O'Connell v Seceurop Ltd [1995] UKEAT 196_95_2107

EAT
O'Connell v Seceurop Ltd
[1995] UKEAT 196_95_2107 · 1995-07-21
MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal by Mr Seamus O'Connell against the decision of the Industrial Tribunal held at London (North) on 4th January 1995.The Tribunal heard a claim for unfair dismissal brought by Mr O'Connell against his former employers Seceurop Ltd by an application dated 20th November 1993.In the application Mr O'Connell said he had been unfairly dismissed from his position as a security officer. He had been employed since 12th March 1984. His employment ended on 9th November 1993. The grounds on which he was dismissed was that he had unlawfully assaulted a fellow security officer at a place of work. He gave details of the circumstances which he said amounted to unfairness in that dismissal.The claim was contested by Seceurop. They accepted, in the Notice of Appearance dated 29th November 1993, that Mr O'Connell had been dismissed and that the reason given for the dismissal was that he physically assaulted a fellow security officer.Seceurop's response to the claim that the dismissal was unfair was that, after a full disciplinary hearing, Mr O'Connell was given instant dismissal by Mr Norris on behalf of Seceurop for gross misconduct. They specified the offence, and they attached to the Notice of Appearance the copy of the letter of dismissal sent to Mr O'Connell and dated 15th November 1993. It was pointed out that the letter fully detailed the grounds for decision.The unanimous decision of the Tribunal was that the dismissal was fair and that Mr O'Connell's claim should be dismissed.The full reasons for that decision were explained in the document sent to the parties on 12th January 1995.Mr O'Connell was disappointed by the decision. He made an application for a review. On 2nd February 1995 the Chairman notified Mr O'Connell that she did not consider that any grounds, as set out in Rule 11(1) of the Industrial Tribunal Constitution and Rules of Procedure Regulations 1993 , had been established for reviewing the decision. It was stated that there were no reasonable prospects of success on a review applied for in Mr O'Connell's letter of 16th January 1995. The Chairman referred to the findings of fact and the decision sent to the parties on 12th January 1995.Mr O'Connell appealed by a Notice of Appeal served on 21st February 1995. He set out in detail the grounds of his appeal, as supplemented by various documents prepared by Mr O'Connell, and submitted by him to the Appeal Tribunal since he served the Notice of Appeal. There is one particularly helpful document which he has used for the basis of his submissions this morning. That is headed "Summary of Grounds for Appeal".Mr O'Connell, who is in person, was notified by the Appeal Tribunal that the matter would be set down as a preliminary hearing. The purpose of a preliminary hearing is to decide whether or not the appeal raises a point of law that is reasonably arguable. This Tribunal has no jurisdiction to re-hear cases decided by the Industrial Tribunal. It has no power to interfere with findings of fact made by the Tribunal. It is the Industrial Tribunals job to find the facts and then apply the law to them. The limited powers of this Tribunal are to entertain appeals which raise points of law. If there is no arguable point of law, there is no purpose in this case going to a full hearing.Mr O'Connell argues strenuously that there are points of law in this decision. In order to see if those arguments are good or not, it is necessary to refer to the decision first.The decision sets out the facts. It refers to Mr O'Connell's employment as a security guard from 12th March 1984 until 9th March 1993. It refers to the incident on 5th November 1993. On that date Mr O'Connell was involved in a physical assault on another employee. He admitted that the other person involved came up to him when he was asleep in the control room and woke him up with a violent noise which caused him to react. There was a dispute about how he reacted and the degree of violence used. Two witnesses saw what happened and they said, as did the victim, that Mr O'Connell had put his hand around the victim's throat. That matter was reported.Mr O'Connell was allowed to stay on the premises for some