United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1256_95_1604

Appeal No. EAT/1256/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 16th April 1996

HIS HONOUR JUDGE B HARGROVE Q.C.

MR A D SCOTT

MR N WILLIS

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WEST HERTFORDSHIRE CREMATORIUM JOINT COMMITTEE          APPELLANTS

MR D F BOSWELL & OTHERS          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant ALAN WILKIE Q.C.

& NICHOLAS BOWEN

(of Counsel)

R B McMillan LL.B

West Hertfordshire

Crematorium Joint

Committee

109 Hempstead Road

Watford

Hertfordshire

WD1 3HE

For the Respondents JOHN CAVANAGH

(of Counsel)

Director of Legal Services

UNISON

1 Mabledon Place

London

WC1H 9AJ


 


JUDGE HARGROVE Q.C.: The appellant employer appeals against the finding of the Industrial Tribunal dated 10th October 1995 that three employees, Messrs Boswell, Wilmin and Garrod, had been unfairly dismissed. These three were vergers/cremators, Mr Garrod was the Head Verger, employed at the West Hertfordshire Crematorium. They were dismissed for gross misconduct on varying dates between 29th September 1992 and 14th October 1992.

In short, the allegations against each employee were that they had been guilty of gross misconduct in that they had made false entries in time sheets on numerous occasions and that they had submitted false time sheets and claimed payments for hours that they did not in fact work.

Each employee appealed against that decision to dismiss which was made by Mr Wood. From those appeals the case was taken to the Industrial Tribunal. It follows that the appeals in each case were unsuccessful.

From the outset of the disciplinary proceedings, there have been areas of dispute between the Union, representing the three employees and the employer, in relation to the personnel constituting the membership of the disciplinary tribunal and the appeal tribunal. Putting the matter quite shortly, the tribunal summed up the situation in following terms:

"Objection were raised by Mr Bradley, the Area Officer ... as to whether or not is was proper for Mr Wood to conduct the disciplinary proceedings. He stated in his letter to Mr Plank, the Chief Executive of Watford Borough Council, written on 24 July:-

"I have also indicated to Mr Wood that it would clearly be inappropriate for him to be involved in conducting any disciplinary proceedings - if there is justification for any case to be put to our members - if he has himself been involved in investigating the matter which is to be considered. This would be a clear breach of our members' rights to natural justice and I am sure you would agree with me that no person can be judge in their own cause.""

Similar objections were made personally to Mr Wood.

Putting the defence for the employees concisely; the person who was charged with the duty of supervising was in fact the Superintendent Registrar, that person at the time was a Mr Butcher. In fact Mr Butcher made out time sheets and authorised them, and at times actually seems to have signed them in the name of the employees. He appeared before the Industrial Tribunal and confirmed those matters. I paraphrase when I say that he was indicating that it was not very good practice, but in fact the men had worked the hours, and there was no element of dishonesty.

Quite apart from the defective time sheet aspect, there was a further issue which has been referred to as "the shouldering issue". It seems that vergers were helping funeral directors in carrying coffins from hearses to the catafalque at the crematorium. That is not a matter which appeared in any charge against the employees. It is plain that it was a matter which was vexing Mr Wood and there are references to it in three documents. Two of them were documents of internal audit. The earlier one which set out without any disciplinary implications at that stage in precise terms that there was a problem in that it seemed that the employees were:

a) working for someone other than their employer in their employer's time; and

b) possibly receiving re-muneration from the funerals directors for doing this work.

The second audit document was more specifically orientated toward the disciplinary aspects. I have said that there is a third document, and there this dealt with a report of the Federation which had inspected the crematorium and found this practice to be occurring and that they found that the practice was undesirable.

The approach by the employees before the Industrial Tribunal was that in fact "the shouldering issue" was a hidden agenda. It seems that the investigations into that issue had failed to reach a situation where adequate evidence would be available. Putting it more coarsely, the funeral directors had adopted their usual role of silence. As a result, so it is alleged, the hidden agenda was that although steps could not be taken against these employees in relation to `shouldering', nevertheless, the issue was lying in the background and the false time-sheets were used as front. Upon those grounds, it was said, that Mr Wood was prejudiced.

The tribunal in paragraphs 22 to 25 looked at this matter and reached the conclusion that that was a valid point and that in fact Mr Wood should not have acted on the initial disciplinary hearings, he was far too involved in the investigation. No point is taken on that before us.

