United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P HOUSEGO SOLICITOR MESSRS BEERS 29 FORE STREET KINGSBRIDGE DEVON TQ7 1AA
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


JUDGE JOHN BYRT: This is an appeal against a decision promulgated on 29th July 1998 of an Employment Tribunal sitting at Abergele. There is also another appeal in respect of the remedies hearing which was held in the following month and we are dealing with these two matters together. In the first Tribunal decision they held that the Employee had been unfairly dismissed and the Employers appeal that decision.

1. The facts shortly are that the Employee, a Mr Lloyd, has been employed as a Chief Inspector by the Respondents since May 1992. The Respondents provided security services for Stenna Sealink at the Hollyhead port. As Employers they had an equal opportunities policy but it was noted by the Tribunal that there was no training or instruction in that policy for the managers: certainly not at the time of the relevant events.
2. On 27th February 1998 Mr Taylor, Mr Lloyd's Line Manager, was shown four witness statements in which serious allegations of intimidation, bullying and sexual abuse were made against Mr Lloyd. These were promptly shown to Mr Lloyd and he was forthwith suspended pending further enquiry. As a result of these complaints a disciplinary hearing was set up for the 2nd-3rd March 1998. Mr Lloyd was told that he was to attend a meeting. He was accompanied by a colleague but not told that the result of the meeting might be that he would be dismissed. In fact, that is what did happen after the hearing. He was summarily dismissed on the ground of gross misconduct. It is to be noted however, as part of the narrative, that in being told he was being dismissed for that reason he was not given the specific details of the allegations which the disciplinary hearing had found proved.
3. Mr Lloyd appealed as was his right, and on 18th March 1998 the appeal hearing took place, conducted by Mr Kingsley and another manager, Mr Elliott. Again, Mr Lloyd was accompanied by a colleague. At that hearing, Mr Lloyd read out a prepared, detailed statement in which he went through the complaints set out in the Complainants' statements and dealt with each of the allegations one by one. Following that hearing, Mr Kingsley and Mr Elliott together went and interviewed four out of the five Complainants. As a result, on 19th March 1998 the appeal was dismissed. Again, the finding was that gross misconduct had been proved but once more, no details were furnished to Mr Lloyd.
4. Mr Lloyd's case before the Employment Tribunal was that the allegations upon which it was said he had been found guilty were too vague and indefinite; that there was some form of "getting together" or conspiracy between the various Complainants and thirdly, that the investigation which had been carried out by the Employers was flawed. Furthermore, it was said those defects had not been corrected by the appeal process.
5. The Employer's case before the Employment Tribunal was that Mr Lloyd had used his seniority to intimidate and sexually harass the workers who were the Complainants. It was contended that the Employers had a genuine belief in the allegations which had been made, that that belief was reasonable, having regard to the investigations they had undertaken, and that accordingly, they were entitled to summarily dismiss for conduct of this gravity.
6. The Employment Tribunal made certain findings. They were satisfied that the reason for the dismissal was conduct and they then considered whether the Employers had acted reasonably in treating that conduct as sufficient reason to dismiss. They set out the principles of British Home Stores -v- Burchell but thereafter, so it is contended by Mr Housego who has argued the case on behalf of the Employers, they did not go on to answer the questions which that authority says should be asked. They implicitly criticised the investigation which had taken place by saying that Mr Taylor had had no formal meeting with the Complainants; that he did not ascertain the dates when the incidents about which complaint is made were supposed to have taken place, and furthermore, he did not do what he could to ascertain the names of all the relevant witnesses who might have been available to contribute to the hearing.
7. They also found that the company's sexual harassment procedures had not been properly followed. In particular, they were mindful of the provisions in that procedure for informal meetings between the alleged abuser and the victims, with a view to settling the matter informally. They observed that the injunctions to preserve confidentiality had not been observed in that the nature of the allegations being made against Mr Lloyd were known ever before the disciplinary procedures took place.. They also criticised the fact that Mr Lloyd was never informed in writing of the results of the disciplinary proceedings.
8. So far as the appeal process is concerned, they noted that only the Complainants' statements were before the Appeal Panel. They found as a fact that all the complaints had been gone through at both the disciplinary hearing and the appeal, and that four out of the five complainants had been interviewed as part of those proceedings.
9. The Employment Tribunal accepted that the reason for dismissal had been sexual harassment, both physical and verbal, but went on to say that it was not clear to them why this conduct had been treated as gross misconduct,
10. In conclusion, they came to this finding: Mr Taylor who had been primarily responsible for conducting the disciplinary hearing, had not told Mr Lloyd why he was found guilty of gross misconduct. They found that the reasons were clouded in uncertainty. They found that the dismissal was not reasonable and therefore, the dismissal was unfair.
11. Mr Housego's submissions before us today, have been four in number. In relation to the substantive hearing, he says that the Employment Tribunal incorrectly focused on the failure of the Employers to inform Mr Lloyd of the reasons for his dismissal, as if that were an ingredient of unfair dismissal. Mr Housego says that the reasons for a finding of unfair dismissal necessarily are a sequel to that decision, a decision already made and therefore, the reasons cannot possibly be a component or an element of unfair dismissal.
