United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G D MORTON (of Counsel) Angela Sumeray Solicitors 119 Kenton Road Kenton Harrow Middlesex HA3 0AZ
For the Respondents	MR B BATTOCK (of Counsel) Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TY


 


MR JUSTICE KIRKWOOD: This is an appeal by an employee of Railtrack PLC from the decision of an Industrial Tribunal sitting at London (North) on 7th February and 29th April 1997. The extended reasons were promulgated on 30th May 1997.

The decision of the tribunal was that the employee, the appellant, was unfairly dismissed. However, because the unfairness resulted only from a procedural failing, there was a 90% chance that the appellant would have been dismissed in any event and without such failing, so that compensation should be reduced accordingly. Furthermore, the appellant had by his conduct contributed to his own dismissal to the extent of 75% so that a further reduction would be made on that basis.

Mr Mason, a long-standing employee of Railtrack, was dismissed for actions of sexual harassment committed against an employee of another rail company which also originally was part of the British Rail network. No point is taken on the appeal that this was what has been called a "cross-sector" offence.

Mr Mason was employed as Duty Facility Manager at Euston Station. The case began when on 2nd October 1996 a Ms Manners, employed by Intercity West Coast Ltd, also at Euston, made a complaint as to Mr Mason's conduct towards her. In a statement made the next day, 3rd October, Ms Manners said that over a period of some weeks the appellant had been asking her out; asking about her boyfriend, and when she was going to break up with him; where she lived; her telephone number and such like personal questions about her life; and repeatedly asking to see her and take her out. She always refused.

On 2nd October 1996 again Mr Mason asked her out and she said no. Later that day when Ms Manner was standing near the 'Knickerbox' shop Mr Mason came over to her pointing to an item of lingerie in the shop. He said he would like to see her in that. Ms Manner said "not likely" and Mr Mason said he wanted some pictures of her to put on his dressing-table or mantelpiece. Again she said "I don't think so" and he walked away. Later that evening, still on duty at Euston, Mr Mason chided Ms Manners for speaking to security and then said he wanted to be her lover. That is the gist of it. It all upset Ms Manners considerably and she reported it. The same day Ms Bray-Cotton, the Station Service Manager, interviewed Ms Molison and a Ms Pearce who all made statements broadly supporting the complaint.

In the light of that, Mr Mason was stood down from duty and required to attend the office of Mr Cooper, the Station Facilities Manager, the next day. Mr Cooper interviewed Mr Mason and Mr Mason made a statement. A number of other statements were taken and testimonials were also obtained as to Mr Mason's good character.

On 10th October 1996 Mr Elliott, the Group Station Facilities Manager, prepared a charge and wrote a letter to Mr Mason in these terms:

"In connection with the above, I am writing to inform you that you are to be charged with:

Gross misconduct in that you behaved towards D. Manners of West Coast Trains in a manner which may be construed as sexual harassment. This is in breach of the Railtrack Harassment Policy.

This case is being dealt with under the summary discipline arrangements due to the seriousness of the allegations.

I confirm, therefore, that you have been placed on investigatory suspension with pay pending the outcome of a formal hearing with myself. This has been arranged for Tuesday 15 October 1996 at 1200 hours in my office, Railtrack Offices, New Street Station, Birmingham. A room will be made available to you from 1130 hours if required, for preparation purposes. You will be sent a ticket/warrant for your journey.

You may be accompanied at the hearing by a fellow manager employed by Railtrack Property, or by a representative of a trade union. It is your responsibility to secure the agreement of a fellow manager or union representative to accompany you. You may also call other persons as witnesses. Details of the witnesses or representatives employed by Railtrack must be advised to us as soon as possible, in order that we may enable them to attend. I have enclosed copies of the witness statements for your information."

A disciplinary hearing took place as foreshadowed by that letter.

The point has been made and was taken by the Industrial Tribunal, that on a serious matter such as this, the specific ingredients of the charge or separate charges should be itemised one by one. That was not done, although the allegations were plain for all to see in the statements enclosed with that letter of 10th October.

