United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 629_95_0104

Appeal No. EAT/629/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 1st April 1996

Before

HIS HONOUR JUDGE N BUTTER Q.C.

MR D G DAVIES CBE

MISS C HOLROYD

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MR J RAVEN          APPELLANT

THE POST OFFICE          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR T KERR

(of Counsel)

Messrs Simpson Miller

Solicitors

101 Borough High Street

London Bridge

London SE1 1NL

For the Respondents MISS SIMLER

(of Counsel)

The Solicitor

The Post Office

Impact House

2 Edridge Road

Croydon CR9


 


JUDGE BUTTER Q.C.: This is an appeal by Mr Raven in respect of the decision of the Industrial Tribunal at Southampton on 27th March 1995. The tribunal decided that his claim failed. He is dissatisfied with that decision and now appeals to this tribunal in respect of the decision. The extended reasons for it which were sent out on 26th April 1995.

For reasons which will be apparent shortly, I propose to give a relatively short judgment.

The position is that Mr Raven had been employed as Higher Grade Postman from June 1987 until his dismissal which was effective on 29th June 1994. Certain dates are of importance. There were allegations made against him of harassment affecting a Mrs Colbeck, which related to the time prior to and up to 25th March 1994. On 30th March 1994, Mr Raven went absent without leave and subsequently lied as to his reasons for doing so. A disciplinary interview took place on 10th June 1994, but it was on 23rd June 1994, in relation to the offence of going absent without leave, that a Mr Jennings decided that the matter could be dealt with and should be dealt with by way of a suspended dismissal. On 29th June 1994, Mr Taylor dealing with the allegations of harassment decided that Mr Raven should be dismissed.

It was not until 4th August 1994 that the matter came by way of what was regarded as an appeal or appeals before a Mr Fitzpatrick. He gave his decision on 9th August 1994. It is convenient if I turn straight away to page 66 of the bundle before us when in dealing with the harassment he says in paragraph 23:

"23. I am prepared to give Mr Raven the benefit of the possibility that his unacceptable behaviour would have decreased had he been disciplined in August 1993, but I do not believe that it would have ceased altogether; he clearly did not respond adequately to the warning given by Mr Jennings nor did he take the equal opportunities training to heart. [Here are important words] I have therefore decided to reduce the penalty to a warning with dismissal suspended for 2 years."

Mr Fitzpatrick then went on to say in paragraph 24:

"24. In the light of the fact that Mr Raven already has a similar penalty on his record, I believe that dismissal is appropriate when considering the whole of his current discipline record.

25. I therefore reject Mr Raven's appeal."

By letter 9th August 1994, he wrote to Mr Raven saying that he had carefully considered Mr Raven's appeals, and said:

"As far as the charge of unauthorised absence is concerned, I believe that the case has been proven and that the penalty was appropriate being in mind the circumstances of the offence.

I believe however that, had disciplinary action been taken against you several months earlier for harassment, your unacceptable behaviour might have decreased but I do not believe that it would have ceased. I have therefore decided to give you the benefit of that possibility by reducing the dismissal penalty to a warning with dismissal suspended for a period of 2 years.

In connection with my decision to reduce the penalty for the harassment offence, I must go on to consider your whole discipline record. The dismissal for harassment which I have found to be unfair took effect from 29 June 1994. At that date your discipline consisted of a warning with dismissal suspended for 2 years for unauthorised absence. I believe therefore that dismissal is the appropriate response to your whole discipline record.

Whilst I have decided to overturn the dismissal decision for your harassment, the final outcome - your dismissal - in unaffected."

The way in which Mr Fitzpatrick had expressed himself in those crucially important documents was considered by the Industrial Tribunal. In paragraphs 31 onwards they deal with how, as they put it, "Mr Fitzpatrick endeavoured to explain his reasoning." In paragraph 34 they said:

"34. Mr Fitzpatrick appears to have put right some of the shortcomings in the whole process."

This clearly involves recognition and a finding by the tribunal there were shortcomings, but they then go on to say in paragraph 35:

"35. We accept Mr Fitzpatrick's evidence on this matter and having considered the matter as a whole, find that the respondents acted reasonably in deciding to dismiss the applicant and that it was well within the range of responses open to a reasonable employer."

Then, as it may well be they entertained doubts as to the correctness of their decision, they went on to say in paragraph 36:

"36. In case we are wrong on this matter and the procedural muddles perpetrated by the respondents render the dismissal unfair, we have considered an alternative analysis as follows."

They then set this out in following paragraphs.

I said at the outset that the judgment would be relatively short because today, this tribunal having considered the arguments before it, is unanimous in its concern at the decision and the way it was expressed. We do not find as a matter of law that the dismissal was necessarily unfair. But we do consider that there were matters including the effect of the muddles on the applicant which do not appear to have been considered adequately by the tribunal in the way it expressed its decision, as to lead us to the conclusion that this matter must be reconsidered by a freshly constituted tribunal.

This is one of the rare cases, in which the Employment Appeal Tribunal finds it necessary, without wishing to spell out precise words such as `perversity', to conclude that the decision below cannot stand and must be the subject of fresh consideration by an independent tribunal.