United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 110_95_2201

Appeal No. EAT/110/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 January 1996

HIS HONOUR JUDGE C SMITH QC

MR L D COWAN

MRS E HART

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SIGNS & LABELS LTD          APPELLANTS

MR D WALLACE          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR I LITTLE

(of Counsel)

Messrs Chaffe Street

Solicitors

Brook House

70 Spring Gardens

Manchester

M2 2BQ

For the Respondent MR M RAWLINSON

(of Counsel)

Messrs Davis Blank

Furniss

Solicitors

10 Ellison Street

Glossop

Derbyshire

SK13 8BZ


 


JUDGE C SMITH QC: This is an appeal by the Appellant employers, Signs & Labels Ltd against the decision of an Industrial Tribunal sitting at Manchester on 26 May 1994, when the Industrial Tribunal held that the Applicant before them, Mr Wallace, the employee (the Respondent before us) had been unfairly dismissed on 4 November 1993 on the grounds that the Appellant employers had not carried out a reasonable procedure before dismissing him on the grounds of misconduct. At the time of his dismissal the Respondent was employed as Print Manager and in charge of the employees employed in the Print Room. He had been promoted to that position in June 1992.

On 2 November 1993 a meeting took place between the Print Director of the Appellants and most of the Print Operatives (about 10 of them) when serious allegations were made that the Respondent had habitually used foul and abusive language to those employees or some of them and had engaged in confrontational behaviour with some of them. They were serious allegations of bullying and threatening behaviour which were then made.

Faced with this state of affairs the next day the Respondent was suspended whilst management investigated the allegations by interviewing the employees concerned and taking notes of the interviews. They were described in the Industrial Tribunal's decision as being very brief notes but we have been told, and it is really common ground, that they extended over some 10 to 15 pages.

Later that day the Respondent was instructed to come to a meeting, a disciplinary meeting, to give (as he put it in evidence before the Industrial Tribunal) "his side of the story". He was not told in advance what the allegations were and was not given copies of the interview notes at the meeting which took place. However, (as we have already said), he had been suspended earlier that day when he came to work and knew that he was to face a disciplinary hearing later in the day, where serious allegations would be raised against him.

The allegations were read out to him on the admitted evidence by the responsible officer of the Appellants and he was invited to comment upon them and give his side of the picture. As we understand it he admitted some of the allegations to some extent. Some of them he denied and some he said had happened some time ago before he was promoted to his position of Print Manager.

At this meeting the Respondent suggested that the employees concerned had "ganged up" on him because he had recently introduced new methods of working. The evidence was that the Appellant employers then went back to the complainant employees and interviewed them once again in the light of the allegations that had been made by the Respondent, but the employees concerned all stuck by their accounts. It was in those circumstances that on 4 November the Appellants took their decision summarily to dismiss the Respondent for gross misconduct.

The Industrial Tribunal held that the Appellant employers genuinely believed that the Respondent had been guilty of the misconduct alleged but they nevertheless held that the dismissal was unfair under Section 57(3) of the 1978 Act, because they held the employers did not have reasonable grounds for their belief because, in the view of the Industrial Tribunal, they had not carried out the kind of investigation which any reasonable employer should have carried out in all the circumstances.

The Industrial Tribunal went on to hold that the Respondent had not contributed to his own dismissal at all and that, had the matter been investigated as any reasonable employer would have investigated it, he probably would not have been dismissed. Those were the findings of the Industrial Tribunal which are under challenge by the Appellants today. We should say straight away that we have been assisted by the submissions that have been made to us by Counsel on both sides in this difficult area of industrial relations law.

Before dealing with the matter in more detail we should say a number of things. First, we have of course reminded ourselves that it is only if the Industrial Tribunal's decision was plainly and wholly wrong and unsustainable that we can interfere with it. If their decision that no reasonable employer could have carried out the investigation which these employers did, is itself within the bands of a reasonable decision of fact, we cannot interfere with it. However, we should say secondly, that we have also borne in mind that it is established that the duty of an employer is to carry out such an investigation as is reasonable in all the circumstances. The employer must not be judged as though he were proceeding in a court of law or even at a full blown quasi tribunal. In our judgment this is clear from British Home Stores Limited v Burchell and in particular, perhaps, from Khanum v Mid- Glamorgan Health Authority [1979] ICR 40, 45-46 where this Appeal Tribunal summarised the position in these terms:

"What then are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case: and thirdly, of course, that the tribunal should act in good faith. I do not myself think that there really is anything more.

If you apply the law as so expressed to the proceedings of the domestic disciplinary inquiry at both levels in this case, each of the three requirements was amply fulfilled. ..."

So that in our judgment is the test. The third matter which we have borne in mind is this (and it is peculiar to this particular appeal) namely that this appeal has unusually been allowed to proceed in circumstances where only summary reasons, not extended reasons, have been provided and we have reminded ourselves that if we felt that there were unspoken matters upon which this Industrial Tribunal's decision was based which justified it in some unexpressed way, we would not hesitate so to construe the decision in favour of the Respondent. We have borne that very much in mind.

So those are the preliminary matters which we set out before we turn to the particular matters. We do not think it necessary to set out all the submissions on both sides in detail. It is clear in our judgment that there were a number of criticisms which the Industrial Tribunal made in relation to the employer's procedure.

The first one was this. The Industrial Tribunal took the view that the initial investigation was not detailed enough, or, reading between the lines, that appears to have been the view that they have taken since they refer to "very short" notes, or very brief notes.

The facts were in relation to that, as we understand them to be and this is not disputed, were that all the employees concerned were interviewed, one after another, in the course of a day or most of a day and contemporaneous notes were taken of those interviews. It is right to say that the interviews were not always precise on dates and times as we understand the position, but generally speaking they were quite detailed and (to an extent at any rate) they were mutually confirmatory of one another. So in our judgment we cannot see that there was any justification for that particular ground of criticism of the procedure.

