United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR W DIAMOND (Consultant) Peninsula Business Services Ltd Advocacy & Litigation Dept 2nd Floor, Stamford House 361-365 Chapel Street Salford Manchester M3 5JY


 


JUDGE JOHN ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London South over four days in February 1999. The appeal is against the order of re-engagement, which was effectively on terms which contained no discount on account of any possible contributory conduct. The matter comes before us by way of preliminary hearing to determine whether there is a point of law such as to enable this matter to be argued in full before the Employment Appeal Tribunal.

1. The brief history of the matter is that the Respondent began work for the Appellants on 5 February 1996. On 7 April 1998 she was dismissed at the end of a dismissal hearing and investigations and those were followed by subsequent hearings on 21 May and 30 June which had been argued as having had the effect of correcting any deficiencies at the time of the dismissal.
2. The main area of complaint by the Appellants against the Respondent was that she had sent malicious and upsetting messages about fellow employees. The matter had been dealt with by the Respondents in disciplinary procedures, which the Employment Tribunal found to be flawed. In their decision they found that the reason for dismissal was for conduct. They were concerned as to whether the reason was in their words "just to get rid of a troublesome employee who was complaining about her colleagues" but in the end they concluded that the reason for dismissal was that the Respondent "acted in a repeatedly hostile manner and sent the anonymous letters".
3. They then looked at the elements of procedure in five sub-paragraphs and found that although there was a genuine belief that the Respondent had written the letters, they found as a fact that there were no reasonable grounds to sustain that belief and they concluded that that was because they had gathered evidence but failed to give the Respondent even a sight of the alleged documents so that she could rebut them and give evidence. They concluded that that could not be a belief based upon reasonable grounds. They then found that that fed into the investigation because at none of the hearings was the Respondent shown the letters or her considered comments upon them listened to.
4. Then it appears that in her letter of dismissal a further ground was alleged of acting in a repeatedly hostile manner towards other staff. In addition to the sending of the anonymous letter, the Employment Tribunal found that they had no doubt that the Respondent did not know the full nature of the allegations against her when she attended the final hearing. She had no written notice of what she was alleged to have done in relation to hostile behaviour for either of the later hearings.
5. Furthermore the Employment Tribunal rejected an explanation that that reference to hostile behaviour was simply meant to refer to the motive behind writing the letters because it had been made effectively a separate issue. They found that it follows that if her disruptive behaviour was a reason for dismissal then she did not have proper notice that this was to be alleged against her. That also, they said, followed on to the 30 June meeting.
6. Finally they had reservations about the fact that the Appellants interviewed the alleged victim after the hearing without the Respondent having an opportunity to deal with matters which there transpired. They concluded in these words:

"Because of those conclusions the other questions we ask ourselves, namely the reasonableness of the reaction in dismissing do not arise. These proceedings are flawed and substantially flawed and we therefore find that this dismissal is unfair."

7. That is the background to the issue before us which relates to remedy. The Employment Tribunal determined on re-engagement as more practicable than reinstatement. We have been told by Mr Diamond that he made submissions in relation to contributory fault both as to the desirability for reinstatement or re-engagement on the one hand and also as to the question of any award in calculating any payments in the event of an order for re-engagement. It is quite clear that these are matters which fall for consideration in the Employment Rights Act 1996 and it is quite clear that the Employment Tribunal did not specifically address the question of contribution either when deciding upon the remedy of re-engagement or upon deciding upon the particulars to accompany the order for re-engagement. In particular in paragraph 30(e) of their decision they said that there should be such rights and privileges which accrue because of continuous employment since 5 February 1996.
8. It seems to us arguable that on the findings of the Tribunal the question of contribution just never arose. The Employment Tribunal never made a finding one way or another as to whether or not the letters were sent, and in effect in the passage I have quoted, they say that the reasonableness of the reaction in dismissing does not arise as a question. Mr Diamond argues that the Tribunal should have made a finding as to compensation or contribution even if to say that it did not arise. It seems to us that there is an arguable point of law in that respect. He also asserts that there was an element of contribution to be argued for in relation to the failure of the Respondent to explain her side of it but of course that was dispelled in the Tribunal's findings by saying that the Respondent was never given an opportunity to put her case properly.
9. So the point of law, it seems to us, which arises is this: did the Tribunal in their findings reach a point where there was no prospect of a finding of contribution because the employers by their procedural flaws had prevented the evidence being adduced to form a basis of such a finding, or did the Tribunal err in failing to make a finding one way or another in this respect. And if they failed to make such a finding, did it make any difference to the final result taking account of their other findings. Accordingly we direct that this matter go for full hearing before the Employment Appeal Tribunal.
10. This matter has now been very considerably delayed and we are troubled that such delay has been caused on the back of an order for re-engagement. We do not say that that is anyone's fault but it is an unfortunate feature of this case and we ask that this matter now be fast tracked if possible for a prompt hearing which we would not have thought need take more than one hour in Category C, the Skeleton Arguments being submitted not less than 14 days before the hearing.