United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R THACKER (of Counsel) Free Representation Unit 49-51 Bedford Row London WC1R 4LR
For the Respondents	MS D ROMNEY (of Counsel) Messrs Baker & McKenzie Solicitors 100 New Bridge Street London EC4V 6JA


 


JUDGE C SMITH QC: This is an appeal by Mr J. Garrett, the Applicant before the Industrial Tribunal, against the decision of an Industrial Tribunal held at Stratford in October 1996 and March 1997, when the Industrial Tribunal decided that the Appellant had been fairly dismissed by the employer, Lloyd's of London, by reason of conduct.

We have had the benefit of hearing able submissions on both sides from Counsel in this particular appeal. From the skeleton arguments and the submissions of Counsel for the Appellant, it is apparent that one of the main bases of the appeal is a submission that the Industrial Tribunal erred in law, in findings it made interpreting the Respondents' disciplinary procedure.

It is further said that the Industrial Tribunal should have concluded that there were defects in the disciplinary procedure which was followed, which led to the Appellant's dismissal which, putting it at its lowest, so the submission ran, may have rendered the dismissal unfair so that the appeal should be remitted back to the Industrial Tribunal. Reliance was placed, among other things, on the decision of the Court of Appeal in Stoker v Lancashire County Council [1992] IRLR 75.

It was further submitted that the Industrial Tribunal should have held that the internal appeal did not cure the defect and allegedly the unfairness in the original decision.

The Respondents submitted, by Counsel, that the Industrial Tribunal correctly held that the Respondents had complied with the disciplinary procedure, and correctly held that the Respondents had acted fairly and reasonably in their conduct of the disciplinary proceedings and in reaching the decision to dismiss.

The findings of facts are set out under the heading, "The material facts" in the Extended Reasons, principally at paragraphs 2 to 18, and reference should be made to those findings, together with other findings of fact that are to be found in other paragraphs of the Extended Reasons for the full facts found by the Industrial Tribunal, should this matter go further, because what we say is no more than a summary of the findings which the Industrial Tribunal have made.

In sum the Industrial Tribunal found that the Appellant had been employed by the Respondents at Lloyd's for 16 years until his dismissal on 29 March 1996, first as a liveried waiter and, subsequently, as head of the Respondents' post room. As head of the post room he had supervisory duties, supervising and training the seven staff in the post room.

On 25 March 1996, an allegation of gross misconduct was made against him by the Respondents, namely an allegation that he had made private phone calls from his place of work, knowing that he would not have to pay for them. The gravamen of the allegation, as found by the Industrial Tribunal in paragraph 4 of the Extended Reasons, was that over a three-month period some 678 calls had been made from the post room to race line numbers, giving racing results, amounting to some 1,500 minutes at a cost of approximately £750 and that the Appellant was aware of, and had been involved in, the making of those calls.

The disciplinary hearing took place on 28 and 29 March, when the allegation was found proved and the Appellant was summarily dismissed, on the grounds that he had been involved in race line calls being made and had failed in his duty properly to supervise the post room team, in allowing them to make such calls. As appears from the decision, disciplinary proceedings were also taken against the waiters concerned and, indeed, Mr Toulson, who was the second-in-command in the post room.

The Appellant appealed and, in accordance with the internal procedure, the appeal was held on 11 April 1996 before the General Manager and the Personnel Manager of the Respondents who, having looked at the allegation afresh, according to the findings of the Industrial Tribunal, concluded that the appeal should be dismissed. This was confirmed to the Appellant by letter of 15 April 1996.

By sub-paragraphs 3(b) and (c) of the Respondents' Disciplinary Procedure, it is provided that:

"(b) Evidence is then produced by line management.

(c) The employee and colleague should be allowed to question any relevant witnesses.

(d) After any witness has given evidence and has been questioned as necessary, they should leave the hearing."

A main ground of appeal submitted before us by Mr Thacker, on behalf of the Appellant, is that these provisions require, as a matter of contract, that the Respondents call relevant witnesses to give live evidence at the disciplinary hearing of the allegations against the employee, so that he can exercise his rights to hear such witnesses in-chief and then, if appropriate, to cross-examine them. What in fact happened was that the Industrial Tribunal found that a Mrs Neumeister, who was a Personnel Officer told the Appellant that three waiters were involved and supported the allegation against him and that she told him what the evidence of the three waiters was.

It appears from the findings of the Industrial Tribunal that those three waiters had, indeed, signed written statements to the effect that the Appellant was aware of the calls and had made some calls himself. The Appellant's response was to allege that one of the waiters told him the other waiters were "stitching him up to save their own skins".

The Industrial Tribunal construed the procedure as giving the employee and his colleague the right to question any relevant witnesses, rather than imposing a duty on management to call such witnesses. The Industrial Tribunal held, on their construction of the rules, that it was open to the Appellant to ask for the witnesses to be made available for questioning or to seek an adjournment to have them called, but they found as a fact, and it is not in dispute, that he did not do so.

In our judgment, and despite the able submission of Mr Thacker, the Industrial Tribunal on this point correctly construed sub-paragraph 3(b) and sub-paragraph 3(c) of the rules. We agree with Mr Thacker that they should be read in their context and, we further agree with him that the overall procedure, as one would expect from the fact that the Respondents are Lloyd's, is formally defined therein, but, in our judgment, the effect of sub-paragraph 3(b) and sub-paragraph 3(c) on their proper construction, is not to impose a duty on management to call oral evidence but rather to give the employee, the subject of a disciplinary hearing, an absolute right to require that any relevant witness be called to give evidence so that he can be questioned. There is a clear finding of fact by the Industrial Tribunal that the Appellant did not seek to have the three witnesses called.

