United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS A MILLAR (of Counsel) Messrs Langley & Co Solicitors 199 Bishopsgate London EC2M 3TY


 


JUDGE PETER CLARK: This is an appeal by Miss Stevens, the Applicant before the Stratford Industrial Tribunal sitting on 17 January and 10 April 1997, against that Tribunal's decision to dismiss her complaint of unfair dismissal. Extended Reasons for that decision are dated 2 June 1997.

The Appellant commenced employment with the Respondent as a Sales Representative in February 1987. She was later promoted to Marketing Manager. On 24 May 1996 she was summarily dismissed.

The Respondents are general building contractors, run by the O'Malley family. Mr Eamon O'Malley was the Marketing Director; Mr Brendon O'Malley the Managing Director.

On 6 September 1995 the Appellant was admitted to hospital suffering from an eating disorder, chest infection and stress. She had seen a psychiatrist, Dr Best who recommended that she be admitted into hospital forthwith. Earlier in August 1995 she had been arrested for a drink/driving offence and faced a one-year disqualification from driving.

In mid-October 1995 Dr Best telephoned Mr Eamon O'Malley and asked him to visit the hospital because Miss Stevens required reassurance that her job was secure. On 21 November he made that visit. They had a discussion in the waiting room and the Tribunal found that during the course of that discussion there was an agreement reached between them that she would not have the day-to-day supervision of other Sales Representatives.

In January 1996 the Appellant returned to work and again, by agreement, worked part-time so that she could be eased gradually back into work. She was by then disqualified from driving and accordingly arrangements were made that she should cover Central London only.

By March 1996 she returned to work full-time but the Tribunal found that she had by then changed and was no longer the person she had once been. On 13 March 1996 Mr Eamon O'Malley spoke to Miss Stevens about her general attitude and about the cancellation of business meetings so that she could deal with personal matters. The breakdown between the Appellant and the Respondent continued until on 26 March 1996 the Appellant told Mr Eamon O'Malley that she had been to see a firm of Solicitors, who had advised her that the Respondent was acting in a way which amounted to a constructive dismissal if she were to quit the employment. Mr Eamon O'Malley then suspended the Appellant and in due course asked her to attend a meeting on 2 April. That meeting was subsequently adjourned and by this time she had appointed a firm of Solicitors to act on her behalf.

On 25 April Mr Eamon O'Malley wrote a detailed letter to the Appellant setting out various allegations against her and asking her to attend a disciplinary hearing on 29 April. That letter was copied to her Solicitors. They asked for a postponement and finally the disciplinary meeting took place on 24 May 1996. On that occasion the Appellant attended on her own and Mr Eamon O'Malley took the disciplinary hearing with a Solicitor present, who acted as notetaker. At the end of that meeting Mr Eamon O'Malley dismissed Miss Stevens on grounds which the Respondents said amounted to misconduct on her behalf.

Thereafter, on 8 June, her Solicitors wrote to the Respondent giving notice of appeal and asked in due course that that letter should stand as the basis and grounds of the Appellant's appeal. She did not wish to attend the hearing personally and was at that time unwell.

The appeal was taken by the Managing Director, Mr Brendon O'Malley. He had carried out some investigation of his own and he considered the evidence that was before him and, in due course, wrote to the Appellant's Solicitors on 21 August, confirming the decision to dismiss. By that time she had presented her complaint of unfair dismissal to the Industrial Tribunal.

Before the Tribunal the Solicitors on both sides made submissions on the procedural aspects of the dismissal. It is right to say that the Respondent had no formal disciplinary procedure but, perhaps on advice, created a procedure that they applied in the Appellant's case. The question was whether or not that was a fair procedure fairly applied to her. The rival contentions are conveniently set out by the Tribunal at paragraphs 19 and 20 of their Extended Reasons and we need not set them out in this judgment.

This appeal against the Tribunal's finding of a fair dismissal concentrates on a number of the Tribunal's conclusions in paragraph 23 of their Reasons, as to the fairness of the procedure used.

