Strafford v Management Committee Of Ashford Citizens Advice Bureau [1993] UKEAT 459_92_1503

EAT
Strafford v Management Committee Of Ashford Citizens Advice Bureau
[1993] UKEAT 459_92_1503 · 1993-03-15
MR JUSTICE WOOD (PRESIDENT): By an Originating Application dated 6th September 1991 Mr Alan James Strafford complained that he had been unfairly dismissed by his employers the Management Committee of the Ashford Citizens Advice Bureau in Kent.His case was heard by an Industrial Tribunal sitting at Ashford under the Chairmanship of Mr Menon on two days the 6th February and the 13th March 1992. The Tribunal decided against him. He appeals. This is a Preliminary Hearing ex-parte where we are looking to see whether there is a point of law which merits argument with both sides present namely, inter-partes.Mr Strafford was employed at the Citizens Advice Bureau. He was a full-time worker, he was employed there from the 1st April 1989 until the 25th July 1991. His complaint, in essence, was that the allegations made against him did not constitute gross misconduct and that the procedures employed in dealing with the disciplinary matters were such as to render his dismissal unfair.The Tribunal saw and heard the witnesses; they did not find that Mr Strafford was a reliable witness nor that he was entirely truthful; they preferred the evidence given on behalf of the respondent employers. As anyone would recognise, it is indeed most important that the Citizens Advice Bureau in its position of trust and providing legal advice and assistance to members of the public, should itself through its staff, be above reproach. It depends necessarily upon its good name, its reputation and the integrity and probity of its staff and any conduct which breached those very high standards must be recognised as such and we are not in the least bit surprised that a serious view is taken of any activity which would place the reputation of the Citizens Advice Bureau at stake.Mr Strafford was an outreach worker, he was there to give a generalist advice service as a member of the team and as the Tribunal find in paragraph 7(4) of its decision:
"The main task and responsibility is, inter alia, working with clients in response to enquiries, interviewing clients in a way that is both confidential and impartial in order to: find out the full nature and details of the enquiry; help clients to clarify and explore the enquiry; to make full use of the bureau's information resources; assist the client in actions; keep accurate records etc."
all those matters are necessarily involved in the service provided by the Citizens Advice Bureaux.As a result of information that was received a letter was sent on the 18th July 1991 to Mr Strafford by Mrs Dean suspending him. The nature of the complaint, as then envisaged was that Mr Strafford had entered into a transaction with a client of the Citizens Advice Bureau in connection with a car which transaction was suspect. He was told in that letter that a disciplinary proceeding was to be set up and that he could no doubt be represented by Mr Smith, but he otherwise he was not to discuss matters with other members of the staff. In fact Mr Smith was not prepared to act for him, he was on holiday. Mr Smith only dealt with voluntary not paid workers and there is some doubt whether Mr Smith was in fact spoken to by Mr Strafford.The disciplinary hearing was on Wednesday 24th July 1991. The Chairman was Mr Bell, there were two members Mrs Dawes and Mr Lovell. There are some notes which are produced from the actual members, which seem to us to be notes made before the disciplinary hearing and we do not know quite how they are relevant and indeed if they are notes of what was intended then it seems to us a rather dangerous procedure. The members of a disciplinary hearing should approach the hearing with completely open minds to rely upon what evidence takes place during that hearing and to form their own view in the light of what they see and hear on that occasion. However, this matter was looked into by the Industrial Tribunal and they were satisfied that there was no improper procedure at that hearing. They saw and heard the witnesses and they make specific findings that they preferred the evidence of Mrs Dean and Mr Bell as to the effects of the notes and how they came to be made. The two matters which were being looked at by Mr Bell and his panel, were first of all, the transaction with a Mr Court and secondly, a worry that documents which were in a brief case were left in an unlocked car, those documents being a Citizens Advice Bureau documents. Mr Strafford has told us today that he had been on a visit but that he had not got any Citizens Advice Bureau documents in his brief case, however that does not seem to have been made entirely clear at the disciplinary hearing, and it is right that it was a matter which