United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	NO APPEARANCE BY OR REPRESENTATION ON BEHALF OF THE APPELLANT


 


MR JUSTICE LINDSAY: This matter was listed to come on first at 10.30 today. It is now 25 to 1. The Appellant in this preliminary hearing is Mr G. Montague. Nothing whatsoever has been heard from Mr Montague to explain his failure to attend as yet. I am told that he is not established to be reachable by telephone or, indeed, in any other way, and so such attempts can be made to contact him are limited and have produced no response from him.

The decision appealed against is a decision of the London (North) Industrial Tribunal, under the chairmanship of Mrs J.R. Hill, in the matter Montague against Post Office Counters Ltd. The unanimous decision of the Tribunal was that Mr Montague's dismissal was fair.

The Applicant, Mr Montague, had been in person at the hearing before the Industrial Tribunal that took place on 29 and 30 September and 1 October 1997, and that led to a decision promulgated on 20 October 1997. Remarkably, the events here begin in August 1991 and the dismissal was in 1992.

Mr Montague presented an IT1 on 8 July 1993. It was met with an IT3 by Post Office Counters, the employer, on 10 November 1993 and one might think that, on that timetable, a hearing in September and October 1997 was lamentable. But the matter in fact, is far worse than that. In Mr Montague's absence and, of course, this being a preliminary hearing, in the absence also of Post Office Counters Ltd, the earlier history is not entirely clear.

It seems there had been at least one earlier IT1 and, it seems, there had been a hearing of two days in November 1992 that left the matter unfinished and that the Industrial Tribunal could not then offer further days and, in some circumstances which are not explained, there was some notice of discontinuance and then, either a fresh IT1, namely that of 8 July 1993 that we have spoken of, or possibly even yet another one, because there is some reason to believe that there were hearings on 14 and 15 February 1995.

At all events, in circumstances that we have not had adequately explained to us and which are not self-explanatory from the papers, the matter did not come to a hearing until September and October 1997. It does seem to be a disgraceful chronology, but whose fault it was, whether of either party or both parties or they and the administrators of London (North), one cannot say. One can only hope that if there was fault in London (North) and its administration, that steps are being taken to prevent its recurrence. That, however, is not really a subject we can usefully take any further.

We have indicated the decision of the Industrial Tribunal which is under appeal. Mr Montague has put in a Notice of Appeal, but before we go to that it is necessary, briefly, to set out something of the background. Mr Montague was employed in 1991 by Post Office Counters. In 1991 there was an incident, allegedly involving his use of abusive language to a customer. He was thereupon given a letter of summary dismissal. He successfully appealed against that dismissal but, at the same time, the Post Office also claimed that he had been in default, in relation to his accounts to the tune of some £4,445.67 and he was suspended by reason of that doubt. He was interviewed by the Police and later on he was charged with theft. He was called to an interview by his employer. It was convened to take place before a Mr Demorais on 26 March 1992. On advice, however, Mr Montague declined to attend. Mr Demorais went ahead looking into the allegation, inescapably, as it was, in Mr Montague's absence.

On 30 March Mr Demorais advised Mr Montague, by letter, that he would be summarily dismissed as the complaint had been found proved. Mr Montague appealed and the appeal was heard by a Mr Granville, the Personnel Manager for the Southern and South West Midlands districts of the employer.

There was then an appeal hearing before Mr Granville on 21 May 1992 and this time Mr Montague did attend with his union representative and it was an appeal hearing that lasted some two hours. After that, Mr Granville discussed with Mr Demorais and one other some points that had been raised at the appeal hearing, points raised by Mr Montague. Mr Granville concluded that Mr Montague had falsified accounts and had misappropriated funds and that the dismissal, therefore, should stand as from 31 March 1992. Finally, in this brief chronology, Mr Montague was acquitted of the criminal charge of theft in August 1992.

Now to go to Mr Montague's Notice of Appeal. It takes the form of quotations from the Industrial Tribunal's Decision and then comment on that, indicating various alleged defects in the position taken by the Industrial Tribunal. The first quotation is this:

"He further argued that for Mr Granville to hold a private discussion with Mr Demorais regarding his conclusions in dismissing at a time between the Appeal Interview and reaching his decision was a breach of Natural Justice".

And there Mr Montague draws attention to the case Campion v Hamworthy Engineering Ltd [1987] ICR 966. It has to be remembered that Mr Montague had not attended before Mr Demorais, which makes it, as it seems to us, not unreasonable for Mr Granville, having heard points made by Mr Montague that had not been laid before Mr Demorais, to mention to Mr Demorais that such points had been raised and to ask for comment upon them. It is to be borne in mind that, at that stage - the appeal disciplinary hearing - one is not concerned with formal legal proceedings, but with a process that has to be carried out inexpensively and flexibly by the officers of the employer. It is wrong to expect a rigid adherence in every respect to what lawyers after the event would have regarded as the best practice.

