United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T LINDEN (of Counsel) Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA
For the Respondents	MISS ELIZABETH SLADE QC Messrs Clarks Great Western House Station Road Reading RG1 1DY


 


JUDGE JOHN BYRT QC: This is an appeal against the decision of an Industrial Tribunal sitting at Reading. Its decision, promulgated on 1 October 1996, held that the employee's application for unfair dismissal failed. It is against that decision which he appeals.

The relevant facts of the case as found by the Industrial Tribunal are set out in its Extended Reasons. Mr Watkins had been employed by the Respondents since July 1990 as a warehouseman. He was summarily dismissed from that employment on 22 December 1995 on account of his misconduct.

He worked at the Respondents' depot at Thatcham in Berkshire. The General Manager there was Mr Iles. The Depot Manager was a Ms Toor. The workforce was organised into a number of workshifts, each supervised by a shift manager. Mr Watkins' shift manager was a Mr Kowalkowski who himself had come to the depot only some weeks before the crucial events which led to Mr Watkins' dismissal.

Mr Kowalkowski was inexperienced in the job and, further, suffered from a stammer, potentially a real disadvantage for anyone in a position of management. Whilst his evidence was that he was able to establish a reasonable working relationship with his shift team, he did have some difficulty with Mr Watkins. They developed a mutual antipathy which escalated on 8 December 1995 into a physical confrontation in the men's lavatory. Mr Watkins reported the matter to Mr Bartlett, the Operations Manager. Neither the internal disciplinary investigations nor the Industrial Tribunal bothered to come to any definitive findings about what happened during the incident, probably because, in itself, the incident was trivial.

Mr Bartlett set to work investigating the incident that day. He obtained statements from Mr Kowalkowski in which the latter volunteered that he had started the trouble by directing some offensive remarks in Mr Watkins' direction. He said that they had then pushed each other. Mr Watkins' description of the event coincided save that he said he was pushed by Mr Kowalkowski. Mr Bartlett concluded that both the participants were at fault to some extent. He suspended both whilst he investigated further. The significant factor coming out of his investigation is that he discovered there had been another incident the previous day in the locker room when Mr Watkins had thrown at his Shift Manager the taunt that he would not be in his job after Christmas. In his statement to Mr Bartlett, Mr Kowalkowski said that Mr Watkins' behaviour over the course of the last few months had driven him to the end of his tether. He had therefore made some aggressive remark in reply.

Mr Bartlett widened his enquiry. He interviewed Mr Kowalkowski again on 12, 15 and 20 December. He interviewed Mr Watkins in parallel. The statement he obtained showed that the relationship between the two had been deteriorating for some time before the incidents on 7 and 8 December.

As his Manager, Mr Bartlett considered that he was empowered, and on the basis of the investigations he had conducted, was able to discipline Mr Kowalkowski appropriately for his share of responsibility for the breakdown in the relationship between him and his charge. He gave him a final warning. However, he was unable to deal with Mr Watkins because the latter was the subject of a final warning given to him in January 1995, and these recent events exposed him to dismissal if he was found to be in breach of company rules within a 12-month period. His findings that Mr Watkins was in part to blame for what happened on 8 December meant that his job was at risk. It therefore meant that he had to be dealt with by way of disciplinary proceedings at a more senior level.

The disciplinary hearing took place on 21 December before the Deputy Manager, Ms Toor. Mr Watkins was represented.

Both Ms Toor and Mr Watkins had before them all the statements taken from him and Mr Kowalkowski by Mr Bartlett. Mr Watkins gave evidence. Mr Kowalkowski did not, nor did he attend the hearing.

