United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR M SHRIVES (Solicitor) Messrs Hammond Suddards Solicitors 2 Park Lane Leeds LS1 1ES
For the Respondent	MR TOM LINDEN (of Counsel) Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


JUDGE LEVY QC: An incident occurred on 20th November 1996. Mr A D Goodchild ["the Employee"] was one of a few of its employee working at a site where ICI Plc trading as ICI Paints ["the Employer"] had formerly traded. Most of the others persons on the site were employees of another company who were then working on the site in place of the Employer's staff. The Employee's job was not being carried out in pleasant circumstances because, as we understand it, he was better paid than the other Company's employees and his life was made miserable by them. This led to the incident taking place. After the incident, there was said to be a disciplinary hearing which was in fact a mere enquiry as to what had happened. This took place on 22nd November 1996. At that "event", if I can use that word, the Chairman was a Mr Graham. The Employee had a representative of his union with him who objected to what was to take place. His representative, as we understand it, though we may have the name wrong, was a Mr Shaw. After that enquiry had been determined Mr Graham indicated that he had decided that the Employee was guilty of misconduct and that he should be summarily dismissed. The Employee indicated he wished to appeal against Mr Graham's decision. An appeal against that decision was heard on 4th December 1996. At that appeal the Chairman was Mr Wilkinson. At the end of the appeal Mr Wilkinson confirmed the dismissal. The Employee then made a complaint to the Industrial Tribunal which dated 18th November 1996. He complained of unfair dismissal. His grounds of complaint were succinct:

"1. Breach of conditions, company did not follow agreed procedure.

2. Unfair punishment. The punishment is severe and did not fit the circumstances."

The Notice of Appearance by the Employer was dated 7th February 1997. The conclusion of 14 numbered paragraph was that:

"14. As the [Employee] was guilty of gross misconduct, the [Employer] was entitled to summarily dismiss the [Employee]. There is no breach of contract."

The dispute was heard by an Industrial Tribunal sitting at Flempton House at Bury St Edmunds on 7th and 28th May 1997. Mr Shaw represented the Employee. Mr Shrives, a solicitor, represented the Employer. Mr Shrives has appeared before us today. On this occasion the Employee has been represented by Mr Linden.

Of the two hearing days we understand that the first consisted of taking evidence and the first half of the second was taken up in submissions. The decision was promulgated on 13th June 1997. The unanimous decision of the Tribunal was that the Employee was unfairly dismissed, the compensation and remedy hearing was adjourned to a date to be fixed.

From that decision a Notice of Appeal came before a division of this Tribunal on a preliminary hearing, when the Employer was given leave to amend the Notice of Appeal within 14 days of 5th February 1998 and the appeal was allowed to go ahead. The Tribunal refused to make an order for the Chairman's Notes of Evidence. It was clear looking at the amended Notice of Appeal that matters of law arose for which those Notes were prima facie were not necessary.

At the heart of the appeal we think is the effect of what took place on 22nd November. The hearing on 22nd November 1996 was not what an employee in the position of the Employee was entitled to expect. It should have been a fact finding enquiry not a disciplinary hearing. That was recognised both by the Employer and by the Industrial Tribunal. What happened on 4th December 1996 was in fact the one and only disciplinary hearing given to the Employee; that was recognised again by the Employer and by the Industrial Tribunal. It was as a result of that, we think, that the Tribunal reached the decision which we think it appears to have reached that the hearing on 4th December 1996 was flawed. The reason we think the Industrial Tribunal thought it was flawed is because at that hearing, for the first time the Employee knew what case he had to meet and, in those circumstances and by that time it being the one and only hearing he was to get, an Employer of the size of ICI should have fully fleshed out the material it was to present so that there was a "proper" hearing for the Employee. The Tribunal at one part of its judgment appears to have found that the appeal hearing of 4th December 1996 correct the errors which had taken place as a result of the 22nd November 1996 being improper. They say this:

"10. However, at the appeal heard by Mr Wilkinson, we are satisfied that those procedural defects were cured. ..."

