United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T KERR (Of Counsel) Messrs Christian Fisher Solicitors 42 Museum Street Bloomsbury London WC1A 1LY
For the Respondents	MR T LINDEN (Of Counsel) Messrs Campbell Hooper Solicitors 35 Old Queen Street London SW1H 9JD


 


JUDGE HICKS: Mr Boxall was employed as general manager by Southside Rehabilitation Association Ltd ("SRA"), which is a corporate charity principally concerned to set up and operate work and training projects for the rehabilitation of persons with special needs and difficulties in the area of the London Boroughs of Southwark and Lambeth. He was the senior employee, managing the remaining staff and answerable only to the board, which consisted of six non-executive unpaid directors. He was in charge of the day-to-day running of all the company's activities and was also responsible for the preparation of budgets and the management of the company's finances, although one of the directors was designated treasurer and it was a term of the standing instructions under which Mr Boxall operated that financial records might be examined by any member of the board at any time. The company's financial survival was crucially dependent upon funding from public bodies.

Mr Boxall was dismissed for gross misconduct. His complaint to the Industrial Tribunal of unfair dismissal was rejected and he appeals to this tribunal.

The relevant facts were the subject of eight days' evidence and submissions before the Industrial Tribunal and are set out at some length in the tribunal's reasons. We shall have to return to some of the details for specific purposes, but first summarise the main events by way of introduction and explanation.

Mr Boxall, having since November 1991 been senior workshop manager, was promoted to general manager in April 1992. As part of his duties as such he reported in writing to each monthly board meeting, and those reports were expressly required to include a "summary of the financial situation". The company's financial year ended, it would seem, on 31 March (paragraph 10 of the tribunal's reasons refers to the "financial year 1/4/93 - 31/1/94", but it looks from all the other references to accounts and budgets as if the second date is a clerical error for "31/3/94"). During the year 1992/3 the financial reports were fairly full, and in particular included references, where required, to actual or potential cash flow difficulties or failures to achieve budgeted income.

The budget for 1993/4 was for expenditure of £291,490 and income of £3,313 more. In June 1993 Mr Boxall presented an extensive and detailed manager's report with a paragraph on "future funding implications" which referred to a potential problem if some £36K outstanding grants were not received. The tribunal found as a fact that that related to the 1994/5 budget and disbelieved Mr Boxall's evidence that he gave that or any warning in relation to the 1993/4 budget. The failure to receive that money and the "potential deficit" for 1994/5 were recurrent concerns, but there was no reference to actual or potential difficulty in meeting the budget for 1993/4 in any manager's report or other communication by Mr Boxall to the board as a whole or (as the tribunal found, disbelieving Mr Boxall's evidence to the contrary) to the board chairman, Miss Reid. A new treasurer, Miss McEnhill, had been appointed on 25 November 1993 and she had received a "cash flow comparison" dated December 1993 and bank statements. She was concerned at the apparent increase in overheads and capital items but "had just started a new full time job of her own and did not have time to get to grips with the overall picture" before the events of February 1994. The tribunal found that Mr Boxall deliberately sought to delay, if not avoid, the discovery by the board that the budget was being exceeded by tens of thousands of pounds.

On 11 February 1994 Miss Reid suspended Mr Boxall for seven days for insubordination in refusing to discuss routine matters at one of their regular meetings. She then checked with the accounts clerk, Miss el-Bahrawy, whether there were any urgent financial matters to attend to and Miss el-Bahrawy told her that she was worried about whether there were sufficient funds to pay that month's wages. Miss Reid and Miss McEnhill then began to look into the financial affairs of the company. The incident giving rise to the suspension was dealt with at a board meeting on 14 February 1994 and disposed of by a decision to give an oral warning. Mr Boxall therefore resumed his responsibilities.

Miss Reid gave evidence that as soon as she attempted to clarify the financial situation she was met by a wall of confrontational and distracting behaviour by Mr Boxall which prevented her from getting to grips with the finances with his assistance and forced her to obtain the advice of an independent accountant. The tribunal clearly accepted that evidence, since they found that "the Applicant's behaviour from February onwards was principally driven by his wish either to remove Miss Read (sic) completely from the Board or to raise controversy about a variety of issues which would enable a detailed analysis of the financial affairs to be postponed .... ".

