United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS E ANDREW (of Counsel) Instructed by: Mr H Forrest Humberside Law Centre 95 Alfred Gelder Street Hull HU1 1EP
For the Respondents	MR M ZAMAN (of Counsel) Instructed by: Mr R Taylor Messrs Gosschalks Solicitors Queens Gardens Hull HU1 3DZ


 


JUDGE LEVY QC: Mr Peter Del Grosso commenced his employment with Tom Cobleigh PLC ["the Company"] on 5th November 1987, by April 1994 he was the manager of a public house called "Sergeant Peppers". On 2nd April 1994 Gary Elgi, an assistant operations manager of the Company, allegedly observed irregularities in the performance of an employee at Sergeant Peppers, a man called Mr Woolner. That day Mr Woolner was suspended. On 18th April 1994 Mr Del Gross attended, with a tape recorder secreted upon him, a meeting called by the Company. That meeting started by being an investigatory meeting, it became a disciplinary meeting and at the end of it Mr Del Gross was dismissed.

On 22nd April 1994 his solicitors to whom he had consulted, wrote thus to the Company:

"We have been consulted by Mr Delgrosso following the termination of his employment with Tom Cobleigh Limited.

We understand that there is a scheduled meeting for Monday the 25th April 1994. Our client has instructed us to request an adjournment of this meeting as he has not yet received from yourselves various documentation that has been promised to him, such as the Minutes of the Dismissal Meeting and the actual letter of dismissal.

Could the meeting possibly be adjourned until the end of next week, say Friday?

You will of course be aware of the need pursuant to Section 53 EPCA 1978 to supply a written statement giving particulars of reasons for dismissal within 14 days of the said request. Please be on notice that time is now running."

There is a manuscript note on the copy letter of the partner writing it:

"5.20 Asked if they would like us to fax. They said not."

The request for adjournment was apparently refused. The meeting on 25th April 1994 was the appeal against Mr Del Grosso's dismissal. Minutes of that meeting were kept, but were not apparently allowed into evidence before the Industrial Tribunal at the hearing to which we will shortly come.

On 27th April 1994, following the meeting, this letter was written by the Company to Mr Del Grosso:

"Further to your Disciplinary Interview held on 18th April 1994, which resulted in your dismissal, I understand you have requested reasons for this decision.

For your information your dismissal was as a result of gross mismanagement of Sgt Peppers, in particular:-

a. Under your management allowing under-ringing to take place on the tills by use of the cordial dash button.

b. Regularly moving till positions.

c. Failing to call out the till company to allegedly malfunctioning tills.

d. Making claims on petty cash in excess of £5 being fully cognisant of the fact that this practice breached company rules.

e. Claiming on petty cash for items for your personal use.

f. Making cash payments on petty cash to staff on Sgt Pepper's pay role.

g. Allowing self-employed door staff to sign dockets giving false names and addresses, being in your own admission, cognisant of tax implications of so doing.

The minutes of the Disciplinary Hearing on 18th April 1994, currently in your possession, are a full record of the events leading to your dismissal."

On 13th May 1994 the appeal was formally dismissed. On 15th July 1994 Mr Del Grosso made an application to the Industrial Tribunal claiming that he had been unfairly dismissed. On 18th August 1994 a Notice of Appearance was received.

A hearing took place before an Industrial Tribunal sitting at Hull on 18th, 19th May, 22nd June 1995, and according to the decision promulgated to the parties on 23rd June 1995. However Mr Zaman, who appeared for the company below, has no recollection of the fourth day of the hearing, and indeed there is evidence to suggest that the last day of the hearing was on 22nd June 1995. We assume therefore that 23rd June was a date when the members considered with the Chairman the evidence and submissions which they had heard. The decision promulgated on 25th July was unanimous. The tribunal held that the applicant had been fairly dismissed.

On 4th September 1995 he appealed against that decision. There was an ex parte hearing on 7th June 1996, when directions were given. Because allegations of bias had been made, in due course an affidavit was filed by a Mr Holroyd who had been present on 22nd June 1995, on which the Industrial Tribunal Chairman commented by letter dated 30th August 1996. There is a respondents' notice dated 2nd September 1996 at point 3.3 of which the respondents says:

"3.3 The Tribunal, in finding that the Respondent had acted reasonably in dismissing the Appellant, had by inference accepted that the disciplinary hearing was conducted in good faith [no criticisms were made in the Decision of any of the Respondent's witnesses]."

Today, an affidavit was filed by the appellant explaining the circumstances in which Mr Holroyd's evidence was obtained.

Paragraph 11 of the decision reads as follows:

"11. The applicant says that even allowing for Mr O'Donnel believing that something was going wrong, and even allowing for Mr O'Donnel having reasonable grounds for that belief, he criticises Mr O'Donnel and therefore the company in the extent of their investigations. He says that there were lots of things that the respondents could have done. Of course in any enquiry there will always be further questions that can be asked. There can always be a further mile to go but the question is not could that further mile be walked but should it be walked. If the respondents satisfy us that they had at the time Mr O'Donnel made his decision asked all the questions that needed to be asked and made all the enquiries that needed to made, then they have discharged the burden upon them. And we are satisfied on balance on the balance of probabilities that they had indeed made all the further enquiries that were necessary in the light of the information that was available to them at that time. If the applicant had put forward further issues which required investigation and those further issues had not been investigated then the respondents would have failed that test. But it is not the applicant's case, as far as we can tell, that at the time Mr O'Donnel made the decision the applicant had indicated further avenues which should be explored. [Our emphasis] Today and in the previous days hearing he has indicated a number of areas which he says could have been explored. And we would accept that they are areas which could have been explored, but they were not areas that the applicant was putting forward at the time. They were not areas which he was suggesting either at the disciplinary hearing or the subsequent appeal could have been explored. As indicated there has to be some finality with regard to the investigations that can be expected of a reasonable employer, and we are satisfied in this case that this employer had made sufficient enquiries to entitle Mr O'Donnel to come to the conclusion to which he came."

