United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON
For the Respondent	MR JOHN FALKENSTEIN (Of Counsel) Instructed by: LPMS Mrechants House 1-7 Leeds Road Windhill Bridge Shipley West Yorkshire BD18 1BP


 


MR JUSTICE MAURICE KAY

1. This is an appeal by Mr Lock against the decision of an Employment Tribunal sitting in Liverpool in June, July and September last year. Mr Lock had presented an application to the Employment Tribunal claiming that he had been unfairly dismissed by the Respondent, as his employer, for making a protected disclosure in that he had disclosed to the Respondent that Mr Arthur Morgan, his team leader, had behaved inappropriately. Alternatively he claimed that he had been unfairly dismissed.
2. The Appellant was employed as a support worker at 64 Queens Road where Mr Morgan was team leader. The Respondent company is a charity who provide care in the community for people with mental ill health and learning disabilities and 64 Queens Road is one of their premises.
3. The facts found by the Employment Tribunal concern two different aspects of the Appellant's employment. The first aspect concerns events that occurred on 23^rd and 24^th June 1999 when there had been a function at the Adelphi Hotel in Liverpool at which many members of staff and a number of service users were present. The Appellant had too much to drink on that occasion. According to the facts, as found, he spoke aggressively to Kathryn Johnston, a manager, about the position of a lady called Maria Alty and raised a general complaint about staff issues with Jane Ratcliffe, the general manager.
4. At the end of the night the Appellant travelled home in a taxi with Ms Alty. It seems that he behaved inappropriately, no doubt because of the drink, and made a nuisance of himself outside 80 Queens Road. The Employment Tribunal observed

"The conduct complained of is entirely consistent with his condition at the time".

5. About a week later Karen Armstrong, a manager, interviewed the Appellant about the events of 23^rd and 24^th June. The Appellant said that he would apologise to Ms Johnston and Ms Alty. He made reference to service users suffering abuse from staff. The outcome of the meeting was that Ms Armstrong led him to believe that he would simply receive a verbal warning. That was the first aspect of the matters that were developing.
6. The second aspect relates to Mr Morgan and activity within 64 Queens Road. According to the findings of fact, Mr Morgan got to hear that the Appellant had made allegations about staffing issues at 64 Queens Road and, on 1^st July 1999, Mr Morgan reported to Ms Armstrong that he had heard a rumour which implicated him falsely in what became known as "the bag incident". This was an alleged incident in which the Appellant said that he and one of the service users had witnessed Mr Morgan putting a plastic bag over the head of another service user and had seen Mr Morgan taunting that man.
7. Ms Williams whose responsibility was Human Resources commenced an investigation. She spoke to a number of members of staff and drew up staff update sheets. She interviewed the Appellant on 7^th July 1999. She mentioned the bag incident but the Appellant declined to give any particulars allegedly for fear of repercussions from Mr Morgan and other staff. Miss Williams suspended the Appellant.
8. The following day she asked two quality control officers to carry out an investigation into allegations of an abuse by Mr Morgan of service users, and into relations between other staff and the Appellant, posing the question whether the Appellant had prompted service users to make up allegations against Mr Morgan.
9. On 14^th July 1999 the Appellant made a formal complaint against Mr Morgan making serious allegations of abuse by him on service users and also complaining about intimidation of him by staff.
10. On 29^th July 1999 the Appellant was sent notice of a disciplinary hearing. It included allegations that he had prompted a service user to assert that Mr Morgan had placed a plastic bag over the head of another service user and had taunted him. It further alleged that the Appellant had instigated unrest and discord between other members of staff by spreading false rumours about Mr Morgan and it raised again the Appellant's behaviour towards Ms Alty and Ms Johnston on 23^rd and 24^th June.
11. On 7^th September 1999 Mr Fieldsend, the Operations Manager, held a disciplinary hearing. A number of people from 64 Queens Road, including Ms Alty and Mr Morgan, gave evidence and were cross examined as were Ms Johnston, Ms Armstrong and Ms Williams. The outcome of that hearing was that Mr Fieldsend recommended to Ms Williams that the Appellant should be dismissed. He did not set out any findings of fact or give any reasons, he simply recommended dismissal for "breach of a number of policies and procedures".
12. It seems that he then communicated his findings and reasons to Ms Williams. She then took the file to Ms Crotty, who was the Vice Chair of the Management Committee, and to whom the task of making a final decision had been delegated. Ms Williams, when handing Ms Crotty the file, told her about the case and imparted Mr Fieldsend's reasons. Ms Crotty did not read the file save to satisfy herself that in general terms the procedure had been followed. On 8^th September 1999 she sent the Appellant a letter recording his summary dismissal for the reasons which had been the subject matter of the charges. That concluded the first phase of the disciplinary procedure and the decision that was made upon the basis of it.
13. The Employment Tribunal found that that phase was procedurally defective. A number of defects were identified and were described as follows

"The Applicant was not shown Ms Williams' staff update sheets which were produced in the course of her initial investigation at or before the hearing with Mr Fieldsend or at all.

