United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR R HIGGINS (of Counsel) Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB


 


JUDGE J HICKS QC Mr Radwan, the Respondent to this appeal and the Applicant before the Tribunal below, was employed by the Appellant, Chequepoint UK Ltd, from 11 June 1984 to 27 June 1997 and by the time when his employment ceased he was the Regional Manager for the UK, Spain, Gibraltar and Hong Kong and the Country Manager for the UK. The business of the employers was that of currency exchange and Mr Radwan's salary was £40,000 per annum.

There was a reorganisation of the employer's business and the Tribunal found that on 3 January 1997 Mr Radwan was informed that he would be given six months' notice for redundancy. That, on the face of it, is perhaps not entirely clear but it is clear from what follows that that was not itself a notice. It was advance warning that there would be such a notice.

On 11 March 1997 he was given the offer of alternative employment in Hungary at £10,920 per annum and, not surprisingly, turned it down. The Tribunal found that that was not a suitable offer of alternative employment and there is no appeal against that finding.

On 17 March 1997 he was given notice of dismissal for redundancy expiring on 12 September 1997, but before that notice expired he was summarily dismissed for gross misconduct, the alleged misconduct being failure to monitor losses on credit card transactions and to act on chargebacks to the extent of some £81,000. There was a second category which does not seem to have featured so largely but the allegations were of that general nature. He was interviewed on 16 and 27 June 1997 by the European Operations Manager. Those were investigatory interviews, not disciplinary hearings, and he was then dismissed by the Chairman without any disciplinary hearing.

On 6 August 1997 an appeal by him against that dismissal was heard by a Mr Turner and the dismissal was upheld. The Tribunal rightly found that there was only one effective dismissal, not two as Mr Radwan had suggested, but they then went on to deal with the issue of redundancy which, as Mr Higgins agrees, did not in those circumstances really arise. Plainly the effective dismissal was the summary dismissal and that was all that the Tribunal needed to deal with. They did, however, also deal with that and found it to be unfair because, to summarise, there was no warning of the potential consequences during the investigatory interviews, he was not informed of his right to have a friend present at a disciplinary hearing and, in any event, there was no disciplinary hearing.

As to the possibility of the unfairness being remedied on appeal there was no evidence as to the conduct of the appeal, nor was there any evidence on what one might call for brevity the Polkey point as to whether a fair procedure would have resulted in a dismissal in any event, nor as to the possibility that he may have contributed to his own dismissal.

The reason why there was no such evidence is that neither the Chairman nor Mr Turner attended to give evidence. The Chairman, so far as the record goes to show, simply was not concerned to turn up. The failure of Mr Turner was investigated more fully because his absence was the ground for an application for an adjournment and the fact was that the employers said (and there is no reason whatsoever to doubt this) that they had done their very best to get him and totally failed because he effectively shut himself up and refused to appear or take any part, having by that time left the Company's employment.

The Tribunal, therefore, having found unfair dismissal, made a basic and compensatory award, the compensatory award being limited to the statutory maximum because the actual loss, as they found, was greater.

There was a complaint of breach of contract, which is expressed in the notice of application as being both for unspecified breaches and for wrongful dismissal, but it would seem that the wrongful dismissal matter was not pursued; certainly it is not dealt with in the decision of the Tribunal, which is concerned only with breaches by way of non-payment of money due, in particular bonuses, and under that head the Tribunal awarded £11,500 for unpaid bonuses.

A number of grounds of appeal are raised which can be broadly divided into three categories: the appeal against the refusal of an adjournment; the appeal against the decision on liability and an appeal against the compensation, in particular the award of the bonuses. Taking the last first, we are of the opinion that it should proceed to a full hearing and we therefore say no more about it.

The appeal against the refusal of an adjournment was pursued by Mr Higgins. We enquired, because it does not appear on the face of the record, whether upon the refusal of this adjournment there was any application for a temporary or short adjournment to enable the refusal to be brought to this Appeal Tribunal before the substantive hearing proceeded, and he informs us that that was not applied for. What was applied for and granted at that stage was an adjournment of an hour or two, or a few hours, to enable the employers to prepare themselves better for the substantive hearing which then followed.

The way in which the application to adjourn was dealt with in the Tribunal's Reasons was as follows. They recite that there had been an earlier such application which had been granted, so that this was already a postponed hearing. They refer to the reasons for Mr Turner's absence, which I have already very briefly summarised and which were the grounds of the application for the adjournment, and they recite the written application for adjournment which had preceded the oral application at the hearing, stating that Mr Turner refused to answer the telephone, remained locked up in his apartment and refused to appear, and that that written application had been refused by the Regional Chairman and renewed at the hearing.

