the Applicant agreed that he was in the office and Mr Brown asked what he was doing there and was given the explanation that he had been called there to deal with some electrical work, by a colleague. They left the building together, say the Tribunal, and the next morning Mr Brown reported to Mr Cole, his Manager, what had happened and what he had seen, and Mr Cole said that there had been a report that some of the desks in the offices had been broken into and it was indeed found, shortly afterwards (that same morning), that £23 had been stolen from somebody or other.

So then Mr Brown spoke to Mr Weir, the Employee Relations Manager, and Mr Daniel gave his account of being called to the building to replace some plugs or something of that sort and there was doubt about that, as to whether there was in fact any work to be done there; it was not scheduled work and the upshot of all this was that the Applicant was called to see Mr Weir, who was the gentleman who would be responsible for disciplining him.

He attended Mr Weir's office with his shop steward; he was told about the theft and Mr Weir spoke not only to Mr Brown but to Mr Honeywell, and also to a Mr Elwood who was head of the Maintenance Department and he looked at Mr Brown's written statement of facts recording where he found, or where he said he had found, Mr Daniel.

There was a second meeting, which was a disciplinary meeting, that afternoon and the Applicant was represented by his union representative and notes were kept of that disciplinary meeting which, of course, the Industrial Tribunal saw and we have not.

Then the Tribunal went on like this.

"3 Mr Brown in evidence to us had stated that he had found Mr Daniel `hiding behind the door in Mr Blythe's [that should be Mr Boyle's] office'. Photos of the area were produced to us and it is apparent to this Tribunal that Mr Brown [that should be Mr Daniel] could not hide behind the door which had a glass panel through which you could see. If Mr Daniel had wanted to hide he would have placed himself in another part of the office. On questioning Mr Brown changed his evidence to `Mr Daniel was standing behind the door'. This is a matter of conflict, as the Applicant in evidence to us stated that he was in the corridor when he heard Mr Brown coming around the corner. Mr Daniel stated that he waited for another five minutes while Mr Brown completed his task and when Mr Brown was ready to leave he decided he would leave the building with him as obviously the other electrician was not coming. We conclude therefore on this conflict of evidence that Mr Daniel was not hiding in Mr Blythe's [that should be Mr Boyle's] office but was in the vicinity and waiting in full view of Mr Brown and made no attempt to conceal himself from Mr Brown or make a rapid retreat while Mr Brown completed his job."

This, of course, is a very important part of the story, because the question was not "Was Mr Daniel there?" but "What were the exact circumstances? Were they such as to arouse just suspicion or, indeed, belief that he had done something wrong?" - and the criticism made by the employers is that here the Tribunal were addressing themselves to something which, on the face of it, they had no business with. Their duty was this: To look, among other things, at what the material was in front of Mr Weir. It would include, of course, much of this which they set out, or evidence to the like effect. What was in front of Mr Weir? Was Mr Weir justified in reaching particular conclusions? Should Mr Weir have made further enquiries? Was there a conflict of the evidence which was laid in front of Mr Weir? That is what they should have considered and so here, it is, as is suggested by the Appellant, a case of the Tribunal making up their own minds about the rights and wrongs of things; putting themselves in the shoes of the employer.

Then they go on (I am not going to read the whole of the decision but large parts of it are important) in paragraph 4:

"4 At the conclusion of the hearing Mr Weir decided to summarily dismiss the Applicant without notice and this was confirmed in a letter to him of 14 April [we have seen that letter]. The reason for the dismissal in that letter was that the Applicant `had been found in an area without reason for being there shortly after you had sought permission from your Manager to go home.`"

When we look at the letter, in addition, having referred to the theft, it says:

"... The Company felt that there were reasonable grounds to conclude that you were involved with the incident and dismissed you."

Certainly, the natural reading of that letter is that they were indeed saying he was involved in the theft and that that was the ground on which he was being dismissed.

The Tribunal goes on:

" ... Mr Weir felt that there were reasonable grounds to conclude that the Applicant was involved in the theft."

They go on to say that:

"... Mr Weir admitted that he himself had not made the investigation regarding the telephone calls [that of course is the call suggesting that Mr Daniel should go to the Cube building] but had left it to the union representative to see if they could find someone who knew something about the alleged telephone call."

We are told, and it is mere assertion, that the union in fact was the appropriate body to make this inquiry. They had a large number of members and it would be convenient for them to make the enquiry, but of course that would be a matter which might or might not be important to Mr Weir's decision.

