Cicero Languages International v Brown [1997] UKEAT 639_96_2904

EAT
Cicero Languages International v Brown
[1997] UKEAT 639_96_2904 · 1997-04-29
BAILII case number: [1997] UKEAT 639_96_2904 Appeal No. EAT/639/96 EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS              At the Tribunal              On 29 April 1997 Before HIS HONOUR JUDGE PETER CLARK MR J R CROSBY MR S M SPRINGER MBE CICERO LANGUAGES INTERNATIONAL APPELLANT DR J BROWN RESPONDENT Transcript of Proceedings JUDGMENT Revised © Copyright 1997 APPEARANCES   For the Appellants MR P MASON (Representative) Personnel Department Cicero Languages International 42 Upper Grosvenor Road Tunbridge Wells Kent TN1 2ET For the Respondent MRS A GRIFFIN (Representative) Citizens Advice Bureau 9 High Street Edenbridge Kent TN8 5AB   JUDGE PETER CLARK: This appeal raises a short point, namely whether a material finding of fact by the Industrial Tribunal was unsupported by and/or contrary to the evidence before the Industrial Tribunal. Piggott Brothers Ltd v Jackson [1992] ICR 85, 92F, per Lord Donaldson, MR. The facts are that the respondent, Dr Brown, was employed by the appellant language school in Tunbridge Wells, Kent, from September 1988 until his dismissal on 31st August 1995. He was Director of Studies until May 1995 when he became Business Development Manager. Following his dismissal he brought a complaint of unfair dismissal and wrongful dismissal which came before the Ashford Industrial Tribunal on 25th March 1996. Dr Brown did not attend the Industrial Tribunal hearing, but submitted affidavit evidence and a bundle of documents in support of his case, and was represented by Mrs Griffiths of the Citizens Advice Bureau. The appellant called three witnesses, Mr Paul Mason, Managing Partner of the appellant who conducted their case; Ms Angela Geiss, an employee and Mrs Daria Keeler, Head of Administration. The tribunal found that Dr Brown suffered from dyslexia. Since the appellant is a language school it accepted that it was important that all written materials were properly presented. It found that efforts were made to assist Dr Brown with his dyslexia; an assistant was employed to help him with written material, and to check his spelling and content. Mr Mason tried to approach the problem without hurting Dr Brown's feelings, but at the same time conscious that a proper image should be projected to the appellant's clients. Dr Brown's assessment showed that he was excellent in many parts of his job, but that his presentation of written material let him down, and comments were made to him about this by Mr Mason at various times. Since matters did not improve, Mr Mason wrote to Dr Brown on 13th June 1995, to say that his role would be redefined within the organisation to minimise the amount of writing he needed to do; and a firm undertaking was required from Dr Brown that he would not allow any written material which he had produced to be seen by the public without having it checked by somebody else first. That letter warned Dr Brown that if he did not stick to this principle, then Cicero would be unable to continue his employment. In response, Dr Brown evolved a system of checking, and replied to Mr Mason by memorandum of 19th June 1995 to say that Ms Geiss was happy to check his work and he had arranged a system for having his worked checked. The tribunal found that Dr Brown was inconsistent in having his documents checked by Ms Geiss, some were and some were not. On 17th August 1995, Dr Brown prepared a fax to a company called R & V, and did not have it checked before attempting to fax it to the client. It contained three errors. In fact the fax was not sent because the wrong fax number was attached. Dr Brown was away on holiday until 28th August. Mr Mason saw the fax and drew it to his attention on his return from holiday. Dr Brown told Mr Mason that Ms Geiss had not been available to check the document. Mr Mason said he would have to think further about the situation. He decided that as Dr Brown had admitted that the document had not been checked, this was the final straw and there was no option but to terminate his employment. He drafted a letter of resignation for Dr Brown to sign and saw him again on 29th August, when he explained that in effect the option was that he be dismissed or resign. Dr Brown opted to sign the letter or resignation, which asked the company to waive the notice period specified in his contract and added:
"If you choose to make any payment to me beyond the salary owing to me for the month of August, I accept that this will be an ex gratia payment in recognition of my several years of service to Cicero and in no way implies any obligation on the part of the firm."
