United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Appellant in Person
For the Respondent	No representative


 


MRS JUSTICE SMITH: This is the preliminary hearing of an appeal from the decision of an Industrial Tribunal sitting at London North on 15 and 16 December 1997. The decision was promulgated on 3 February 1998. The Tribunal dismissed the Appellant's complaint that he had been unfairly dismissed from his employment with the Department of Environment.

The Appellant had been employed as an administrative officer by the Respondents from March 1972 until June 1997 when he was dismissed for misconduct. On 18 October 1996, the Appellant was asked to attend a meeting with his manager, Mr Hines and Mr Hines' manager, Mr Crawshaw. The purpose of that meeting was to give the Appellant a warning as to the quality of his work, which had been causing concern to the Respondents for some time.

The Respondents' witnesses told the Industrial Tribunal that during this meeting, the Appellant made threatening remarks to Mr Crawshaw. These were threats of physical violence. After the meeting, this conduct by the Appellant was reported to the Personnel Department, who decided to investigate the matter. The Appellant was suspended. Statements were prepared by those present at the meeting, Mr Crawshaw and Mr Hines. Three other people provided statements, in which they said that they had heard the Appellant issue threats of violence to other employees.

The disciplinary hearing began on the 8 November 1996 before the Personnel Manager, Mrs Scott. The Appellant and his trade union representative were provided with the five witness statements and the case was adjourned to the 21 November 1996. The Appellant then put in his response, which amounted to an allegation that all five witnesses were lying.

The proceedings began, but after a while there was a break in the hearing and the Appellant and his representative withdrew for a short time. On the resumption, the meeting was told that the Appellant wished to changed his stance. He admitted that he had used the words complained of, but claimed that the words had been taken out context and had been misconstrued and misunderstood. At the end of the meeting, Mrs Scott reached the conclusion that the Appellant had been guilty of the misconduct as alleged. It was not for her to reach a decision as to penalty. She passed the papers to her superior, Mrs Winckler. However, Mrs Scott forwarded a recommendation that the Appellant should be dismissed.

Mrs Winckler considered the papers, formed the view that threatening words of this kind were quite unacceptable and decided to dismiss.

When the Industrial Tribunal had heard the evidence, they reminded themselves of the case of British Home Stores -v- Burchell 1980 ICR 303. They reached the conclusion that the Respondents had handled this disciplinary complaint properly and fairly. They considered there had been a proper investigation and a fair and proper hearing. They were satisfied that Mrs Scott and Mrs Winckler genuinely believed that the misconduct had occurred. They also thought that the penalty of dismissal was within the range of reasonable responses open to the fair employer.

When this Appeal was first lodged, it was accompanied by a hand-written letter, prepared by the Appellant himself. The only ground of appeal which clearly emerged from that letter was the allegation that the Chairman was biased against the Appellant, and had shown racial discrimination towards his representative, who we believe was Asian. In view of this allegation, the Appellant was asked to provide an affidavit setting out his allegations of bias so that the Chairman could respond. In response to that direction, the Appellant took legal advice and an affidavit was produced, sworn by him, which set out not only the allegations of bias, but also the grounds of appeal on which he wished to rely.

The first ground of appeal is that the Chairman failed to take cognisance of the guidelines laid down in the case of British Home Stores -v- Burchell to which we have referred. No further argument has been directed to that ground of appeal. However, we have reminded ourselves of those guidelines and are quite satisfied that the Tribunal considered and applied them properly.

Second, it is said that the penalty of dismissal imposed was not within the range of reasonable responses which a fair employer could have made, particularly having regard to the very long service of this Appellant and his good disciplinary record. It is submitted in the grounds that a formal warning would have been an appropriate response, but not dismissal. However, as the Chairman recorded in the Reasons and as we have re-ascertained today, the Appellant agrees, on a hypothetical basis, that if threats of physical violence were to be made by one employee against others, this would be quite unacceptable conduct which would warrant dismissal. His real complaint therefore as it seems to us, is with the finding that he was guilty of the misconduct, not with the penalty which was imposed.