It would of course be an important matter, which would tell or might tell against Mr Daniel, if in fact no phone calls were made. But of course, the mere fact that a phone call was made might not be important - that would be a matter for Mr Weir. At any rate, they record that. They say:

"5 The procedures allow for an appeal to be made to another Manager, but after the summary dismissal the money that had been stolen was returned with an anonymous letter. Mr Daniel's sister then wrote to the Respondents asking for the terms and conditions of employment and details of the disciplinary procedure. The union acting through a Mr Gordon felt that the return of the money which was £23 might alter matters, therefore he made an application for a further hearing [that is Mr Gordon who is a senior representative of the union]. There were notes made of this hearing which are headed `Appeal Against Dismissal, - Hanson Daniel' and it was held on 19 May and was again held by Mr Weir although there were the other Managers from whom we heard also present. Mr Gordon had access to the statements which Mr Weir had seen and at the outset Mr Gordon asked `what procedural stage is this meeting' to which Mr Weir replied, `the new disciplinary procedures are not yet introduced. If fail to agree here, next stage is national meeting with the Personnel Director'."

Clearly, that means that the national meeting with the Personnel Director would be the appeal, if there was an appeal, from Mr Weir on this occasion.

"6 The facts were reviewed and the Applicant stuck to his story that there had been a telephone call for him to go across to Cube House and he denied stealing the money. Mr Daniel again suggested the police were brought in but Mr Weir stated he saw no point in this since Mr Daniel had not been accused of stealing. He repeated that to the Tribunal but he did not think he was dismissing the Applicant for stealing but for being `in an area without authority'. Mr Weir made it clear that he did not accept the Applicant's explanation. At the Disciplinary Hearing Mr Brown stated that he did not notice any damage to the desks and stated that he could see through the window of the door of Mr Boyle's office, someone standing there whom he knew should not be there. He had been alerted because he saw the door being closed."

So that is what they had to say about Mr Weir's hearing. There were, apparently, no fewer than four trade union officers or representatives, who attended before Mr Weir.

"7 At the hearing Mr Weir stated that he would get a statement from Mr Kuller [the foreman] about the person who had informed him about the money being missing and Mr Gordon pointed out to Mr Weir that because of the Applicant's level of intellect [that is a reference to his handicap] he had been prone to practical jokes being played on him by others. At the end of the hearing Mr Weir concluded that the decision to dismiss should stand. He said should Mr Kuller's evidence bring no new relevant information then the decision will remain unchanged. Mr Kuller's evidence did not provide information but by a print-out dated 20 May 1993 of the telephone calls, it was clear that no telephone calls were logged at the time that the Applicant said he had received the call."

So pausing there, what the Tribunal should have asked themselves, said the Appellants, and it hard to dispute this, was "Was what passed then fair?. Was Mr Weir acting rightly in hearing the matter again? It appears to have been a review, the facts were reviewed", they say. The meeting was with Mr Weir at the request of Mr Daniel's representatives.

"8 On 21 May, Mr Weir wrote to Mr Daniel stating that no new evidence had been presented and the dismissal stood. ..."

Then they refer to a letter which was written by Mr Greer, the Industrial Relations Manager, to Miss Daniel, the sister of Mr Daniel saying:

"... that it would be inappropriate for me to provide you with this information at a time when Mr Daniel's dismissal is the subject of an appeal hearing set for Wednesday, 19 May.

We conclude therefore that the hearing on 19 May was treated by Mr Weir and by all parties as an appeal hearing from the original dismissal."

That does seem, on the face of it, a very strange conclusion reached without any adequate reasons based on what was said in a letter. Here, one had, on the face of it, four trade union leaders and Mr Daniel going back to the very man who had dismissed him and asking him to look into the matter again in the light of some fresh evidence; and being told that if there was to be an appeal it would have to be to a more senior gentleman, a Personnel Director; and asking Mr Weir to consider various matters.

Nobody suggested then or were told, even in front of the Tribunal, that it was wrong for Mr Weir to conduct that enquiry and review the matter; he was being specially asked to, by the trade union officers, including Mr Gordon. It would have been elementary, anybody would have said "if this is to be an appeal in the strict sense, Mr Weir is not the person to hear it, it should be another company officer to hear the appeal, preferably senior to Mr Weir, so that the whole matter can be gone into again, or as the rules for appeal provide"; and it does not seem to us that the Tribunal were there giving adequate reasons for saying that this was an appeal, and what followed from that, when they come to their conclusions.

