United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D MARFO (a friend)


 


MR JUSTICE HOLLAND: The Applicant in this matter, the present Appellant, is Mrs Doris Adjaye. She is a black lady of African origin. In October 1994 she entered the employment of the Respondents, Dylon International Ltd. It would seem that she was a slow worker.

On 4 December 1997 there was an incident at her place of work involving her and a fellow employee Mrs Cripps. The case for the Respondent was that that incident involved an unprovoked and violent attack by the Applicant on Mrs Cripps. Although Mrs Cripps had not been injured she had been very shaken by the attack, which had involved arm waving, gesturing and verbal threats, including a death threat.

On 5 December the problem posed by this incident had to be confronted by the Respondents. It immediately came to their notice because there was concern as to where the Applicant should work, given the hostility that the incident of the night before had generated. In the result, in the course of that day, an investigation was carried out by the Respondents into the incidents.

The end result of that investigation was that they decided they had no option but to dismiss her summarily for gross misconduct, as defined by their own conditions of employment.

It is material to note that the investigation that day into the incident did not involve the making of any notes of interviews, nor did it involve the compilation of witness statements. The whole exercise appears to have been conducted orally.

Having been dismissed she initiated these proceedings by way of an IT1 that is dated 4 March 1998 and which in box No.1 invoked "Unfair Dismissal" as the grounds for the complaint. That said, in the statement that was attached to it by way of paragraph 8, she complained of racial harassment from her colleagues and gave some account of that. She alleged that the incident in question had reflected racial bias on the part of her fellow employees and although she complained in paragraph 10 of that statement of being unfairly dismissed, by way of paragraph 11 she further asserted, "In addition I have been treated less favourably on the ground of race".

As the matter was being prepared for a hearing before an Industrial Tribunal there came a stage at which those then representing the Respondents, Personnel Consultancy Services Ltd, wrote to the Applicant's representative, Mr Marfo, asking for particulars of the contention that there had been racial discrimination. Some 11 questions were asked, all as set out in a letter of 29 April 1998.

No answers having been give, there did come a stage at which by way of a letter of 12 May, Mr Marfo replied:

"I refer to your letter of 30 May 1998 and write to inform you that the applicant was dismissed after unfair dismissal proceedings. It was for this reason the case has been brought before the industrial tribunal.

I shall therefore be grateful if you will clarify the details you require further.

Counting on your co-operation."

At all events, by the beginning of June, the Respondents were contending forcefully that they had not had the required particulars and in such circumstances the matter came before a Chairman of a Tribunal, sitting alone, with the task of adjudicating on the precise nature of the complaint that was being advanced. On 1 June 1998 that Chairman ruled that the claim was purely for unfair dismissal and struck out so much of the claim as invoked race discrimination.

It is in those circumstances that the matter came before an Industrial Tribunal held at London (South) on 5 June 1998.

At an early stage it seems the Applicant, represented by Mr Marfo, raised again this whole problem of the struck-out claim for race discrimination. We take up the matter as from paragraph 6 of the Extended Reasons:

"6. ... At the commencement of the present hearing the Applicant said that she had written a letter to the Tribunal objecting to the striking out of the race claim and requesting that the claim be reinstated. The Tribunal had not received that letter (dated 4 June 1998) but considered a copy of the letter produced by the Applicant to the Tribunal. The Respondents objected to the Applicant's application on the grounds that the race claim had properly been struck out because the Applicant had failed to show the grounds of her complaint and that it would now be unfair to allow the claim to be re-instated as the Respondents had not come to the Tribunal prepared to answer such a charge. Having adjourned to consider the matter, including the Applicant's letter of 4 June and the Respondent's submissions, the Tribunal decided that the Applicant's letter of 4 June disclosed no new facts or issues which had not already been before the Tribunal when the order to strike out was made. That being so the Tribunal saw no reason to alter the Tribunal's previous decision to disallow the race claim. The hearing was to proceed on the basis of an unfair dismissal and Wages Act / breach of contract claim alone."

