United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS BROWNE (of Counsel) Messrs Tom Burke & Co Solicitors 3 Barton Street Manchester M3 4NN


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal chaired by Mr Flint sitting at London (North). The extended reasons were promulgated on 8 October 1999. By their decision the tribunal held that the principal reason why the appellant was dismissed was, to use their phrase, 'the solicitation of pornographic material and its delivery to him at the respondent's premises'. The tribunal decided that the respondents had carried out sufficient investigation from which they could reasonably come to the conclusion that he had solicited the material. Although the dismissal was procedurally flawed because the respondents dismissed the appellant while he was off sick without writing to him setting out the charges against him fully, they held that it was inevitable that a proper procedure would have led to his summary dismissal. In fact, there were other reasons why the respondents dismissed the appellant, principally in relation to his absences. Indeed it appears from the reasons of the tribunal that at one stage the respondents thought that was the main reason why they had dismissed him. However, the tribunal seems to have concentrated on the pornographic literature aspect, no doubt following the wording of s.98(1) Employment Rights Act 1996 in finding the principal reason for the dismissal if there were more than one.
2. The appellant Mr Montgomery was a senior management accountant employed by the respondents, the Reform Synagogues of Great Britain, from June 1988 until 10 March 1999. There had been repeated episodes of absences which caused the employers great concern. They regard his absences as serious and delivered him warnings. In January 1999 after he had been off work for a month, they understandably started opening his post, which was in a pigeonhole, and discovered a substantial quantity of correspondence addressed to him, which contained pornographic material. Unsurprisingly they took that very seriously. The respondents are a charity, they are a distinguished religious body, there are schools on the premises and they took the view that for an employee to have material of this kind in his possession was so serious that only summary dismissal was an appropriate way of responding to the gravity of the offence and that is what they did. They wrote to the appellant on 18 January saying that this material had been delivered on 22 January; his solicitors replied saying that he had not solicited the material. There was some further correspondence and then on 11 March 1999, while he was still away, they sent him a letter of dismissal.
3. The points taken on the appellant's behalf are essentially that there had been a lack of investigation into the facts and the decision was perverse because there was no or inadequate material on which the respondents could have reasonably assumed that he had solicited the material rather than being an innocent receiver of it. The difficulty which we have encountered is that it is not clear from the extended reasons what the actual facts were. Although it is a preliminary hearing, we have been fortunate that Mr Hurley has been here with representatives of the respondents to observe the proceedings. He has been able to provide some facts of which Miss Brown on behalf of the appellant was unaware, and has been able to show us the subject material.
4. The following facts emerge: one is that after the material was discovered in January 1999, it kept arriving for the following three months in dribs and drabs. It seems obvious that that did not occur as a result of solicitation by Mr Montgomery. It is reasonable to assume that if he had originally solicited the material and it had been discovered, he would have then put a stop to it. It kept arriving. The second point which emerges is that none of the material which we have been shown consists directly of pornographic material. It is all catalogues or invitations to apply for pornographic material. There is no substantive pornographic material there, if we may use that expression. The third point is more significant. It is remarkable that it is not mentioned in the tribunal's reasons. It is that all the envelopes are addressed to the appellant at a description of the respondents' premises, which it abandoned some four years previously. It was called 'The Manor House' and is now referred to as the Steinberg Centre.
5. Now of course it is possible that the material had been arriving for years, and that the appellant simply never changed his address with the firms which delivered it. But there is nothing in the reasoning of the tribunal to suggest that they even addressed their minds to the question of the addresses on the envelopes or what the reasons might be, nor is there any suggestion in the reasons that the matter was even ventilated in the evidence. Mr Hurley tells us that it was raised and it seems to us that there is a reasonably arguable case, that the tribunal simply do not set out the facts with sufficient clarity or comprehensiveness for this appeal tribunal to be able to form a view as to whether they exercised their judgment correctly in relation to the matters which are in issue. The reasonableness of the employers' behaviour and the prospects of a correct procedure inevitable leading to summary dismissal cannot be adequately assessed without a clear finding of relevant facts. For those reasons, we think the matter ought to proceed to a full hearing. We note that Miss Brown has expressly disclaimed any notion that the appellant might appeal on the ground that dismissal was a excessive response to the offence alleged and that no point has been taken that we should consider the potential impact of Article 8 of the European Convention of Human Rights in relation to correspondence directed to the appellant at his work premises.