United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W HASTINGS (Representative)
For the Respondent	MR A OHRINGER (Representative) Free Representation Unit Peer House 4th Floor 8-14 Verulam Street London WC1X 8LZ


 


JUDGE LEVY QC

1. This is an appeal from a decision of an Employment Tribunal sitting in Stratford on 4 January 2002. Then it considered an application by Miss K L Miller ("the Respondent") who had raised the complaint that she was unfairly dismissed by John Wyndham t/a John Wyndham Hair Care ("the Appellant"). The Tribunal promulgated their decision on 23 September 2002, an unusually long time after the original hearing. The decision was that the reason for the Respondent's dismissal related to her conduct and that the dismissal was unfair. The Respondent was awarded a basic award of £262.40 and compensatory award of £540. It was ordered that those sums should be paid to the Respondent. From that decision the Appellant appealed.
2. The Preliminary Hearing of the appeal was heard on 2 December 2003. Judge Altman and his colleagues' decision was sent to the parties on 25 March 2000. The decision referred to Tiptools Ltd v Curtis [1973] IRLR 276. Then the predecessor of the Employment Appeal Tribunal held an appeal from a decision to dismiss where the employer was in a small company or business would not be practicable. The Tribunal considered that an arguable point of law arose that as to whether that should remain the position.
3. Mr Hastings, a layman, represented the Appellant below and he has done so here, well articulated all that could be said for it. We have had the advantage of Mr Ohringer appearing for the Respondent. He has shown us that Tiptools was decided before a revised ACAS Scheme had been published. That scheme made the position crystal clear as to what should happen when small companies are in the position as was this one when a disciplinary matter was raised by an employee. He accepted for the Respondent that the Tribunal wrongly ordered a compensatory award of £540 to be paid to her and did not oppose the ground of appeal challenging that award.
4. We return to the primary issue as whether there was an unfair dismissal as found the Tribunal. Neither representative challenged paragraphs 10 to 13 of the Extended Reasons which are as follows:

"10 Firstly, the Tribunal are satisfied that the Respondent did have reasonable grounds to suspect that the Applicant had committed an act of misconduct. This is because they received a report from the Deputy Manager about a serious matter where a cap was not on a customer's hair when heat was being applied to hair colour. The Tribunal is satisfied that this was a serious matter which merited consideration and that the Applicant was thought to be the one responsible as it was her client who was being dealt with.

11 The Tribunal therefore went on to consider what investigation the Respondent carried out at this stage. Whilst initially the investigation seemed to be fair in that the owner spoke to the manager and to the other workers involved in this matter, he did not speak to the Applicant at this stage as she was on holiday. It does appear to the Tribunal that the owner formed a view before he spoke to the Applicant about what might have happened in relation to this incident. He therefore decided to hold a disciplinary hearing before he had completed his investigation and spoken at any length to the Applicant about it.

12 Moving on then, the Tribunal considered the procedure that was used. The Tribunal accept that this was new area for the Respondent who before this had no formal disciplinary procedure. Whilst this often happens in small and medium size businesses, it is now the case that the Tribunal believe most employers should be aware that they should have a disciplinary procedure in place. The fact that the Respondent did not meant that they had to take advice and did not seem to have been referred to the ACAS Code of Practice. The Respondent did attempt a procedure in that they wrote to the Applicant and asked her to come to a disciplinary hearing and gave her the right to be accompanied. However, the procedure certainly did not meet all the requirements of natural justice in industrial relations, even for a small employer. Particularly, the Tribunal want to point out that even though they gave the Applicant the opportunity to be accompanied at the hearing, when she requested that her parents should go, the Respondent only delayed the hearing once so that they could accompany her. The Tribunal think this was an unwise move and led to the situation where the Applicant had to attend the disciplinary hearing which led to her dismissal on her own. This is always to be avoided by employers if at all possible.

Pausing there we understand that the Appellant refused to move the hearing from a Monday morning when her parents could have attended to the afternoon when they could.

13 Even more importantly, the Tribunal were very concerned that the Respondent did not give the Applicant a right to appeal, even when that was requested by her parents who came to see the owner after her dismissal. Although the Tribunal appreciate that small employers may well have difficulties with appeals to independent people, it does not mean it should not be considered if at all possible. The denial of this appeal meant that, taking into other defects, this procedure amounts to an unfair procedure and therefore dismissal is unfair."

5. The Tribunal did not refer to the paragraphs in the current ACAS Code of Practice. We have been referred to the matters of discipline which contained in that code Paragraph 27 which is headed 'Appeals' reads thus:

"27 The opportunity to appeal against a disciplinary decision is essential to natural justice. Workers may choose to raise appeals on a number of grounds which could include the perceived unfairness of the judgement, the severity of the penalty, new evidence coming to light or procedural irregularities. These grounds need to be considered when deciding the extent of any new investigation or re-hearing in order to remedy previous defects in the disciplinary process."

We have also been referred to ACAS handbook published in 2000 which has, 'Discipline at Work' a small paragraph headed 'Small Firms' which reads thus:

"In small firms it may not be possible to find someone with higher authority than the person who took the original disciplinary decision. It this is the case, that person should act as impartially as possible when hearing the appeal, and should use the hearing as an opportunity to review the original decision."

6. It seems to us that, in the parameters of the judgment, those who own the Appellant must know very well that the Respondent succeeded in the Employment Tribunal because the disciplinary hearing it conducted was found by the Tribunal to be unsatisfactory for the reasons given by the Tribunal. There was no appeal hearing at all from that decision, which might have corrected that error. It does not appear that ACAS recommendation was observed, it was known. In our judgment in Tiptools the authority mentioned has to be read in conjunction with the change in the ACAS guidance which followed some years after that decision.
7. In the circumstances we agree with the Tribunal that the dismissal was unfair. As it is common ground that the amount awarded for compensation was incorrect, we will adjust the order below as agreed by the parties. Subject to that adjustment, we dismiss the appeal.