Hughes v J Murphy & Sons Ltd [1996] UKEAT 585_95_1405

EAT

Hughes v J Murphy & Sons Ltd

[1996] UKEAT 585_95_1405 · 1996-05-14

JUDGE K BASSINGTHWAIGHTE:

This Appellant's complaint of unfair dismissal and in respect of an unlawful deduction from his wages, was heard by an Industrial Tribunal sitting in Liverpool on 6 December 1994 and 6 and 7 February 1995. His complaints were consolidated and heard together with the complaint of a fellow employee, Mr Murray with whom this Appeal Tribunal is not concerned.

By its decision promulgated in an extended form on 20 April 1995 the Industrial Tribunal upheld the Appellant's claim under The Wages Act 1986 , but dismissed his complaint of unfair dismissal.

In his Notice of Appeal filed on 31 May 1995, the Appellant effectively submitted firstly, that by refusing to allow the calling of a witness Mr Blakley (Blakely or Blakes) and by permitting cross-examination of a different witness on issues with which the former would have dealt, the Tribunal generally offended the principles of natural justice and more particularly, because that evidence would have assisted the Appellant in disputing the reason for his dismissal, put forward by the respondent Company and found by the Tribunal, namely misconduct; and secondly, that no reasonable Tribunal would have found the Appellant's dismissal to be fair without, in all the circumstances of this case, the holding of a disciplinary hearing before an independent arbiter.

In its Answer, filed on 15 November 1995, the respondent Company resisted this appeal essentially relying upon the reasoning set out in the Industrial Tribunal's decision. There is no appeal before us against the Industrial Tribunal's award under The Wages Act 1986 .

The facts found by the Industrial Tribunal are briefly these. The Appellant and Mr Murphy had been disciplined in May 1994 by the respondent Company, and had been suspended without pay for two weeks. It is that unpaid suspension which the Tribunal found was not countenanced by a working rule agreement and which caused the awards under The Wages Act 1986 . The scene for this Appellant's dismissal is set in sub-paragraph 3(r) of the Industrial Tribunal's findings of fact.

"3.(r) On 14 June 1994 Mr Mohan was driving along the M62 when he received a telephone call from his office from Mr Meehan advising him that there had been a telephone call from a resident of Fairfield Crescent, Liverpool 6 alleging one of the respondents vehicles was removing surplus soil from Number 21 Fairfield Crescent and there was a suggestion that that vehicle would be returning to remove more soil and Mr Mohan was asked to look into it."

There then followed particularly relevant findings of fact in sub-paragraphs (s) and (t) concerning the actions of Mr Mohan, the dismissing manager.

"(s) He `[that is Mr Mohan]' drove to Fairfield Crescent and on entering the Crescent he didn't see any sign of the respondent's vehicle. But on driving around the Crescent a second time one of the respondents vehicles appeared in view driven by Mr Hughes who when asked, was he removing soil from number 21 replied `yes' and when asked how much he said he had removed `about 4 or 5 grabfuls'. (t) He `[that is Mr Hughes]' further said that when he had been suspended he had arranged to do the job and he pleaded with Mr Mohan to say that he had not seen him and Mr Mohan refused. Mr Mohan took away Mr Hughes' driving keys."

The Tribunal's eventual conclusions are set out in sub-paragraph (u):

"(u) Mr Mohan suspended him and at a disciplinary hearing held the following day by Mr Mohan he put the events of the previous day to Mr Hughes and asked him if he had any comments and Mr Hughes said No and Mr Mohan dismissed him for using the respondent's vehicle without permission to carry out unauthorised work for another contractor and neglect of his work for the respondents and we find the effective date of termination of his employment was 15 June 1994."

We pause there to comment only that the Appellant was clearly dismissed, according to Mr Mohan and to the Industrial Tribunal's findings of fact, for carrying out unauthorised work on 21 Fairfield Crescent, not because he was, for example, at that location when he should have been elsewhere.

It is clear from the Appellant's Notice of Appeal and from the submissions before us today, that the Appellant disputes Mr Mohan's evidence and that he sought to adduce evidence before the Industrial Tribunal, which he contends would have assisted him in challenging that evidence.

That dispute was also clearly before the Industrial Tribunal. The Appellant's representative submitted to that Tribunal that the evidence of Mr Blakley should be called, evidence which all the parties accepted had not been made available to Mr Mohan either before or during the disciplinary hearing which preceded the Appellant's dismissal.