Secondly, it is to be noted that although statements were furnished with that letter, the records of the investigating interviews which preceded those statements were not. Again, a point was made about that and taken before the Industrial Tribunal.

The disciplinary hearing took place on 15th October and an accurate note of it was prepared. The same day, 15th October 1996, Mr Elliott wrote to Mr Mason:

"Following your summary disciplinary hearing today, I wish to confirm that the outcome of that hearing was that you are to be dismissed from service. This dismissal will take effect immediately from the date of the hearing, that being 15 October 1996.

You have seven days to appeal against this decision and any appeal should be made in writing. At the appeal you may be accompanied by an advocate who shall be either a fellow manager employed by Railtrack Property, or by a representative of a trade union recognised by Railtrack."

Mr Mason gave Notice of Appeal on 18th October and the appeal was heard on 29th October by Ms Wall, the Group Service Manager. The appeal was unsuccessful.

The Industrial Tribunal dealt at length with the course of the appeal hearing. It is not necessary for me to read into this judgment all of the findings but I must read in some of them.

"27 In relation to the documents, Mr Clarke [that is the union representative who was assisting Mr Mason] complained that he had received no copies of the statements of interviews that had been conducted by Intercity West Coast and by Mr Cooper on behalf of Railtrack. Ms Wall was surprised about this and she immediately made copies available. However, she stated that the allegations were made clear in any event in the written witness statements. She was also surprised that Mr Clarke had not asked for those notes during the course of the disciplinary hearing. In relation to the time spent, she also considered that Mr Mason and his representatives had more than enough notice of the charge and more than enough time to prepare for the hearing. Furthermore, an adjournment could have been requested, but no such request was made.

...

29 Ms Wall concluded that it was not acceptable to make a comment about seeing someone in a particular type of underwear. She stated that she took into account Mr Mason's position and his length of service and his clean disciplinary record. However, she also felt that he had to set an example to staff and she felt that he had abused his position and had caused distress to the complainant on a number of occasions. She believed that Mr Mason had fallen considerably short of the high standards expected of fellow managers and that his behaviour was sufficiently serious as to justify dismissal.

...

32 There was an adjournment later on in the case before Ms Wall was to give her decision, when Mr Clarke was given copies of everything he had asked for. Mr Clarke accepted he had received copies of everything but said he had been too tired and had not read them yet. He did not however ask for a further adjournment to allow him to read them on a separate day.

33 Ms Wall decided that the appeal should be dismissed. She said there were a number of incidents which she found were serious sexual harassment, including the allegations of photographs, looking nice in the lingerie and wanting to be Ms Manners' lover. It was clear that Ms Manners did not welcome these advances and that she was bothered by what had occurred. ...

34 ... Mr Mason also admitted in cross-examination that he should not have made the comment he did about the underwear. He however denied that he had asked Ms Manners out, as was alleged. He also made the point that the specific allegations were not put to him during the course of the disciplinary hearing."

In the light of all the evidence before it, the Industrial Tribunal concluded as follows:

"36 The above are the relevant factors as found by the Tribunal. The first question that we have to determine is the reason for the dismissal. There is not much doubt about that and that it related to the Applicant's conduct in relation to Ms Manners and that constituted conduct, which is clearly a permitted reason. We must then move on to determine whether, in all the circumstances, it was just and equitable to treat that reason as a reasonable ground for dismissing in accordance with section 98(4) of the Employment Rights Act 1996.

37 At the outset we should point out that we were somewhat concerned about the fact that this was an incident which was treated as simply falling within the Harassment Policy and within sexual harassment law generally when the person who was harassed was quite clearly not an employee of the Respondents. ..."

The tribunal then considered that at some length and the potential difficulty that resulted from the complainant not being an employee of the Company. In particular in the difficulty in securing her attendance before disciplinary processes as a witness. However, the tribunal then said:

"37 ... In the circumstances of this particular case we do not think that that is fatal to the Respondent's case."

No point has been taken about that at any stage of this appeal.

