United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J HORAN (Of Counsel) Instructed by: Messrs Webster Dixon Solicitors 21 New Fetter Lane London EC4A 1AW
For the Respondent	Mr S GORTON (Of Counsel) Instructed by: Mrs Young & Co Edward House Uttoxeter Road Stoke on Trent ST3 1NZ


 


JUDGE J PROPHET

1. This matter comes before us as a full hearing following the judgment of the Employment Appeal Tribunal at a Preliminary Hearing (Mr Recorder Underhill QC presiding) on 9 January 2001 that the appeal raises an arguable case. The appeal by Ms Sharp is in respect of the decision of an Employment Tribunal under the chairmanship of Mr D G M Davies following a hearing held at Shrewsbury on 20 and 21 November 2000 by which that Tribunal held that Ms Sharp had not been unfairly dismissed.
2. Having regard to that finding the Employment Tribunal did not go on to consider any issue as to contribution. At the hearing today Mr Horan of Counsel represents the Appellant and Mr Gorton of Counsel represents the Respondent. We are grateful to both of them for their submissions to us.
3. We endorse the observations of the learned Recorder that the way the Chairman of the Employment Tribunal has chosen to set out the reasons for the decision of the Employment Tribunal makes it difficult to understand how that Tribunal reached its conclusions. It is usual for an Employment Tribunal to set out the issues which the Tribunal has to decide but in this case the Chairman seems to have confused those issues with the contentions of each side.
4. In a straightforward unfair dismissal case the issues to be decided are usually 3 in number. First 'Was the Applicant dismissed?' Secondly, if so, has the employer established the reason for that dismissal? Thirdly, if so, and having regard to that reason, was the dismissal fair or unfair?' In this case it is common ground that Ms Sharp who had been an employee of the Respondent for some 14 years was dismissed at her home on 26 April 2000 after a short visit by Mr Moore lasting a few minutes. It is also common ground that the reason for that dismissal related to conduct, that conduct being related to the manner in which Ms Sharp had conducted herself on 21 April 2000.
5. Mr Gorton supplemented that, before this hearing, by saying that the principal matter in respect of conduct was an assault on Mr Gallagher, although there is no mention of that in the subsequent confirmatory letter of dismissal which was sent by Mr Ball to Ms Sharp. Be that as it may, the reason for dismissal was established by the Employment Tribunal as being one of conduct.
6. It follows that the issue for the Tribunal in respect of liability was whether the dismissal was fair or unfair in accordance with the wording set out in Section 98(4) of the Employment Tribunals Act 1996. It is that which should have been stated as the issue in the Employment Tribunal's reasons. From that the next stage should have been findings of fact by the Tribunal. However we have not been able to discern any clear exposition of those findings in the Tribunal's judgment.
7. On the face of it, the absence of any proper disciplinary hearing is likely to render a dismissal unfair. Mr Horan says that it is difficult to understand how in the particular circumstances of this case the Tribunal could have applied to the situation the 'utterly useless' principle of Polkey, which is the way which the Tribunal set out that particular matter. It is apparent that they were applying the position as set out by Lord Bridge in the well known Polkey decision.
8. In Polkey [1987] IRLR 503 Lord Bridge said (at p.508):

"In the case of misconduct the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation."

And then a little further on adds:

"It is quite a different matter if the Tribunal is able to conclude that the employer himself at the time of the dismissal acted reasonably in taking the view that in the exceptional circumstances of the particular case the procedural steps normally appropriate would have been futile could not have altered the decision to dismiss and therefore could be dispensed with."

9. Mr Horan supplements that by also referring to the case of Pritchett and Dyjasek v J McIntyre [1986] IRLR 97 pointing out that in the course of that decision Waite J refers to the importance of the rules of natural justice and quotes Sir Robert Megarry as saying that:

"It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. "When something is obvious," they may say, "why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start." Those who take this view do not, I think, do themselves justice. As everybody has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change."

10. It is fair to say that Mr Gorton reminds us that that particular decision preceded the decision in Polkey but as we have understood Mr Horan he is quite reasonably linking the procedural requirements set out in Polkey with the general rules of natural justice.
11. Mr Gorton says that the Tribunal was entitled, as indeed it did, to recognise that there were procedural shortcomings on the part of the respondent. He submits however that the Tribunal was entitled to say that those procedural shortcomings could be discounted in this particular case. That was a conclusion which they were entitled to reach and consequently the Tribunal was entitled to find that this was not an unfair dismissal. One of our number, Lord Davies, takes the view that that is a submission that should be accepted by this Employment Appeal Tribunal and that for his part he would have dismissed this appeal.
12. For my part and that of the other member Mrs Matthias our preference is for the submissions of Mr Horan. The 'futile' proposition as set out by Lord Bridge applies, as we understand it, to a situation where nothing that the employee could have said at any disciplinary hearing could possibly have made any difference to the decision that dismissal was appropriate. It is difficult to see how that could reasonably be applied to this situation where not only did Ms Sharp not know what the allegations against her were but where she had no opportunity of preparing a proper response to those allegations before she was peremptorily dismissed at her home. Also bearing in mind matters such as her health and the length of her service she was denied any adequate opportunity by which she could indicate possible mitigation. Procedural matters of this kind may not in the long run affect matters such as contribution, but the Employment Tribunal was not concerned with those. It is the view of the majority of this Tribunal that by the conclusion that the 'futile' principle should apply in these particular circumstances was so unreasonable as to constitute and error of law. Accordingly this appeal should be allowed and remitted for determination afresh before a differently constituted Employment Tribunal.
13. There has been consideration in respect of what was originally described as a witness statement but which appears to have been a letter ie as to whether that document should have been admitted by the Tribunal. The Chairman of the Employment Tribunal is unable to remember there being any application, although both sides say that some form of application was made. Mr Horan submits that the Employment Tribunal had no discretion to refuse to admit evidence which is probative (Rosedale Mouldings Ltd v Sibley [1980] IRLR 387) but Mr Gorton says that the truth of this matter is that the particular evidence was in fact of no relevance, and therefore the Chairman had a discretion which he properly exercised to refuse to admit it. However, in the event it is not necessary for this Tribunal to make any findings because of the new hearing where either party can submit such relevant evidence as it chooses to.
14. We make no directions so far as the new hearing is concerned since that is a matter for the Regional Chairman of the Cardiff region. However we might mention that there has been some difficulty for us in that there are 2 versions of a written statement which was prepared by Ms Sharp. If there is any way in which that matter can be resolved before the matter reaches the next Employment Tribunal, no doubt that will be helpful.