However, at paragraph 11 there is this sentence:

"... Given on our findings that the appeal was in effect there to, inter alia, cure deficiencies in the first enquiry/hearing by Mr Graham, it perhaps becomes self evident that a central issue then becomes in this case as to whether the employer acted unfairly or unreasonably in placing insufficient weight by way of, for instance, additional enquiry into these issues, before upholding the decision to dismiss."

The issues which are referred to in these issues are: The criticism has been levelled at the trade union that its representatives did not ask questions in this way or call in to gentlemen who had written statements. However, it is of course ultimately the Employer who is responsible for conducting as sufficient an investigation as is reasonable in all the circumstances before coming to a decision.

Mr Linden has suggested that what the Tribunal was pointing to was that there had been insufficient investigation at the appeal hearing as to the provocation which the Employee had endured before the incident took place which had resulted in another person on the site being struck four blows while he was seated with an injury which was not specific. Also Mr Linden submitted that at the appeal hearing there was insufficient enquiry as to the mitigation of the employee given the fact that this was the one and only time on the abbreviated structure which the Employer used on this occasion for the Employee to put his case. In those circumstances it is this submits Mr Linden that caused the Industrial Tribunal to reach the decision that it did, that the appeal hearing was sufficiently flawed to make the dismissal unfair. He refers us to a passage in the decision of this Tribunal in Byrne v BOC Ltd [1992] IRLR 505. It was a recitation first of all by Knox J of a passage from Whitbread & Co plc v Mills [1988] IRLR 501 at page 509 where Wood J said:

"'It would follow therefore that not every formality of legal or quasi-legal process is required during disciplinary and appeal procedures. Each set of circumstances must be examined to see whether the act or omission has brought about an unfair hearing.

If it has, then whether or not an appeal procedure has rectified the situation must depend on the degree of unfairness at the initial hearing. If there is a rehearing de novo at first instance, the omission may be correct, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a rehearing and not a mere review.'"

Knox J and his panel continued:

"No doubt the degree of unfairness of an initial disciplinary hearing is indeed likely to have an influence upon the ability of an Industrial Tribunal to find that the overall result of the dismissal process, which includes both stages, is that the dismissal was fair. We doubt whether there could ever be a combination of a somewhat defective initial disciplinary hearing and a somewhat defective appeal which overall amounted to a fair process.[This is the sentence that Mr Linden relied on.]"

This, Mr Linden suggested is what the Industrial Tribunal was intending to say here.

On the other side what Mr Shrives has submitted, and this set out in the Notice of Appeal, is what this Industrial Tribunal has done is to submit its own views of what a reasonable employer would have done in the circumstances, instead of applying the test which it is required to do by s. 98(4) of the Employment Rights Act 1996:

"(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)-

(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

Mr Shrives has taken us through a whole instance of points in the decision of the Industrial Tribunal to suggest that the eye of the Tribunal was often off the ball and had indeed substituted its own views. They run from a reference to the criminal law which appears to have been misplaced. The Industrial Tribunal seem to have suggested that a defence of "slow burn" provocation was now well recognised in the criminal law. We were referred to the decision of the Court of Criminal Appeal in R v Thornton No.2 [1996] 2 All ER 1023 which suggested that the reverse was the case.

However, what is to the point is the provocation which may or may not have led to whatever it is that the Employee did, is something which clearly had to be fully investigated and we are left in some doubt as to whether or not the Industrial Tribunal found that the investigation was sufficient.

We are not satisfied on the one hand that the Industrial Tribunal did in fact substitute its own view, but we are not satisfied on the other hand whether or not they found that the appeal hearing following the inadequate disciplinary hearing was in the circumstances sufficient to cure the defects.

In the circumstances we are of opinion that this judgment cannot be allowed to stand and, not without regrets for the Employee, we fear that this matter has to be remitted to another tribunal for a fresh hearing to take place.

We have not referred in this judgment to the many other authorities which have been cited to us in the course of this hearing because in our judgment this appeal succeeds because we are unable sufficiently, despite the help that Mr Linden has striven to give us, to understand the decision of the Industrial Tribunal. It is simply not clear enough for us to say that we know for sure why the Employer lost below.

We would thank the advocates for the help that they have given us during this rather long day.