United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J SYKES (Representative) Employment Cases Direct Ltd Gainsborough House 81 Oxford Street London W1R 1RB
For the Respondent	MR I PAGE (Chairman)


 


JUDGE PETER CLARK: The Appellant, Mr Rookwood, was employed by the Respondent as a silk screen printer from 1 September 1994 until his summary dismissal on the grounds of gross misconduct on 24 March 1997. It was said that he had sworn loudly at his manager, Mr Babb, in the presence of a customer.

1. By an Originating Application presented to the London (South) Employment Tribunal on 8 April 1997 the Appellant brought a complaint of unfair dismissal against the Respondent. That claim was resisted.
2. It was heard by a Tribunal chaired by Mrs J. Gilbert on 3 December 1998 and 22 January 1999. By a reserved decision promulgated on 8 February 1999 the Tribunal dismissed his complaint.
3. The Tribunal found that the Respondent's managing director, Mr Page, saw Mr Babb on 20 March 1997 following the alleged incident. Mr Babb had decided that the Appellant ought to receive a written warning. He had earlier received an oral warning in August 1996 for noise level and his attitude to colleagues.
4. Mr Page took a more serious view. He felt that if the allegation could be substantiated the Appellant should be dismissed. He then discussed the matter with his colleague, Mr Dix, who agreed with him.
5. Mr Page then carried out an investigation. The Tribunal found that he called in Mr Cotgrove, a charge hand. He told Mr Page that he had seen the incident but had not heard what was going on above the noise from the machines. He described it as an aggressive incident.
6. Mr Cotgrove suggested that Mr Page spoke to the Appellant's fellow workers, Mr Duffy and Mr Grey. The Tribunal record in their reasons that Mr Page's evidence was that he did speak to Mr Duffy and possibly Mr Grey.
7. Mr Duffy gave evidence to the Tribunal. He confirmed that Mr Babb and the Appellant had had their ups and downs and that the Appellant had sworn at Mr Babb when he was with a customer.
8. After the Originating Application was served Mr Duffy signed a statement made by Mr Babb and dated 17 April 1997.
9. Mr Babb's statement read:

"On Thursday 20^th March 1997 I took a visitor into the factory. He and I were discussing a job and radios were blaring.

I went down to the end of the shop and turned the volume down on one of the radios. Then continued to discuss with the visitor.

I was summoned to accounts and left my visitor in the care of another employee. When I came back into the factory Raymond Rockwell, a printer, shouted at the top of his voice 'Hey you don't fucking touch anything of mine without asking first'. I then told him that he was being extremely rude and disrespectful, to which he answered again at the top of his voice 'I don't give a fuck'. I walked away and continued my discussion with the visitor.

Raymond was dismissed for gross misconduct."

After Mr Babb's signature appears this manuscript addition:

"I confirm that I witnessed this incident, K. Duffy." [and then a signature K. Duffy]

10. Mr Grey gave evidence before the Tribunal. According to the Chairman's note of his evidence, he said that on 20 March he could not hear what was said. He believed Mr Babb was standing there with a customer. The Appellant was shouting. He could not hear, but saw an argument. He was standing next to noisy machinery, the main dryer.
11. Mr Page, in his evidence is recorded by the chairman as saying:

"I believe I spoke to Grey, can't be sure, who confirmed it."

12. Following his enquiries Mr Page called the Appellant into his office. He put the incident to him and he denied it. Mr Page said that he did not believe him and was satisfied that the incident took place. The Appellant said that in that case he would apologise. Mr Page said that it was too late and summarily dismissed him.
13. Immediately following his dismissal the Appellant complained that on an earlier occasion Mr Babb had assaulted him by putting his hands round his neck. Mr Page asked why he had not reported this at the time. The Appellant said that he had been advised not to let Mr Babb wind him up. Mr Page asked if this was true of Mr Babb and he denied it. Mr Page accepted Mr Babb's word. He had worked for the company for eight years and had no record of aggression. Mr Page confirmed the dismissal.
14. The Appellant was not informed that he had a right of appeal. Nor was he given an opportunity to have a representative or colleague present at the dismissal interview or to call witnesses in his defence. Subsequently he consulted the Citizens Advice Bureau and was told of his right to an internal appeal. He did not pursue that course.
15. The Tribunal considered that had asked he asked for an internal appeal Mr Page would have granted his request. The appeal would have gone to a fellow director.
16. As to the conflicts of primary fact the Tribunal accepted, having heard the witnesses, first that the Appellant had shouted and sworn at Mr Babb in front of a customer on 20 March; secondly, that Mr Babb had not harassed or intimidated the Appellant in the past; nor had he been drinking at work, stolen from the Appellant or assaulted him as the Appellant alleged.
17. On those findings of fact the Tribunal reached the following conclusions:

(1) That Mr Page had formed a genuine belief that the Appellant was guilty of misconduct, based on reasonable grounds following a reasonable investigation. He had spoken to Mr Duffy, Mr Dix and Mr Cotgrove. It was not clear whether he had spoken to Mr Grey, neither man was sure. Mr Duffy could not remember speaking to Mr Page, as the latter asserted, but did not deny that a conversation had taken place.

