United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 767_95_2401

Appeal No. EAT/767/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 24 January 1996

THE HONOURABLE MR JUSTICE TUCKER

MR E HAMMOND OBE

MRS M E SUNDERLAND JP

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MR A SPURGEON          APPELLANT

RUSSELL & BROMLEY LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant APPELLANT IN PERSON


 


MR JUSTICE TUCKER: This is a Preliminary Hearing ex-parte of an employee's appeal against a decision of the Industrial Tribunal sitting at Southampton. There had been a two day hearing on 27 April and 3 May 1995, before the Tribunal unanimously decided:

"1. The applicant was not unfairly dismissed.

2. He was not unlawfully discriminated against on the grounds of his sex."

The Appellant had applied to the Industrial Tribunal on those two grounds. First that he had been unfairly dismissed and second, that he had been unlawfully discriminated against on the grounds of his sex. He had been employed by the Respondents, Russell & Bromley Ltd since 1983. He was appointed a Branch Manager in 1987 and it was on 4 October 1994 that he was dismissed.

In their Notice of Appearance to his application, the Respondents admitted that he had been dismissed and gave as the reason for it this:

"Mr Spurgeon's conduct has been such that the Company could no longer have confidence in him as a Branch Manager and trust him to manage the business in its own best interests, which very much must include the interests of the staff concerned."

These grounds arose out of a very unfortunate record which the Appellant had acquired in his employment. It arose out of his relationships with a number of young women. The circumstances were set out in the letter dated 14 October 1994 which accompanied his dismissal. During his time as Manager at the Respondents Southport Branch he became emotionally involved with the Deputy Manager, a Miss Ward. He did not as company policy required, inform his Area Manager of this. The company nevertheless did their best to accommodate him. He and the young woman concerned had apparently planned to move down to the West Country and so positions were found for them both in that area. However, shortly after being appointed to Exeter as Branch Manager, the Appellant's relationship with Miss Ward broke down. Only four weeks expired before he formed an intimate relationship with another member of the staff in Exeter, a Miss Williams. He married Miss Williams who had his baby. He was given warnings about his conduct. In due course he was appointed Branch Manager in the South of England where he was at the time of his dismissal. He was seen by the Area Manager to appear to have a personal relationship with a Miss Rickman at that Branch, a member of his staff. When he was interviewed he revealed that there was a fourth lady who had also to some extent been involved with him, a Miss Sturgess, who according to the Appellant had left in April 1994 declaring that she was in love with him.

It seems to us that the employers were confronted with a number of romantic liaisons, to which this Appellant had been a party. They had been careful to warn him of their policy in that regard. Warnings which the Tribunal found the Appellant had not heeded. Their findings were as follows, at Paragraph 8 where they found as a fact:

"... that it was well known amongst managers in the employment of the respondents that they should not have a personal relationship which would compromise their positions as managers, but that if they did then they must tell the next layer of management so that they were aware of the position and could take such steps as they thought were appropriate."...

That seems to us to be an entirely commonsense view for the employers to take, and we are faced with that finding. We have no doubt that the Appellant was aware of the rule as the Tribunal found. What gave rise to his dismissal was this: the Area Manager, Mr Barrett, received certain information and became concerned as to whether or not the Appellant might be carrying on a relationship with the member of the staff to whom we have already referred, Lisa Rickman. Mr Barrett commenced investigations. On one occasion he arrived early; he could not get into the shop, but he discovered the Appellant and Miss Rickman having breakfast together in the Staff Room. Their demeanour was embarrassed. Later that day he found them talking animatedly, though they separated when they saw him. He saw Miss Rickman leave work early and the Appellant told him that she had done so because she was stressed out.