It seems that Mr Mason offered to pay Dr Brown a month's salary if he resigned, but that payment was not subsequently made because, Mr Mason told the tribunal, he discovered that Dr Brown had interviewed a language teacher in the appellant's offices on a Sunday and that this was a private venture and nothing to do with the appellant. As a result, Mr Mason considered that the good-will payment was no longer appropriate. The tribunal found that there was no proper disciplinary procedure undertaken by the appellant in dismissing Dr Brown, and the dismissal was unfair. They then dealt with the questions of contribution and wrongful dismissal in paragraphs 23 to 24 of their extended reasons in this way: "23. We concluded that Mr Brown [Dr Brown] had been unfairly dismissed given all the circumstances of the case. We also concluded that he had contributed to his dismissal by failing to follow the procedure which he himself had suggested, on all occasions. The employer had not sought to enforce that procedure, nor check with Mr Brown that it was working properly, and in the circumstances we put the level of contribution at 50%.[24]With regard to the claim for the payment in lieu of notice, we considered the contractual term with regard to gross misconduct. Was the sending of an unchecked fax a flagrant contravention of instructions? Apparently Mr Brown had had other work checked after 13 June, by Ms Geiss. On balance we concluded that a reasonable employer would have decided that this contravention of instructions could not be described as flagrant and could not therefore fall into the category of gross misconduct. Therefore we concluded that the employer was in breach of the contract of employment and that two month's pay in lieu of notice was payable to Mr Brown on the termination of his contract of employment. We therefore decided to make an order for the respondent [the appellant] to pay the sum equal to two months' salary to Mr Brown in this regard." The question of compensation for unfair dismissal was adjourned with a view to possible agreement between the parties. Mr Mason submits that the finding in paragraph 23 that the employer had not sought to enforce the procedure or check with the Dr Brown that it was working properly overlooks the evidence contained in a note of a meeting with took place between Mr Mason and Dr Brown on 16th August 1995, the day before the "final straw" fax of the 17th August was prepared. That note was at page 11 of the respondent's bundle (R1) placed before the Industrial Tribunal. The document reads, so far as is material: "How is the letter checking system working? a) are they are (sic) checked? b) are the corrected versions checked? c) are they signed off?" and then at the side there is a note of what was said at the meeting, it reads: "16/8/95 JB agreed to have corrected version signed off:[1]He writes[2]Angela (or whoever) corrects.[3]JB revises.[4]Shows revised copy to checker.[5]Checker signs off if satisfied (otherwise return to step 3)." That summary of the relevant discussion on that day is not in dispute. We have looked at the Chairman's Notes of Evidence taken from Mr Mason at the hearing, and there is no specific reference to that document. Mr Mason tells us that he drew it to the tribunal's attention; Mrs Griffin that it was not referred to during the course of the proceedings. Following promulgation of the tribunal's decision on 24th April 1996 the appellant promptly applied for a review of the tribunal's decision by letter of 4th May 1996, drawing attention particularly to the finding at paragraph 23 and document R1 page 11. That application was dismissed summarily by the Chairman under Rule 11(5) of the Industrial Tribunal Rules of Procedure 1993 on the grounds that there was no new evidence to support the application. The Chairman's decision and extended reasons dismissing the review application are dated 24th June 1996. It therefore follows that the Chairman acknowledged that the document R1 at page 11 was put in evidence before the tribunal at the original hearing. In our judgment the appeal is well-founded. There was no evidence to support the relevant finding in paragraph 23 of the original reasons; indeed; such evidence as there was, and there is a dispute as to whether or not it was specifically drawn to the tribunal's attention during oral evidence, appears to have been to the contrary effect. Further the finding was material to the tribunal's conclusions as to unfair dismissal, contribution and wrongful dismissal. As to the latter, the question is not what a reasonable employer would have decided, but whether in fact the employee so misconducted himself as to justify the employer summarily dismissing him. In these circumstances we have canvassed with the parties what course we should take. Both submit that in the event the appeal is allowed, the entire case should be remitted to a fresh Industrial Tribunal for a complete rehearing. We agree. Accordingly we shall allow the appeal and remit the case for rehearing.