Goradia v London United Busways [1997] UKEAT 1192_96_1703

EAT

Goradia v London United Busways

[1997] UKEAT 1192_96_1703 · 1997-03-17

MR JUSTICE KEENE : This is a preliminary hearing to determine whether there is an arguable point of law arising on this appeal which justifies allowing the matter going ahead to a full hearing.

In this case an Industrial Tribunal sitting at London (North) decided on 11th September 1996 that the appellant had not been dismissed constructively or otherwise, and that his complaint of unfair dismissal therefore failed.

Mr Goradia had been employed by the respondent as a bus conductor. The respondent had received reports from plain clothes officials containing a number of allegations about poor performance and other conduct on the part of the appellant in the course of his duties, including one allegation of taking a fare without giving a ticket. He was suspended after an initial meeting on 11th November 1994 at which his representative from the Transport and General Workers Union, Mr D'Cruz, was also present. There was a further meeting on 14th November 1994 and then a disciplinary hearing was arranged for 22nd November. The appellant had had the reports of the plain clothes officials read to him at the first meeting, and was told of the allegations against him by a letter dated 17th November 1994. But neither he nor his union representative was given copies of those reports until one hour before the disciplinary hearing actually began on 22nd November.

That hearing took place in the office of the operating manager, Mr McLellan. The appellant was represented by Mr D'Cruz, and the branch chairman of the TGWU was also present on what was described as a watching brief. Two of the plain clothes officials gave evidence. Their evidence was adverse to the appellant. Before the other two plain clothes officials were called to give evidence and before the appellant had had an opportunity to give his evidence, his representative Mr D'Cruz asked for an adjournment. The request was granted and the appellant and Mr D'Cruz and the branch chairman of the union retired to the union office to hold discussions. Consistent with what the tribunal described as normal practice, the manager, Mr McLellan, did not ask Mr D'Cruz to spell out why it was he sought an adjournment.

Once in the union office, Mr D'Cruz told the appellant that the evidence against him was overwhelming and that there was no chance that he was going to win. He told the appellant he was bound to be dismissed for gross misconduct and if that were happen he would be blacklisted and would find it impossible to obtain other employment. He told the appellant that the management had put two options, that either the appellant would be dismissed for gross misconduct or he could resign of his own accord, in which case he would get a reference. Mr D'Cruz then produced a pro forma resignation letter which was kept in the union office. In the light of what the appellant perceived to be extreme pressure from management being conveyed through Mr D'Cruz, he signed the resignation letter. Then Mr D'Cruz returned on his own to Mr McLellan's office and asked him if he, Mr McLellan, would accept the appellant's resignation. Mr McLellan indicated that he would. Mr D'Cruz did not give the appellant any copy of the resignation letter.

The tribunal expressed a number of concerns about the way in which the respondent handled the disciplinary procedures, including the failure to provide the appellant with copies of the reports until just one hour before the disciplinary hearing. The tribunal said this:

"10 Had the Applicant been dismissed, the Tribunal would have found that the dismissal was unfair. As for the conduct of the Union officials, the Tribunal is in no doubt that the initiative for the resignation option came from Mr D'Cruz. It was he, and not the Applicant, who had asked for an adjournment in the course of the disciplinary hearing. It is clear that at the stage where he asked for an adjournment, Mr D'Cruz took an unduly pessimistic view of the Applicant's chances of escaping dismissal and he acted in what he perceived to be the Applicant's best interests in pressurising him to resign. We are satisfied that in order to persuade the Applicant to resign, he did put it across to the Applicant (as perceived by the Applicant) that the case against him was so strong as to be hopeless and that dismissal was inevitable if he did not resign. The Applicant, in his stressful state succumbed to what he perceived to be pressure emanating from the Respondent. He now genuinely regrets the fact that he resigned. This is a classic case of "act in haste, repent at leisure.""

However, the tribunal concluded at paragraph 11, the final paragraph of their decision as follows:

"11 There is however no evidence of any pressure on the part of the Respondent which led to any forced resignation by the Applicant. The pressure was wholly from the his own Union representative."

Consequently they found that the appellant had not been dismissed by the respondent, constructively or otherwise.

