Post Office v Hogan [1997] UKEAT 1309_97_1301

EAT

Post Office v Hogan

[1997] UKEAT 1309_97_1301 · 1997-01-13

MR JUSTICE KIRKWOOD : This is an preliminary hearing of an appeal by the Post Office against the decision of an Industrial Tribunal sitting at Stratford on 29th, 30th and 31st July 1997 that the respondent, Mr Hogan, was unfairly dismissed, but that Mr Hogan contributed to his own dismissal to the extent of 50%.

The background facts that led to the Industrial Tribunal case were in summary as follows.

On 24th June 1995 Mr Hogan, a 52 year old postman of 28 years service, absented himself from his place of work at Mount Pleasant Sorting Office; so too did two other postmen, Mr Mann and Mr Langdon. That was not in itself regarded as a particularly serious offence. But there was bad blood between Mr Hogan and Mr Mann. There was a fracas between them in the street. A passer-by intervened. Mr Mann and Mr Langdon went into the Black Penny Public House. Mr Hogan too went into the public house. There was a further scene and it is said that Mr Mann was struck by Mr Hogan.

A manager, Mr Wellard investigated. The police were called. Mr Hogan was prosecuted for an assault occasioning actual bodily harm. Mr Hogan having traced and called in his defence a witness, was in due course acquitted of that charge. The witness was a Miss Lindsay. Meanwhile, Mr Wellard obtained a statement from Mr Langdon and interviewed Mr Hogan and Mr Mann. Both were suspended. In interview neither was fully frank.

On 6th July 1995, Mr Wellard conducted a disciplinary interview with Mr Hogan. That same day he removed Mr Mann's suspension, though his investigation was not complete. Despite the fact that the investigation was not complete, Mr Wellard had, as the Industrial Tribunal found, made up his mind.

In subsequent enquiries Mr Wellard obtained a further statement from Mr Langdon. He considered written statements from Miss Lindsay and from Mrs White, the manageress of the public house, neither of which he considered relevant. In his enquiries Mr Wellard learned of Mr Mann's reputation for being aggressive. He sent Mr Hogan notes of the interview with him and received Mr Hogan's response on 19th July 1995. The Industrial Tribunal found Mr Wellard's evidence that he did not make up his mind until receipt of that letter inconsistent with his removal of Mr Mann's suspension on 6th July. Mr Wellard notified Mr Hogan of his decision to summarily dismiss him by letter of 21st July 1995.

What followed is set out in the Industrial Tribunal's extended reasons promulgated on 19th August 1997. It is in these terms:

"14 Mr Wellard prepared a memorandum summarising his reasons for reaching his decision and in which he records his conclusion that Mr Hogan committed "a serious, unprovoked assault upon Mr Mann". He expressed his opinion that Mr Langdon appeared to be very reliable with no axe to grind against either party. No mention is made of the evidence of Mrs White, Miss Lindsay or the evidence of the managers in relation to the previous problems. Mr Hogan exercised his right to appeal against the decision and an appeal manager, Miss J D Guise, was appointed to hear the appeal. As part of her preparation for the appeal she interviewed Mr Wellard. Her notes of that interview make it clear that Mr Wellard took no account of the statement of Miss Lindsay because it did not deal with the incident inside the public house and because he concluded that she was "obviously a friend of Mr Hogan". It then became clear that Mr Wellard had been greatly influenced by an unsolicited comment by Mr Hogan at the first interview when he recollected that Mr Hogan said "I will always beat Mr Mann in a fight". Mr Wellard confirmed in evidence that he did indeed place considerable weight upon that remark which he described as "chilling" and as evidence tending to support his belief that Mr Hogan was the aggressor. Miss Guise in her note, summarised Mr Wellard's reasons as based upon

i) Mr Hogan's pursuit of Mr Mann;

ii) the evidence of aggression;

iii) the statement by Mr Hogan above referred to;

iv) that Mr Hogan was a very fit and physical person a "playground bully"; and

v) evidence of lying.

