McKenna v London Borough Of Lambeth [1992] UKEAT 350_91_2209

EAT
McKenna v London Borough Of Lambeth
[1992] UKEAT 350_91_2209 · 1992-09-22
MR JUSTICE WOOD (PRESIDENT): The Appellant, Mr McKenna, was employed by the Respondents, the London Borough of Lambeth for a period prior to his dismissal on the 21st December 1989, for gross misconduct. It was case of indecent approach, of a sexual nature, to a female member of the staff.His employment had started just over three years before, he was a Clerical Assistant. He underwent a six month probationary period. There was, as the Tribunal found, some reports of abhorrent conduct during those six months and it might have been better had he not been continued in employment.During 1987 there was a disciplinary hearing stretching over some three days looking into a number of complaints, at the end of that it was decided that he had been guilty of misconduct, but not of gross misconduct, and that he would receive a final written warning. In fact the written element of that warning never reached him, but it must have been quite clear that the warning was there. This must have been emphasised by the fact that he was transferred from the Norwood Section to the Environmental Health Directorate of that Local Authority.The Applicant suffers a number of physical disabilities, he carries a green, disabled persons card, and therefore the medical advisers were consulted as to the work which was within his capabilities.Early in 1989 the Applicant worked under the supervision of a Mr Ruck, a Principal Environmental Health Officer, who found his work satisfactory and liked him as a colleague.On the 21st December 1989, the Applicant took some documents to the Post Room and present, sitting at a desk, was a Miss Bridget A. Incidents were found to have taken place in the next five minutes which were before the Tribunal; before the Local Authority and found to be such. The matter was reported, as a result of a Senior Member finding Miss Bridget A in a state of extreme upset. The Applicant was suspended, and sent home. There were one or two other incidents, when he was found either in the ladies lavatory or on an occasion with his fly undone. However, although, as the Tribunal indicated, that was a simple matter which required sensitive but firm management handling, it took a month before the matter was finally dealt with, and during that month there was a second charge added in connection with the ladies lavatory.Ultimately, there was a hearing of a disciplinary nature, at which a Race Relations Adviser sat with the Panel. Suffice it to say that the Tribunal were extremely critical of the procedures and the way in which this was handled by the Local Authority. In particular they could not understand why it was necessary for a Race Relations Adviser to be present at all. The Appellant was black and Miss Bridget A was black; there was no question of race element anywhere. They were critical and extremely critical of the way he had also interfered in the management of the hearing and had not been merely there to sit and to give advice. Those criticisms seem to us to be well founded. There was also the question that the final written warning had not been given in writing. There were a number of other aspects, the delay and overall the Local Authority received the most severe criticism from this Tribunal about the way it handled these matters; those criticisms, in our judgment, were well merited. It followed therefore, that the Tribunal found that the dismissal was procedurally unfair and the principles of Polkey v. A E Dayton Services Ltd [1988] HL were being applied.Having found the procedural unfairness, the Tribunal then turned, and they would have naturally have gone through the process of considering whether he would have been dismissed in any event; and whether there were good grounds; and whether, in fact there should therefore be, any award of compensation. In approaching that they apply the Polkey principles. If they took the view the dismissal would have taken place the same day and was well warranted they might have decided that no compensation was payable. They could also approach it slightly differently through the provisions of Section 73(7)B and Section 74(1) and 74(6) of the Employment Protection (Consolidation) Act 1978.The Tribunal, at the last paragraph of its Decision say this:
"However, having heard the applicant give evidence and in the light of what the Tribunal are satisfied was evidence of improper conduct of a nature which the respondents could not properly have overlooked, the Tribunal considered that the applicant by his conduct disentitled himself from any basic or compensatory award."
At this Preliminary Hearing, Miss Casserley has been most helpful in the way she has presented her submissions and we are grateful to her. She has submitted that that paragraph 23 does not provide a sufficient basis of reasoning upon which one can understand how and why the Tribunal reached its Decision. She cited the Sections of the Act to which we have already referred and submitted that without careful reasoning this Decision must be considered to be flawed and therefore erring in law.Despite her able submissions, we find ourselves unable to accept them. It is quite clear that the Tribunal saw and heard the witnesses, they were able to obtain a feel of the situation, and they were quite clear that the evidence of improper conduct was really overwhelming. Although the reasoning is put somewhat shortly, this was an extremely experienced Tribunal and there is no indication to us that it erred, after two day's hearing, in reaching the conclusion that it did. It follows therefore, there is no error of law and we are unable to help the Appellant. This appeal must be dismissed at this stage.