The tribunal continued with its findings:

"38 We make the above observation on the basis that there never has been a requirement for an employer to produce witnesses who make allegations on which the employee can ask questions. The basic precepts of natural justice require that the employee is aware of the charges he is facing, has the opportunity to rebut those allegations and put forward his own case, and has an impartial person deciding the case. ... We would say, however, that the more serious the allegation the more incumbent it is upon the employer to try to obtain the witnesses to give statements. However, that does not place a legal obligation to require them to attend. In this particular case the detailed allegations were contained in the witness statements that were produced to the Applicant and his representative, and he has his opportunity to rebut them individually. However, we should say that where there are a number of single specific allegations contained in a number of statements it is only right and proper that an employer should distil from those allegations specific charges so that the individual employee has an opportunity to rebut them fully on an individual basis. When one looks at the procedure in this particular case that did not happen. Although the witness statements were produced to the Applicant and it was possible to deduce from those statements the individual allegations, we think the employer should have put forward individual allegations as stated above. This is not a model of perfection - it is something which an employee with 33 years' unblemished service is entitled to expect, given the severity of the consequences of finding against him."

So there the Industrial Tribunal criticised the procedures because of the failure to itemise the allegations. The tribunal continued:

"39 Furthermore, given the circumstances as mentioned above, we think it is important that the Applicant has every piece of evidence or all of the documents on which the decision-maker was relying in order to defend himself properly. There was some doubt here as to what documents were supplied at given time. However, we do accept that the documents R37-40 were not supplied at all. [I interpose to explain that those documents were notes of the interview Mr Cooper had with Ms Manners.]Other documents, such as the investigative interviews, were not supplied and should have been. Whilst we accept that they were not significantly different from the witness statements which contained a considerable number of allegations, we think it only fair that the Applicant in this particular position should have had all the documents in advance. While Ms Wall says that the underwear incident alone was enough to justify a dismissal, it is quite clear that Mr Elliott took into account all the other factors, and so indeed did Ms Wall.

...

41 In relation to the question of reasonable responses, we note that the Respondents have conceded that this could be a harsh decision. However, the Tribunal has to consider whether it fell within the range of reasonable responses. The Tribunal cannot say that the decision to dismiss fell outside the range of reasonable responses of a reasonable employer. It clearly was something which was worthy at least of a serious warning and in those circumstances we cannot say that the dismissal fell outside the range of reasonable responses."

The tribunal then considered the procedures followed in the light of the well-known case of British Home Stores v Burchell and said:

"42 ... We fault the procedure on the basis that we have stated above and for those reasons we hold the decision was unfair.

43 We make the decision purely on the procedural point as we are aware that Mr Mason was a senior manager, with long service, who was fully aware of the Harassment Procedure and was well aware of its importance within the organisation. We also take into account the fact that the complainant was someone about half his age.

44 Having found in favour of the Applicant on the question of unfairness, we must then move on to the question of remedy. Having taken into account the nature of the wrongdoing in this case, this is not an appropriate case where we would consider re-engagement or reinstatement for reasons which we state below.

45 The first thing which we have to consider is what effect the defect in procedure has had. The Tribunal asked the Applicant and his representative what difference it would actually have made had there been a full procedure implemented and was not satisfied with the answers it received. We do not know what impact this had on the Applicant's case whatsoever. Even if the Applicant had been able to establish that he was behaving in a jocular way, it would still have been irrelevant to the question of how it was perceived to the complainant, which is the relevant point. The Applicant really would have done nothing but deny the situation if each individual allegation had been put to him. It is the Tribunal's view, on consideration, that had the procedure been followed completely, then there was a 90 per cent chance that the decision would have been exactly the same - that is to say there would still have been a dismissal. We award compensation based on that 90 per cent reduction.

46 However, that is not the end of the matter. Apart from that we have to consider the question of whether the Applicant has caused or contributed to his own dismissal. We say here that the Applicant has indeed significantly contributed to or caused his own dismissal, and we are of the view that his behaviour was such that a further reduction of 75 per cent should take place beyond the first reduction. That is the decision of the Tribunal."

