Daniju v ASH Shahada Housing Association [1997] UKEAT 706_96_2003

EAT
Daniju v ASH Shahada Housing Association
[1997] UKEAT 706_96_2003 · 1997-03-20

JUDGE N BUTTER QC:

This is an appeal by Mr Daniju in respect of a decision of the Industrial Tribunal at London (South). The hearing was on 18 December 1995, 12 January and 1 April 1996. The Extended Reasons were sent out on 3 May 1996. The unanimous decision of that Tribunal was that the Applicant was not unfairly dismissed and accordingly, his complaint was dismissed. At that hearing he was represented by Counsel, but he conducted the preliminary hearing before the Employment Appeal Tribunal himself, and has appeared today to argue his case.The Notice of Appeal raised a number of largely factual points, but when the matter came before the Employment Appeal Tribunal at the preliminary hearing, His Honour Judge Byrt QC, sitting with two Members, expressed concern that the rules of natural justice might not have been observed in relation to the so-called disciplinary hearing relating to the Applicant. It was therefore directed that the case should proceed and the Chairman's notes of some of the evidence were required.Thus, although the Notice of Appeal does not expressly raise the point which caused concern to the Employment Appeal Tribunal last time, it is clear that both parties today have come prepared and have indeed dealt with the argument of natural justice, as well as other aspects.The background to the case can be stated quite shortly. The Applicant was employed by the Respondents from November 1989 to April 1995 and at the time when his employment ended he was the Acting Director.The Respondents are a Housing Association operating mainly in South London and providing housing for homeless persons on lower income. It is funded by the Housing Corporation and is run by a management committee of unpaid volunteers.The Applicant alleged that he was unfairly dismissed. The Respondents admitted that he had been dismissed, but contended that it was a fair dismissal for misconduct. The Applicant put the Respondents to proof as to the reasons for dismissal but alleged that, even if the Respondents established a fair reason for dismissal, the dismissal was unfair due to procedural irregularities. That is made plain from paragraph 5 of the decision.Other issues were raised as to whether, if the dismissal was unfair, the Applicant had contributed to his dismissal by his own misconduct and whether subsequently discovered alleged misconduct should affect the remedy.The Industrial Tribunal heard extensive evidence but I can deal with the position shortly. The main dispute between the Applicant and the Respondents was in relation to the allocation to a Mr Salami of a tenancy of the Respondents at 134 Dalyell Road, London SW9. Mr Salami was known to the Applicant and the contention was that the Applicant had become involved in the application which had been made by Mr Salami, that it was, in certain respects, a false application and that the Applicant had, in any event, failed to disclose his knowledge of Mr Salami.In March 1995 the Respondents set up a sub-committee to investigate the possible involvement of the Applicant in the application by Mr Salami. Mr Maknoon became involved and indeed, carried out the investigation. He concluded from his investigations that the application by Mr Salami was seriously deficient in a number of respects and Mr Maknoon was satisfied that the Applicant was aware of these matters at the time. Mr Maknoon reported to the management committee on 31 March 1995, following which a letter was sent to the Applicant on 3 April 1995 suspending him from duty.I pause to refer to a few sentences from the notes of evidence of Mr Maknoon. According to the note made he said, at one stage in his evidence:
"Sub-committee considered all documents and reported back to management committee. Management committee decided on face of evidence that I should arrange a meeting and give him [the Applicant] option of resigning or to dismiss him."
Later in his evidence he said:
"My meeting was for Applicant to give explanation or if failed to provide explanation then ask him to resign or dismiss him."
According to paragraph 11(ix), upon which the Respondents to the appeal place reliance, there was a meeting on the evening of 19 April 1995. It was only earlier that afternoon that a letter asking the Applicant to attend had been given to him. He was not invited to have a colleague or representative with him, but he went to the meeting at which were the Applicant and Mr Maknoon. Mr Maknoon put to the Applicant the various matters, in particular various deficiencies from Mr Salami's application and Mr Maknoon's belief that the Applicant had failed to disclose various matters arising from that application. The Applicant was given an opportunity to answer the various matters.It appears from the evidence that the Applicant had previous knowledge of an investigation, but certainly not of the detail. It is not clear whether any specific charge was made against him. He was asked to recall events which had occurred long previously. Today, he has raised a whole number of factual matters. We have permitted him to address us on these lines, though he must appreciate it is not for us to decide the truth or otherwise of the facts which he has dealt with in the course of his address to us. We are prepared to accept however, that there are various details in the background here leading to the view that the position may not be as clear cut as the Respondents wish to suggest.As a result of the meeting of 