United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS NATASHA JOFFE (of Counsel) Instructed by: The Post Office Legal Services Impact House 2 Edridge Road Croydon CR9 1PJ


 


HIS HONOUR JUDGE WILCOX:

1. This preliminary hearing concerns an appeal against the Employment Tribunal at London North that occupied three days; 14, 15 and 16 December 1999. That decision was that the Appellant was unfairly dismissed and that it was ordered that the Appellant be reinstated as at 12:00am 3 January 2000. There were financial remedies also, that I need not make reference to at this stage. The Appellant in this case is the Post Office. The Respondent employee was employed in the Post Office in night job as, he was someone who it appears had no contact with the public. The context of his dismissal was the World Cup. He was a Football fan, he went to France and he was convicted of criminal conduct by a competent French court; that being a charge found and proved of assault on a police officer. In any jurisdiction, that is to be regarded as serious and nothing we say derogates from that.
2. What happened thereafter following the violence that occurred in France was an outbreak of indignation in the British Press, which was wholly understandable whereby people were condemning gratuitous acts of violence in this sort of context. It is a matter of note, as has been submitted and accepted by Ms Joffe a matter within our own knowledge and a matter that clearly the Tribunal took account of. There was also strong comments made by the Prime Minister as to this sort of conduct and the effect that this sort of conduct should have on employers. That is part of the context. The Respondent did not appeal against his conviction. It was found by the Tribunal that this was for an understandable reason, not because he did not contest his conviction, but he had already served time and felt that in a foreign jurisdiction, it would perhaps, further add to his incarceration.
3. The Employers took the view having been apprised of the conviction in France that he should be dismissed from his employment because it brought disrepute upon the Post Office. There were investigations in the Post Office, in accordance with the then existing disciplinary code. That code embraced the view that certain acts of violence may, if proved and not withstanding that they were not in the course of employment if they were the subject of a conviction, could warrant dismissal. It is interesting to observe that a new code has been agreed between this large employer and the Unions, which provide that criminal actions should not be treated as a reason justifying dismissal, regardless as to whether the offence had any relevance to the duties of the individual as an employer. The new code was in force at the time of the dismissal. It was not in force at the time of the offence.
4. Let me go to the facts that were found by the Tribunal: He was employed working nights at the Post Office, and had been so for 12½ years. He was convicted of the offence of assault upon the Police; he was not a French speaker. He served 40 days imprisonment. It was from the violence that occurred became headlines in the British press and subject to statements by the Prime Minister and Home Secretary. The Appellant was suspended without pay by Mr Newell, his Manager whilst the matter was pending. It was found that the disciplinary matters were not progressed until the employer had received the judgment of the French court. The reason for the dismissal according to the evidence of Mr Newell was because the Post Office had been brought into disrepute. It was accepted that there had been a lot of publicity in June when the event had taken place.
5. When the disciplinary hearing took place, it seemed the press had lost interest in the matter. There was no evidence of any adverse feedback from any member of the public or interest by the press. The employer accepts that they did not make further investigation but relied upon the conviction of the French court and it is clear that the Reviewing Officer, Mr Nagle used the old conduct code still in force because the initial investigation had taken place in June. I have already made reference to the New Code of Conduct and its effects. It is right and the Tribunal clearly properly directed itself in law that the dismissal was a reason relating to conduct and considered the test in British Homes Stores Ltd v Burchell [1978] IRLR 379. However, they concluded that taking into account all the circumstances, the Respondents' did not act reasonably in treating the conduct which is evidenced by the French conviction, as sufficient conduct to dismiss the Applicant's summarily and they gave these reasons that are the subject of complaint by Miss Joffe.

24. Our reasons for saying this are: -

(1) The excellent record over a period of 12 ½ years.

(2) The conduct complained of was unrelated to his employment.

(3) His employment was inside the Post Office and it was unlikely that it would ever have substantial contact with the public.

