Alemu v London Borough Of Lambeth [1994] UKEAT 85_93_2504

EAT
Alemu v London Borough Of Lambeth
[1994] UKEAT 85_93_2504 · 1994-04-25

JUDGE J PEPPITT QC:

We have before us two appeals from a decision of the London (North) Industrial Tribunal which held unanimously that the Applicant had been fairly dismissed. The two appeals, both of which are before us at the preliminary stage, are against the Chairman's refusal to grant a review of that decision and secondly, against the decision itself. Mr Kibling, who appears on behalf of the Appellant, realistically in our view, submitted that the substance of the matter could best be reflected by our considering first the substantial appeal, so that armed with our conclusion, he could then decide what step he wished us to take about the Chairman's refusal to review.The Tribunal heard the application on the 9th October and 27th November 1992. We are told that the 9th October was devoted to the calling of evidence and that on the 27th November the parties made their final submissions.Against that background, Mr Kibling on the Appellant's behalf, makes three points. The first is that the decision by the Tribunal to proceed with the hearing on the 9th October was an error of law on its part. What Mr Kibling says is this: the notice which the Appellant received under Rule 5 of the "Industrial Tribunals (Rules of Procedure) Regulations 1985" was that the hearing would be heard on the specified date at Ebury Bridge Road. The Appellant appeared at the due time at Ebury Bridge Road only to be told that the case had been transferred, I think on the previous day, to Woburn Place. The Appellant was therefore conveyed by taxi to Woburn Place and the hearing upon his arrival commenced. Mr Kibling says that the terms of sub-Rule (1) of Rule 5 are mandatory in the absence of consent by the parties as to the giving of notice of 14 days of the time, date and place of the hearing. The relevant sub-Rule reads as follows:
"The President or a Regional Chairman shall fix the date, time and place of the hearing of the originating application and the Secretary of the Tribunals shall (subject to Rule 3(2)) not less than 14 days (or such shorter time as may be agreed by him with the parties) before the date so fixed sent to each party a notice of hearing which shall include information and guidance as to attendance at the hearing, witnesses and the bringing of documents (if any), representation by another person and written representations."
Mr Kibling, submits rightly, that that Rule is in mandatory terms and that the notice which the Appellant received did not specify the place of the hearing. For that reason, he submits, the notice was fatally flawed and accordingly we can uphold the validity of the Chairman's decision to proceed with the hearing at Woburn Place only if we are satisfied that the Appellant agreed. In support of that submission Mr Kibling referred us to Derrybaa Ltd v. Castro-Blanco [1986] ICR 546. Mr Kibling further submits that because the Appellant appeared before the Industrial Tribunal in person, we should not saddle him with an agreement that the hearing should proceed at the new venue because the matter came as a surprise to him and because he did not have precise knowledge of the terms of sub-Rule 5(1) of the 1985 Rules.If the transfer of the case to its new venue had been a matter of substance we would have been attracted to that submission but Mr Kibling does not suggest that the hearing of this case at Woburn Place rather than Ebury Bridge Road adversely prejudiced the Appellant by itself. It seems to us therefore, that in those circumstances, that the point being of such minimal significance to the fairness of the hearing we should regard as consent to the new venue the mere acceptance by the Appellant, without demur, that the hearing should proceed at Woburn Place. Accordingly, we are of the view unanimously, that there was agreement within the meaning of Rule 5(1), to which the Appellant was party, that the hearing should take place at the new venue.The second of Mr Kibling's points is this: he submits that the Tribunal failed to address its mind to the fact that the Appellant's contract of employment required the employers to be satisfied that an allegation of misconduct, or gross misconduct, was proved before acting upon it. We have not seen the contract of employment ourselves but for the purpose of this argument we are prepared to accept that it is in the terms which Mr Kibling has indicated.The existence of that term in the Appellant's contract of employment required the Tribunal not to satisfy itself whether the allegation of misconduct against the Appellant had been proved to its satisfaction but to satisfy itself that the Respondents honestly believed that the allegation had been proved and in that belief were reasonable, having conducted a proper enquiry into the disputed facts. That seems to us to be tantamount to saying that there must have been evidence upon which the employers were entitled to find gross misconduct proved and did so find.The Tribunal dealt with that matter, it seems to us, shortly and succinctly at paragraph 3(f) of its decision in which it found:
"The Respondent had a genuine belief in the guilt of the Applicant which was reasonably held after as much investigation into the matter was carried out as was reasonable in all the circumstances of the case."
That finding, in our judgment, coupled with the amplified finding in paragraph 5 of the decision, indicated that the Tribunal had applied precisely the test that it was required to apply and that accordingly, no proper complaint can be made under the second of Mr Kibling's heads.The third head of claim relates to what Mr Kibling described as the Chairman's conduct of the proceedings. He cites three instances of complaint. First of all he relies upon an assertion by the Appellant that he was prevented from cross examining a Miss Burr, who was the Chairperson of the Disciplinary Inquiry which considered the allegations against him. Upon investigation it emerged that there was not any embargo imposed by the Chairman upon the Appellant cross-examining Miss Burr. On the contrary, the Appellant in the course of cross examining Miss Burr began to ask her questions about the investigation carried out by the Respondents. The Chairman is said to have replied that such questions were inappropriate because Miss Burr was not herself responsible for carrying out those investigations. That seems to us to be a wholly appropriate comment for the Chairman to have made. Its effect, rightly or wrongly, was to deter the Appellant from any further cross examination. That, in our judgment, was a decision which he took and complaint cannot be laid at the door of the Tribunal for its consequences.The two other points taken by the Appellant in relation to the conduct of the hearing both concern documents. In the first case it is said that although the Appellant had his bundle of documents the copies for the Chairman and the Members of the Tribunal were not at Woburn Place at the start of the hearing but were brought there in the course of the morning. Accordingly, says the Appellant, the hearing started without the Tribunal having all my documents. In fact, the documents were delivered to the Members of the Tribunal before the mid-day break, according to the Chairman, whose letter we have dated 31st December 1993. The Tribunal read them over the lunch hour and so, from then on, were in a position to deal with any matters which they raised.Secondly, the Appellant complains of non-disclosure until a very late stage of his personnel file. What apparently happened was that he had asked a week or so before the hearing for disclosure of that file. The file was not produced before the hearing started but it was produced then and the Appellant was given a copy to read it. An opportunity of which he availed himself. It seems to us that in both those cases the Tribunal was entitled to decide as it did. It was in a position to consider all of the Appellant's documents within a short time of the start of the hearing and it was able to satisfy itself that the Appellant had a sight of his personnel file at a time when he was enabled to take advantage of anything upon which he sought to rely within it.Mr Kibling says that the Chairman's failure to adjourn the hearing in the circumstances was a matter of which he can complain and constitutes an error of law. We think what the Chairman did was fully within his discretion and accordingly we do not uphold the third of Mr Kibling's submissions.In those circumstances we have come to the conclusion that none of the points taken against this decision are of substance and accordingly the appeal must be dismissed.