Lazaro v Leeds City Council [1992] UKEAT 621_90_1310

EAT
Lazaro v Leeds City Council
[1992] UKEAT 621_90_1310 · 1992-10-13

JUDGE J HULL QC:

This is an appeal by Mr Lazaro, who is a plumber, against the decision of the Industrial Tribunal sitting at Leeds on 10 August 1990, and later at an adjourned hearing on 14 September 1990.Mr Lazaro had been employed by the Leeds City Council or by a body set up for the purposes of that Council as a plumber to go around on Council work. He was a responsible employee and was entrusted with matters which required him to show integrity. He was responsible for putting in, and certifying, his own claims for time and bonus and that meant his entering up various documentary records. The facts that I am stating are taken from the decision of the Tribunal; there is no complaint that the Tribunal reached wrong conclusions of fact.His supervisor found that there were some entries in Mr Lazaro's record which showed work which, it appeared, he had not done: that led to enquiries. It was reported and the owner of the premises where the work was supposed to have been done was interviewed. What had happened was that Mr Lazaro had made a claim for work which had not been done - or, as it was put - there had been an overbooking.That, of course, might lead to more than one conclusion. It might have been a mistake of some sort: it might, on the other hand, have shown that Mr Lazaro was not being honest in a matter with which he was particulary entrusted. That is not a matter in the first instance for the Tribunal - still less for this Appeal Tribunal - but for his employers to see what they think about that and in particular to give a proper and fair hearing to Mr Lazaro before deciding what to do. It was decided to hold a disciplinary hearing and there was a disciplinary hearing before a Mr Saville about which no complaints are made. Mr Saville had Mr Arnold, the Personnel Manager, present with him and the most important part of the hearing was for Mr Lazaro to give an explanation, if he could, as to what had happened.It is recorded, and there is no dispute about it, that Mr Lazaro was not able to explain what had happened. He did mention that he was on medication at the time and no doubt Mr Saville considered that. Mr Saville was left with the decision as to whether or not he thought this error was deliberate and he decided that Mr Lazaro had been dishonest. Although Mr Lazaro had been employed for 22 or 23 years Mr Saville considered that the appropriate remedy was dismissal.Mr Lazaro decided, as he was entitled to do, to appeal under the internal mechanism for appeal and there was a panel of three who were to hear the appeal. That panel met and the case for the management side was presented to them by Mr Arnold, the Personnel Manager, and Mr Lazaro was represented at that hearing; at any rate there is no complaint about his inability to put his case before the panel. The panel decided to dismiss the appeal. That meant that Mr Lazaro was dismissed and so he applied, as he was entitled to do, to the Industrial Tribunal saying that he had been unfairly dismissed.The Industrial Tribunal found that he had been unfairly dismissed. They found unfairness in the following way, they said that before the hearing by the appeal panel, Mr Arnold had tried to dissuade Mr Lazaro from pursuing his appeal by suggesting that further evidence of overbookings on other occasions had come to light. The Industrial Tribunal concluded, as they were entitled to do, that that was improper behaviour by Mr Arnold. They thought that Mr Arnold was, so far from giving a fair warning, or anything of that sort which might have led to a different view, acting unfairly and it was done with a view to discouraging Mr Lazaro's appeal.Pausing there, it is clear that that unfairness, however lamentable it was, had not had any effect; Mr Lazaro continued with his appeal. The Industrial Tribunal then found that there was another piece of unfairness. Again, it was on the part of Mr Arnold. They said:
"Furthermore, Mr Arnold pre-empted the findings of the appeal, to some extent, by, at the end of his statement of fact and history, making a recommendation to the appeal committee that it dismiss the appeal. Bearing in mind that he is the personnel manager, that was quite improper, and was clearly designed to influence the councillors in hearing the appeal and influence the outcome of the appeal."