hours, but was later suspended and the matter was investigated by Mr Norris, the same Mr Norris who wrote the letter of dismissal. Mr Norris gave evidence. He said that he had interviewed the witnesses. He made full report of the disciplinary hearing held by him, and he produced to the Tribunal (and we have seen) the notes of the disciplinary hearing made and signed by Mr O'Connell.The notes show that the three witnesses agreed that Mr O'Connell physically assaulted Mr Smith by putting his hand on his throat after being woken up rather un-expectedly by Mr Smith. Mr O'Connell agreed that the notes were accurate and he agreed that the incident had taken place. In his explanation to Mr Norris at the disciplinary hearing Mr O'Connell informed him that he could not remember the details of the incident. In his own words he said "I have no memory of what actually happened". His recollection is that he did touch Mr Smith. At the end of the disciplinary hearing Mr Norris summarily dismissed Mr O'Connell for gross misconduct in accordance with the rules and procedures for security employees of Seceurop.Mr Norris did not inform Mr O'Connell at the conclusion of the hearing of his right to an appeal. Mr Norris wrote a letter of dismissal dated 15th November 1993, (not 9th November 1993 as the Tribunal said in paragraph 5 of their decision). The letter of dismissal failed to bring to Mr O'Connell's attention his right to make an appeal. That right is contained in the terms and conditions of employment and is in the following terms:

"9. RIGHTS OF APPEAL

9.1 An appeal against any disciplinary decision must be notified to an immediate Supervisor either verbally, or in writing, within three days of the disciplinary action occurring.9.2 In the event of the appeal not being satisfactorily resolved within a further three days, an appeal may be made, in writing, to the Personnel Department. The appeal will be heard within three days of the application being received by Personnel Department.9.3 The Supervisor may be present at the appeal bearing. The outcome of the appeal, together with copies of all correspondence, will be retained on the personnel file.9.4 If desired, a friend or colleague (who is also an employee) may be present at all stages of the Appeal procedure."Although the letter of 15th November made no mention of the appeal procedure, there was a letter sent on 23rd November which dealt with that aspect. The letter of 23rd November 1993, also written by Mr Norris to Mr O'Connell, said this:
"I am writing to remind you of your right of appeal against my decision.
You have a right if you so wish, to appeal in writing to our Company Administrative General Manager, Mr Denzil Brewin, Seceurop House, Tollington Place, Finsbury Park, N4.Your appeal should be forwarded to Mr Brewin within 3 days of receipt of this letter.Mr Brewin's decision, which will be reached within 3 days of his receipt of your written appeal, will be final, and will be communicated to you in writing by Recorded Delivery."Although Mr O'Connell sent eleven letters to Mr Norris between 9th November and the receipt of the letter of dismissal, he did not, in fact, take up the appeal right mentioned in the letter of 23rd November. He had, it will be remembered, taken out his application to the Industrial Tribunal which was dated 20th November 1993.The Industrial Tribunal decision refers to the letter of 23rd November 1993 in paragraph 6, pointing out that the actual procedure laid down was that appeals should be lodged within three days of the disciplinary action being taken against him. It is clear from the letter of 23rd November 1993 that that was not being kept to, because of the oversight in mentioning an appeal at the conclusion of the disciplinary hearing and in the letter of dismissal.Those were the facts found by the Tribunal. The Tribunal correctly proceeded to identify the legal provisions to be applied to the facts in order to decide the result. The Tribunal referred to Section 57(3) and to the decision in British Homes Stores v Burchell . The Tribunal then stated that:
"... They had to consider whether the Respondents had made a sufficient investigation of the facts to come to a conclusion reasonably that the facts complained of had taken place and by dismissing had acted reasonably in all the circumstances."