15 Miss Guise interviewed Mr Langdon and Mr Mann and, at the appeals hearing, Mr Hogan. She wrote a letter to Miss Lindsay dated 15 August 1995 but she received not reply. The letter was sent by ordinary pre-paid post and was correctly addressed. Miss Guise made no further enquiries in relation to Miss Lindsay nor did she inform Mr Hogan that her letter to Miss Lindsay had gone unanswered. She made no enquiries of Mrs White, treating her evidence as of no relevance. She made enquiries of the police and sought, unsuccessfully, to obtain a copy of the medical report dealing with Mr Mann's injuries.

16 Miss Guise prepared a memorandum summarising the issues arising on the appeal, her enquiries, findings and conclusions. She chose to adopt the account of the matter offered by Mr Mann and she rejected all evidence inconsistent with that. She informed us that it was her belief that Mr Hogan had gone into the public house intending "to cause serious injury to Mr Mann". She rejected Mr Hogan's evidence of provocation and she identified discrepancies in Mr Hogan's account which had made it difficult for her to believe him. ..."

The Industrial Tribunal found that Mr Wellard and after him, Miss Guise, had accepted in its totality the evidence of Mr Mann and had disregarded the inconsistencies in that evidence which were manifest.

The Industrial Tribunal's approach to the case is set out in paragraphs 17 and 18 of the extended reasons. They said this:

"17 If the account of the matter offered by Mr Mann was properly to be preferred, then Mr Hogan had been guilty of a serious and unprovoked assault. On that basis, his long and good service record could not have saved him; summary dismissal was the inevitable result. If, however, Mr Hogan's account was to be preferred, then responsibility for the incident was much more evenly balanced. Mr Hogan could not have expected to escape 'scot-free'; he was absent without permission from his place of duty and, in a public place, he was involved in the most unseemly incident with another postman. On that basis that he was provoked, however, he was reasonably entitled to expect that Mr Mann would be dealt with in a very similar fashion, that the provocation outside and inside the public house would be taken into account in mitigating the gravity of his offence and that his service record might tip the balance in favour of some penalty short of dismissal. It was crucial therefore that Mr Wellard, whose responsibility it was to conduct both the investigation and the disciplinary hearing, should take a fair and balanced view of the evidence and accord the proper weight to it. We have no doubt that Mr Wellard did reach a bona fide conclusion as to the conduct complained of but we do not consider that it was a conclusion that he was reasonably entitled to reach. His approach to the evidence of Mr Mann and Mr Langdon can be characterised as an uncritical acceptance of it, in marked contrast to his approach to the evidence of Mr Hogan which was to regard it critically and with great suspicion. If he noticed the various discrepancies between the statements of Mr Mann and Mr Langdon, he took no account of them. His approach was flawed in the following respects: ..."

The tribunal then sets out findings of fact made by it and itemises in six comprehensive sub-paragraphs a considerable number of matters casting doubt on Mr Mann's credibility and reliability. Having done that, the tribunal said:

"These, taken together, were serious failings in the investigative process and they render unsound the conclusions actually reached."

The Industrial Tribunal then considered whether the defects it had identified in the disciplinary process had been cured upon appeal. The tribunal said:

"19 It is common ground that an appeal can cure procedural defects leading to the original decision to dismiss. We turn, therefore, to consider whether or not those defects, identified above, were cured on appeal. Our conclusion is that they were not. Miss Guise gave no consideration to those matters such as might have tended to reflect doubt upon the truthfulness and accuracy of Mr Mann's account. She saw nothing of relevance in Mrs White's statement and she too wholly discounted the evidence of Miss Lindsay. Indeed, Miss Guise went further in relation to the evidence of Miss Lindsay and she employed it as a factor telling against Mr Hogan. She concluded that Mr Hogan had been less than frank in claiming that he did not know Miss Lindsay when, as she saw it, the plain evidence of the production of her statement made it clear that he did. It was a wholly unwarranted conclusion. Mr Hogan explained at the appeal hearing that he had noticed the cyclist and recognised her. He recognised as someone from a sports and leisure facility he was in the habit of attending. That recognition allowed him to approach Miss Lindsay when he next saw her at the facility and that had led to the making of a statement. He did not 'know her', as that expression is most commonly understood, and his suggestion to that effect was not an inappropriate way in which to describe the relationship. ...