Continuing therefore with the grounds of appeal, it is alleged that the Chairman was prejudiced and that the decision of the Tribunal was biased. Mr Andrews has urged us to apply proper standards of fair play and justice, which he claims were not applied by the Industrial Tribunal. The Chairman has had the opportunity to respond to the allegations of bias.

It is said first, that the Chairman allowed the Respondents' Counsel to ask leading questions, and today Mr Andrews has added that it appeared to him that the Chairman was on very friendly terms with the Respondent's Counsel. The Chairman responded that he has no recollection of Counsel asking any leading questions. The point was made during the course of argument by one of the members sitting on this Appeal Tribunal, that it is not only the Chairman who reaches the decision of the Industrial Tribunal, but also two experienced members. We are quite satisfied that any sign of friendliness between the Chairman and Counsel, (on which the Chairman has not had the opportunity to comment) could not and would not have influenced the views of the two lay members. We do not consider there is any merit in that complaint.

The next complaint of bias was that the Appellant's representative was interrupted, both during evidence in chief and during cross-examination. The Chairman has said that he had no recollection of that and he would not interrupt other than to elucidate a point. We asked the Appellant to provide us with examples of evidence which his representative had been unable to advance satisfactorily. He told us that he had wanted to say that on some other occasion, Mr Crawshaw had lost his temper once in the presence of the Appellant and had sworn and used bad language. That was the only example that was provided. It does not appear to this Tribunal that any criticism could be levelled at a Chairman who forstalled such evidence, which would be manifestly irrelevant to the enquiry on hand.

Today, the complaint on which Mr Andrews has laid the greatest stress is that the three witnesses, Miss Pearce, Mr Crozier and Mrs Choudhry, who had provided statements which were relied upon at the disciplinary hearing, were not called to give oral evidence before the Tribunal. However, the Tribunal saw the statements and this, submitted Mr Andrews, was contrary to the rules of hearsay evidence.

There are two answers to that complaint. The first is that the Industrial Tribunal is permitted under its rules to receive hearsay evidence. Second and in any event, the nature of the enquiry made by the Industrial Tribunal was whether the disciplinary hearing below had been fair and proper. It was not for them to consider the truthfulness of the content of the statement received. It was for them do decide whether Mrs Scott had honestly and reasonably reached her conclusion. Therefore no question of hearsay arises.

Mr Andrews also complained that Mr Crawshaw ought not to have been allowed to take any part in the conduct of the disciplinary investigation. It is not clear from the Tribunal's reasons exactly what part Mr Crawshaw played in the investigation other than to provide his own witness statement. However, we are prepared to accept from the Appellant that it was he who collected the three statements from Miss Pearce, Mr Crozier and Mrs Choudhry. Today Mr Andrews has suggested that these people were friends of Mr Crawshaw and that he, as it were, suborned them to make unfavourable statements against him. When asked what reason they would have for preparing statements which were false, he suggested that these people were against him because he would not join their drinking club. That explanation appears to have been advanced before the Tribunal and rejected. Moreover it appears that Mr Andrews withdrew the suggestion that the witnesses were lying, but now seeks to revive it.

Finally the allegation is made that the Tribunal failed to consider properly the truthfulness of the witnesses who testified on behalf of the Respondents. The Tribunal heard the witnesses and reached their conclusions of fact. This Appeal Tribunal has no power to interfere with the findings of fact of an Industrial Tribunal, unless they are perverse in the sense of being manifestly unreasonable or against the weight of the evidence or if there is no evidence upon which they could have been based. It is clear to us that there was evidence upon which these findings of fact could properly be based. Mr Andrews must understand that this Employment Appeal Tribunal only has jurisdiction to correct errors of law made by the Industrial Tribunal. We have listened very carefully to his submissions this morning and we are satisfied that no arguable point of law is raised on this Appeal. Therefore, this Appeal must be dismissed at this preliminary stage.