United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D IBEKWE (Representative) Public Transport Staff Consortium 315 Merran Road Brixton London SW2 1DP


 


JUDGE PETER CLARK: This is an appeal by Mr Williams against a decision of the London (South) Industrial Tribunal sitting on 22nd to 24th July 1997 dismissing his claim of "ordinary unfair dismissal". Alternative claims that he was dismissed for trade union reasons, or for asserting a statutory right, and also a claim for breach of contract, were withdrawn before the Industrial Tribunal. Further there is no appeal against the decision to dismiss his claim that the respondent failed to provide a written statement of reasons for dismissal. The Industrial Tribunal decision with extended reasons was promulgated on 5th November 1997.

The factual background is that the appellant was employed by the respondent Council as a Post Room Assistant from 11th November 1988 until his dismissal with effect from 3rd January 1997. In March 1996 two employees, Audrey Johnson and Beverley Rose, made separate complaints about the appellant's behaviour towards them. In each case the allegation was that he had verbally abused them.

An investigation was carried out by Mrs Roberts, Head of Community Services. It took too long, so the tribunal found, and was not completed until October 1996. On 25th October the appellant was informed that he must attend a disciplinary hearing.

Until early November 1996 the appellant was a member of UNISON, a trade union recognised by the respondent. He then left that union and joined an unrecognised union, PTSC.

PTSC sought representation rights at the upcoming disciplinary hearing. That was refused by the respondent, which limited representation to a recognised union representative or work colleague.

The disciplinary hearing took place on 3rd December 1996. The appellant attended on his own, presented his case, and then withdrew from the meeting. The respondent, through the Director of Education and Leisure Services, Mr Mott, decided to summarily dismiss the appellant for gross misconduct, and informed him of that decision by letter dated 3rd January 1997, pointing out his right of internal appeal.

The appellant at first indicated that he wished to appeal, but did not pursue the appeal, principally on the ground that he was not permitted representation at the appeal by PTSC.

It was the appellant's case before the Industrial Tribunal that there was a conspiracy by members of management to get rid of him. That claim does not appear to have been accepted by the tribunal, which found that the reason for dismissal related to the appellant's conduct in relation to his two fellow employees; that the respondent passed the well-known threefold Burchell test and that dismissal fell within the range of reasonable responses open to this employer.

They specifically rejected the contention that he had not been given a proper opportunity to be represented during the disciplinary process. The dismissal was fair.

In this appeal, Mr Ibekwe, his PTSC representative, advances the following grounds.

First, that the tribunal's conclusions expressed in paragraphs 25 and 26 of the extended reasons were not supported by the evidence. He has referred us to the fact that the appellant had no previous disciplinary record; he has sought to show that there are discrepancies between a statement made by the line manager for Johnson and Rose, Katie Kirby, and answers which she gave in the course of investigative interviews; and, he submits, that the tribunal did not properly apply the test under s. 98(4) of the Employment Rights Act 1996, and failed to follow the guidance provided by Browne-Wilkinson J in Iceland Frozen Foods v Jones [1982] IRLR 439.

In our view, this ground of appeal fails. In paragraphs 25 and 26 of their reasons, the tribunal drew together from their earlier findings of fact a conclusion that the respondent had carried out a reasonable investigation and had formed a genuine belief in the misconduct alleged, based on reasonable grounds. That deals with the Burchell test. They went on to find that the sanction of dismissal in these circumstances fell within the band of reasonable responses, one of the tests referred to in the judgment in Iceland Frozen Foods. Far from being unsupported by evidence, it seems to us that these conclusions were permissible conclusions to draw on the facts as found by the tribunal.

The second ground of appeal is, in effect, a claim that the appellant ought to have received pay in lieu of notice.

The difficulty with raising that matter on appeal is that such a contractual claim was not made in the Originating Application, nor by reference to the further and better particulars of the Originating Application does it appear there. The breach of contract of claim which in any event was withdrawn by the applicant before the tribunal, related to the question of representation at the disciplinary hearings. In these circumstances, it is not now open to the appellant to argue before this tribunal that he ought to have received pay in lieu of notice by way of a claim for breach of contract. Mr Ibekwe's submission that in some way s. 98(4)(a) of the 1996 Act covers a separate claim for pay in lieu of notice over and above such a claim in the context of an unfair dismissal complaint, is misconceived.

The third ground of appeal appears to rely on the proposition that it is for the employer to satisfy the test of reasonableness under s. 98(4) of the Act. As we pointed out in Boys and Girls Welfare Society and McDonald [1996] IRLR 129, no such burden has lain on an employer since the passing of the Employment Act 1980. In so far as there is a suggestion that the Industrial Tribunal misapplied the range of reasonable responses test on the facts of this case, we reject that submission.

Fourthly, Mr Ibekwe points to a number of procedural breaches which he submits must inevitably lead to a finding of unfair dismissal. Two of those breaches are referred to specifically in paragraph 28 of the tribunal's reasons, that is the delay which occurred in Ms Roberts' investigation, and he has pointed to the respondent's own disciplinary procedure which provides for a 30 day maximum before the disciplinary hearing takes place. And secondly, that at a time when he was still in membership of UNISON he was not permitted a trade union representative at a preliminary hearing held on 4th November 1996.

It seems that the Industrial Tribunal specifically took those matters into account, but we were not prepared to say in their judgment, that they rendered the dismissal procedurally unfair.

Mr Ibekwe has also referred us to the fact that the appellant was barred by letter from the respondent following his suspension, from contacting workmates either within working time or, it seems, outside working time. As a result, he contended at the disciplinary hearing held on 3rd December 1996, that he was prevented from properly preparing his case. Additionally, his new trade union, PTSC, was not permitted to interview workmates. The further point, again dealt with in paragraph 28 of the reasons, is that the respondent did not process a complaint made by the appellant against Ms Johnson. Again, a matter which the Industrial Tribunal took into account in reaching an overall view as to the reasonableness of the dismissal.

Procedural breaches may result in a finding of unfair dismissal. It is a matter for the Industrial Tribunal to determine whether or not they are of sufficient seriousness to lead to that conclusion. This tribunal decided that the procedural breaches in this case did not lead to a finding of unfair dismissal. We are unable to say that that was a perverse conclusion, or that it revealed any misdirection in law.

Fifthly, it is said that the Industrial Tribunal went wrong procedurally by refusing an application on behalf of the appellant for Mr Ibekwe who had given evidence at the start of the hearing, to be recalled in order to give further evidence as to the role of PTSC in this case.

It seems to us that that was a permissible exercise of discretion on the part of the Industrial Tribunal; indeed, having elicited from Mr Ibekwe the sort of evidence he would have given, we can see nothing wrong with that interlocutory decision.

Finally, he seeks an opportunity to adduce new evidence before this tribunal dealing with what he describes as comparable cases. We are told that the reason for not adducing that evidence below is that it was not possible to contact the UNISON trade union representative who was in possession of the necessary information.

We do not accept that explanation. We think that with reasonable diligence it would have been possible to have contacted that UNISON representative, even although we are told he was made redundant, during the year or more between the initial disciplinary complaint and the hearing of this case before the Industrial Tribunal. Accordingly, under the principles set out in Wileman v Minilec Engineering Ltd [1988] ICR 318, we decline to admit that further evidence.

We are grateful to Mr Ibekwe for the courteous and careful way in which he has presented the appeal. We have considered carefully each and every one of the grounds advanced, but we have come to the conclusion that they raise no arguable point of law such as to go to a full appeal hearing, and accordingly, we must dismiss this appeal at this stage.