Brown v Merseyside Transport Ltd [1994] UKEAT 408_93_0702

EAT

Brown v Merseyside Transport Ltd

[1994] UKEAT 408_93_0702 · 1994-02-07

MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Liverpool on the 17th March 1993. Mr M Brown presented a complaint to the Tribunal that his employer, Merseyside Transport Limited, unfairly dismissed him from his position as a greaser/fitter's mate on the 9th July 1992. By a majority the Tribunal decided that Mr Brown was fairly dismissed.

Mr Brown was dissatisfied with the decision explained in the Reasons notified to the parties on the 16th April 1993. Accordingly, on the 6th May he gave notice of appeal through the representative, the District Organiser of the Transport & General Workers' Union. The appeal stated two grounds: first, that the Tribunal had erred in law in failing to apply the test of consistency referred to in two authorities cited in the grounds; and, secondly, the Industrial Tribunal erred in law in failing to examine the basis on which the employer's belief was established and had misdirected themselves with regard to written evidence which demonstrated that the employer could not have held a belief sufficiently to have arrived at the conclusion to dismiss him.

In order to understand those grounds of appeal it is necessary to refer to the background to the dispute. In the application presented to the Industrial Tribunal on the 7th August 1992 Mr Brown complained that he was unfairly dismissed by reason of himself and another employee being charged with the same offence. He alone was dismissed. He believed that a final appeal brought by him had been an influence on the matter. Proper Company procedures had not been followed. He was not given the Company proforma document stating the nature of the alleged offence.

His claim was disputed by his employer, who stated in their Notice of Appearance, dated 26th August 1992, that Mr Brown was dismissed for wilful violence upon a fellow employee. The details of the employer's defence are set out in the document attached to the Notice of Appearance. It is unnecessary to go into the facts alleged there since the Industrial Tribunal set out clearly in its decision.

The Tribunal found as a fact that there was an incident on the night of the 9th July 1992 in the canteen depot at the commencement of the night-shift. There were only two people in the canteen Mr Brown and Mr Smyth. Mr Brown brought a knife from his locker and put it on the table in the presence of a Mr Smythe. It was common ground that Mr Smythe found a clear plastic glove, put it on to his hand and said he was going to operate on Mr Brown. Mr Brown picked up the knife from the table, trouble ensued, and in the struggle Mr Smythe received a injury to the neck. The remaining details of the incident, the employer's investigation into it and the disciplinary measures taken are set out in the decision.

The Tribunal referred to the guide lines laid down in the well known case of British Home Stores Ltd v. Burchell

[1980] ICR 303

, to the effect that the Tribunal must be satisfied that, in cases of misconduct, the employer believed in the guilt of the employee, that that belief was based upon reasonable grounds and that there had been a reasonable investigation.

The Tribunal referred to the conflict of evidence between Mr Smythe and Mr Brown. They came to the conclusion that, in all the circumstances the employer had a reasonable belief in misconduct, on the part of Mr Brown, that that was based on reasonable grounds and that there had been a reasonable investigation into the matter. The Tribunal decided that a reasonable procedure had been followed throughout.

The Tribunal proceeded to consider whether or not the dismissal of Mr Brown was within the band of reasonable responses available to the employer in the circumstances of the case. On this point the Members were not in full agreement. The majority decided that dismissal was within the band of reasonable responses and was therefore fair. The dissenting Member considered that dismissal was just outside the band of reasonable responses and would have found that Mr Brown had been unfairly dismissed.

The Tribunal dealt specifically with the question of consistency of punishment. It was submitted to the Tribunal that the dismissal was unfair because one party, that is Mr Brown, had been dismissed, whereas the other, Mr Smythe, had at the end of the day only received one day's suspension and a written warning.

The Tribunal did not agree with that view and in paragraph 5 it stated this:

"It appeared that Mr Smythe had been guilty of an offence by starting the matter off and was rightly punished for this, but his offence was not very serious and dismissal would not have been reasonable. The applicant's offence on the other hand was far more serious. He had taken a knife in his hand and the result of that had been that Mr Smythe received a cut to the throat. In those circumstances there could be no question of the offences being similar and requiring the same punishment. One was much more serious than the other, and as has been mentioned above, two members of the Tribunal felt that dismissal was a reasonable response."

When the hearing of this appeal was notified to Mr Brown he wrote a letter to the Tribunal which was received at the end of January, requesting an adjournment. The reason he requested an adjournment was to allow himself time to sort out new representation. He stated in the letter of application that documents regarding his case were being held by the Legal Aid Board. That prevented consultation with new Counsel. He was therefore without representation. As a litigant "in person" he had no experience or prior knowledge of how to prepare the papers for the case. He stated he was also waiting a criminologist's report regarding the alleged attack on Mr Smythe and the expert opinion. He concluded that until all the facts of his case were made available and a solicitor had had a chance to look at them he could not present his case. He enclosed letters that he had written to the Legal Aid authorities asking for expedition so that the papers could be released and Mr Brown could arrange his representation at the hearing before the Employment Appeal Tribunal.

Mr Brown was informed by this Tribunal by letter of the 2nd February 1994 that his letter of 28th January 1994 had been considered by the Registrar and that she had decided that the appeal would remain in the list for a preliminary hearing today, not before 11.30 am.

A further letter to the Tribunal was received this morning (7th February 1994). The letter is addressed to the Chairman. It is written by Mr Brown and it sets out details of his new application to adjourn the hearing. He repeats the matters referred to in the earlier letter relating to fresh representation. It raises a number of new matters. He states that the following arguments in his defence ought to be considered in the hope that he would be granted a fresh fair hearing. In his submission the decision of the Tribunal was obviously and manifestly perverse. The burden of proof had rested on his testimony. At no time were the allegations made by the employers, and the fellow employee, tested in the light of their serious nature. He drew attention to the lack of evidence available to sustain the belief that an attack had taken place. He submitted that all the proof of the alleged attack lay with the employers. Mr Smythe was the only witness in a position to give evidence. He referred to the cases mentioned in his Union's letter giving notice of appeal, cases which refer to the matter of consistency of treatment. The letter repeats a number of points that made earlier in the letter. He concludes the letter by saying, that, to arrive at a reasonable decision that there would be grounds for belief, it was not possible because the Tribunal had deliberately misdirected itself and misled itself into the wrong decision. Mr Brown asks for this Tribunal's judgment and compassion to be given to a condemned man and his right to appeal for natural justice. He asks for mercy and at least the time he needs to prepare his case.

We have considered that fresh application for an adjournment in the light of the decision of the Tribunal and the relevant documents. Our conclusion is that no useful purpose would be served by granting the adjournment which Mr Brown has now asked for twice. The Tribunal's decision does not reveal any error of law. The Tribunal correctly addressed itself to the test in Burchell and made findings of fact that established that the employers did have a belief that Mr Brown had been guilty of misconduct, that there were reasonable grounds for the belief; and that there was a reasonable investigation into the matter before a decision was made to dismiss him. In the view of the majority, that dismissal was a reasonable response in all the circumstances.

In our view, Mr Brown is seeking to appeal against the findings of fact. Those grounds cannot support an appeal to this Tribunal.

For those reasons the appeal will be dismissed at this stage. There is no arguable point of law which could be usefully ventilated at a full hearing of the Tribunal.