United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR S G MORT (Company Solicitor) Tetrosyl Ltd Walmersley Bury Lancashire BL9 6RE
For the Respondent	NO APPEARANCE BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE COLIN SMITH QC: This is an appeal by the employers, Tetrosyl Ltd, against the decision of an Industrial Tribunal held at Manchester on 28th May 1996, when the Industrial Tribunal held that the respondent, Mr Keating had been unfairly dismissed by the appellants but that he was guilty of contributory fault to the extent of two-thirds. Extended reasons for the decision were sent to the parties on 16th July 1996.

We have heard submissions today made to us by Mr Mort, a solicitor appearing on behalf of the appellants, and we have also considered the letters sent to us by the respondent who is in person and who is not present at the hearing before us today, but we have considered what he has had to say about the matter.

Before we rehearse the facts, we should say that the appeal is based on various submissions that are made to us, particularly the proposition that the Industrial Tribunal failed properly to apply the well-known British Home Stores v Burchell test, that the Industrial Tribunal wrongly sought to re-open factual issues and that the Industrial Tribunal failed to recognise, in particular, that the procedure conducted by the appellants could be fair, despite the fact that the respondent, Mr Keating, had not been interviewed, and that they failed to find that the internal appeal hearing had, in any event, cured any possible defect which there might have been in that regard, and that they had wrongly found that natural justice in the circumstances required that the respondent should be given the chance to confront and cross-examine his accusers, and finally, that they unjustifiably criticised the appellants for acting precipitately in regard to the disciplinary proceedings. That is no more than a summary of the submissions that were made to us by Mr Mort.

Before considering those submissions in any detail, it is necessary briefly to set out a summary of the facts as found by the Industrial Tribunal in detail in paragraph 4 of their decision, to which reference is made for the full details of the facts found. From those findings its appears that the respondent had been employed as a forklift truck driver for some seven years by the appellants. In circumstances as described by the Industrial Tribunal, on 24th January 1996 he was instructed to report to Mr Ashton's office with a witness to answer an accusation that he had been smoking on duty contrary to the rules of the workplace. Mr Ashton was the respondent's manager. Thereupon the respondent went to Mr Ashton's office, and according to the account given by Mr Ashton, Mr Neal, a supervisor, and Mr Poole, another employee, both of the latter of whom were present in office at the time, the respondent had then in anger assaulted Mr Ashton by throwing a punch at him, which had resulted in Mr Ashton being knocked on to the back of his chair and which caused a bruise or a lump on the side of Mr Ashton's head. There followed on the same day an investigation by the personnel officer, who took statements from Mr Ashton, Mr Neal and Mr Poole, and who then reported on the matter to Mr Crisp, the operations manager of the appellants, who having read the statements pronounced himself satisfied that the respondent had assaulted Mr Ashton, and dismissed him on 25th January 1996 for gross misconduct. A decision which was communicated to the respondent by letter by Mr Longworth, the personnel officer. The respondent was, according to the facts found, informed that he had the right of appeal to be exercised within 24 hours. The respondent did appeal and the appeal was heard some six days later. At that hearing, which took place before Mr Duggan, a site director of the appellants, the respondent was accompanied by Mrs Wynn. At the hearing of the appeal the statements of Mr Ashton and the two eyewitnesses, Mr Neal and Mr Poole, were read out to the respondent, in his presence of course, and the respondent gave evidence disputing that he had assaulted Mr Ashton and putting forward his account of the matter. Mr Duggan, having considered the statements and what the respondent had had to say about the whole matter, decided to confirm the respondent's dismissal for gross misconduct.

Having set out those facts, the Industrial Tribunal by paragraph 6 to 8 of its decision, set out its findings, which led it to conclude at the end of paragraph 8 that:

"... For all these reasons, the Tribunal considered that the respondents had adopted a procedure which was very unfair to the applicant and therefore considered that the dismissal of the applicant under these procedures was itself unfair."