The next problem in relation to selection of tribunal members, occurs in relation to the appeal. It is clear that certain persons in the personnel committee had seen the Federation document and the first audit report, a Mrs Bassadone and a Mr Kiely. They were two of the persons who were selected to be upon the appeal committee. At one stage it seemed that the Union representative was taking objection to that, but his objection seems to have come to nothing. The point is made on behalf of the respondents here, that it is not clear whether or not the Union representative was aware of the degree of knowledge of the various members of the committee at the time he was writing, various letters to the employer's representatives.

The tribunal accepted that in appropriate cases even where the initial disciplinary hearing has been defective, in appropriate cases a full and fair appellate hearing can cure the defects in the flawed proceedings. It is worthwhile looking at the way in which this tribunal has looked at these cases in the past, and I need take only a short paragraph from Whitbread v Mills [1988] ICR 776 at page 795 where this passage occurs:

" It would follow therefore that not every formality of legal or quasi-legal process is required during the disciplinary and appeal procedures. Each set of circumstances must be examined to see whether the act or omission has brought about an unfair hearing.

If is has, then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a re-hearing no novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a re-hearing and not a mere review."

One can extrapolate from that a fairly simple rule, that if something has occurred which has rendered the first disciplinary hearing unfair, it is incumbent upon those dealing with an appellate hearing to make absolutely certain that there are no defects of a material nature in that hearing.

The way in which the Industrial Tribunal dealt with the appellate's situation is this:

"26 The Applicants appealed and their appeal was heard by five elected members of the contributing local authorities. In general terms where an appeal takes the form of a re-hearing it is possible for the respondents to redress whatever substantive or procedural discrepancies may have flawed the initial disciplinary hearing. In the case of these Respondents, the West Herts Crematorium Joint Committee, it is composed of some 14 members drawn from the five participating authorities, and at the time we are concerned with had reconstituted its Personnel Committee. The Tribunal were informed that at the meeting of the Joint Committee on 14 January 1992 it had received a report from the Federation of British Cremation Authorities which had mentioned the fact that members of the crematorium staff regularly assisted funeral directors with the bearing of coffins from the hearse to the catafalque. In a letter from Mr McMillan to funeral directors dated 23 January 1992 he stated that the Joint Committee viewed this practice, which they were not otherwise aware of, with disquiet. And he then goes on to give the reasons that they were concerned about this practice including the matters of tax and National Insurance contributions on payments received and the fact that employees were undertaking word for other persons in the Joint Committee's time. Following that meeting, the Personnel Subcommittee met on 4 February when it too had the Federation's report in front of it and the first audit report. This also elaborated on the system of payment for shouldering and questioned the legitimacy of the practice. It seems clear to the Tribunal from the minutes of these meetings that councillors were principally concerned to remedy the management and administrative defects which has been disclosed and that these meetings did not discuss the disciplinary issues other than to appoint an appeals committee. The Respondents have argued that there was no evidence before the Tribunal for it to draw any conclusion or any inference that the appeals panel had prior knowledge of the allegations against the Applicants or that they had formed any view about the propriety or otherwise of the employees' actions. But the Tribunal finds that the five councillors on the Personnel Subcommittee must have had that knowledge from the papers submitted to them showing that there were grave concerns about what had been going on at the crematorium not only over time-sheets but also in respect of shouldering."

"27 Counsel for the Respondents has argued that as far as the Joint Committee was concerned the shouldering issue has been concluded satisfactorily without recourse to disciplinary proceedings, but the evidence we have heard shows quite clearly that although it had been stopped the previous practice of shouldering was still an unresolved issue in July 1992 and remained so up to an including the time of the Tribunal hearing. Mrs Bassadone's [Mrs Bassadone was a member of the Personnel Committee and also of the Appeal Committee] evidence was that all the details of the investigations leading to the disciplinary hearing and the hearing itself were not disclosed to members, and that all the details were dealt with by the officers. But that cannot be right since the minutes record the documents which were in the Councillors' possession, and we are entitled to infer that those councillors had read and understood the contents and the implications those documents contained. It has also been argued that we would be wrong in coming to a conclusion that the Joint Committee should not have conducted the appeal hearing since it was their responsibility to do so. Once again, we would concur with that view, but our finding is that in all the circumstances the appeal should have been heard by members who were not also on the Personnel Committee. That would have been both feasible and practicable. In coming to this conclusion we are conscious of the fact that it is not for the Tribunal to declare that it prefers one form of appeal procedure to another, nor to lay down what the procedure should be. Our responsibility is to investigate whether or not the appeal procedure is fair in principle, which this one was (i.e. to the Joint Committee) to ask whether there were any significant irregularities which put that procedure in doubt, to consider how difficult or otherwise it might have been for the employers themselves to recognise the flaw and to be able to correct it, and if necessary the manner in which they did that. In this case they had already been alerted to concerns about Mr Wood's conducting the initial disciplinary hearing, and although he was excluded from presenting the employers' case at the appeal hearing, the employers seem not to have looked at their own specific arrangements for the appeal to ensure that it was not tainted with the same criticism of lack of impartiality."