The Notice of Appeal, though carefully crafted into a number of different grounds, really contains three main points.

The first is that the Industrial Tribunal fell into error in making a "no difference" deduction from the basic award. Whilst s. 123(1) of the Employment Rights Act 1996 empowers the Industrial Tribunal to make such compensatory award as is just and equitable, there is no comparable provision in s. 122 which deals with the basic award. The words "just and equitable" are to be found in s. 122(2), but only in relation to the conduct of the complainant and that subsection finds a parallel in s. 123(6) of the Act.

We have accepted the submission that the tribunal erred in making a "no difference" deduction from the basic award and intend to allow the appeal on that aspect.

Secondly, complaint is made in relation to the "no difference" deduction of 90% itself. It is not argued that the Industrial Tribunal had no power to make such a deduction, or that it was wrong in principle to attempt to do so, but it is said that it is highly unusual in a case such as this. What is particularly said is that such an attempt involves the Industrial Tribunal in going further than reviewing the employer's procedures and findings and making findings of its own. Any such attempt to arrive at a percentage reduction is, it is said, hopelessly imprecise and unfair.

The Industrial Tribunal made the deduction it did for the reasons I have quoted at length. The finding of unfairness flowed only from the finding of the two procedural defects identified. The Industrial Tribunal then asked "but what difference did those defects in fact really make to the outcome?" It sought to inform itself as to the answer in two ways. It asked the appellant and his adviser what difference it made to their case, and got no satisfactory answer. It looked at the undisclosed interview notes and found they did not significantly differ from the witness statements. So there was no non-disclosure of any material fact or allegation. The appellant had in fact had before him all that mattered. So the Industrial Tribunal concluded, doing the best it could and in the exercise of its discretion, that the absence of such procedural shortcomings would only have resulted in a 10% chance of a different outcome. The particular facts of this case may be unusual but we are quite unpersuaded that the Industrial Tribunal erred in law save as to applying the "no difference" discount to the basic award.

Thirdly, the appellant argues that the 75% contributory discount is (a) arbitrary; (b) not justified by the Industrial Tribunal in its extended reasons; and (c) inappropriate for what amounts to a single incident of misconduct. The point was enlarged that only one charge was made.

That goes back to the matters with which the Industrial Tribunal dealt quite properly, that although the individual matters were not particularised as ideally they should have been, it was all contained in the statements served with the charge. It is clear to us that at each stage of the disciplinary process it was a course of conduct that was considered and established. Paragraph 21 of the extended reasons:

"21 Mr Elliott made it clear that, while he was relying on a course of conduct, he believed that the October incident was enough to justify dismissal, particularly because of the effect on Ms Manners."

At paragraph 29:

"29 ... she [Ms Wall] felt that he had abused his position and had caused distress to the complainant on a number of occasions."

I have referred to those passages in their fuller context earlier in this judgment.

It seems to us therefore that the argument that the discount was applied to a single act, is not in accordance with the approach taken in the disciplinary process or by the Industrial Tribunal. To rely upon paragraph 46 of the extended reasons as the appellant does in written argument in saying that the Industrial Tribunal did not explain and justify its finding of 75% is to fall into the error of not reading the extended reasons as a whole. I have already set out the conclusion of the Industrial Tribunal that they were of the view that his behaviour was such that a further reduction of 75% should take place beyond the first reduction.

It is, however, necessary in this as in every such case to avoid over analysis and dissection of the extended reasons or the focusing on one passage in isolation from the rest. It is important in this case as in every to read the extended reasons as a whole. We have all done so, and are left in no doubt that the behaviour to which the Industrial Tribunal referred, was the appellant's course of behaviour towards Ms Manners for some weeks leading up to and including 2nd October 1996. The approach of the Industrial Tribunal in exercising its discretion cannot be impugned as being in error of law. Accordingly, this part of the appeal fails also.

[Now Mr Morton and Mr Battock that leaves the calculation on the basic award which is a matter I imagine you can agree.]