United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR W DIAMOND (Representative) Peninsula Business Services Limited Advocacy & Litigation Department 2nd Floor Stamford House 361-365 Chapel Road Salford Manchester M3 5JY
For the Respondent	MS OMAMBALA (of Counsel) Messrs Thompsons Solicitors Congress House Great Russell House London WC1B 3LW


 


JUDGE PETER CLARK: By an Originating Application presented to the London (South) Employment Tribunal on 2nd July 1998 the applicant, Miss Clements, complained of unfair dismissal by her former employer, the respondent IPC Magazines Limited ['IPC']. That claim was resisted; the respondent contended that she had been fairly dismissed on grounds of her misconduct.

1. The matter came before an Employment Tribunal chaired by Mr D M Booth sitting over four days on 8th to 11th February 1999. By a decision with extended reasons dated 17th February 1999 the tribunal upheld the applicant's complaint and ordered her re-engagement on the terms there set out, such order to be complied with by 1st April 1999.
2. IPC accept the finding of unfair dismissal but by a Notice of Appeal dated 29th March 1999 challenged the re-engagement order as well as the finding of unfair dismissal, now abandoned.
3. By leave of this Appeal Tribunal sitting at a preliminary hearing held on 23rd June 1999 that appeal now comes before us for a full inter partes hearing.

The Facts

4. The tribunal heard oral evidence from Barry Leverett, Head of Personnel and Arthur Tanner, Director of Human Resources on behalf of the IPC, and from the applicant herself. Based on that oral evidence and the documentary evidence before them, the tribunal made the following material findings of fact.
5. At the relevant time the applicant worked on IPC's title 'Women's Own'. She became increasingly unhappy with what she regarded as unacceptable treatment. On 26th March 1998 she presented a grievance to Mr Leverett, complaining of bullying and other matters. On the following day the editor of Women's Own, Keith McNeil and an associate editor, Tanya Spriggs, made a complaint to Mr Leverett about the applicant's behaviour. Their memorandum ended with a report of an anonymous letter received by a rival magazine for which Tanya Sprigg's husband worked. It was addressed to Janice Turner of That's Life magazine and read:

"Dear Janet,

I have it on good authority that flat plans for issues of That's Life magazine are being passed to Women's Own.

Clue1 – sub

Clue 2 can number 2 believe it."

A few days later a second anonymous letter was received by Tanya Spriggs at her home address. It was posted second class on 1st April and read:

"Sorry to say love you should know that your husband has a dirty habit of sleeping with other women which doesn't seem right. In Australia he had a liaison with your friend Julia …"

The letter goes on and is then signed "a friend".

6. Mr Leverett made some enquiries of the other publication, That's Life, and also heard that a colleague of the applicant, Julie Pearson, had told Mr McNeil that in the course of chatter at the time of Tanya Sprigg's wedding, the previous year, the applicant had told her that Tanya Spriggs had slept with another woman. On that evidence Mr Leverett was satisfied that the two letters were written by the applicant and were designed to cause upset to Tanya Spriggs and her husband. He concluded that the letters had been written because of the emnity between the applicant and her colleagues.
7. On 7th April Mr Leverett sent for the applicant without telling her of the purpose of the meeting, nor did he advise her that she could be represented by a colleague or union official. At that meeting, in the presence of Mr McNeil, he outlined the applicant's grievance, and told her in brief about the letters without showing them to her. He said that it was a dismissal matter and outlined terms upon which she could leave with a reference, but made it clear that if she did not accept those terms she would be dismissed. Mr Leverett's evidence before the tribunal was that he wanted to confront the applicant with the letters to get her reaction and that if she emphatically denied them he would have considered the position before going any further. The tribunal found that she did not in terms deny that she had sent the letter, she said that the allegation was part of a plan to get rid of her and she was, the tribunal found, understandably shocked. At the end of that meeting she was summarily dismissed.
8. IPC accepted that that process could not be fair, not least because she had not been accompanied by a union representative.
9. Thereafter, the applicant saw a union representative and lodged an appeal. That came before a Publishing Director, Cathy Day, on 21st May. It appears from the letter, subsequently written by Ms Day, that she formed the view that the applicant had written the offending letters, and she took into account what she described as the applicant's "unwillingness to deny the allegation". Nevertheless, because of the procedural irregularities, she determined that the matter be reheard by Mr Tanner.
10. That hearing took place on 30th June. Mr Tanner concluded that the offences were made out. On that occasion the applicant did not in terms herself deny the allegation, but it was denied via her representative. The upshot was that she remained dismissed.
11. In evidence before the tribunal the applicant, having by then seen the offending letters, said that had she been shown them during the course of the internal disciplinary proceedings, she would have pointed out (a) that she was in Devon when the second letter was posted, we are told from North London; (b) she did not know any staff at That's Life; (c) she did not know that Tanya Sprigg's husband worked at That's Life; (d) that the rumour about Tanya's husband was widely known; and (e) that the type face of the letters was not available to her.