Again, that was a finding that the Industrial Tribunal was quite entitled to reach. It was for them to say whether Mr Arnold's intervention in making a recommendation of that sort was designed improperly to influence the panel or whether, which is another possible view, Mr Arnold was doing no more than act as advocate and saying that "in the light of all the matters I have explained to you, you ought to dismiss the appeal". The Tribunal decided that that was unfair and so having reached that decision they put their conclusion like this:
"5. The appeal procedures are a very important part of the whole procedure, set up by the Council, to ensure that it deals reasonably with employees in a disciplinary situation and that the decision that is taken on disciplinary matter is a reasonable decision. If there is a defect, and a serious defect as it was in this case on two counts, in those appeal procedures it means that the total decision to dismiss cannot be said to be reasonable. Even in a case where, had there been no appeal, the original decision of the officers could have been said to be reasonable, or where there was an appeal without defects where the original decision was supported by the appellate body. The fact is that it cannot be said that the dismissal was reasonable where the very procedures laid down by the Council to ensure that it was fair and reasonable have been interfered with so that a fair decision could not be reached."
They adjourned the question of compensation to a later hearing on 14 September.During the interim, something happened of which Mr Lazaro made a very serious complaint. He said that he was suddenly sent, very shortly before the adjourned hearing, a bundle of documents setting out complaints of other instances of mis-recording of work which he had done. He complained about the way that was dealt with at the adjourned hearing of the Tribunal on 14 September, saying that he was cross-examined without any opportunity to give evidence in chief: and that he should have been given an adjournment to deal with these new matters &c.That, on the face of it, sounded as if something was very wrong. Clearly, if new matters were to be introduced at that stage, which is exceptional, Mr Lazaro and his adviser should have had plenty of time and opportunity to deal with them. We have been told by the Chairman, and of course accept, that these new matters caused some irritation to the Tribunal and they decided on reflection that they would not take them into account at all and they would put them out of their minds entirely. They reached no conclusions on those matters and did not take them into consideration in reaching their decision.In those circumstances, if there was an irregularity it had no effect and Mr Lazaro can put out of his mind the feeling that he was treated unfairly by the Industrial Tribunal in that way- so we say no more about that.What happened then was that the Industrial Tribunal endeavoured, at first, to try to persuade the parties to reach an accommodation with each other. They pointed out that a compromise was possible and indeed the Chairman, wisely or unwisely, mentioned a figure - there is some dispute as to whether the figure he mentioned was 50% or 25% for a reduction - but whichever figure he mentioned it was simply by way of a reduction, we are quite satisfied about that, to show the parties, as the Tribunal hoped, that some compromise could be possible. There were discussions and a compromise did not prove possible although in the course of this the Industrial Tribunal did try to help and there was a good deal of canvassing of the facts.After that, the Tribunal went into the matter formally, since a compromise was not possible, and they summarised their decision on the 14 September in several paragraphs which I will now read:
"3. The tribunal heard evidence from Mr Lazaro with regard to his claim for loss and there was also some evidence put in by the Council with regard to matters which had come to light since his dismissal. It was clear that that matter was in dispute between the parties and that even if the tribunal were to conclude in the Council's favour it would have made little difference to their eventual decision and so the tribunal intervened and tried informally to assist the parties and to reach some measure of agreement but as that failed the tribunal then heard submissions from the parties representatives.
4. Mr Hawley for Mr Lazaro submitted that in spite of the findings of the tribunal in its decision on liability, Mr Lazaro had lost his job as a result of an unfair dismissal and was therefore entitled to full compensation.5. Miss O'Shea for the Council said that in view of the findings of the tribunal in the decision as to liability where it found that the only fault of the Council lay in their appeal procedures and that that fault was of a technical nature and that consistent with the tribunal decision it was clear that the applicant would have been dismissed in any case, that there should be no compensation. It was clear that the applicant had contributed wholly to his own dismissal and that there should be a reduction of compensation and that reduction should be 100%."In the discussions that had occurred earlier the Tribunal had taken a different view and so the parties had the opportunity fully to argue their points in that informal procedure; then they had an opportunity to address the Tribunal at the end. It may be that there was some confusion in the submissions made to the Industrial Tribunal, and very shortly reported by the Tribunal in its decision. The Tribunal was obliged in calculating any compensatory award to comply with Section 74 (1) of the Act:
"........... the amount of the compensatory award shall be such amount as the tribunal considers just and equitable in all the circumstances having regard to the loss sustained by the complainant in consequence of the dismissal in so far as that loss is attributable to action taken by the employer."
Then under Section 74(6):
"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."