By way of the balance of well drafted Extended Reasons the Tribunal sets out its approach to the matter in the light of the evidence that was called before it. Having reviewed the evidence as to the incident in question and as to the conduct of the Respondents on the day following, terminating in the decision to dismiss, the Industrial Tribunal set out its conclusions as follows:

"9. Under section 98(1) of the Employment Rights Act 1996 the employer must show the reason for the dismissal and that it was a reason falling within section 98(2) of the Act. In this case the category of such reason for the purposes of section 98(2) was conduct.

10. Under section 98(4) of the Employment Rights Act 1996 the Tribunal must decide whether or not the dismissal was fair having regard to the reason shown by the employer and having regard to the circumstances of the case, including the size and administrative resources of the employer's undertaking and whether the employer acted reasonably in treating the Applicant's misconduct as a sufficient reason for dismissing the employee.

11. In the light of the circumstances of this case the Tribunal considers that the Respondents acted reasonably within the scope of section 98(4) in that they had a genuine belief in the Applicant's misconduct, and having held an investigation into the incident in question, had reasonable grounds in mind to sustain that belief. The dismissal of the Applicant for a serious assault on a fellow employee was within the bands of reasonable responses open to an employer to take in these circumstances.

12. However, there was evidence of procedural irregularities in the way in which the Respondents conducted the investigation into the incident and effected the dismissal itself. No notes were taken of the interviews with witnesses. No witness statements were taken at the time. The Applicant was not formally told that she faced a disciplinary interview. She was not told that she could be accompanied at a disciplinary interview by a colleague. She was not formally told that she had a right of appeal.

13. The Tribunal concludes that because of the procedural irregularities outlined above, the dismissal of the Applicant was unfair. However, the Tribunal finds that had the correct procedures been followed by the Respondents the outcome of the disciplinary proceedings would have been the same. That is to say, the Applicant would still have been summarily dismissed for the offence of gross misconduct in assaulting a fellow employee. The Applicant contributed 100% to her own dismissal and for that reason the Tribunal declines to make an award of compensation in this case."

Following upon that decision two steps were taken on behalf of the Applicant. The first such step was to ask for a review of the decision, which review merely served to uphold it. The second such step was to appeal to this Tribunal alleging various matters which are said, singly and accumulatively, to demonstrate that the decision of the Industrial Tribunal was wrong in law.

This morning we are hearing this matter by way of a preliminary hearing. Our concern is as to whether we can identify an arguable point of law of sufficient strength to merit an inter partes hearing, that is a further hearing at which the Respondents would be represented so that the Tribunal could have the advantage of submissions from both sides.

On behalf of the Applicant Mr Marfo invites us to take the view that there is a sufficient basis for the matter thus to go forward. He takes a substantial number of points, but in essence they fall into two categories. His first concern is with the fact of a decision by a Chairman on 1 June 1998 to strike out so much of the claim as related to race discrimination. We understood he was submitting to us that no Chairman, sitting alone, would have that jurisdiction. As to that, we remain totally unpersuaded. It is common for Chairmen to exercise that type of jurisdiction, but much more importantly the matter was gone into again, orally on the basis of submissions from him and from the Respondents on 5 June 1998 in front of the Tribunal under appeal. We see absolutely no reason to fault the decision to confine the hearing to unfair dismissal and the allegation of a Wages Act breach. We see no reason why their decision should, in any way, be impugned as defective in law.

The Tribunal had it within its own jurisdiction to review the matter. It reviewed it and we can see no basis whatsoever for contending their conclusion was, in any way, legally defective. In particular, we can see no basis for concluding that that decision was a decision that no properly instructed Tribunal, reasonably directing itself, could arrive at.

Turning then to the balance of his points, they relate to the decisions made by the Tribunal on the merits of the unfair dismissal claim. We have cited in this judgment, in full, the reasoning of the Tribunal so as to demonstrate that it plainly correctly directed itself as to the law, so as further to demonstrate the way in which it applied the law to the facts as it found them.

We can see no error of law at all in its approach. We can see no error of law in the way it applied the law to the facts as it found them. There can be no question here of the decision being plainly perverse. There is no point that we can discern which we could identify for a future Tribunal hearing this matter on an inter partes basis. In all those circumstances, this appeal is dismissed.