United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C D ROBERTS (the Appellant in Person)
For the Respondent	MR MICHAEL J FARRIER (Solicitor) Instructed by: Messrs Boyes Turner Solicitors Abbot House Abbey Street Reading Berkshire RG1 3BD


 


HIS HONOUR JUDGE J McMULLEN QC

1. On 29 April 2002 a different division of the EAT, presided over by Judge Reid QC with members, considered a Preliminary Hearing of the Applicant's appeal. For convenience, the judgment which Judge Reid gave will form the start of the judgment which we give now and should be read with it.
2. As Judge Reid made clear, only one issue arose which would go forward to a full appeal. The issue was the fairness of an appeal by the Applicant to Mr Kerney, the Human Resources Manager, when Mr Kerney had expressed in trenchant terms his view that the Applicant was guilty of the allegations which had been put against him. As Judge Reid cited in paragraph 8 of his reasons, that is based upon the Extended Reasons, paragraphs 18 & 19.
3. The essential issue therefore is the fairness of the procedure which led to the Applicant's dismissal. The procedure includes all stages: investigation, disciplinary hearing, disciplinary decision (in this case to dismiss) and the appeal which, although not contractual, formed part of that procedure.
4. In the course of the preparation for the appeal and for two weeks thereafter, prior to the decision being made by Mr Kerney, further investigations were conducted. The Applicant contended that one particular investigation which should have been conducted was not. This would have led to his exoneration, he contends.
5. Without objection by the Applicant, Mr Farrier, solicitor representing the Respondent, both here and at the Employment Tribunal, read out the note he took of the particular passage of evidence relating to the investigation by the technical person, Mr Doyle. The reason why Mr Doyle did not carry out the test, which is known as a DHCP, was because the Applicant had not contended that his password had been compromised. The tests which were conducted all led to the same conclusion: that the person in control of the Applicant's computer had indeed gone through the internet gateway and established contact. It was a perfect match; that is, contact with the chatrooms.
6. The Applicant initially contended that the Tribunal failed to recognise or to give sufficient weight to the fact that Mr Kerney had been involved at an earlier stage. At the EAT, he accepted that the Tribunal had indeed looked at this contention, since the Tribunal recorded as follows:

"He also complained that Mr Kerney had already made his views known as to his guilt and therefore was not the appropriate person to hear his complaint."

7. The Tribunal therefore engaged upon the consideration of the Applicant's primary contention. That it failed to give sufficient weight does not raise a question of law.
8. It seems to us, as it did to Judge Reid's Tribunal, that the Applicant has a good point when he complains that Mr Kerney, who had expressed his view of the Applicant's guilt prior to the appeal, was not the appropriate person to handle the appeal. As the Applicant put it: Oracle is the second biggest software company, somebody else could have dealt with this matter who had not expressed himself so firmly against the Applicant. Therefore, as a prima facie case, the Applicant is right.
9. The Tribunal considered the leading authority, which is Slater v Leicestershire Health Authority [1989] IRLR 16 CA, where a complaint was made that a person who had been involved in a way similar to a witness should not have conducted the disciplinary hearing and the investigation. It was contended that the person could not conduct a fair enquiry. The Court of Appeal held that, whilst it is a general principal that a person who holds an enquiry must be seen to be impartial, the rules of natural justice do not form an independent ground upon which a decision to dismiss may be attacked, although a breach would clearly be an important matter when a Tribunal considers that, under section 98 (4) of the Employment Rights Act 1996.
10. The Applicant also referred to Byrne v BOC Ltd [1992] IRLR 505. A majority decision of the Employment Appeal Tribunal, presided over by Knox J., held:

"A person may be disqualified from hearing an appeal not only when he was personally involved in the events that led to the dismissal, or in the decision to dismiss, but also through involvement in the investigation. It is entirely possible that a person who investigates an alleged disciplinary breach may well become so involved in that matter that it realistically becomes his cause so as to disentitle him from being a person who can conduct a fair appeal from a decision at the disciplinary hearing in which he played no part."

