United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 621_95_2205

Appeal No. EAT/621/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 22 May 1996

HIS HONOUR JUDGE K BASSINGTHWAIGHTE

MRS M T PROSSER

MISS D WHITTINGHAM

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UNITED SERVICES CLUB (DEPTFORD) LTD          APPELLANTS

LORRAINE CONNEELY          RESPONDENT

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellants MR E DOWNHAM

(Representative)

For the Respondent MS D PHILLIPS

(Representative)


 


JUDGE K BASSINGTHWAIGHTE: Mrs Conneely (the Respondent before us) submitted an Originating Application to the Industrial Tribunal on 18 November 1993, which complained of her unfair dismissal, of lack of money in lieu of notice and of an unauthorised deduction from her wages.

The employer, the United Services Club (Deptford) Ltd (referred to in this judgment as "the Club") filed a Notice of Appearance, which by reference to copies of letters prepared by the Club Secretary on 5 February and 7 March 1994, supplied details of the Club's resistance to that complaint.

The complaint came before a London (South) Industrial Tribunal on 31 March 1995. The Industrial Tribunal promulgated its decision to the parties on 3 May in extended form, which recorded that Mrs Conneely had been unfairly dismissed and was entitled to an award of compensation which totalled £11,360. The Industrial Tribunal recorded that the claim of an unauthorised deduction from wages was withdrawn and dismissed at the hearing.

It is clear that the Industrial Tribunal was asked to review its decision under the provisions of the 1993 Rules of Procedure, Rule 9. We have heard however, that the Club failed to attend before the Industrial Tribunal and the review application, not surprisingly, was rejected by the Industrial Tribunal. Because of the diverse nature of the challenges to the propriety of the Industrial Tribunal's decision in this case, it is necessary to look at the procedures adopted, as well as to the Industrial Tribunal's decision.

At the hearing Mrs Conneely was represented (as she was before us) by a Solicitor, Ms Phillips. The Club was represented by Mr Williams, who was not, so far as we are aware, legally qualified, but who had at some stage been part of the management structure of what was effectively a social Club.

The Industrial Tribunal found that Mrs Conneely had been dismissed by Mr Armstrong, the Secretary of the Club. For reasons best known to himself and to the Club and of which the Industrial Tribunal seems also to have been unaware, Mr Armstrong was not present at the hearing.

Two issues immediately arose at the hearing of which complaint is now made before us. Before we go into detail with regard to those matters, we should make it clear how we regard them and what relevance they may have before us. When issues which relate to the conduct of a hearing by an Industrial Tribunal are before this Appeal Tribunal, the basis upon which we have the power to examine and if necessary, to redress those issues, is by consideration of the requirements for a fair hearing and thus, of the interests of natural justice. If, we conclude that by its action, an Industrial Tribunal has denied a fair hearing to a party, that is an error of law entitling us to interfere.

The two specific issues about which complaint is now made and to which we have referred, are as follows.

Firstly, that the Club's representative - unfairly and prejudicially - was required to digest papers submitted by Mrs Conneely's representative at a very late stage, that is within 24 hours preceding the hearing and was not allowed more time to do so.

The Industrial Tribunal dealt with this matter at paragraph 5 of their decision. They concluded that, as most of the documents (other than proofs of evidence of Mrs Conneely's own intended witnesses) were known to the Club, there was no need for substantial time to consider those papers. The Industrial Tribunal recorded that, "it was not necessary for there to be any adjournment".

It should firstly be recorded that the Club before us was represented by Mr Downham. He, as Mr Williams before the Industrial Tribunal, appeared before us without Mr Armstrong, apparently considering that he could do so without the latter's assistance. Mr Downham is, it would seem, a committee member of the Club who was present at the Industrial Tribunal hearing.

In that connection we comment that, even for those without legal qualification, it must be obvious that a Tribunal enquiring into a complaint of unfair dismissal will be assisted by evidence from those who have the closest knowledge of what occurred. By any analysis, that person is Mr Armstrong, and in the absence of his physical inability to attend the Tribunal (which Mr Downham confirmed was not the case) we can understand the Industrial Tribunal's comment to the effect that he (Mr Armstrong) was conspicuous by his absence.

However, to return to the first procedural complaint, there is no merit in it. If Mr Williams was simply faced with documents, of which the Club had already been aware, there is no cause for complaint if he was given time, as the Industrial Tribunal's decision records was offered to him, to acquaint himself with the identity, if not the content, of what was produced. Insofar as he received proofs of evidence of witnesses, that was of course an advantage to which he was not strictly entitled; Mrs Conneely is not, and was not, required in Industrial Tribunal proceedings to produce a written record in advance of what her witnesses are expected to say. There can therefore be no complaint before us if a party feels that he was given insufficient time to digest documents which were gratuitously provided to him, in excess of the legal requirement.

