United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR S ELLIS-JONES (of Counsel) Messrs Philip Holliday Solicitors Imperial House 46 High Street Swanley Kent BR8 8BQ


 


JUDGE HICKS QC: Mr Calloway, the respondent to this appeal, was a manager employed by the appellants, who are called Baseglen Ltd but trade as "The Perfect Pizza". He was so employed from 1st February 1989 until 13th September 1993.

Early in September 1993 the employers were concerned about certain matters in relation to Mr Calloway's performance, in particular concerning food costs, and they required him to attend a disciplinary interview on 13th September 1993 at 11.30 a.m..

It would appear that on 12th September 1993 a fresh matter of complaint came to the employer's notice concerning his handling of cash, specifically failure to lock a safe resulting in a subsequent loss through burglary. The finding of the tribunal is that that matter was raised at the disciplinary hearing on 13th, without prior notice to Mr Calloway that it was going to be one of the matters considered. As a result of the hearing Mr Calloway was dismissed, the reasons given by the employers in the dismissal notice being lack of food cost control (which had been the subject of the original complaint) lack of care and attention towards company cash (which concerns the matter that arose on 12th September 1993), lack of ability to identify the problems or offer solutions and not showing management capability. Those last two reasons presumably were also the subject of the notice of disciplinary proceedings; certainly the tribunal does not seem to find otherwise.

The tribunal's findings were:

" ... that all the matters referred to in the letter of dismissal, [apart from the matter of cash] would all have been matters on which it would not have been fair to have dismissed the Applicant even with notice, and that in respect of those matters he would have been entitled to a final reprimand before dismissal."

The tribunal go on to say that on the facts that they had heard relating to the cash handling, which had not been disputed by the applicant, the tribunal's finding was:

" ... that was a matter which was so serious that the Respondent would have been entitled to dismiss him summarily. However, the Tribunal also find that the Applicant was given no prior notice that the disciplinary hearing would investigate the matter of money security."

They also found:

"that the procedures adopted by the Respondents in dealing with the disciplinary hearing were at fault in not forewarning him of all the issues to be raised."

That plainly is a reference to the matter of cash handling. That is one ground on which they find that the dismissal unfair.

They go on to say:

"We also find that the Respondents were in breach of their own procedures by not responding to the Applicant's request for an appeal hearing."

They accept his evidence that he asked for such an appeal and that was never done. They therefore find the dismissal unfair. They go on to deal with contribution and make a finding of 50% contribution and reduce the compensation accordingly.

The grounds of appeal are first one which has nothing to do with that recital of the substance of the complaint, because at the commencement of the hearing there was an application by the respondent employers for an adjournment which was rejected. The first ground of appeal is that the tribunal erred in the exercise of its discretion through its failure to take account of the fact that the appellants' solicitors had endeavoured to liaise in the arrangement of a hearing date and had been ignored.

That ground fails on its face, because simply to allege that a tribunal in the exercise of what is undoubtedly and admittedly a discretionary matter, have erred in their exercise of it is simply not an error of law. To sustain an appeal on a matter of discretion, the appellants must show that the tribunal has erred in law and that can normally be done in one of three ways: either by showing that they took into account matters which they were not entitled to take into account - no such allegation is made, or as far as we can see could be made; secondly that they failed to take into account matters that they should have taken into account - the tribunal give a lengthy recital of the chronology and of the matters which were relevant to the exercise of their discretion, and there is nothing in the Notice of Appeal, nor could be as far as we can see, to suggest that they failed to take into account matters that they should have taken into account. The third ground on which they can be said to have erred in law is, if their decision is so manifestly wrong that the conclusion can be drawn that no tribunal correctly directing themselves in law could have reached it. That cannot be maintained either and so that ground of appeal fails.

The second ground of appeal, and the most substantial one in the submission of Mr Ellis-Jones for the appellants, and in our view too, is that the tribunal's decision that the dismissal was unfair on the ground of failure to receive prior notice of the money allegation was perverse, not as we understand it perverse in the common sense of being one which no tribunal on the whole of the evidence could have reached, but perverse in the sense that it was a contradiction of their own finding that the applicant admitted the relevant failure and the tribunal themselves found that that was not only a dismissible offence but one which would have justified summary dismissal.

In our view that ground of appeal cannot be maintained. The fact that an offence was one which would have justified summary dismissal does not imply that, if the employers do engage upon an investigation and a disciplinary hearing, they can ignore the requirement that that investigation and hearing must be conducted fairly, including the obvious requirement of fairness that proper notice must be given of the allegations that are to be investigated. What would have been the result if the appellants on their discovery about the money had simply aborted the disciplinary proceedings and there and then engaged in the summary dismissal would no doubt have fallen for investigation if that had happened. That is not what happened; they purported to deal with it under the guise of a disciplinary hearing, and we see no error of law whatsoever in the Industrial Tribunal's approach to that situation, or in the Industrial Tribunal's finding that the conduct of that hearing was unfair in the failure to give notice of what was to be dealt with.

There is a third ground of appeal which is not pursued, and then there is a fourth which attacks the finding of 50% contribution, the allegation being that the tribunal failed to take sufficient account of the circumstances of the case; that again on its face is a allegation of an error of fact, not of law, and therefore fails.

Having disposed of all the grounds of appeal and found that none of them is arguable we dismiss the appeal.