United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 970_94_0602

Appeal No. EAT/970/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 6 February 1995

Before

THE HONOURABLE MRS JUSTICE SMITH

MR J D DALY

DR D GRIEVES

---

R          APPELLANT

GLT/AGC          RESPONDENTS

---

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


---

APPEARANCES

For the Appellant IN PERSON

For the Respondents MR PETER WALLINGTON

(OF COUNSEL)

ELBA Advice Service


 


MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting at Bristol on 7 April 1994. The Tribunal gave summary reasons for their conclusion on 20 April 1994 which was that the Appellant had been fairly dismissed from his employment with the Respondents.

The Appellant sought a review of the decision which was refused by the Chairman as having no prospect of success. There then followed correspondence between the Appellant and the Tribunal Office as a result of which an Interlocutory Hearing was convened on 14 July 1994 to consider whether one of the Appellant's letters should be treated as an application for a review and an application to extend time for an application to be made for full reasons for the decision to be provided. On 15 August the Chairman granted an extension of time for the Appellant's application for full reasons to be provided and they were in fact sent to the Appellant on that day. Subsequently the Appellant submitted a further request for a review. Initially the Tribunal Office took the view that that was an application for a review by another Chairman, which there was no power to grant. The Appellant was allowed 14 days in which to decide whether he wished to pursue his request for a further review.

In the meantime he lodged Notice of Appeal at the Employment Appeal Tribunal and in the light of the commencement of that appeal the Industrial Tribunal said that they would take no further action on his application for a review. That application still stands without any decision having been made upon it.

Mr Reid, the Appellant, was employed as a supervisor at the Respondent's Bingo and Social Club at North Street, Bedminster, Bristol, from March 1990 until his dismissal for gross misconduct on 7 December 1993.

The Respondents at the hearing sought to justify their dismissal on the basis that they believed that he had committed two separate acts of gross misconduct, both of which individually justified summary dismissal. The first basis upon which the Respondents claimed to be entitled to dismiss was that they were satisfied of the validity of a complaint of sexual harassment brought by Miss C, a female employee, against the Appellant. The second act of misconduct upon which the Respondent relied was the Appellant's use of the public address system at the Respondent's premises to air his grievances over the disciplinary action which was, at that time, being taken against him.

The Tribunal heard evidence from Miss C who made the complaint of sexual harassment and from Mr Plumridge, the Respondent's general manager who investigated the complaint and who took the decision to dismiss. At the hearing the Appellant himself gave evidence and also Miss Scrivens whom we understand to be his partner. It is not necessary for the purpose of this Judgment to set out in detail the nature of the complaints made by Miss C against the Appellant. Suffice it to say that these comprised overtly sexual remarks which she alleged had been made over the course of several months, from soon after her employment had begun in May 1993. She alleged that by September or October 1993 the harassment had increased and had involved physical contact of an indecent kind which distressed her.

Eventually, on 9 November 1993 Miss C complained to the general manager, Mr Plumridge. He told her to put her complaint in writing which she did on 19 November 1993. The Tribunal had that letter of complaint before them. Mr Plumridge considered the complaint on 20 November and decided to see the Appellant that evening. Miss C was also present at that interview. The interview was soon terminated because, according to Mr Plumridge, the Appellant became agitated.

In any event, soon afterwards, Mr Plumridge took advice from his superior as to how he should proceed. As a result of that Miss C was told not to come to work and the Appellant was suspended on the following Monday. Also on that Monday, which would have been 22 November, Mr Plumridge contacted two employees, David Harrison and Simon Taylor, whose names had been mentioned to him by the Appellant. On the following day, he told the Tribunal, he also spoke to Lynn Brown whose name had been mentioned to him by the Appellant. He asked these three people whether they had any relevant information. Harrison and Taylor confirmed that Miss C had complained to them from time to time but they had not witnessed any harassment of her by the Appellant. Lynn Brown, he said, had told him that Miss C had spoken to her about the problem and she herself had witnessed one incident when the Appellant had made an overtly sexual remark to Miss C. She said that that had been passed off as a joke.