20 We have had the advantage of hearing from Miss Lindsay and we found her a credible and reliable witness. We can only conclude that Mr Wellard, had he troubled to approach her, would have reached the same conclusion. We do not consider that Miss Guise' efforts to contact Miss Lindsay served to correct that defect. Whilst a single letter written to her might reasonably had been judged sufficient, she should have informed Mr Hogan of the lack of response before drawing a negative conclusion. ..."

The tribunal then referred in two further paragraphs to other matters that caused it disquiet, and then said:

"23 The conclusion we reach therefore is that Mr Hogan was unfairly dismissed by the respondents for a reason related to his conduct. We find it impossible to conclude that a fair procedure would have led to no different result. There was so much to cast doubt upon the truthfulness and accuracy of Mr Mann's account that we consider the probability to be that a fair and proper procedure would have led to a different result. ..."

It follows from what I have said that the decision of the Industrial Tribunal turned upon its own findings as a result of hearing oral evidence.

The first ground of appeal that the Post Office seeks to argue is that the Industrial Tribunal failed properly to consider whether or not the appellant's decision to dismiss the respondent was one which that it was open to a reasonable employer to take in the circumstances of the case. Instead, the tribunal substituted for the appellant's view it own view of the evidence.

That is not strictly correct, as we read the extended reasons, which we remind ourselves must not be dissected line by line for detailed analysis, but must be taken in the round. The key points were that Mr Wellard reached a hasty conclusion before completing his investigation and that his investigation was itself incomplete and unsatisfactory. The investigation by Miss Guise on appeal failed to cure the defects in Mr Wellard's first investigation and so the dismissal was unfair because it flowed from conclusions reached by an inadequate investigation. That is not, as we see it, a substitution of view by the Industrial Tribunal, but a conclusion by the tribunal that no proper investigation was carried out at all.

The second ground of appeal is that the tribunal's assessment of the respondent's contributory fault at 50% was so low that no reasonable tribunal properly directing itself could have arrived at this assessment.

In that regard, what the tribunal found in its extended reasons was this:

"23 ... It is however clear that Mr Hogan must bear a significant contribution to his dismissal. He was aware that the ill feeling between himself and Mr Mann could lead to physical confrontation and, notwithstanding the provocation offered him, he could and should have walked on his way. By going after Mr Mann, not once but twice, and however genuine his motive for doing so he was placing himself in a situation in which physical contact was very likely to occur. Were it not for the fact that Mr Mann escaped scot-free, we might have concluded that the admitted conduct would have led to his dismissal. It is however clear from the evidence of Mr Wellard and Ms Guise, that the respondents would have taken account of the existence of provocation, had they found it to be present, and then given due weight to Mr Hogan's service record. It could not be said that dismissal would certainly have followed. Doing the best we can, we conclude that Mr Hogan must bear a contribution of 50% both to his entitlement to a basic and to a compensatory award."

This finding of the Industrial Tribunal flows from its own findings of fact, and as a finding made in the exercise of discretion. We cannot possibly say that the finding of the tribunal in the exercise of its discretion was so far outside the conclusion properly available to it as to be one that can be impugned as being an error of law.

Thirdly, the appellant seeks to argue that:

"The tribunal held that a fair and proper procedure would have led to a result other than dismissal. This conclusion was perverse by reason of factors listed above and because the tribunal appears to have arrived at it because it considered Mr Mann had "escaped scot-free"."

The passage from the extended reasons to which I have just referred, make clear that that was one, but only one, of a number of considerations that the Industrial Tribunal had in its mind. Again, it is quite impossible for us to reach any conclusion that there is a proper argument of perversity in that regard.

For those reasons this Appeal Tribunal is unanimously of the view that it is quite unpersuaded on this preliminary hearing that there is an arguable case that the Industrial Tribunal made any error of law. This appeal will be dismissed at this stage.