One turns now to the grounds of appeal. The first ground, I will take them in this order, is that in order to find that the appeal hearing was tainted and therefore procedurally flawed the tribunal would have to make substantive findings of fact that there was a real danger of bias. The only finding of fact in the judgment is the last three lines of paragraph 27 which states:

"... the employers seem not to have looked at their own specific arrangements for the appeal to ensure that it was not tainted with the same criticism of lack of impartiality."

It is said upon that basis, that there are a number of matters. First of all that the expression "real danger of bias" was not used. It is accepted in argument that some other form of words amounting to the same or very similar approach would be acceptable. It seems to us when one looks at what is said in this case by the tribunal, that having reached the conclusion that there was a real danger in Mr Wood's case. They similarly find that there is a real danger of lack of impartiality in the case of the Appeal Tribunal as it was constituted. There is a further argument against that which is raised. It is said that in any event that cannot be right because of course Mr Wood's position and the position of the two members of the appeal body, were not persons who had seen the same documentation. With respect, that is not what is indicated by paragraph 27. It is not saying in the last five lines of paragraph 27 that Mr Wood and the two members of the Appeal Committee, had all looked at the same documents, it is saying that the procedure being adopted by Mr Wood was tainted with lack of impartiality and so was the position of those who were conducting the appeal proceedings. It was not necessary, in our view, for there to be any finding that there was in fact lack of impartiality. It is the danger of bias which is the matter that has to be considered.

We have reminded ourselves what was said in the case of Piggott that one should not go through the findings of an Industrial Tribunal with a fine toothcomb. Nor should one read the findings as if they were a statute. In order to reach anything like the conclusions that have been urged upon us by the appellant here, we would have to do precisely that.

Moreover, it has been urged that the finding which occurs at paragraph 27 is in fact which is one which is perverse. We have not seen the Chairman's notes, they have not been bespoken. Piggott again assists us in taking the view that without such notes the allegation of perversity cannot be made out. This is not one of those rare cases, to which reference was made in Piggott, where it is possible because of the nature of the findings of the tribunal to do without the notes concerned.

I turn now to the position in relation to paragraph 29. We confess that when we first looked at this paragraph we found it somewhat puzzling. The paragraph reads:

"29 We have then asked ourselves the question as to whether or not, if properly conducted, the disciplinary hearing could have come to the conclusion, on the evidence of the time sheets alone, that the Applicants were guilty of misconduct. We have taken account of the evidence, not disputed, that no auditor ever challenged the time-sheets submitted, which must of itself have reinforced the men's belief that what was being submitted was being done in an approved manner. There was an open record in the Crematorium about "Funny Days" and it was not disputed that it was Mr Garrod who approached Mr Wood about the practice. Our view is that he would not have taken this initiative if he had thought the practice might lead to future disciplinary proceedings. The issue of the lunch-time overtime payments was also taken up on the men's behalf by NUPE. We have come to the conclusion that the men's actions could have amounted to some level of negligence in signing time-sheets which they themselves had not completed, but that what happened could not be regarded as gross misconduct. We base that finding not by substituting our own view of the credibility of the Applicant's case for the view taken by the employers, but on undisputed facts before the Tribunal."

Mr Wilkie draws our attention, rightly to the fact, that one hears tribunals or judges saying that they are being very careful not to do something, one really should look around very carefully to observe if, in all probability, that they are doing precisely that. The possibility obviously must occur upon that paragraph that what the tribunal was considering was really questions of negligence rather than dishonesty, and that therefore they were doing precisely that. The truth of the matter, we think, is that the tribunal having reached the conclusion that the appellate procedure was unfair at this stage is moving on considering whether if they are wrong on that aspect, then in any event they have reached the conclusion that, and one uses the terms used it "could not be regarded as gross misconduct." That is the way it is put. In our view, what is being said here is that this is a secondary ground upon which they are basing themselves. We do not consider that they have strayed into an area which they should more properly be looking at upon a second hearing on remedies.

In those circumstances, we are unable to find any error in the findings of the Industrial Tribunal. This appeal fails and is dismissed.