Johns v Bourne Leisure Group Ltd [1996] UKEAT 326_95_1704

EAT
Johns v Bourne Leisure Group Ltd
[1996] UKEAT 326_95_1704 · 1996-04-17

JUDGE HARGROVE Q.C. :

It is the case that on 3rd February 1995 the Industrial Tribunal held that Mr Johns had been fairly dismissed. He appeals against that decision.The background is that Mr Johns was 63 at the time of his dismissal. He had worked with the respondents, or their predecessors in title, since about 1970, therefore some 24 years of service. No doubt he was an exemplary worker and we have seen documentation from his original employer which describes him in glowing terms.It seems that week before he was dismissed on 16th May 1994, he had been told to work with a Mr Goodridge. The work upon which Mr Johns was engaged was the manoeuvring of caravans. Mr Johns felt that Mr Goodridge was not up to the job and he refused to work with him. He then went on holiday for a week. On his return he was asked by Mr Fowler, who was his foreman, to work with Mr Goodridge, he refused to do so and he was dismissed. The basis of his dismissal was his conduct in that he was given a lawful instruction and he refused to carry it out.He obviously deeply resented that situation. He wanted to see a director, Mr Allott. An appointment was made which was made at very short notice and could not be kept by Mr Johns. Eventually there was a meeting with Mr Allott, Mr Fowler and others, but that did not occur until the September 1994.There are two main points taken. The first is that the Industrial Tribunal failed to consider whether the instruction that was given was not only lawful but also reasonable. We think that there is nothing in that point because of the way in which the Industrial Tribunal puts the matter. It says:
"3. ... Mr Fowler told the applicant that in future he would have a new mate one Marcel Goodridge, a man who had worked for the respondent on a seasonal basis in the past and who was known as a good worker. The applicant flatly refused to work with Mr Goodridge."
The tribunal go on:
"... Before this tribunal he [ that is Mr Johns ] said he was jealous of his deservedly good reputation, and was afraid Mr Goodridge would damage the caravans and in so doing, damage his reputation.
4. ... He has adopted the same attitude today. Under no circumstances will be work with Mr Goodridge but he has given no sensible reason for that refusal"Upon that basis, in our view, bearing in mind the truncated nature of summary reasons, it cannot be said that the tribunal did not find that the order was reasonable.The second basis upon which the matter is put, and in our view a much more serious one, is that the procedure to which Mr Johns was entitled was not carried out. By his contract of employment the disciplinary procedure is set out as follows:
"In the event of misconduct or lack of capability, a warning (either oral or written may be given by the Site Manager. On receiving a written warning, which involved the possibility of the termination of employment, at a future date, the employee may appeal against that warning to a Director of the Company. If the employee is guilty of such misconduct or lack capability as merits the consideration of his or her dismissal (whether subject to a prior warning or not) or some other substantial reason should occur to justify consideration of his or her dismissal, he or she will be entitled to have the particulars provided in writing [ I pause there - that was not done ] and to be heard thereon by a Director of the Company. [ That certainly was not done before the Industrial Tribunal hearing ] If the employee is dissatisfied with the decision of the Director, he or she may appeal against that decision to one or more of the remaining Directors of the Company."
I have outlined what occurred in this sense that there was a hearing, if it can be so-called, before Mr Allott. It does not appear that although the employee was clearly dissatisfied, he was ever told that he had a further right of appeal to one of the other Directors. It may well be that some such step was indicated to the Industrial Tribunal, but certainly from the findings which that tribunal has made, there is no indication that there was any consideration of whether or not these particular defects caused any injustice or were such as to take them out of that area which is set out in Polkey at paragraph 5 and 6. It has been suggested that what has happened here has been that although there was no proper first hearing, the hearing before Mr Allott remedied that matter upon the basis of the approach which one sees in cases such as Byrne v BOC , and further in Whitbread v Mills [1988] ICR 776 . Again, there is no indication in the reasons about whether that matter was ever taken into consideration, and whether the aspect which is set forth in Whitbread v Mills at page 795A was ever taken into account. That aspect is that:
" It would follow therefore that not every formality or legal or quasi-legal process is required during the disciplinary and appeal procedures. Each set of circumstances must be examined to see whether the act or omission has brought about an unfair hearing.
If it has, then whether or not an appeal procedure has rectified the situation must depend upon the degree of unfairness at the initial hearing. If there is a re-hearing de novo at first instance, the omission may be corrected, but it seems to us that if there is to be a correction by the appeal then such an appeal must be of a comprehensive nature, in essence a re-hearing and most a mere review."It seems to us that those our matters which ought to have been in the mind of the tribunal, and ought to have been matters for their consideration. It may well be at the end of the day, the tribunal would have come, had it been fully instructed on the all the facts and matters, to the conclusion that the requirements set out in Whitbread v Mills , have been complied with. But there is certainly no indication upon the face of the reasons that we have seen to justify that view.One can well understand the approach which the tribunal took, namely that this was blatant case of refusal to carry out an order, denial of management's rights to manage and that the sacking of the man was the only response that could occur. If we may so, one of the difficulties of this case is that Mr Johns represented himself before the tribunal. We have seen some of Mr John's letter. We do not wish to be in any way critical of him, but he was not equipped to assist the tribunal as he ought have been. It is not his fault. It is the fault of a system which denies him legal aid and he is a man not apparently of affluent circumstances, who could not afford the type of help which this tribunal has been given today, in, if we may say so, in both detail and in general considerations by Mr Thomas.The result is that there has now been considerably greater expense and considerably greater strain upon the appellant who is a man not in the best of health. All of us on this tribunal regret that we have to send this matter back so this process is prolonged even further. But it is our view that upon the basis that these matters were not considered by the tribunal that it must go back now for a re-hearing of the whole matter before another tribunal.