United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JOE SYKES (of Counsel) Messrs Nigel Adams & Co Solicitors 4th Floor 1 Knightrider Court London EC4 5JP
For the Respondent	MR PETER LINDSTEAD (of Counsel) Messrs Cripps Harries Hall Solicitors Wallside House 12 Mount Ephraim Road Tunbridge Wells Kent TN1 1EE


 


HIS HONOUR JUDGE D PUGSLEY

1. The background to this case is that the Applicant felt he had certain grievances against the Respondents for a number of shortcomings about his working conditions. The Respondents are a well known Trust which provides much needed accommodation for those who come to this country to study. There are some students from the United Kingdom.
2. The Applicant therefore circulated his grievances to a number of prominent people including Her Majesty The Queen who is a Patron of the Trust. We are not a fact finding body but we are bound to note that the terms of the Applicant's complaint did not suggest that the Applicant was a person of any great sophistication. The letter he wrote concluded with the words:

"Hoping this will help future understanding."

The Respondent's response was to convene a disciplinary panel.

3. Prior to that meeting convening Ms Wilson circulated a memo to the disciplinary panel which is set out in the bundle of documents before us at page 139 and which it is appropriate to quote in detail:

"The purpose of a disciplinary hearing is to give an employee the opportunity to state their case and to be told of the case against them. There should be an absence of bias in the proceedings.

In this particular case, Mr Umberto Caredda circulated a letter making allegations about the Trust staff and practices. He did not follow the normal grievance procedure but circulated the letter to senior and junior members of staff causing some of them distress and damaging his own credibility with his seniors, peers and juniors. Members of staff have copies of the letter.

He must be given the opportunity to explain his conduct or any mitigating circumstances. The trust regards the action of circulating this letter to be gross misconduct, for which [he] may be dismissed, and he must be made aware of the consequences of his action particularly if he refuses to speak at the hearing.

In order to avoid bias in this case, the hearing will be conducted by Mr Paul Darnell, the Assistant Director (Finance) who has not been involved with Mr Caredda at any stage of the proceedings and who did not receive a copy of the letter. With him will be Mr Christopher Wright who has not been involved in this case and has only been on the Trust staff for 6 weeks.

Once the disciplinary hearing is satisfied that Mr Caredda or his representative has had ample opportunity to explain his conduct or mitigation, the hearing should be adjourned so that the case can be considered before a decision is made. It should be explained to Mr Caredda that he has the right to appeal against any outcome of the hearing.

In all circumstances the following factors will be borne in mind:

Employee's general record, age, position and length of service

Any special circumstances which might make it appropriate to lessen the severity of the penalty.

The gravity of the offence."

4. In the Preliminary Hearing the Employment Appeal Tribunal (The Honourable Lord Johnston, Mrs Chapman and Ms B Switzer) identified the issues raised by this letter as raising an arguable issue of law. As Lord Johnson put it at paragraph 6 of the transcript:

"…. Without rehearsing the detailed submission, it was to the effect that the Appellant did not get a fair hearing from the employer, firstly because (and this is not featured in any way in the Tribunal's findings) a senior employee of the employer Respondent apparently wrote, so Mr Sykes told us, to the Tribunal members in advance of the hearing indicating the view of the employer, namely that this conduct was outrageous and worthy of instant dismissal. This, it was said, was bound to prejudice the mind of the employees, however senior, conducting the appeal, not least that of Mr Wright, since he was a relatively new employer [employee]. In any event, he submitted that this was a close-knit organisation, everybody knew everybody else, and the likelihood, at least on the face of it, of the Appellant getting a fair hearing conducted by employees working in the same institution as [at] that level was very uncertain."

5. Lord Johnston went on to emphasise that the Employment Appeal Tribunal approached this issue not by reference to the Human Rights Convention or Article 6 thereof, but rather on the simple long established rules of law that anyone who is being investigated is entitled to a fair and unbiased hearing and that is to be judged not by whether or not, in fact, any bias was operated, but, more, whether looked at objectively, bias could be seen to have an opportunity to exist.
6. Before us Mr Sykes, who appears for the Appellant has cited to us the cases of R v Bow Street Metropolitan Stipendiary Magistrate ex parte Pinochet [1999] 1 All ER 577 and Lochabait (UK) Ltd v Bayfield Properties Ltd [2000] 2 WLR 870.
7. Mr Linstead has pointed out that cases such as Sartor v P & O European Ferries Ltd [1992] IRLR 271 and Haddow v Inner London Education Authority[1979] ICR 202 have deprecated attempts to equate an employer's internal disciplinary hearing with a judicial enquiry.
8. This Tribunal is uncomfortable with equating the question of judicial bias with the conduct of a disciplinary hearing. By the very nature of things there will be many cases involving small employers when it would be wholly unrealistic to expect that the person making the decision to dismiss will be unaware of many of the details of the case and have close relations with, and knowledge of, the persons involved.
9. We consider that we should be guided by the judgment of Mr Justice Slynn in Bentley Engineering Co Ltd v Mistry [1979} ICR 47. This case though not cited to us is apt. During the course of his judgement Mr Justice Slynn quoted with approval the words of Harman J in Byrne v Kinematograph Renters Society Ltd [1958] 1 WLR 762 at 784, where Mr Justice Harman said this:

"What then are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. I do not myself think that there really is anything more."

