United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	The Appellant in person. Later, MR SETHI (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE J ALTMAN

1. This is an appeal from the Employment Tribunal sitting at Liverpool on 7 October 1999 which comes before us by way of preliminary hearing to determine if there is a point of law capable of argument in full before the Employment Appeal Tribunal.
2. At the outset of this hearing, the Appellant was unrepresented and it was very apparent from what he said, and his demeanour, that he was concerned that he felt that he had never really, at the internal procedural hearings, or before the Employment Tribunal, had an opportunity of putting his side of his case, particularly in relation to his explanation as to why the effectively equal apportionment of blame between the two men was wholly unfair, and as to why he was, to a large extent, not as liable for what occurred as the other person, Mr Ford.
3. That being so, we took steps to see if an ELAAS representative was available in the city, no one being here today, and we are enormously indebted to Mr Sethi for coming here especially to deal with this case, and to have, if we may say so without being patronising, mastered it so quickly and effectively. He has been of great assistance.
4. We were concerned to hear originally, and puzzled, by the way in which this matter proceeded before the Employment Tribunal. The employer dismissed the two men, the Appellant and a Mr Ford, on the ground that they were fighting; The Appellant knew no other job, he began from school; he was there something in the region of 27 or 28 years, and he had a wholly unblemished record.
5. The point that Mr Sethi emphasises relates to the lack, he would say of the "thorough investigation" of the respective roles played by the two men, that a reasonable employer would have to embark upon in order to reach a fair decision. And secondly, the extent to which the employer or the Employment Tribunal took account of the two-stage process required; first to establish, as they did, the existence of gross misconduct, but secondly to go on to consider whether the consequences of that should be mitigated by other factors, so as to carry out a balancing exercise.
6. Grounds 1 or 2 of the Notice of Appeal are abandoned in view of the disapproval of the Haddon case by the Court of Appeal recently, in The Post Office v Foley [2000] IRLR 827, but we set out what we understand Mr Sethi to say, as we have had the advantage of his representation today. He has submitted that the Employment Tribunal did not consider adequately whether the Respondents considered a lesser alternative in relation to the 3 matters set out in Ground 3 of the Notice of Appeal; he points out that the Employment Tribunal made no finding as to the length of service of Ford, which was, we are told today, something under half that of the Appellant, 13 years, and no finding as to whether he had a disciplinary record, which we are told today Mr Ford did. Mr Sethi suggests that the Employment Tribunal cannot have considered if length of service and disciplinary record should have operated on the mind of the employer in this case, because they do not make a finding in relation to Mr Ford as the prerequisite of such an investigation.
7. In the decision the Employment Tribunal suggest at the end of paragraph 11, that the differences between the two men are matters of emphasis rather than substance, and the Tribunal also say that the differences "did not affect" the gross misconduct, from which it appears, Mr Sethi says, that the Employment Tribunal were concluding that once gross misconduct were established, the existence of those other mitigating factors could do nothing to affect it, because the dismissal, as the Tribunal said, was based upon that gross misconduct. Apart from that being said to be an error of law, it is said that the reference to those differences as being of emphasis rather than of substance is also an error, in looking at mitigating factors. The length of someone's service, and the existence of a disciplinary record must, says Mr Sethi, be matters of substance, and it appears, therefore, that the stage of balancing all the factors is one which the Employment Tribunal, arguably, did not require of the employer in order to come within the band of reasonable responses.
8. The two questions, first, is there gross misconduct, and secondly, are there other circumstances which should affect the outcome, were not, says Mr Sethi, considered as two stages, so it appears on the face of the Tribunal's decision, for they seem to be saying that once there is gross misconduct, those other factors are not to be taken into account. Mr Sethi acknowledges that that is not a straightforward reading of the decision, but it does seem to us that it raises serious and arguable points of law, leaving, he would say, the Appellant not knowing really why the Employment Tribunal came to the decision that it did. As Mr Sethi also points out that, at the end of their decision the Employment Tribunal says:

"in all the circumstances the respondent's decision may have been not to dismiss either man."

9. Mr Sethi says that even where the Tribunal acknowledged that there may have been circumstances in which an employer would not have dismissed, the Tribunal nonetheless only contemplated the situation when it was both or neither. This, he says, underpins his submissions that there was this missing area of consideration of the distinction.
10. We also give leave for the Notice of Appeal to be amended, to deal with another matter raised by Mr Sethi, as it affects the internal hearing at which there was the same trade union representative for both employees, and both employees were spoken to together, so that there was no time when the employer gave either employee individually an opportunity to make their open criticisms of the other. And Mr Sethi would submit that there is an argument that the Respondents were precluding themselves from really finding out what the differences were between the two men in a situation where it was clear there was a potential conflict. Indeed, bearing in mind that the Respondents are a public body, he would wish to give further thought to the application of Article 6 contained in the Human Rights Act 1998.
11. Thirdly, finally, it is unclear as to what happened procedurally, before the Employment Tribunal. It appears that on the Monday, there were proceedings involving Mr Ford, where this Appellant's Counsel was present and participated, but in which this Appellant did not participate, and it may or may not be that that evidence formed part of the final deliberations of the Tribunal, or it may have been a different Tribunal altogether, but it seems to be, on the face of it, a curious position, and unclear at the moment.
12. Also, at the hearing itself of this case, the impression of the Appellant, who was clearly very upset at the time and may not have a clear recollection of what was happening, was that the Chairman had indicated that he need not give evidence. The upshot was, for whatever reason, that the Appellant did not give evidence at all, and we consider this matter should be investigated.
13. Accordingly we direct that a letter be written to the Chairman of the Employment Tribunal, asking him to set out the procedural process by which the applications of Mr Ford and the Appellant took place, who participated as witnesses and representatives, and asked questions, and thereafter, we give leave to the parties to request any further material they may wish from the Employment Tribunal, and such request will be dealt with at the Employment Appeal Tribunal.

This matter will be listed for half a day, Category C, Skeleton Arguments to be furnished not less than 14 days before the hearing.