Kwik Save Group Ltd v Clewes [1996] UKEAT 359_95_3001

EAT
Kwik Save Group Ltd v Clewes
[1996] UKEAT 359_95_3001 · 1996-01-30
MR JUSTICE TUCKER: This is an employer's appeal against a decision of the Industrial Tribunal sitting at Liverpool after a two-day hearing in late 1994 and early 1995, which was sent to the parties on 14 February 1995.The majority decision from which the Chairman of the Industrial Tribunal dissented, was that the Applicant, the Respondent to this appeal, was unfairly dismissed by the Appellants. The Tribunal subsequently decided that the Appellants should pay her compensation just short of £5,000.The Respondent was born on 1 March 1972, so she is now aged 23. She commenced employment with the Appellants on 29 July 1991 at the age of 19. She was employed as a stock assistant at the Appellant store at Wallasey until her dismissal on 17 December 1993. That dismissal arose out of an incident which is alleged to have occurred on 9 December 1993 during a confrontation between the Respondent and a customer at the store. The customer complained that the Respondent swore at her. Without mincing words the customer said that the Respondent had told her to "fuck off". The Respondent alleged on the other hand, that she had not sworn at the customer, but that the customer had been abusive to her.In her Originating Application the Respondent alleged that her dismissal was unfair in that:
"9(a) The Respondent did not have reasonable grounds for believing that the Applicant had been in fundamental breach of contract. (b) The Respondent failed properly or adequately to investigate the Applicant's dismissal, and refused to show her the customer's statement, thereby, depriving the Applicant the opportunity of fully defending the allegations made against her contrary to the requirements of the rules of natural justice. (c) In the circumstances, no reasonable employer would have dismissed the Applicant."
In their Notice of Appearance the Appellants admitted that the Respondent had been dismissed and they stated that the reasons for it was her conduct, of which they gave full details.Although the Tribunal disagreed about their conclusion, they were unanimous in their findings of fact. They are carefully set out in paragraph 6 of the reasons, between sub-paragraphs (i) to (xvi). It is not necessary to set them in detail since there has been no dispute about them. Suffice it to say that the Appellants, Kwik Save Group Plc, are a large public limited company who own and operate supermarkets at various premises in the United Kingdom. They employ a considerable number of employees and they have fairly large administrative resources.On the occasion which gave rise to these proceedings, Mr Heatherwick, the Store Manager, received a complaint from a customer and her husband that the Respondent had sworn at her in the way already described. Of course, that was a serious matter which had to be investigated. The Manager questioned the Respondent about it in his office. She, it is right to say, has throughout the investigation denied having sworn at a customer.The next day, 10 December 1993, Mr Heatherwick examined the Respondent's personal file. He found two notes on it which related to her previous relationships with customers. He discussed the matter with the Appellants' Area Manager, Miss Ince. The Respondent was suspended pending further investigations and it was arranged that a disciplinary hearing should be held the following Tuesday, 14 December.Meanwhile, Mr Heatherwick interviewed two employees who had been nearby,Miss Anna Kelly and Miss Donna Burrows who told him what they heard and seen. He also had a telephone conversation with the customer who was adamant that the Applicant had used the words described. This was the second conversation that Mr Heatherwick had had with the customer. It was not to be the last because prior to the disciplinary hearing he visited the customer and her husband at their home and they both confirmed to him what they had previously told him.So this was the third conversation he had had with the complaining customer. He told Miss Ince of the result of his visit and he provided her with a written record of his interview with Miss Burrows and Miss Kelly, and he also gave her a copy of his own written report.A disciplinary hearing was held on 14 December conducted by the Appellants' Area Manager, Miss Ince. At the conclusion of that hearing the Respondent was informed that she was being dismissed, the reason for it being gross misconduct, that is using foul and abusive language towards customers.Unfortunately, that hearing was not conducted as well as it should have been. A number of criticisms can justifiably be made of it. They are set out at (xv) in paragraph 6 of the Tribunal's reasons. Thus, Miss Ince did not provide the Respondent with copies of the records which Mr Heatherwick had made of his interviews with Miss Kelly and Miss Burrows. Nor did she give the Respondent a copy of the written report which Mr Heatherwick had made of his investigations.Miss Ince did not refer in the hearing with the Respondent, to notes which we have referred to already, which were contained in her personal file; nor did Miss Ince inform the Respondent that Mr Heatherwick had visited the customer that morning; nor what the customer and her husband had told him. Miss Tracy Forster, on behalf of the Appellants, concedes that if the matter stopped there she would have been in difficulties