United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	FRED EDWARD JNR. (of Counsel) Cain & Abel Law Firm 239 Missenden Inville Road London SE17 2HX
For the Respondents	DAVID WOLFE (of Counsel) Messrs S J Berwin & Co Solicitors 222 Grays Inn Road London WC1X 8HB


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal brought to the Employment Appeal Tribunal in circumstances where an application alleging unfair dismissal and wrongful dismissal had been withdrawn by the applicant.

The applicant had been employed by the Hilton Hotel Group for a period of about 12 years when he was dismissed for misconduct. He brought a complaint alleging unfair dismissal and breach of contract saying, in effect, that he was wrongfully summarily dismissed and unfairly dismissed.

In a full IT1 he set out in considerable detail the nature of his complaint. He indicated that on 31st July his employer took a decision to dismiss him summarily without notice or payment in lieu of notice or accrued holiday pay because they were of the view that he was guilty of gross misconduct which he then set out. Essentially, the alleged misconduct was firstly that he had deliberately and fraudulently obtained monies from guests by adding on a handling charge by sending packages on their behalf by courier and, that secondly, he had reclaimed a particular sum in respect of a particular parcel sent by courier when that charge was being sent separately to the hotel's account.

He denied both those allegations entirely. He said that he had provided his employers with full explanations during their enquiries into the matter. He pointed out that the handling charge policy is and has been for a long time an accepted part of his employer's procedure. He said that past and present employees have confirmed that fact to him and that further particulars of that would be provided at the hearing. He said that any handling charge received by him had always been credited to the benefit of Hilton; and in the event that this has not been the case, it was specifically because any additional sum charged was a gratuity for the benefit of the employee only. He said, in relation to the specific incident, that he had simply never received the money as it had been alleged that he had, and that the words in a voucher paid out had been inserted after the event, and thus, the document was forged. He pointed out that he had endeavoured to supply his employers with evidence in support of his position, and indeed, as he put it, "I have the benefit of evidence in my favour from past employees and present employees." Notwithstanding all that, he complained that his employers had taken the decision to dismiss him and he believed that they had also been unreasonable in treating it as a sufficient reason for dismissal as, amongst other things, he did not believe that they had followed their own disciplinary procedure.

The matter came on for hearing before an Industrial Tribunal and the employers as the dismissal had been admitted, gave evidence first. Their only witness was an investigator who had carried out the investigation into the matters which led to the dismissal.

The evidence was challenged by Counsel appearing on behalf of the applicant in the normal way. There is no suggestion that the Chairman of the tribunal or any of the members of it or Counsel acting on behalf of the applicant failed in their duties. There is no suggestion of bias on the part of the Industrial Tribunal Chairman during the course of the hearing.

But what then happened was that the tribunal stopped after the end of the employer's case and asked to see both parties' legal representatives. In the privacy of their room, the parties' representatives were seen by the tribunal Chairman, and I think the lay members may have been present as well. During the course of that discussion, the Chairman let it be known that it was the tribunal's view that it was clear that nothing was likely to be said by the applicant which would alter the fact that as employers, the respondents had conducted themselves properly. They communicated that information to the legal representatives of the parties in anticipation that that information would then be provided to the lay clients. That information was effectively, as we understand it, provided to Mr Tsontzos, the applicant.

Not suprisingly, in the light of what he had been told, he believed that there was no point in continuing with his applications. Accordingly, encouraged, no doubt, by his Counsel who had heard what the tribunal had said, he indicated that he would be prepared to withdraw his complaint.

The only order that was made by the tribunal was that the application was dismissed on withdrawal.

It is obviously very rare for this court to intervene where an order has been made in those circumstances. But our overriding duty is to ensure that the parties have the justice to which they are entitled from the Industrial Tribunals.

