United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1025_94_0705

Appeal No. EAT/1025/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 7th May 1996

Before

HIS HONOUR JUDGE PETER CLARK

MRS P TURNER OBE

PROFESSOR P R WICKENS OBE

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MR D LALJI          APPELLANT

VAUXHALL MOTORS LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR M DULOVIC

(of Counsel)

Messrs Ray Borley & Dunkley

Solicitors

Stoney Stratford

Milton Keynes

MK11 1AU

For the Respondents MR TOBY KEMPSTER

(of Counsel)

Messrs Rakisons

Solicitors

27 Chancery Lane

London WC2A 1NF


 


JUDGE CLARK: This is an appeal by Mr Lalji against a unanimous decision of the Bedford Industrial Tribunal sitting on 28th to 30th June 1994 dismissing his complaint of unfair dismissal against his former employers, Vauxhall Motors Ltd. The Industrial Tribunal took time to consider the case on 22nd July 1994 and reasons for their decision are dated 12th September 1994.

The appellant was employed by the respondent as a production operator at their Luton car manufacturing plant from 26th November 1979 until his summary dismissal on 12th October 1992.

We are concerned with events on the 2 p.m. - midnight shift on 29th September 1992. The A shift.

During the course of that shift some 40 car bodies were seriously contaminated with dirt and debris. The cost of reinstating those shells was estimated at £150,000. Not surprisingly, the respondent carried out an investigation into what had gone wrong.

The relevant production sequence was this. First the shells were spirit wiped. Next, the whole of the exterior body surface was manually cleaned by means of tak rags. Two operators worked on that process; one on each side of the line. On A shift that night those operators were the appellant and Mr Mistry. The appellant worked on the left side of the line, Mr Mistry on the right hand side. Thereafter, the shells were moved into ESTA machines which automatically spray primer paint on to the shells.

The investigation was set in train by Mr Bleming, manager of B shift, in the absence of the A shift manager, Mr Rolls, who was on holiday.

He interviewed a number of people, as a result of which he narrowed down the point at which the contamination occurred to the tak ragging stage. Debris on the floor and sawdust from a bag nearby were sent for analysis to an independent laboratory, together with samples of the contaminating material removed from the affected shells.

The sawdust taken from the bag matched particles of debris from the shells. Further, the pattern of distribution of material over the shells indicated that it had been thrown over the bodies by hand from the left hand side of the line, the side on which the appellant worked. At paragraph 16 of their reasons the Industrial Tribunal mistakenly substituted right for left, but that error is immaterial. The tribunal appreciated that the spread indicated that the material was thrown from the appellant's side of the line.

On 30th September both the appellant and Mr Mistry were seen separately by Mr Bleming in the presence of a shop steward. Each man made a statement. They were then seen for a second time and further statements were taken. At this stage they were suspended on full pay.

They were seen for a third time by Mr Bleming on about 1st October 1992 and informed of the extent of the damage. They were told to report back on Monday, 5th October 1992.

On 5th October 1992, disciplinary hearings involving both men took place separately. Each was represented by a different shop steward. Mr Bleming concluded, notwithstanding clear denials by both men of any involvement in or knowledge of the cause of the contamination, that the appellant had subjected the shells to contamination and that Mr Mistry was aware of this, but did nothing to correct the situation. He dismissed the appellant for gross misconduct and suspended Mr Mistry for three days.

Each was informed of his right of appeal. Both exercised that right. The appellant's appeal was heard by Mr Brooker, the unit manager. Both a shop steward Mr Davis, and the union convenor, Mr Jack, attended the appellant's appeal hearing. We have seen the notes of that hearing. There was a full discussion of the issues. The appeal was dismissed.

Mr Mistry's appeal against the disciplinary sanction imposed on him succeeded.

The respondent's procedure allowed for a further appeal in the event that the union registered a failure to agree following the first appeal hearing. That did not happen in the appellant's case and accordingly no further appeal hearing was held.

Against that background the Industrial Tribunal concluded, first, that the reason for dismissal related to the appellant's conduct. They then considered the question of reasonableness under Section 57(3) of the Employment Protection (Consolidation) Act 1978. A number of points were canvassed on behalf of the appellant by Mr Dulovic, who appears before us today. A disparity of treatment argument was raised, the comparison being made between the penalty metered out the appellant and the eventual removal of any disciplinary sanction in the case of Mr Mistry. The Industrial Tribunal rejected that argument and there is no ground of appeal before us in respect of that finding. Secondly, having directed themselves in accordance with the well-known Burchell test the Industrial Tribunal concluded that the respondents had carried out a reasonable investigation and formed a reasonable belief based on that investigation that the appellant was responsible for contaminating the vehicles. Finally, they rejected a complaint that the respondents procedure was flawed in that there was no automatic right to a second appeal. Overall they formed the judgment that the dismissal was fair.

