United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P THORNTON (of Counsel) Post Office Legal Services Impact House 2 Edridge Road Croydon CR9 1PJ
For the Respondent	MISS J MULCAHY (of Counsel) Messrs Hallett & Co Solicitors 11 Bank Street Ashford Kent TN23 1DA


 


MRS JUSTICE SMITH: This is an appeal by the Post Office from the decision of an Industrial Tribunal sitting at London (South) on 10^th December 1997, which found that the applicant, Mr George Scott, the respondent to this appeal, had been unfairly dismissed from his employment. Mr Scott was employed by the appellant from September 1985 until, on 11th April 1997, he was dismissed for gross misconduct, namely an assault on a subordinate.

The incident which lead to his dismissal occurred on 6th March 1997, when Mr Scott, then a

Processing Manager at Nine Elms, spoke to a man named Mr Navarro, a part-time casual worker, about his work performance. Mr Navarro's response was abusive and Mr Scott invited him into his office to continue the conversation in private. During the resumed conversation, Mr Navarro made an offensive remark about Mr Scott's wife, which upset him greatly. As the meeting ended, Mr Scott rose to leave the office and there was a physical exchange between the two men. We put the matter in this neutral way because exactly what did happen became an issue at the disciplinary hearing which followed and at the hearing before the industrial tribunal.

The tribunal found that immediately after leaving the room, Mr Navarro made a complaint to Mr Baker, the Shift Manager, that Mr Scott had head-butted him. He may also have said that he had been punched on the nose although this is not clear from the decision. The tribunal found that Mr Scott left the room in a very excitable state and took off his tie and badge as an expression of his anger towards Mr Navarro. Mr Baker took Mr Scott into his office, told him that Mr Navarro had alleged that he had head-butted him and asked for his response. Mr Scott did not deny the allegation. Mr Baker then brought the two men together and asked Mr Navarro to repeat his allegations. The tribunal found that Mr Scott did not admit that he had punched Mr Navarro on the nose. It seems, however, although it is not clear from the decision, that he did not deny head-butting Mr Navarro. Mr Baker suspended both men. He did not make notes of these conversations.

The next day, 7th March, Mr Baker continued the suspension of both men. He conducted an investigatory interview with Mr Scott in the presence of a trade union representative, Mr Mahoney. A very brief handwritten note was taken of this meeting, which was later expanded into a fuller account of what had been said. These notes were later to be challenged as inaccurate. Neither the brief note nor the expanded account mentioned the word 'head-butt'. The brief note indicates that after Mr Navarro had said something about Mr Scott's wife, Mr Scott admitted 'to hitting Mr Navarro once, missing once'. The note also says that Mr Scott admitted that both men had used abusive language.

The expanded version of the notes say that, when asked whether he had assaulted Mr Navarro and how many times he had hit him, the respondent had answered:

'I admit to hitting Mr Navarro once and missing him with the second'.

When asked if he realised what serious trouble he was in he replied:

'Yes I do but something inside me snapped as my wife is five months pregnant and I just hit out'.

Later the notes say that the respondent admitted that he was 'in a rage' as he came out of the office. At the end of the meeting, the respondent's suspension was continued. The notes of that interview were not sent to the respondent as they should have been pursuant to the appellant's disciplinary code.

At some time between 7th and 20th March, in the absence of Mr Baker and without his approval, another manager lifted the suspension of Mr Navarro. Both Mr Scott and Mr Navarro were ordered to attend separate disciplinary hearings on 20th March. Mr Navarro's hearing resulted in a warning and a 3 day suspension. He had already been reprimanded in the past for insubordination.

Mr Scott's disciplinary hearing was conducted by Mr Baker. Mr Scott was accompanied by a different union representative, Mr Hallman (described in the notes as Mr Horman or Hurman). At the outset, the notes of the meeting of 7th March were handed over and an adjournment was allowed for them to be read. It does not appear that any objection was taken to the accuracy of the notes. When the meeting resumed, Ms Jane Simpson took handwritten notes, which were later typed out in expanded form. These notes were later to be challenged as inaccurate in important respects.

According to the notes, Mr Scott was asked to give his account of the incident on 6th March. He explained the background in some detail. When he described how Mr Navarro had made a disparaging suggestion about his wife, Mr Scott said that he got up to protect himself. Asked if he had asked Mr Navarro to leave the room, the typed notes record that the respondent replied:

'He (Mr Navarro) couldn't walk past me. I was standing at the door, my arms came up'.

The next question recorded was:

'How did you hit him?'

to which the reply was recorded as:

'Not forcibly (top of head) not hard. I then said to myself, what are you doing'.

