United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR RALPH WYNNE GRIFFITHS (of Counsel) Instructed by: Messrs Clarke Willmott & Clarke Solicitors St James Court St James Parade Bristol BS1 3LH
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


MR RECORDER UNDERHILL QC

1. This is an appeal against the decision of an Employment Tribunal sitting in Bristol, promulgated with Extended Reasons on 20 September 2001, dismissing the Appellant's application for unfair dismissal.
2. The very brief facts are as follows. The Appellant was a Shift Manager of the Respondents' unit in Bristol where large sums of money are kept in a secure environment while in transit. A sum of money went missing during a period for part of which the Appellant was the responsible Shift Manager. An investigation appeared to show that he had been guilty of serious breaches of procedure, and he was accordingly dismissed for gross misconduct.
3. The Respondents have not appeared at the hearing of the appeal today. They appear to have been unaware of the date and on being notified of it this morning have applied by fax for an adjournment. We have decided to proceed with the hearing notwithstanding. The relevant circumstances are as follows:

(1) Paragraph 2 of the Respondents' Answer identifies their representative, to whom any communication relating to the appeal may be sent, as IRPC Group Ltd of Stockwell House, New Buildings, Hinckley, Leicester, LE10 1HW. The reference given is "DB". The Respondents' Answer was in fact submitted under cover of a letter from IRPC which described them on its letterhead as "a Croner CCH company". This letter reveals the reference "DB" to be a Mr Bansal, who appeared for the Respondents in the Employment Tribunal. There are two further letters to the Appeal Tribunal from IRPC on the Appeal Tribunal's file.

(2) The file contains a copy of a Notice of Hearing dated 25 June 2002 setting today's date. The addressees are the Appellant's solicitors and "IRPC Group Ltd" for the Respondent. There is no reason to suppose that that Notice of Hearing was not sent at that time to IRPC, who were the identified representative, at the address given by IRPC.

(3) On 20 August 2002 the Registrar wrote to a Mr Broadbent at Croner Consulting, Croner House, Wheatfield Way, Hinckley, Leicestershire, LE10 1YG. The letter concerns the bundles for the appeal. Croner Consulting is plainly part of the same organisation as IRPC and based in the same town or village. But, as appears from the postcodes, the detailed address is different. It is unclear why the Registrar was now writing to the Respondents' representatives under a different name and at a slightly different address. However, it can as a matter of common sense only have been as a result of a communication of some kind from either IRPC or Croner indicating new contact details. There is no other conceivable reason why the Tribunal should have changed the address to which it was writing.

(4) The file contains no reply to that letter or to a subsequent letter chasing the Respondents' Skeleton Argument.

(5) When the Respondents had not appeared at 10.30am this morning, Elizabeth Brooks of the Tribunal staff telephoned either IRPC or Croner (it is not entirely clear which). That enquiry elicited a fax in the following terms, from Croner Consulting at the address to which we have already referred, under the reference of DB:

"Dear Sir/Madam

Re: Bicknell – v – Securitas UK Limited

Case No 1336/02

We act on behalf of Securitas UK Ltd.

We write further to your Elizabeth Brook's telephone call to our office this morning concerning an appeal hearing listed for today.

Regrettably, there appears to have been some misunderstanding. We understand you have been writing to Colin Broadbent who is no longer in our employment. Unfortunately, we have no one available to attend today's hearing and in the circumstances request that this case be postponed to a future date to allow us to represent the Respondent in respect of this hearing.

Should you have any queries please do not hesitate to contact our Mr Bansal…"

And a telephone number is given. It should be observed in passing that the reason given in that letter for the "misunderstanding" cannot in any event be a good excuse. Any organisation can be expected to have procedures whereby business letters addressed to members of the staff who have left are intercepted and passed to whoever had succeeded to their responsibilities.

4. Although there are some obscurities in the precise details, the key points which appear from those matters are:

(1) that the file shows that Notice of Hearing was sent to the Respondents' nominated representative;

(2) that although the later correspondence is to a different address, that address was one that must have been given to the Tribunal by the Respondents' representatives and was one at which, as today shows, they could indeed be contacted;

(3) the later correspondence has no impact on the essential point, which is that the Respondents should already have known of the hearing date prior to the change of address.

We accordingly conclude that the Respondents had proper notice of this hearing and that their failure to attend is the result of some administrative confusion or mistake on their part, rather than of any error by the Tribunal staff.