By about the end of March 1994 Miss Reid and Miss McEnhill were sufficiently concerned about the situation to call an emergency board meeting, which was held on 8 April. The board appointed an external financial adviser, who advised that the board should take control of the company's finances, which Miss Reid and Miss McEnhill did on 11 April, obtaining the cheque books from Mr Boxall.

In addition to financial affairs Mr Boxall's dismissal was based on abusive behaviour to members of the board and approaches to outsiders which undermined the reputation of SRA and the authority of the board. The tribunal accepted the evidence of Miss Reid that he was indeed abusive as alleged and found on the basis of the contemporaneous documents that from 11 February 1994 onwards his attitude was an ever increasingly extreme, confrontational one in a whole variety of ways. The tribunal found that "[it] became increasingly obvious to the Board that the Applicant was deliberately involving the staff in a matter which was purely between himself and the Board". The tribunal also found that he had written to or met funders or potential funders and the company's auditors to make allegations of impropriety against Miss Reid and seek information about how she could be removed. The result, as the tribunal found, was that by the first week of April 1994 the board was faced with a situation in which Mr Boxall was becoming effectively ungovernable. "The contemporaneous documentary evidence overwhelmingly paints a picture of the Applicant becoming increasingly insubordinate, provocative and confrontational so that it was quite impossible for the ordinary business of the Respondent to be carried on."

Mr Boxall was summarily dismissed by letter dated 15 April 1994. He sought to appeal and was refused, initially on the admittedly erroneous ground that he was no longer an employee, but after a renewal of his application and reconsideration by the board on the ground that "the Board deliberated with great care upon the decision to terminate your employment and, in light of the extremely serious nature of your behaviour and the reasons given in our letter of 15th April, the Board is of the view that to follow the appeal procedure would make no difference to our decision".

There was, as we understand it, no dispute before the Industrial Tribunal, as there was none before us, that SRA had shown what was the reason for Mr Boxall's dismissal and that it was a reason falling within section 57(2) of the Employment Protection (Consolidation) Act 1978, namely a reason which related to his conduct. There remained the question, under section 57(3), whether SRA acted reasonably or unreasonably in treating it as a sufficient reason for dismissing him. The most material passages in the tribunal's reasons indicating their conclusions on that point are the following:

"25. Bearing in mind the primary duty of a Tribunal when considering whether an employer has a reasonable belief in misconduct within the principles of British Home Stores v Burchell 1980 ICR 303, that it is not for the Tribunal to substitute its own view of the facts for that of the reasonable employer, it is our conclusion that by the time the Applicant was dismissed, the Respondents, in the persons of the directors involved were fully entitled to come to the conclusion that the Applicant had been guilty of serious misconduct in his failure to report regularly the financial state of affairs of the company and in the latter stages of deliberately obstructing a sensible investigation of the financial affairs of the company.

53. The foregoing is a brief record of the main facts and events which lead Miss Reid, Miss McEnhill, and Mr Carson to reach the conclusion that the Applicant had become unmanageable and the only alternative was summary dismissal. The evidence of misconduct as itemised under the main headings in the letter of dismissal of 15 April 1994 R276 available to Miss Reid and Miss McEnhill and Mr Carson, we find, to be overwhelming. When applying the Burchell Test therefore we have no doubt at all that there were reasonable grounds for the Respondent to come to the conclusion that the Applicant had been guilty of misconduct. We further find that there was as full an investigation of the facts as the size and administrative resources of the Respondent were reasonably able to muster at that time.

54. Reasonable Procedure There is no doubt, as the Applicant has also asserted and argued exhaustively, that there was never a "dismissal hearing" in the sense that the Applicant was invited to attend a meeting where the various allegations set out in the letter of dismissal were put to him for his explanation and/or defence. It is of course, well established that in the ordinary way, an employee is entitled to know of and meet the charges upon which he is at risk of dismissal.

55. It is however, equally well established that in exceptional cases where the employer applies its mind to the issue and decides that a full procedure will be pointless that such a hearing may be dispensed with. In our view, such cases will be rare and we would be reluctant to seek to speculate or generalise about the situations where it would be appropriate for an employer not to hold a final disciplinary hearing. We have no doubt at all however, that on the facts which faced the Board at the beginning of April 1994, the Board were entitled to come to the conclusion that a further hearing was a pointless exercise.