the Tribunal find was in the mind of the disciplinary panel when it reached its decision to dismiss Mr Strafford. It is not entirely clear to us that it was in the mind of the Citizens Advice Bureau despite the finding of the Industrial Tribunal because in looking at the letter of the 25th July the matter relied upon as being gross misconduct was the transaction with Mr Court.Mr Strafford, as he was entitled to, appealed. His appeal was heard on the 14th August by which time it had come to light that on the 9th August he had been convicted of two charges under the Theft Act in connection with some other matter, not this particular car. The appeal was heard. His later convictions were not considered relevant although he was told that if his appeal had been successful they might have had to be investigated in detail. His appeal failed and his dismissal stood. There were again some disputes about the accuracy of the record on the appeal. The Tribunal found in favour of the witnesses from the Citizens Advice Bureau in that connection.Mr Strafford has raised before us a number of matters. The first matter is in connection with Mr Smith. Mr Strafford points out that in his contract of employment, as is correct, there is an indication that he should be allowed to be accompanied by someone at a disciplinary proceeding. His point he makes to us is that Mr Smith would not accompany him and that therefore he was unfairly treated and secondly that Mr Walker, who came with him in fact, as a witness was not allowed to give evidence and was told he could sit as a friend and merely take notes. The matter was looked into and the Industrial Tribunal at subparagraph 15 of paragraph 7 saying this:
"Having heard Mr Smith in evidence, we accept his evidence that the applicant did not at any time specifically ask him to represent the applicant at the disciplinary hearing."
That seems to us to be an end of the matter. As far as Mr Walker is concerned the second point that Mr Strafford makes, I read on:
"The applicant was not denied the facility of bringing a representative to the disciplinary hearing. Mr Walker was there as a `friend' not as a witness. The CAB's rule, which the applicant was made fully aware of, did not allow Mr Walker to speak on behalf of the applicant at the said hearing. The applicant raised no objection. There were no procedural defects at the disciplinary and appeal hearings."
Those findings are specific on these questions of fact and it seems to us that there is no point of law. The Tribunal found fact against Mr Strafford.His third point we have already hinted at and referred to, namely this question of the making up of the notes of the panel members, rather than the notes taken at the time by Mrs Dean. It does seem to us that this practice is perhaps not very helpful because it might, as indeed it has in this case, given to Mr Strafford the idea that the Tribunal have made up its minds before ever arriving at the disciplinary hearing. However, the Industrial Tribunal did itself look at it and found that there was no unfairness having seen and heard the witnesses, that again is a finding of fact against Mr Strafford.The documents in the unlocked car when Mr Court came to pick it up is an issue raised with us, and it is right that there does not seem to be any particular evidence about that, although immediately prior to a visit by Mr Strafford one would expect some sort of documentation to have been in his brief case. That factor was not in fact taken into account when the decision of the 25th July and the letter to dismiss him was sent to him and that again is a point, which in our submission does not render this decision flawed.The last point that was taken was that this was not misconduct under the terms and conditions of his employment where gross misconduct was said to be an offence of the following nature:
"theft, damage to company property, fraud, serious breach of the Equal Opportunities Policy, incapacity for work due to being under the influence of alcohol or illegal drugs, physical assault and gross insubordination."
Theft or fraud? What happened with Mr Court, and which the Notes of Evidence quite clearly show, is that there was a "swop" operation of an A registration car, a red one owned by Mr Strafford, for a B registration white one, owned by Mr Court. The value of Mr Court's car was £5,000 and Mr Strafford's car was worth £3,000 and therefore, prima facie, that is "swop" which was entered into with a client of the Citizens Advice Bureau was to the detriment to the client. On those findings it seems clear that the Industrial Tribunal did not err in reaching the decision that the Citizens Advice Bureau had acted entirely appropriately in treating that as gross misconduct.In the circumstances therefore, at this stage, we find that there is no error of law and this appeal must be dismissed.