It should be said that in paragraph 5 of the decision, although it had cited section 57(2) instead of section 57(3) of the 1978 Act, the Industrial Tribunal appeared to have had in mind the wording of section 57(3) of the Act, although the Industrial Tribunal did not set out the wording of the relevant subsection in full or at all. It also must be noted that the Industrial Tribunal nowhere made any reference either to the well-known case of British Home Stores v Burchell or to the Iceland test of the range of reasonable responses open to a reasonable employer in the course of arriving at the employers' conclusions.

In paragraph 7 and 8 of its decision, the Industrial Tribunal found that the procedure adopted by the appellants was unfair in a number of respects, namely:

(1) The failure of Mr Longworth to take a statement from the respondent, or to find out what his point of view was, with the result that when the matter went before Mr Crisp there was no statement from the respondent.

(2) The fact that the initial disciplinary hearing was unduly rushed, as was the appeal hearing, both taking place within 24 hours of each other.

(3) The fact that the respondent had no opportunity at the appeal hearing of confronting the witnesses who gave evidence against him or of cross-examining them. In the Industrial Tribunal's judgment that had the result that the appeal hearing had not in the particular circumstances rectified the flaws which they found to exist in the original hearing.

It was in those circumstances that the Industrial Tribunal reached the conclusion to which we have already referred that the appellants' procedure had been, as they put it, very unfair to the respondent, and that therefore the dismissal was in itself unfair.

We regard it as important to note, that having found the procedure very unfair for the reasons we have stated, the Industrial Tribunal proceeded in the opening sentences of paragraph 9 expressly to find that in effect the appellants had properly complied with the second test laid down in British Home Stores v Burchell. Thus the Industrial Tribunal stated in paragraph 9, in terms, that:

"... they were satisfied that on the evidence they heard there were ample grounds upon which the respondents could reach the conclusion that the applicant had thrown a punch a Mr Ashton, his manager."

It is clear therefore, in our judgment, from the Industrial Tribunal's decision, that but for the procedural defects which they found, they would have regarded the dismissal as being a fair dismissal.

In our judgment the Industrial Tribunal misdirected itself in a number of important respects. In our judgment the Industrial Tribunal considerably overstated the duty on the reasonable employer in a case of this kind. First of all it is clear on authority that in circumstances where an incident of violence has taken place in the workplace, it is open to an employer to take the view that it is quite unnecessary and purposeless to interview the employee concerned who is reasonably believed to be the aggressor before he is dismissed. This was the situation which the Employment Appeal Tribunal, sitting in Glasgow, had to consider in the case of Reid v Giltspur Bullens Transport Services Ltd Appeal No. EAT/549/78 where the Employment Appeal Tribunal held that the fact that the managing director in that case had satisfied himself from his own investigation that the employee concerned was the aggressor without having interviewed him, did not in any way render the procedure unfair in circumstances where there is an allegation of violence in the workplace. Lord McDonald dealt with a submission to the contrary as follows:

"We do not consider the fact that the managing director did not personally interview the appellant before he was dismissed affects this conclusion. If ever there was a case where such an interview would have made no difference this is it."

We consider that in the light of that decision, in the somewhat similar circumstances here, the Industrial Tribunal erred in holding that Mr Crisp had acted unfairly in any way, in not interviewing the appellant before dismissing him. Further, in our judgment, the Industrial Tribunal erroneously concluded that the employers acted unreasonably in not waiting for a period to pass before conducting their investigation. In our judgment, plainly this was a matter which called for immediate investigation. It was well within the range of reasonable responses for an employer to get on with the investigation at once and there was no good reason for delaying the matter. Next, in our judgment, the Industrial Tribunal was not justified in finding that the appeal procedure had not cured any defect in the initial procedure. In our judgment there was no evidence upon which the Industrial Tribunal could conclude, as they did, that there was any unfairness in fact caused to the respondent by reason of the fact that he had to give notice of appeal within 24 hours of his dismissal since the uncontradicted evidence was that the respondent had in fact given notice of appeal in time and of course his appeal was heard.