6. They made this finding at paragraph 24 (4). Perhaps an unfortunate expression in the circumstances, but we must be very mindful of Tribunal's who give their reasons, not to nit-pick but to look at their decisions in the round and sensibly:

24(4) "There are anomalies in the way the case was adjudicated in France. The Respondent appears to have been originally charged with throwing beer bottles at the Toulouse fans but eventually appears to have been charged with assaulting the police."

That is so and he was so convicted. Insofar as there are anomalies, and that is conceived to be a criticism of the French courts that clearly is not warranted. Insofar as in a woolly way they are pointing that there are differences of burdens of proof and procedure, then it is perhaps, a proper conclusion to draw. We do not find that the Tribunal there was indicating that this was a basis upon which a reasonable employer would have gone behind the conviction and found that it was not safe or reliable. In fact, the reasons that were adumbrated by the Tribunal, in our judgment show that this was a Tribunal that was evaluating the weight that a reasonable employer in the circumstances would have attached to the facts and matters of this conviction and its background. I go to the finding at 24(6):

24 (6) "It was inconceivable and he and Mr Nagle could not be influenced by the Press coverage that had covered these incidents."

24 (7) "The Applicant had no previous criminal convictions in this country and no regard appears to have been taken of the fact that he denied committing the offences and appeared to be in the wrong place at the wrong time when the difficulties arose between the football fans."

7. Miss Joffe attacks that finding as being unreasonable and perverse, submitting that what the Tribunal appears to be doing here again is attacking the conviction. We do not read it thus, we read it as the Tribunal, very properly taking into account and evaluating the weight of that conviction and the weight that a reasonable employer would in fact attach to it. In the course of Miss Joffe's argument it was put to her: That, if we read this these factual reasons as demonstrating that this was the Tribunal, embarking upon an exercise, of evaluating the weight of the conviction, rather than attacking it, many of her criticisms of the evidence which fall away. Miss Joffe accepted that. As to the finding at 27(2) it is no more than a finding that the convicted person did not go out his way to be involved, and had he not permitted himself to be involved by remaining and acting as he did, he could not have been convicted. It does not detract from the fact that he was convicted. It does assess the weight of the conviction and degree of capability.
8. What the Tribunal was also doing, perhaps not in a perfectly structured way, was to assess what a reasonable employer would attach weight to in these circumstances, so far as the facts and matters concerning the Press coverage and the weight and effect of those upon the adjudicating officers in the dismissal process, Mr Newell and Mr Nagle. These are essentially matters of fact, justified upon the evidence and warranting common sense inferences that were well within the competence of a Tribunal of fact, adjudicating upon those matters.
9. One matter on the face of it causes us slight concern. Whether there was properly considered any contribution by the Respondent to his dismissal. We have considered that very carefully and we have concluded that whilst he committed a criminal offence, he has paid for that criminal offence, and having regard to the period of time between the events that occurred and the hearings, as the Tribunal found nobody would reasonably, have connected the two matters together. When one comes to consider risk of disrepute, it is clear that the Tribunal did consider that expressly and found that there had been no enquiries from members of the public about this matter, that Mr Newell gave no evidence that would show that there was any expressed untoward concerns by members of the public. It is not surprising as indeed they found, his employment was not in a role having contact with members of the public.
10. They concluded that there was no justifiable reason for the Applicant's dismissal. The primary reason, overwhelming reason they were entitled to find, was the input of those who were condemnatory in their statements; not only condemning the criminal conduct but also calling for employers to dismiss. They are entitled to so find and they are entitled to give what weight to this, having seen and heard Mr Newell and having seen and heard Mr Nagle
11. We think that there is no warrant therefore to interfere with the Tribunal's hearing below. We find therefore that there is no perverse finding of fact and there is no error of law demonstrated. We do not think the matter is reasonably arguable, either as perversity of finding or error of law. We find that the Tribunal properly directed themselves and applied the law to facts and came to competent findings or those facts.