It is then recorded that Mr Baker reminded Mr Scott that he had previously said that he had head-butted Mr Navarro, to which Mr Scott replied:

'Yes I did; then my arm moved upwards as though I was going to hit him again but I stopped myself'.

Mr Baker then put to him Mr Navarro's allegation that after head-butting him, Mr Scott had punched him on the nose. The notes record that Mr Scott replied:

'No, I definitely did not. I head-butted him and then held back.'

A little later, Mr Scott is recorded as saying:

'After I head-butted Mr Navarro, I thought what have I done? I am a manager; get Bob (Mr Baker)'.

The notes record that Mr Scott had said that he was still shaking but did not remember taking off his tie or badge. A while later, when asked why he thought Mr Navarro had not hit back, Mr Scott is recorded as saying:

'My intention was just to stun him; which I did; I could have hurt him in a different way.'

Mr Baker suggested that Mr Navarro was probably shocked that a manager had hit him. At this stage, Mr Hallman/Hurman intervened to say:

'No doubt George (Scott) hit the man and I think I'm right in saying George is sorry for his actions. I feel that George is an inexperienced manager; he was wrong, possibly provoked; in hindsight George wouldn't have taken the steps he did.'

To this, Mr Scott is recorded as saying:

'I actually believe I did the right thing up to the point of hitting him'.

He was then asked if he thought he had had a fair hearing and he said he did.

On 1st April 1997, Mr Baker sent Mr Scott two copies of the typed notes of 20th March and invited him to acknowledge them as a true record of the interview. If he wished to dispute the accuracy of the notes, he was asked to submit his comments in writing within 3 working days of receipt, failing which Mr Baker would make his decision on the basis of the available information. The tribunal record that Mr Hallman/Hurman told Mr Baker that he wished to make some amendments to the notes but 'appears never to have done so'. They also record that Mr Scott expected Mr Hallman to get in touch with Mr Baker. Mr Baker's evidence on the point was that Mr Hallman told him there were some minor alterations to make but nothing of substance.

On 11th April, Mr Baker made his decision to dismiss Mr Scott with 3 months' notice. He was later to tell the tribunal that he did not think that the fact that Mr Scott had an unblemished disciplinary record was relevant to the decision to dismiss, although he had taken it into account when deciding to give 3 months' notice rather than dismissing summarily.

Mr Scott appealed and a date was fixed for 5th June. Meanwhile, on 28th April 1997, he filed an application at the Industrial Tribunal, claiming he had been unfairly dismissed. His account of the incident of 6th March was that Mr Navarro had told him that instead of 'watching him, (Mr Navarro), he (Mr Scott) should watch his wife'. As he said that, Mr Navarro raised his fist to strike Mr Scott in the face. In trying to avoid the fist, the two men had unfortunately clashed heads. He, Mr Scott, was only trying to defend himself and to avoid Mr Navarro who had lashed out first. He was upset by the decision to dismiss him as he felt that the Post Office were not giving proper support to their managers. He complained of the delay in sending him the notes of the meeting of 20th March and that they were inaccurate when received.

The appeal was heard by Ms Little on 5th June 1997. She had a copy of the respondent's IT1. The respondent attended with a union representative Mr Simpson. A full note was taken and there does not appear to be any dispute as to its accuracy. Soon after the meeting began, the respondent said that he had not hit Mr Navarro. He explained the verbal altercation and claimed that as Mr Navarro made the offensive remark about the respondent's wife, he, Mr Scott, saw Mr Navarro's arm coming towards him and, as he tried to avoid it, their heads clashed. He told Ms Little that throughout all the proceedings before Mr Baker, he had said that their two heads had clashed. When Ms Little drew his attention to the admissions recorded in the notes of the interview of 7th March, Mr Scott said that the notes were inaccurate. She asked him about the admissions recorded in the notes of 20th March. He said that the notes were inaccurate and the amendments he had later wished to make had not been included. He said he had never said that his arms had come up; it was Mr Navarro's arm which had come up. He said he had never said he had head-butted Mr Navarro; he had said that their heads collided. Asked why the word head-butting seemed to appear throughout the case, he explained that on the first occasion (6th March) when he had been asked by Mr Baker whether he had head-butted Mr Navarro, he had agreed that he had done so without realising what he had said. Ms Little noted all the inaccuracies alleged by Mr Scott. He challenged every reference to him having head-butted or hit Mr Navarro and almost every admission made by him or on his behalf that he had done anything wrong. Asked about taking off his tie and badge, he said he had done this because he was hot. He was not angry. He repeated that he had not head-butted Mr Navarro; if he had done so, the man would have been injured and he was not. There had been only a collision of heads. A number of other issues were discussed but these are not relevant to this appeal.

