United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS J WOODWARD (of Counsel) Messrs Horwich Farrelly Solicitors National House 36 St Ann Street Manchester M60 8HF
For the Respondent	MR R M L TYRRELL (of Counsel) Messrs Maidments Solicitors St John's Court 74 Gartside Street Manchester M3 3EL


 


JUDGE PUGSLEY: This is a case where there is an appeal against the decision of an Industrial Tribunal sitting at Manchester. We would like to say at the outset of our judgment, we have derived great assistance from the skeleton arguments in both cases. Secondly, if we may single out the attitude shown by Counsel for the respondent, Mr Tyrrell, as being in our view consistent with the highest principles of the legal profession in realistically conceding that he has some considerable difficulty in upholding this decision. It is in our view a mark of professionalism to temper understandable concern to put the best case that can be put against the fact that there is an obligation to a court or tribunal not to argue the unarguable.

The factual background may be very briefly narrated. The applicant was a busman. There was, as the chronology helpfully prepared by Miss Woodward sets out, an incident on the bus, as a result of which a fellow bus driver in the following bus submitted a report and one of the passengers herself telephoned. This took place on 19th June 1995. On 20th June 1995 there was an investigatory interview with a Mr Scott. On 20th June 1995, the same day, Mr Heyes was suspended. Thereafter, there was a disciplinary hearing. The driver was interviewed, the complainant was interviewed, and on 22nd June 1995 there was a disciplinary hearing which culminated in the dismissal. Thereafter there were a further two appeals processes, in which case the decision to dismiss was sustained.

The drafting of Industrial Tribunal decisions is a difficult and demanding one. It is easy to make glib criticisms which are totally unfair. But we are concerned that in this case the precise ambit of the issues that the tribunal were determining are not set out. In particular, in the originating application the claim was put, if we may say so, in a global form:

"1. Unfair dismissal

2. Breach of Contract

3. Redundancy Payment

4. Any other equitable relief which the Tribunal thinks just and equitable."

One has sympathy with any tribunal faced with such a widely drawn claim. But we are concerned as to whether or not the tribunal were purporting, we suspect they were not, to deal with the claim for wrongful dismissal. We say that because very different considerations apply for a wrongful dismissal case and an unfair dismissal case. Furthermore, we again are concerned that the tribunal have failed to set out that which their decision covers. Any Industrial Tribunal faced with trying a case of unfair dismissal have to be satisfied that the applicant is an employee and that there was a dismissal. But in considering whether there was an unfair dismissal, a tribunal has to go on to ask itself whether or not on the particular facts that employee contributed to that dismissal. Further, in that the tribunal reaches a decision that a dismissal was unfair by virtue of procedural deficiencies, whilst those procedural deficiencies, if they are outside the ambit of response of a reasonable employer, are not matters that go to the fairness of the decision to dismiss, they are central to the issue as to compensation. The tribunal having announced that the applicant was unfairly dismissed goes on to state:

"In default of agreement between the parties the hearing is adjourned to a date to be fixed with then applicant's claim for reinstatement or compensation should be heard."

It is not clear whether or not the issue of contribution was a live issue and one that the tribunal was considering. It is not clear whether or not the tribunal has decided that in that it based its decision on procedural deficiencies, it regarded those matters as having any causative significance in the assessment of compensation or not, or whether that matter was still to be heard and argued. It is a vital matter that the parties should know exactly what issues are being determined so that they can bring appropriate evidence. We make no criticism at all of Counsel in the case, since neither of them were involved.