Miss Millar, who appears on behalf of the Appellant, first submits that the Tribunal misapplied the law or alternatively reached a perverse conclusion in relation to the disciplinary hearing conducted by Mr Eamon O'Malley. She submits that his decision could not be impartial in circumstances where he was judge, jury, prosecutor and investigating officer. The Industrial Tribunal considered that submission, which was made below, and concluded that ideally Mr Eamon O'Malley should not have conducted the disciplinary hearing. He was a witness to many of the incidents and carried out the investigation on behalf of the Respondent. However, they concluded that the other four Directors of the Respondent were unwilling or unable to conduct the disciplinary hearing and, in particular, in the case of Mr Brendon O'Malley, the Managing Director, he should be kept available if there was an appeal, as turned out to be the case.

It seems to us that this is essentially an industrial jury point. It was open to the Tribunal to consider and conclude, in all the circumstances of the case, that the dismissal was procedurally unfair by virtue of the fact that Mr Eamon O'Malley conducted the disciplinary hearing. They chose not to. That, it seems to us, is a matter within the Industrial Tribunal's purview. It is not something which amounts to a perverse finding.

The next point she takes is that the Appellant was not given a fair opportunity to respond to the case brought against her. She has referred us to the decisions of this Appeal Tribunal in Louies v Coventry Hood Co Ltd [1990] ICR 54 and Spink v Express Foods Group Ltd [1990] IRLR 320, in both of which cases Wood J emphasises the importance of employees being aware of the specific nature of the disciplinary charges brought against them. This point was taken below and is dealt with in paragraph 23(6) of the Tribunal's Reasons.

The Tribunal concluded that the Respondent had given the Appellant a fair indication of the charges against her, although some of them were set out in general terms. They concluded that the Respondent had given sufficient notice of the nature of the charges against the Appellant. Again, in our view, that is a factual question for the Industrial Tribunal, not a question of law for this Tribunal.

Even if the original disciplinary proceedings before Mr Eamon O'Malley were, contrary to the Tribunal's primary findings, unfair, the Tribunal went on to conclude that a fair appeal was heard by Mr Brendon O'Malley, who approached the matter with an open mind and further, and critically, the Tribunal concluded that that appeal was a re-hearing rather than a review, a distinction which is pointed out in this Tribunal's judgment in Whitbread & Co Plc v Mills [1988] IRLR 501.

Again, Mr Miss Millar attacks that finding. She submits that the Tribunal were wrong to conclude that it was a re-hearing because, as they put it, where she, the Appellant, insisted on relying on a written statement she cannot, in their view, claim that the appeal was not for that reason a re-hearing. Miss Millar submits that the Tribunal have failed to understand the point that was being made. The Appellant had agreed to her appeal being dealt with in writing but Miss Millar points to the letter from her Solicitor dated 26 June 1996, in which he asked that any further allegations be formally put to the Appellant and that the Appellant should have the opportunity to reply to those allegations, presumably in writing.

In our view the Tribunal did not misunderstand the nature of the dispute over the internal appeal. They plainly concluded that where the Appellant chose not to attend in person at the appeal hearing, it was not a fatal breach of natural justice for Mr Brendon O'Malley to take into account the results of his own investigations without formally putting them to the Appellant in writing.

It seems to us that, even if it could be said that the Tribunal were wrong in their approach to the original disciplinary hearing, there is no arguable ground of appeal against the Tribunal's further finding that the appeal was effectively a re-hearing and fairly carried out. In those circumstances any defects in the original disciplinary hearing stage were cured by the appeal process.

Miss Millar makes two further points, which we have considered, and we hope that we will be forgiven if we do not set them out in detail. They relate to a grievance, which the Appellant raised, and also the question as to whether or not the Industrial Tribunal was entitled to find that the parties have agreed a variation in the contractual terms and conditions of her employment during the course of the hospital visit by Mr Eamon O'Malley on 21 November.

We do not think that those matters raise any arguable point of law and, in all these circumstances, we have come to the conclusion that this appeal fails at this preliminary hearing stage and must be dismissed.