United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D BASU (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE BYRT QC: This is a preliminary hearing in an appeal against a decision, promulgated on 23rd April 1998, of an Employment Tribunal Chairman, sitting alone, at London (South). By his decision he held that the employee's claim that his employers were in breach of contract in summarily dismissing him failed. The employee, Mr Loganathan, appeals.

The facts are that the employee was employed by the respondents as a development engineer between 14th February and 4th September 1997. Working in the same company was a another employee, a Miss Adilovic. She was of Yugoslavian origin and was pursuing an immigration application through the Home Office with the aim of securing permission to reside permanently in the United Kingdom. She was having difficulty in furthering that application. Her solicitor notified the respondents that the Home Office notified him that somebody from the respondents' offices had passed by fax information about her conduct which was likely to damage her application. It appeared that the message to the Home Office had been passed through the fax machine between 13.20 and 13.23 on 2nd September 1997. Against that background of information the respondents set about making enquiries to ascertain who had passed the fax. It was established that there were three calls within that three minute period of time; one transmission was unsuccessful and had been stopped, the other two were on fax numbers to the Home Office. There was no other use made of that fax between 10.10 in the morning and 3.56 in the afternoon. There was information provided by two support engineers whose desks were adjacent to the fax machines and they, without any knowledge as to the purpose of the enquiries, volunteered the information that Mr Loganathan had used the fax at the relevant time.

Mr Loganathan was called to a preliminary disciplinary hearing on 3rd September 1997. He admitted using the machine at the relevant time but said it was for a personal matter. When he was told that the enquiry was to discover the identity of the person who had used the fax machine to send a malicious fax to the Home Office, he said that that he was not responsible. His own use of the fax machine had been to send his own CV to an outside agency and that he had been unsuccessful in managing to do that and he had accordingly posted the CV instead. He knew nothing of the malicious fax.

In any event, the employers made further enquiry into the matter, interviewed Mr Loganathan again on 4th September 1997, and during the course of the day Mr Loganathan admitted that he hated Ms Adilovic, because she did not respect him, but he maintained throughout his denial that he had sent this fax throughout.

At the end of the day, the respondents thought they had no alternative but to dismiss Mr Loganathan. They did so by 7 p.m. that night. So the whole of that enquiry and investigation had been completed within two days.

The Employment Tribunal Chairman came to certain findings of fact. Essentially he was satisfied on the evidence he had heard that Mr Loganathan had passed the malicious fax. They said that any other conclusion would have been entirely fanciful. But then Chairman went on and considered whether the sending of the fax had been an act of gross misconduct. He said he found that that was an extremely difficult question to answer in isolation, but that in this particular case the parties to the contract of employment had defined what was meant by gross misconduct of the examples given of gross misconduct, the tenth example was this: revealing confidential information relating to employees of the Company to any person without prior consent of the company unless it was necessary for the purpose of carrying out his or her duties. The Chairman went on to conclude that Mr Loganathan had been guilty of revealing confidential information about this woman without the consent of the company. As a result of that, he was prepared in the context of this contract of employment to find that that amounted to gross misconduct, and as a result, he dismissed the applicant's claim.

Mr Basu, as a member of the ELAAS scheme, has attended before us today, and argued the case on behalf of Mr Loganathan. He has raised a series of new points which are not referred to in the Notice of Appeal. I should say that the Notice of Appeal has obviously been filed by Mr Loganathan himself and accordingly it is not surprising in this rather difficult and complex case that he should not have been successful, as it were, in picking out the points of law which are relevant to the issues in this matter.

Mr Basu's first point is that the tribunal failed to come to a conclusion about an essential fact to in the case, namely whether the fax which was sent was true or false. If in fact it was true, in what sense could it be said to amount to an act of gross misconduct?

Secondly he says that in applying item 10 of the examples of gross misconduct, the essential word is 'confidential'. Can it be said that the information, passed to the Home Office was confidential? Clearly it was private information about Ms Adilovic, but could it be said in any sense to be confidential when so many people in the company, colleagues of hers, knew about the details which had been related.

Mr Basu further submits that the Chairman had erred in finding that there was a fundamental breach of contract and had erred again in finding that the facts amounted to gross misconduct.

He raises a fifth point. This is a case which has been decided by the Chairman of the tribunal sitting alone. As it relates to a matter concerning breach of contract there is prima facie jurisdiction for a Chairman sitting alone to adjudicate upon such a case. By s. 4(5) of the Industrial Tribunal Act 1996 however, there is discretionary decision to be made by the Chairman in cases where it is apparent to him, that there are disputed facts to be determined, to adjourn the matter for the issues to be determined by a full tribunal. In this particular case there is no indication that the Chairman considered his discretion under this particular subsection. If he did, he has not given any reasons for the way in which he exercised his discretion.

One has some sympathy with him because there is no indication that either parties to the hearing objected to him hearing this case on his own, or indeed made an application at any time that it should be adjourned for a full tribunal hearing. But nonetheless, we think that there is an arguable point here. The tribunal Chairman found the case complex and difficult. Much was at stake so far as Mr Loganathan was concerned. He has denied throughout any implication in sending this fax. Accordingly, although we cannot say there was any element in the case which would have involved the expertise of wing members who had experience of industrial practices, essentially they would have been there to assist the Chairman in the capacity of a jury. In a case as this sort where the facts we so difficult and so much was at stake, it could be argued that it was wrong for the tribunal Chairman to hear this case on his own.

We are satisfied that there is an arguable point in all the matters that have been raised by Mr Basu. Accordingly, we give leave for this matter to proceed to a full hearing.

There will be an amendment to the Notice of Appeal within 14 days.

In view of the concerns we have about tribunal Chairman sitting on this sort of case alone, I suggest that this is a Category B case. It seems to me that perhaps there would be an advantage in having some guidance offered to the tribunals about this matter.