5. In such circumstances the Respondents have no automatic right to an adjournment. It is a matter of discretion for us whether the interests of justice require an adjournment, having regard to all the circumstances, including the fact that the non-attendance is the fault of the party requesting the adjournment. In the circumstances of the present case we believe that the balance is in favour of the appeal proceeding, for the following reasons.
6. First, the Appellant is of course present. He has instructed Counsel. Counsel is apparently publicly funded. Although a costs order might, indeed almost certainly would, be made if we were to agree to an adjournment, such costs orders commonly do not fully cover the financial cost to the party (or in this case the public funds); nor, equally importantly, do they compensate for the delay, disappointment and disruption to a litigant who has been anxious to have his case heard. In this case the Notice of Appeal was filed some 11 months ago. There would inevitably be a delay of some further months if we were to allow an adjournment.
7. Secondly, as will shortly appear, one of the circumstances giving rise to the present appeal is the admitted failure of the Respondents to comply with important directions from the Employment Tribunal as to the conduct of the case at first instance. We are inevitably less concerned to be lenient in favour of Respondents who have already been seriously in default.
8. Thirdly, one at least of the two grounds of appeal (that relating to the failure of the Tribunal to deal with an essential part of the Appellant's case) appears to us, as it did to the Appeal Tribunal at the Preliminary Hearing, extremely straightforward. It is of course always important to remind ourselves that a case which may seem straightforward when only one side has been heard may have hidden difficulties. But even bearing that in mind, so far as it is possible to judge it is hard to see what points could be raised in relation to that ground of appeal (which is by itself capable of being dispositive), which the Respondents could make if represented but which are not already apparent.
9. Fourthly, if on enquiry further facts appear which would entitle the Respondents to a review under the Appeal Tribunal Rules, they will of course be able to put right any injustice which they may have suffered. We expressly drew to the attention of Mr Wynne-Griffiths (who appears today for the Appellant) the possibility – we put it no higher – that there may be circumstances not known to us which mean that the appeal ought not in justice to have proceeded, and that the consequence might be further cost and delay. He made it clear, having taken instructions, that he was willing to take that risk.
10. We accordingly turn to the substantive points in the appeal. They are twofold – first, that the Appellant had an unfair hearing before the Tribunal and second, that the Tribunal in its Reasons did not deal with an essential part of the Appellant's case.

A Unfair Hearing

11. The relevant facts can be summarised as follows:

(1) The Tribunal made an Order for Directions in this case on 14 June 2001 requiring:

(i) that the parties provide a common bundle of relevant documents to be produced at the hearing, to be agreed not less than 14 days before the hearing date;

(ii) that witness statements of all witnesses be exchanged no later than 7 days before the hearing date.

(2) The Appellant complied, as the Tribunal put it, 'meticulously' with both those directions. He prepared a list of those documents which he wished to go into the bundle and sent it to the Respondents. He also served his witness statements on time. By contrast, the Respondents did not serve their bundle of documents until 30 July – the hearing date being fixed for 2 August. The bundle should have been agreed by 19 July, which, as Mr Wynne-Griffiths pointed out, required identification of the relevant documents somewhat before that. They did not serve their witness statements until the day before the hearing, when they should have been served by 26 July.

(3) At the start of the hearing the Appellant, who was unrepresented, applied on the basis of those breaches for the Notice of Appearance to be struck out and the Respondents to be debarred from defending the claim. The Chairman asked him whether he wished for an adjournment and he is recorded in the notes as saying that he did not. It is fair to record, though we do not need to reach any view on this, that Mr Wynne-Griffiths told us on instructions that there was an element – he did not suggest, and nor do we, any improper element – of encouragement by the Tribunal Chairman not to ask for an adjournment on the basis that it would only lead to further delay.

(4) The Tribunal dismissed the application to strike out the Notice of Appearance, though it made it clear that it would consider the question of costs at the conclusion of the hearing. It indeed did so and ordered the Respondents to pay £100 towards the Appellant's costs.

(5) We should add that the Respondents expressly conceded that they were in breach of the Orders and advanced no substantive excuse.

12. The hearing accordingly proceeded but it transpired in the course of it that not only had the Respondents produced their documents late but that there were further documents, at least apparently relevant, which they had not provided at all.
13. Against that background, what the Appellant says in a witness statement made for the purpose of this appeal is as follows:

9 "I raised this matter with the Tribunal on the morning of the hearing and I requested their defence of the claim be struck out. The Tribunal considered the application but decided to let the hearing go ahead. I believe that I was at a distinct disadvantage in being forced to continue the hearing when I was allowed such little preparation time. This was obviously compounded by the fact that Securitas had legal counsel to represent them at the hearing. In addition, Securitas did not provide to the Tribunal copies of the head office log and security officer's report. Both of these documents were requested by the Tribunal, with Securitas stating that they were not available. Despite the absence of these documents, the Tribunal continued to hearing the case.

10 These documents are vital to the case in that the head office log would confirm a crucial aspect of my case that was denied by Securitas at the hearing."