12. In any event, he says, the rules of natural justice had been complied with. Mr Lloyd had been provided with the statements of the complainants. Indeed, he had gone through them during the course of each hearing. He knew the allegations which were being made. He had a chance to explain his side of the story and there is no suggestion that the decision ultimately come to by the Employment Tribunal was one not made in good faith.
13. The second of Mr Housego's submissions is that having cited the case of Burchell, the Tribunal failed to answer the questions which that authority says should be asked. The first question was to whether the Employers had a genuine belief in the allegations made against the Employee. In this instance, it was a question of what Mr Taylor believed and there was no suggestion that the conclusion he came to was not based upon a genuine belief. The next question was whether there had been a reasonable investigation carried out before he came to that decision. It is to be observed, however, at a later stage I shall come to in a moment, that the Employment Tribunal found that indeed, Mr Lloyd had engaged in acts of sexual harassment as set out in a witness statement of one of the complainants called Donna Williams, whose evidence they had totally accepted. On that basis alone, it became unnecessary to determine whether the Employers had carried out a sufficient investigation. It is implicit that coming to that conclusion the Tribunal were coinciding their views with those of the Employers. The question thereafter is to whether the dismissal was a reasonable response in view of the Employers' findings. Mr Housego says that, having regard to the Tribunal's findings that the allegations contained in the statement of Donna Williams had been accepted as proven by the Tribunal, dismissal was plainly and clearly within the reasonable response of the reasonable Employer.
14. The third point Mr Housego makes is that the Employment Tribunal's concern that the Company's own sexual harassment procedures had not been followed was mistaken. This contains some useful suggestions as to how matters might be settled informally where the nature of the allegations of abuse are such as would enable them to be settled on any informal basis. But where you have allegations, of the nature set out in the statement of Donna Williams the Employers have to have an overriding discretion whether to proceed along the lines of the informal procedures or whether to take the matter as a disciplinary matter in the first instance.
15. Fourthly, Mr Housego says that it was implicit in the Employment Tribunal's approach that they thought that the Employers should have attempted an informal resolution of the difficulties which had arisen and to which reference is made in the complainants' statements. He says that, in so thinking, they were in real danger of substituting their own views and opinions how the matter should have been dealt with rather than considering the reasonableness of the Employers' approach.
16. Those are the observations made by Mr Housego in relation to the substantive hearing of the proceedings that took place in July 1998.
17. When coming to the remedies hearing which took place on 7th August 1998, Mr Housego referred to the fact that at that hearing the Employment Tribunal made a finding that Mr Lloyd was, by reason of his own conduct, responsible to the tune of 50% for his being dismissed. He says that that is a finding which should have been made at the substantive hearing held in July and had they come to that conclusion at that hearing it is inconceivable that they would have come to the conclusion that the Employers' response to what was proved was unfair and unreasonable.
18. Mr Housego also takes a further point, that the Tribunal do not seem to have directed their mind to the principle enunciated in Polkey -v- A E Dayton Services Ltd. It seems that they did not stop to ask themselves what would have been the result if the fair procedures they thought should have been followed were in fact, followed. Mr Housego says that if they had considered that issue, it is inconceivable they would have to come to any conclusion other than that Mr Lloyd would have been dismissed anyway. And in consequence, his compensation would have been nil.
19. We have considered each of Mr Housego's submissions with care and we accept them. We think the Employment Tribunal were side-tracked by a number of factors. First, by the fact that Mr Lloyd had not been told the reasons for his dismissal. Mr Housego accepts that the Employers were at fault in that following the disciplinary hearing no letter was written by the Employers to Mr Lloyd setting out the conclusions of the hearing and the reasons for their findings. However, we accept that, for the reasons advanced by Mr Housego, that in itself, is not ground for finding that the procedures or the decision of the Employers to dismiss, were unfair.
20. Secondly, we think they were misled in concerning themselves about the details of the sexual harassment policy. This is a guide furnished to managers and employees alike with a view to avoiding sexual harassment and not a guide or code for disciplinary procedures. We accept the submission that the Employers must have an overriding discretion, taking into account the nature of the allegations being made against an Employee, as to whether they follow the sexual harassment policy line or go for a full fledged disciplinary proceedings.
21. Thirdly, it seems to us to be an error of law that the Employment Tribunal came to a conclusion whether the dismissal was fair or unfair without taking into account their own assessment of whether Mr Lloyd, was guilty of any part of the allegations made against him. It is apparent from the remedies hearing that the Tribunal came to the conclusion that Mr Lloyd was guilty of serious bullying and intimidation of a sexual nature. Had they made that finding in those proceedings conducted in July 1998, it is difficult to see how the Tribunal could have come to the conclusion that the dismissal was anything else other than fair and justified.
22. For all these reasons, we think that the Tribunal did fall into error in a number of ways and that this appeal must therefore be allowed. The question then is to whether we remit this case to be reheard before a differently constituted Tribunal. We see no point in that. We have all the appropriate evidence before us, including the crucial statement of Donna Williams, and we think there is enough before us to enable us to substitute our decision for that of the Employment Tribunal below. Our decision is that Mr Lloyd's application for unfair dismissal fails and we order that that be a decision which is substituted for that of the Employment Tribunal below.
23. Accordingly, this appeal is allowed.