Dann v C Q R Components Ltd [1997] UKEAT 569_96_0303

EAT

Dann v C Q R Components Ltd

[1997] UKEAT 569_96_0303 · 1997-03-03

JUDGE N BUTTER QC :

This is an appeal by Mr Dann in respect of a decision of the Industrial Tribunal held at Liverpool on 1 February 1996. The Extended Reasons for their decision were sent out on 16 April 1996. The appeal is against the majority decision of the Tribunal which held that the Applicant's claim that he was unfairly dismissed failed.

The Applicant claimed that he was unfairly dismissed for smoking and the background to the case can be stated comparatively shortly. The employers had introduced a no smoking policy in about August 1993. In May 1995 there was a fire and, as a result, Mr Langan, the Chief Executive, issued a Team Briefing which included the words "All three company sites are non-smoking areas and anyone caught smoking on company property will be instantly dismissed". The Applicant was aware of this directive.

An important implication of that Team Briefing is that it follows that any allegation of smoking in the premises was extremely serious in that, if established, summary dismissal would take place, or would be likely to take place, regardless of the length of service or character of the employee.

At about 12.20 pm, not am, as the Tribunal stated in paragraph 2.3 of their Reasons, on 30 June 1995 Mr Langan, the Chief Executive, was driving his car around the perimeter of the factory and he saw, or believed that he saw, the Applicant was smoking a cigarette at or near the doors to the regrind area. He, Mr Langan, immediately telephoned the Works Manager, Mr Jones, reported what he had seen, or believed he had seen, and told Mr Jones that disciplinary action should be taken forthwith. Mr Jones put the allegation that Mr Langan had made to the Applicant, who admitted that he had smoked a cigarette across the road at noon, which would have been permissible, but denied that he had been smoking outside the regrind doors and suggested that Mr Langan may have seen him with a pen or a piece of sprew (a white cylindrical piece of plastic) in his hand and mistaken it for a cigarette.

I pause to say that we recognise that it is not for us to express a view as to what Mr Langan saw or might have seen, but certainly from the plan and copy photographs which have been provided to us, the possibility that Mr Langan's view was partially obstructed and/or that at most he had a fleeting glance, which might give rise to the possibility of mistake, was a real one.

The Applicant was again seen by Mr Smith and Mr Jones and he was suspended and told to attend a disciplinary hearing. At the disciplinary hearing, which was chaired by Mr Buckley, the then Managing Director, Mr Langan did not attend to set out his version of what he had seen, but Mr Smith informed the Applicant of his conversation with Mr Langan on the previous Friday. Mr Jones did likewise and the Applicant denied that he had been smoking, as alleged by Mr Langan, and indicated that he thought he had no chance of being believed since his accuser was the Chief Executive. Since the accuser was the Chief Executive, it was obviously of fundamental importance that the hearing should take place in a way which would ensure that it was scrupulously fair. The Tribunal however, found that they were satisfied that the Applicant was given every opportunity of putting his case.

In paragraph 2.8 of their Reasons, the Tribunal say:

"2.8 Mr Buckley chose to believe the account that had been given by Mr Langan, and dismiss the applicant summarily. The majority reject the applicant's assertion that Mr Buckley should have adjourned the hearing to enable Mr Langan to attend so that the applicant could cross examine him; also that Mr Buckley should have visited the locus in quo to satisfy himself that Mr Langan was able to see what he had alleged he had in fact seen. The majority are satisfied that Mr Buckley knew the site so well that a visit was unnecessary. Although Mr Buckley intimated that if he had discovered the applicant smoking he may not have instigated disciplinary action the majority are satisfied that Mr Buckley did not decide to dismiss the applicant summarily because the allegation had been made by the Chief Executive."

The applicant was offered a right of appeal in relation to his dismissal. He declined to exercise that right, but the Tribunal stated that nothing turns on this fact.

The Tribunal referred to the statutory provisions in Section 57 of the then 1978 Act and, having done so summarised their conclusions as follows:

The majority have reached the following conclusions:

(1) The respondent carried out a sufficient investigation.

(2) Smoking on the premises is gross misconduct.

(3) Summary dismissal was a reasonable penalty.

(4) The applicant's claim that he was unfairly dismissed fails.

The minority concluded:

(1) The dismissal was unfair because the respondent failed to give the applicant the opportunity of putting his case to Mr Langan.