We interpose to say that that was that the Appellant claimed to have made a radio message warning that he could not activate the alarms.

"Further, the Security Officer's report would show the process followed by the company throughout the investigation procedure that ultimately resulted in my dismissal.

11 When all of these issues are put together I take the view that I was not afforded a fair hearing by the Bristol Employment Tribunal. I was faced with having to conduct the hearing with minimal knowledge and preparation of the documents and statements that would be presented on the company's behalf, and in the absence of vital documents that would support my case."

14. Mr Wynne-Griffiths submits, adopting those statements by his client, that the hearing was by reason of that sequence of events so unfair as to be flawed in law. He takes issue with the reasons given by the Tribunal for dismissing the application to strike out the Respondents' Notice. He also takes a point, or perhaps two points, of law relating to its understanding of its powers in relation to the change between the 1993 Rules of Procedure and the 2001 Rules of Procedure. It does not however seem to us that those questions are central. What ultimately matters, in the events which have now happened, is whether the hearing which did in fact take place was flawed. He says that it was for essentially two reasons. Firstly, and more generally, he submits that it both was and appears unfair that any applicant, and in particular an unrepresented applicant, should have to conduct his case against a background of the late disclosure of documents and witness statements. Secondly, and more specifically, relevant and potentially crucial documents were missing, as already identified.
15. We do not believe that we need, for reasons which will appear, definitively to adjudicate on this submission and we prefer not to do so. We can certainly say, however, that the Appellant is entitled to feel aggrieved at the manner in which the hearing was conducted.

B Failure of the Tribunal to Address the Appellant's Case

16. It was a central part of the Appellant's case that others involved in the investigation of the events leading to the loss were shown to have committed similar breaches of procedure but were not subject to any disciplinary procedure. That was an important part of his case is apparent from three sources. Firstly, his Originating Application states:

"It was totally unfair to dismiss me for gross misconduct from Securitas UK Ltd (Bristol Branch) for breaking three procedures when these procedures were being broken by every person (at one time or another) working at the branch due to lack of training with the full knowledge of the manager. At the time of the investigation everyone concerned were not interviewed, persons found to have broken procedures were not disciplined."

Secondly, his statement which formed the basis of his evidence before the Tribunal included the following passage:

"The security operation that took place in Bristol on 22^nd and 23^rd January 2001 was initially to investigate the loss of monies from the branch, it then accumulated into who broke any procedures, a number of personnel were not even interviewed whereas certain individuals were not disciplined when found to have also allegedly Breached Procedures."

Thirdly, the Chairman's notes of his cross examination show that the relevant manager, Mr Jarman, was cross examined, among other things, on the question of why another employee involved in the investigation was not disciplined.

17. There is no sign whatever in the Tribunal's Reasons that those points were abandoned. If they had been the Tribunal would of course have had to record that fact. This aspect of the case is simply not referred to by the Tribunal in its Reasons at all. Having set out the facts the Tribunal proceeded in paragraph 10-12 to ask itself three questions: firstly, whether the matters alleged against the Applicant were capable of amounting to gross misconduct; secondly, whether the Respondents believed on reasonable grounds that the Applicant was guilty of that misconduct; and thirdly, what they described as 'proper procedure', which was essentially the question whether a proper investigation had been carried out.
18. Those questions identified by the Tribunal were all of course relevant, but they overlook a fourth question, namely whether, having regard to equity and all the circumstances of the case, it was reasonable to dismiss the Appellant for the misconduct which had been found. In the ordinary case it might well be that that would be a straightforward question, having regard to the seriousness of the breaches of procedure and the amount of money lost. However, it might well be different if there was a marked disparity between the treatment of other employees who were equally guilty.
19. That question having been raised by the Appellant, it required to be expressly addressed. A decision of an Employment Tribunal which simply fails to deal with a fundamental element of a party's case does not satisfy his or her entitlement to a reasoned explanation of why they have won or lost and is fundamentally flawed. This is certainly not a case in which we can say that if the point had been addressed the Applicant would nevertheless have failed. Accordingly, this appeal must be allowed and the case be remitted for a re-hearing.
20. In some cases of this kind it might be appropriate for the case to be remitted to the original Tribunal, perhaps on the basis that it need only consider the omitted point, but we do not believe that that would be appropriate here. Whether or not the matters to which we have referred under the first ground of appeal constituted an independent basis for overturning the Tribunal's decision, they unquestionably in our view mean that it would not be fair for the appeal to be dealt with on that basis, even if, which we doubt, the point was one which could be neatly dealt with as a discreet point. The case will accordingly have to be re-heard in its entirety by a fresh Tribunal.
21. We will add, formally, liberty to apply for detailed assessment of the Appellant's costs if required for the purposes of legal aid – such application to be dealt with by the Registrar.