He was not shown the memorandum by Karen Armstrong of his meeting with her on 30 June 1999 which refers to him receiving a warning, nor was he shown Ms Alty's statement of complaint dated 24 June 1999. Furthermore he genuinely believed that the matters concerning the 23, 24 June 1999 had been resolved by a verbal warning.

Ms Williams conduct in that she commenced the investigation but not being part of the panel at the disciplinary hearing nonetheless discussed the case with Mr Fieldsend after it and then gave Ms Crotty an oral report of the case, including Mr Fieldsend's reasoning, offends the principle of natural justice that justice must been seen to be done. She had information, to which the Applicant was not privy, namely a number of statements and Mr Fieldsend's reasoning and her views must have been a powerful influence on Ms Crotty's decision to dismiss the Applicant.

The Applicant was disadvantaged by not being provided with all the relevant documents.

Although we accept that taken as a whole there were a number of inconsistencies in some of the statements of the witnesses, we found Mr Fieldsend to be a truthful and reliable witness who made a fair assessment of the evidence before him. He was therefore entitled to conclude that the Appellant's allegations of abuse were false and that he himself had acted improperly. These are matters of gross misconduct.

Had he known that Ms Armstrong had told the Applicant he would receive a verbal warning for his conduct on 23 and 24 June 1999, he would not have recommended he be dismissed for them".

Before leaving that part of the case we observe that the Appellant had submitted to the Employment Tribunal that there was something in the nature of a conspiracy between Mr Fieldsend and Ms Crotty and others to remove him but that was rejected by the Employment Tribunal. Thus far, therefore, we have a disciplinary procedure with identified defects.

14. On 14^th September 1999 the Appellant submitted grounds of appeal and his appeal was heard by Ms Bale on 5^th October 1999. The outcome was that she rejected it and confirmed the dismissal by a letter dated 18^th October 1999. So far as that appeal hearing is concerned the Employment Tribunal said

"The appeal was not a re-hearing, it was a review of the evidence before Mr Fieldsend. Mrs Bale rightly informed the Appellant that she would take the cases of the statements put in at the disciplinary hearing as being true unless the Appellant could forward evidence to prove otherwise. In her judgment he did not.

The Appellant made a number of criticisms of witnesses evidence, including the retraction of Ms Alty of a part of her statement, but he did not satisfy Ms Bale that there were any fundamental flaws in the evidence as a whole.

She was not influenced by any views from Ms Williams.

There is only one outstanding issue, the failure to disclose the staff update sheets, Ms Alty's statement and Karen Armstrong's minutes dated 30 June.

Ms Bale concluded that since the Appellant had not received written notification of a verbal warning from the events of 23 and 24 June 1999, the Respondent was free to impose whatever sanction it thought appropriate. We disagree. He had in reality been told on 30 June 1999 that he would receive a verbal warning. As far as he was concerned the matter was closed. We have therefore concluded that it was not reasonable for the Respondent to dismiss the Appellant on those incidents. In these circumstances it does not matter that he never received Ms Armstrong's memorandum or Ms Alty's statement.

By the Respondent's failure to disclose the staff update sheets the Appellant was deprived of the opportunity to make as cogent criticism of the witnesses evidence as he might. We had to consider whether taken as a whole this defect alone renders the dismissal unfair. An examination of the various statements shows that there are inconsistencies but they do not detract from the substance of the witnesses' evidence. Taking all the circumstances in to account, and the disciplinary process as a whole, and bearing in mind that it is not for the Tribunal to make its own judgment we have concluded that it does not".

15. The Employment Tribunal then proceeded to its final conclusions. It did not accept that the Appellant had been dismissed for making a protected disclosure. It concluded that the reason for the dismissal was the Respondent's belief that the Appellant was guilty of gross misconduct in the form of his behaviour towards Ms Johnston and Ms Alty on the night of 23^rd June and early morning of 24^th June, the false allegations of misconduct that the Appellant had made about Mr Morgan, the intimidation of staff and finally the suborning of service users to make allegations against Mr Morgan. These were all considered by the Employment Tribunal as matters of conduct which gave rise to a potentially fair reason for dismissal.
16. The Employment Tribunal then considered Section 98(4) of the Employment Rights Act and expressed itself in the following terms

"The Respondent carried out a reasonable investigation.

Save for the non-disclosure of documents referred to above all the defects in the disciplinary hearing and the decision by Ms Crotty were cured by the appeal.