57. The Respondents were entitled to conclude that it was a pointless exercise to invite the Applicant to meet the charges since much of what he had to say had already been said both in writing and at the various confrontational meetings and meanwhile there was an urgent need to get the business on a sound footing and persuade the main funding organisations that serious and prompt steps were being taken to put the Respondents back onto an even keel. When considering the reasoning in the decision of Lord Bridge, at paragraph B page 163 in the decision of Polkey v Dayton Services 1988 ICR page 142, we are satisfied that this was indeed one of those rare cases where the Respondents were entitled to conclude that there was absolutely no purpose in holding a disciplinary hearing.

58. So far as the appeal procedure is concerned, it is correct to observe as Miss Reid herself acknowledges in evidence before us that her initial reason for refusing the Applicant an appeal hearing in her letter dated 22 April 1994 at page 291 was incorrect. It is equally clear that the Board reconsidered the situation as to whether the Applicant should be allowed an appeal but ultimately came to the conclusion that, as with the disciplinary hearing, an appeal hearing would be a pointless exercise and that decision was set out in a letter of 8 May 1994 at R310. Again it is our conclusion that in a rare case such as this it was reasonable for the employer to dispense with an appeal or review hearing."

Two points arose as to the scope of the hearing before us. In the first place there was a preliminary hearing on 13 March 1996 and Mr Linden, for SRA, applied for a ruling that on the basis of the judgment of the Employment Appeal Tribunal on that occasion the appeal was allowed to proceed on one ground only. However, after hearing Mr Kerr's response Mr Linden decided, in our view rightly, not to pursue that application further and we rejected it. Secondly, there are six grounds of appeal in the amended Notice of Appeal. The first three go to the decision that the dismissal was fair, which may conveniently be called the "liability issue". The last three arise out of the fact that the Industrial Tribunal, having reached its decision on that issue, went on to hold that even if wrong on the liability issue they would have awarded no compensation. The parties both invited us to leave those grounds over until after a decision on the liability issue, and we agreed. This judgment is therefore concerned with the three grounds relied upon under the liability issue.

Those three grounds all arise out of the section of the Industrial Tribunal's reasons headed "Reasonable Procedure", in which the tribunal deal with the failure of SRA to accord Mr Boxall a disciplinary hearing and its refusal of an appeal hearing. Ground 3, which Mr Kerr addressed first, alleges that the tribunal's conclusions in paragraphs 55 and 57 respectively on these points were perverse. No notes of evidence were before us and this ground was advanced, as we understand it, on the basis not that the tribunal's findings were literally unsupported by any evidence, but that this was a case within the residual category variously described by such phrases as "not a permissible option" or "irrational", among others. Mr Kerr submitted that that case was made out on the tribunal's own findings, although he also argued that it was further strengthened by two errors on their part which he submitted were demonstrable on the documents.

As to the law on the subject, we were reminded of the relevant passages in the familiar cases of Piggott Brothers & Co Ltd v Jackson [1992] ICR 85 and East Berkshire Health Authority v Matadeen [1992] ICR 723.

We have summarised the relevant findings of fact above. As to the tribunal's alleged errors, the first is that the tribunal (Mr Kerr says) erroneously found that Mr Boxall was present at the meeting on 14 February 1994 which decided to administer an oral warning. That suggestion is founded upon the fact that, having in paragraph 40 of their reasons described the board meeting of 14 February and the decision to administer an oral warning then reached, the tribunal continue at the beginning of paragraph 41 with the words: "It is also quite evident to us that at that meeting the Applicant was asked whether he wished the matter dealt with formally or informally". No doubt, as a matter of the clearest English, the tribunal should not have used the words "that meeting" unless they intended to refer to the last previous use of the word "meeting", but it is apparent from the context that they were referring not to the board meeting but to the meeting with Mr Boxall at which the outcome was conveyed to and discussed with him. In paragraph 40 they identify the minutes of the board meeting, in which those present do not include Mr Boxall. They describe discussion and voting (by name) as to whether the warning should be oral or written. It cannot be supposed for one moment that they thought that Mr Boxall was present during such a process. SRA's case, as appears from the Notice of Appearance, was that three members of the board met him on 15 February and explained the decision and discussed it fully. We are satisfied that that was what the tribunal had in mind and that there is nothing in this point.