In our judgment, accordingly, the disciplinary procedure in this respect was properly followed. It was not submitted to us that, even if the Respondents were within their rights not to call the witnesses live, it was unfair of them not to do so. In our judgment, it is plain that there was no basis for such a submission, since the effect of the witnesses' statements was adequately summarised at the disciplinary hearing so that the Appellant was well aware of exactly what the three witnesses were saying against him.

In our judgment, by informing the Appellant at the disciplinary hearing exactly what was in the signed statements made by the liveried waiters against him, the Respondents did produce evidence at the disciplinary hearing within the meaning of Rule 3(b). The word "produced" is of wide import and, in our judgment, in the context of a disciplinary hearing, evidence can be said to be produced when it is referred to and accurately summarised by management. It is clear in our judgment, from Louies v Coventry Hood & Seating Co [1990] ICR 54, that it is a fair procedure for the employer to inform the employee adequately of the contents of written statements.

However, consideration of the appeal does not end there, because Mr Thacker submitted that there were other important respects in which the Respondents had failed properly to follow their own disciplinary procedure at the initial disciplinary hearing, which he submitted necessitated the case being remitted to the Industrial Tribunal. Mr Thacker pointed out, correctly, that the procedure required that the letter asking the employee to attend the disciplinary hearing must give full details of the complaint. He criticised the letter at page 31 of the supplementary bundle, on the basis that it did not condescend to adequate detail. In our judgment, however, the letter did give sufficient detail of the complaint. It was in these terms:

"You are required to attend a disciplinary interview in accordance with Stage III of the Corporation's Disciplinary Procedure. This action results from you making private telephone calls, over a prolonged period, in the knowledge that you would not personally incur cost for the calls. This action is viewed as gross misconduct by Lloyd's."

In our judgment the nature of the allegation was clear. We should add that, had we considered the letter insufficiently particularised the details of the allegation, the reality is that the Appellant was in no way impeded in contesting the proceedings on this basis, since it is beyond argument that he knew precisely the case he had to meet when he attended at the disciplinary hearing.

As the Industrial Tribunal found at paragraph 8 of the Extended Reasons, the Appellant had been interviewed as part of the initial investigation, which was accepted as being a fair one, when the allegation that he had been involved in race line calls was expressly put to him. Accordingly, we reject this ground of appeal.

Finally, Mr Thacker relied on the two connected points taken in sub-paragraphs (d) (ii) and (iii) of the Notice of Appeal, namely a submission that the procedure at the disciplinary hearing contravened the contractual entitlement in two respects, in that (1) the hearing was conducted by both Mr Waller from Line Management and Mrs Neumeister from Personnel, whereas it should have been conducted by Mr Waller alone - see paragraph 1 at pages 5 -34 of the rules and (2) that the evidence at the hearing was produced, not only by Mr Waller, but also by Mrs Neumeister, contrary to sub-paragraph 3(b) on pages 5 - 35 of the rules, to which sub-paragraph we have already referred.

We accept that in these respects, it is the case that there was a failure to follow the contractual procedure. We further accept, and the lay members of this Employment Appeal Tribunal drew on their experience of good industrial practice in this regard, that this is not necessarily, in any given case, a mere technicality, since there is a well recognised distinction between the role of management or line management, on the one hand, and the role of personnel on the other, in the disciplinary process, which, if not followed, might impugn the overall fairness of the procedure in any given case.

Mr Thacker submits that, since the Industrial Tribunal did not address their minds to this issue, and in particular did not consider whether the failure of the Respondents to follow their procedure in these respects impeded the Appellant in demonstrating that the real reason for his dismissal was not sufficient, this matter should be remitted to the Industrial Tribunal for further consideration.

We fully accept that, if there was any doubt in our minds about how the Industrial Tribunal would have decided that matter it should be remitted to them, and that is the course we should take, but, in our judgment, in the light of the evidence before the Industrial Tribunal, as to the conduct of the disciplinary hearing and the findings of fact made by the Industrial Tribunal, it can be stated with certainty that, in the particular circumstances here, these defects in the procedure did not, in any way, inhibit or prejudice the response of the Appellant to the allegations made against him, let alone cause him to be denied the opportunity of demonstrating that the reason for his dismissal relied upon was not sufficient.

There was no question, in this case, of there being any oppression or intimidation in fact in both management and personnel playing a role in presenting the case against him and producing the evidence against him. He was, demonstrably in our judgment, able to put forward his contentions in a robust and, indeed, forceful manner and was thus not at any disadvantage at the disciplinary hearing.

Accordingly, we are satisfied that the Industrial Tribunal decision that the dismissal was fair in all the circumstances, was one which they were entitled to reach.

We should mention that, since we have concluded that this initial disciplinary hearing was in conformity with the contractual entitlement of the Appellant and to the extent that it was not, that it did not, in any way, impede him from properly contesting the proceedings against him, we do not have to consider whether the Appeal hearing cured any such defects, since there were none. In any event, we are satisfied that the appeal procedure was conducted fairly and in accordance with the disciplinary procedure and gives rise to no separate or independent ground for interfering with the Industrial Tribunal's decision.

For all those reasons, we have reached the conclusion that this appeal must be dismissed.