Post Office v Singh [1993] UKEAT 398_91_2302

EAT
Post Office v Singh
[1993] UKEAT 398_91_2302 · 1993-02-23
HIS HONOUR JUDGE HARGROVE On 6th June 1991 the Industrial Tribunal held that the Respondent had been unfairly dismissed. He was a Postal Executive, Grade A. The basis of the dismissal was the alleged attempt by the Respondent to obtain fraudulently £711 in the form of overtime payments by submitting an overtime claim.The evidence was collected in the form of section 9 statements and an informal statement. These were not shown to Mr Singh. Nor were they read to him save possibly for one statement. It is maintained by the Appellants that Mr Singh knew the nature of the charges from a written document, he had had the opportunity to put his case, that the procedures were in accordance with the Code in operation at the time and the Post Office acted in good faith. That, it is said, provides all the necessary elements for a fair hearing.The Tribunal held that a reasonable employer would have made the statements available. Moreover it is said that witnesses should have been called so that both sides could weigh the witnesses credibility. Since the procedure made the dismissal unfair the Tribunal then purported to consider the chances that the employee could still have lost his employment. They held that on the evidence it was impossible to say that Mr Singh would, might or could possibly have been fairly dismissed. They accordingly made no percentage reduction in the compensation due.The Appellant say the Tribunal steered off course when they accepted the Respondent's counsel's submission as follows:
"The Tribunal then went on to consider the factual background and continued:
"Mr de Mello submits that it is axiomatic of good industrial relations practice and therefore reasonableness in the context of Section 57(3) that all of the statements should have been made available to Mr Singh at the earliest opportunity and that the witnesses should have been called before Mr Collis to enable Mr Singh to cross-examine them if he so wished."
4 For the respondents Mr Greening submits that the tribunal would be making new law if it was to hold that it was a necessary part of a fair investigative procedure for copies of witness statements to be handed to employees facing disciplinary charges as a matter of course, and for witnesses to be made available for cross examination. He submitted that there was no authority on the point and that as the unfair dismissal jurisdiction had been in existence for some 20 years, if the point was a valid one, there would undoubtedly have been authority to support it. He argued that all that was necessary was that the respondents should follow the normal requirements of natural justice. ..."The Tribunal continued at paragraph 5 as follows:
"We regret that we do not accept Mr Greening's arguments. There is clear authority to support Mr de Mello's submissions. Probably the earliest is Bentley Engineering Co Ltd v. Mistry [1979] ICR 47 ..."
The Tribunal then set out the well known passage from the decision of Slynn J and it further considered the more recent case of Louies v. Coventry Hood Co Ltd [1990] ICR 54 where at p.59 Wood J said:
"It does seem to me that it must be a vary rare case indeed for the procedures to be fair where statement which have been given in writing by witnesses and upon which in essence the employer is going to rely almost entirely - and that is this case - that an employee should not have a sight of them or that he should not be told very clearly exactly what is in them or possibly have them read to him. ... However, where the essence of the case, the main substance of the case, is contained in two statements which the employee asks to see and which he is refused without reason and upon which substantial reliance is placed, then prima facie to me it seems to be unfair. ..."
The Tribunal therefore started, as as they say specifically in paragraph 7, from the basis that there was a general rule that statements should be disclosed and witnesses attended for cross examination. In the light of that they ask the question whether this was one of the rare cases where the rule did not apply. The way in which the Tribunal reached this conclusion, as well as the conclusion itself, has been a source of disquiet to the Appellant. Although it seems clear from the decision that the wide proposition was urged by the Respondent's counsel (and replied to by the Appellant's counsel) the cases which have been cited in support of it were not mentioned until the decision with its final reasons was issued. The Appellants had no opportunity to indicate why they considered that the two cases cited above were not authority for the wide proposition accepted by the Tribunal. We think that this is unfortunate since had the Tribunal had the benefit of further argument upon those cases the error (as we find it to be) of law would not have occurred. As Slynn J said in Mistry the facts of the case may or may not require that the statements should be handed over. The matter was put succinctly with the words "it is all a question of degree". It is unfortunate that although the Tribunal was aware of those qualifications they still accepted the wider proposition.The reasons given by the Tribunal for the view that disclosure of statements and cross examination of witnesses was appropriate were that Mr Singh had been employed at the Post Office for 27 years and had a distinguished career. The answer to that is that such facts would have been known to both the original disciplinary hearing and to the appellate hearing. Secondly, it is said that this was an allegation of the most serious nature and the Post Office was one of the largest employers in the country. Again, these, say the Appellants, are matters which must have been within the knowledge of those hearing the case and finally, it is said that Mr Collis, the disciplinary officer, saw none of the witnesses other than Mr Bradley to whom he chatted informally and he therefore reached the decision purely on the written statements of the individuals which evidence he had not had the opportunity to test for himself. That statement is factually incorrect since Mr Collis had seen the witness Mr Upton. The Tribunal dealt with its decision after attempting to set out the law in these terms:
" 8 In those circumstances it seems to us, that any reasonable employer would not only have made those statements available to Mr Singh at the earliest opportunity but that this was a case par excellence, where the witnesses should have been called to the disciplinary hearing itself, not merely for Mr Singh's benefit but so that Mr Collis could weigh their evidence for himself. It is of importance to bear in mind that this was a far from straightforward factual issue. Inferences had to be drawn from primary facts which were themselves in issue. It is not a case of did this man strike another man. It is a case of whether Mr Singh took advantage of a lax system to attempt to defraud the respondents, his answer being that he did not: he simply went along with a system devised by others and imposed on him which gave a false impression of an attempted fraud. That is a very fine distinction. It is not a distinction we suggest which any reasonable employer would attempt to resolve simply on written statements.
