United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M GALBERG (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK:

1. This is an appeal by Mr Narang, the Applicant before an Employment Tribunal sitting at London (Central) under the chairmanship of Mr C B Robson on 29 – 30 November 2000, against that Tribunal's decision, promulgated with extended reasons on 12 February 2001, dismissing his complaints of unfair dismissal and racial discrimination brought against his former employer, In Shop Centres Plc (the Company).

Background

2. The Company rents commercial premises to retail traders throughout the country. The Applicant commenced employment as manager of their Wealdstone Centre on 1 June 1998. He is black. He was dismissed on 10 September 1999 for alleged gross misconduct.

Racial Discrimination

3. The specific complaint made by the Appellant was that on about 20 July 1999 Mr Avery, the Company's Operations Director (South), visited the Wealdstone Centre and noticed rubbish lying about. Mr Avery told him to "clean it up, you black boy." Mr Avery denied saying any such thing.
4. The Tribunal found that this complaint, contained in the Applicant's Originating Application presented on 3 November 1999, was out of time and that it was not just and equitable to extend time. In any event, having heard the witnesses, they rejected the Appellant's account. Thus had his complaint been presented within time, or been permitted to proceed, it would have failed on the merits.

Unfair Dismissal

5. The events leading up to the Appellant's dismissal concerned his application for a mortgage in order to buy a house. It seems that he went to a stationers and had printed at his own expense, £26.99, 5 sheets of headed notepaper, showing the Company's name and the Wealdstone Centre address. One such sheet of paper was used to provide a financial reference on behalf of the Appellant for mortgage purposes, purportedly signed by a Paul Green, Assistant Personnel Manager. The information contained in the letter was false in certain material particulars; it described the Appellant as a Sales Manager, Grade B, and gave an inflated figure for his annual salary and referred to commission which he did not receive.
6. This matter came to light when the mortgage company dealing with his application (Mortgage Master Ltd) referred to the Company's Birmingham Personnel Department. They saw that the letter was false in the respects indicated. There was no Paul Green employed as an Assistant Personnel Manager and no personnel department at Wealdstone.
7. The Appellant was interviewed about the application by Mr Avery and Mr Bloomfield, Head of Personnel, on 25 August 1999. He admitted having the note paper printed, saying that it was designed to impress clients of the company. As for the false information in the letter to Mortgage Master, that had been concocted by a broker, a Mr Hanspal, acting on his behalf but without his knowledge.
8. He was summoned to attend a disciplinary hearing before Mr Casey, the Regional Manager, on 31 August. He was charged with falsification of company documentation or dishonestly attempting to gain a financial advantage by deception and serious breach of trust. At that hearing the Appellant attended with an employment lawyer, Mr Johnstone. It was his case that he was not involved in making the false document and that it was not a company matter. It was solely the responsibility of Mr Hanspal.
9. Mr Casey adjourned the hearing for further investigation. Mr Hanspol was written to; he said that all the information came from the Appellant.
10. The hearing was resumed on 10 September; Mr Casey did not accept the Appellant's explanation. He dismissed him for gross misconduct.
11. Against that decision the Appellant appealed to Mr O'Malley, the Managing Director. The appeal hearing took place on 30 September 1999. Mr O'Malley dismissed the appeal. On these facts the Employment Tribunal found the dismissal by reason of conduct to be fair.

This Appeal

12. The principle submission made in the appeal by Mr Galberg of Counsel, who appears on behalf of the Appellant under the ELAAS pro-bono scheme, is that the Respondent failed to comply with certain directions as to the provision of documents and witness statements given at an earlier directions hearing. It is accepted on behalf of the Appellant that although he raised this matter with Mr Robson's Tribunal, he did not apply for an adjournment nor did he contend that he was prejudiced by the late provision of the witness statements and documentation. Nevertheless, Mr Galberg submits that it was incumbent on the Tribunal of its own motion to offer an adjournment to the Appellant so that he could consider his position in the light of the new material. We reject that submission. It seems to us that if the Appellant was prejudiced by the late delivery of the documentation, it was incumbent on him to make an application, either for a short adjournment or for the matter to be postponed generally. He did not do so and in the absence of such application we are unable to say that the Tribunal erred in law in failing to make that offer.
13. In addition, Mr Narang has addressed us on the remaining grounds of his appeal. First he points to a conflict between his account of the time spent questioning the Respondent's witnesses in chief by their representative and the times given by the Chairman in his letter to the EAT, commenting on the grounds of appeal. It seems to us that the responsibility for keeping a record of Tribunal proceedings lies with the Chairman. We are satisfied that the Chairman kept a contemporaneous note of the time spent by witnesses, both in chief and in cross-examination. We have no reason to doubt those times.
14. Further, Mr Narang complains that whereas the Respondent was permitted to adduce evidence as to an earlier incident in his employment, when he had sought to borrow money from the till, leading to a warning by the Respondent, he was not permitted to give evidence of earlier matters which he contends reflected on the Respondents treatment of him. This point has not been articulated in the grounds of appeal, but in any event it seems to us that these matters were not central to the Tribunal's deliberation on either of the principal complaints in this case.
15. Accordingly, we do not consider that that complaint would in any event be material. Put shortly for the reasons which we have summarised earlier in this judgment, the Tribunal reached permissible findings in relation to both the complaint of racial discrimination and that of unfair dismissal. There was no procedural unfairness in the conduct of the proceedings and consequently this appeal must be dismissed.