United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ROIN HOWARD (of Counsel) Messrs Wortley Redmayne & Kershaw Stonebridge House Stone Walk High Street Chelmsford CM1 1EY
For the Respondent	MISS J HEAL (of Counsel) Messrs Doyle Clayton 69 - 70 Market Lane London EC3R 7HS


 


JUDGE ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at Stratford on 28 June 1999. It was subject to a preliminary hearing before this Tribunal on 14 January 2000, in which three arguable points of law were identified and the appeal proceeds on the basis of those three.
2. We deal with them in reverse order. In their conclusions the Employment Tribunal defined the question for decision as being whether the decision to dismiss the Appellant was "not within a range of reasonable Reponses open to a reasonable employer faced with breaches of important rules as existed in this case."
3. The area of law relating to the range of reasonable responses has developed and Mr Howard helpfully and realistically (if we may say so) has accepted that this does not now give rise to an independent ground of appeal, but it informs our approach to the other grounds of appeal because in the recent case of Madden the Employment Appeal Tribunal indicated that the Tribunal must approach the identification of the real reason for dismissal with some care in the way it directed in that case. Mr Howard does not now say that the Employment Tribunal erred in law simply because they stated that as one of the principles that they took into account.
4. Accordingly the appeal does not fall to be allowed on that point. The second matter that went forward for appeal is the argument that the line manager should not have conducted the disciplinary procedure which led to dismissal because in a large organisation such as this group, a more suitable person or persons to conduct the original dismissal process and take part in the appeal hearing could have been identified. It is also said that the line manager was a witness in that he knew the Appellant and something about some of the transactions. The way in which an employer devises an employment procedure is a matter of management for an employer. Some organisations believe that a completely fresh mind should be brought to bear from the Human Resources section or another department; other employers think that the best person to conduct disciplinary procedures is the person that knows the employee and knows his strengths and weaknesses and is able to deal with discipline as part of day to day management which requires a good relationship to be built up between manager and subordinate and that this is all part and parcel of it. Some employers think that there should be a combination of the two. The task for an Employment Tribunal, whatever procedure is adopted, is to determine in accordance with the Act whether the employer acted reasonably. It seems to us impossible to argue that there is one particular way of dealing with disciplinary procedures that has the stamp of legal approval per se and others that do not. Each case must turn on its own facts. Accordingly we find that there is nothing in that ground of appeal.
5. We turn now to what seems to be the only ground of substance and for reasons which will become apparent we propose to deal with it briefly. It is identified in the judgment of Mr Commissioner Howell QC, in the preliminary hearing as follows. The procedures adopted by the employers was said to be unfair in that:-

"a memorandum from Mr Kearns who had imposed the original dismissal was before the divisional manager Mr Alexander who conducted the disciplinary appeal, but that the allegations in that memorandum were not put to the Appellant at all in the course of the appeal process so that he did not have an opportunity of dealing with them"

6. Both in the first disciplinary hearing and in the appeal the Appellant was challenged about a number of purchase procedures that he had adopted in relation to transactions concerning his family. He was an employee of over thirty years standing, he was the manager of a Superstore with a very substantial turnover. He was privy to and knowledgeable of the company's procedures. It was argued that he was dismissed for breach of procedures, whereas in truth behind it the Respondents had belief in his dishonesty which was not discussed with him at the appropriate time or investigated independently. Suffice it to say that we are satisfied that in their decision the Employment Tribunal at the end of their decision set out their finding as to the real reason for dismissal

"After a reasonable investigation in all the circumstances of the case, the Respondents by their manager Mr Kearns concluded that the Applicant had abused the various rules which had been laid down and that those abuses gave benefit to himself and members of his family. In doing so, he had placed company property at risk and indeed had subjected the Respondents to a loss in that the replacement microwave was obtained for his daughter in circumstances in which, under the terms of the guarantee, she was not so entitled."