In prosecuting this appeal Mr Dulovic attacks the findings of the Industrial Tribunal on two broad grounds. First, he contends, as he must in order to demonstrate an error of law, that the tribunal's finding that the respondent carried out a reasonable investigation was perverse. Secondly, he contends that the tribunal was wrong to reject the submission that the employer's appeal procedure was fatally flawed in the light of this appeal tribunal's decision in Vauxhall Motors Ltd v Ghafoor [1993] ICR 376. We shall consider each submission in turn, bearing in mind that it is necessary for Industrial Tribunals to consider the overall disciplinary procedure, including the appeal process, when judging the fairness or otherwise of the dismissal. West Midlands Co-operative Society Ltd v Tipton [1986] ICR 192.

First, the perversity argument. Mr Dulovic began with a proposition of law; that in considering the adequacy of the employer's investigation the tribunal ought to take into account the nature of the allegation of misconduct levelled at the employee. The more serious the allegation the higher the onus on the employer to demonstrate that he has taken sufficient care in carrying out the investigation and arriving at conclusions. We think that some support for that approach may be derived from the judgment of this tribunal in Inner London Education Authority (ILEA) v Gravett [1988] IRLR 497, in which Wood J. indicated, at paragraph 15 of the report, that there was a sliding scale of investigation depending upon the facts and the strength of the case against the employee. We bear that approach in mind when considering the circumstances here, but with the proviso that no onus of proof lies on the employer to establish reasonableness under Section 57(3) of the Act, as amended. The incorrect statement as to the burden of proof which is to found in paragraph 13 of Gravett was subsequently corrected by Wood J. in Post Office (Counters) Ltd v Heavey [1990] ICR 1, 5G.

In seeking to make good his contention, Mr Dulovic has trawled through the evidence and findings of the tribunal in some detail.

First, he submits, the tribunal ought to have found that the employer's investigation was defective in that the employer proceeded on the false basis that samples of debris taken from the floor at the tak rag station matched samples taken from the body shells. Having looked at the passages in the evidence on which he relies we cannot accept that either the employer or the tribunal were under the misapprehension that such a connection had been made by the independent laboratory.

He further submits that the employer's failure to seize the appellants's overalls and send them for analysis is a ground for upsetting the tribunal's finding that the investigation carried out was inadequate. In our view it was far from clear, on the evidence, that any need to examine the overalls for offending traces of debris became apparent before they were sent for cleaning. In any event, the tribunal refer to this possible line of enquiry at paragraph 16 of their reasons. They remind themselves, correctly in our judgment, that the test is whether the employer has carried out a reasonable investigation; that issue is not to be judged by the standard of proof applicable to a criminal investigation leading to a prosecution.

Next he submits that the employer could not have carried out a reasonable investigation in circumstances when Mr Mistry finally escaped any penalty on appeal. However, we are here concerned with the investigation in the appellant's case. In the absence of any appeal on the disparity of treatment argument canvassed below we cannot make the connection which Mr Dulovic invites us to make. In any event, there was no evidence before the Industrial Tribunal as to the course that Mr Mistry's appeal took. No notes of that appeal hearing were put in evidence; they had not been sought by way of discovery. We do not propose to speculate as to the circumstances in which Mr Mistry's appeal succeeded.

The second strand of the argument on perversity concerns the procedural steps taken by the respondent. First, complaint is made about the respondent's procedure, agreed with the recognised trade unions, which permitted a trade union representative to be present when witnesses were being interviewed by management at the investigatory stage into a possible disciplinary infraction. It is said that a representative in these circumstances may, having heard the witnesses, form a view adverse to the employee later disciplined so that he cannot properly represent his interests during the disciplinary process. We are quite unable to accept that submission. It seems to us that it is in the interests of the disciplined employee that his representative was present when the witnesses against him were being interviewed. The representative may pick up on any weaknesses in those witnesses' accounts which then may be exploited at the disciplinary stage. Conversely, it cannot be a ground for criticism of the employer if (and there was no evidence to this effect in this case) the trade union representative believes that his member's case is a weak one. It is for the representative to withdraw if he feels unable to properly represent the member's interest.

Then it is said that the employer here failed to give the appellant notice of the fact that the hearing on 5th October 1992 was to be disciplinary hearing until the appellant and his representative presented themselves in Mr Bleming's office. Further, no charge had been formulated and put to the appellant before that hearing.

We accept that it may be procedurally unfair to call an employee to what turns out to be a disciplinary hearing without informing him of that fact in advance, or the nature of the charge that he will have to meet. See Spink v Express Foods Group Ltd [1990] IRLR 320. However, that was not this case. The appellant had been seen by Mr Bleming on three earlier occasions. He knew perfectly well the nature of the allegation against him, as did his representative Mr Davis, who had been present when witnesses had been interviewed, and who was in possession of the statements arising out of those interviews. When told by Mr Bleming that the investigation was moving to the disciplinary stage no request for an adjournment was made by or on behalf of the appellant. There is a further complaint that Mr Bleming did not ask the appellant whether he had seen copies of the statements provided to Mr Davis. We can see no obligation on an employer so to do.