(2) Although the ACAS Code of Practice recommended a right of internal appeal, and the Appellant was not advised of such a right by Mr Page, in the light of the advice that the Appellant received from the Citizens Advice Bureau, but did not follow up, the dismissal was not so procedurally flawed as to render it unfair. Overall, the Respondent acted reasonably in dismissing the Appellant having regard to the provisions of section 98 (4) of the Employment Rights Act 1996.

18. Against the Tribunal's decision this appeal is brought. The Notice of Appeal is lengthy, but at a preliminary hearing held on 11 October 1999 Judge Hicks QC narrowed the issues to be considered at this full appeal hearing. It is to those grounds of appeal which we now turn.
19. First, Mr Sykes submits that the Tribunal misdirected itself in finding that Mr Page was a truthful witness when he had, on the second day of the hearing, withdrawn his earlier evidence that he had obtained Mr Duffy's signature confirming Mr Babb's written statement. What happened, it is accepted by Mr Page, was that between the hearings Mr Babb pointed out to him that it was he, Mr Babb, who had obtained Duffy's signature. Mr Page accordingly corrected his evidence on the second day of hearing, although it was Duffy's evidence before the Tribunal that he signed Babb's statement after it was shown to him by Mr Page.
20. Mr Sykes has sought to advance a more sinister account. That Mr Page accepted that Mr Duffy had not signed the document at all. That is not admitted before us by Mr Page.
21. The Chairman's notes do not record what Mr Page said on this issue on the second day. The dispute is therefore unresolved. We have pointed out to Mr Sykes the practice to be followed where there is a challenge to the accuracy of the Chairman's Notes of evidence or a suggestion of material omissions from the Notes: see Dexine Rubber Co Ltd v Alker [1977] ICR 434, 438 -9, per Cumming-Bruce J. That procedure has not been followed in this case. Accordingly we are unable to go behind that which is agreed between the parties. It follows in our judgment that there is nothing in this first point.
22. Secondly, Mr Sykes seeks to take a point on the Tribunal's finding, at paragraph 7(i) of their reasons, that Mr Grey did not recall discussing the matter with Mr Page on Monday and Mr Page was not sure whether he spoke to Mr Grey. Having considered the Chairman's Notes of evidence of both Mr Page and Mr Grey, we are satisfied that those findings accurately reflect the evidence which the Tribunal received from both witnesses. Again, we see nothing in this point.
23. Finally, Mr Sykes submits that the Tribunal were wrong in law to find the dismissal fair in circumstances where:

(1) No notice of a disciplinary hearing was given to the Appellant.

(2) The Appellant was not warned that a potential outcome of the disciplinary hearing was summary dismissal.

(3) The Appellant was not informed of his right to representation at the disciplinary hearing, or given the opportunity of being represented.

(4) The Respondent failed to conduct, through Mr Page, a proper investigation of the allegations against the Appellant.

(5) There was no proper investigation into the cross allegation of assault made by the Appellant against Mr Babb.

(6) The Appellant was not advised of his right to an internal appeal, nor given the opportunity to pursue such an appeal.

24. It is clear to us that this relatively small employer, employing some 80 staff, did not have any proper written disciplinary procedure. There was no trade union representation. There was no provision for a colleague to be present at a disciplinary hearing. Mr Page did not think to give the Appellant advanced warning of the charge against him before the disciplinary hearing. The Appellant was not invited to call witnesses, nor was he advised of any right of internal appeal following his dismissal.
25. In these circumstances we have carefully considered whether, in not regarding these procedural defects which were raised before them in argument as rendering the dismissal unfair, the Tribunal can properly be said to have reached a perverse conclusion.
26. We have reached the view that we cannot go that far. The question under section 98 (4) of the Act is whether the employer acted reasonably or unreasonably in dismissing the Appellant for misconduct found to be established. That exercise will include a consideration of the disciplinary procedure adopted by the employer. Although not set out in full in their conclusions we infer that the Tribunal had these points in mind in reaching the overall determination that as a whole the dismissal was fair; they concluded that the Appellant had a fair opportunity to put his case, and that the Respondent reached a decision based on reasonable grounds following a reasonable investigation.
27. In these circumstances we have concluded that this appeal discloses no error of law on the part of the Employment Tribunal. Our jurisdiction is limited to interfering where an error of law is made out. In these circumstances the appeal must be dismissed.