The Employment Tribunal decision

12. (1) Liability

The tribunal accepted that IPC had a genuine belief that the applicant had written the two anonymous letters, but that they did not have reasonable grounds for that belief. The applicant was not given sight of the offending letters nor given a proper opportunity to rebut the charge against her. Further, they found that the employer's investigation was similarly flawed.

The tribunal further accepted that IPC genuinely believed that the applicant had acted in a hostile manner to other members of staff, but again, found that she had not been given a proper opportunity to deal with that charge.

In these circumstances the tribunal held that the dismissal procedure used in this case was substantially flawed. The dismissal was unfair.

(2) Remedy

In deciding to make an order for re-engagement the tribunal expressed their view of the matter at paragraphs 25 to 29 of their reasons in this way:

"25. The Applicant opted for re-instatement or in the alternative re-engagement as she had indicated in her Originating Application. She told us that four weeks after her dismissal she began working for the Respondents as a freelance writer for another magazine Options, and there had been no problem. This arrangement only ended because Mr Leverett found out and immediately put a stop to it. Mr McKellan [McNeil] had unfortunately died and Ms Spriggs was no longer attached to Women's Own magazine and therefore there should be no problem for her to return to her old job.

26. The Respondent stated starkly that under no circumstances would they ever employ her again. Their belief that she had written the anonymous letters was genuine and in those circumstances the order should not be made.

27. We decided that re-instatement should not be ordered. The Applicant had clearly had complaints about many other people than Mr McKellan [McNeil] and Ms Spriggs who would have knowledge of the bitter complaints, and they had already threatened to resign if she went back to Women's Own.

28. We thought re-engagement was much more practicable. The Applicant had worked on another title without problems and in an organisation with 2,000 staff and discrete departments built around titles she should be able to be accommodated without difficulty.

29. Mr Leverett and Mr Tanner are experienced personnel professionals. They would not come into day-to-day contact with the Applicant and should be expected to contain their feelings about her and deal with her objectively."

At no stage in the reasons did the tribunal expressly deal with IPC's contention that the applicant had contributed to her dismissal by her own conduct.

The Appeal

13. The grounds of appeal set out at paragraph 4 of the Notice of Appeal are formulated thus:

"The appellant's grounds of appeal are:

a) that the Tribunal erred in law in that no reasonable Tribunal properly directing itself could have reached the decision it did having regard to the findings of fact made;

b) that the Tribunal erred in law in failing to address at all the appellant's submission that the Tribunal was required to consider the question of the extent to which the employee contributed to her own dismissal and to further consider the implications of their finding on contributory fault in the context of a request for reinstatement or reingagement.

c) the Tribunal erred in law in concluding that reingagement was a just and equitable remedy taking account of the finding at paragraph 23 [the finding that IPC had a genuine belief in the misconduct alleged].

d) the Tribunal further erred in failing to consider the question of the difference if any which would have been made by a fair procedure."

14. The first question which arises at this full appeal hearing concerns a question of EAT practice.
15. At the preliminary hearing stage it is open to the division of the EAT hearing the case to dismiss the appeal; allow the appeal through on all grounds raised in the Notice of Appeal or to allow the appeal through on one or more grounds and to dismiss the remainder.
16. A difficulty arises where it is unclear on which grounds an appeal has been permitted to proceed. Take this case. In the judgment given by Judge Altman at the preliminary hearing stage, the point of law identified for a full hearing focuses on ground (b) at paragraph 4 of the Notice of Appeal; we shall call that the "contribution point". That point is put in three different ways at paragraph 9 of the judgment. However, the judgment is silent both as to the liability part of the appeal, grounds (a) and (d) and a further point on remedy, ground (c), which we shall refer to as "the practicability point".
17. The liability part of the appeal is expressly abandoned, quite rightly we think, by Mr Diamond, and thus no point arises so far as that aspect is concerned. However, he wishes to pursue the practicability point at this hearing.
18. Ms Omambala submits that she ought not to be required to deal with the practicability point and indeed her skeleton argument is directed solely to the contribution point expressly identified at the paragraph 9 of the preliminary hearing judgment.
19. Mr Diamond submits that unless a ground of appeal is expressly rejected at the preliminary stage it is open to the appellant to pursue that point at the full hearing.
20. We think that strictly Mr Diamond is correct. Unless and until a ground of appeal is rejected by this EAT it remains arguable. However, failure to make clear that this is the position may place the respondent at a disadvantage at the full hearing. For this reason we indicated to Ms Omambala that should we require further argument on the practicability point, we should give the parties an opportunity to address us further. In the event, for the reasons which follow, that is not necessary in this case.
21. We turn then to the two issues raised by Mr Diamond on the Employment Tribunal's remedies decision.

(1) The contribution point.