The Campion case does not, it seems to us, assist Mr Montague. There, the Industrial Tribunal was dealing with a situation in which the officer conducting the appeal, after the appeal was concluded, retired to another room for private deliberation with the dismissing officer and the Industrial Tribunal held, on the particular facts on the evidence before them in that case, that that gave a strong appearance of unfairness. For all that, the Industrial Tribunal said that they could not say that the appeal procedure there had been wholly unfair. One cannot elevate the Campion case into some general rule that never shall the person conducting the appeal speak to those who conducted the initial disciplinary hearing or to those who gave evidence at the initial hearing, in the absence of the Appellant. There is no such formal rule. Nor in our case can it be said that the contact that Mr Granville made with Mr Demorais and that the other was for private deliberation. The position is dealt with in the conclusions of the Industrial Tribunal. They say:

"The Tribunal considered that Mr Granville was an excellent witness: cool, calm and collected in presenting his evidence and in the way in which he had conducted the appeal interview. He was clear that, had any information emerged from his interview with the two managers that had not been considered earlier, he would have put that information to Mr Montague. There was clearly no want of natural justice in this regard."

That, it seems to us, disposes of Mr Montague's complaint that there had been here a serious breach of natural justice. The allegation had been made at the Industrial Tribunal. It had been gone into and that was their resolution of it and we find no error of law in that resolution.

The second point that Mr Montague raises is another quotation:

"He notes, as regards case handling, that there had been some procedural defects."

He says that that is an admission by the Respondent's appeal hearing manager, Mr Granville. It is far from every procedural defect that leads to a point that is of substance, still less that it is so substantial as to vitiate an employer's decision. The Industrial Tribunal here accepted Mr Granville's conclusion. What he said was this:

"Mr Granville drew the conclusion that, although he had some reservations about the way the case had been handled in detail and with the time-scales, he was satisfied that the procedures had been followed at appropriate authority levels and, more importantly, that Mr Montague had been given every opportunity to state his case before the dismissal was taken. Mr Granville therefore, drew the conclusion that his focus should be on the re-hearing of the case itself."

And at their paragraph 22 the Industrial Tribunal said:

"In this case, the Post Office had conducted a very thorough investigation with documentary evidence to support the conclusions. Mr Granville acted as a reasonable employer would act and was justified in reaching the conclusion that the Applicant had falsified the accounts and misappropriated funds as alleged."

So again, this is a point that was ventilated below. Not every procedural defect vitiates an employer's conclusion. Here, the point having been raised, the Industrial Tribunal nonetheless concluded that Mr Granville had been justified in reaching the conclusion that he did. Again, we discern no error of law.

The third defect that Mr Montague alleges, again by way of a quotation, involves this quotation:

"A document was produced to the Tribunal that was clearly an internal document prepared by POID for the purposes of the Solicitor's Department, summarising the circumstances of the falsification of accounts and missing money. Mr Montague claimed that this should have been made to him in circumstances other than the Tribunal proceedings, and that the absence of such document meant that there was a want of natural justice."

Mr Montague then cites Bentley Engineering Co Ltd v Mistry [1979] ICR 47, indicating that it was not enough that a man should have a chance to state his own case, but he must know sufficiently what was being said against him, so that he could put forward his own case properly. Of course we do not, in any way, question that proposition, but it cannot, in our view, seriously here be said, especially given the procedural history, that by the time this matter came to the Industrial Tribunal Mr Montague did not know just what was the case that was being put against him. There is, moreover, no evidence that the internal document referred to had been used contrary to Mr Montague's interests before the hearing of the Industrial Tribunal and, so far as concerns its use at the Industrial Tribunal, Mr Montague is able to identify, it seems, no disadvantage that he suffered by this document being received into evidence. There is no indication, either, that he asked for a ruling that it should not be accepted by the Industrial Tribunal.

It is far from necessary for an Industrial Tribunal expressly to deal with every single point that is mentioned and the fact that Mr Montague says that this Tribunal did not address this point of law carries him no distance, especially given that there was a conclusion that there had been no breach of natural justice in this matter. It seems impossible to regard any point of law as being inherent in the complaint that we are dealing with.

Next, Mr Montague says:

"As the dismissal charges were already the subject of Criminal Proceedings, it would have been fairer to hold internal Disciplinary Hearings after Court had properly examined all witnesses and evidence."