Mr Kerr's second alleged error on the part of the Industrial Tribunal concerns the board meeting of 8 April 1994. As we understand it, his complaint falls into two parts. In the first place he says that the tribunal should have found that the decision to dismiss was irrevocably taken at that meeting, and they should therefore not have taken into account (if they did, of which there is some indication in their reasons) any conduct of Mr Boxall between that date and 15 April, when the dismissal letter was written. The ground of that submission is that in a chronology put in by SRA at the tribunal hearing the entry for the board meeting on 8 April reads: "Decision taken to take control of finances and summarily dismiss PB".

There is nothing in this point. The SRA's evidence of what happened at the meeting on 8 April and between then and 15 April was the minutes of the meeting and the oral evidence of Miss Reid and Miss McEnhill. The chronology was simply a document produced to assist exposition. Mr Boxall was of course entitled to put it in evidence as an admission or to rely upon it in cross-examination if he wished; we do not know whether he did or not, but that was a matter for him. If he did, or referred to it in any other way, or if the tribunal took it into account of their own motion, as in the absence of strict rules of evidence they no doubt could, that was a matter for them to weigh with all the other evidence in reaching their findings and adds nothing to an allegation of perversity.

The other aspect of Mr Kerr's complaint about the meeting of 8 April seems to be that Mr Boxall was not present - at least he returned to that fact a number of times, although we were not at all clear how the point was put. It seemed at first that it was the same point as in relation to 14 February, namely that the tribunal erroneously treated Mr Boxall as having been present, and relied on that for some of their conclusions, because at paragraph 51 of their reasons they begin "On 8 April 1994 ....", and go on to deal with what happened when Mr Boxall was relieved of his financial responsibilities. That, however, if ever intended, was not pursued, because it became common ground that that date was a simple slip for 11 April, and that paragraph 51 is concerned with what happened on the latter date. If, however, the point was that Mr Boxall should have been present on 8 April, and that it is an indication of perversity that the tribunal did not so find, there is nothing in the point. There is no requirement that an employee be present at the moment when the employer makes any or every decision affecting his employment; what is normally required is that he have the opportunity of meeting complaints against him before disciplinary decisions are taken, and the tribunal were fully alive to the relevance of that, the extent to which it did or did not occur here, and the seriousness with which shortcomings should be weighed before an employer can be found to have acted reasonably in the sense required by section 57(3).

We therefore return to the general allegation of perversity. Applying the test required by the authorities we are clear that the decision of the Industrial Tribunal was one open to a reasonable tribunal on the facts which it had found and was not erroneous in law as being perverse.

Grounds 1 and 2 of the amended Notice of Appeal both turn on the fact (which for the purposes of this appeal Mr Linden is content that we should assume) that Mr Boxall had a contractual right that SRA's formal disciplinary procedure be followed. Ground 1 is that the Industrial Tribunal misdirected itself in failing to direct itself that Mr Boxall was contractually entitled to a disciplinary hearing and an internal appeal pursuant to that procedure. Ground 2 is that the exception to the Polkey doctrine which the tribunal invoked at paragraphs 55 and 57 has no application where there is such a contractual right.

In our view there is nothing in ground 1. There are ample indications in their reasons that the Industrial Tribunal were aware of the existence of a formal disciplinary procedure and treated it as one under which Mr Bloxall had rights. In paragraph 41, dealing with the meeting with Mr Boxall at which the decision of 14 February was conveyed, the tribunal refer to his being the person "responsible for drafting much of the disciplinary procedure" and find that he "waived any right under the disciplinary procedure to have the matter dealt with formally". In paragraph 54 the tribunal accept and take into account that there was never a "dismissal hearing". It is true that they there refer to the right to know of and meet charges as one arising "in the ordinary way", which is the language of natural justice rather than of contractual rights, but Mr Boxall had in correspondence and in his application used similar language as well as relying on his contract, and we see no reason for supposing that in paragraph 54 the tribunal had forgotten what they elsewhere in their reasons show themselves well aware of. Paragraph 58 deals with the refusal of an appeal hearing. That can in the context be referable only to Mr Boxall's rights under the formal disciplinary procedure.