11. In that case the majority EAT overturned the decision of the Employment Tribunal, that the dismissal was fair, since defects in the initial disciplinary proceedings had not been cured on appeal.
12. In the Slater case the Employment Tribunal, the EAT and the Court of Appeal reached the conclusion that the dismissal was not rendered unfair by reason of the involvement at various stages of the same officer.
13. Our case is different. This is not a manager being a judge in his or her own court. Since there is no direct involvement by Mr Kerney in the abusive email; rather, this is a case of straightforward predisposition. A person who has a closed mind cannot conduct a fair hearing. Mr Roberts is entitled to have a meaningful appeal conducted fairly by a person with an open mind prepared to listen and to make changes to a decision already made the subject of an appeal.
14. Thus we arrive at the heart of the case which is the decision by the Tribunal that Mr Kerney's involvement did not contaminate the appeal so as to render unfair the dismissal. This is a most unusual case. At first sight we, as the Employment Tribunal, took the view that the involvement of Mr Kerney following his intemperate remarks by email would render the dismissal unfair because he was the last person who could have conducted the appeal fairly.
15. That point was put squarely before the Tribunal when it made its findings. What it said was this:

31 "We observed Mr Kerney giving evidence and we accepted his position that whatever he felt in relation to his dealings with the Applicant vis-à-vis the public face of the company, when it came to hearing an appeal, he both had to and was able to approach the matter with an open mind. He gave an example that a person who had been using Oracle Internet facilities to make abusive comments regarding cat breeding was given a final written warning when it emerged when the person using the facilities was in fact his wife. Mr Kerney made it clear that had the Applicant had come up with an explanation that had some probability, that would have been considered. The difficulty was however, the Applicant raised the issue of the hacker and asked for a number of tests to be carried out to explore that. Those tests were carried out until it became apparent that every test that was carried out merely confirmed the Applicant's involvement and therefore guilt. At that point the test ceased.

32 We were satisfied that the way in which the Respondent had continued to explore ideas put forward by the Applicant after the appeal meeting demonstrated that they had not closed their minds to the possibility that he may have a proper explanation. Unfortunately, none of the investigations confirmed the Applicant's story."

16. In our judgment the Tribunal is there conducting the task which was properly before it. Given a prima facie case of predisposition, was it in fact made out? The Tribunal has come to a finding of fact based on its appreciation of Mr Kerney and, more importantly in our view, has justified it by the matters which we have set out from its Extended Reasons above. We can understand the reasoning of the Tribunal because it has explained it to us quite carefully in the decision.
17. The unusual circumstances of Mr Kerney's involvement did not taint the decision of the Respondent. It will be noted that the Tribunal was dealing with the Respondent corporately and reflecting on the numbers of minds involved. It did not render the dismissal unfair.
18. In those circumstances it is unnecessary for us to take this matter further or to comment upon the finding, strictly unnecessary to its decision, made by the Tribunal in paragraph 35, which Judge Reid referred to as its 'coda'. The appeal is dismissed.
19. An application was made by Mr Farrier under Rule 34 of the EAT Rules, that the Applicant should pay costs in this case because his conduct was vexatious or alternatively that there had been unreasonable conduct in conducting the proceedings. The primary complaint he made relates to a sequence of email from the end of November 2001 leading up to the end of February 2002.
20. As to the costs for today's hearing, we reject Mr Farrier's claim that the Applicant has behaved vexatiously or unreasonably. How can it be, when Judge Reid's Tribunal expressly allowed Mr Roberts to develop his argument before us that the Applicant can be condemned for so doing?
21. However, more substance is found in Mr Farrier's complaint about the content of the email. It is frankly disgusting. It not only shows the Applicant's contempt for every manager in the company but also makes the most serious criticisms of Mr Farrier.
22. The Applicant accepts that this correspondence is indeed abusive but says that it is no worse than one would expect in a school yard. We disagree. This is not the kind of behaviour which should be associated with litigation before any judicial forum and is quite improper. We categorise the correspondence conducted by the Applicant as unreasonable conduct in conducting the proceedings.
23. We have asked Mr Farrier what extra costs were involved in dealing with this matter. He told us that he himself had had to consult his clients. His clients had sought his advice on responses to this appalling diatribe of abusive language. It is, in our judgment, reasonable for Mr Farrier on behalf of his client to seek costs in connection with that part of the proceedings.
24. Having listened to Mr Farrier's measured approach to our judgment, we think justice will be done in this case. Rather than awarding the sum of £410 + VAT which he attributes to the activity in dealing with this email, if we award £200.
25. The Appeal is dismissed with costs of £200.