The Tribunal in paragraph 4 of their Reasons set out a summary of the submissions made on behalf of the employer in support of that adjournment, which were that the employer would be severely prejudiced in that Mr Turner had been involved in the decision to dismiss Mr Radwan and had been involved in the appeal procedure, that the employer would, therefore, be severely hampered if the postponement request was refused and that the interests of justice required the case to be postponed. The Tribunal said:

"5. We considered the interests of justice in respect of both parties. We do not consider that the interests of justice would best be served to Mr Radwan if we postponed this hearing."

And they give reasons for that.

They do not return to summarise the way in which the employer would be prejudiced by a refusal to adjourn but it cannot possibly, in our view, be conceived that they had forgotten or not paid attention to the submissions which they have just recited in the previous paragraph and we therefore see no reason at all to doubt that, as they state in the first sentence of paragraph 5, they had considered the interests of justice in respect of both parties.

Given the fact that they had considered the right and proper considerations on both sides, they were not in error of law. We take into account also that they were not then asked for an adjournment in order that the matter be brought here at that stage, but only for an adjournment in order that the employer prepare its case, and in those circumstances we have no doubt whatsoever that the Tribunal did not err in law in its decision to refuse the adjournment and we dismiss the appeal against that decision.

That leaves the question of the substantive decision that there was an unfair dismissal. The position there is that Mr Higgins confined submissions to us to one particular point and we need not, therefore, deal with the other matters which are raised in the Notice of Appeal and do not do so.

The point which Mr Higgins raised really turns on the way in which the Tribunal expressed their conclusions on a number of the crucial stages of their consideration of the liability issue. Perhaps it is not absolutely accurate to say that this was confined to the liability issue, since it went on also into the contribution question. But on those issues the Tribunal, for example when dealing with redundancy - and although, as I have said, redundancy need not really have featured in the decision, Mr Higgins is perfectly entitled to draw our attention to it as showing the way in which the Tribunal approached its task - said:

"We are unable to find as a fact in the absence of evidence from the Respondent, whether or not there was a redundancy situation pursuant to the Act."

When they come to deal with the appeal hearing, they say:

"We heard no evidence regarding the appeal hearing ... and we have no means of knowing whether the appeal hearing negated an otherwise unfair dismissal."

When dealing with what I have called "the Polkey point", they say:

"We have no means of knowing whether this would be the case"

That is to say, whether a fair procedure would also have resulted in dismissal.

We accept that that way of expressing the matter is not an appropriate way for a Tribunal to show that it has addressed its mind to the right question and has made the appropriate findings.

Mr Higgins also complains of the way in which they dealt with the original dismissal where, having recited the facts, they say, "This dismissal must be unfair, pursuant to section 98 (4) of the Act" and he (I think) submits that the word "must" shows that they are not there addressing their minds to the correct question. We are not so impressed by that particular phrase because, in our view, that is simply a way of saying, "On the facts which we have just recited, there is no other conclusion but that the dismissal was unfair" and for our part we entirely agree with that conclusion, from the facts which they recited about the investigatory process and the dismissal by the Chairman.

However, as we have said, the way they have dealt with certain other matters is undoubtedly erroneous, but we then have to ask ourselves whether this is one of those cases, admittedly rare, but undoubtedly within our jurisdiction, where the correct decision of this Tribunal is that, although the Industrial Tribunal has in certain respects erred in law, no Tribunal faced with the evidence before it and the facts which it had properly found on that evidence could in any event have come to any different conclusion.

We are of the opinion that this is such a case and indeed, as we understand it, Mr Higgins accepted that that was a conclusion which, in the circumstances, we are entitled to reach because the situation was (and again we are most grateful to Mr Higgins for helping us as to the way matters proceeded before the Industrial Tribunal) that Mr Radwan did give evidence. He did deny the misconduct which was alleged against him, so far as he understood what it was, which of course was itself not entirely clear in the absence of evidence from the employer.

There simply was no evidence from the employer's Chairman - and that was a voluntary matter on the part of the employer - or from Mr Turner, which may not have been the employer's fault but as to which the Tribunal had, as we have held, perfectly properly refused a further adjournment.

The inevitable conclusion of any Tribunal in those circumstances must have been, first, that the employer had not proved gross misconduct.

Secondly, on the point of fairness, where there was no onus on one side or the other, the facts which were before the Tribunal inevitably resulted in the finding that that was unfair. On the other points of whether there would have been a dismissal with fair procedure or whether there had been contributory conduct, again in the absence of any evidence from the employers that there had been misconduct which, with a fair procedure, would have resulted in dismissal, or conduct which contributed to the dismissal, any Tribunal must inevitably have come to conclusions which were adverse to the employer.

The result, therefore, is that we dismiss the appeal on what we have broadly called "the substantive grounds" going to liability and contribution or abatement, as well as the appeal against the refusal to adjourn, and direct that it proceed on the ground relating to the compensation for bonus only which is, I think, (Mr Higgins will correct me if I am wrong) ground 7.