With regard to the appeal hearing itself, in our judgment, the only possible conclusion that the Industrial Tribunal could have reached, on the evidence before it, was that any defect in the original process was fully cured by the appeal hearing. The Industrial Tribunal based their finding of procedural defect and unfairness in the appeal hearing on the ground that Mr Ashton and the two witnesses were not present at the appeal hearing, so that the respondent was not able to confront them and cross-question them. But in our judgment, in so finding, the Industrial Tribunal put too high an onus on the reasonable employer carrying out a disciplinary hearing into misconduct of this kind. Thus in Ulsterbus Ltd v Henderson [1989] IRLR 251, the Northern Ireland Court of Appeal held as follows, and we read from the headnote of that case:

" The Tribunal had erred in suggesting that in certain circumstances it is incumbent on a reasonable employer to carry out a quasi-judicial investigation with a confrontation of witnesses and cross-examination of witnesses. While some employers might consider that necessary or desirable, to suggest as the Tribunal did that an employer who failed to do so was acting unreasonably was insupportable."

We consider this to be both good law and good sense, and the Industrial Tirbunal's finding to the contrary in the instant decision was, with respect to them, in our judgement equally unsupportable. At the end of the day, in our judgment, the true test remains that laid down by the third heading in British Homes Stores v Burchell, namely whether the employer operated a reasonable procedure which entitled them to say that they acted reasonably in dismissing the applicant, i.e. did the employer's procedure constitute a fair process. (See in particular the decision of Knox J in Fuller v Lloyds Bank [1991] IRLR 336 at paragraph 35 at page 338.) In our judgment looking at the appeal process here, it cannot be said that it did not rectify any earlier defect in the procedure, if there was any such defect. It was plainly a complete rehearing held by the site director, Mr Duggan, at which the statements of the witnesses were read out to the respondent and the respondent was able to give evidence to Mr Duggan disputing the contents of those statements. Having considered both sides, Mr Duggan upheld the dismissal. In our judgment this was demonstrably a fair procedure judged by the appropriate standards relating to natural justice to be applied in the context of a domestic disciplinary hearing such as this.

Accordingly, in our judgment, the true effect of the Industrial Tribunal's decision here, once the errors of law are extracted from it, is that the Industrial Tribunal were bound to have held applying British Homes Stores v Burchell that the tests laid down in that case were satisfied and that the appellants were making a response well within the band of reasonable responses in deciding to dismiss the respondent. Indeed, we repeat, that this is precisely what the Industrial Tribunal themselves appeared to have concluded in the opening sentences of paragraph 9 of their decision.

We should say further that we agree with Mr Mort's submission that the Industrial Tribunal erred in law in taking into account Mr Ashton's previous conduct in playing practical jokes on employees in deciding the question of the extent to which the respondent contributed to his own dismissal. In our judgment Mr Mort correctly submitted that it is the employee's conduct which falls to be considered, not that of the victim, in cases of this kind, unless there are any grounds for finding provocation or anything of that kind. The previous behaviour of the victim is not a relevant consideration. On the Industrial Tribunal's own findings, the respondent was well aware that Mr Ashton was not in any way playing a joke on him at the time. He knew quite well that he was being required to answer a disciplinary matter. In those circumstances, in our judgment, the Industrial Tribunal were bound to have concluded that the respondent's conduct in striking Mr Ashton, as they found he did, was completely unjustifiable and that he was entirely responsible for his own dismissal.

In the light of our findings set out above and our conclusion that the Industrial Tribunal were not justified in finding the dismissal to be procedurally unfair, we consider that the proper course here, in the light of the findings of the Industrial Tribunal, is for us to hold that there were ample grounds upon which the respondent could properly and reasonably reach the conclusion that the respondent had intentionally thrown a punch at Mr Ashton, his manager, during the course of a disciplinary meeting. In those circumstances, we consider that we can and should substitute a finding of fair dismissal, and accordingly the appeal is allowed and a finding of fair dismissal is substituted.