The second issue was that the Club's representative did not put before the Industrial Tribunal evidence in the form of a video recording, which it would seem showed the state of cleanliness or order of the bar area under the control of Mrs Conneely. The matter was the subject of a letter from the Industrial Tribunal Regional Office on 28 March 1995 which we have seen. That letter made clear that "the Respondents should provide a copy of the video recording to the Applicant's representative before the hearing, or bear the cost of any adjournment made necessary by the failure to do so". That suggestion was not complied with. Mr Williams attended the Tribunal hearing with the video recording (apparently received that same morning from Mr Armstrong) but without any means of showing it to the Industrial Tribunal. We are not therefore surprised to read from paragraph 4 of the Industrial Tribunal's decision that the recording was not shown in those circumstances, and that the hearing was not delayed; that situation, even had it resulted from the Industrial Tribunal's decision to that effect, would not have persuaded us that the interests of justice had been neglected, for the Club had had notice of Mrs Conneely's complaint since November 1993, there had been the letter to which we have referred with regard to the video recording on 28 March 1995 and we assume, since there was no complaint before us, that the Club had received at least the statutory minimum notice of the hearing before the Industrial Tribunal.

It was therefore our conclusion that the Club could not reasonably complain, certainly in the circumstances before us, about the circumstances in which it was required to proceed with the hearing on 31 March 1995.

We turn now to consider the dismissal itself and the Industrial Tribunal's findings of fact which surround it. Mrs Conneely was a resident stewardess at the Club and had been so since August 1990. She was generally responsible it would seem, for the bar and bar area, including its cleanliness. The Club was run by a committee. Mr Williams was its President at the time and Mr Armstrong the Secretary. An issue concerning Mrs Conneely's performance of her duties came before the committee on 12 October 1993, as a result of which Mr Armstrong wrote to her on 22 October, suspending her and asking her to attend a committee meeting on the 26th of that month.

The Industrial Tribunal heard evidence of that meeting at which Mrs Conneely attended and they concluded that she had not been afforded an adequate hearing. After that meeting, Mr Armstrong wrote two letters to Mrs Conneely, one of which contained a final written warning of the possibility of dismissal if she failed to perform her duties and the second of which detailed some of those duties and responsibilities.

On 7 November 1993 Mrs Conneely was summarily dismissed by Mr Armstrong. The Industrial Tribunal's findings in this respect appear in paragraph 7.9 of their decision as follows:

"7.9 On Sunday 7 November 1993, the Applicant came down to the bar at 11.40 or 11.45 am to prepare for opening at noon. She was met by Mr Armstrong who dismissed her instantly without any explanation. He asked for the keys to the bar, which were handed over by the Applicant. Shortly afterwards, Mr Williams went to the club for a drink, and was met by Mr Armstrong, who said that he had dismissed the Applicant because `the place was in a mess' after a function the night before. ..."

There are, it is right to say, many challenges to this Industrial Tribunal's findings of fact, but the findings which we now set out are not the subject of specific challenge and are therefore regarded as undisputed fact.

In paragraph 8 of their decision the Industrial Tribunal set out the legal framework within which their decision was made. They made correct reference to Section 57 of the Employment Protection (Consolidation) Act 1978. The Industrial Tribunal's conclusions appear in paragraphs 10 to 14 of their decision. It is perhaps arguable whether their decision in paragraph 10 concerning the disciplinary measures meted out to Mrs Conneely on 26 October are of particular relevance, but whether that is so or not the Industrial Tribunal's remaining conclusions are of central relevance, particularly those in paragraphs 11 and 12 as follows:

"11 The Tribunal had difficulty finding a reason for the dismissal on the evidence presented, but on balance finds that the reason was the failure of the Applicant to be in the bar on 7 November 1993 at the time when Mr Armstrong expected her to be there. There was no evidence as to what that time was. The only evidence was that the bar had to be open at noon. The Tribunal specifically rejects any suggestion that the dismissal was for any reason other than arriving later in the bar than was anticipated by Mr Armstrong. The statement in the Notice of Appearance to the effect that the dismissal was caused by `serious misconduct re failure to perform to required standards' is rejected as being inaccurate if the Respondent intended it to be interpreted any more widely than relating to the incident on 7 November.

12 The reason for the dismissal relates to the conduct of the Applicant, and therefore is potentially fair within section 57 of the 1978 Act. The Tribunal then must consider whether the dismissal was fair or unfair within section 57(3). In so doing, the Tribunal takes into account the size and resources of the Respondent."

Thus, the Industrial Tribunal found that the Club had proved that the reason for dismissal related to the Respondent's conduct on 7 November 1993. They specifically indicate that they were not satisfied of any dereliction of duty before 7 November and it is perhaps understandable why the Industrial Tribunal in those circumstances confess to some difficulty in reaching that conclusion.

