United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS H M COOGAN (Representative) Upper Street Citizens Advice Bureau 135 Upper Street Islington London N1 1QP
For the Respondents	MISS S GARNER (of Counsel) Office of the Solicitor (Ref: SLS/IT/OKUOKA) Department of Social Security Block 2, Spur R, Government Buildings Honeypot Lane Stanmore Middlesex HA7 1AY


 


JUDGE J HICKS QC: The Appellant, Mr Okuoka, was employed by the Respondent Department of Social Security as an Administrative Officer from 4 March 1996 to 25 April 1997, when he was summarily dismissed.

The ground of the dismissal was serious misconduct consisting of an incident in which, as the employers found, he had headbutted a colleague. Having been employed for only just over a year, his complaint to the Industrial Tribunal was not one of unfair dismissal under the statutory provisions but one of wrongful dismissal, that is to say straightforward breach of contract, and it is common ground on the basis of the arguments on both sides before us, therefore, that exactly the same rules of law and evidence applied as if he had sued the Respondents in the County Court.

The Chairman of the Industrial Tribunal, sitting alone, found that the Respondents were not in breach of contract and in his Summary Reasons he quite briefly, in paragraph 1, sets out the background and the allegations, and then in paragraph 2 rehearses the evidence which he had heard - all, except Mr Okuoka, from witnesses called on behalf of the employers, one of whom, in addition to the complainant, was an eye-witness of the event, and others of whom spoke of the surrounding circumstances and of complaints made by the complainant at or shortly after the event.

The Chairman, having rehearsed quite summarily that evidence, goes on:

"2. ... Mr Okuoka gave evidence denying the threat and the assault. Having considered the evidence I can find no reason why so many people should lie. There are discrepancies in the evidence but that is not unusual when people recollect events that happened quite quickly. I therefore find on the balance of probabilities that Mr Okuoka did assault Ms Majekodunmi as contended by the Respondents. That being so Mr Okuoka conceded at the beginning of the case that such an incident was sufficiently serious for him to be summarily dismissed and there is therefore no breach of contract in that respect."

And then in paragraph 3, the final paragraph, the Chairman goes on to a different point which is not before us.

Mr Okuoka sought to appeal and in pursuance of the rules the Chairman therefore produced Extended Reasons, of which paragraph 10, as we understand it (we have not checked every word exactly), reproduces paragraph 2 of the Summary Reasons dealing with this issue of fact which, on the face of it, is a straightforward finding of fact on the balance of probabilities on the evidence and amounts to a preference of the evidence of the Respondents' witnesses for that of Mr Okuoka.

In the Extended Reasons it is apparent that there had been submissions at the hearing as to onus of proof. At what stage those submissions were advanced is not stated, but the Respondents had submitted that it was for Mr Okuoka to show on the balance of probabilities that he had not headbutted Ms Majekodunmi, and Mr Okuoka had submitted that the onus lay on the employers.

On that point the Chairman in his Extended Reasons gives what amounts to a ruling in paragraph 9, saying:

"9. An employer is entitled summarily to dismiss an employee for gross misconduct and in such an event it is up to the employee to show on the balance of probabilities that the employer got it wrong if he wishes to establish a right to damages for breach of contract. ..."

Then he goes on to deal with the other point which is not before us.

Mr Okuoka's appeal came before a differently constituted panel of this Employment Appeal Tribunal for a preliminary hearing. The decision at that preliminary hearing was that the appeal should proceed on the basis of an amended Notice of Appeal, which abandoned all the grounds of appeal as originally framed and in place of them substituted a new single ground of appeal, which is in substance and essence simply that that ruling in paragraph 9 on the onus of proof was an error of law and a misdirection.

The Chairman should have held, it is said in the amended Notice of Appeal, that the burden of proof was on the employer to show on the balance of probabilities that he was entitled to dismiss summarily by reason of the employee's misconduct. That is the issue before us.

As Miss Coogan for Mr Okuoka accepts in her skeleton argument, the onus was initially on Mr Okuoka to prove a breach of contract and for that purpose he needed to establish the existence of the employment contract, the obligation to give reasonable notice on dismissal and the dismissal without notice. But, she says, and this is not in dispute, all those facts were common ground. There was an employment contract, it did require reasonable notice and his dismissal was without notice.

So, she says, that being common ground and the employer asserting gross misconduct as a justification for what would otherwise plainly have been a breach of contract by dismissal without notice, that assertion brings the employer within the proposition that he who asserts must prove, and it was therefore for the employer to prove the misconduct; the onus on that issue was on the employer.

Miss Garner disputes that proposition and submits that the Chairman was right because, since the employee is in the position of plaintiff asserting a breach of contract, the onus from beginning to end rests on the employee to establish that breach and if, as part of that breach, he has to negate the gross misconduct relied upon the employer still the onus is on him.

Neither Counsel has been able to direct us to any authority bearing directly on this point and we therefore approach it as a straightforward matter of principle and are of the view that the Appellant is correct in this respect and the Chairman was wrong. The matter is really so much one of first impression and of general principle that it is difficult to elaborate beyond the way Miss Coogan put it. He who asserts must prove. This was plainly a free-standing assertion by the employer to meet what would otherwise have been a plain case of breach of contract by wrongful dismissal and it was therefore for the employer to establish it.

But we then have to consider whether that misdirection must result, as it normally would, in our allowing this appeal or whether there are nevertheless reasons for sustaining the decision of the Chairman. That turns on the contents of what was originally paragraph 2 of the Summary Reasons and then became paragraph 10 of the Extended Reasons because if, on a fair reading of that paragraph, notwithstanding the misdirection, the only reasonable conclusion is that the Chairman was not in fact applying any concept of onus in reaching his decision at all, but was making a plain finding of fact by preferring the evidence of the Respondent, called by the Respondent, to that of the Appellant, then in our judgment it would not be right to allow this appeal and have the delay and expense of a re-hearing when, in truth, the error made by the Chairman did not affect his decision at all. Against the argument that that is the state of affairs here Miss Coogan very properly warned us of the danger that if a Tribunal of fact is in an error of this kind in law then, although on the face of that Tribunal's findings there may be what seems to be a plain finding of fact without regard to onus, one should beware of the possibility that, unconsciously, the Tribunal in reaching that conclusion is influenced by its error of law.

That is an argument which we understand and which we agree we should take into account. We have taken it into account but, having done so, we are nevertheless of the clear judgment that the way in which paragraph 2 of the Summary Reasons, repeated in paragraph 10 of the Extended Reasons, is worded does plainly and indeed forcibly show the course of the Chairman's reasonings and treatment of the evidence and convinces us that he quite plainly made a clear finding of fact on the basis of the preference of one set of witnesses for another and that, in truth, the excursion into the law of onus was unnecessary and irrelevant and had absolutely nothing to do with the conclusion which he reached. That being so, we dismiss this appeal.