The Industrial Tribunal's record of proceedings reveals at page 9 that Mr Blakley was indeed called and sworn to give evidence, but that "he was not at the dismissal hearing and it was agreed that he would not be called that day" . Page 37 of the Industrial Tribunal's record reveals that the Appellant's representative applied again to call Mr Blakley later in the proceedings, an application which the Tribunal refused "because his `[Mr Blakley's]' evidence had not been put to Mr Mohan at the date of dismissal by the applicant" .

The Appellant's representative was however, permitted to cross-examine Mr Mohan about Mr Blakley, and presumably about the evidence which that representative assumed that he was able to give.

While it is correct to say that the Industrial Tribunal's decision does not record whether it knew the anticipated content of Mr Blakley's evidence, the record of exhibits before the Industrial Tribunal indicates that it had that statement, as we ourselves have had it, and the Skeleton Argument for the respondent Company before us today reveals that a Chairman of Industrial Tribunals had apparently directed in October 1994 (for what reason is not obvious) that a witness statement be taken from Mr Blakley. We therefore conclude that the Industrial Tribunal was aware of the evidence which Mr Blakley was expected to give.

The respondent Company's Skeleton Argument provides a neat précis of the evidence of Mr Blakley in the following terms:

"6. (i) although he had noticed a lorry belonging to the Respondent in the street on the afternoon that the Appellant was seen there by Mohan, no lorry belonging to the Respondent was removing material from the site he was operating in the street, which was the site from which the Appellant was alleged to have been removing surplus soil.

(ii) the Appellant, later on in the afternoon on which he had met Mohan on the street, requested his help;

(iii) when asked for help by the Appellant he remembered having seen a blue Volvo motor car (which might have been that driven by Mohan) parked in the street earlier in the day, and that he had requested the driver of the Volvo to move his car."

We would add only that the statement that we had from Mr Blakley clearly indicates that his evidence was with regard to 21 Fairfield Crescent.

In cases of unfair dismissal it is firstly for the employer to prove what was the reason for the dismissal. The Tribunal found, accepting Mr Mohan's evidence as it is ordinarily entitled to do, that the respondent Company had proved that misconduct by the Appellant was in fact the reason for his dismissal.

We must firstly decide whether Mr Blakley's evidence was relevant and probative in that assessment, for if it was then the Industrial Tribunal's refusal to hear it could be a breach of natural justice and an error of law. It is necessary for a respondent to prove a reason for dismissal, because unless that is done an Industrial Tribunal cannot examine the fairness of that dismissal. However, those are two distinct stages.

While it is correct to say that evidence which seeks to show that, contrary to an employer's reasonably and genuinely held belief, a dismissed employee was not guilty of the offence alleged is irrelevant (unless it was drawn to the dismissing manager's attention at or before the time when the decision to dismiss was made) it is not also correct to say that such evidence is necessarily irrelevant when an Industrial Tribunal considers the first stage, that is whether the respondent has proved what was the reason for dismissal.

In this case it is apparent, when one examines the statement taken from Mr Blakley, a statement of which the Industrial Tribunal was aware, that his evidence could, at the least, have been capable of casting doubt upon that of Mr Mohan and of thereby supporting the evidence of the Appellant. The Industrial Tribunal might have found, if it accepted Mr Blakley's evidence, that the respondent Company had failed to prove the reason for dismissal which it put before the Tribunal, in which case it would have more likely than not followed that the Appellant's complaint of unfair dismissal would have succeeded.

It is therefore, our conclusion that the Industrial Tribunal erred in law when it refused to hear the evidence of Mr Blakley. His evidence related specifically to 21 Fairfield Crescent on the day in question and in declining to hear his evidence the Industrial Tribunal appears to have concentrated only upon the issue of fairness, in which consideration of Mr Blakley's evidence may be of doubtful relevance, and to have overlooked the challenge made by the Appellant to the veracity and thus to the reliability of Mr Mohan's evidence about the true reason for the dismissal.

In consequence the Appellant's complaint of unfair dismissal must be remitted to a fresh Tribunal for re-hearing.

By reason of our finding today, there is no need for us to consider or to rule upon the Appellant's challenge to the procedural fairness of the dismissal and we record that we have heard no submissions from Counsel, at our request, upon that issue.