In all the circumstances of the case for the reasons stated above, taken as a whole we do not believe any disadvantage the Applicant's suffered was sufficient to render an otherwise fair procedure unfair.

The Applicant's conduct on 23 and 24 June 1999 was not a sufficient reason for dismissal since he had been led to believe that he would receive a verbal warning for it. It was not therefore a fair reason for his dismissal.

However the Respondent's belief that he had made false allegations against Mr Morgan and had suborned a service user to confirm the bag incident was reasonable. They are matters of gross misconduct and a sufficient reason for dismissal".

17. When this case was listed for a preliminary hearing before our colleagues they were unimpressed by some of the Appellant's broader propositions but they permitted the matter to proceed, specifically in relation to one aspect of the case. It is that aspect that has occupied most of today's hearing. It arises out of the finding of the Employment Tribunal that

"All the defects in the disciplinary hearing and the decision by Ms Crotty were cured by the appeal".

18. It is well established on the authorities that procedural defects at a disciplinary hearing, prior to dismissal, may be cured on appeal provided the appeal is in the nature of a re-hearing rather than a review. In our judgment what took place before Ms Bale was, on any basis, a review not a re-hearing. There were no witnesses in attendance. The meeting, we are told, lasted no more than an hour or so, and when, according to the Appellant, he sought to persuade Ms Bale that Ms Alty had retracted, at least, part of her statement, the response was "No, she told the truth".
19. We do not wish to become involved in making evidential findings as to what transpired. It is sufficient that we rely upon what the Employment Tribunal said transpired. In doing that, as we have said, it is abundantly clear that there was not a re-hearing but merely a review. In the circumstances of this case, having regard to the procedural defects that were found by the Employment Tribunal, that has led us to the conclusion that the appeal process did not, and could not, cure the procedural defects that had occurred earlier.
20. In those circumstances, we find ourselves driven to the conclusion that this appeal will have to be allowed for that reason. The authorities supporting the proposition that a mere review cannot cure the procedural defects of an earlier disciplinary hearing include Whitbread v Mills [1998] ICR 776, Clark v Civil Aviation Authority [1991] IRLR 412 and Byrne v BOC Ltd [1992] IRLR 505.
21. In seeking to dissuade us from that conclusion Mr Falkenstein sought to rely on a line of authority, beginning with West Midlands Co-operative Society v Tipton [1986] IRLR 112. In our judgment that line of authority has not to any extent detracted from the general proposition about the difference between a review and a re-hearing upon an appeal. Accordingly as we have said this ground of appeal succeeds and the appeal will be allowed.
22. We ought to refer to another aspect of the case. When our colleagues held a preliminary hearing, His Honour Judge Peter Clark made this observation

"The fact that a single breach of natural justice is found to have occurred will not of itself automatically lead to a finding of unfair dismissal, although the finding that this single breach of fair procedure did not disadvantage the Appellant comes, arguably, perilously close to the 'no difference' approach disapproved by The House of Lords in Polkey v A E Dayton [1988] ICR 142".

23. In the Polkey case, Lord Bridge of Harwich said this at page 163

"If an employer has failed to take the appropriate procedural steps in any particular case the one question the Industrial Tribunal is not permitted to ask in applying the test of reasonableness posed by Section 57(3) [i.e. the predecessor of Section 98(4)] is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken".

It seems to us that if one stands back and takes a broad view of the reasoning process of the Employment Tribunal in the present case, it could be said that in its concluding passages it was providing an answer suggestive of it having asked itself the forbidden question to which Lord Bridge referred.

24. We have not concentrated on this aspect of the case in the course of submissions. It is a technical matter and, with all respect to him, Mr Lock is not in a position to assist us in relation to it. However we make it clear that, if we had not allowed the appeal on the first ground, we would, at the very least, have had to give very serious consideration to allowing it on this ground.
25. The appeal having been allowed. The question is what happens next. Notwithstanding the passage of time, and mindful of the duration of the original hearing, we can see no alternative but to remit the matter to a differently constituted Tribunal in Liverpool. We are deeply conscious of the passage of time. Much water has, no doubt, flown under both parties' bridges since the middle of 1999 and we do wonder, without of course making any order, whether there might not be some way in which the parties could settle their differences without the need for a further hearing.
26. If that is to happen or indeed if a further hearing is to take place, Mr Lock who has been both courteous and concise in what he has said to us, may wish to consider availing himself of some legal support. We appreciate that there are always difficulties of finance in that regard but organisations do exist which do provide reliable and sensible legal advice and representation free of charge, and we would hope that Mr Lock may avail himself of some such prospect.
27. Although we have allowed his appeal and formally remitted the matter for a re-hearing, it is quite clear that his case is a difficult one and he, I'm sure, will not infer from the success of his appeal that he has an easy task in the Employment Tribunal.