United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T LINDEN (of Counsel) Messrs Pattinson & Brewer Solicitors 30 St James's Street London WC1N 3HA
For the Respondents	MR J BENSON (of Counsel) Messrs Weighton Rutherfords Solicitors Richmond House 1 Rumford Place Liverpool L3 9QW


 


JUDGE COLIN SMITH QC: This is an appeal by the employee, Mr Doran, against a decision of an Industrial Tribunal held at Liverpool over three days between September 1994 and April 1995, when the Industrial Tribunal decided that the appellant had been fairly dismissed from his employment as a house manager by the respondents, Whitbread Plc, for gross misconduct on 9th February 1993. Extended reasons were sent to the parties on 30th June 1995.

As is clear from the Industrial Tribunal decision, the appellant was dismissed arising from findings by the respondents relating to an act of violence and a threat of further violence by the appellant towards the respondents' operations director, Mr Livingstone, at the Sticky Wickets public house on 22nd January 1993. On the occasion in question, on the findings of the tribunal, the appellant, whilst the worst for drink, was abusive to Mr Livingstone, became physically aggressive to him, and tried to strike him. He was physically restrained and removed from the premises. The incident had apparently arisen, according to the findings of the Industrial Tribunal, because the appellant had wanted to speak to Mr Livingstone concerning the termination of the appellant's wife's employment with the respondents. As the Industrial Tribunal found with regard to the way in which the matter was dealt with by the respondents, there followed investigatory meetings with Mr Wills, an area manger, on 25th and 28th January 1993; a disciplinary meeting on 2nd February 1993, conducted by Mr Breslin, an operations manager of the respondents, after which the appellant was summarily dismissed and an internal appeal heard by Mr Jepson on 19th February 1993, who having reviewed the evidence and made some further investigations, turned down the appeal. The Industrial Tribunal having, as is common ground, correctly applied the principles of the various relevant authorities, including British Home Stores v Burchell and the Iceland cases in particular, and the wording of section 57(3), to the evidence before them, concluded that the respondents had acted reasonably in dismissing the appellant for gross misconduct.

The single point taken on appeal concerns a submission by Counsel on the appellant's behalf, that the Industrial Tribunal in arriving at its decision, failed to consider or make any findings in relation to what is alleged to have been an important part of the appellant's case, namely that in imposing the sanction of dismissal on him in respect of the incident at Sticky Wickets, the respondents had acted inconsistently, unreasonably and with a lack of parity by comparison with the way they had dealt with an allegedly similar incident which had taken place at the Coronation Hotel the same evening, i.e., 22nd January 1993, and which had involved another employee Mr Dever of the same rank as the appellant and Mr Wills, an area manager, where no disciplinary action had been taken against Mr Dever, and also with regard to other allegedly similar incidents at the Delamere Inns in 1991 and/or 1992, where it was alleged that no disciplinary action was taken against area managers who had allegedly been "brawling", i.e., involved in some kind of fight or another.

It is submitted to us that the fact that the Industrial Tribunal made no reference to these incidents, apart from recording that the appellant's representative, Mr Allan, had raised the Delamere incident on the appeal before Mr Jepson, and made no findings under section 57(3) in relation to them, despite the fact that evidence was given about them and submissions made on the point, had the result that the Industrial Tribunal had gone wrong in law in that they had failed to deal with the point. Reliance was of course placed on authorities such as Post Office v Fennell, Hadjiuannou v Coral Casinos, Paul v East Surrey District Health Authority and Eagle Star Insurance Co Ltd & Others v Hayward.

It was pointed out by Counsel for the appellant, that in the IT1, apart from saying he was not guilty of violent behaviour, the appellant specifically raised the point of alleged inconsistent treatment in saying that "despite other people being accused of the same offence, was dismissed for gross misconduct." And that, additionally, that it is clear that he had attempted to raise the same point in the investigatory meeting on 28th January 1993, and was told by Mr Wills that the incident at the Coronation Hotel was not relevant. It was submitted that applying the well-known case of Meek the issue of consistency should have been dealt with by the Industrial Tribunal specifically, as part of its overall consideration of reasonableness under section 57(3). So it was submitted that that issue should be remitted to the same Industrial Tribunal for them to reconsider it.

Counsel for the respondents, Mr Benson, sought to meet that submission in two different ways. Firstly, he submitted that if one looks at the decision, and bear in mind the apparently careful notes of such evidence as there was which was given on the point before the Industrial Tribunal, it is implicit in the decision of the Industrial Tribunal that they dealt with the point on consistency. He reminded us, correctly, that consistency is only one factor in the overall balance of reasonableness, and that on a common sense view of the entirety of the evidence, as he submitted, the issue of consistency only formed a small part of what was a long hearing during which many other matters and issues were raised and considered. He submitted that whether or not the findings of an Industrial Tribunal are or are not sufficient within Meek must depend on the quality and strength of the evidence before them, and here, he submits, the very paucity and inadequacy of the evidence on the issue of consistency, as he characterised it, makes it clear that the Industrial Tribunal had dealt with the matter globally in its overall findings as to reasonableness. Against that submission, Mr Linden sought to contrast the considerable care the Industrial Tribunal had taken in setting out the law they had to apply in all other respects against their omission to cite any of the well-known authorities relating to consistency or in any way to set out the legal principles relating to such a matter as indicative of the fact that they had not or may not have considered the point.

