United Kingdom Employment Appeal Tribunal

APPEARANCES

 

 

For the Appellant	Mr D Walker, Solicitor Of- Messrs Dundas & Wilson Solicitors 191 West George Street GLASGOW G2 2LD
For the Respondent	Mr D B Stevenson, Solicitor Of- Messrs Thompsons Solicitors 16-18 Castle Street EDINBURGH EH2 3AT

SUMMARY
PRACTICE AND PROCEDURE UNFAIR DISMISSAL

Delay

Unfair dismissal – fair procedure


 


LORD JOHNSTON:

1. This is an appeal at the instance of the employer against a finding of the Employment Tribunal sitting in Glasgow that the two respondents had been unfairly dismissed from their employment. The Tribunal made a monetary award with some small deductions in respect of contributory conduct.
2. The background to the matter is apparent trouble on the shop floor during the night shift at the appellant's factory, which was focussed by one particular complainant, specifically named in the decision.
3. The employer apparently embarked upon an investigatory exercise as a result of the complaints, interviewing some 20 people. In the final analysis, the two respondents were dismissed and one other employee resigned in advance of probably the same event.
4. The basic reason given for dismissal was a breach of trust and confidence as between the employer and the employee as to the way the two respondents, who were supervisors on the night shift, were handling the whole exercise of supervision.
5. The substance of the Tribunal's decision, was that the procedures adopted by the employer were fundamentally flawed, on the basic question that neither respondent was properly given notice of the case against them before the decision to dismiss was taken after the disciplinary hearing following the investigation, and, subsequently at the appeal hearing, which was strongly criticised by the Tribunal.
6. We do not consider it necessary to rehearse the findings of the Tribunal in any great detail having regard to the way in which the case was presented before us.
7. Mr Walker, appearing for the appellants, based his primary submission on the notion that the Tribunal had taken in excess of 6 months to produce its decision, and, that on a proper analysis, it was perfectly clear that the while Tribunal may have considered what findings they were prepared to make on the evidence at an early stage of the process after the hearing was concluded, when it came to their consideration and decision, a considerable time had plainly elapsed and they had effectively miscued the latter exercise. Mr Walker sought to identify various areas in which the Tribunal's original findings were inconsistent with their subsequent consideration and decision as are set out fully in his elaborate grounds of appeal. We simply refer to them for reasons which will become clear.
8. Delay has been identified recently in the EAT in London, by the President in a number of cases, as a possible relevant factor in determining whether decisions of Tribunals are safe. However, it has to be emphasised at once that the mere passage of time is not enough itself. There must be some clear connection with that passage of time and flaws in the decision. The period of 6 months is to be deprecated as being too long in the opinion of this Tribunal for any Employment Tribunal to delay its decision but it does not per se immediately grant any relief on appeal.
9. What, to this Tribunal, is much more important, is that if there are concerns, speaking quite generally, by a party disaffected by a decision of the Tribunal which has been subjected to delay, those concerns should be ventilated by way of review and not by way of appeal. We offer this position, not as a matter of law, but as a matter of practice. This Tribunal is not prepared to entertain appeals with regard to the issue of delay alone, without the Tribunal of first instance having been given, initially, an opportunity to review its position, which did not happen in this case. An application for review was made by the now appellants but only in relation to the quantification of the monetary awards, and, also, as to the precise timescale as to how the Tribunal had arrived at its decision. No attempt was made subsequent to the promulgation of the decision to seek a review based on evidential discrepancies or inadequacies. As far as this Tribunal is concerned, it will not entertain appeals based purely on delay unless that exercise has been gone through and the applicant therefore remains dissatisfied with the result of the review, whatever it may be. We emphasise we do not consider this to be a matter of competency but simply a matter of commonsense to avoid unnecessary appeals. Both parties here agree that what would have to be the result, if this appeal succeeds, namely, a fresh hearing before a new Tribunal considering matters more than 3 years old, is a wholly unsatisfactory, and, is if at all possible, a situation to be avoided. This Tribunal wishes to emphasise to the profession that it is extremely important to use the review procedure to address what appear to be understandable grievances relating to the decision of a particular Tribunal which could be rectifiable by a review. It is in everybody's interest that the exercise should be conducted initially on that basis. It is precisely why the Rules make provision for such an exercise, apart from the more simple questions of rectifying clerical or other mechanical errors. However, it should not be thought the review process is restricted to these latter elements.
10. In these circumstances this Tribunal is not prepared, in this case, to entertain the arguments advanced eloquently by Mr Walker on the question of inadequacies of the evidential conclusions of the Tribunal which might be related to delay.
11. However, we are prepared to entertain the more fundamental issue that he put forward, namely, that upon the evidence, the Tribunal should not have concluded that the respondents were denied natural justice by not being given adequate notice of what the case being made against them, in terms of factual issues.
12. This is an important issue, but, as Mr Stevenson, appearing for the respondents, pointed out, has to be looked at in the factual context of a situation where a general investigation was being carried out involving some 20 employees, and, subsequently, a disciplinary hearing being initiated against two of them without there being any specific allegations being made in advance of that hearing. It is true that in the course of the hearing, and, particularly, at the appeal hearing, it became apparent what was in the mind of the employer, but this to our mind flies in the teeth of the basic requirements of the industrial process when it comes to investigating misconduct, which may lead to dismissal, that the employee in question must be given clear and detailed reasons why the employer is embarking on the investigatory exercise, and, in particular, what the charges are against him or her. While it need not be a formal indictment, it must be a clear statement of what allegations of fact the employee is facing and what the consequences may be, not least in relation to a dismissal situation.
13. The most cursory reading of this very extensive judgment, makes it perfectly clear that the Tribunal reached a clear conclusion that the employer had totally failed to do that at the necessary stage of the initial disciplinary hearing. Furthermore, the evidence would suggest that the appeal process was a sham, inasmuch that the relevant personnel on the employer's side, had made up their minds in advance of the hearing taking place.
14. We are clearly therefore of the view that the employer had been rightly stigmatised by the Tribunal in failing properly to protect the basic interests of the employees in question, i.e., the respondents, on the question of natural justice and the need to know the case against them.
15. Mr Walker also submitted that the Tribunal should have considerably increased the contributory fault element and also looked at the matter from the point of view of what is now known as the Polkey deduction.
16. We disagree with both these propositions. The Tribunal was entitled to make a finding of contributory fault and this Tribunal will only interfere with such if it can be shown to be materially out of line. This is most certainly not the case. As far as the Polkey position is concerned, the Tribunal state quite categorically, that the fundamental defects in the employer's procedures rule out any question of determination as to what might have happened if the procedure might have been fair.
17. In these circumstances and for these reasons, we have no hesitation in dismissing this appeal. However, we wish to reiterate that a six month's delay in the issuing of determinations by Employment Tribunals is not acceptable, except in the most exceptional circumstances. If Tribunal Chairmen find themselves under such work pressure, steps must be taken to give them sufficient writing time to relieve the parties in any particular case of agonising over what the ultimate decision may be. It has to be remembered that every case with which the Employment Tribunal are dealing, invariably involves very anxious concerns, usually with the employee, but sometimes the employer. It is the view of this Tribunal that any decision of an Employment Tribunal should be promulgated within 3 months but if that time limit is not met we would repeat that does not give an automatic ground of appeal.