After the appeal hearing, Ms Little investigated various issues raised by Mr Scott. In particular she asked Ms Jane Simpson whether on 20th March Mr Scott had denied head-butting Mr Navarro. Ms Simpson said that he had not. On 8th August, Ms Little rejected the appeal, saying that she believed Mr Scott had assaulted Mr Navarro and that such behaviour could not be condoned in a manager.

The employers' case before the tribunal was that Mr Baker had honestly believed that Mr Scott had assaulted Mr Navarro and that the belief was based upon reasonable grounds because Mr Scott had admitted the assault on 6th, 7th and 20th March. Because of those admissions, no further investigation was required. Even so, there had been an interview on 6th March and another on 7th, followed by the hearing on 20th. Witnesses had given statements that they had seen Mr Scott angry and out of control. When Mr Scott had changed his story after dismissal, Ms Little had reinvestigated his claims. The procedures had been fair throughout and the decision to dismiss was within the band of responses open to a reasonable employer.

The employee's case was that Mr Scott had not head-butted Mr Navarro. The notes of 20th March were incorrect. The employers' belief in misconduct had not been established because the investigation had been insufficient. Mr Baker had assumed that a deliberate act of violence had occurred. He had agreed he may have been the first to use the word 'head-butted.'

Both parties invited the tribunal to be guided by the decision in British Home Stores v Burchell [1980] ICR 303 and the tribunal directed itself accordingly. The tribunal found that the reason for dismissal was one relating to the conduct of the employee. They found that Mr Baker honestly believed that Mr Scott was guilty of a physical assault on Mr Navarro, but they found the dismissal unfair for reasons which, in summary, depend on findings and reasoning that:

(i) Mr Scott did not head-butt Mr Navarro,

(ii) Mr Baker was the first to use the expression 'head-butt'on 6th March. Mr Scott, who had not had the chance to collect his thoughts on that occasion (as the appellants' procedures provided that he ought) 'knowing that there had been an accidental clash of heads, did not correct him, seeing no distinction between the two expressions': see paragraph 4(d) of the Reasons.

(iii) Mr Baker did not thereafter explore what had really happened but assumed from the acceptance of the word 'head-butt' that a deliberate act had occurred, whereas a clash of heads could have been accidental. He assumed that the offence had been admitted and required little investigation.

(iv) In respect of the meeting on 7th March, Mr Scott had not disputed that there had been physical contact with Mr Navarro but in so far as the word 'head-butt' may have been used, Mr Scott was referring to an accidental clash: see paragraph 4(e). The record of the meeting was 'inadequate' (in what respects the tribunal do not say) and the notes were not sent to Mr Scott. Mr Baker had prejudged the factual issues, saying that he had no doubt that Mr Navarro had been hit.

(v) In respect of the hearing on 20th March, Mr Baker again used the words 'head- butting' to describe the contact and Mr Scott did not dispute it: see paragraph 4(g). He did deny hitting Mr Navarro on the nose. Where Mr Scott was recorded in the notes as using the word 'head-butted' or as having made other admissions, the accuracy of the notes was in dispute. The tribunal describe the record of this interview as 'apparently inaccurate' although they do not say in what respects.

(vi) Mr Baker entertained a genuine belief in Mr Scott's misconduct but this was not held on reasonable grounds because, having assumed that the assault was admitted, he did not then conduct a satisfactory investigation or conduct a fair disciplinary hearing.

(vii) The appeal did not cure the defects of the disciplinary process because Ms Little 'accepted the original assumption that Mr Scott had admitted head butting'.

In this appeal, Mr Thornton, for the appellant, submitted that the Tribunal erred from the start in that it based its reasoning on its finding or implied finding that Mr Scott did not head-butt Mr Navarro but that there was only an accidental clash of heads between them. Having done that, it substituted its own view for that of Mr Baker, whose belief was that Mr Scott had head-butted Mr Navarro. It seems to us that although the tribunal did form that view , they did not substitute their view for that of Mr Baker. They recognised that Mr Baker honestly believed that Mr Scott was guilty of an intentional assault.