We have concluded on this first point taken by Counsel for the respondents in an effort to meet the point made by the appellant on this appeal, that, applying Meek, it is the case here that the Industrial Tribunal should have dealt specifically with the issue of consistency and made the necessary findings in respect of it. We have sympathy for the Industrial Tribunal who clearly dealt with the case carefully and properly in all other respects, but in our judgment, although no doubt only one of many other complaints which were made, this complaint of inconsistency, which was in the forefront of the IT1, required sufficient express identification of the relevant principles of law and findings of fact in relation to the issue under the overall umbrella of reasonableness. So on this ground we must find that the Industrial Tribunal erred in law on what was otherwise an impeccable decision. A complainant before an Industrial Tribunal is entitled to be told clearly why he has lost; and here, unfortunately, in this respect, that did not happen.

We next consider Mr Benson's second submission, which was that, even making all allowances for any dispute on the evidence in favour of the appellant on the issue as recorded by the Chairman's notes, it is beyond doubt that the evidence given before the Industrial Tribunal, so he submitted, falls so far short of being capable of being brought within a category of conduct which could be said to be truly comparable with the conduct which upon the Industrial Tribunal's findings the respondents reasonably believed the appellant had been guilty of, so as to entitle the Employment Appeal Tribunal to reach its own findings in relation to it. He submitted that what it boiled down to was an unspecific and unparticularised allegation that there had been some instance of brawling between area managers at Delamere Inns in 1991 and 1992, and that there had been some kind of a fight or other incident between Mr Dever and Mr Wills, an area manager, at the Coronation Hotel later on the same evening as the incident at the Sticky Wickets. Even assuming, Mr Benson submitted, that Mr Beslin had not investigated the Coronation Hotel incident with Mr Dever, as Mr Beslin had said that he did, and even assuming, indeed, that had it been in some way swept under the carpet as Mr Dever suggested, neither incident, it was submitted, was capable of giving rise to an arguable allegation of inconsistent treatment. Thus it was submitted that we should exercise our powers under section 35(1)(a) of the Industrial Tribunals Act 1996 and ourselves make the appropriate findings in relation to this issue.

In our judgment that it is not a course which we should take in this particular case for the reasons largely given by Mr Linden. Firstly, it may be, unfortunately, that the relevance of the evidence relating to the issue of consistency was not fully appreciated, and thus the notes of evidence taken may not fully reflect the evidence that was given on the issue. Next, it would be wrong and unsafe, in our judgment, for us to approach the matter on the basis that we had resolved disputes of fact against the respondents, since that may itself be productive of unfairness and may indeed lead to a finding that the respondents had not properly investigated the matter. For these reasons, in our judgment, it is necessary that the issue of consistency should be remitted for reconsideration to the same Industrial Tribunal.

There was then an issue between the parties as to whether the Industrial Tribunal should be asked to deal with the issue on remission exclusively on the basis of the Chairman's notes of evidence, as Counsel for the respondents submitted; or whether, as Counsel for the appellant submitted, the same witnesses on each side but no others, should be allowed to give evidence once again on this issue alone before the Industrial Tribunal. Having considered the principles in Harvey Volume 4 at 1716, we consider that, in this particular case, we should not restrict consideration of the issue to the Chairman's notes of evidence. In our judgment, in order for the issue of consistency to be properly considered, it is necessary and appropriate for the evidence of the same witnesses to be heard again, so that the Industrial Tribunal, guiding itself by the relevant principles of law, can reach appropriate findings of fact in relation to it. It would not be fair, in our judgment, to either side, or indeed, to the Industrial Tribunal to limit the evidence to be considered on remission to that recorded by the Chairman, in circumstances where it may that the Industrial Tribunal did not appreciate the possible relevance of the evidence given before them.

Finally, we should say that whilst of course we express no view on the merits or otherwise of the complaint of inconsistency, we respectfully remind the Industrial Tribunal of the principles set out helpfully in Harvey Volume 1 at paragraphs 1035 to 1043, and in particular of the specific warning given by Waterhouse J in the Hadjiuoannou case as set out in Harvey at paragraph 1040 and as expressly approved by Court of Appeal in Paul v East Surrey District Health Authority. In particular, as those cases make clear, the emphasis must always be upon the particular circumstances of the individual employee's case, and it is only in truly similar and comparable situations where no or a different and lesser disciplinary action has been taken which can be regarded as capable of rendering a dismissal unfair. Even in such circumstances, it is only a factor on the overall issue of fairness which may have to give way to other more important factors. It is against those principles of law, together with the other principles set out in the cases and summarised in Harvey in the paragraphs to which we have referred, that the Industrial Tribunal will have to make its findings of fact and under section 57(3) in this particular case. Accordingly we allow the appeal and remit the single issue of consistency for reconsideration by the same tribunal on the basis set out in this judgment.