So under Section 74(6) the Industrial Tribunal is dealing with actions of the complainant himself which caused or contributed to the dismissal. Section 74(1) is much wider and deals with all the circumstances - the sum is to be just and equitable. It may be that those ideas of contribution to the dismissal and the general just and equitable provision under section 74(1) were somewhat confused in the matters which were put to the Tribunal.What is very clear to us is that the Industrial Tribunal most certainly, having put out of its consideration these new matters, did not presume to review the finding of Mr Saville and say to itself "we are satisfied that Mr Lazaro is dishonest". It would have been out of place for it to do so: it simply noted that Mr Saville had reached that finding in a way of which no complaint was made, and it went on to find whether the matters of which complaint had been made did contribute to the dismissal. It was, therefore, focusing its attention, quite clearly it seems to us, on Section 74(6). In paragraph 7 it gave its conclusions on that matter.The first of the pieces of "unfairness" which they had found occurred had no effect. Mr Arnold's attempt, if that is what it was, to prevent the appeal being heard at all had not succeeded. The second complaint was of Mr Arnold's suggestion - or advice, or request -to the panel, that was another piece of "unfairness" and that was dealt with by the Tribunal in paragraph 7 of its findings of 14 September as follows:
"The tribunal has given much consideration to the matter and in particular to their decision at the hearing on 19 August 1990. It is clear from that decision that the fault of the respondent lay in the serious breaches relating to the appeals procedure and they could be described as technical breaches. They were, however, serious technical breaches but it is clear from the decision that had those not occurred the tribunal would not have found that the dismissal was unfair ....."
That is saying in terms, it seems to us, that even if Mr Arnold had not made the unfortunate intervention which the Tribunal found that he did, the panel would have reached the same conclusion: they would have found that the dismissal was fair based on what Mr Saville had done. That was a decision reached by the Industrial Tribunal after, as they say, having given much consideration to the matter. They, no doubt, heard a great deal from various witnesses - and certainly anybody could have told them if they wanted to know - about what had passed in front of the Tribunal: exactly what Mr Arnold had said and at exactly what stage; what remarks the panel made; what questions they asked; what was said to them. The Industrial Tribunal reached the conclusion, it seems to us reading their decision, that that irregularity on the part of Mr Arnold had had no effect on the decision of the panel.They go on:
".... and that in a sense it was only therefore on a technicality, albeit a serious technicality, that the tribunal found the dismissal unfair. That unfairness had nothing to do with the original disciplinary hearing at which the basic facts were agreed as to the employee's conduct. In those circumstances we have been persuaded that it would be inconsistent of us to take any other course than to say that the applicant contributed to his own dismissal: that the compensation that he claims should be reduced and that the figure by which it should be reduced is 100%."
Having thought about this as carefully as we can and having considered what the Chairman has written to us, we reject the criticisms made. It seems to us that in all the circumstances the Industrial Tribunal was entitled to have regard to all that had gone on; to all the evidence that it had heard; and to the fact that Mr Saville acting reasonably had concluded that this was a serious matter and that Mr Lazaro had been dishonest.The Industrial Tribunal's conclusion which, in our view, must have been a rational one based on the evidence, was that the panel would have reached precisely the same conclusion as it did even if these irregularities on the part of Mr Arnold had not occurred. In those circumstances they say that the dismissal of Mr Lazaro was caused entirely by his own actions and that the irregularity - Mr Arnold's suggestion to the panel that they should dismiss the appeal - had no effect. It was not a matter which, with all respect to Mr Mallett's most capable argument for which we are most indebted, was a grey area at all.The Industrial Tribunal had to decide whether Mr Arnold's intervention had or had not influenced this panel of three gentlemen who were enquiring into the matter and they decided that it had not. In those circumstances the irregularity, however serious and blameworthy, had had no effect on this dismissal and the dismissal could only be attributed to Mr Lazaro's own behaviour in overbooking and overclaiming which had led, after a perfectly fair enquiry in front of Mr Saville, to a finding that he was dishonest and which would, in the view of the Industrial Tribunal, inevitably have led to the same result in front of the panel.The Industrial Tribunal, therefore, concluded that notwithstanding that there had been unfairness in the two respects which they described, they were of the opinion that there was no compensation payable to Mr Lazaro because, putting it shortly, he was the author of his own misfortune - his own conduct had led to his dismissal.We are most indebted to Mr Mallett for his arguments but we are not persuaded by any of them that anything has gone wrong here at all. It appears to us that this Industrial Tribunal addressed itself correctly to its duties and reached a conclusion which cannot be criticised.The appeal must be dismissed.