The Tribunal stated their enclosure in paragraph 8 in the decision. They said there was a sufficient investigation. Mr Norris interviewed all the witnesses to the incident and they confirmed to him the facts already mentioned. They found that it was reasonable for Seceurop to believe that the actions, of which evidence was given by the witnesses, had taken place. The rules of procedure in the company's handbook defined gross misconduct. One of the headings of gross misconduct was "fighting, physical assault or dangerous horseplay". They found that that incident came within that definition. The Tribunal found that the Seceurop reasonably concluded that there had been gross misconduct.They dealt finally with a point made by Mr O'Connell that he had not been given the right of appeal, as Mr Norris had failed to remind him of that right. He confirmed, however, in his evidence that he was aware of the rules of procedure, of the disciplinary procedures and of the right of appeal. Any error that there had been on the part of Mr Norris was corrected when the letter of 23rd November 1993 was sent, giving Mr O'Connell an opportunity to appeal to Mr Brewin, if he wished to. He did not take up that opportunity. The Tribunal rejected Mr O'Connell's argument that the letter was not an offer of an appeal because the procedures stated that such an application had to be made within 3 days after the action had been notified, and that he was in a position where Seceurop could ignore his application if they wished.We have to ask ourselves what is legally wrong with that decision?In his summary of grounds, Mr O'Connell makes a number of points. He spent a considerable part of the hearing today developing his point on the terms and conditions of employment of Seceurop which were introduced and imposed on him in 1991. He complains of the way that was done, and says that this procedure adopted by his employers would have important repercussions in the field of employment law, if it was upheld. It would alter employment law by turning the point of change of terms and conditions enormously in favour of employers. We pause there to say that it is not necessary for us to make a decision on this one way or the other. The fact is these terms and conditions were introduced in 1991 during the course of Mr O'Connell's employment, and he continued to work for Seceurop knowing of these changed terms and conditions. The point raised by Mr O'Connell may have some importance if this were a different case. But this case is not for any alleged constructive dismissal by the imposition of terms on him by an employer. This case is about a dismissal two years later arising out of a specific incident which was, in the view of the Tribunal, reasonably believed by the employer to constitute gross misconduct within its rules of procedure.Mr O'Connell had a number of other specific complaints. He said there was possible perjury in relation to the report of Mr D Oliver dated 5th November 1993. That report had not been disclosed to him until December 1994. The witness statements should have been produced not later than the time of the decision to dismiss in order to enable him to pursue a proper internal appeal. He complained that the list of documents in the Industrial Tribunal proceedings, (a list dated 20th May 1994) excluded a huge number of relevant documents, including that report. He repeated the point that there was a lack of good faith on the part of Seceurop in the disciplinary hearing, and a lack of good faith in the letter of 23rd November 1993 in relation to the right of appeal. He complained of the circumstances in which he had been suspended without pay, contrary to the terms and conditions of employment. He then came to an important point that there was no internal appeal. He referred, as already mentioned, to the delivery of eleven letters by him to Seceurop prior to the issuing of the dismissal letter. The dismissal letter would appear to constitute a refusal to hold an internal appeal. There was nothing said in it about the right to an appeal. That had not been mentioned to him at the end of the disciplinary hearing.He started to develop before us an argument that the Tribunal had misdirected itself about the meaning of "assault". He said that the decision of the disciplinary hearing and of the Industrial Tribunal was that he was guilty of an assault. That conclusion was arrived at without any reference by Seceurop to the police and without any decision in a Court judgment, in a Court which had jurisdiction on criminal matters. He said that the decision erred in law in finding that the dismissal letter was dated 9th November. We agree that 9th November is an error. The correct date is 15th November 1993, but that is not an error of law. That is a clerical or typing slip in the setting out of the facts of the decision. It is quite clear what the nature of the error is. He said that there was an error of law in that the Tribunal decision determined that Mr O'Connell agreed that the notes of the witnesses statements were true. The reality was that was impossible, he was not present when the statements were made. He referred to the destruction of various records. He took various other points in relation to the conduct of the proceedings before the Industrial Tribunal.We have considered all these points. There are further details of these points in the other documents which Mr O'Connell has submitted. We appreciate that Mr O'Connell feels very aggrieved about the way he has been treated by Seceurop. He also feels aggrieved at the failure of his claim before the Industrial Tribunal. We are unable, however, to find in this decision of the Industrial Tribunal any error of law that would entitle us to exercise jurisdiction on this appeal. An error of law is a misinterpretation of the relevant sections, such as Section 57(3), or a failure to apply the relevant precedents. If the Tribunal had failed to apply to the test of British Home Stores v Burchell that would have been an error of law. An error of law can also occur if, although the Tribunal had referred to the correct statute and its provisions and to the correct precedents, they have misapplied those provisions to the facts. We can find no error of that kind in this decision. The Tribunal set out the facts found. We cannot interfere with those. They referred correctly to Section 57(3), and the fact that misconduct is a ground for dismissal. They applied the Burchell test to the facts of the case in a way which was not erroneous. They arrived at the conclusion that this dismissal was fair. A different Tribunal might have come to a different conclusion. But that is not the point. The point is that this Tribunal came to a conclusion by correctly following the procedure for determining this kind of case and by applying the correct law to it. In those circumstances there is no point in this appeal proceeding. There is no arguable legal point. There are many other grounds stated for grievance, but they are not relevant to the reasoning in the Industrial Tribunal decision. We dismiss this appeal.