In this case from paragraphs 1 to 21 the tribunal review the evidence called by both employer and employee. The Chairman expended considerable energy in setting out a very detailed narrative of the evidence that was called before the tribunal, and in paragraph 21 the documentation. What is absent from that comprehensive review is any real finding of fact about the evidence. The whole of the tribunal's reasoning is distilled into two paragraphs, paragraphs 22 and 23 of the decision:

"22. The Tribunal unanimously took the view whilst Mr Pilling had carried out a reasonable investigation on behalf of the respondents into the matter and come to a genuine belief that the facts had been proved against the applicant nevertheless the dismissal of the applicant was in the opinion of the Tribunal procedurally flawed. In the opinion of the Tribunal bearing in mind the age of the complainant and the fact the applicant throughout denied all the alleged physical and verbal abuse Mr Pilling should have obtained a written statement from the complainant and this should have been supplied to the applicant on or before the disciplinary hearing on 21 and 22 June 1995 rather than Mr Pilling purely recounting to the applicant what the complainant had told him. Furthermore at no time was the applicant provided with any copy of a statement by driver Jones and in the opinion of the Tribunal this clearly inhibited the applicant in his defence.

23. It was also clear to the Tribunal from the evidence that the decision to dismiss the applicant taken by Mr Pilling on 22 June 1995 was strongly influenced by Mr Pilling's reference at the disciplinary meeting to similar incidents in the applicant's record but the Tribunal noted and accepted that the applicant was not offered any real opportunity at that meeting to defend or refute these at the time. Finally the Tribunal unanimously concluded that in view of the fact that Mr Pilling had carried out all the investigations into the alleged incident on behalf of the respondent it was not right that he should have been involved in taking the disciplinary meeting on 21 and 22 June 1995 and personally making the decision to dismiss the applicant."

The tribunal went on to say that it was their unanimous decision that the dismissal was unfair and in default of an agreement the matter be relisted for the issue of compensation or reinstatement.

In her able skeleton argument, Miss Woodward points out that the tribunal does not refer to the test set out in s.57(3) nor summarised its wording in its reason for its decision. She furthermore points out that the tribunal do not at any stage ask themselves this question "was the decision to dismiss within the range of reasonable options open to an employer having regard to the criteria set out in s. 57(3)?" In the two paragraphs to which I have adverted, one looks in vane for any reassurance as to the tribunal's assessment of their own task. They do not at any stage state that their task was to ask the question - was the decision to dismiss, which has subsumed within it questions as to the fairness of procedure, within the range of response of a reasonable employer? On the contrary, having found that Mr Pilling carried out a reasonable investigation on behalf of the respondents to the matter and come to a genuine belief, they then go on to say that in their opinion the decision to dismiss was "procedurally flawed". They reiterate that in the opinion of the tribunal written statements should have been obtained, that a statement should have been obtained from Mr Jones and the applicant provided with a copy thereof, and they are critical of the fact that Mr Pilling himself both investigated and adjudicated upon the matter.

The tribunal could, we accept, have decided that this dismissal was unfair for these reasons as long as it made clear that it was not substituting its own view as to the procedure, or its view as a decision that should be taken, but was asking the question whether the decision to dismiss within the range of permissible options open to an employer.

Mr Tyrrell quite freely concludes that he is in difficulty in sustaining this decision because the tribunal has never set out that that is what its test was. And whilst, as he reminds us, the Retarded Childrens Aid Society v Day [1978] ICR 437 points out that care must be taken to avoid concluding that an experienced Industrial Tribunal by not expressly mentioning some point or breach has overlooked it, there are limits beyond which the dictum of Lord Russell cannot apply.

We have come to the view that this case fundamentally flawed for the reasons we have given. Having said that one goes on to say that the grounds for the concern that this tribunal had may lead a tribunal to come to the view that the decision to dismiss was unfair.

Miss Woodward has not put at the forefront of her submissions a suggestion that we could in fact decide that a dismissal was fair. As we say we would not do that, we think we would be guilty of substituting our own view and we would be falling into the very trap that Miss Woodward so eloquently stigmatised. It is therefore our direction that this matter goes back to a differently constituted tribunal to be reheard. We hope that when that takes place that those matters to which we have adverted as to clearly defining what is being considered and what issues the tribunal are determining, and what, if appropriate, they are reserving to a further occasion are set out.