After reminding itself of the provisions of Section 57(3) of the 1978 Act the Industrial Tribunal considered the fairness or otherwise of the dismissal and dealt with this issue quite shortly in paragraph 13:

"13 The Tribunal finds that the instant dismissal of the Applicant by Mr Armstrong unsustainable. The Applicant was not told of the reason for the dismissal. She was not allowed any opportunity to discuss the matter with Mr Armstrong. She was not invited to any disciplinary hearing before the committee. She was not given any right to appeal. On procedural grounds, the actions of Mr Armstrong are quite indefensible. ..."

There are also contained in that paragraph further findings of fact about the dismissal on 7 November 1993, again about which no complaint is made. Although briefly stated, the Industrial Tribunal's finding of unfair dismissal cannot be criticised because of their conclusions about procedural unfairness or because the Industrial Tribunal judged dismissal to be outside the band of responses which the reasonable employer would have considered available to him. They directed themselves in accordance with the law and reached a conclusion which was open to them. Indeed, it is difficult to see that any Tribunal would have reacted differently given the findings of fact set out in paragraph 13.

The Industrial Tribunal then embarked upon a very careful and detailed examination of compensation. Before we turn to examination of those issues, we should deal with a further challenge to the Industrial Tribunal's decision which is mounted because the Tribunal failed to record that it had considered whether, because of her conduct, any award to Mrs Conneely, either basic or compensatory, should be reduced as a result of relevant statutory provisions, presumably Sections 73(7)(B) and 74(1) of the 1978 Act.

It is of course axiomatic that in cases where an employee is dismissed because of a reason which relates to his/her conduct, or more usually misconduct, then there is at the least an arguable case for reduction of any award as a result of that misconduct.

However, so far as the issue of compensation and/or contributory conduct is concerned, the Tribunal embarked upon a hearing related to compensation at which the Club was represented and to which it did not contribute either by cross-examining Mrs Conneely or by introducing evidence of its own. It is not for an Industrial Tribunal, still less for this Appeal Tribunal, to instruct parties represented or not, in how to conduct their cases. Industrial Tribunals will often alert unrepresented parties to the issues which the Industrial Tribunal will want to consider, but it cannot be characterised as an error of law if they fail to do so.

The challenges to the compensatory award are two-fold. Firstly, that the Tribunal should have considered reduction on account of contributory conduct. It is for an employer to produce evidence upon which such a finding could be based and to put that issue before the Tribunal. We have noted from the Notice of Appeal (as enlarged before us) that Mr Williams neither cross-examined Mrs Conneely, gave evidence himself or made representations concerning the issue of contributory conduct. Mr Downham has not suggested today that the Industrial Tribunal prevented him from doing so and the Notice of Appearance itself stresses that the Industrial Tribunal "failed to invite" such evidence or comment. That ground of appeal is therefore misconceived because the Club, in the form of Mr Williams, had the opportunity, which was not denied him, to present that evidence and to comment. He did not do so and there cannot now be complaint that there is an error of law because the Industrial Tribunal did not prompt him to do so, if that is what is meant by the phrase "failed to invite". An Industrial Tribunal has no such duty in its conduct of what essentially remain adversarial proceedings. There can, in effect, be no complaint if a party allows an Industrial Tribunal hearing to proceed on an evidential basis which could have been challenged, a course which that party chose not to adopt.

The second challenge relates to the head of compensation which dealt with the loss of use of the service flat to which Mrs Conneely and her family were entitled until her dismissal. We ourselves confess to some difficulty in following the Industrial Tribunal's reasoning as it is set out, particularly in paragraphs 25 to 28 of its decision. However, even if we were to find that the whole amount of compensation under this head, that is £5,580, was wrongly awarded, the total compensatory award would still be above the £11,000 limit for a compensatory award which applied at the time when this Industrial Tribunal was adjudicating. There is therefore no need and no profit in us deciding that issue or in taking steps, for example to ask the Industrial Tribunal to amplify their reasons because it has no practical effect so far as this award of compensation is concerned. We reach that conclusion because each other head of award is uncontroversial in the sense that it lay squarely within the Industrial Tribunal's discretion based on its recorded findings of fact. We can see no basis upon which we could interfere with any of those heads even though we ourselves might consider the awards somewhat generous: that is not our function. We cannot classify the awards as unreasonable in the sense that no reasonable Tribunal would have awarded them, which is the only other sense in which the Notice of Appeal challenges the awards.

In consequence, for the reasons which we have given, the Club's appeal must fail and be dismissed.

Finally, we note that Mrs Conneely has not appealed against the Industrial Tribunal's failure to deal with her claim in respect of unpaid notice pay. We therefore have no function in that respect.