The grounds of appeal in this case, which have been settled by Counsel, concentrate on the fact that the tribunal found that Mr D'Cruz told the appellant that the management had put forward the two options of dismissal for gross misconduct or resignation. It is said in those grounds that the tribunal did not make a finding of fact on whether Mr McLellan for the management had indeed so informed Mr D'Cruz or not, and that this amounts to a failure to give adequate reasons for its decision. If Mr D'Cruz was telling the truth in that respect, then it is argued in the Notice of Appeal that it was perverse of the tribunal to find that there was no evidence of any pressure by the respondent on the appellant to resign.

Mr Goradia has appeared on his own behalf this morning and has argued his case with persuasiveness and tenacity. He has asked us to consider those grounds in the Notice of Appeal as well as what he has said to us orally today.

The tribunal undoubtedly found that there was no evidence of any pressure from the employer leading to any forced resignation. That in itself is a finding of fact, and this tribunal can only interfere with it on very limited grounds. The meaning and significance of that finding is made even clearer by the next sentence in the decision where the tribunal expressly says that the pressure came wholly from the appellant's union representative. That is consistent with other passages in the decision which indicate that the tribunal accepted the respondent's version of the conversations between Mr McLellan on the one hand, and the appellant's representative, Mr D'Cruz, on the other. At the end of paragraph 7 of the decision the tribunal said this:

"7 ... Equally. the Tribunal accepts Mr McLellan's version of his conversation with Mr D'Cruz, which took place in the Applicant's absence, some 20 minutes after the adjournment."

What was that version? The tribunal does not spell out at that stage what it was as such, but it had earlier set out the respondent's case as summarised in the IT3, namely, that Mr McLellan had not indicated that he would dismiss the appellant or that he told Mr D'Cruz that if the appellant resigned he would get a good reference. What the tribunal found was that there was a conversation between Mr D'Cruz and Mr McLellan after the appellant had signed the resignation letter. In that conversation Mr McLellan simply agreed to accept the appellant's resignation.

When the decision is read as a whole and those various passage to which we have just referred are born in mind, it becomes quite clear that the tribunal found that it was Mr D'Cruz and not Mr McLellan or anyone else on behalf of the management who originated the choice between resignation and dismissal. In short, that choice was presented to the appellant by the union representative on his own initiative and it did not come from management.

We cannot see that there is any perversity in the tribunal's finding that there was no evidence of management pressure forcing a resignation on the appellant. We cannot see any failure by the tribunal to give adequate reasons for its decision.

The appellant had expanded on those points himself this morning, and he has, in effect, added one further point which he has asked us to consider. We say one because the two other points which he had put forward are those we have already dealt with arising from the Notice of Appeal.

The additional point which Mr Goradia has himself advanced this morning, is that relevant documentation was not available at the hearing, in particular the disciplinary rules and his resignation letter were not available and those were relevant documents. That was a matter which was raised by Mr Goradia in his detailed grounds when seeking a review of the tribunal's decision. The tribunal said this about that particular ground:

"The absence of the Disciplinary Rules did cause concern to the Tribunal (Paragraph 9(3) of the decision). However, the crucial issue in the case was not whether there had or had not been any procedural unfairness in the decision to dismiss: the crucial issue was whether there had been a dismissal within the meaning of section 55 of the 1978 Act."

We have to say that we entirely agree with that point made by the tribunal. We cannot see that any further ground of appeal arises on that procedural aspect in the light of the tribunal's finding which is unchallengeable that the appellant had not been dismissed by his employer.

The upshot is that Mr Goradia may well have been badly served by his union representative. The Industrial Tribunal seems to have thought so, and we can see the force of those comments made by the tribunal. Whether he has any redress against his union or not is not for us to say. But the end position is that none of those complaints about the bad advice received from his union representative can turn the appellant's resignation into a constructive dismissal or any other kind of dismissal, or make the tribunal's decision in any way wrong in law.

While we have some sympathy for Mr Goradia, given the treatment which he has received in the course of this matter, we cannot find any arguable point of law which justifies allowing this appeal to go any further. In those circumstances we have no choice but to dismiss this appeal.