19 April 1995 there was a telephone conversation the following day. There is a dispute as to whether Mr Maknoon, having learnt that the Applicant was not willing to resign, specifically told the Applicant that he was being dismissed. Certainly, that was the effect of the finding by the Industrial Tribunal and it is said that that dismissal was confirmed by a letter which was sent to the Applicant. We have seen a copy of that letter and the Applicant denies having received it. Be that as it may, on 22 April 1995, the Applicant wrote to Mr Maknoon a three-page letter which we have considered. It could be treated as an appeal against dismissal, if indeed he was aware there was a dismissal, but significantly perhaps, the letter which appears to be a genuine document, refers to the question of suspension.In the course of the argument to the Industrial Tribunal, as summarised in their decision, Counsel for the Applicant queried the true reason for dismissal but, in any event, alleged that there was insufficient investigation and that a decision had already been taken prior to the Applicant being given the opportunity to comment upon the allegations against him on 19 April 1995. It does not seem that the phrase "natural justice" was used, or that that point was specifically argued, but we are prepared to accept that the overall effect of the argument was that a decision had been made against the Applicant well before the time of the so-called disciplinary proceedings and that it was being argued on his behalf, in effect, that the procedure was irregular, unsatisfactory and inadequate.Although, as I have said, reliance is placed by the Respondents upon a finding made at paragraph 11(ix), it is of value to consider the way the Tribunal expressed itself under the heading "Tribunal's Deliberations and Conclusions" in paragraphs 14 and 15 of their decision:
"14. The Tribunal is satisfied that the Respondent had a genuine belief that the Applicant was well aware of the application made by Mr Salami and that the application was seriously deficient. The Tribunal finds that the Respondent concluded that the Applicant had abused his position by not drawing that matter to the attention of those taking the decision to allocate the housing. Accordingly, the Tribunal concludes that the Respondent genuinely believed that the Applicant had committed misconduct and the Respondent was not convinced by the explanation given by the Applicant.
15. The Tribunal reviewed all of the evidence and carefully considered the documentary evidence. It reviewed the various criteria in section 57(3) of the Employment Protection (Consolidation) Act 1978. Having regard to the fact that the Respondent was dealing with public funds and that the Applicant was the most senior paid officer in the Respondent's organisation at the time the Tribunal finds that the Respondent acted within the band of responses of a reasonable employer in dismissing the Applicant for the misconduct found by the Respondent. In particular the Tribunal was of the view that the Respondent was entitled to treat the Applicant's conduct as a breach of trust in the circumstances of the case."We have been referred to a number of authorities. I need make reference to only two of those and to quote from the headnotes. In the case of Spink v Express Foods Group Ltd [1990] IRLR 320 it was said:
"It is a fundamental part of a fair disciplinary procedure that an employee know the case against him. Fairness requires that someone accused should know the case to be met; should hear or be told the important parts of the evidence in support of that case; should have an opportunity to criticise or dispute that evidence and to adduce his own evidence and argue his case."
In the case of Louies v Coventry Hood & Seating Co Ltd reported in the same volume at page 324, the headnote says:
"In the present case, the Industrial Tribunal had failed to give adequate consideration to the balance between the employers' investigation and belief on the one hand, and the fairness of the subsequent disciplinary proceedings on the other. That amounted to an error of law which justified the EAT in interfering with their decision."
Here, in our judgment, it was essential that the Industrial Tribunal should reach and express clear conclusions as to whether there were irregularities in the disciplinary procedure. Was the meeting in April simply a meeting or was it, in truth, a disciplinary hearing? The fact that the person who carried out the investigation was also the person who conducted that meeting or hearing on 19 April, is one which one would have expected to have caused concern to the Industrial Tribunal.Taking all matters into account, we are not persuaded that it is simply sufficient for the Industrial Tribunal to have said, at one stage of their decision, that the Applicant had an opportunity to answer the various matters. We reached the unanimous conclusion that the Industrial Tribunal decision is flawed and that there is an error of law.We are not, with respect, persuaded by the argument for the Respondents that, if there was any defect in the disciplinary procedure, that could have been dealt with simply by way of an appeal by the Applicant.What then is the course which we should take? With considerable reluctance we have reached the unanimous conclusion that we should allow the appeal and remit the case to a differently constituted Tribunal in order for them to consider all relevant matters. We do not feel it right for us to take the decision ourselves, since there are conflicting issues of fact and other matters to consider.