Ms Toor found that incidents had occurred on 7 and 8 December, and that physical contact had taken place on the latter occasion. She recognised that there was some conflict in the accounts given of that incident but she took the view it was not necessary to interview Mr Kowalkowski about it or come to a finding upon it because, there being no witness to the event, she did not think it would be possible for her to come to a reliable conclusion as to the participants' respective roles in the matter. She did however come to positive conclusions about Mr Watkins' primary responsibility for the breakdown in his relationship with his Shift Manager, and, over the course of time, for provoking Mr Kowalkowski into acting in "an unprofessional and unacceptable way". She held that his conduct in these respects and his apparent lack of contrition merited his summary dismissal. He was given written notice of his dismissal the next day, 22 December. He was notified of his right to appeal.

Mr Watkins appealed. This appeal was heard by Mr Iles, the Depot's General Manager on 7 February 1996. He upheld Ms Toor's decision. Mr Watkins had again been represented. Mr Isles indicated, as was noted by the Industrial Tribunal, that his decision might have been different if Mr Watkins had not been under the suspended sentence of a final warning.

Mr Watkins exercised his further right of appeal to an appeal board. This was heard on 15 April 1996 by a Board comprising an independent Chairman, the Senior Shop Steward from the Respondent's depot at Faversham, the Personnel Manager from Head Office, the General Manager from Hemel Hempstead, and a full-time officer of the T & GWU. The Board made a number of criticisms of the procedures followed in the investigation and the disciplinary hearing. These were noted by the Industrial Tribunal in sub-paragraph 3(s) of their findings. Their conclusions at the end of this hearing were (1) that the evidence supported the employers' reason for dismissal and (2) that the penalty was reasonable, particularly since the employee was then under a final warning. The Board unanimously recommended that the dismissal be confirmed.

In their turn, the Industrial Tribunal were unanimous in their finding that Mr Watkins' conduct, by his words and actions prior to 8 December, was the reason for his dismissal. Further, they were satisfied that Ms Toor genuinely believed that that conduct of his brought about a deterioration in his relationship with Mr Kowalkowski so that it could fairly be said that he had provoked him into his unprofessional and unacceptable conduct on 8 December, and so was the primary cause of what happened that day. They were satisfied Ms Toor and her employers genuinely believed the dismissal was the appropriate penalty.

The Industrial Tribunal asked themselves whether the employers had sufficient material before them to justify their belief that he was guilty of such misconduct, and further whether dismissal was a reasonable response. They concluded that the Respondents' belief in Mr Watkins' misconduct was reasonable, and in coming to that conclusion, they expressly found that they had carried out as much investigation as was reasonable in all the circumstances. They concluded that dismissal was a reasonable response, notwithstanding that Mr Kowalkowski was treated differently so far as the discipline handed out.

For those reasons, they concluded that the dismissal was fair.

Mr Linden, for Mr Watkins, criticised the Respondents for the way Mr Bartlett handled the initial investigations and the disciplinary procedures which followed. He drew our attention to the shift in Mr Kowalkowski's position between the initial notes Mr Bartlett made of his discussions with him on 8 December when he effectively accepted responsibility for what had happened in the lavatory that day, and the transcripts made by Mr Bartlett after investigative interviews conducted with Mr Kowalkowski on 12, 15 and 20 December. In those transcripts Mr Kowalkowski says that, by 8 December, he had come to the end of his tether as a result of Mr Watkins' bating, insubordination, and undermining of his authority as a Shift Manager. Mr Linden says that if justice was to be done to his client, it was essential that both Mr Bartlett and Mr Kowalkowski should have been personally interviewed by Ms Toor as part of the disciplinary hearing, and given the opportunity to explain how the shift in his attitude came about, especially when it was the events leading up to the physical confrontation on the 8th, rather than the events of that morning, which convinced Ms Toor that Mr Watkins should be dismissed.

Mr Linden says that because those two potential witnesses were not called to give evidence, the Industrial Tribunal were bound to hold that the disciplinary proceedings and therefore the dismissal were unfair. Though Mr Watkins availed himself of both stages of the internal process, neither corrected that defect, if that is what it was, because those two witnesses were never called at either stage. However, in making that submission, Mr Linden accepted, both in his skeleton argument and in his oral address to us, that there is no absolute requirement, in law or in the Respondents' disciplinary procedures, that primary witnesses of fact have to attend disciplinary hearings.

