United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W ROBINSON (of Counsel) (FRU Representative) 1 Gray's Inn Square Chambers of Carl Teper London WC1R 5AA
For the Respondents	MR I GRANT (Representative) Grant Associates 103 Arnos Grove Southgate London N14 7AG


 


MR JUSTICE MORISON (PRESIDENT): This is an appeal against the unanimous decision of an Industrial Tribunal held at London (North) on 19th February and 7th March 1997. Their decision was reduced to writing and is contained in an eight page written decision which was sent to the parties on 20th March 1997.

The background facts which need to be mentioned for the purpose of this appeal are as follows. The applicant/appellant, Ms Dalton, was employed by the respondents her former employers, London Catering Services Ltd, from July 1990 until her dismissal in July 1996. She started as a kitchen assistant and through her abilities was promoted to Unit Manager. She was earning some £12,000 a year at the time of her dismissal.

The respondent company provide catering services to various customers. The applicant was providing service to the Royal Aeronautical Society and was working to a Mrs T Conway Holland there. Her duties were to run the bar, manage the stock, do the involving, ordering and generally to manage the whole of the catering operation at the Society's Park Lane headquarters.

In 1995 the applicant became pregnant and returned to work on about 1st April following her maternity leave. When she returned she was unhappy about continuing in her then existing job. She felt that Mrs Conway Holland was not as welcoming as she would have wished, was not interested in her baby which was of course a matter of great interest and pleasure to her. She felt that in fact that Royal Aeronautical Society rather preferred her maternity replacement and were not particularly pleased to see her back again.

This led to a deteriorating relationship at the workplace. The applicant found it stressful carrying on her duties under these circumstances. It deteriorated to such an extent that she went off on sick leave on 2nd July due to stress and anxiety and she provided a medical certificate and on 12th July a further medical certificate for two weeks on the grounds of anxiety and depression.

There were various telephone conversations between her and the operations director of the respondent company. He eventually wrote to her on 15th July seeking a meeting on 18th July with him. He told her that she could bring a friend with her if she wished. She took advantage of that opportunity and attended the meeting. Towards the end of the meeting it appeared to the company that she was of the view that she could not go back to work. There was a recording made of that meeting and part of the recording showed that towards the end of it Mr Burke said "as we haven't got an alternative position you will be terminated on the ground incapacity ... with due notice and ... outstanding holiday day". The meeting concluded with the suggestion that Mr Burke put down in writing in a letter what it was he was saying and he agreed to do this and wrote on 19th July, the day after the meeting. He wrote thanking her for attending the meeting on 18th July, and confirming his understanding of the matters raised and the possible solution. Included within that letter he said:

"The period has extended [that is the period of sickness] to five weeks and you felt unable to foresee an end to this problem given the cause of your stress arises from the pressure of work. I explained the problems of covering your position to date and during the forthcoming holiday period and you expressed appreciation of the Company's problem. I explained that there was no suitable alternative position. I believe that you understood that in the circumstances the only reasonable course of action was to accept the fact that you would not be able to return to your job and that your contract would be terminated on grounds of incapacity."

There were then various further communications between herself and Mr Burke leading to a payment by the company to her of six weeks pay in lieu of notice, 12 days holiday pay, making a total gross payment of £1,938.47. It was offered in full and final settlement of her contract with the company. And as we understand the facts found by the Industrial Tribunal, was accepted by her on that basis on or about 1st August.

However, she went to the Citizens Advice Bureau and on 5th August wrote to the Chairman of the company, Mr Unsworth as follows:

"Dear Mr Unsworth,

As you will know my employment with the Company has been terminated on grounds of incapacity. I am now invoking the last stage of the Grievance Procedure as stated in the Company handbook and requesting a meeting with you to appeal against the above decision.

I look forward to hearing from you."

Mr Unsworth was away on holiday. On his return he responded, he said this:

"Dear Sandra

Thank you for your letter ...

I have looked at the correspondence between yourself and the Company, and it appears that you have reached an agreement that was mutually acceptable. This was then followed by a final settlement which was also accepted by both parties. There therefore does not appear to be a "procedure" in progress for which further stages are appropriate.

As an employee with six years service, who recently left, I would, of course, wish to know if you feel a sense of grievance concerning your period with the Company. I would therefore ask you to write to me detailing the points of concern.