On 29 November in the presence of the Regional Personnel Manager, Mr Plumridge interviewed Miss C and questioned her in detail. Following that he made a further enquiry by telephoning a Mrs H who told him that the Appellant had verbally and physically harassed her when she had worked at the Club. She gave some detail. Mr Plumridge then spoke to Simon Newman who told him that he had witnessed an incident of sexual harassment by the Appellant in relation to an employee who no longer worked for the Company.

Mr Plumridge then conducted an investigatory interview with the Appellant and asked him if he could name any persons who may be able to give relevant information. He gave five names. Mr Plumridge told the Tribunal that he did contact these people but none of them was able to say anything helpful. Mr Plumridge decided to convene a disciplinary hearing on 1 December. On the evening prior to that hearing the Appellant, who was still suspended, came into the Club premises and addressed about 300 customers over the public address system. He told them in some detail about the allegations which had been against him and he asserted his innocence. He was escorted from the premises.

The disciplinary hearing began on the following day. Mr Plumridge first re-interviewed Miss C and then adjourned the meeting for further enquiries of two other female employees both of whom confirmed to him that they had been subjected to sexual harassment by the Appellant but they said that they had not reported it as they had felt able to cope with the situation. Mr Plumridge considered the matter in the light of his enquiries and concluded that he did believe Miss C's complaints of sexual harassment. He also took the view that the Appellant's action on the night of 30 November in using the public address system was an act of gross misconduct justifying instant dismissal. He informed the Applicant that he was dismissed without notice.

The Tribunal's reasons do not make plain that that dismissal took place on 7 December. The dismissal was confirmed in writing. An appeal took place subsequently but was dismissed. No complaint is made of the conduct of that appeal. The Tribunal then set out the matters of law which they regarded as relevant. They referred themselves to the case of Burchell v British Home Stores [1978] IRLR 379. They reminded themselves that the employer is not obliged to apply a criminal test of "beyond a reasonable doubt" and it is sufficient for an employer to show that it held a belief based on reasonable grounds. They go on:

"The question which this Tribunal has to answer is simply whether the respondents have satisfied that test. It is not the function of this Tribunal to pronounce upon the guilt or innocence of the employee. The applicant has made it very clear to us in every possible way that he denies the allegations made against him of sexual harassment. We are entirely satisfied that the respondents believed that he was guilty of sexual harassment and that this belief was based upon reasonable grounds. The applicant himself admits that he misused the respondent's public address system and this was treated as a separate act of misconduct. In these circumstances it is our unanimous decision that the applicant was fairly dismissed."

The Notice of Appeal before this Appeal Tribunal sets out only two grounds of appeal. However there have been placed before the Tribunal several documents prepared by Mr Reid who, until this morning, was to appear in person. Today Mr Wallington of the Employment Law Bar Association Advice Service has appeared on Mr Reid's behalf and we are grateful to him for the advice he has tendered to Mr Reid and for his assistance to this Tribunal in his submissions. He has taken 3 points on the Appellant's behalf in seeking to persuade this Tribunal that there is a point of law which deserves consideration by the Appeal Tribunal at a full hearing.

The first submission is to the effect that the Tribunal have applied too low a standard of proof when considering the employer's state of mind in respect of their belief in Mr Reid's guilt of the alleged sexual harassment. It is claimed that Mr Plumridge told the Tribunal that he did not know who had been telling the truth. There is no reference to this evidence in the decision. This ground of appeal depends upon Mr Reid's assertions as to the precise words used by Mr Plumridge before the Tribunal in describing his own state of mind before taking the decision to dismiss. In the Appellant's first letter to the Tribunal received on 25 April, Mr Reid alleges that Mr Plumridge told the Tribunal that he was still not sure who was telling the truth, Miss C or the Appellant. He repeated that account in a further letter dated 2 May 1994 where he said:

"Mr Plumridge is still unsure who is telling the truth."

Later in the year, in a letter dated 15 July, directed to the Industrial Tribunal Chairman, Mr Reid said this:

"Also, if as stated by Mr Berry, the manager believes at the time the facts to be correct, then it is a fair dismissal. Has he not been reading my letters, all of which state that the manager did not believe he was correct, and he told the Tribunal as much by saying he still could not say who was telling the truth - but yet I was dismissed."

That account of Mr Plumridge's evidence has been repeated in another document put before us today.

