United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellants	Mrs S Stark, Advocate Instructed by- Messrs Wacks Caller Solicitors Steam Packet House 76 Cross Street MANCHESTER M2 4JU
For the Respondent	Mr B Wilson, In Person 21 Jamieson Avenue STENHOUSEMUIR FK5 4TX


 


LORD JOHNSTON:

1. This appeal raised two entirely separate questions.
2. In the first place, Mrs Stark, appearing for the employer, argued that the findings of the Tribunal on the substantive question of unfair dismissal, were based on inadequate evaluation of the evidence that was before the employer at the time, with regard to the extent of the investigation that had taken place into the alleged misconduct which led to the dismissal, and, that, secondly, in any event, they had substituted their own view for that of the employer in considering whether or not the dismissal was a reasonable one.
3. She further submitted that the procedural flaws that the Tribunal had found to be existing were insignificant and not sufficient to found a basis for unfair dismissal in that context. She referred us to a number of cases but it is sufficient for to us to point to the recent decision of Beedell v West Ferry Printers Ltd [2000] IRLR 650 where all the authorities referred to by Mrs Stark were reviewed in a detailed judgment by the EAT, Judge Peter Clark presiding, which restated that the appropriate test to be applied in relation to dismissal for misconduct was whether or not the response of dismissal was within a reasonable band of responses open to the employer. It is equally established by the same case that it is not open to the Tribunal at this level or at the lower level to substitute its own view for that of the employer.
4. The decision of the Tribunal is as follows:-

"1. The Tribunal was not satisfied that, at the time of the applicant's dismissal, the respondent entertained a reasonable suspicion amounting to a belief in his guilt of the misconduct concerned. The Tribunal accepted that the respondent's Director Mr Burr honestly believed it; but he did not have in his mind reasonable grounds on which to sustain that belief.

Despite the possibility of waiting to be driven home to Falkirk by her father, Andrea Maltman had accepted a lift home from the applicant (who lived nearby in Stenhousemuir) in his car (alone after he dropped off his daughter Arlene just near the respondent's showroom), which was unlikely if the applicant had previously done all that Miss Maltman alleged and she had felt uncomfortable all day.

Mr Burr also took into account the "allegation" by Mrs Una Andrew brought up by the applicant himself (despite it not being properly investigated), although she herself said in her statement that "her head was poisoned a little bit as David Maltman had told her 'if there is one way to get rid of Brian Wilson [it] is to report him because he had already been done for sexual harassment by someone upstairs'".

Andrea Maltman's statement was given in the presence of her mother, to whom she said she first mentioned the matter. Her mother had then passed on that information to her father, who made the formal complaint. But at the end of Miss Maltman's statement, it was recorded that Mrs Maltman commented, on the strength of one meeting with the applicant, that she was not impressed by him (although Mr Burr said he did not take that into account).

Mr Burr had essentially ignored the applicant's claim of conspiracy, despite both allegations against the applicant clearly having come via the same source, Mr David Maltman, who had encouraged Mrs Andrews to complain the previous year, although she did not want to take the matter further and was by then friendly with the applicant; and had reported the allegations about his daughter to Mr Lanni at the third hand. Mr Burr had taken the view that Miss Maltman could not have been in a conspiracy to make up the allegations, but that appeared to the Tribunal to overlook the possibility of other reasonable explanations, such as Miss Maltman making up the allegations because she did not wish to work the respondent, which was then capitalised on by her father.

In addition Mr Burr had not carried out as much investigation into the matter as was reasonable in all the circumstances, as he should have followed up and interviewed the witnesses mentioned by the applicant, particularly the applicant's daughter Arlene, who was an employee whom the applicant asked to be interviewed as she had spoken to Miss Maltman at the time. He also asked for his partner Melanie Jenkins to be interviewed as she had been present when he first met Miss Maltman in Falkirk Shopping Centre (which was a relevant part of the picture despite Mr Hall's subsequent denial of that).

Mr Lanni's interview of Mrs Andrews, who became a key witness, was accepted despite the allegation of conspiracy involving him, as Mr Burr relied on that allegation as showing a pattern of behaviour. But the other witnesses to that incident, including the applicant himself in relation to the incident, were not interviewed in detail about it, so a proper investigation into that aspect was not carried out.

It was also unreasonable to take Mr Lanni's word that there was no conspiracy (of which the applicant alleged Mr Lanni was part) without a great deal more investigation, especially as Mr Lanni himself took part and continued to take part in the investigation, despite the guidance in the ACAS Code. Nor had Mr Burr given proper consideration to the matters raised by the applicant in his letter of 19 February about this matter to the Managing Director, Mr Hall, although Mr Burr had seen the letter before the disciplinary hearing.