(2) The respondent failed to give adequate consideration to the fact that Mr Langan was driving a car at the time.

(3) A reasonable employer would have ensured that the arguments put by the applicant in the report of Mr Alan Jones were put to Mr Langan, and not relied on hearsay evidence from Mr Smith.

At this appeal today, a number of arguments have been raised, but we indicated at a comparatively early stage that the argument upon which we required particular assistance related to the majority finding that there had been a sufficient investigation.

We have been referred to a number of authorities. In the case of Linfood Cash & Carry Ltd v Thomson & Another ,

[1989] IRLR 235

, a decision of the Employment Appeal Tribunal, Wood J dealt with the procedure to be adopted where allegations against an employee were made by an informant. In that case an informant had made allegations that two warehousemen had been involved in various thefts and deceptions. The informant refused to have his identity revealed and it was in that context that Wood J set out certain guidelines. They are particularly apposite to cases where an unknown informant is involved but, nevertheless, some of the observations there are of general assistance. He said at paragraph 20:

"Every case must depend upon its own facts, and circumstances may vary widely - indeed with further experience other aspects may demonstrate themselves - but we hope that the following comments may prove to be of assistance:

1. The information given by the informant should be reduced into writing in one or more statements. ...

2. In taking statements the following seem important:

(a) date, time and place of each or any observation or incident;

(b) the opportunity and ability to observe clearly and with accuracy.

7. The written statement ... should be made available to the employee."

Wood J also dealt with circumstances in which it may be desirable to adjourn to make further enquries.

There are further guidelines which are also to be borne in mind though, as I have already said, they are in general more apposite to cases involving an informant.

We have been referred to the decision of the Northern Ireland Court of Appeal in the case of Ulsterbus Ltd v Henderson

[1989] IRLR 251

. There, the Court of Appeal held that:

"The Industrial Tribunal had erred in holding that when the appellants dismissed the respondent bus conductor following a complaint that he had failed to issue tickets to the value of fares collected, they did not have reasonable factual grounds for sustaining their belief in his guilt because the respondent had not been given an opportunity to question the passengers concerned and thus to challenge the reasonableness of the grounds upon which the appellants had proceeded.

The Tribunal had erred in suggesting that in certain circumstances it is incumbent on a reasonable employer to carry out a quasi-judicial investigation with a confrontation of witnesses and cross-examination of witnesses. While some employers might consider that necessary or desirable, to suggest as the Tribunal did that an employer who failed to do so was acting unreasonably was unsupportable."

It is to be observed however, that the facts of that case differed significantly from those in the present case. It is appropriate that I should refer to one passage in the judgment at paragraph 21:

"It is quite clear in this case that a careful investigation was carried out by Mr Campbell, an appeal was heard by Mr Wilson, and a most meticulous review of all the evidence was carried out as is evidenced by Mr Heubeck's letter of 31.12.85. As I have indicated, in that letter Mr Heubeck meticulously reviewed all the evidence, and considered whether there was any reasonable possibility, indeed any possibility, that a mistake had been made."

In the present case it is conceded that there was not a meticulous review of the evidence, and there is, in our judgment, great substance in the contention that the person conducting the disciplinary hearing did not, in truth, know the facts. He had a bald statement, not reduced to writing or giving any particulars, by the Chief Executive. It seems to us that elementary fairness required that there should be put to the Applicant the substance of the allegation and such detail as was necessary to enable the Applicant to dispute matters and to put forward his own version.

On the facts here, we think it is impossible to see how any fair employers could reach the conclusion they did without hearing the Chief Executive, or at least ensuring that sufficient detail had been provided to satisfy themselves that the allegation was true.

The disciplinary hearing in the present case took only a few minutes. In our view it is not sufficient for the Respondents to the appeal to say that it was for the Applicant to raise specific matters and that only then would it have been appropriate, or necessary for the person conducting the disciplinary proceedings to have adjourned for further investigation.

It is rare for the Employment Appeal Tribunal to intervene in cases such as this. We are, however, unanimous in our view that no reasonable Industrial Tribunal, correctly directing itself, could conclude that there was here a sufficient investigation. There was, in truth, nothing which, on a fair overall view, could properly be called an investigation.

We propose therefore to allow the appeal and, subject to further argument, we propose to direct that it be declared that the Applicant was unfairly dismissed and to remit the matter to a differently constituted Tribunal in order for that Tribunal to consider the question of compensation.