United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR ON BEHALF OF THE APPELLANT


 


HIS HONOUR JUDGE PETER CLARK: This is an appeal by the Applicant before the Industrial Tribunal sitting at Nottingham on 22 April 1996 against that Tribunal's decision to dismiss his complaint of unfair dismissal against his former employers, Boots the Chemists Ltd. Extended reasons for that decision are dated 5 June 1996. The appeal was listed for a preliminary hearing today by notice dated 5 November 1996. With that notice was a letter advising the Appellant of the ELAAS pro bono scheme, which is in operation in this Court today. Mr Oliver Segal, experienced Counsel in this field, has made himself available at no expense to assist and represent unrepresented Appellants. This Appellant was asked to indicate whether he wished to use this service and he did not reply.

This morning at 8.50 am the Appellant telephoned these offices. He said that his legal aid had been withdrawn and added that he had car problems. He lives in Nottingham. He said that he would be unable to attend.

We are unimpressed by that excuse. It is the duty of parties to attend on the appointed day. In these circumstances, we have proceeded to consider the appeal on the papers.

The background facts are these: the Appellant was employed by the Respondent from 17 October 1977 until 26 May 1995, when he was summarily dismissed for alleged gross misconduct.

The relevant incident occurred on 24 May 1995. The Appellant was employed as a warehouseman. He was involved in an altercation with a fellow employee, Mr Sewell. The incident was reported by the Appellant's manager, Mr Davies, to the Distribution Manager, Mr Diamond. The Appellant was asked to attend Mr Diamond's office, which he did, with his shop steward. He was suspended until the next day pending investigation. Mr Davies then collected statements from those who apparently witnessed the incident.

There was a conflict of fact between the witnesses whose statements were obtained, Mr Sewell's account and that of the Appellant. Sewell said that he had received some verbal abuse from the Appellant and that the Appellant had grabbed his shirt and twisted it so that he could not breathe. He went on, the Appellant pulled him towards a trailer until Sewell's leg went between the trailer and the dock. At this stage two other people pulled the Appellant off. Statements were taken from two other employees who, apparently, confirmed that they thought the Appellant was the aggressor. The Appellant gave a statement to Mr Davies in which he accepted that there were verbal comments both ways but asserted that Mr Sewell slipped and fell and that the Appellant merely helped him up. He denied any assault. Mr Diamond arranged to see Mr Sewell the following day and was told on that occasion that at some earlier time the Appellant had used insulting language towards him and that about three or four months earlier the Appellant had slapped him in the face.

There was a disciplinary hearing convened on 25 May when the Appellant was represented by his shop steward. Although he initially denied grabbing hold of Sewell he later accepted that he had done so, but insisted that they were just messing about and that he had not shouted at or threatened Sewell. The Appellant suggested that a Mr Nunley had seen the incident and the Respondents obtained a statement from him, but it turned out that he was not present. Mr Diamond investigated further the incident when Mr Sewell said he had been slapped by the Appellant and after that inquiry the disciplinary interview was reconvened on 26 May. The Appellant said that he could not remember that earlier incident. Mr Diamond considered the matter and came to the view this was a case of serious misconduct such as to justify summary dismissal and he imposed that penalty.

The Appellant then appealed to Mr Stainton, the General Manager, Central Operations. That appeal was heard on 16 June. Having listened to the Appellant's account and considered the statements that had been earlier collected, he came to the view that Mr Diamond's decision was correct and he dismissed the appeal.

The Industrial Tribunal considered the matter in accordance with the well known principles in British Homes Stores Ltd v Burchell [1980] ICR 303 Note and concluded that the employer had carried out a proper and full investigation, that it had reasonable grounds for concluding that the Appellant had assaulted Mr Sewell and further came to the conclusion that the proper procedure had been carried out in the course of which the Appellant was dismissed and, further, that dismissal fell within the range of reasonable responses.

By his notice of appeal, Mr Graham sets out three grounds on which he asks us to permit this case to go forward to a full appeal hearing. First, he says that the Chairman of the Industrial Tribunal did not permit cross-examination of witnesses in relation to whom witness orders had been obtained. As we understand it, the Appellant wished to call witnesses whose evidence was unfavourable to him so that he could cross-examine them as to the facts of the material incident. First of all, it is not an appropriate use of the witness order procedure to compel the attendance of witnesses in order to cross-examine them and, secondly, as the Tribunal point out, their task was not to decide whether factually the incident had occurred in the way described by Mr Sewell and the witnesses or by the Appellant but rather whether the employer had reasonable grounds following a proper investigation for its belief that misconduct had taken place. Secondly, he complains that the Tribunal's reasons are inadequate in the sense described by Lord Justice Bingham in Meek v City of Birmingham District Council [1987] IRLR 250.

We have considered the reasons and we think that they are full and adequate. The specific complaint made by the Appellant is that the decision of the Tribunal did not reflect the various rulings that the Tribunal made in relation to evidence. We think this follows on from his first point and we draw attention to paragraph 6 of the Tribunal's reasons where they deal with the question of what evidence was admissible in relation to the issues before the Tribunal.

Finally, the Appellant complains that the Tribunal do not consider whether other steps should have been taken by the employer to obtain further information in relation to this incident. We note the Tribunal's clear finding at paragraph 7 of the reasons that the respondent carried out a proper and full investigation. It seems to us that that was a finding of fact, supported by the evidence with which it would not be proper for us to interfere.

In these circumstances we have come to the conclusion at this preliminary hearing stage that this appeal discloses no arguable point or points of law and, accordingly, it will be dismissed.