United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS J A BELL (Solicitor) Messrs Anderson Strathern Solicitors 48 Castle Street Edinburgh EH2 3LX


 


JUDGE PETER CLARK: The respondent to this appeal, Mr Downie, was dismissed by the appellant Bank from his employment as a customer services manager on 6th January 1997 on grounds of his conduct, namely gross negligence.

The Leeds Industrial Tribunal hearing the respondent's complaint of unfair dismissal found that the dismissal was unfair for the extended reasons given with a reserved decision on 4th December 1997. Against that decision the Bank now appeals.

The tribunal found that the Bank had established a potentially fair reason for dismissal, namely his negligence in three respects:

(1) in persuading a fraud control manager, Stephen Lanchbury, who was himself later dismissed, not to go live with the CVC Security;

(2) in taking no action to warn senior managers after seeing a Europay security alert fax; and

(3) the Bank's belief that the respondent had deliberately failed to reveal his knowledge of that fax to investigating managers following the events of the week-end of 2nd and 3rd November 1996, when the Bank had suffered loss as a result of fraud which it believed the respondent ought to have taken steps to prevent in accordance with his general duty owed to his employer.

As to the question of reasonableness of the dismissal under s. 98(4) of the Employment Rights Act 1996 the tribunal concluded that the Bank had not carried out a thorough fair investigation, nor was the decision to dismiss based on reasonable grounds because the investigation was not fair and thorough.

They concluded that the dismissing manager, Mr Everett, had made up his mind that the respondent should be dismissed before holding a disciplinary hearing. That was such a flaw it could not be cured on appeal before Mr Moorhouse and then before Mr Van Zuyden, general manager.

Secondly, there was no proper investigation in that the respondent had consistently denied that he had deliberately refused to reveal the existence of the Europay security alert fax, and no proper investigation was carried out which could lead to the conclusion that the respondent had deliberately refused to reveal the existence of the fax.

However, the tribunal was satisfied that the Bank was acting within the range of reasonable responses of a reasonable employer in deciding to dismiss the respondent.

In our view this appeal raises a number of arguable points of law directed to those findings set out in paragraph 8 of their reasons. We would formulate the issues as follows:

(1) did the Industrial Tribunal substitute their own view for that of the employer in finding that it was unreasonable for the Bank to conclude, in face of the respondent's denial, that he had deliberately refused to reveal the existence of the fax to the investigators; and further, did the tribunal give sufficient reasons for that finding?

(2) Did the Industrial Tribunal fall into error in holding that procedural unfairness at the first line disciplinary stage could not be cured on appeal? See, for example, Byrne v BOC [1992] IRLR 505.

(3) Even if there were no reasonable grounds for the Bank's belief in the third ground of misconduct alleged against the respondent, were the first two grounds sufficient to justify dismissal, bearing in mind the tribunal's finding that dismissal fell within the range of reasonable responses? See the House of Lords analysis in Smith v City of Glasgow District Council [1987] ICR 796.

(4) Although the Industrial Tribunal found the respondent had contributed to his dismissal to the extent of 25%, did they fail to consider separately, see Rao v Civil Aviation Authority [1994] ICR 495, the question as to whether, if a fair procedure had been carried out, the respondent would have been dismissed anyway, or alternatively, assessed the chance that he would have been dismissed anyway under the so-called Polkey principle? See Polkey v A E Dayton Services Ltd [1988] ICR 142.

Accordingly, on these grounds we shall allow the matter to proceed to a full appeal hearing.

It will be necessary for the appellant to amend the Notice of Appeal to incorporate these four grounds for argument. We shall direct that a proposed amended Notice of Appeal be lodged with this tribunal within 14 days of today marked for my attention with a view to leave to amend being granted. We shall direct that this case be listed for a full appeal hearing of three to four hours. Category C. Skeleton arguments shall be exchanged between the parties no less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged at the same time with this tribunal. There are no further directions.