Furniture Timber & Allied Trades Union v Laffan [1991] UKEAT 177_91_0102

EAT

Furniture Timber & Allied Trades Union v Laffan

[1991] UKEAT 177_91_0102 · 1991-02-01

JUDGE HARGROVE :

On 11 March 1991 the Industrial Tribunal upheld the Respondent's allegation of unfair dismissal. The Respondent was employed by the Appellants as a District Organiser in Merseyside. The root of the problem was a telephone conversation between Mr Laffan and Mr Goodall an Assistant General Secretary of the union, when Mr Laffan expressed himself in very blunt terms concerning Mr Goodall's organising ability and the abilities and integrity of another official. Mr Laffan was summoned before the General Executive Council. There are three main areas of complaint against him but, in the event, the only basic problem which was found by that disciplinary body was the general conduct and manner of Mr Laffan, which were held not to be commensurate and with that of a full time officer and therefore his employment was terminated forthwith with payment in lieu.

There were contributory factors but as I have indicated the telephone conversation was the main catalyst.

The principle ground for complaint concerning the hearing before the GEC was that Mr Goodall remained behind with the judicial members of the committee whilst Mr Laffan and his representatives left. The way it is put is that this was a procedural flaw and that therefore dismissal was unfair and that was indeed the decision reached by the Tribunal with a 75% contribution.

There was an appeal and that upheld the findings of the GEC. Various questions are raised before this Tribunal but the principal one is whether or not the appellate procedure rectified the defect. The Appellants concede, for the purpose of this appeal, that the presence of Mr Goodall was a procedural flaw. Had there been nothing more, then the decision of the Tribunal would have been irrefragable. The appeal was before elected members, and there the procedural error of the presence of Mr Goodall was not repeated. Did that appeal rectify the defect? The answer is that we do not know. The Industrial Tribunal's reasons are silent upon this issue and one can see from paragraphs 19 and 20 the manner in which it was dealt with. Those paragraphs read:

"In the finding of the Tribunal this was a very serious procedural flaw in dealing with a disciplinary matter. It was said on behalf of the respondents that according to the procedural rules of the respondents it was right that the Assistant General Secretary should remain. That might indeed might be within the rules but it was not within the realm of fairness for the purpose of this decision.

In these general circumstances the Tribunal found that the dismissal was unfair. The finding is that the respondents did not act reasonably within subsection (3) of Section 57 in its procedure. Having made a finding so clearly under subsection (3) it is not necessary for the Tribunal to say whether or not it would have found that this was conduct where reasonable responses by an employer would have included dismissal."

The Respondent claims that such silence means that by implication the Industrial Tribunal must have decided that the defect was so great that it was not adhered by the appellate procedure.

With respect we cannot accept that. The appellate procedure included the opportunity for fresh evidence to be called - and indeed it was - and for the whole matter to be considered de novo. This was not a mere review, it was in every sense a rehearing. We consider that the likely explanation is that the Industrial Tribunal overlooked the need to consider the whole procedure as is set forth in the leading authority of Whitbread & Co PLC v Mills

[1988] IRLR 501

. The important passage reads at p.509:

"It seems to us that in the context of industrial relations those appeal procedures form an important part of the process of ensuring that a dismissal should seek to be fair. Secondly, as Lord Bridge said in West Midlands Co-operative Society v Tipton - both the original and the appellate decision of the employer are necessary elements in the overall process of terminating the contract of employment. Thirdly, in the context of s.57 it seems to us that the legislature envisages that the principles to be applied in considering overall fairness - and we are dealing with "unfair dismissals" - are closer to the domestic disputes and the intermediate cases envisaged by Lord Wilberforce. We are conscious that in our example he referred to "employment"."

It has further been contended on behalf of the Respondent that the constitution of the appellate committee was suspect by reason of the fact that the members were part of the union and were addressed by Mr Goodall in the course of the appeal. Again, bearing in mind that in a vast number of cases appellate bodies are drawn from the same profession, the same employment, indeed in cases such as this from the same union and that such an objection seems to us to be without foundation.

In the light of the error of law which is plain from the face of the Industrial Tribunal's findings, it is obvious that this matter cannot stand and the case must be remitted to a differently constituted Tribunal for re-hearing. Having decided that I trust that I will not be regarded as being discourteous in not turning to the other matters which have been urged upon us on behalf of the Appellants and the fact that I do not refer to them does not mean that I am dismissing them from contention.