They say:

"9 In the letter of confirmation which Mr Weir sent to Mr Gordon ... on 21 May and the letter which was sent to the Applicant, there is no mention to the Applicant that there was a further right of appeal called `A National Appeal'. ... "

That, again, is a rather strange statement to make. Two days before, that very matter was recorded as having been discussed, that the next stage would be to go to the National Appeal Director. They record that:

"Mr Weir explained that ... saying that it was up to the union to deal with appeals and if the union did not wish to appeal on behalf of its member, then no appeal is made. He stated that he had never known a case where an appeal had been taken by an individual. ... "

This seems again rather a case of being wise after the event. The question was whether the employers were doing what was reasonable, in particular Mr Weir, at the time. And at the time there was no question of Mr Daniel trying to proceed without the benefit of his union's assistance. He had attended on Mr Weir with several union officers, so it seems to be a hypothetical thing to consider what would happen if he lost the support of his union, though, of course, eventually he evidently did. They go on by saying:

"10 We were shown some letters to the Applicant from the union representative which stated that unless they could find a person who allegedly phoned the Applicant and requested him to go to Cube House Offices they would not proceed to the final appeal stage."

So there it had developed to that stage, that the union were not prepared to go on and were giving advice to their member. The Tribunal say:

"11 There were various conflicts of evidence between the Applicant's evidence and the Respondent's, mainly to do with the Applicant's position in Cube House and secondly, the question of the telephone call. There were discrepancies in the Applicant's evidence but he was adamant throughout that (a) he had received a telephone call calling him over to Cube House and (b) he had not committed theft."

Again they are referring to what passed apparently before them, the Tribunal, not to what had passed before Mr Weir. Then they come to the vital part of the decision:

"12 We find from these facts that the Respondent did not make a proper and thorough investigation of the matter on 14 April before dismissing him. Mr Weir came to a conclusion that the Applicant had committed theft because he had been found in an unauthorised area and Mr Weir did not believe the Applicant's explanation about the telephone call."

They go on:

"13 At the time of dismissal the Respondents could not have had a reasonable belief in the truth of the facts as certain other information only came to his notice [that would be Mr Weir's] after the dismissal had been made.

14 Further, it is clear to us that the Appeal Hearing was procedurally flawed as it is clear that the Applicant and the union advisers thought that this was an appeal and this appeal was being heard by the same person who originally dismissed the Applicant..

15 No reasonable employer would have dismissed an Applicant who had been employed for 14 years with only minor conduct blemishes on his record in the way that the Respondents did without making a proper investigation and without making clear to the Applicant that he could appeal the hearing in a proper way. We therefore conclude that this was an unfair dismissal."

That is their decision and that is criticised by Mr Lynch (to whom we are very much obliged) on three bases. First of all, he says, and this really is the first and most important of his submissions:

"This decision fails to tell the employers why they have lost the case. It is said here that the Respondent did not make a proper and thorough investigation of the matter."

That, of course, was one of the most important matters which the Tribunal had to investigate.

"Mr Weir came to a conclusion that the Applicant had committed theft because he had been found in an unauthorised area and Mr Weir did not believe the Applicant's explanation about the telephone call."

What Mr Lynch says, or at any rate, said when I put it in these words, he was content to put it like this; that if they (the employers) were to be told that the Respondents did not make a proper and thorough investigation, the least that could be said is what was omitted by them; what they should have done and what they did not do and why the Tribunal thought that that was important.

Mr Lynch also criticises that sentence in paragraph 12 on the basis that instead of talking about behaving reasonably and fairly, the Tribunal talk about making a proper and thorough investigation. We think with respect that that is not a good point. We think that we, ourselves, often use the words "proper" and "thorough" when we mean "reasonable".

We find it hard to see how an investigation could be a reasonable investigation in the case of an employee of good conduct and long-standing, which was not proper and thorough. That, of course, to some extent begs the question "thorough for what?" and obviously the answer is - for the purpose of investigating whether to dismiss an employee in these circumstances.

The Tribunal do not address themselves to exactly what was in front of Mr Weir and exactly what more should have been in front of Mr Weir; what more he could have done on this occasion. It is true, as Mr Sendall says, that there are matters which can be construed as being matters which they thought should perhaps have been included in the enquiry, but it seems to us that it is wrong that they should not be expressly spelled out. They say:

"Mr Weir came to the conclusion that the Applicant had committed theft because he had been found in an unauthorised area and he did not believe the Applicant's explanation about the phone call."

That would possibly be, on the face of it, material from which Mr Weir could reach his conclusion, but he had much else before him. The Tribunal should, in our belief, have set out exactly why it was wrong for Mr Weir to reach his conclusion on the material which he had and they seem, as was said to us, to have been addressing themselves very little to what Mr Weir had and very much more to what they found to be the truth of the situation, having heard the evidence of some of the protagonists, at any rate.