It is true that the tribunal do not explicitly state that they find that the rights referred to are contractual, but in the context of a contractual relationship it is perfectly normal and natural usage to speak of one party as having rights against the other, meaning contractual rights, without explicitly categorising them as such; it is indeed not at all clear to us in what other sense the word "rights" could accurately have been used in such a context, since statutory rights were not in question. In any event, the amended Notice of Appeal itself states that SRA did not (sc. at the hearing) dispute that Mr Boxall was entitled to those rights under his contract of employment, so there was presumably no issue between the parties on which to rule, and there is no indication that the tribunal was asked either to do so or to make specific reference to the point. We are not entitled to hold them to have erred in law in failing to deal with a point which was not before them.

Turning to ground 2, we see no reason in principle why the doctrine that it is not automatically and invariably unreasonable or unfair to dismiss without taking the preparatory steps normally incumbent, a doctrine which admittedly applies when those steps are enjoined by common law principles, or by a code of practice, or by non-contractual "rights" (if such exist), or in some other non-contractual way, should be excluded where they are required by contract. The issue is always whether the employer acted reasonably in the sense defined by section 57(3). That issue is different from and independent of the issue whether the employer was in breach of contract; it is trite law that not only may a dismissal in conformity with the contract of employment be unfair in the statutory sense but also, and conversely, a dismissal in breach of contract may be fair in that sense.

Does authority compel a different conclusion? We were referred to two cases on the point. The first is Stoker v Lancashire County Council [1992] IRLR 75. Mr Stoker was employed by the council at a polytechnic. The contractual disciplinary procedure involved four stages if pursued to the end. There was a hearing before the polytechnic's disciplinary sub-committee, another before the polytechnic's appeals sub-committee, a requirement of confirmation by the council's education disciplinary sub-committee and a further appeal to the council's appeals sub-committee. The council's disciplinary procedure provided for full hearings before both of its sub-committees, including a right to call witnesses. Mr Stoker's dismissal at the first stage was confirmed at the second, and no question arose as to the procedure there. When the matter came to the council the education committee decided that "In view of the two-stage internal disciplinary procedure now established at the polytechnic" the hearings before the council's sub-committees should be "limited to reviewing the 'sentence' after considering representations from both sides". The dismissal was confirmed. In his application to the Industrial Tribunal Mr Stoker complained of the failure to accord him a full hearing before the council's sub-committees. The Industrial Tribunal dismissed his application, holding that ".... the applicant has, in our view, been afforded every reasonable opportunity .... to state his own case and to test that of the respondent. .... no reasonable employer could be expected to do more". They did not refer to the breach of the council's own procedure. The Employment Appeal Tribunal dismissed an appeal, but the Court of Appeal allowed a further appeal. Dillon LJ, with whom McCowan and Nolan LJJ agreed, said:

"It might be the view that a reasonable employer could be expected to comply with the full requirements of the appeal procedure in its own disciplinary code. (paragraph 20)

.... the Industrial Tribunal necessarily erred in law. They misinterpreted the procedures which were to be followed under the disciplinary code. (paragraph 21)

As it seems to me, the Industrial Tribunal and the Employment Appeal Tribunal never addressed their minds to the right question .... (paragraph 23)"

That decision does not, in our understanding, carry Mr Kerr's proposition, or assist by way of factual comparison, for a number of reasons:

(1) The Court of Appeal is concerned with whether there was a breach of the applicable disciplinary code, not with whether its status was contractual.

(2) The error was to misinterpret the code, and thus to ignore the departure from it. It is not suggested that a properly directed tribunal, having taken the departure into account, must inevitably find unfair dismissal; on the contrary, having allowed the appeal, the Court of Appeal did not reverse the decision but remitted the application for reconsideration by a differently constituted tribunal.

(3) A policy decision to ignore an applicable procedure simply because it is thought to be over-lengthy, without amending it and without regard to the circumstances of the instant case, is entirely different from a decision to depart from it in one instance because of the exceptional circumstances.

(4) Among the circumstances expressly required by section 57(3) to be considered are "the size and administrative resources of the employer's undertaking". A county council is well able to staff and support even the over-elaborate appellate procedure which Lancashire had chosen to adopt. As the Industrial Tribunal here well understood, and were entitled to take into account, one of the difficulties which faced SRA was that Mr Boxall was answerable only to the board and no other level of management was available.