I will be pleased to respond to them and, if necessary, arrange a meeting at a mutually convenient time."

She responded to that invitation on 5th September setting out her grievances. On 9th September the company wrote back thanking her for her letter and Mr Unsworth said this:

"From the tone of your letter you obviously feel aggrieved and this concerns me as I would wish you to look back on your time with LCS with happy memories. I suggest, therefore, that you phone [a named individual] and arrange a time to come to Counties House where you and I can talk through your situation then and now."

Before the meeting took place, Mr Unsworth had discovered that if the applicant was ready for work again and because of her good track record with them, there were two potential posts which might be suitable for her and which he would be willing to offer to her. Those vacancies were at a new venture which the company was running at the Commonwealth Institute. Accordingly, when he started the meeting on 26th September, he was no doubt of the view that he would have something positive to offer her. The tribunal's findings were this:

"15 Unfortunately although he though at first all was well with her, the meeting went disastrously. The Applicant wanted to complain about the Respondents' treatment of her, whereas Mr Unsworth wanted to move on and deal with the future. Effectively neither really listened to the other. We are satisfied that Mr Unsworth told the Applicant of the vacant positions, but that she did not take that information in. Because the Applicant thought that she was not getting through to Mr Unsworth she burst into tears, and shortly afterwards left the meeting."

Following that meeting, Mr Unsworth wrote to the applicant saying:

"Thank you for coming to see me yesterday but I am very disappointed with the outcome, especially in light of your decision to depart mid meeting.

I would, however, confirm that as you seemed now ready to resume employment, I offered you a position within the company. This you categorically refused."

Having set out the facts as I have recited them, the Industrial Tribunal reached this conclusion:

"17 Our conclusion is that the Applicant was dismissed on the ground of incapacity because she was not fit to do her work at the Royal Aeronautical Society - and at the time no other vacancy was available for her. Although dealt with fairly quickly, the dismissal was fair in all the circumstances and at the time agreed to by her. The subsequent meeting with Mr Unsworth did not constitute a formal appeal by her under the Respondents' Handbook for employees. It is most unfortunate that when the meeting occurred on 26 September Mr Unsworth and the Applicant did not listen more carefully to what the other was saying. It is particularly regrettable that the Applicant did not realise that Mr Unsworth was offering a position to her, and that when she got the letter dated 27 September she did not go back to Mr Unsworth and seek for more information about possibilities.

18 Our conclusion is that the Applicant was not unfairly dismissed, and so this claim fails."

Following a preliminary hearing, leave was given to the appellant to argue the points raised in the Notice of Appeal at a full hearing which has taken place today. The Chairman was invited to give his comments on one ground raised in the Notice of Appeal, and he said this:

"On the evidence we found that the Appellant's employment ended on 29 July 1996. The Respondents' disciplinary procedure provided for dismissals relating primarily to conduct and there was a grievance procedure also. In both cases any appeal had to be made within 7 days.

In this case the Appellant's letter appealing/raising a grievance was dated 5 August 1996 and was received and acknowledged by the Respondents' on 6 August 1996. The Respondents contended it was out of time, and the Appellant did not challenge this. We found it was out of time - by one day.

However the Respondents' sensibly agreed to deal with the letter informally as a grievance but the subsequent meeting on 26 September 1996 between the Appellant and the Respondents' Managing Director was a failure as set out at paragraph 17 of the Tribunal's decision."

On behalf of the appellant, Mr Robinson in a helpful and forceful submission submitted to us that the Industrial Tribunal had erred in law in the way dealt or failed to deal with the lack of an appellate process. What he submits to us based upon the well-known decision of West Midlands Co-operative Society v Tipton [1986] IRLR 112, was that where there is a contractual right to an appellate process as here, but the respondents deny the employee the opportunity of using that appellate process, then the dismissal will or might be regarded unfair. Reference was particularly made to paragraph 24 of Lord Bridge's speech in that case where he said this:

"A dismissal is unfair if the employer unreasonably treats his real reason as a sufficient reason to dismiss the employee, either when he makes his original decision to dismiss or when he maintains that decision at the conclusion of an internal appeal. By the same token, a dismissal may be held to be unfair when the employer has refused to entertain an appeal to which the employee was contractually entitled and thereby denied to the employee the opportunity of showing that, in all the circumstances, the employer's real reason for dismissing him could not reasonably by treated as sufficient. There may, of course, be cases where, on the undisputed facts, the dismissal was inevitable, as for example where a trusted employee, before dismissal, was charged with, and pleaded guilty to, a serious offence of dishonesty committed in the course of his employment. In such a case the employer could reasonably refuse to entertain a domestic appeal on the ground that it could not affect the outcome. It has never been suggested, however, that this was such a case."