We wish to say little about the meeting of 18th April 1994 because it is apparent to us for reasons which we will give, that there has to be a re-hearing of Mr Del Grosso's application. At that further hearing, the meeting will be the subject of scrutiny. It is however clear that if it was to be a disciplinary hearing, the appellant was not given notice of such in advance, was not allowed to call witnesses, did not know what charges he had to meet, and in those circumstances the passage in paragraph 11 of the extended reasons simply cannot stand. It is also clear that what appeared to have started as an investigatory meeting became a disciplinary hearing, at the end of which the appellant was dismissed. Without wishing to pre-empt what a further Industrial Tribunal might hold, how that meeting can be thought to be procedurally correct has escaped us, and Mr Zaman has said nothing to satisfy us that it is not an observation of ours with which he can seriously quarrel.

Any Industrial Tribunal must pause to consider whether an employer had behaved appropriately. Did the employer give the employee a fair hearing? Did the employer give the employee an opportunity to call witnesses? It was apparent that on the day in question, that Mr Del Grosso was not given an opportunity. If procedurally it was incorrect, of course the matters can be put right on appeal, but we understand the Industrial Tribunal excluded all evidence of the appeal hearing. Mr Zaman told us that the Company, as well as the appellant, wished to put forward evidence of what happened on appeal, and that excluding the evidence favoured the appellant. His later observation may or may not be correct, but if an applicant wishes an Industrial Tribunal to hear evidence of the appeal, such evidence would be relevant and admissible, and we can see no reason for it to be excluded. In that connection, Mrs Andrew has reminded us of the authority in Hereford & Worcester County Council v Neale [1986] IRLR 168, at page 175, where the Court of Appeal said:

"It is the basic principle of fairness that the parties or their representatives should be given the opportunity to be heard on any issue in a case that is likely to be relevant to the decision."

We note in this case that in the decision of the Industrial Tribunal reference is made to the appeal hearing, and it is odd in the extreme, that evidence of it was not admitted which it should have been.

At the core of this case is the question 'was there a fair hearing?' and 'are the reasons of the Industrial Tribunal satisfactory?' In that context, both parties have referred us to the decision in Meek v City of Birmingham District Council [1987] IRLR 250. That was an appeal to the Court of Appeal from a decision of this tribunal headed by Popplewell J. At paragraph 6 of the decision Bingham LJ giving the judgment of the Court of Appeal, with which the Master of the Rolls and Ralph Gibson LJ agreed, quoted a passage from the Employment Appeal Tribunal's reasons.

"... Mr Justice Popplewell said this:

'We have considered the submissions made on both sides and finally have come to the conclusion that this decision is indeed flawed by the wrong application of the Tribunal to the questions which they had to ask themselves, by the absence of factual determination which would have enabled the parties to know what it was that they could or should have done, and by the introduction of matters which do not seem to us to have particular relevance to their decision'."

In our judgment, the Industrial Tribunal below falls into the error of the first two faults found by Popplewell J. They fall into a third which is rather different: they refused to admit evidence which was of relevance to the decision.

At paragraph 8 Bingham LJ said:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to employers and trade unions as to practices which should nor should not be adopted."

We have found it difficult to find from the four corners of the decision the reason why Mr Del Grosso was dismissed. We find it strange that the Industrial Tribunal have not given any guidance to the employer in this case as to the manner in which disciplinary proceedings should be arranged.

In our judgment, the steps which we have to take are to allow the appeal, remit the matter to a differently constituted tribunal for a rehearing. We can understand from Mr Del Grosso's and Mr Holroyd's affidavits why Mr Del Grosso thought that he had not had a fair hearing in the Industrial Tribunal, and why he maintained bias was shown by the Chairman. We can also understand the difficulties faced by the Chairman with a determined applicant in person, who is more interested in having his say but finds difficulties in following procedural guidance given from the Chairman and dealing with his interruptions. But a Chairman has to deal with litigants as they come, and in this particular case, Mr Del Grosso was at the disadvantage of expecting legal representation, but at the last moment having to conduct the case himself. In the circumstances of the case, this called for extra patience from the Chairman; as the material before us; we are unwilling to conclude that his and the patience of his colleagues was thin.

However, in the light of our ruling that there must be a rehearing, it is not necessary for us to deal in any detail with the allegations of bias which have been made. We would however say this: it is the experience of all of us that when bias is alleged, a Chairman is always asked for his observations on the evidence in which bias is alleged. Frequently the Chairman's reply contains statements from his wing-members, commenting on the evidence produced, their statements are almost always of assistance to the Employment Appeal Tribunal, and we all regretted that none were furnished with the Chairman's statement which was sent to us.

In the circumstances we allow this appeal in the manner which we have stated.

Legal Aid taxation granted to the appellant.