United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J P WAITE (of Counsel) Instructed by: MR P THORNTON Bexleyheath & Welling Citizens Advice Bureau 8 Brampton Road Bexleyheath Kent DA7 4EY


 


JUDGE CLARK

1. This appeal raises a point on the Application of the rules of natural justice to an employer's disciplinary procedure.
2. The Appellant Mr Gunton, was a long-serving employee of the Respondent Bank. His employment commenced on 10 September 1973; it was terminated by summary dismissal on 21 December 1998. He was then an Assistant Manager at the Bank's Southwark branch.
3. In a decision promulgated with extended reasons on 14 October 1999 an Employment Tribunal sitting at London South found that there were two reasons for dismissal. The principal reason was the Bank's belief that the Appellant had misappropriated funds totalling £48,250.64; a subsidiary reason was his admitted failure to disclose details of his personal debts to the Bank in breach of their rules. The Employment Tribunal found that dismissal for the principal reason was fair.
4. Throughout, the Appellant denied that he had defrauded the Bank. That allegation was first put to him at an interview on 8 April 1998, together with the lesser charge of non-disclosure of his debts. The following day he was suspended. Further investigations were said to have revealed additional defalcations by the Appellant resulting in the total sum which we have mentioned. Whilst that investigation was in train the Appellant notified the Bank that he was suffering from depression.
5. There was some delay caused by the Appellant's illness in progressing a disciplinary case against him. Finally, in November 1998, a disciplinary hearing was convened initially for 14 December. Prior to a hearing which eventually took place on 21 December the Appellant was provided with the Banks internal investigation reports, and he was sent a questionnaire to which he responded in writing on 15 December.
6. During the period of suspension the Bank kept itself apprised of the Appellant's medical position by communicating with the Appellant's Trade Union Representative and the Bank's Occupational Health Manager and by corresponding with the Appellant's Psychologist.
7. On 21 December the Appellant did not attend, but his written response to the Questionnaire was available to Mr Ransley, the manager who conducted the hearing, and the Appellant was represented by Mr Dack, his Trade Union Representative, who made submissions on his behalf.
8. Mr Ransley rejected the explanations provided by and on behalf of the Appellant and concluded that he was guilty of defrauding the Bank. Taking into account that serious offence and the lesser offence admitted by the Appellant, Mr Ransley imposed the penalty of summary dismissal. A subsequent internal appeal, taking the form of a review, was dismissed.
9. Before the Employment Tribunal Mr Waite, appearing on behalf of the Appellant, submitted that a charge of such seriousness required a very full investigation. The Bank's investigation in this case was inadequate. Secondly, the Appellant's absence from the disciplinary hearing before Mr Ransley due to illness constituted a breach of natural justice which was not remedied on appeal.
10. The Employment Tribunal rejected both submissions. We are not, in this appeal, concerned with the adequacy of the Bank's investigation. It is the natural justice point which arises for consideration.

It is clear from paragraph 22, of their reasons that the Employment Tribunal were troubled by the natural justice point. However, they rejected it for these reasons.

"taking all the factors into account including that he was represented at the hearing, that the Respondent had involved the Applicant's psychiatrist, that the Applicant knew and had formally responded in writing to the allegations, and that no objection was raised by the Applicant or anyone advising him at the time, the Tribunal concluded that the Respondent did not act unreasonably in proceeding as it did."

11. In this appeal Mr Waite submits that the Employment Tribunal erred in law in failing to find that there was a breach of natural justice on the part of the Bank proceeding with the disciplinary hearing in the absence of the Appellant, which in turn rendered the dismissal unfair.
12. He submits, we think correctly by reference to the decided cases, that an employee should be given sufficient opportunity to explain his conduct and state his case, knowing the charges laid against him. He draws attention to paragraph 11, of the ACAS Code of Practice on Disciplinary Practice & Procedures, which provides

"Before a decision is made or penalty imposed, the individual should be interviewed and given the opportunity to state his or her case….."

13. All the more so, submits Mr Waite, where the employee is facing such a serious and complex charge. Thus the question for us, on appeal, is whether the Employment Tribunal were bound to find that the dismissal was unfair in circumstances where the Appellant was prevented, himself, from attending the disciplinary hearing due to ill-health.
14. The short answer, in our judgment, to that question is no. Mr Waite accepts that the rules of natural justice are flexible and that circumstances may arise in which no breach is made out even although the employee is not in attendance at his disciplinary hearing. He very properly draws our attention, by way of example, to a decision of the Employment Appeal Tribunal, Lord McDonald M C presiding, in Gray Dunn and Co Ltd –v- Edwards [1980] IRLR 23, in which the Industrial Tribunal's finding that a dismissal was unfair, among other reasons, because the applicant was not present at the disciplinary hearing, was overturned on appeal. The Employment Appeal Tribunal held that the concept of natural justice does not include the automatic right to be present throughout the disciplinary hearing, provided the interests of the employee are safe-guarded by his duly accredited representatives.
15. We do not wish to be taken to underestimate the importance of the final disciplinary hearing being attended by the employee; however, the question for the Employment Tribunal is whether the employer acted reasonably under section 98(4). Mr Waite submits that the Respondent here ought to have pursued the option of a postponement of the hearing fixed for 21 December, or, at any rate, raised that possibility with the Appellant and his representative. We think that on the particular facts of this case it was open to the Appellant or his Trade Union Representative to raise that question with the employer; neither did so.
16. In our judgment the Tribunal, having taken into account the factors which we have rehearsed above, were entitled to find, on the particular facts of this case, that the Appellant had a sufficient opportunity to put and did put his case, both in writing and through his representative. In these circumstances, at this preliminary hearing, we are not satisfied that this appeal raises any arguable point of law to go forward to a full hearing and accordingly the appeal must be dismissed.