And then they go on to say:

"13 At the time of dismissal the Respondents could not have had a reasonable belief in the truth of the facts as certain other information only came to his notice after the dismissal had been made."

It appears to us, we accept Mr Lynch's submission about this, a complete non sequitur. The question is whether Mr Weir had proper material, material on which he could reasonably form the belief that he said he did, and to say that other information only came to his notice after the dismissal had been made, indicating that he could not have had a reasonable belief in the truth of the facts that he ascertained, is completely illogical and shows that every question relating to the reasonableness of his belief is being begged in the thought process of the Tribunal. They should, of course, have asked themselves, first of all, "what was before Mr Weir"? secondly, "Had he conducted a reasonable enquiry and if not, what more should he have done"? Thirdly, did he make up his mind bona fide"? - and they seem to have found that he did - and fourthly, "if the material did not justify him making up his mind in that way, why was that"? They should have explained that.

Then they go on:

"14 Further, it is clear to us that the Appeal Hearing was procedurally flawed as it is clear that the Applicant and the union advisers thought that this was an appeal and this appeal was being heard by the same person who originally dismissed the Applicant."

That seems a very strange conclusion. It seems to be reached, according to their reasons, on the basis simply of what was written in letters. It is almost inconceivable that the union officers who attended on Mr Weir on the second occasion thought that this was an appeal, or that they would have pursued an appeal (in the strict sense) to the man who reached the original decision.

It seems, from what is set out, so far as the reasons go, that it was of the Union's seeking that this interview took place and that what they asked Mr Weir to do was to reconsider his decision in the light of fresh information and arguments that they wished to lay before him, in particular the return of the £23. So far as the reasons are given, there was really no satisfactory material and certainly no satisfactory explanation to support this conclusion that this was an appeal hearing.

And then they say:

"15 No reasonable employer would have dismissed an Applicant who had been employed for 14 years with only minor conduct blemishes on his record in the way that the Respondents did without making a proper investigation and without making clear to the Applicant that he could appeal the hearing in a proper way. We therefore conclude that this was an unfair dismissal."

It seems to us that the Tribunal were again short-circuiting matters and not making it clear what a proper investigation would have been; and with regard to the question of an appeal, this very matter had been raised before Mr Weir on 19 May and the matter, so far as could be seen, was made perfectly plain. It seems to us that talking about making it clear to the Applicant that he could appeal the hearing in a proper way, would have been beside the point when he was represented by union officers. In due course, Mr Weir, being told by his union that they would not take the matter any further, was apparently left without proper advice about the matter. Whose fault was that? one asks. How could that possibly be attributed to the employers as unfairness, retrospectively?

So these criticisms we make, not on the basis that this was a bad case, that the Applicant was not entitled to bring it, or anything of that sort, or that he was clearly fairly dismissed or anything of that sort. We simply say that it seems clear to us, on reading this decision in a natural and (we hope) fair and proper way, that here the Industrial Tribunal were not explaining properly to the employers why they had lost and, indeed, to the Applicant why he was successful. Furthermore, it is pretty clear that that arises because the Tribunal were, indeed, putting themselves "in the shoes of the employer" and thinking about what they thought was reasonable after reviewing the evidence given to them and, in particular, the evidence of Mr Brown, about which they thought it right to say he had altered his story.

There was not a word (as there should have been) about what was before Mr Weir. It was all about what evidence was given to the Tribunal and the whole emphasis should have been on what was in front of Mr Weir, to see whether he had acted fairly.

We also think that the Tribunal quite inadequately expressed the reasons for saying that the review by Mr Weir was an appeal in the strict sense. Therefore, we cannot on reading this say that the Tribunal has set out adequate reasons, in an adequate way, showing that they had addressed their minds correctly to the matter and telling the parties how they had come to win or lose the case in front of the Industrial Tribunal.

That is not something we can put right today. It is certainly not open to us, not having studied the numerous documents which were contained in various bundles and above all, of course, not having heard the evidence, and not having any jurisdiction whatever to do so, to substitute our own view of the facts.

We have, indeed, not been able to form a clear view of the facts at all and in those circumstances, we think that the only proper course is to remit the matter to an Industrial Tribunal differently constituted. It is quite clear that it would be embarrassing for this Tribunal to be asked to reconsider the matter in the light of our criticisms. The new Tribunal will hear the matter again and hear such evidence as is laid before it, quite untroubled by anything we have said.

We have given our reasons at some length not, of course, to tell the new Tribunal how to do its job, but as a courtesy to the Tribunal and the parties to explain, as fully as we can, the reasons why we feel this decision cannot stand and the matter must, therefore, be tried again.