10. In the course of this judgment Mr Justice Slynn put a refinement on that by saying that natural justice does require not merely that a man should have a chance to state his own case in detail but he must know in one way or another sufficiently what is said against him.
11. In our view in the context of disciplinary proceedings in employment it would be quite wrong to lay down formalistic rules that would disqualify a range of persons from taking any part in the decision to dismiss or uphold that decision in an appeal hearing. The procedure to be adopted and the persons appropriate to make the decision to dismiss and hear any appeal against that decision will vary with the nature of the undertaking and the complexity of the issues involved. We consider that the sense of fairness of an Employment Tribunal, including as it does members with experience of both sides of industry, is a sufficient bulwark against unfairness in the workplace. Employment Tribunals sit as industrial juries; we consider that with the jury's homing instinct for what is fair they are well capable of deciding whether a dismissal is fair or unfair without having to determine the matter by applying abstract and formalistic criteria to a wide and diverse range of cases.
12. We are, however, more troubled by the second limb of the appeal, namely the memo written by Ms Wilson. This was not a matter, as Mr Linstead concedes, which the Employment Tribunal dealt with in their reasoning. The guidance notes that Ms Wilson wrote is not expressly referred to in the Extended Reasons although it is right that at paragraph 24(c) of the decision there was reference in summary form to the written submissions made on behalf of the Applicant. In particular the Tribunal notes the contention made on the behalf of the Applicant that there was clear evidence of pre-determination of outcome and bias. It is urged on us by Mr Linstead that this is clearly a reference to paragraphs 21 and 25 of the Appellant's written submission which was countered by the Respondent's written submission at paragraph 21. The Tribunal stated in their decision that they found the submissions helpful and that they were considered in detail by the Tribunal.
13. Mr Linstead has, quite correctly, urged on us that there is no requirement on a Tribunal to set out the evidence and submissions in exhaustive detail and that the weight to be given to any particular piece of evidence is entirely a matter for the Employment Tribunal and not a matter in which the Employment Appeal Tribunal should interfere. He cites such cases as Chief Constable of Thames Valley Police v Kelloway [2000] IRLR 170 at 174 and 175, and Eclipse Blinds v Wright [1992] IRLR 133 and paragraph 14 at page 135.
14. Although not cited to us this Tribunal has heeded the rebuke of Lord Hoffman in Piglowska v Piglowski [1999] 3 All ER at 632 at 644 that:

"An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.."

15. It is pertinent to note that at paragraph 6 the Tribunal complained that Mr Sykes, who was appearing for the Applicant before the Employment Tribunal, had to be reminded of what was relevant and concluded that Mr Sykes seemed unable to confine himself to the issues that the Tribunal had to decide. The Tribunal gently commented that both representatives were lengthy. If advocates blur the wood and the trees then it is not surprising if the Tribunal of fact views the case from a somewhat distorted perspective.
16. We are well aware that, by its very nature, an appeal hearing can be an artificial exercise. In the course of a trial – whether criminal or civil – there may be many issues which are raised which a Tribunal of fact has to resolve. In many cases at an appeal hearing one issue is under scrutiny and the appellate process can give that one issue an importance which it lacked in the decision making process. What was peripheral and marginal can be given the spurious status of being central to the decision.
17. Not-withstanding these warnings we have given ourselves this Tribunal does remain concerned at the failure of the Tribunal to deal with the notes of guidance which Ms Wilson sent. We are not a fact finding body but the contents of the Applicant's letter speaks for itself. It is redolent of the reaction of someone who feels a sense of injustice without having the sophistication to express that injustice in appropriate and suitably emollient terms. It may well be that English is not the Applicant's first language. The Tribunal set out in their letter of suspension dated
    11 November 1999 their view when Ms Wilson said:

"I consider that circulating these allegations constitutes gross misconduct and may result in your dismissal without notice."

This was then followed by the guidance notes that has already been set out in which it is said:

"The Trust regards the action of circulating this letter to be gross misconduct, for which he may be dismissed, and he must be made aware of the consequences of his action particularly if he refuses to speak at the hearing."

