United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M WESTGATE (of Counsel) Mr M O'Donoghue Paddington Law Centre 439 Harrow Road W10 4RE
For the Respondents	MISS C BOOTH QC Messrs Lewis Nedas & Co 24 Camden High Street London NW1 OJH


 


JUDGE PETER CLARK: On 14 May 1993 the Applicant, Miss Casey Hughes presented an Originating Application to the Central Office of Industrial Tribunals. She named two Respondents. The second Respondent, which had employed her until her summary dismissal effective on 19 February 1993; the first Respondent was a Director of that Company.

She raised four complaints; unfair dismissal; unlawful sex discrimination in the form of alleged sexual harassment by the first Respondent for which she contended the second Respondent was vicariously liable; unlawful deductions from her wages and a failure to provide written reasons for her dismissal.

The matter came on for hearing before the London (North) Industrial Tribunal on a total of five days spread over a period of one year between February 1995 and February 1996. The Industrial Tribunal upheld her last complaint, but dismissed the first three to which we have referred. Extended Reasons for that decision are dated 17 May 1996.

Dissatisfied with the Tribunal's decision to dismiss her complaints of sex discrimination and unfair dismissal she entered a Notice of Appeal to this Tribunal against those parts of the decision on 25 June 1996.

Below, the Industrial Tribunal had made a restricted reporting order (RRO) which covered the currency of the Industrial Tribunal proceedings. On 3 October 1996, upon the application of the Respondents, and without the consent of the Appellant, Morison J, then recently appointed President of the Employment Appeal Tribunal, made an RRO and directed that the appeal would be heard in private. We pause to observe that such orders were routinely made in appeals involving allegations of sexual harassment in the time of the former President, now Mummery LJ.

On 14 November 1996 the appeal came on for a preliminary hearing before a division of the EAT presided over by Judge Pugsley. In a short judgment delivered by Judge Pugsley the Tribunal dismissed the appeal against the Tribunal's decision to dismiss the complaint of sex discrimination, but permitted the appeal against the dismissal of the unfair dismissal complaint to proceed to a full appeal hearing.

Following that preliminary hearing the Respondents applied for the first Respondent to be dismissed from the proceedings, he not being a Respondent to the unfair dismissal complaint. That application was unopposed, and an order was duly made to that effect by the Registrar on 21 May 1997. Meanwhile, by letter dated 14 April the Appellant applied to have the RRO lifted on the grounds that the appeal in relation to the sex discrimination complaint had been dismissed. That application was opposed by the Respondents.

On 14 May the Registrar directed that the Appellant's application for the lifting of the RRO be taken as a preliminary point at the full appeal hearing.

RRO

In a case proceeding under the heading A v B (EAT/1063/96), a case involving a claim of sex discrimination based on allegations of sexual harassment of the Appellant on the grounds that she was a transsexual undergoing gender reassignment from male to female, Morison J made an identical order to the RRO in this case, one day earlier.

The substantive appeal in that case came on for hearing on 19 February 1997 before a division of the EAT on which I sat. We lifted the "in camera" part of Morison J's order, but preserved the RRO. Our judgment on the substantive appeal was then reserved. Before judgment was delivered News Group Newspapers Ltd wrote to the Appeal Tribunal challenging its jurisdiction to make an RRO once the Industrial Tribunal had promulgated its substantive decision.

That procedural point came on for hearing before Morison J on 17 June 1997. News Group were added as a party. After hearing full argument Morison J delivered his judgment on 27 June. Following a careful and detailed review of the relevant statutory provisions and rules governing the EAT's procedure, he concluded that the statutory regime and the rules did not permit the making of an RRO in such circumstances, and it should be discharged. He recognised that the EAT has an inherent power to make interlocutory orders, but did not regard it as a case in which to do so.

We have drawn the attention of Counsel appearing before us to Morison J's judgment in A v B. Mr Westgate relies upon it in support of his application for the lifting of the RRO in this case. Miss Booth QC for the remaining Respondent, having considered the judgment in A v B realistically does not maintain her opposition to lifting the RRO, and accordingly we revoked the order. We should also record that at the outset of the hearing we revoked the "in camera" direction, again by consent of the parties.

The Substantive Appeal

The Industrial Tribunal made the following findings of fact material to the unfair dismissal complaint.

The second Respondent (the Company) carried on business as clothing retailers with outlets nation-wide. The relevant shops were situated in the Covent Garden area of London. They were 1a Langley Court (1a), 2a Langley Court (2a) and a shop known as "Wild Woman".

1a was purchased by the Company from another Company, Goldbergs. The Appellant had commenced employment as a Sales Consultant with Goldbergs in November 1988. She subsequently transferred to the employment of the Company. Following acquisition of 1a the Appellant became Manageress of that shop in February 1991; 2a was purchased by the Company in December 1992, whereupon she became Manageress of both 1a and 2a.

There was some confusion on the facts as to whether the disciplinary procedure relied upon by the Company in its letter of dismissal dated 26 February 1993 applied to the Appellant. However, that confusion was resolved during the course of argument before us, and no point is now taken in this regard by Mr Westgate.

On 6 March 1992 a shop fitter, Mr Stamper, worked overnight at 1a. The Appellant stayed at 1a that evening, spending a good deal of time in the public house opposite with friends. At about 11 pm she and her friends went to 1a, causing some inconvenience to Mr Stamper. She arranged with him that he would carry on working without supervision, lock up 1a when he finished and put the keys through the letter-box of Wild Woman. She contended in evidence that this arrangement was condoned by senior management. That was denied. The Tribunal rejected the Appellant's evidence on this point. It also found that she had drunk to excess that night.