Second, Mr Thornton submitted that the tribunal reached a perverse decision when they examined the reasonableness of Mr Baker's belief and held that he had failed to conduct an adequate inquiry. In effect, they sought to say that Mr Baker had relied on recorded admissions which were not genuine and ought not to have been relied on. He should have conducted a full inquiry into what had happened. Mr Thornton submitted that Mr Baker was entitled to rely on the admissions, which had been made three times, (twice in the presence of a union representative), unless he had some reason to suppose they were not genuine. He had no such reason. There was no finding by the tribunal that Mr Scott ever told Mr Baker that he had not head-butted Mr Navarro. There was no finding that he told Mr Baker that in his view a head-butt was the same as a clash of heads. The tribunal had failed to make the finding of fact necessary to support their criticism of Mr Baker's enquiry, namely that Mr Scott had told Mr Baker that he had not head-butted Mr Navarro. Their decision was flawed as a result.

Miss Mulcahy for the respondent accepted that if Mr Scott had made what she called a 'good' admission, that is one on which Mr Baker was entitled to rely, his enquiry could not be condemned as inadequate. But, she submitted that there was no 'good' admission. She submitted that the finding at paragraph 4(d) in respect of the brief discussion between Messrs Baker and Scott on 6th March, amounted to an explanation to Mr Baker that Mr Scott was not admitting a head-butt, only a clash of heads. We find ourselves unable to accept that submission. The finding is that Mr Scott, 'knowing that there had been an accidental clash of heads, did not correct him (Mr Baker), seeing no distinction between the two expressions' In our view, that finding says nothing about what Mr Scott said, only what was in his mind.

Further, Miss Mulcahy submitted that, reading together the tribunal's preference for Mr Scott's evidence over Mr Baker's and their finding that the notes of the meeting on 20th March were 'apparently inaccurate', we should infer that the tribunal found that the notes were inaccurate in all the respects in which Mr Scott had claimed they were inaccurate. Examination of the notes reveals that Mr Scott did not tell the tribunal in what particular respects the notes were inaccurate, although he denied using the word 'head-butt'. The only inaccuracy specifically referred to in the decision was that Mr Scott had denied saying: 'After I head-butted Mr Navarro, I thought what have I done, I am a manager.' However it is clear from Ms Little's notes of the appeal that Mr Scott told her that the notes of 20th March were inaccurate in many specific respects.

We would be prepared to infer that the tribunal had accepted that Mr Scott had made it clear to Mr Baker, on one or more of the available opportunities, that he had not head-butted Mr Navarro, if that inference were consistent with the tribunal's specific findings of fact. However, we do not think that inference is consistent with the tribunal's findings as set out in paragraphs 4(d), (e) and (g). We have already referred to paragraph 4(d) and the finding, in respect of 6th March, that when Mr Baker used the term 'head-butting', Mr Scott did not correct him. This is incompatible with the suggestion that Mr Scott told Mr Baker he had not head-butted Mr Navarro. At paragraph 4(e), referring to the 7th March, the tribunal's finding is that Mr Scott 'accepted that there had been physical contact with Mr Navarro and in so far as the word 'head-butt' had been used, he (Mr Scott) was referring to the accidental clash of heads.' This could possibly be consistent with the inference that Mr Scott told Mr Baker that by the use of the term `head-butt' he was referring to a clash of heads or that he told Mr Baker that he saw no difference between the two expressions. However, we think this passage more naturally conveys the meaning that, when the word head-butt was used, Mr Scott, in his own mind, was referring to a clash of heads. At paragraph 4(g), in respect of 20th March, the finding is that when Mr Baker again used the word 'head-butting' to describe the contact, Mr Scott did not dispute it. Here again the finding is clearly incompatible with the suggestion that Mr Scott told Mr Baker that he denied head-butting.

The only passage on which Miss Mulcahy sought to rely in support of her contention that the tribunal had found that Mr Scott had made it clear to Mr Baker that he did not admit to having head-butted Mr Navarro, or otherwise assaulted him, was that recorded in paragraph 4(d) to which we have already referred and which we have already said cannot, in our view, bear the construction she seeks to put on it. In addition we have been referred by Mr Thornton to the several remarks which Mr Scott is recorded as having made on 7th and 20th March, (not all of which appear to have been disowned) which are consistent only with an intention to assault. We note in particular the evidence that although Mr Scott told Ms Little that Mr Hallman had not made the damaging admission recorded in the notes of 20th March, namely that 'he had hit the man', he accepted at the tribunal hearing that those words had been used.

We are driven to hold that the tribunal's conclusion cannot stand. The tribunal did not make the finding of fact essential to support its decision, that at some stage Mr Scott conveyed to Mr Baker that he had not assaulted Mr Navarro. We cannot infer that the tribunal so found because that would be inconsistent with their express findings. In the absence of such a finding of fact, the conclusion that Mr Baker's belief in Mr Scott's guilt was unreasonable is clearly untenable. Our conclusion is that the appeal must be allowed, the decision set aside and the case remitted for re-hearing before a differently constituted tribunal.