7. It may be that whether someone is dishonest or not is to a large extent a subjective matter which it is always difficult for an employer to identify, but the language used, it seems to us, must have made clear to the Appellant as to what matters were being investigated and his attitude to them and his non admission, except possibly at the appeal, that he had erred were no doubt important.
8. Following the dismissal there was an appeal and at the appeal was an internal memorandum before Mr Moore the Divisional Personnel Manager from Mr Alexandra who had conducted the dismissal dated 29 December 1998 in which Mr Kearns explained to Mr Alexandra essentially the grounds upon which Mr Kearns reached his decision to dismiss. It is common ground that neither that memorandum nor its contents were disclosed as such to the Appellant. What has concerned us on the facts is this. There was an area of misconduct concerned with the Appellants approach to company procedures which was dealt with in the disciplinary hearing under appeal. On the face of it this internal memorandum produced potential evidence of an area of alleged blatant dishonesty in another area. That other area was the response of the Appellant in the disciplinary proceedings themselves. In particular we note the words

"Throughout the interview Brian told me some blatant lies then, on further questioning, changed his original version, clearly manipulating the truth to justify his actions."

9. It is quite clear that many of the matters raised in that memorandum were matters about which the Appellant had an opportunity to answer. We are left asking ourselves, on the evidence, and before we draw any conclusions from it the following question. Did Mr Alexandra, as part of the appeal decision, treat that memorandum as evidence of the dishonesty of the Appellant in a way in which the Appellant never had an opportunity of putting his side?
10. There are cases in which, with notes of evidence on appeal, the Employment Appeal Tribunal will form a judgment in order to facilitate an efficient way of dealing with the matter, but that is not this case. There are two lines of authority, one of which we have been directed and to which emphasises the importance of not picking ones way through a decision of the Employment Tribunal to see if every single 'i' has been dotted and 't' crossed and not saying that because something has not been mentioned it can not have been considered. In this case it is true that the Employment Tribunal made some reference to the submission in relation to the appeal of Mr Howard. The memorandum was identified in the decision of the Employment Tribunal as relating to the question as to whether the decision was about dishonesty or breach of procedures. On the other hand there is a line of authority which makes it clear that on central issues it may be an error of law for a Tribunal to not set out its findings because such a gap may indicate that the Tribunal has not directed its mind to that particular point. Where a particular case falls between those two lines of authority is a matter of judgment in every case. We cannot refrain from noting that in this case, in the section headed "Tribunal's Assessment," and apart from the reference to the admission on the appeal by the Appellant that his procedures were sloppy, the Employment Tribunal do not advert to the appeal itself in their consideration of whether or not in the procedure adopted by the Respondents they acted reasonably in treating the misconduct as the reason for dismissal. We find that the Employment Tribunal erred on the face of their decision in failing to consider the fairness of the appeal procedure in relation to the non-disclosure to the Appellant of the allegations contained in the memorandum. Had they done so we do not know what conclusion they would have come to. We cannot substitute our judgment for theirs.
11. We have decided to remit this matter to the same Tribunal. This does not seem to us to require a complete rehearing of the whole matter. We are not certain what evidence was canvassed on this matter but we see no reason why, as this is an additional aspect of the Tribunals considerations which does not it seems to us dislodge any of their central findings within their decision, they should not go on now to deal with this aspect of the case. We see nothing within the decision to lead us to conclude that the Employment Tribunal is irrevocably committed to one conclusion or another outside the logic and reasoning of their decision. It is simply that there is an omission to deal with an additional aspect.
12. Accordingly this matter will be remitted to the same Tribunal constituted in the same way, assuming that that is practicable, to consider first, the extent to which the appeal procedure, in that the Appellant was not given an opportunity to address the memorandum, was an unfair procedure, secondly the extent to which, if at all, that lead to the dismissal's being unfair and thirdly to make any consequential orders that are appropriate. We wish to make it clear that not only do we not express any view as to any of those stages, we do not express a view as to the extent to which, if at all, one stage should follow the other. The matter is at large and it is a matter for the Employment Tribunal to determine to what extent if at all they need to hear further evidence on this matter.