Khalil v Colonel Foods Ltd (t/a Allen Food Services Ltd) [1997] UKEAT 103_97_1106

EAT
Khalil v Colonel Foods Ltd (t/a Allen Food Services Ltd)
[1997] UKEAT 103_97_1106 · 1997-06-11

JUDGE J HULL QC :

This is an appeal to us by Mr Hussam Khalil. He was employed as a manager at one of the Fried Chicken outlets run by Colonel Foods Ltd t/a Allens Fried Chicken in Rochdale.His employment began (not, I think, as manager; he rose to be a store manager) on 12 October 1992 and it ended on 19 January 1996. He applied to the Industrial Tribunal saying that he had been unfairly dismissed and asking for compensation for that dismissal and the response of the employers was that he had been dismissed for gross misconduct.The Industrial Tribunal sat at Manchester, under the chairmanship of Mr Glossop with two industrial members, on 7 October 1996 and they rejected the complaint. Their Decision is not a long one and we refer to it for the facts.At the material time there was only one Director in this Company of the Respondents, a Mr Atkinson and he, it was, who looked into the matter and conducted a disciplinary hearing and, after that, an appeal.The Tribunal say that both Mr Atkinson and Mr Allen, who was at the material time a Consultant employed by the Company, had put the Respondent's evidence on affidavit. They also, of course, heard Mr Khalil and his witnesses and they made a very important finding of fact. Where there was a conflict of evidence the Tribunal preferred the evidence of the Applicant, since that of the Respondents was not tested by cross-examination.They then went on to find the facts in paragraph 6:
"The applicant was employed as the manager of the take-away food store known as Allens Fried Chicken at Rochdale. He had been a good and competent manager with no serious blemishes against his name. In December 1995 allegations were made to Mr Atkinson and Mr Allen by members of the applicant's staff that he was taking time off in the evenings when he should have been working. On the 15 December 1995 the applicant left work two hours during his evening shift and went home. Unbeknown to him he was watched by an enquiry agent employed by the company for this purpose. The applicant subsequently filled in his time record for the week in question showing that he had been at work until 3 am on both Thursday 14 December and Friday 15 December when he had, in fact, left work sometime between 1 and 1.30 am on the Thursday and had been absent for two of the nine hours which he claimed on the Friday."
Those were their findings of fact. The Tribunal said:
"7. There was no financial benefit to the applicant in this because he was paid a flat rate, £350 per week. The Tribunal find it was a serious breach of trust because the company was entitled to expect him to fill the forms in correctly in his position of manager. On the Thursday evening he consequently had to permit a 19/20 year old employee to lock up which meant giving him a spare key. This was strongly complained about by the respondent company. The Tribunal accept Mr Khalil's evidence he did have a general power to authorise somebody to lock up under his authority as manager."
They say in paragraph 8:
"8. The applicant went sick on the following Tuesday and obtained a sick note for three weeks. The Tribunal is quite satisfied that this sickness was genuine."
And they record that, thereafter, the company set in motion their disciplinary procedure.So up to that point the Tribunal had made findings very favourable to Mr Khalil. They accepted his evidence on an important matter of conflict, about the employee being allowed to lock up; they were in favour of Mr Khalil and, in so far as he went sick, they found that the sickness was genuine. They had not heard Mr Atkinson and Mr Allen in person and they therefore were constrained to accept what Mr Khalil told them and were, no doubt, happy to be able to do so.They go on to discuss the way in which the employers dealt with it, which of course was a vital matter:
"9. It was, however, clear that the applicant did know about the allegations being made by the staff because he wrote a letter on the 29 December saying that they were a pack of lies and there was a conspiracy by ... [a family, whom they name] to get rid of him. ..."
So that was an important matter which the Tribunal had well in mind. They continue:
"There was an investigation meeting on the 9 January by which time the applicant was better, which was conducted by Mr Allen. Notes of this meeting which were taken by Mrs Taylor are accepted to be in general an accurate account of what happened, although without doubt, although some comments were missed out, but nothing the Tribunal finds significant.