The dismissal was therefore substantively unfair. In reaching that view the Tribunal was very much aware that it should not substitute its decision for that of the respondent, but it considered that for the reasons above no reasonable employer would have taken the decision taken by Mr Burr.

2. There were also serious procedural flaws. The applicant was not told for days why he had been suspended, carrying with it the inference that the real reason was not really known: while that was not fatal to the rest of the procedure, it was not a good start. The same person, Mr Burr (a former military police officer), albeit an independent person accepted as such by the applicant, carried out the investigation and took the disciplinary hearing, effectively being both prosecutor and judge, and in evidence very much came across that way. As a result, Mr Burr virtually admitted having made up his mind about the case before the disciplinary hearing, and the Tribunal regretted that it was unable to accept his evidence that he retained an open mind. Although at page 17 of the respondent's Employment Handbook it was not made clear that that should be avoided when carrying out disciplinary procedure, that did not make it right to do so in this case.

Although the applicant was aware of the offence of which he was accused, it was never put in writing to him prior to the disciplinary hearing, which would have been very much better. While the witness statements were read to him at the disciplinary hearing, he was not actually given them until after the hearing, again despite the guidance in the ACAS code.

Therefore while on the face of things the applicant had an adequate opportunity to be heard in his defence, explanation and mitigation, in reality and viewed as a whole the procedure was also unfair.

3. The appeal before Mr Hall, who did not give evidence, was not a complete re-hearing of the case and so did not cure those defects

4. The Tribunal therefore found that the dismissal was unfair on procedural grounds also.

5. While the Tribunal accepted that it could be reasonable for an employer to dismiss an employee for the conduct of which the applicant was accused, in this case the respondent did not have reasonable grounds and had not done enough investigation, so the Tribunal maintained its view that the dismissal was substantively unfair.

The dismissal of the applicant was therefore outwith the band of reasonable responses which a reasonable employer might have taken in the circumstances.

In treating the applicant's conduct as a sufficient reason for dismissing him, the respondent therefore did not act reasonably in accordance with equity and the substantial merits of the case in the circumstances (taking into account the size and administrative resources of the business), so in terms of section 98(4) of the 1996 Act the dismissal was unfair."

5. Mrs Stark was critical of the brevity of this reasoning in the absence of positive findings in fact. It does appear that the Tribunal have simply substituted their summary reasons in name of extended reasons by reference to a Note which is appended to the decision.
6. Be that as it may, we are satisfied that the Tribunal states sufficient reasons, obviously upon the evidence before them, to justify their conclusion, it being entirely a matter for them as to whether or not they considered the investigation that had taken place to be adequate. Equally, we are satisfied that they had not substituted their own view for that of the employer. As has been said on many occasions, the Tribunal must make up its own mind as to the adequacy of response by the employer in dismissing. In so doing, it is not substituting its own view but merely expressing a view as to the actions of the employer. That is what we consider the Tribunal has done in this case and we will not interfere with its decision.
7. We recognise the force of Mrs Stark's submissions on the so-called procedural irregularities, but since we have determined not to interfere with the decision on the substantive matter considering the reasoning of the Tribunal to be adequate, we will not interfere on the procedural matters for the same reason.
8. The second issue raised by Mrs Stark poses a wholly different problem. The evidence given by the employee to the Tribunal suggested he had been out of work since losing his job with the appellants. Before us, a letter was presented which made it clear that that was not the case and he had in fact worked for a limited period, a matter which he did not reveal to the Tribunal. When asked by this Tribunal why he had not done so, the only response the respondent, now representing himself could make, was that he didn't think at the time it was relevant. We find this an astonishing response against a background of a claim being made for compensation. It does not therefore surprise us that the respondent now represents himself as a result "having had a dispute with his lawyer".
9. While we will therefore not interfere with the substantive decision, we consider that the whole approach of compensation is radically flawed by the revelation to us of this new evidence. We do not blame the Tribunal at all for failing to take this into account for the simple reason they were not told about it. We do, however, now require them to review the whole question of compensation against this background, it being confirmed that the apparent doubts that the Tribunal had in relation to the veracity of the respondent are now confirmed and they must address compensation against the background that they were not told the truth.
10. We also think there is force in the submission by Mrs Stark that the Tribunal misdirected itself by looking for evidence from the employer to negative a claim, it is for the appellant to make the claim. In this case, for ought seen, he appears to have done so on the basis of, at least partly, false evidence.
11. In these circumstances this appeal is allowed to the extent that the case will be remitted back to the same Tribunal to review the whole question of compensation.