In September 1992 the Company sold Wild Woman; in December 1992 it purchased 2a and, as we have observed, the Appellant became Manageress of that shop as well as 1a.

On 12 February 1993 Mr Kelvin, the Managing Director of the Company, visited both shops and found that 1a was understaffed. It was the Appellant's responsibility to ensure that adequate sales staff were rotad. He ended up serving in the shop.

On 13 February he visited 1a to find the Appellant smoking on the shop floor in breach of her terms of service.

On 17 February the Appellant attended a management meeting. She appeared unenthusiastic. Mr Jarvis the Financial Director spoke to her. She said, according to his evidence, that she was looking for a job as a beautician. The Appellant denied that remark, but again the Tribunal preferred the evidence of the Respondent's witness to that of the Appellant.

The Appellant did not work on 18 February. Her deputy, Mr Brammer, was in charge of 2a that day. After locking up 2a he put the keys through the letter-box of 1a next door. They were in view of passers by. Someone removed those keys, used them to gain entry to 2a, and burgled that shop, removing all of the contents. The Company's losses were not recoverable under the terms of their insurance policy.

The next day the Appellant attended for work. She discovered what had happened. She informed Head Office. The police were called. They found that entry to 2a had been effected by means of a key.

It was decided that the Appellant should be called to a disciplinary hearing to be held at 7 pm that evening. She was told at 4 pm that the hearing would deal with the three earlier matters, staffing levels, smoking on duty and apparent lack of commitment shown at the staff meeting. Secondly, the burglary. There was a factual dispute as to whether or not she was told that she could bring an observer to the meeting. Again, the Tribunal preferred the Company's witnesses' evidence that the offer was made and refused. The Appellant said that no such offer was made.

The Tribunal found that at the disciplinary hearing she was given the opportunity to put her case on all issues. She said nothing.

She was given a final written warning in respect of the first three matters, she was then summarily dismissed on account of the burglary. In a letter of dismissal the reason given was "facilitating the theft of Company property and changing the established Company key procedure". The previous conduct covered by the final written warning was taken into account in reaching the decision to dismiss. There was no appeal against that decision. It was accepted by the Company that the Appellant was not reminded of her right of her appeal.

The Industrial Tribunal Decision

The Tribunal accepted that the reason for dismissal related to the Appellant's conduct.

As to the reasonableness of the dismissal they directed themselves in accordance with the well-known Burchell test.

They accepted that the Company had carried out a reasonable investigation and formed a genuine belief on reasonable grounds that the Appellant was guilty of misconduct in that Mr Kelvin concluded that the method of handling keys employed by Mr Brammer had been encouraged or condoned by the Appellant.

They rejected the Appellant's contention that there had been inconsistent treatment in that Mr Kelvin and another Director had condoned the practice of putting keys through the letter-box of Wild Woman when Mr Stamper was working at 1a on 6 March 1992. The Tribunal rejected the Appellant's evidence on that point, and anyway found that the circumstances were different. Wild Woman was some distance away from 1a; 2a was next door and obviously from the outward appearance under the same ownership.

Secondly, they did not accept that there was disparity of treatment in the application of the disciplinary procedure to Mr Brammer, when he was investigated for mishandling credit cards. He was exonerated. The Tribunal found that the basic requirements of a fair investigation took place in the Appellant's case. She was given an opportunity to state her case. The only flaw which the Tribunal found in the Company's procedure was in failing to remind the Appellant of her right of appeal. They nevertheless found that the dismissal fell within the band of reasonable responses and was fair.

The Appeal

Mr Westgate's attack on the Industrial Tribunal decision is limited to procedural matters. He accepts that he cannot challenge on appeal the Tribunal's finding that dismissal fell within the range of reasonable responses. Further, he takes no point on the Company's failure to remind the Appellant of her right of appeal, bearing in mind that the disciplinary hearing was conducted by three Directors of the Company, including the Managing Director, Mr Kelvin, and the Appellant's line Manager.

The particular grounds of complaint which he raises are:

(1) The Company made no attempt to formulate disciplinary charges against the Appellant.

(2) She was not informed of the possibility of the sanction of dismissal being applied to her following the disciplinary hearing.

(3) The Company relied upon the final written warning letter in deciding to dismiss her, although she was not given that letter until the disciplinary hearing itself.

It is said that these features indicate that the Tribunal misunderstood the requirements of a fair procedure and accordingly their decision was flawed.

We reject that submission. As Miss Booth points out, the Appellant's primary case was that she spurned the sexual advances of a Director of the Company, and as a result was dismissed. That case was wholly rejected by the Tribunal on the facts.

In our judgment the Tribunal reached permissible findings as to the fairness of the procedure employed by the Company in reaching the decision to dismiss the Appellant.

As to the three specific points made by Mr Westgate:

(1) We are not prepared to go behind the Tribunal's finding of fact that the Appellant was informed of the nature of the case against her.

(2) She must have realised that the disciplinary hearing was a serious matter. She chose to say nothing in her defence or by way of mitigation.

(3) The Tribunal was entitled to conclude that the Company could take into account the matters which led to the final written warning in deciding that dismissal was the appropriate penalty.

In short, we can see no error of law in the Industrial Tribunal's approach. Accordingly, this appeal must be dismissed.