10. The meeting was not particularly conclusive because for some reason which the Tribunal does not understand the full allegations were not put to the applicant and no mention was made of the enquiry agents observations or, indeed, the statements taken by the respondents solicitor from the staff merely allegations of a general nature were made except in connection with the specific date, 14 December. As a result of this the applicant admitted, as indeed he had no alternative but to do, that he had left early on the 14th and he also said that he had probably done this on at least one other occasion."Those were, of course, the findings that he had done it on two days. This was not an entirely satisfactory meeting, in the view of the Industrial Tribunal, and they noted that. They did not go further and say that it was unfair, or that trickery was involved; but they were not entirely satisfied. The importance of it is this; that this was an enquiry meeting, not a disciplinary meeting.The rules of natural justice, as appropriate to the case, undoubtedly apply to disciplinary meetings. The essentials are that the employee must be told quite clearly what the matters being held against him are; what the charges are (to translate it into language of the courts) and he must also have a fair and proper opportunity of dealing with them. He must be given reasonable details so that he can deal with the charges made against him and he must be heard and the employer must listen with a fair ear. The employer must not be prejudiced so that he does not listen fairly to him. The employer of course is (in a sense), as was pointed out to us by Mr Heraghty, a judge in his own cause. Inevitably that is so, but that does not mean that he is not to be fair. Those are the essentials.Then, as a result of the disciplinary hearing, if the decision is taken to discipline, that must be a decision which is arrived at fairly and must be within the range of responses of a reasonable employer. Of course, different employers may treat matters differently. This was not such a disciplinary meeting and it was not entirely satisfactory, but Mr Khalil did make admissions.Then they go on to consider the disciplinary meeting:
"11. The applicant was suspended ... and a disciplinary meeting was arranged for 15 January when the applicant was told dismissal was a possibility. The applicant before this meeting was fully aware of all the points that were made against him [that is a vital finding]. "
How was the disciplinary meeting conducted? They go on with that:
"12. At this disciplinary meeting, the applicant answered all the questions or nearly all by asking a question of his own and the meeting was adjourned as he had become distressed without any decision being made. He was then asked to write a letter setting out his comments which he did. As a result of these investigations and the various meetings which were fully documented, Mr Atkinson elected to dismiss the applicant by a letter dated 19 January 1996 which clearly set out the three reasons for the dismissal: 1) neglect of duties by being absent from your store when he should have been at work; 2) failing to secure the safeguard of the security of the store by giving keys to delegate security matters to unauthorised staff, and 3) falsely completing company time records. There was subsequently an appeal which was only by way of mitigation and which was rejected."
Was that fair? Was that within the range of responses of a reasonable employer? Was the meeting conducted fairly? The Tribunal go on to consider that:
"13. From the facts before the Tribunal the applicant was certainly at fault in items 1) and 3) ... On item 2) [in allowing his junior to lock up] the Tribunal finds that he was entitled to the benefit of the doubt and that he did have authority to permit Garry Rawlings to lock up in certain circumstances. The Tribunal has first to ask itself as to whether the dismissal was for an admissible reason and they are quite satisfied that it was, ie conduct. They then have to go on to see whether such dismissal was fair within equity and the substantial merits of the case. They also have to be fully aware that it is not for them to substitute the decision that they might have come to if they had been the management in this particular matter rather to see if the decision to dismiss was within that of a reasonable management."
Those directions to themselves appear to us, as a matter of law, to be impeccable. They were quite right to put it like that to themselves. And what were the conclusions? They say in paragraph 14:
"14. The Tribunal have not been entirely happy with the procedure followed by the respondent company, in particular the failure to put the various points in a specific way. But nevertheless, on the fundamental question there was no dispute on the facts. The applicant had been absent from work in an unauthorised way and he had compounded this by filling in a time sheet to show that he had been at work"
And, as they had said above, he had admitted those matters, having no alternative.