It is common ground before us that the four-day hearing before the Employment Tribunal took the following course. On the first day the tribunal adjourned to read the documents in the case before hearing oral evidence. The witnesses whom we have mentioned for both sides were then heard on the second and into the third day. Thereafter, on the third day, both representatives who appear before us today addressed the tribunal in closing on the issue of liability. The tribunal then adjourned to the following fourth day to consider their decision on liability. On the fourth day Ms Omambala was unable to attend and her brief was held by another member of her chambers. On the morning of the fourth day the Chairman orally delivered the Employment Tribunal's decision on liability, with reasons. Immediately thereafter both representatives addressed the tribunal on remedy. No further evidence as to remedy was called on behalf of IPC. In particular, Mr Diamond accepts that there was no evidence led before the tribunal to the effect that the employers believed that the necessary trust and confidence in the applicant had been destroyed, and no such evidence had been led at the liability hearing stage.

That sequence of events is material to our conclusions on both points taken in this appeal, as we shall endeavour to explain.

Mr Diamond first submits, correctly, that the tribunal make no reference to the submission which, it is common ground, he made at the remedies stage, that the applicant had contributed to her dismissal by her own conduct for the purposes of ss.123(6) and 116(3)(c) of the Employment Rights Act 1996. The meaning of contribution is the same for the purpose of both those subsections. Following the judgment of Brandon LJ in Nelson v British Broadcasting Corporation (No. 2) [1980] ICR 110 it is for the employer to show that the applicant was guilty of culpable or blameworthy conduct which caused or contributed to the dismissal. It will then be for the tribunal to assess the percentage deduction which it is just and equitable to make in respect of any contribution found on the part of the applicant.

We emphasise that it is for the employer to show that in fact the applicant was guilty of causally relevant culpable or blameworthy conduct. It is not enough that the employer had a reasonable belief based on reasonable grounds following a reasonable investigation in the applicant's guilt; the test of reasonableness when considering the fairness of a conduct dismissal under s.98(4).

We have no doubt that the tribunal ought to have dealt expressly with this submission and given a reasoned ruling on it. A finding of contribution is a material factor which must be taken into consideration by the tribunal when considering whether or not to order the remedy of re-engagement. S.116(3)(c). It follows, in our judgment, that in failing to make an express finding on the question of contribution the tribunal fell into error. See Portsea Island Mutual Co-operative Society Limited v Rees [1980] ICR 260.

However, that is not the end of the matter. It is open to this Appeal Tribunal to dismiss an appeal, or ground of appeal, notwithstanding that an error of law in the tribunal's decision is disclosed, if the tribunal's decision is nevertheless plainly and unarguably right. Dobie v Burns International [1984] ICR 812.

We return to the evidence led before the Employment Tribunal. No direct evidence was called on behalf of IPC to show that the applicant had in fact sent the two anonymous letters, or that she had behaved in a hostile manner towards her colleagues. In these circumstances there was no evidence on which the tribunal could base a finding that the applicant was in fact guilty of the culpable and blameworthy conduct for which she was dismissed,

However, Mr Diamond puts the case rather differently. He submits that by failing to deny the charge in relation to the authorship of the two anonymous letters the applicant did an act which caused or contributed to her dismissal and that that amounted to culpable or blameworthy conduct.

We reject that argument. An admission of guilt by the applicant would plainly have been the best evidence of culpable or blameworthy conduct on her part. However, she made no admissions at the first two disciplinary hearings before Mr Leverett and then Ms Day. At the third hearing before Mr Tanner, though her union representative, she denied the charge.

Further, this sequence of events must be seen against the background that IPC deliberately withheld the offending letters from the applicant until after tribunal proceedings were commenced and the evidence given by the applicant to the Employment Tribunal in relation to those two letters to which we have earlier referred.

In these circumstances we are satisfied that the tribunal's implicit rejection of the employer's argument on contribution was plainly and unarguably right and accordingly we dismiss this ground of appeal.

(2) The practicability point

Mr Diamond places reliance on the Scottish EAT judgment, delivered by Lord Johnson, in Wood Group v Crossan [1998] IRLR 680. There the applicant was dismissed on the grounds that he had engaged in drug dealing at the workplace and for timekeeping and clocking offences. The Employment Tribunal found the employer had a genuine belief that the applicant had misconducted himself in the ways alleged, and that they had reasonable grounds for that belief based on various witness statements which they had collected and in circumstances where the makers of those statements wished to remain anonymous. However, the tribunal went on to find that the employer had not carried out a reasonable investigation and on that ground held the dismissal to be unfair. The tribunal went on to make an order for his re-engagement.

On appeal the finding of unfair dismissal was upheld but the re-engagement order set aside. The EAT held that on the facts the essential bond of trust and confidence had been broken and it was not practicable to order re-engagement.

Mr Diamond submits that the same result must inevitably follow on the facts of this case. We disagree. The factual circumstances are quite different. Here, the tribunal expressly found that IPC did not have reasonable grounds for their belief in the applicant's misconduct. There was no evidence before them that the necessary trust and confidence was destroyed. In these circumstances we are satisfied that on the question of practicability, which is essentially a question of fact for the Employment Tribunal, there are no grounds for interfering with this decision.

22. It follows that this appeal is dismissed.