The other case was Westminster City Council v Cabaj [1996] IRLR 399. There the employee was dismissed for poor attendance and pursued an internal appeal. The disciplinary code, including the appeals procedure, was expressly incorporated in the contract of employment. It required an appeal to be heard by three members of the council. Mr Cabaj's was heard by two and dismissed. His complaint to the Industrial Tribunal was rejected, and on an application for a review, specifically in order to raise the present point, the tribunal refused the application on the ground that although there was a "procedural error" it was not so great or significant as to render the dismissal unfair. The Employment Appeal Tribunal allowed Mr Cabaj's appeal and reversed the Industrial Tribunal's decision, holding that the denial of his contractual entitlement was so fundamental a defect that a tribunal could come to only one conclusion, that the dismissal was unfair. The Court of Appeal allowed the employers' appeal and remitted the application to a differently constituted tribunal, agreeing with the Employment Appeal Tribunal that the defect in the composition was a breach of contract, not just a procedural error, but deciding that the EAT had erred in holding that that breach meant that the dismissal was necessarily unfair. Morritt LJ, with whom Hutchison and Neill LJJ agreed, reviewed the authorities, in particular West Midlands Co-operative Society v Tipton [1986] IRLR 112, Polkey v A E Dayton Services Ltd [1987] IRLR 503 and Post Office v Marney [1990] 170, and said:

"The questions the industrial tribunal is required to answer are those posed by s.57(3). It is not disputed that there are three questions, namely (1) What was the reason (or the principal reason) for the dismissal? (2) Was that reason a reason falling within s.57(2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held? (3) Did the employer act reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the employee? West Midlands Co-operative v Tipton [1986] IRLR 112, 16. The third question must be decided 'in accordance with equity and the substantial merits of the case'. Thus the question is not whether in all the circumstances the employer acted reasonably in dismissing the employee; it is narrower than that.

The relevance to those questions of a failure of the employer to follow agreed disciplinary procedures is shown in the passages in West Midlands Co-operative v Tipton and Polkey v A E Dayton Services Ltd which I have quoted already. Thus, as pointed out by Lord Bridge of Harwich in the former, the relevance of the failure to entertain an appeal to which the employee is contractually entitled is whether the employee is 'thereby' denied the opportunity of demonstrating that the real reason for his dismissal was not sufficient. It is irrelevant to that question to consider whether the employer would have acted differently if he had followed the agreed procedure, for that is hypothetical. On the other hand, as pointed out by Lord Mackay of Clashfern LC and Lord Bridge of Harwich in the latter, it is relevant to consider whether the employer acted reasonably if he actually considered or a reasonable employer would have considered at the time of dismissal that to follow the agreed procedure would in the circumstances of the case be futile. For my part I would endorse the general approach of Knox J in Post Office v Marney. ........

Accordingly on any remission the industrial tribunal would be bound to consider, in addition to the matters already dealt with in their full reasons issued on 26 August 1992, at least whether the failure of the chief executive to convene a meeting of an appeals tribunal consisting of three members of the city council impeded Mr Cabaj in demonstrating that the real reason for his dismissal was not sufficient and the reasons (if any) why the city council determined to dismiss Mr Cabaj without having observed the requirements of the disciplinary code. The industrial tribunal would then have to decide the three questions posed by s.57(3). For my part I do not think that it can be predicated that the industrial tribunal must inevitably answer all those questions in the sense which would justify the conclusion that the dismissal was unfair. They may but I do not think that they must." (Paragraphs 28 to 30.)

That decision, which is binding on us, is in our view plainly inconsistent with ground 2 of the Amended Notice of Appeal.

We therefore reject each of the three grounds relied upon in support of the appeal against the decision of the Industrial Tribunal on liability. Since the tribunal's decision on compensation was reached only in the alternative, and on the hypothetical assumption that they were wrong on the liability issue, it may be that grounds 4 to 6 do not now arise and that the appeal can simply be dismissed. If the parties are agreed that that is appropriate the required order can be made. If, however, it is necessary to reach a decision on grounds 4 to 6 an appointment will have to be obtained for a resumed hearing of the appeal in order to deal with them.