Khan v Collins [1994] UKEAT 570_93_2701

EAT
Khan v Collins
[1994] UKEAT 570_93_2701 · 1994-01-27
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal sitting at London (North) on the 8th April 1993. The Tribunal heard a complaint by Mrs Collins, who had been employed by the Respondent Mr Khan, as a legal secretary from November 1984 down to the 19th June 1992, that she had been unfairly dismissed by him.The Tribunal unanimously decided that Mrs Collins was unfairly dismissed, but had contributed to her dismissal and that it was just and equitable that there should be a reduction of 65% in the compensation.Mr Khan, who practises as a solicitor, was dissatisfied with the decision and, when he received notification of the Reasons on the 7th June 1993, decided to appeal. He issued a Notice of Appeal on the 16th July 1993.This is a preliminary hearing to decide whether the grounds of appeal raise an arguable point of law which is deserving of a full hearing before the Appeal Tribunal.The background to the dispute can be stated very simply. Mrs Collins received a letter from Mr Khan dated 19th June 1992 alleging gross misconduct. The details of the misconduct alleged against her are set out in two pages of detailed points. Mr Khan alleged misconduct in relation to the insurance of a motor car and the use of that car by someone who was not covered by the insurance. There were allegations of misuse of stationery by Mrs Collins for personal use; an irresponsible attitude toward petty cash; dishonesty in entries in the attendance register. There are allegations of incompetence as a secretary and misuse of the office telephone. The letter concludes:
"In short, you are not the Julie who came to work for me a few years ago. You are a completely changed person. In view of the serious matters which I have mentioned above, which amount to misconduct, I considered it fair and reasonable to terminate your service with immediate effect. Please treat this letter as a Notice of Summary Dismissal."
The Industrial Tribunal found as a fact, in paragraph 4 of its decision:
"that at no time whatsoever was the Applicant given any warning, either oral or written, to indicate that any of the matters relied upon in the dismissal letter were unacceptable to the Respondent. Further, she [Mrs Collins] was not given any opportunity whatsoever to give any explanation to the Respondent [Mr Khan] for any of the allegations. We find therefore that the dismissal was unfair."
In paragraph 5 they dealt with the circumstances which led them to make a reduction in the compensation. They found that:
"the Applicant [Mrs Collins] contributed to her dismissal. She was culpable with regard to the completing of the insurance proposal form. [relating to the car] Further we find that she took the stationery for her personal use as alleged by the Respondent [Mr Khan] witnesses."
Mr Khan has argued his case, in person. He argues that this decision discloses an error on the part of the Tribunal.His case is briefly, this: that the whole decision on this part of the case offends reason It is perverse in that no reasonable tribunal could have concluded that this dismissal was unfair in the face of the seriousness of the allegations made against Mrs Collins.He submitted that the Tribunal had made an error in failing to look at the matter from the point of view of the reasonable employer. He submitted that, in view of the matter stated in his letter, and the findings of the Tribunal as to Mrs Collins' contribution to her own dismissal, as set out in paragraph 5, there was no point in seeking an explanation from her. No explanation was available.Finally, he said that the Tribunal, as apparent from paragraphs 4 and 5, were wrong in law in separating the criticism of procedural unfairness made against him from the points of substantive unfairness which were found to be favourable to him. He relies on the proposition that procedural and substantive unfairness should have been considered together, not separately.We have considered these arguments which Mr Khan made over the course of about an hour. None of us is able to detect, in those arguments, any arguable case that this decision was vitiated by an error of law. The position is that the Tribunal found as a fact that Mrs Collins was not given an opportunity to make an explanation in answer to these allegations.The law relating to this aspect of unfair dismissal is well settled. As a general rule, however serious the allegations made against an employee, it is necessary, before a decision as to dismissal is made, for an employee to be given an opportunity to say whatever he, or she, wishes to say to the person who will make the decision whether to dismiss or not. The clearest statement of this is by Mr Justice Phillips in the decision in this Tribunal in Budgen & Co v. Thomas [1976] ICR 344. There may be exceptions to this general rule. as there may be to any general rule. Mr Khan has referred to a number of instances in which it may be fair to dismiss someone for misconduct without going through the procedure of giving them an opportunity to explain. An obvious case is where a person is caught red handed in an act of gross misconduct of a kind for which there is no possible explanation.The difficulty Mr Khan has is that the decision of the Tribunal on this point is a matter of fact and not law. The Tribunal held on the evidence that there had been no opportunity given to give an explanation. It does not appear from the letter of 19th June 1992, sent by Mr Khan, that he gave any opportunity to Mrs Collins to explain herself. She was simply given, by that letter, notice of summary dismissal. It does not appear from the way in which Mr Khan put his case in the Notice of Appearance that he had any interview with Mrs Collins before the dismissal letter or that he gave her any opportunity after the dismissal letter to explain her side of the story. In those circumstances the Tribunal was entitled to come to a conclusion on the evidence that no opportunity had been given to explain Mrs Collins' side of the matter. They were entitled to come to that conclusion of fact. In those circumstances the dismissal was unfair.We can see no error of law. For those reasons we shall dismiss the appeal.