The next matter of criticism on the part of the Industrial Tribunal was that there was no advance warning given in the sense that it was only when the Respondent attended at the disciplinary hearing at 4 o'clock in the afternoon or thereabouts, that he was told what the allegations were against him. Very often, no doubt, it would be good practice to give an advance warning of allegations of misconduct but we remind ourselves that the requirement is no more than that (referring back to Khanum v Mid-Glamorgan Health Authority) the person accused should know the nature of the accusations made. There is no requirement as to when he should know, what is vital is that he should know the nature of the accusation made. It is that requirement which must be fulfilled.

Here, the evidence is that at the disciplinary meeting the interview notes were read out in full with suitable gaps between each allegation in order to give the Respondent an opportunity to make his case and to make such comments as he wished to do, as the notes were gone through, and the evidence is that he was told at the disciplinary meeting what the allegations were against him and was able to give a response to them in the sense that some were to some extent only admitted, some were denied, and he was able to put across his contention that the employees concerned had "ganged up" on him.

It is right to say that when he was able to look with more leisure at the written statements which were provided on discovery or by way of similar order of the Industrial Tribunal, there was one specific allegation which he was able to say he could not have committed since he was away at the particular time. However, in our judgment, it simply cannot be said that the essential requirement was not fully met that the person accused should know the nature of the accusation made against him.

The next point that is made by way of criticism of the employer's procedure is that the witness statements, that is in this case the notes of interview taken from the various complainant employees, were not given to the Respondent but merely read out to him in the manner which we have described. In our judgment that criticism cannot hold water in the light of authority to the effect that it is sufficient for an employer to read out allegations to an employee who is suspected of misconduct. In our judgment that is clear from the decision of Vauxhall Motors Ltd v Ghafoor [1993] ICR 376, a decision of this Employment Appeal Tribunal, particularly at page 379 at H and 380 at A.

In all the circumstances we do not consider that there are any grounds for that criticism which the Industrial Tribunal made in relation to that alleged defect in the employer's procedure.

The fourth and final criticism of the Appellant's procedure by the Industrial Tribunal was that the allegation of "ganging up" was not properly investigated. In particular, it was submitted to us in support of the Industrial Tribunal's criticism, that no confrontation took place between the complainants and the Respondent and that there was no opportunity given to the Respondent to cross-examine the employees who were raising these allegations against him.

Further criticism was raised in argument based upon the decision of Linfood Cash & Carry Ltd v Thomson and another [1989] IRLR 235. It was submitted that, where an allegation of "ganging up" is made, there is a duty upon the employer to go back to the complainants to take further statements, preferably in writing, and to consider such matters as corroboration and dates and times and places in detail. In fact, what the employers did in this case (and again there is no dispute about it) was that once the Respondent had made the allegation that the employees may have been, or were indeed, "ganging up" upon him, it is accepted that the employers went back to the employees concerned and interviewed them again, as appears from pp 37 and 38 of the Notice of Appeal:

"5.1

(i) ... the Appellants conducted further interviews with the employees in order to put to them and test the Respondent's allegation."

It was common ground that the majority of the employees making the allegations against the Respondent had been employed by the Appellants for many years. Thus the investigating officer was very familiar with the individuals concerned and, as it is put in the Notice of Appeal, was able to form a view as to the likelihood of those individuals concocting allegations of the kind made against the Respondent simply as a result of a dispute about time sheets. Here again, in our judgment, this is not a valid criticism of the employer's procedure.

As we have already said, our attention was drawn to the helpful guidelines set out by the President, Wood J as he then was, in the case of Linfood and we accept, in agreement with Counsel for the Respondent's submissions, that it is correct that the Appellants' procedure did not measure up to those guidelines in all particulars for the reasons which he gave, but in our judgment it is clear that they are only guidelines, as indeed the President himself made clear.

In our judgment the true test must remain that set out in Khanum. Indeed, in our judgment, the terms in which the guidelines are couched by the President in Linfood, indicate that it does not follow at all as a matter of law that failure to follow them will necessarily have the result that an unfair procedure has been followed. The learned President was careful to say that every case must depend upon its own facts and upon circumstances which may vary widely and he was saying no more than that the employers might find the guidance he gave to be of assistance.

In our judgment, there was no material before the Industrial Tribunal upon which they could properly find, applying the tests in Burchell and Khanum, that the employer's procedure was in any way outside the bands of reasonableness. Whilst we accept that there were additional steps which the employers could have taken and which were reasonable steps for an employer to have taken, like confrontation and cross-examination, and like taking a further written record of the response of the complainants to the suggestion made that they had "ganged up" on the Respondent, in our judgment, the fact that the employers could reasonably have taken such further steps does not render their procedure unreasonable. The correct test is whether the steps which the employers did in fact take were outside the bands of reasonableness, and we consider that, although the Industrial Tribunal paid lip service to the correct test, they in fact made findings which are only consistent with their having in fact applied the wrong test and having placed too high a standard on the employers in this particular case.

We repeat that we have looked particularly to see whether, had there been extended reasons, omissions in the Industrial Tribunal's decision would have been rectified in some way but in our judgment there is nothing to indicate that the Respondent's position on this appeal has in any way been prejudiced by the fact that only summary reasons are given.

Accordingly for the reasons we have stated the appeal is allowed. We should add that we would have found that the decision that there was no contribution was also wrong but we need say no more about that, since our unanimous decision is that we must allow this appeal for the reasons we have stated and remit the case for a fresh hearing before a differently constituted Industrial Tribunal.