The matter comes to us in circumstances in which we have a letter from the Industrial Tribunal Chairman explaining what happened. That letter is dated 14th May 1997. That letter indicates that it is the tribunal's normal practice to ask the parties to leave at the end of the case for the respondents in order to review with her colleagues what they had heard so far. The letter continues:

"6 ... Although we had not at that point heard evidence from the Applicant counsel had properly put to the Applicant's case to Ms Mahon through cross-examination. It was therefore clear from that that nothing was likely to be said by the Applicant which altered the fact that the Respondents as employers had conducted themselves properly. We all thought that the Applicant was likely to be unsuccessful as his claim was based purely on the fact he had not in fact acted in the way alleged not that there was no evidence from which the Respondents could reach their view that he had, i.e. it was based on a misunderstanding of meaning of unfair dismissal in law."

7 In accordance with my usual practice where the parties are represented I called in both advocates to summarise for them the current state of play as far as the Tribunal were concerned. I do not keep a note of such discussions ..."

It is axiomatic that justice must not only be done, but be seen to be done. There may be rare circumstances in which it is appropriate for an Industrial Tribunal to wish to see the parties' representatives in the absence of the parties themselves. But it seems to us that this was not an occasion for taking that step. If the tribunal had anything to say at that stage of the proceedings about their state of mind in relation to the prospects of success, then it was their duty, in our view, to do it to the parties themselves in the presence of their representatives.

We have no doubt that the reason why it was done behind the backs of the parties' was because the tribunal were aware of the dangers of letting people know before they have heard the whole of the case, what their preliminary views are. It would have been, in our view, a distortion of the doing of justice if the tribunal had expressed themselves at half-time in the way in which they did in the terms of this letter which we have seen. It could not have been clear to the Industrial Tribunal from the cross-examination that nothing was likely to be said by the applicant which altered the fact that the respondents as employers had conducted themselves properly.

The applicant in his IT1 was launching an assault upon the whole of his employer's case. He was saying that he had not done the specific act complained of; that somebody in the employer's organisation had forged a document; he was saying that in so far as monies were taken on top of the handling charge, that was a regular feature and practice of those who were in the concierge department of the Hilton Hotel Group; and until the Industrial Tribunal had heard his case and his witnesses, if any he might have to call, they were not and should not have been in a position to form any judgment about the prospects of success of the unfair dismissal complaint.

Accordingly, it seems to us, that the Industrial Tribunal have technically misconducted themselves in this case. They ought not to have seen the advocates behind the back of the parties; and they ought not to have arrived at the state of mind as recorded in the letter from the Industrial Tribunal Chairman before they had heard both parties give their evidence.

In those circumstances, we have no doubt that justice has not been done or been seen to have been done. On those grounds alone, we would have allowed this appeal and remitted the matter back for a full hearing.

But it goes further. Because the complaints which were being made by the applicant were not just of unfair dismissal, but also of wrongful dismissal. The test for wrongful dismissal is different from the test for unfair dismissal as this court has recently observed. In the case of wrongful dismissal, the employer, if he seeks to justify a summary dismissal must establish on the balance of probabilities that the employee committed the acts of misconduct relied upon. It is clear from the terms of the paragraph of the letter which I have read out, that the tribunal never had that matter in their mind.

We are unable to deal at the present time with breach of contract cases, and therefore, we would not be in a position to rule on that matter at this time. It is sufficient for us to say that the Industrial Tribunal, having misconducted themselves in this case, as we believe they have, the unfair dismissal and the wrongful dismissal cases must now be heard before a freshly constituted Industrial Tribunal who can be relied upon, we are sure, to do justice between the parties in an open and fair-minded way as happens in the vast majority of cases with which we are concerned. At the moment, therefore, we do not consider that Mr Tsontzos has had the justice that his complaints deserve, and he is entitled to have that case heard in a proper judicial manner.

Accordingly the appeal in this case will be allowed.

I will remit the matter back to a freshly constituted Industrial Tribunal. I will direct in the circumstances that the matter comes on for hearing as soon as is reasonably practicable, and if needs be, it may be that the tribunal would wish to give directions in the case, but that is entirely a matter for them, and I will give them no guidance on that issue.