United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	No Appearance
For the Respondent


 


HIS HONOUR JUDGE PETER CLARK

1. This case has something of a history. The Appellant, Mr En'Wezoh was employed by the Respondent at their London hotel as a car park attendant from August 1993 until his dismissal on the grounds of alleged gross misconduct on 21 October 1996. Thereafter he presented a complaint of unfair dismissal to the Industrial Tribunal, as it then was, on 3 December 1996. The Respondent resisted the complaint on the ground that he was stealing from them. That is why they dismissed him. The case was listed for a 3 day hearing before a Tribunal sitting at London North under the chairmanship of Mr Giles Flint, commencing on 2 February 1998. The hearing was adjourned on the third day, evidence from the Respondent having been heard, in the absence of the Appellant. He was asked to explain the reason for his absence. Following correspondence, the chairman directed that there be a further hearing to decide whether the Appellant had complied with the Tribunal's earlier direction and if not, to consider how the case was to proceed.
2. The matter was re-listed for hearing on 14 July 1998. On that day Mr Flint's Tribunal reconvened. They decided to dismiss the claim due to the Appellants failure to attend on 4 February. They further observed that on the evidence they had heard from the Respondents witnesses, had the matter been allowed to proceed they would have found the dismissal to be fair. They also ordered the Appellant to pay £500 costs to the Respondent.
3. Against that decision the Appellant appealed by a notice dated 4 September 1998. The appeal came before a division presided over by the then President, Mr Justice Morison on 5 March 1999. That division allowed the appeal to proceed to a full hearing. The case was listed before a division on which I sat on 14 October 1999. Counsel for the Appellant had only received instructions the night before. We acceded to his application for an adjournment. The matter returned on 16 March 2000. Again I sat on that hearing. We held that the Flint Tribunal decision was fatally flawed on procedural grounds. We allowed the appeal and remitted the matter for re-hearing before a fresh Tribunal.
4. That hearing took place at London North before a different Tribunal chaired by Mr D W Kearsley on 16-17 May 2000. By a decision promulgated with extended reasons on 24 May, having heard all the evidence on both sides, that Tribunal also dismissed the Appellants complaint. Against that decision he appealed by a notice dated 19 June. His grounds of appeal were:-

"1 That the Tribunal at Woburn Place was and is still institutionally racist. I was a victim of institutional racism.

2 Judgement obtained by action of a petit panel which was unconstitutionally selected and impanelled."

He developed those grounds in a way which amounted to an attack on the conduct of the proceedings by the Tribunal. On 29 June 2000 the Registrar directed, in accordance with paragraph 9 of the Employment Appeal Tribunal Practice Direction, that the Appellant submit an affidavit detailing his allegations of bias on the part of the Tribunal. He failed to comply with that direction. A further letter dated 24 July 2000 was sent to the Appellant requiring him to lodge an affidavit within 14 days', again he did not comply. On 8 August 2000 the Registrar ordered that unless an affidavit was received by the Employment Appeal Tribunal within 10 days all allegations of bias and improper conduct would be struck out. Again the Appellant failed to comply, so that on 16 October 2000 the Registrar struck out parts of the notice of appeal alleging bias or improper conduct on the part of the Tribunal. By a letter dated 19 October 2000 the Appellant gave notice of appeal against that order.

5. The matter now comes before us on a Preliminary Hearing. The issues to be determined are:-

1 Ought the Appellants appeal against the Registrar's order of 16 October 2000 to be allowed? If so we must give consequential directions for the further conduct of this appeal.

2 If not, do the remaining grounds of appeal raise any arguable point or points of law which ought to proceed to a full hearing?

Notice of today's Preliminary Hearing having been sent to the Appellant, he responded on 7 February 2001 stating that it was his intention to be present at the hearing today. He has not attended. We have allowed some 2 hours for his appearance. He has not attempted to contact the Employment Appeal Tribunal to explain his absence. We bear in mind his consistent non compliance with the letters and directions sent by the Registrar following the commencement of these appeal proceedings and in those circumstances we shall proceed to determine the appeal on the material before us.

6. Appeal against the Registrar's order

No explanation is provided by the Appellant for his failure to comply with the Registrar's earlier directions. In his letter constituting notice of appeal against the Registrar's order he gives no grounds for allowing such an appeal. In these circumstances, we dismiss that appeal.

7. The Substantive Appeal

The Kearsley Tribunal found the following facts. In the summer of 1996 the Respondent had concerns about the handling of cash receipts in the car park. Mr Lentle, the chief security officer and Mr Maloney, the resident manager, instructed an independent firm of investigators, Avenue Investigations, to carry out an enquiry. That took the form of 2 of their investigators parking their cars in the hotel car park; taking a photocopy of the ticket, returning later and paying the exact amount of the charge in cash. Following receipt of Avenue's report, the Respondents discovered, in the Appellant's case, that on 23 September 1996 a car had been parked for a period in respect of which he had received the fixed rate of £12 but he had accounted for only £8 by way of a till receipt.

8. On 18 October 1996 the Appellant and 3 other attendants were suspended due to; "alleged discrepancies". A disciplinary hearing took place on 21 October. He gave an explanation for the discrepancy, that he had a discretion to charge long standing customers at a lower rate if their parking had gone just over the time cut-off point for the higher charge. That explanation was rejected by Mrs Edwards, the manager, who took the disciplinary. She decided to summarily dismiss him.
9. The Appellant appealed to Mr Maloney. The appeal took place on 4 November 1996. This time the Appellant's explanation was that he had received only £8 from the Avenue investigator and Mr Lentle, together with the outside investigator, was trying to frame him. Mr Maloney considered the matter and then dismissed the appeal by a letter dated 7 November.
10. On those facts, the Tribunal concluded:-

1 that the reason for dismissal related to the Appellant's conduct, a potentially fair reason

2 that the original disciplinary hearing held by Mrs Edwards was flawed, in that the Appellant was not give proper advance notice of the charge against him – see Spink v Express Foods Group Ltd (1990) IRLR 320, but that;

3 such defect was cured by the full investigation carried out by Mr Maloney at the appeal hearing. In particular, by then the Appellant was fully aware of the specific charge levelled against him.

Dismissal, the Tribunal found, was a permissible option in the circumstances. The dismissal was fair.

11. We have considered the remaining grounds of appeal not struck out as a result of the Registrar's order dated 16 October 2000. In our judgement none of them raise any arguable point of law, or indeed any point of law at all. In these circumstances we shall also dismiss the substantive appeal.