Southdown Housing Association v Barnard [1997] UKEAT 1412_96_2706

EAT

Southdown Housing Association v Barnard

[1997] UKEAT 1412_96_2706 · 1997-06-27

JUDGE J HULL QC :

This is an appeal to us by employers, the Southdown Housing Association, against the decision of an Industrial Tribunal sitting at Brighton on 20 September 1996 under the chairmanship of Mr Simpson, with two industrial members.

That Tribunal sat to hear a complaint of unfair dismissal by Mrs Maureen Ann Barnard, a lady in early middle years, who had served the employers as Housing Support Manager for something just over two years.

The Housing Association is a specialist one. It provides sheltered housing for vulnerable people and the matters out of which this case arose concern a lady who is referred to as "N". N was a lady who had been, and was still apparently, an alcoholic and who suffered, perhaps as a result, from anxiety and depression, so she was a disturbed person and a person to be pitied, and, of course, very much the sort of person who should be cared for by this specialist association. We go straight to the decision of the Industrial to record what happened, because the points raised on this appeal are, as they have to be, points of law.

The Tribunal found that in November 1995 N was visited by Mrs Turner, the Housing Services Manager, and what she was told by N on this visit was that furniture which was being stored there in fact belonged to Mrs Barnard and that Mrs Barnard had borrowed money from N and, fairly obviously more serious, that on a weekend when Mrs Barnard was supposed to be on duty, on call, she had been away at a football match and had asked N to assist her by going across and looking at the phone to see whether there had been any calls for her and matters of that sort. If that were true, Mrs Barnard had been absent quite without any authority and, bearing in mind that the tenants of the housing association were people who needed shelter, who were not fully responsible people, would be a serious matter, certainly in the view of the employer, who is the person who mattered in this context.

The Tribunal record that the Manager reported the concerns to Mr Whitehouse, who is a Director of the Housing Association. They both confronted Mrs Barnard with these allegations. She did admit that some of her furniture was stored temporarily with N, but she denied the remaining allegations.

Then Mr Whitehouse decided to look into the matter further. He interviewed N at length. Part of the interview was tape recorded and a transcript of the interview was produced. Then there was a disciplinary hearing. As I say, there had been an informal meeting with Mrs Barnard, who had denied these matters.

At that disciplinary hearing, of which Mrs Barnard was given notice, there were five allegations of breaches of discipline. First, inappropriate involvement between herself and N. Secondly, approaching N to borrow money on two occasions. Three, storing personal property which was alleged to create a fire hazard at N's property. Then allowing N to carry out personal laundry, do washing for Mrs Barnard and a friend, and finally, this alleged incident when Mrs Barnard, it was said, was away when she should have been on call.

Mrs Barnard, rather exceptionally perhaps for a disciplinary hearing, attended with her Solicitor, who we are told is very capable in these matters and he, Mr Loader, said, "I want N here so that her evidence can be challenged". Mr Whitehouse refused to allow that. He concluded that it would be wrong to subject N to any form of cross-examination, having regard to her mental and medical condition. In coming to this conclusion, Mr Whitehouse took into consideration the fact that N had been admitted to hospital suffering from an alleged drug overdose during the weekend following her initial discussion with Mrs Turner, the Manager.

Then the Tribunal record, at paragraph 3, without comment:

"(i) as a result of the respondent's refusal to arrange the attendance of N at the disciplinary hearing, on the advice of her solicitor, the applicant maintained a bare denial of the allegations made against her and declined to give any explanation."

Pausing there, although an employer when conducting a disciplinary enquiry is undoubtedly required to behave fairly, he is not required to conduct a forensic hearing, a court-style hearing, in which witnesses are produced for cross-examination. He is not required to permit the attendance of legal representatives. What he is required to do is to be fair. That involves, of course, giving proper notice to the employee of what is alleged against the employee, with such details as will enable the employee to deal fairly with the matter, and then giving the employee concerned a proper opportunity and a fair hearing to say what the position is, and of course that may involve adjournments, it may involve providing materials to assist the employee and, certainly, it will involve having somebody there for the employee, if the employee asks for help. It does not go further than that and then the employer must, of course, approach the question with which he is faced, his decision on the facts and what he is going to do, in a fair-minded way, without malice or spite or anything of that sort.

Then the Tribunal record:

"(j) Mr Whitehouse took into consideration the tape recorded interview which he had obtained from N, his own observations of N; two further written statements ... which were anecdotal in nature, and the investigations and observations by Mrs Turner [the Manager]. He decided that he was satisfied about the truth of the substance of the allegations made by N and that they were so serious that summary dismissal was justified and that, in the circumstances, any lesser disciplinary sanction would be inappropriate."

And about that he said something very important:.

"I thought of a range of alternative responses but without the co-operation of Mrs Barnard [who had refused on the advice of her Solicitor to say anything] it was not possible to consider them. I considered all the issues. Some were of more concern than others."

Then there was a question whether any of the complaints individually would have amounted to gross misconduct, and it was clear to the Tribunal that he had considered all these matters.

The Tribunal then directed itself impeccably, it seems to us, in law, that it was for the employers to decide what to do and that it was for the Tribunal to look to see whether the reaction of the employers and the conduct of the employers fell within a reasonable range of responses. Then they went into their conclusion. They said, among other things, at paragraph 5:

"(d) the findings of fact made by Mr Whitehouse in respect of grounds 1, 2, 4 and 5 were based substantially, if not entirely on the accusations made by N, which were denied by the applicant and which had been unchallenged as a result of Mr Whitehouse's refusal to permit N to be questioned".