What Mr Robinson says is that the type of case which Lord Bridge had in mind is very different from this one. Here, the tribunal were dealing with a long-serving employee against whom no criticism or complaint had been made, and who was being dismissed for incapacity. It was, therefore, he says, an obvious case in which every tribunal should have concluded that the failure to give her an appeal hearing was a fatal breach of procedure which rendered the dismissal unfair.

When it was put to him in the course of argument that the employers had effectively given the appellant the opportunity to raise her grievance with Mr Unsworth, he emphasised that there was a difference between what Mr Unsworth was prepared to consider on the one hand, and what an appellate process would have been concerned with on the other. He submitted to us that effectively the appellant never had the opportunity to challenge her original dismissal. That what the employers were doing was seeking to offer her, if that is what the evidence showed, an alternative position, but not in circumstances in which the original dismissal was to be cancelled.

He also submitted that they did not give sufficient credit in their consideration of the unfairness of the dismissal to her past service, nor did they enquire into, sufficiently, the efforts which were made to find her alternative employment. Those were matters which an appellate process would have enabled her to argue and might have resulted in her dismissal being cancelled.

Whilst we see the force of those submissions, we are not persuaded that the Industrial Tribunal has erred in law. We reject the further submission which was made to us that because the Industrial Tribunal have not rehearsed the line of authority such as West Midlands Co-operative Society v Tipton, we can assume that they have some way overlooked the potential importance of the need to have an appellate process, whether by virtue of contract, or by virtue of the guidance given by the relevant code of practice. It seems to us that on analysis that here there was very strong case for saying that the termination of the employment was, if not actually consensual, very nearly so. The parties came to terms in relation to the termination of the contract, and in relation to the compensation payment that would be made. The tribunal obviously were prepared to treat this as an actual dismissal case, rather than an agreed termination case, because otherwise they would have ruled it out on the complaint of unfair dismissal on that ground. But as part of the background circumstances against which the tribunal were looking at the employer's failure to hold an appeal, it seems to us that the tribunal were entitled to take that factor into account, precisely because the employers themselves, as the correspondence indicates, had regarded the question of the termination of her employment as effectively closed by the time she had raised her Notice of Appeal. Furthermore, in the light of the learned Chairman's note to which I have referred, it is reasonably clear that the Industrial Tribunal had well in mind the provisions of the Handbook and the terms and conditions of the appellant's employment, and her rights to an appeal. The fact is that she took the money, went to the Citizens Advice Bureau, purported to appeal the dismissal which had provoked the payment to her of the money, but had done so after the time limit for appealing had expired. In those circumstances, we can see nothing unfair in the approach of the company when responding her letter. As the Chairman said, it appears that she had reached an agreement as to the termination of her employment that was mutually acceptable, this was then followed by a final settlement which was also accepted by both parties, and therefore, there did not appear to be anything in progress for which further stages of any grievance procedure or appeal was appropriate. But despite all that, the employers nonetheless were prepared to see her to discuss her grievances and to offer her alternative employment.

Mr Robinson says that the company effectively did not listen to her, that is the finding of the Industrial Tribunal. He referred to the passage which said:

"15 ... Effectively neither really listened to the other."

But it seems to us that the Industrial Tribunal were well entitled to make the comment which they did which is that if she had not been listening to the offer which had been made to her at that meeting, she surely could have come back to the company when she received the letter of 27th September to which I have referred, and which that offer was specifically referred to. Therefore, having regard to all the circumstances, it seems to us that the Industrial Tribunal were entitled to arrive at the conclusion that having regard to equity and substantial merits of the case, the decision of the employers to dismiss, taken in the round, along with what happened in relation to the appeal/grievance procedure, was a response which fell within the band of reasonable responses of an employer. Accordingly, we are not persuaded that there is any error of law, despite Mr Robinson's able submissions, and we must dismiss this appeal.