United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR N CHRONIAS (Legal Adviser) EEF Broadway House Tothill Street London SW1H 9NQ
For the Respondent	MR J ANDERS (of Counsel) Messrs Timmis Desai Solicitors Maiden Lane Covent Garden London WC2E 7NA


 


JUDGE LEVY QC: Mr Mohan Singh Sandhu ["Mr Singh"] commenced employment on 13th April 1981 with the respondent Samas Roneo Limited ["the company"]. That employment ended on 13th June 1995. On 9th August 1995 Mr Singh submitted an application to the Industrial Tribunal saying he had been unfairly dismissed. In his notice of reasons, he stated why very shortly:

"Unfair dismissal. I also never received any written warnings or a letter of dismissal."

The Notice of Appearance was entered by the company and was received on 5th October. It said there was "gross misconduct" and a sheet was attached.

There was a hearing before an Industrial Tribunal sitting at Ashford in Kent on 15th February and 15th March 1996. At the conclusion of the hearing the unanimous decision of the tribunal was that Mr Singh had been unfairly dismissed. The reasons for that decision were sent to the parties on 3rd May 1996. The appeal by the employers against that decision was received by this tribunal on 6th June 1996. Mr Chronias has made sturdy submissions, tenaciously put forward, to support the grounds of appeal set out in the Notice and his skeleton argument.

The background facts are to an extent summarised in a chronology at the end of his skeleton argument. Following a fire at the company's premises, a notice regards smoking was apparently put in the final assembly area on 21st March 1995. It seems to be common ground that the effect of the notice was to make it a sackable offence to smoke in a non-smoking area, but it also seems to be common ground that Mr Singh's knowledge of English, despite the length of time that he had been in the employment, was not such that he could be expected of necessity to understand a written notice. There was a briefing about the notice on 13th April 1995. There was no evidence before the Industrial Tribunal that Mr Singh had attended that meeting. On 15th April Mr Singh went on holiday. On 8th May he returned from holiday. On 10th June 1995 he was found smoking in a non-smoking area. As a result of that, on 12th June 1995 there was a disciplinary hearing following which he was dismissed. On 13th June 1995 his appeal against that decision was heard. His dismissal was upheld.

Essentially why the employer failed below is because the Industrial Tribunal found that proper procedures had not been followed. It is clear beyond anything else that those who were witnesses of the alleged misconduct by Mr Singh never came before the person who conducted either the first hearing, namely a Mr Robert Webb, or before the person who heard the appeal, namely Mr Alan Newbury. The tribunal says so in terms in its findings at 55(e) of the extended reasons:

"Mr Webb and Mr Newbury failed to give consideration as to whether, in the particular circumstances which affected this Applicant there was any other means by which the Applicant could have been disciplined."

And in the preceding paragraph 55(d):

"... and, in particular [they say of Mr Webb], the witnesses should have been seen and the Applicant given the opportunity to question them."

As part of his sturdy submissions, Mr Chronias told us that five or six times during the hearing Mr Singh through his representative was asked if he wanted to go and talk to the witnesses and told that he could if he wanted to. As if that was enough! It clearly is not enough for somebody to be given the opportunity simply to go and talk to the witnesses, when there is a disciplinary hearing for gross misconduct of the sort alleged here. It is really up to the person hearing the application to hear the witnesses and give the employee the opportunity, if he so wishes, to question them at that hearing.

Further, it is very necessary where a type of behaviour castigated as gross misconduct is introduced which is a change of the contractual conditions of employment, that such change is brought to the attention of employees. In our judgment, the Industrial Tribunal were right in criticising the employer for failing, as a preliminary to dismissing Mr Singh, to ensure that he positively knew about the change of rules and that the effect of one breach would mean instant dismissal. Evidence about on site talk about 'no smoking' signs going up or about an employee's understanding of what a 'no smoking' signs mean, are not to be equated with evidence of an understanding by an employee that if he breaches a 'no smoking' sign on one occasion, the penalty will be dismissal. If that was to be the penalty, as the tribunal made clear, this was very first case that there had been disciplinary hearings on it, and when there is the first case, it is even more important that there should be a proper enquiry.

Mr Chronias has pointed to many suggested contradictions within the judgment of the Industrial Tribunal, but when we look at what he calls contradictions, they appear to go to the flavour of the investigation rather than to answer the point that the investigation was procedurally inadequate. Mr Chronias has referred us to the decision in Dick v Glasgow University [1993] IRLR 581 a decision of the Court of Sessions, where Clerk LJ [Lord Ross] setting out the reasons when it reversed an Employment Appeal Tribunal decision, at paragraph 7, said:

" It is clear from the judgment of the Industrial Tribunal that evidence as to what the appellants were wearing arose for the first time at the hearing before the Tribunal."

And from that, Clerk LJ went on to say:

"When considering whether the respondents had carried out reasonable investigations in the circumstances, what the Industrial Tribunal should have considered was the nature of the material which was before the respondents when they made their decision to dismiss the appellants. They were not entitled to conclude that no reasonable investigations had been carried out by the respondents because the respondents had not had regard to material which was never placed before them, and which emerged for the first time during the proceedings before the Tribunal. In Linfood Cash & Carry Ltd v Thomson [1989] IRLR 235 at 238, paragraph 21, Wood J said:

'... the Tribunal must not substitute their own view for the view of the employer, and thus they should be putting to themselves the question - could this employer acting reasonably and fairly in these circumstances properly accept the facts and opinions which it did? The evidence is that given during the disciplinary procedures and not that which is given before the Tribunal.'

In our opinion the Tribunal's conclusion that the respondents did not carry out reasonable investigations is flawed because they have not approached the question by considering the evidence which was before the respondents during the disciplinary procedures, but have proceeded upon the basis of evidence which emerged for the first time before the Tribunal."

Dick v Glasgow University was of course about a case where dishonesty was alleged, where the tribunal found that the investigations by the employer were reasonable at the time known.

What the Industrial Tribunal found wanting here were both the disciplinary investigation and disciplinary procedures of the company. Necessary witnesses were not called. Insufficient steps were taken to ensure that Mr Singh, whose lack of knowledge of the English language was clearly appreciated, fully understood what was going on in the hearings. We give these only as a couple of illustrations to show that, in our view, the tribunal properly addressed itself on the issues before it. In this case we are satisfied that the tribunal did not usurp the opinion of the company. This is a case where they were entitled to hold on the facts that no reasonable employer could have behaved as did the company. What they have clearly said is that the procedure used by the company was improper and it was that that caused the unfair dismissal.

In the circumstances, while thanking Mr Chronias for his submissions, this appeal must be dismissed and the matter returned to the Industrial Tribunal for a compensation hearing.

Application for costs on behalf of the respondent refused.