in presenting this appeal on behalf of the Appellants.But that was not the end of the disciplinary proceedings because the Respondent exercised her right to appeal and the matter was referred to a disciplinary appeal tribunal conducted by the Appellants' Divisional Personnel and Training Manager, Mr Funston. We note that the Appellants state in paragraph 6 of their Notice of Appearance that this took the form of a full re-hearing and from what we read in the Tribunal's findings, in this regard, we are satisfied that that is so.It was a very different hearing from the one which had preceded it. It was, in our opinion, impeccably conducted in the manner described by the Tribunal. The Applicant was represented by a full-time official of her trade union, Mrs Foulkes. Mr Funston supplied Mrs Foulkes with copies of the written account of Mr Heatherwick's interviews with Miss Burrows and Miss Kelly and of his written report of his investigation. Mr Funston also referred to the two notes which were on the Respondent's personal file. Mrs Foulkes asked for them and was granted an adjournment so that she could discuss the matter with the Respondent.At the conclusion of the hearing Mr Funston adjourned the matter in order to reach his decision and as the Tribunal found, having carefully considered everything which had been said at the hearing and the documents referred to in these reasons, he came to the conclusion that the customer had been telling the truth. Therefore, as we have said, the appeal took a very different course from the hearing previously conducted by Miss Ince.The Tribunal were satisfied that the reason for dismissal was that the Appellants Manager believed that the Respondent had sworn at a customer. They went on to consider the provisions of Section 57(3) of the Employment Protection (Consolidation) Act 1978 . It was at that point that the lay members of the Tribunal parted company with their Chairman. The conclusions of the lay members are set out in paragraph 9 of the reasons as follows:
"9. ... whilst they [the majority] were satisfied that the respondents genuinely believed that the applicant was guilty of the conduct for which she was dismissed, were also satisfied both at the time of dismissal and at the time of the conclusion of the appeal hearing ... that the respondents did not have reasonable grounds for their belief as they [the majority] were satisfied they [the employers] had not carried out such an investigation of the matter as any reasonable employer would have done in the circumstances. ..."
There were a number of other respects to which we shall return in which the majority express their dissatisfaction with the procedures.The conclusions which the lay members reached are for reasons which Miss Tracy Forster describes as being plainly as wrong as anything can be, and which she categorises as being perverse in the sense that no reasonable members of a Tribunal, reasonably directing themselves, could have arrived at such conclusions.The respects in which the members' reasons are criticised are these. First, they say that they were satisfied that any reasonable employer would have sought to obtain a written statement from the customer as to the allegation which she made. That, in our opinion, is justifiably described as being a quite unreasonable and unrealistic expectation, for an employer to take a written statement from a customer, it being unnecessary to do so having regard to the fact that he had already spoken to that customer three times.Second, the majority say that they were satisfied that any reasonable employer would have ensured that Miss Ince, who was responsible for conducting the disciplinary hearing which led to the Applicant's dismissal, personally interviewed the customer who made the complaint. Miss Tracy Forster describes this as a curious suggestion that the adjudicator should have interviewed the customer. That seems to us to be a proper criticism to make. It is essential, as we have no doubt Miss Forster has advised her clients on many occasions, that the functions of the investigator on the one hand and the judge or chairman of a disciplinary tribunal on the other, should be kept separate and distinct.The third criticism which is made is where the majority say that they were satisfied that no reasonable employer would have taken into account the notes which were on the Applicant's personal file in relation to customer relations, without canvassing those matters with the Applicant. Miss Tracy Forster submits that that completely ignores the previous finding by the whole Tribunal that Mr Funston had done precisely that. We look at paragraphs 6 of the reasons (xvi) to find that that is so, because the Tribunal make a finding that Mr Funston also referred to the two notes on the Applicant's personal file about difficulties with customers and which had been considered by Miss Ince when she had dismissed the Applicant.The final matter is where the members say that they were also satisfied that at the disciplinary hearing, any reasonable employer would have supplied the Applicant with copies of Mr Heatherwick's account of his interviews with Miss Burrows and Miss Kelly and a copy of his own report. But as Miss Tracy Forster submits it is really irrelevant to consider what Miss Ince should have done but did not do; what the members should have examined was what Mr Funston did in order to see whether that cured the matter. It is common ground, as we have