Smith v British Union For The Abolition Of Vivisection [1996] UKEAT 725_96_0611

EAT

Smith v British Union For The Abolition Of Vivisection

[1996] UKEAT 725_96_0611 · 1996-11-06

For the Appellant MS R DOWNING E.L.A.A.S.

MR JUSTICE MORISON (PRESIDENT) : Following a three day hearing, an Industrial Tribunal at London (North) unanimously dismissed Mr Smith's application for unfair dismissal which he had brought against his former employers, the British Union for the Abolition of Vivisection ["BUAV"].

The circumstances giving rise to his dismissal related to a meeting which took place, an Executive General Meeting ["EGM"] called for 5th November 1994, which was attended by a large number of BUAV members. The allegation against Mr Smith was that at that meeting he together with five other members of staff, participated in disrupting the meeting which eventually was successful and led to its closure. Accordingly, following that occasion, the BUAV's acting director, Mr Garner, wrote to Mr Smith suspending him from his employment as their Northern Regional Organiser.

In due time, a disciplinary panel was set up. They heard the matter over two days on 13th December 1994 and 4th January 1995, under the chairmanship of Mr Johnson.

Mr Garner presented the case on behalf of the BUAV, and presented both written and oral evidence which was to the effect that Mr Smith had indeed played a full part in the disruption of the EGM, standing on a chair in an attempt to address the meeting, abusive behaviour and refusing to resume his seat.

Mr Smith was represented before the panel by his trades union representative, Mr Lamb. The tribunal have found as a fact that he was given full opportunity to cross-examine witnesses and to call evidence. He also presented, they record, both oral and written evidence to the effect that he was not participating in the disruption, but on the contrary, was attempting to calm the meeting down.

The Industrial Tribunal note that:

"9 No criticism was made before the Tribunal of the way in which the disciplinary panel conducted the hearing."

Following the hearing, the panel concluded that they were satisfied he had been guilty of misconduct, and that the appropriate sanction was summary dismissal which was duly effected.

Mr Smith exercised his right to appeal, which was to the Executive Committee. The Executive Committee comprised those who had been involved at the first disciplinary panel. The Industrial Tribunal record that:

"12 ... the Executive Committee delegated the hearing to a sub-committee in accordance with its constitution."

and that it was reasonable for the BUAV to have taken the view that the matter would be better dealt with by such a sub-committee as the members of the disciplinary panel who had reached the decision to dismiss were all on the Executive Committee as were some of those who had given evidence before it.

Before the Industrial Tribunal, Mr Smith argued that the way in which the BUAV had dealt with the question of his dismissal was unfair. In particular, he argued that the composition of the disciplinary panel was such that it was bound to find against him. He also argued that the appeal panel was constituted in breach of the procedure, and that the appeal ought have been heard by the full Executive Committee.

The tribunal expressed themselves in paragraph 17 in this way:

"17 The Tribunal had sympathy with Mr Smith in his complaint about the composition of the disciplinary panel. Ideally, it might well have been desirable for the hearing to be taken by those less concerned with the difficulties within the BUAV. However, in the situation in which the Executive Committee found itself, with one group playing no part in its proceedings, the Tribunal did not consider it unreasonable for the Commission to decide that its disciplinary panel should deal with the issue, provided that it did so in a way which was fair. The Tribunal is satisfied that the disciplinary hearing was fair and that it reached a decision which was open to it on the evidence."

The purpose of this hearing is to determine whether or not Mr Smith can show any arguable ground for an appeal to go before a full panel of the Employment Appeal Tribunal. Our jurisdiction is limited to dealing with points of law, and the purpose of this hearing is to determine whether or not his suggested Notice of Appeal raises any arguable point of law.

In effect, the basis for the challenge to the Industrial Tribunal's decision is that it was perverse. In particular, it is alleged, that the Industrial Tribunal have failed adequately to paint the picture which showed that there was a complete split within the BUAV at that time, with two distinct factions, and that the composition of the disciplinary panel and indeed of the appeal panel was essentially those of a faction opposed to Mr Smith's faction. Therefore, it is submitted to us that the decision of the Industrial Tribunal was perverse in that they did not adequately reflect in it the alleged 'packing' of the disciplinary panel and appellate panel.

That seems to us to be putting the matter wrongly. As it seems to us the Industrial Tribunal were obviously aware as their decision makes clear, of the factional split within the BUAV. Indeed we imagine that no tribunal could possibly have considered an application for unfair dismissal and heard the submissions of Mr Smith without being so aware. They came to the conclusion, having heard the evidence, that it was permissible for this disciplinary panel to hear the matter, provided that they approached the matter in a fair way.

It seems to us that the tribunal, having directed its mind to the very issue which is now urged on us, reached a conclusion which it was entitled to reach, based on the material before it. We see no grounds for the suggestion that their conclusion, expressed in paragraph 17 of their decision was perverse. There is no doubt that the BUAV on the evidence before the Industrial Tribunal was in a state of turmoil. The position presumably is that had the members of the minority faction been represented on the disciplinary panel, one might have expected that the decision, if Mr Smith is correct that the members of the panel were motivated against him purely because he belonged to a different faction, would have been split on factional lines with a majority in favour of dismissal.

It seems to us that there is no ground in this case for assuming, as has been assumed by Mr Smith and Ms Downing on his behalf, that those who sat on the disciplinary panel carried out their duties otherwise than in accordance with their responsibilities to give him a fair and proper hearing. They arrived at a conclusion which was open to them on the evidence, having regard to the fact that they received a lot of evidence either way as to the alleged disruption. On that basis it was for the disciplinary panel to reach a conclusion, and not for the Industrial Tribunal to substitute its own decision for that of the disciplinary panel.

Accordingly, it seems to us, that there is no merit whatever in the suggested grounds of appeal. This was a difficult, sensitive matter which the Industrial Tribunal had to deal with. And speaking for ourselves, we consider that they have trod carefully in the way in which they have expressed their decision in this case. Therefore, we dismiss appeal.