It is not a valid complaint that the process used could have been fairer. The question is, whether what was used was unfair? It does not assist to say that things might have been even better handled. It seems to us that one cannot say that there was any material disadvantage suffered by Mr Montague by having the disciplinary proceedings before the criminal court case. They were quite likely to be examining different evidence and different allegations and to say that it would have been fairer to do that carries Mr Montague no distance. Again, there is no error of law.

The final point in the Notice of Appeal, properly - so - called, is not easy to understand. What it says is this:

"The dismissal charges were not alleged or suspected and to state 'and I have concluded these charges are unfounded' as in dismissal letter, requires more than reasonable belief in guilt."

In fact, the Industrial Tribunal dealt with that sort of point in their paragraph 19:

"The Respondents argue that they had no alternative but to accept the paper investigation that was carried out, which disclosed that there were serious defects in the balance which showed a large amount of money was missing. They had conducted the investigation in accordance with British Home Stores v Burchell and Mr Granville genuinely believed the Applicant was guilty of the acts alleged, and it was on a reasonable basis that he formed that belief."

So there was a genuine belief that the Applicant was guilty and it was on a reasonable basis. That seems to dispose of whatever was intended by that last point.

So far we have dealt with the two-page Notice of Appeal, but, in addition to that, there are another six pages which are annexed to it. It is hard to regard those six pages as complying with the Practice Direction 2(3) at page 1623 of the current green handbook (Butterworths) which says:

"The Notice of Appeal must clearly identify the point of law which forms the ground of appeal from the decision of the Industrial Tribunal to the EAT."

But, if, generously, we treat that as being part of the Notice of Appeal (and we have read it and looked to see if there is any point of law possibly arguable that might emerge from it) we can find only one grain of wheat amongst the chaff, and that is this. It transpires that the hearing before the Industrial Tribunal should have begun on 26 September 1997, a Friday. Mr Demorais had apparently been available to give evidence on that day. Presumably, the Post Office would have made sure that he would have been called and would have completed his evidence that day. However, he was signed up to go on holiday from the Friday evening. Mr Montague did not know this until the Monday, which was the first actual day of the hearing, 29 September. Of course, by then Mr Demorais had gone on holiday and so, in his absence, an unsigned statement of Mr Demorais' evidence was produced to the Industrial Tribunal by the employer.

There is no suggestion that the failure to have begun on 26 September, the Friday, was other than some form of listing problem or other court difficulty. There is no suggestion that, for example, the Post Office procured that the case did not begin on the Friday. What Mr Montague says is this:

"No explanation as to why the Friday 26th September was cancelled has been given but it effectively prevented this witness being thoroughly and fairly examined at this last Tribunal hearing."

Does that amount to a procedural defect such as in point of law to justify the matter going further to a full hearing? We bear in mind that Mr Montague was a litigant in person. Even so, we conclude that there is no error of law of the substantial nature that we have indicated and the reasons for that are these.

First of all it is quite apparent that Mr Montague is well able to spot points for himself. If he had felt an objection was proper to be taken to Mr Demorais' unsigned statement being received, either because it was unsigned or because, Mr Demorais being on holiday, it would not be convenient to have it tested on cross-examination, or, indeed, if he was to claim that he was taken by surprise by its content, all those are matters, which to judge from his handling of the paper here, he would have been well able to argue for himself, there and then, and there is no suggestion that he did raise any such point.

Secondly, he could have asked that Mr Demorais should be required to make himself available after the rest of the case had been heard but before judgment, in other words, after Mr Demorais had returned from holiday, but before the decision. But there is no indication that he did any such thing.

Thirdly, we have to bear in mind that Mr Montague had failed to attend before Mr Demorais at the disciplinary interview and so what Mr Demorais had done and said paled into relative insignificance against what had occurred before Mr Granville. So it is hard to see that Mr Demorais' evidence was going to be of any great significance in the case.

Fourthly, it seems there had been no prior request to the Industrial Tribunal by Mr Montague for an order that Mr Demorais should attend. That is the only sure way of being confident that a witness on the other side will attend, unless that has been agreed between the parties, and there was no indication that it had.

Finally, beyond his stating that he was unable to cross-examine Mr Demorais (which as we have indicated is not strictly true, because he could have made an application that Mr Demorais be cross-examined after his return from holiday) there is actually no prejudice identified which he has pointed to as flowing from the use of the unsigned witness statement by Mr Demorais or from the absence of cross-examination of Mr Demorais.

So, doing the best we can in his absence, we find no error of law at any level and dismiss this matter without it going to a full hearing.