United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR G HOWARD (Solicitor) Peninsula Business Services Ltd Stamford House 361-365 Chapel Street Manchester M3 5JY


 


JUDGE LEVY QC: In this case Twinmar Ltd seek to appeal against the decision of an Industrial Tribunal sitting in Bedford on 3 June 1996, when they decided by a majority that a complaint by Mr G Scrivener was well-founded and that the Appellant, Twinmar Ltd., unfairly dismissed him.

The facts behind the appeal are comparatively simple. The Appellant was suspected of misappropriation of property: the matter was investigated by Mr Collins, a leading figure in the company. Having made the investigation, Mr Collins called the Respondent to a disciplinary hearing. He was called on three occasions; he would not attend, although he was offered the benefit, which was outside the company's rules, of having his solicitor attend with him. He would not attend because the person holding the enquiry was Mr Collins himself. The majority of the Industrial Tribunal found that this was a breach of natural justice in that the person who had made the investigations was going to be Chairman of the enquiry. It was for that reason that they found there having been no disciplinary procedure, the employee was unfairly dismissed.

Mr Howard who appears before us today suggests that that was wrong, because the Tribunal failed properly to consider the decision in British Home Stores v Burchell [1987] IRLR 379 although they said in their judgment they did. He has also referred us to a judgment of the Court of Appeal in Slater v Leicester Health Authority [1989] IRLR 16, where the majority of an Industrial Tribunal dismissed the complaint of unfair dismissal. There the majority held that the disciplinary hearing was not rendered unfair because Mr Sivewright was a witness and conducted the disciplinary enquiry which reached the decision to dismiss:

"... On appeal, the EAT held that it was open to Mr Sivewright to conduct the inquiry notwithstanding that he had seen the mark and that it was open to the Industrial Tribunal to conclude that that was not contrary to natural justice."

It must depend on the facts of every case as to whether a person who has some factual knowledge of it can take part in a disciplinary process. The Industrial Tribunal is the court which has to find the facts and to determine whether on the facts it is improper for a witness to act as judge in the disciplinary process. Then, having found the facts of what happened, the Industrial Tribunal found that there was a breach of natural justice. That, in our judgment, is a finding that they were entitled to come to on the facts and therefore, in our judgment, the majority view was one properly reached. Burchell was properly applied. It does not seem to us that this appeal can succeed on any grounds shown in the Notice of Appeal or supported by submissions to us and we will therefore dismiss it at this stage.