18. We are concerned that at no point in the decision does the Tribunal expressly deal with the issues which the notes of guidance raises. Each case has its own chemistry. What we find lacking in this decision is any recognition of the difficulty (and indeed the irony) that having taken such careful steps to ensure that the panel should be free from bias the notes of guidance then appear to pre-empt the most crucial decision which the Tribunal has to decide, namely whether the circulation of the letter was an act of gross misconduct.
19. We are not for a moment to be taken as suggesting that the notes of guidance inevitably tarnished the decision to dismiss and it therefore follows that any such dismissal must be unfair. It may well be possible for a Tribunal to make a finding that those making the decision, or upholding that decision on appeal, had reached their own independent decision rather than merely assume that the circulation of the letter was an act of gross misconduct. Yet given the factual background of this case we consider that a Tribunal should have given this matter express and explicit recognition.
20. If an employee physically assaults his foreman, or indecently assaults another employee, a note of guidance saying that this conduct, if proved, would be an act of gross misconduct would be no more than a glimpse of the obvious. Moreover, in our view, there would be nothing objectionable in citing to a disciplinary panel that the conduct alleged, if proved, constituted gross misconduct under the terms of the employee's contract.
21. In our view it is not necessarily a glimpse of the obvious to say, if an employee circulates to those concerned with an institution his or her grievances rather than taking the matter up with the immediate line manager, the circulation of those grievances constitutes an act of gross misconduct. In our view the notes of guidance raised serious issues which demanded and deserved the Tribunal's scrutiny and for them to make appropriate findings and draw reasoned conclusions.
22. Mr Linstead has pointed out to us that the Applicant's representative did not cross-examine all witnesses about the notes of guidance. Mr Wright seems to be the only witness who was given the opportunity to comment and his clear evidence was that he regarded it as guidance as to how the disciplinary procedure should be conducted and an indication of the seriousness with which the matter had been taken – see Chairman's notes at page 49. Mr Linstead points out that both men gave evidence that they considered the matter overnight and they considered the range of options available – this is referred to in the Chairman's notes at pages 49, 95, 46 and 92. Both men in their oral evidence made it clear that they were aware of the importance of impartiality – this appears in the Chairman' s notes at 46 and 49. Mr Darnell says that he did give a warning along the lines suggested in the notes.
23. It is suggested that in any event Mr Toyne Sewell was not a recipient of the guidance notes and he heard an appeal. Although it is not a matter about which we heard any great argument, at page 141 of the bundle the notes of guidance on the appeal conclude with the words:

"After the hearing is completed you must make a judgment about whether or not the proper procedures were followed and decide if the act of sending the letter was indeed gross misconduct and that Mr Caredda has been fairly dismissed."

24. We accept Mr Linstead's contention that there is no requirement of a Tribunal to go through all the evidence of submissions in exhaustive detail (UCATT v Brain [1981] ICR 542) and we have in mind Mr Linstead's submissions and the cases he has cited which we have set out earlier in this judgment. Moreover we have considered carefully Mr Linstead's argument that of course there was an appeal in this case, and an appeal which is a form of re-hearing is capable of curing any defect in the original decision (Byrne v BOC [1992] IRLR 505).
25. We have looked at this decision in the round and we accept there is a stream of authority going back over many years which says that an appeal process can cure a procedural defect when it takes the form of a re-hearing.
26. The Tribunal at paragraph 30(h) concluded that the appeal against the dismissal was a re-hearing and directed itself to the correct issues. However, if one looks at the letter from Mr Toyne Sewell which is set out at paragraph 21 of the decision, although Mr Toyne Sewell deals with the suggestion that the original hearing was not fair and had been predetermined it is right to say that at no stage does that letter set out any reference to the memo that had been before the original hearing.
27. We consider that there is force in the contention made on behalf of the Applicant that as the Tribunal did not itself deal with Ms Wilson's guidance notes in its decision it is hardly in a position to determine that the appeal procedure itself cured a serious issue which the Tribunal did not itself touch on.
28. We have come with somewhat heavy heart to the reluctant view that this decision cannot stand. We consider the failure of the Tribunal to consider the implications of the notes of guidance was a serious blemish in its decision. We consider the only option we have is to allow this appeal and to direct that the case be reheard before another Tribunal. At the end of the day we consider that the guidance notes raised real issues which it was important that the Tribunal identified and dealt with. This was not a subsidiary finding of fact which a Tribunal was under no duty to set out. This was an issue that went to the very heart of the decision of fairness. We consider that the only way the matter can be dealt with is for the whole issue to be reconsidered.
29. In fairness to the Tribunal it should be said, and if we may say so as a hint to the parties as to how they could conduct this case, advocates are there not only to represent the interests of the parties but to assist a Tribunal. If undue prolixity or broadening of the issues to such an extent that the thrust of a submission is lost then it is more difficult for a Tribunal to do justice to the arguments raised before it. We therefore, as we have indicated, allow the appeal in order that it may be heard by a new Tribunal.