made plain, that the enquiry conducted by Miss Ince fell short in a number of respects, of what should have properly occurred.The conclusions of the Chairman are set out in paragraph 10 of the reasons. Miss Tracy Forster describes them as being plainly right and as representing the cool voice of reason. The Chairman accepts that there were defects in the disciplinary hearing but he, unlike the lay members, went on to consider whether the Appeal Hearing conducted by Mr Funston was such as a reasonable employer should have carried out and that any unreasonableness in the disciplinary hearing had been corrected at the appeal hearing. His conclusion was that at that hearing the proper procedures had been carried out.Mr Funston had provided copies of the written accounts of interviews and Mr Heatherwick's report. He had also referred to the notes on the Applicant's personal file and had then given the Applicant and her representative an adjournment in order to discuss the matter. The Chairman concludes in these terms:
"10. ... I was satisfied that at that time he [referring to Mr Funston] genuinely believed the applicant was guilty of the conduct for which she was dismissed, that he had reasonable grounds for his belief and that he had formed his belief after conducting a reasonable investigation of the matter. It was no part of my function to decide, if I had been the employer in this case, whether or not I would have imposed the penalty of dismissal. What I had to determine was whether the respondents' decision to impose this penalty was a decision which fell within the range of responses open to a reasonable employer in the circumstances of this case. Having asked myself this question I was satisfied the respondents' decision to dismiss was within this range. I was therefore satisfied, having regard to equity and the substantial merits of the case, and taking into account the size of their undertaking and administrative resources, that the respondents acted reasonably in treating this reason as a sufficient reason for dismissal. ..."
We were referred to two cases in particular bearing on the question whether any defect in an earlier proceeding could be remedied by a properly conducted later appeal hearing. The first of these cases was Whitbread & Co Plc v Mills [1988] IRLR 501. Of course we accept, as Browne-Wilkinson J. (as he then was) said in an earlier case:
"It is very important that internal appeal procedures run by commercial companies which usually involve a consideration of the decision to dismiss by one person in line management by his superior should not be cramped by legal requirements imposing impossible burdens on companies in the conduct of their personnel affairs."
We are also impressed by the judgment in the Whitbread case of Mr Justice Wood, President of this Appeal Tribunal and the members sitting with him, as set out in paragraph 52 of the judgment that it follows that the fairness issue must be decided after the appeal process has been completed, and as Mr Justice Wood said in the following paragraph:
"53 ... those appeal procedures form an important part of the process of ensuring that a dismissal should seek to be fair. ..."
And at paragraphs 54 and 55:
"54 It would follow therefore that not every formality of 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.
55 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 rehearing 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 rehearing and not a mere review."The second case to which we were referred was that of Byrne v BOC Ltd [1992] IRLR 505, the decision of Mr Justice Knox and the members sitting with him. We note that in paragraph 20 of the decision, Mr Justice Knox said this:
"20 ... On balance therefore we consider that, although it is in our view desirable that Industrial Tribunals, which have to deal with the question whether an internal appellate process cures procedural defects in an earlier disciplinary hearing, should in terms deal with the issue whether or not the appellate process is sufficiently comprehensive adequately to cure the deprivation of rights suffered at the disciplinary hearing, nevertheless in this particular case the elliptical approach of the Industrial Tribunal does not cover an error of law."
In our opinion any defect which occurs at a disciplinary hearing can be cured by a properly conducted appeal hearing provided, as we are satisfied occurred in the present case, that that is a comprehensive re-hearing and not merely a review procedure.Sitting in this Appeal Tribunal we are reluctant to describe proceedings at any Industrial Tribunal as having been perverse and we will only do so in the most compelling cases. It is not a criticism to be made lightly but in the circumstances of the present case we feel obliged to say that the conclusion reached by the lay members of the Tribunal was one which, having regard to their own findings of fact, no reasonable Tribunal members could reach. The contrary conclusion of the Chairman was plainly right and was borne out by the facts as found.We feel there is sufficient material before us to enable us to deal with the matter ourselves. This is not a case which we feel it is necessary to remit for further consideration. Our conclusion is that the dismissal of this Respondent, originally the Applicant, was fair.We accordingly allow the appeal. We quash the decision of the Industrial Tribunal and the order for compensation which they subsequently made.