"15. The sole question before the Tribunal, therefore, was whether a reasonable management could have dismissed for such offences. The Tribunal are unanimously of the opinion that they could. A manager of an independent store is expected to keep the records faithfully. Mistakes can be made by anybody but there was no doubt in the Tribunal's mind that the applicant deliberately, on two consecutive days, falsified records which he knew the company were going to look at. The company was entitled to take an extremely serious view of such falsification and in those circumstances the Tribunal are quite satisfied that dismissal was fair and the application is therefore dismissed."
Then there is the Notice of Appeal in which Mr Khalil had the advantage of being helped by the Citizens Advice Bureau and a number of grounds were taken by him. First of all, criticism is made of the investigation meeting. For the reasons I have indicated that was not a vital matter. If the Tribunal had found that he had been tricked, deceived, or ill-treated at that investigation meeting, that would have been quite different. What they found was that it was unsatisfactorily vague; they took that into account and it was therefore not the vital matter for them; the vital matter was the disciplinary meeting.Then the second complaint is:
"The Tribunal also erred in law in that they failed to have recourse to the principle of natural justice in the conduct of the disciplinary hearing on 15 January 1996 in that the Respondents' record of that meeting shows that specific allegations were not put to him, neither was he shown or told about the evidence of the Inquiry Agent."
That is expressly contraverted by the Industrial Tribunal. By the time of the disciplinary meeting he knew exactly what was alleged against him and when he was asked questions about it, he answered by asking questions and became distressed. He was then allowed to set out his case on paper and the Tribunal considered all that and so did the employers.Then the Appeal says:
"The Tribunal failed to make any adequate finding of fact in relation to the complaint by the Appellant in relation to the appeal hearing and in particular that the hearing was conducted by Mr Atkinson who also conducted the disciplinary hearing."
We have already commented on that. Mr Atkinson had conducted the disciplinary hearing, he was the senior man. It would certainly not have been satisfactory after that if a junior man, a man junior to Mr Atkinson, had conducted the appeal hearing which was confined to the question of penalty.We think that the essential matter which the Tribunal directed their minds to was the disciplinary hearing. Of the appeal hearing, it is not sufficient to say that that was a breach of natural justice and that it was automatically unfair and the Tribunal had those matters well in mind in saying that it was fair.Then it is suggested that the Tribunal's decision was perverse. Of course, it would have been possible, perfectly possible, for the Tribunal to find that the penalty was excessive, that the disciplinary hearing was unsatisfactory and unfair; perfectly open to them to find those matters because they are the judges of fact and there were matters which required to be looked into here. It was not an open and shut case. Having considered that, they were satisfied with it. It seems to us that the matters which are raised in the Notice of Appeal, and the matters which are raised in rather different and fuller form in the skeleton argument of the Applicant, are all matters which could have been, should have been, and, we think, were put to this Industrial Tribunal.The Industrial Tribunal are not bound to set out and reject all matters which are put to them in argument by the Applicant and his representative. What they are bound to do is to state the essential grounds of their decision. We do not think that this Tribunal overlooked any of the matters which are put to us. All of these are matters which, in the first instance, were for them.The question for us is whether, having read what is said by the Tribunal, having looked at the Notice of Appeal and having heard what is urged upon us by Mr Heraghty, we think it is fairly arguable that there are any grounds, arguable grounds, for saying that this Tribunal erred in law, either because they reached a decision which is manifestly irrational, on what was put before them, or because they erred on some principle of law, misstated the law or plainly misapplied it. Having heard Mr Heraghty, to whom we are very grateful, we have all come to the conclusion that there are here no grounds of law which are fairly arguable.In those circumstances, the appeal being in our list under our Practice Direction, we cannot allow it to proceed any further and we must dismiss it now. That is the decision of us all.