Mr Wallington submits that if in fact Mr Plumridge did say "To this day I still don't know who was telling the truth" then it would have been perverse of the Industrial Tribunal to find, as they did, that they were entirely satisfied that the Respondents believed that the Appellant was guilty of sexual harassment and that the belief was based upon reasonable grounds. Mr Wallington urges us to send this case forward for a full hearing when the Chairman's Notes could be made available to clarify exactly what evidence was given by Mr Plumridge.

We have considered that submission with care but we have come to the conclusion that we cannot accept that there is any merit in it. In the first place we entertain very grave doubts as to whether the words now alleged were in fact said. We think that, even if they were said, they cannot have been said in such a way as to give the Tribunal any doubt as to the validity and honesty of Mr Plumridge's belief. Indeed in the written submission which has been put before us today by the Appellant, he makes it plain that Mr Plumridge said in evidence that he had based his belief on the totality of the evidence which was before him. We do not consider it to be appropriate that further investigation should be made of the precise words used by Mr Plumridge in explaining his state of mind.

The second complaint made by Mr Wallington is one of those raised by the Appellant himself in his Notice of Appeal. It concerns a statement produced to the Tribunal allegedly signed by Miss Linda Brown and sought to be put before the Tribunal as containing that which she had told her employers. It transpired, so we are told by the Appellant, that this typewritten statement came into existence on 22 March 1994, long after the disciplinary hearing and dismissal. We are told that the employer had sought to delete by Tipp-Ex pencil the date on that statement. We are told that the Chairman therefore ruled the statement as being inadmissible. There is no indication of that in the Tribunal decision but for the purpose of this hearing we have accepted that as being the case.

The complaint is then made that the Tribunal took into account the evidence contained in that statement despite having ruled it inadmissible. However it is clear from other documents before us, that Mr Plumridge gave evidence that he had interviewed Miss Brown on 23 November and that she had told him that she had been present when the Appellant had made an overtly sexual remark. It seems to us that the Tribunal have done no more than to take account of what Mr Plumridge told them Miss Brown said to him when he interviewed her.

It is submitted that the employer put forward to the Tribunal notes of a disciplinary hearing containing a reference to "Lynn Brown's statement. That, it is submitted, must be a reference to the typewritten statement which did not exist at the time of the disciplinary hearing. Therefore we should look with great scepticism at the validity of this note of the disciplinary hearing.

We find no reason to be sceptical about that note. We consider that the expression "Lynn Brown's statement" plainly refers to her oral statement at interview on 23 November and we feel no disquiet at the reception by the Tribunal of Mr Plumridge's evidence of that interview.

Third, Mr Wallington invites us to feel concern over a further matter. That is the apparent alteration of the notes of Mr Plumridge's interview with Mrs Lynn Brown to whom reference has already been made and also to Mr Taylor, another employee who was interviewed as part of the disciplinary investigation.

We have looked at those alterations. It does appear to us that Mr Plumridge has altered his notes quite openly. There are omission marks below the line. It seems to us that two observations must be made; first of all those alterations appear to be an attempt to clarify the meaning of his note and they do not appear to us to be in any way an attempt to strengthen the case for the Respondent. Second, we must observe that any point that was to be taken about those alterations must presumably have been taken before the Tribunal and they were plainly not concerned about those alterations. We consider that they were quite innocuous and it appears to us that the Tribunal thought so too. We do not feel any sense of disquiet.

That disposes of the three points raised by Mr Wallington. We are quite satisfied that there is no point of law which can be argued in support of this appeal.

Mr Wallington draws one further matter to our attention and we are grateful for it. He points out to us that the Industrial Tribunal, in declining to deal with the Appellant's second application for a review, have left it, in effect, in limbo. They did so on the basis that they could not properly deal with it once a notice of appeal had been filed at the Employment Appeal Tribunal. He invites us to say that that could now be dealt with. It seems to us a most unsatisfactory situation that an appeal should come to this Appeal Tribunal while there is outstanding an application for a review and we consider that the better course, once a Notice of Appeal has been filed, is for the Chairman to consider whether a review is appropriate and to make the necessary Order. That has not been done in this case. We have been referred to Rule 11 (4),(5) and (6) and we do accept Mr Wallington's submission that it appears that this application remains outstanding. It must therefore be a matter for the Industrial Tribunal to deal with as they think fit under their powers under Rule 11.