That seems, with respect, a leap of a very extensive sort. It is true that N could not be cross-examined by the capable Solicitor, Mr Loader, but there was nothing whatever, apart from the advice of her Solicitor, to prevent Mrs Barnard going into lots of details with the employer and trying to satisfy him, either that these allegations were entirely unfounded, or that insofar as they were well founded, they were not so serious as they appeared to be and nothing to prevent her from trying to assure the employers about her future behaviour. None of that had been done. All this is put down to the decision, which was well within, it seems to us, Mr Whitehouse's right, and, indeed, duty in his position, to say whether he should call N, this unfortunate woman, to be cross-examined by the Solicitor.

The Tribunal go on:

"Mr Whitehouse was aware that N suffered from alcoholism, anxiety and depression but did not seek independent corroborative evidence."

The incident of absence had happened six months or more before. One asks oneself, "What corroborative evidence the Tribunal had it in mind to say should have been sought?". One would have expected, if they considered that an employer, who after all is not a lawyer, not a judge, should have looked for corroborative evidence, they would say what it was that he had neglected to do; perhaps something quite obvious and sensible, which in fairness the employer ought to have done, perhaps which he had been asked to do, but which he had failed to do. They do not say that. They refer particularly to the weekend.

They go on to their vital findings. They say:

"(g) whilst the tribunal were satisfied that Mr Whitehouse genuinely believed the accusations of N to be true, the tribunal concluded that no reasonable employer, acting reasonably, when investigating such a serious accusation against an employee holding the position of the applicant would, for all practical purposes, rely entirely upon the wholly uncorroborated statements of a person suffering from a mental health condition, known to be alcoholic and suffering from anxiety and depression. At least some attempt should have been made to have tested those statements."

First of all, taken literally, that is incorrect. Mr Whitehouse had spent much time, as we have been told, trying to test these statements of N himself with Mrs Turner, the Manager. They had clearly gone through it and through it with N, but insofar as it was alleged that they had failed to seek corroboration, one wonders what it was that the Tribunal had in mind because they certainly do not say.

We would just say this, and this is not really, I think, in issue, that it is for the employer to say what evidence he believes and what he does not believe. If he is left in doubt, if he cannot make up his mind, of course he must say so and then he cannot fairly proceed at all, but if he does believe a witness it is not for anybody else to say to the employer, "You were wrong to believe that witness", or "You should not have believed that witness without corroboration". That is a matter for the employer, proceeding fairly; to say what evidence he does and does not believe.

We know of no rule which prevents an employer from acting upon the evidence of one witness. Clearly, any fair-minded person will say to themselves, in considering whether to believe the evidence of one witness, "Well this is only one witness and I wonder if I can safely act on that witness's evidence. I wonder whether I ought to accept it?". That is the question the employer must ask himself. Here the employer did, and genuinely did, accept the evidence of N.

Then the Tribunal go on:

"(h) the Tribunal were also concerned about the fairness of the investigation process and the decision by Mr Whitehouse to refuse to arrange for N to attend either the disciplinary hearing, or the later appeal hearing. Mr Whitehouse contended that only someone experienced in social work, as he was, was capable of questioning N in a way which would have proper regard for N's needs and that it would have been wholly inappropriate to have permitted Mr Loader, the applicant's solicitor, to question N, or for N to attend a formal investigation."

That was a matter first and foremost for the employer acting, of course, fairly. If he was malicious then the Tribunal would be entitled to say so - "He was not being fair". But it was, on the face of it, for the employer, with particular responsibilities here to N, to say whether he should allow N to be cross-examined. Certainly, it is not essential to fairness that N should be produced at the hearing. What does the Tribunal say about that? So far from relying on what they said themselves about the scope of their duties, dealing with this statement by Mr Whitehouse, whose sincerity they accept, they say:

"The tribunal rejected this contention and concluded that if N was sufficiently robust to be capable of being interviewed on tape by Mr Whitehouse for an admitted 1½ hours, within a day or so of having been discharged from hospital following her alleged over-dose incident; and subsequently was capable of being interviewed by Mr Barry, the respondent's solicitor, during the preparation of these proceedings, that there were insufficient grounds for denying all efforts by Mr Loader sensitively to probe the veracity of N's accusations."

It seems to us that the Tribunal are putting themselves in the place of the employer, and saying whether it was right for N to be brought to the hearing or not, a matter which was for the employer and certainly not for the Tribunal. There is most certainly no rule of law that any witness is bound to be put forward for cross-examination. No employer is bound to expose his employees to that, although of course he must convey the substance of what they say to the person who is to be disciplined.

Then they go on, having made what seems to us a serious mistake there, to say:

"(j) It therefore followed, that upon the facts of this particular case, and upon the evidence presented to the tribunal, the respondent has been unable to show that the reason for the dismissal, or the principal reason for dismissal fell within subsection (2) of section 98 of the Employment Rights Act 1996."

Mr Evans, who has helped us as much as he can, does not seek to support that. It is plainly wrong. It is quite plain that the employer had satisfied them that the reason was misconduct and the question for them, therefore, was whether the employer had acted reasonably.

We have pointed out what appear to us to be certain errors. In view of those errors, this decision cannot stand. There is an error in approach, and an error in conclusion, and in those circumstances, we think that this matter will have to be remitted by us for trial by an Industrial Tribunal differently constituted. Needless to say, that Tribunal will try the matter afresh without any reference, we hope, either to their own colleagues' previous hearing, or to our observations. It will be their duty to do justice to the complaint in accordance with the law.

We have detected certain errors of law and in those circumstances, notwithstanding what has been said by Mr Evans, it appears to us that we must remit the matter for a new hearing.