United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


JUDGE HICKS QC: Mr Lovett, the appellant employee, was employed by the respondents, Wigan Metropolitan Borough Council, until he was dismissed on 17th July 1997. The reason for his dismissal as found by the Industrial Tribunal was conduct. He had been employed from 1st March 1990, first as an assistant design engineer (mechanical), and then as an engineer (mechanical).

There are two distinct areas dealt with both in the decision of the tribunal and in Mr Lovett's appeal. The first concerns the terms on which he was employed, in particular in respect to the possibility of progression beyond Scale 6 of his original grade to a higher grade, SO1, and the second the disciplinary hearing which resulted in his dismissal for misconduct.

We propose to send this appeal forward for hearing on one specific point and I shall leave that until last and deal first with the points on which we find no arguable ground of appeal.

So far as the first area is concerned, that of the contractual terms, the position was that vacancies were advertised in late 1989 and the relevant line of the advertisement is simply "salary scale Sc4 - SO1, £8,967 - £13,824". There was then an interview at which, on Mr Lovett's case, the post was orally offered to him and he accepted that offer when received. But he does not and did not, as we understand it, before the tribunal rely on anything explicit in the oral exchanges at the interview as adding to the contractual terms. Following that offer and acceptance, as he puts it, there was then a letter dated 29th January 1990 which as to the issue of salary scales and progression reads:

"Your commencing salary will be £12,462 per annum within salary scale 4/SO1 (£8,967 to £13,824). This is a career graded post in which progression beyond scale 6 is dependent upon your gaining the appropriate qualifications and experience."

What is not apparent in that quotation, but is and was common ground, is that £12,462 per annum, the commencing salary, was at the top of SC4, namely at scale point 6 of SC4 and therefore represented what is commonly called the bar of that grade. Progression beyond it would be to SO1, a different grade. Therefore the reference to progression beyond scale 6 referred to that move from grade SC4 to grade SO1 and unless and until there was such a progression to SO1 there would be no increase of salary.

The decision of the Industrial Tribunal refers to that in at least two places as a "written offer" and Mr Lovett's first ground of appeal is that that could not be an offer because the offer had already been made at or at the close of the interview and accepted; this was merely confirmation. That may well be so as a point of the best expression in legal terms of what was happening, but Mr Lovett made it clear to us that he was not disputing that the confirmatory letter of 29th January 1990 could be looked at and was indeed important for the purpose of deciding what were the terms of his contract and, therefore, any mistake in calling it a written offer on the part of the tribunal cannot have led them into any error and it would be a fruitless waste of time to allow an appeal to go forward on that barren point of nomenclature. We therefore dismiss the appeal so far as it turns on that point.

There is a different point about the terms of the contract, which is the one which we do propose to send forward to appeal, but as I have said I shall come back to that at the end.

The other area concerns the circumstances of Mr Lovett's dismissal and in particular the disciplinary hearings which were held. The circumstances which led to that disciplinary hearing occurred on 5th June 1997. There was then the hearing and that was on 17th July 1997. Mr Lovett complains of the tribunal's treatment of that matter in various ways.

First he had required five witnesses to attend the tribunal hearing; they were witnesses as to the events of 5th June 1997. The employers called two witnesses at the tribunal; they were Mr Holden and Mr Pye who had taken part in, indeed had been parties to, the disciplinary hearing and to the decisions taken at it. Mr Lovett's objections in these two respects are really two sides of the same coin, because he objects that the tribunal refused to allow him to call the five witnesses as to what happened on 5th June 1997, and he conversely objects that what Mr Holden and Mr Pye had to say could not be evidence - they could not be witnesses because they were not present on 5th June 1997. In our view both of those objections rest on the same misapprehension, namely that what the tribunal was doing was hearing evidence so that they could decide what happened on 5th June 1997. I appreciate that Mr Lovett tells us that he understands perfectly well what the distinction is between the matter before the employer's disciplinary hearing, namely the events of 5th June 1997, and the matter before the tribunal, namely whether the employer had acted fairly in the way in which it investigated and reached a decision at the disciplinary hearing but nevertheless, unfortunately, in our view these two grounds of appeal really amount to the misunderstanding that the five witnesses could say anything relevant to the question before the tribunal on the question whether there was a fair conduct of the disciplinary hearings and whether the result of those disciplinary hearings was within the band of reasonable reaction of the employer, and that on the hand, that Messrs Holden and Pye could not give evidence relevant to that question before the tribunal. In our view there was nothing wrong in the tribunal's exclusion of the evidence of the five witnesses, nor in their reception of the evidence of Messrs Holden and Pye.

Moreover the five witnesses whom Mr Lovett wished to call were all persons who as he frankly accepts would be likely to be adverse to his interests and it is perfectly possible and understandable that the Chairman of the tribunal may well have thought that it would be a very unwise and dangerous procedure for Mr Lovett to call them. Whether that is so or not, it is not the main question; the reason given by the Chairman, and rightly, for the ruling on that point was that those witnesses could not assist on the question which was properly before the tribunal.

Then Mr Lovett complains that the tribunal gave one day for the respondents' case and only half a day to his case, but it was for the respondents of course to open and to call the invited evidence, because the evidence was in its province, as to the fairness of the conduct of the disciplinary hearings, and necessarily the witnesses called by it would take some time and Mr Lovett, as he accepts, had the opportunity of cross-examining them, presumably within the day in question.

Finally, on that aspect of the matter, he complains that Messrs Holden and Pye, the employers' witnesses, were referring to or reading from notes when they gave their evidence. It is the fact that in proceedings before an Industrial Tribunal the stricter rules which obtain in the Courts, or used to obtain in the Courts and still do largely in criminal cases, do not have to be followed and that witnesses are permitted to refresh their memory or to refer to documents. Mr Lovett had been served with witness statements from these witnesses. He had been served with the notes or minutes of the disciplinary hearings. He is not able to say and there is no reason to suppose that the witnesses in question were referring to anything outside that sphere or any documents which it would be improper for them to refer to. In any case, all that was well within the province of the Industrial Tribunal in its responsibility for the proper conduct of the proceedings before it.

We therefore see no arguable ground of appeal in any of those objections to the treatment by the tribunal of the area of misconduct and the conduct of the employer's disciplinary procedure.

That brings us back to the ground on which we do direct that this appeal proceed. It developed largely in the course of discussion between Mr Lovett and members of this tribunal in the presentation of his case and is not adequately or at all represented in his Notice of Appeal, and we therefore propose to order that the appeal proceed to a hearing on a ground which we have formulated and shall hand down. I shall read it, but not at dictation speed, because the document from which I am reading will be incorporated in our judgment and order and issued in legible form for everybody to see.

It reads as follows:

The tribunal erred in law in finding that under the appellant's contract of employment appointment to SO1 grade was "subject to the needs of the department", notwithstanding that no such requirement was contained in the term as to progression to that grade relied upon by the tribunal in paragraph 3 of its decision or even in a purported "contract of employment" sent to the appellant some four months after employment began and implicitly relied upon, although not so described, by the tribunal in its findings in paragraph 8 of its reasons.

We direct that the matter proceed to a full hearing on that ground.