9 Accordingly we accept Mr de Mello's submission that this serious procedural error by itself renders the dismissal unfair. ..."While noting the repetition of the error of law in the final sentence, we have reached the conclusion that in the words of Dobie v. Burns International Securities Services (UK) [1984] IRLR 329 that notwithstanding that error of law the Industrial Tribunal's conclusion on this aspect is plainly and unarguable right. Where an accusation is made of a particularly devious fraud, where the employee accused has given long and satisfactory service, has recently been promoted because of such service, where the scheme alleged required for its success the involvement of other employees as innocent pawns and where from the outset of any enquiry the employee has maintained his innocence, it behoves an employer to show considerable care to ensure that the whole of the evidence which is to be taken into account by the employer should be made available to the employee. In this case at least one alleged conversation (which, if true, was damaging) and a number of inferences were put to Mr Singh without him having any opportunity to consider the background contained in the statements from which those allegations were taken. Far less did he have an opportunity of testing those claims. We do not accept that this was case where all the facts were agreed and the only issue to be considered by Mr Collis and Mr Fitzpatrick on appeal was their estimation of the honesty of Mr Singh in answering the charges. On this aspect therefore the appeal fails. Before leaving the topic both industrial members of this Tribunal expressed surprised at the disciplinary procedure utilised by such a large employer in relation to an employee of years standing who is charged with fraud.The second ground of appeal is that the Tribunal failed to carry out the exercise required by the second limb of the decision in Polkey v. A E Dayton Services Ltd [1988] ICR 142 . At paragraph 9 the Tribunal correctly set out what is the task they have to carry out including the well known passage of Browne-Wilkinson J. in Sillifant v. Powell Duffryn Timber Ltd [1983] IRLR 91. However, thereafter the Tribunal deals with various questions of the evidence which appeared before them. After various comments about the strength or otherwise of that evidence they comment in paragraph 16 as follows:
"It would be wrong to depart from this aspect of the case without making some comments about Mr Singh's evidence. It has to be said that Mr Singh was less than an impressive witness. He gave contradictory answers and he gave answers to questions that had not been put. He did not answer some direct questions which were put. It was, with respect to him, a performance which left considerable doubt in the minds of the members of the tribunal as to his bona fides. However, at the end of the day the tribunal felt that his evidence fell some considerable way short of establishing that he had simply taken advantage of a gap in the respondents system which might have led to the payment to him of a substantial sum of money. There was a considerable doubt as to whether that or his explanation that he had merely followed a system being imposed on him by others was correct."
The Tribunal clearly substituted its own estimation of the evidence and of the witnesses for that which they ought to have been considering namely, the reaction of a disciplinary body of the employers carrying out a proper investigation and hearing in accordance with the procedures they have found to be appropriate. We regret to say that we find this aspect of the decision fatally flawed. In saying that we have every sympathy with the Tribunal. This was a most difficult case which continued over several days, the very detail of the Reasons demonstrates the care which the Tribunal lavished upon the problems. The degree of difficulty they found with the matter can be seen from the fact that having considered what they believed to be the Polkey matter they confessed that they were unable to reach any conclusion upon the matters before them.We are acutely conscious that this case has continued far too long already. We have considered long and hard whether it would be possible to send the case back to the same Tribunal in the hope that it would save both time and expense. However, having regard to the view expressed by the Tribunal in their final paragraph that they cannot reach a decision and hearing in mind the strong views they have expressed on a variety of matters in the decision, while there is no element of bias in any way, we consider that it would be safer for the question posed by the second limb of Polkey to be decided by a different Tribunal.This is a unanimous decision.