As a result of the enquiries that he had made and the observations which he had seen, Mr Barrett formed the view that there was a relationship between the two of them. He did not carry out any further investigations but he did interview the Appellant on 22 September. Initially the Appellant denied having any relationship with Miss Rickman, but eventually he admitted that they were friendly. He said it was not a romantic relationship. The Tribunal justifiably said that they were left to wonder why, if it was a harmless friendship, the Appellant found it necessary to deny the matter initially. They said at paragraph 30 of their decision:

"It is clear that at the meeting on 22 September 1994 Mr Barrett had some difficulty in getting the truth out of the applicant and we believe the employers were entitled to assume that the trust and confidence that they must repose in their managers had been undermined apart from Mr Barrett's observations which suggested that the relationship between the applicant and Lisa Rickman had crossed over the line from being a harmless friendship to one which might compromise the applicant's position as a manager."

The Tribunal in their carefully worded decision approached the matter according to legal principles. They reminded themselves that it was not for them to substitute their decision for one which the employers had reached. They reminded themselves that they had to examine whether or not the dismissal fell within a reasonable band of responses, because if it fell outside that band, then it would be unfair, and they reached the conclusion that they could not say in the circumstances and bearing in mind the history of the matter, that the dismissal was outside the band of reasonable responses.

In our opinion the question of sex discrimination was a non-starter and the Tribunal dealt with it accordingly. They held the view, which of course was the right one, that a woman manager would have been treated in exactly the same way as the Applicant was treated, if she had placed herself in the same compromising position. The Appellant seeks to impugn the decision of the Tribunal and we have reminded him that before he can do so, he has to show an error in law, which of course can include the fact that the Tribunal reached a decision which was unsupported by the evidence, and can include the allegation that the Tribunal's decision was perverse, or that it was wrong in law in the approach which the Tribunal made.

In an admirably succinct Skeleton Argument for which we commend him, the Appellant who is now aged 28, set out his grounds of appeal. The order in which he took them was this: first of all that the Tribunal supported the Respondents contention that his relationship with Miss Rickman affected his work, despite there being no evidence of that, and despite the solicitor who then represented the Appellant, referring the Tribunal to the decision in Brocks Explosives v Montgomery, but there was, in our view, evidence from which such an inference could have been drawn. It was obvious that if a relationship of a romantic kind or one which crossed the bounds of near friendship was to take place between a Manager and a member of his staff, no direct evidence would be necessary to show that that would imperil the working relations between them. The second point he wished to make was that the Tribunal did not follow the guidelines contained in British Railways Board v Jackson in considering whether a reason had been shown for dismissing him, and whether that dismissal was fair. But from what we have already recited from the Tribunal's decision, it is perfectly apparent to us that the Tribunal did follow the proper guidelines. Next he contends that the Tribunal erred in relying on the letter to him from the Respondents dated 12 August 1989, which of course was some years before the events giving rise to the present dismissal. He refers to it as effectively being a lapsed warning. We do not take that view of it at all. The Tribunal were perfectly entitled to take into account his unfortunate romantic history, if it may be so described, with female members of their staff. The next point he takes is that the Respondents behaved inconsistently, regarding their concern that favouritism may occur. He refers to the promotion of one if not two sons of fathers who were in positions of responsibility with the Respondents. This case has nothing to do with favouritism. The present case has to do with the loss of trust and confidence which the employers should have in their managers, and in the breakdown of that trust and confidence due to their managers romantic liaisons with their female staff. Finally he complains that the credibility of Mr Peter Bromley is doubtful in stating that he would not reverse a decision made by a Mr John England-Crowther, regarding company matters.

All these are to a large extent questions of fact and credibility, to be examined by the Tribunal. The Tribunal did examine them. It is not for us to question the credibility of witnesses. That can only be done before the Industrial jury who are the Industrial Tribunal, not this Appeal Tribunal. Having examined the matter and heard everything that Mr Spurgeon wishes to address to us, we are quite unable to say that there are any grounds shown for an appeal against this decision. Nothing further could be urged if the matter went to a full hearing and accordingly we dismiss the appeal.