Whilst not abandoning his other criticisms of the disciplinary procedures followed, Mr Linden was content to base his submissions on the point we have outlined above, and to rely on it as the determining factor in this appeal.

Ms Slade, for the Respondents, reiterated that there was no contractual or legal requirement that either or both the witnesses in question should be called. She submitted it was a question of fact for the Industrial Tribunal to decide whether a failure in procedures had occurred, and if so, whether that failure vitiated a fair hearing. The Industrial Tribunal had given close consideration to that aspect of the Appellant's case and concluded that overall the procedures had been fair. She countered Mr Linden's argument in two ways. First, she submitted that, if this Tribunal was to disturb the finding of the Tribunal below on this point, the Appellant would have to show that that finding was perverse, and this was well nigh impossible without having the Chairman's notes of evidence upon which to build a case: see Piggott Bros Ltd v Jackson [1992] ICR 85. Second, she submits that once Ms Toor had decided that a finding of who did what on 8 December was not the critical issue at the hearing, it was not factually necessary for her to interview either Mr Bartlett or Mr Kowalkowski because, apart from the transcripts of the latter's interviews, there was ample evidence in that of Mr Watkins himself, justifying the reasonableness of Ms Toor's conclusion that his behaviour prior to 8 December was the primary cause of the problems which existed between the two men.

Ms Slade then took us through the notes of Mr Watkins' interviews made prior to the disciplinary hearings as well as the transcript of his evidence at the disciplinary hearing. He had accepted that he had called Mr Kowalkowski a "Scatman", that is someone who does not know what he is doing. He admitted calling him names and taking the mickey out of him. He admitted he had told him that he would not have a job after Christmas. He implicitly accepted he had disrupted Mr Kowalkowski's briefings. When asked whether he had ignored a reasonable request from management such as was alleged over the "wine incident", he chose not to reply. His response to the obviously unsatisfactory position reflected by his answers was that much of it was said in banter, or in retaliation for what was said to him. When asked why all these things were happening in his relationship with Mr Kowalkowski, his union representative attempted to sum it all up saying that they were the outcome of a clash of personalities. Mr Watkins indicated that was not the way he would wish to put it.

In addition to these unsatisfactory answers, Ms Toor had the opportunity of weighing up Mr Watkins' overall attitude to the obvious problem they revealed, and she concluded he showed no contrition or understanding. It was open to her to surmise that his attitude offered little hope of improvement in his further conduct. Thus, Ms Slade submitted.

In coming to our decision in this appeal, we accept all Ms Slade's main submissions. It must always be a question of fact for the Industrial Tribunal to assess whether the interviewing and/or the calling of a particular witness at a disciplinary hearing is crucial to the fairness of those proceedings. In this case, there was ample evidence provided by Mr Watkins' own answers which would justify a conclusion that the interviewing and/or calling of Mr Bartlett and/or Mr Kowalkowski were not essentials for a fair hearing. That material was before the Tribunal and was sufficient, in our judgment, to enable them to conclude that Ms Toor's handling of the disciplinary procedures was reasonable and fair. It would have been helpful had the Tribunal given an outline of their reasons in paragraph 9 of their Extended Reasons why they concluded that the omission to interview or call these witnesses did not render the proceedings unfair. But we do not consider the omission of such reasons is a ground for disturbing the Tribunal's conclusion on that matter.

Mr Linden does not otherwise challenge the employers' decision to dismiss once they had made their finding of misconduct. We are satisfied that the Tribunal were entitled to find that dismissal was within that broad band of reasonable responses of the reasonable employer. In the circumstances, we see no ground for disturbing the Industrial Tribunal's decision and accordingly dismiss this appeal.