Ofori v Security Express Guards Ltd [1994] UKEAT 850_93_1102

EAT
Ofori v Security Express Guards Ltd
[1994] UKEAT 850_93_1102 · 1994-02-11
MR JUSTICE WATERHOUSE : In this case the Appellant appeals against the decision of an Industrial Tribunal held at London South on 27 July 1993. The unanimous decision of the Tribunal was that the Appellant had been unfairly dismissed but the Tribunal went on to hold that he had contributed to his dismissal by his own fault to the extent of two-thirds and that his compensation should be reduced accordingly.Before the Tribunal the Appellant represented himself and the Respondents were represented by their Personnel Manager. It appears that he was employed by the Respondents or their predecessors as a security guard for a period of just over two years until 28 April 1992. At that point he was dismissed because the Respondents believed that he had neglected his duties by going to sleep.The evidence before the Tribunal focussed on events on two consecutive nights, 22 and 23 July 1992, when the Appellant was on duty in an office building in Southwark Street, London SE1. His supervisor was man called Mr Childs, whose responsibility was to attend at the building from time to time and observe that employers were carrying out their duties. He duly attended on the two nights in questions and reported that he had observed that the Appellant was asleep whilst on duty. It seems that that was probably a matter of inference rather than direct observation but there were before the Tribunal the two reports that Mr Childs made out in relation to his visits.Mr Childs was in contact with the Respondents' Regional Control Centre by radio and there were reports before the Tribunal from the Control Room also, indicating what had been said. The actual decision to dismiss the Appellant was made by the Respondents' Operations Manager for that area. He called at the building at which the Appellant was employed at about 7 a.m. on 23 July, that is, the first night that is relevant. He spoke to the Appellant there and the latter immediately complained to him that Mr Childs had "caught him sleeping" but that he had not been sleeping in fact. He denied emphatically that he had been asleep and Mr Allen told him that he would consider the reports in due course and get in touch with the Appellant about the matter.The following morning Mr Allen again called at the building and the Appellant complained that Mr Childs had made a further untrue allegation of finding him asleep on duty. Mr Allen, told the Appellant that there would be a disciplinary hearing on 27 July and that the incidents would be discussed there.The Tribunal went on to make findings about the proceedings at the disciplinary hearing. It is unnecessary to go into detail about them. A point made was that no letter or other document was sent to the Appellant in respect of that meeting, although it was found by the Tribunal that Mr Allen had told the Appellant that he had the right to representation and to produce witnesses.The disciplinary hearing lasted about half-an-hour and no notes were taken. It was common ground before the Tribunal that the Appellant did deny the allegations against him and that the reports made by Mr Childs were read to him. The decision made by Mr Allen was to dismiss the Appellant summarily and he announced the decision at the time. The Appellant was handed a letter confirming his dismissal and setting out the reason, together with confirmation of his right of appeal against the decision.It seems that the Appellant did not appeal effectively. His contention was that he did give notice of appeal and he put a copy of a letter dated 29 July 1992 before the Tribunal but the Appellant accepted that, after that letter had been sent, he did go to collect his personal belongings and did not pursue the question of an appeal.Having considered the evidence and the procedures to which we have referred, the conclusion of the Tribunal was that the reason for the Tribunal was one related to conduct but they came to the conclusion that the Respondents had been unfair in convening a disciplinary proceeding hearing against the Appellant without serving upon him a letter or other written notice specifying the allegations that he faced and his right to call witnesses.They went on to explain the advantages to the Appellant of such advance evidence and commented that there was no evidence to show that he had been clearly informed that he risked summary dismissal, given that it was common ground that he had a blameless record and had not received even a verbal warning in the past. Their view was that the hearing and the procedure generally had been unfair and that the position had not been cured by the availability of an appeal because there had been no determination by the Respondents of an appeal.The Tribunal then considered the question of contributory fault, which is the only matter that could be relevant to an appeal by the Appellant. The finding that the Appellant was at fault was dealt with in paragraph 16 of the statement of reasons. Before referring to that paragraph, however, it should be said that the Tribunal had earlier stated that their finding was that the Respondents, in the person of Mr Allen, had honestly believed at the time of dismissal that the Appellant had been guilty of gross misconduct and that the Appellant had reasonable grounds for that belief. The defect, therefore, had been in the process of investigation.When it came to the question of contributory fault, the Tribunal were satisfied that the Appellant had neglected his duties on each of the two nights in question in a serious manner, so as to lead Mr Childs to think that he had been asleep. They were not convinced that he had, in fact, been asleep but were satisfied that he had given the appearance of not being alert. Apart from the evidence of Mr Childs, there was evidence from another witness about the failure of the Appellant to respond to telephone calls. It was on that footing that the degree of fault by the Appellant contributing to his dismissal was assessed at two-thirds.In the notice of appeal against that decision served on behalf of the Appellant by solicitors the ground are stated in paragraph 6 of the document as follows:
"The grounds upon which this appeal is brought are that the Industrial Tribunal erred in law in that the Tribunal in concluding that the appellant had contributed to his dismissal, in that in all probability he was not alert in his duties although it was accepted that he was not asleep is contradictory, and is not supported by evidence."
The short history of the matter is that, since the filing of the notice of appeal, the Appellant, through his solicitors, applied for legal aid, which was refused. This Appeal Tribunal was informed that the solicitors were going to appeal against the refusal of legal aid and an application was made to remove the case from the list for hearing today, pending the outcome of that appeal. The solicitors, however, were informed by letter dated 1 February 1994 that the case was to remain in the list and an adjournment was refused. Today, no one has appeared to support the proposed appeal but this Tribunal feels able to deal with the matter on the basis of the written material before it. The full statement of reasons by the Industrial Tribunal gives a clear picture, both of the facts that they found on the evidence laid before them and their reasoning. The single ground of appeal alleges a contradiction between the findings in relation to the dismissal itself and those on the issue of contributory fault but we are wholly unable to accept that there is any such contradiction.The basis of the finding of unfair dismissal was the inadequacy of the investigation by the Respondents and the absence of written notice to the Appellant of the disciplinary hearing but there is nothing in that inconsistent with the finding that the Appellant had been at fault in neglecting his duties in such a way as to cause Mr Childs to believe that he was asleep and to report that on two successive nights. The Tribunal also made express reference to the evidence about the telephone call, which was an added justification for their conclusion.We do not consider that it is arguable that there was a contradiction in the relevant findings and equally there is no basis for the blank assertion that the findings in relation to contributory fault were not supported by evidence. On the contrary, it is clear that there was evidence justifying the findings. Mr. Allen, Mr Childs and Mr Eadie were all witnesses before the Tribunal and there is no ground, therefore, upon which an appeal could succeed if the Appellant were to be here in person or to be represented by Counsel or solicitors.Our decision, therefore, is to dismiss the appeal.