United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr J MacMillan, Solicitor Of- Messrs Macroberts Solicitors 152 Bath Street GLASGOW G2 4TB
For the Respondents	Mr R Eadie, Solicitor Of- DLA Solicitors Napier House 27 Thistle Street EDINBURGH EH2 1BS


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employee against the conclusion of the Employment Tribunal that he had not been constructively dismissed by the respondents.
2. The appellant was essentially employed as part of a team dealing with benefit fraud. Without going into detail, disciplinary proceedings were started against him subsequent to an anonymous complaint to the Prime Minister's Office, the source of which was never revealed to the appellant. After sundry disciplinary processes, including an investigation, a decision was taken by a Mr Roy, who was a Director of Field Operations for Scotland, and, on one view, accordingly, an immediate superior of the appellant, that the appellant be downgraded for a period of five years which had material consequences both to his salary and his pension prospects.
3. As a result, the appellant resigned and now claims constructive dismissal by reason of the downgrading and its effect upon his employment prospects.
4. The issue that was focussed before us related to the position of Mr Roy and questions of impartiality.
5. Mr MacMillan, appearing for the appellant, told us that a substantial submission had been made by him and disputed by the person appearing for the respondents before the Tribunal that Mr Roy's position and relationship with the appellant was such that he could not be seen to be impartial. There was some reference in the evidence to the fact that there were concerns that Mr Roy might be too lenient with the appellant or, alternatively, being anxious not to be seen as such, react too harshly in the disciplinary process.
6. Mr MacMillan submitted to us that this was a substantial issue before the Tribunal and yet the Tribunal had totally failed to address it in their decision. The decision was totally silent on the matter which went to the heart of the whole discipline process, it was submitted.
7. Mr Eadie, appearing for the respondents, had not appeared at the original Tribunal hearing and could not, essentially, dispute what Mr MacMillan told us. He did rather faintly try to suggest that to some extent the Tribunal had addressed the issue but we are not satisfied that that is so. He quite properly made no further submission.
8. The requirement of an investigating Tribunal to be impartial is well recognised and is perhaps best stated by Lord Hope of Craighead in Porter v Magill [2002] 2WLR 37 where he says at page 103 "the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."
9. It is thus to be observed that what matters is a perception of a risk of partiality rather than actual partiality being established.
10. On any view of the matter, the position of Mr Roy would appear to raise the issue of partiality or lack of it and, since, furthermore, it was a matter of submission to the Tribunal, the Tribunal had, in our view, a duty to determine the matter and give reasons for so doing. In our opinion, therefore, their failure to do so fundamentally undermines this decision.
11. The question remains as to what should be done. Normally, this Tribunal is very reluctant to order rehearings, particularly where the original hearing has taken some time, by reason of both expense and delay, but we have less concern in this case having regard to the fact that there are a number of other aspects of the case which cause us considerable concern on the general question of whether justice was done to this particular employee, not least the harshness of the penalty imposed and the way the matter was handled, being initiated by an anonymous complaint never revealed to the employee.
12. In these circumstances this appeal will be allowed, the decision of the Tribunal will be quashed and the matter remitted to a freshly constituted Tribunal for a full rehearing.
13. By way of postscript we are required to express our disapproval at the considerable delay that appears to have elapsed between the conclusion of the hearing before the Tribunal and the promulgation of the decision. While we appreciate there is a heavy workload on Tribunals, it must not be lost sight of that this Tribunal system is aimed at speedy solutions consistent with fairness and justice. A period of five and a half months offends that principle.