Lovell v Tesco Stores Ltd [1995] UKEAT 1091_94_1005

EAT

Lovell v Tesco Stores Ltd

[1995] UKEAT 1091_94_1005 · 1995-05-10

MR JUSTICE MORISON : By a unaminous decision of an Industrial Tribunal held at London (South) on 17th June 1994, the complaint by the prospective appellant, Mr Lovell was dismissed. In this case there was no dispute between the parties as to the fact of dismissal and therefore, as the burden of proof rests upon the employer to establish the reason for the dismissal, and to prove a reason falling within Section 57(2), the employers began to present their case. They said that the reason for the dismissal was the alleged gross misconduct of the employee in assaulting another employee.

The appellant did not attend the hearing before the Industrial Tribunal, but quite rightly the Industrial Tribunal decided to hear the merits of the case. The appellant was represented and as the burden of proof was upon the employers the appellant was entitled to sit back and test the employers case by cross-examination.

The incident leading to the dismissal allegedly took place on the night of 11th January 1994, when the appellant is alleged to have pushed, so that she fell, a female member of staff working on the same team as himself. Both persons were suspended, and an investigation was carried out. The store manager conducted investigatory interviews, and it was the employers' evidence at the Industrial Tribunal that during his interview, the appellant admitted pushing the fellow employee. His suspension was continued until a disciplinary interview could be convened. That was duly done on 14th January 1994, and while he admitted pushing the other employee, the appellant denied that he had assaulted her. The hearing was somewhat unsatisfactory, in that the appellant found it difficult to accept that he was being listened to, and became angry and he was summarily dismissed.

The Industrial Tribunal concluded that the reason for the dismissal was the assault, and that the employers followed their own dismissal procedure, it being made clear from the disciplinary rules that an assault is classified as gross misconduct. The other participant in the incident was seen separately, and she was given a final written warning.

The Industrial Tribunal rejected the suggestion that there should have been no investigation interview in advance of a disciplinary hearing. They rejected the suggestion that the appellant did not know what charge he was facing, and that he had not been given a fair opportunity to present his case before he was dismissed. The appellant exercised his right of an internal appeal, but rejected the dates offered to him, so no such appeal had taken place by the date of the Industrial Tribunal hearing.

We have been assisted this morning by Mr Cude, appearing on behalf of the prospective appellant. And as we explained to him, we can only interfere with a decision if it is wrong in law, and therefore the purpose of this preliminary hearing, is to determine whether the appellant has shown as arguable point of law in his grounds of appeal. A number of points have been made and we shall deal with them in turn.

The first two paragraphs of the grounds of appeal, in effect, deal with the complaint made that the employers started the case off. Mr Cude told us this morning, and we accept, that his previous experience of an Industrial Tribunal case had led him to believe that it would be the employee who would start. In our judgment, the Tribunal in this case were entirely correct to call on the employers first, thus reflecting the way the burden of proof is constructed. In other words, if the employer did not prove what the reason was for the dismissal, then in those circumstances the application for unfair dismissal would have automatically succeeded.

The third point that is made in the grounds of appeal, is to this effect. It is said that Mr Cude, the representative, was a witness and, so to speak, did give evidence in his capacity as a representative. In this respect, we have to say to Mr Cude, with great respect, that there is a distinction between evidence which is given from the witness box on the one hand, and submissions which are made by a representative on the other. It seems to us, that the Tribunal were right to observe that the individual himself, who was best placed to be able to give evidence about the matter, did not himself attend the Tribunal or give evidence.

Then it is said in paragraph 4:

"The applicant could only be dismissed according to the procedures agreed between the Company and Trade Union.

and the dismissal was effected contrary to procedure.

The difficulty with that contention, is that if one looks at paragraph 8 sub-paragraph (g) of the Tribunal's decision, they expressly say that:

"The Tribunal finds that in this case the Respondents did correctly follow their own disciplinary procedure."

That is a finding with which we cannot interfere. As part of the same point, as we see it, it was said that the applicant was dismissed for a gross misconduct offence for which he had no notice to meet the charge. Again, this is dealt with in the paragraph 8(d) of the Tribunal's decision where they go through the events which occurred and find that:

"There is no evidence to suggest that the Applicant did not understand the nature of the charges being investigated against him, nor that he was unaware of the consequences which would follow if those charges were substantiated."

Again, our difficulty is that that is a finding behind which we cannot go. It is suggested that, at the disciplinary hearing on 14th January 1994, the applicant, the employee, was condemned unheard, that the employers, in effect, prejudged the issue. That seems to us to be dealt with in paragraph 8(e) of the Tribunal's decision, where they set out facts as to what happened; and behind them, we cannot go.

It is then said that the Tribunal determined that mis-conduct was the same as gross mis-conduct, and in this they erred. A contract has to be construed strictly because they have two different words which have different meanings. As we understand the Tribunal's decision, what they are saying in paragraph 8(f) is that, it was known that an assault is classified as gross mis-conduct and that he was dealt with fairly within the procedure which was followed by the employer in this case.

Then it is said that the Tribunal should have considered the applicant's complaint in full, but that the IT1 form was not referred to by the Industrial Tribunal in their decision. All we can say in answer to that point is that there are many examples of cases where decisions do not refer to what is said in an IT1; indeed, it is rare in my experience, for them to do so. That does not mean that the Industrial Tribunal has not taken what is said in the IT1 into account. Indeed, we would be very surprised if any Industrial Tribunal had not read the IT1 and IT3 carefully, before they started the hearing.

Then it is said, that the applicant asked for a review of the decision and it was refused, not in accordance with Rules but by somebody acting for the Regional Tribunal Chairman and that he cannot delegate. We do not think that is an accurate statement of what actually occurred.

Further, the applicant, it is said, was denied a fair appeal, under the procedures, and the Tribunal failed to take this into account.

(l) where they say:

"The Applicant lodged an appeal against his dismissal in accordance with the Respondents procedures. The Applicant had subsequently rejected two dates which the Respondents offered to him for such a hearing ..."

Accordingly, having looked with care at all the grounds which have been raised by Mr Cude, nonetheless we are not satisfied that they show an arguable ground for appeal, and it is our duty, in accordance with the Act in those circumstances to dismiss this appeal.