Then it is said that the unit manager, Mr Brooker, ought not to have heard the appellant's appeal against Mr Bleming's decision to dismiss him on the grounds that he, Mr Brooker, had taken part in the investigation leading to the appellant's dismissal.

As to this submission, Mr Dulovic relies on the majority decision of this tribunal in Byrne v BOC Ltd [1992] IRLR 505. There, the initial disciplinary proceedings were flawed; that defect was held not to be cured by an appeal to a manager who had himself been personally involved in the events which led to the dismissal. In response, Mr Kempster has referred us to this tribunal's decision in Rowe v Radio Rentals Ltd [1982] IRLR 177, where the Employment Appeal Tribunal declined to interfere with an Industrial Tribunal decision that the dismissal was fair, notwithstanding that the appeal's manager had been informed of the decision to dismiss before it had taken place and the dismissing manager was present throughout the internal appeal hearing.

We draw no conclusive principle from either of those cases. The approach taken by this appeal tribunal in each of those cases, and by ourselves in this case, is largely determined by the facts.

Here, the facts are that the process involved four stages; first, the initial investigation carried out to discover how a serious contamination problem had arisen on the night of 29th September 19992. Unsurprisingly Mr Brooker, as the unit manager, was involved at that first stage. Second, the investigation carried out by Mr Bleming, which involved the gathering of evidence; third, the disciplinary hearing held by Mr Bleming; fourthly, the appeal chaired by Mr Brooker. It is apparent, on the evidence, that Mr Brooker was involved at stages one and four, but not stages two and three. In these circumstances we are satisfied that Mr Brooker cannot be described as a "judge in his own cause" such that his chairing the appeal offended the principles of natural justice. Nor do we think it a telling point against his conduct of the appeal that he did not adjourn at the end of the appeal before announcing his decision to dismiss the appellant's appeal.

We have sought to deal with the points made by Mr Dulovic individually. But we must also consider those matters cumulatively, in the round. Having done so, we are quite unable to say that the tribunal's finding that this employer carried out a reasonable investigation involved a misdirection in law, or that it can properly be characterised as perverse, in any of the senses of that expression helpfully collected by Mummery J. in the judgment of this tribunal in Stewart v Cleveland Guest (Engineering) Ltd [1993] IRLR 440, 443. We therefore reject the first ground of appeal.

The second ground of appeal focuses on this tribunal's decision in Vauxhall Motors Ltd v Ghafoor [1993] ICR 376. That was a "fighting case". Both employees involved were suspended; a disciplinary hearing was convened; the appellant was summarily dismissed. He wished to appeal internally. However, an appeal under the procedure then agreed between the employer and the trade unions required the assent of the trade union convenor. He declined to give that assent. Mr Ghafoor was unable to pursue any appeal. The Industrial Tribunal hearing his complaint of unfair dismissal concluded that the dismissal was procedurally unfair; first, at the disciplinary stage, in that he was not provided with copies of the witness statements taken by the employer and further, both employees had been represented at the hearing by the same shop steward; secondly, in that the procedure provided no right of appeal, any appeal being dependent on the decision of the convenor. On appeal by the employer to the Employment Appeal Tribunal (Judge Hargrove Q.C. presiding) the appeal was dismissed. In the course of delivering the judgment of this tribunal at page 390B-381F, Judge Hargrove referred to the earlier case of East Hertfordshire District Council v Boyten [1977] IRLR 347, which made observations on the question of whether an employer can be said to be acting unreasonably in following a procedure agreed with trade unions, and distinguished that case on its facts, holding on the facts of Ghafoor that the employee ought not to be deprived of his personal right of appeal by making it dependent on the convenor's decision.

Following that case Vauxhall agreed a change in the appeal procedure. There is now an absolute right of first appeal. Mr Lalji exercised that right in this case. There are two further avenues of appeal; first, if the trade union registers a failure to agree with the decision taken at the first appeal. That appeal will normally be final, but at the request of the local full-time union officer a plant conference involving the National Officer of the Union and the director of personnel may be convened.

Mr Dulovic's point is a short one. Following Ghafoor each and every stage of appeal must be granted as of right to the dismissed employee. That is still not the case under this employer's new procedure which was applied in Mr Lalji's case. On this ground alone the tribunal's finding that Ghafoor is distinguishable in paragraph 17 of their reasons is wrong in law and the appeal must be allowed.

We reject that submission. In our judgment the Industrial Tribunal was correct to distinguish this case from that of Ghafoor. In Ghafoor it was held that the employee was deprived of any right of appeal. Here, he had and exercised a right of appeal. A procedure which allows an absolute right of appeal and provides for a screening process for subsequent appeals is one which this Industrial Tribunal was entitled to conclude was not procedurally flawed. We therefore decline to interfere with that part of the Industrial Tribunal's decision.

In the result this appeal fails and must be dismissed.

We order legal aid taxation of the appellant's costs in the appeal.