Migrant Advisory Service v Gill [1998] UKEAT 1013_98_2511

EAT
Migrant Advisory Service v Gill
[1998] UKEAT 1013_98_2511 · 1998-11-25
MR JUSTICE LINDSAY : We have before us a preliminary hearing of the appeal in the matter H.S.Gill against the Migrant Advisory Service which we will call "MAS". MAS is the Appellant before us.There was a hearing of five days between January and April 1998 at London (North) before Mr M.S. Rabin as Chairman and two others and the decision was promulgated, some while later, on 9 June 1998:
"The unanimous decision of the Tribunal is that the Applicant was unfairly dismissed. He [Mr Gill] is entitled to a basic award of £630 and a compensatory award of a sum to be agreed or determined."
At that hearing both the Applicant, Mr Gill and MAS were represented by Counsel and MAS was, indeed, represented by Mr L. Wilson, who has appeared also before us.MAS is a very small Registered Charity established in 1993. It has four Directors who are volunteers. It employed at the relevant time only two advisers of whom Mr Gill, the Applicant, was one and the other was a Mr Sharma .Mr Gill began to work for MAS in April 1993. His relations with Mr Sharma were not good. Indeed, on at least one occasion there were rows in the office to the unease, or worse, of a Mrs K. Chaudri who was a volunteer worker in the office; not a full-time worker but a worker for all that.MAS had a Code of Practice that was introduced and it said this (in part):
"2 Where a person comes to MAS for advice / assistance on a matter within the Company's remit .... the client must not be referred to any other organisation or firm unless: (a) referral has been agreed by both employees* [and that seems to be a reference to Mr Gill and Mr Sharma] and (b) the client is either requested or consented to the referral.
* in the absence of one employee, referral must be approved by the Chairman or, in his absence, by another Director.3 In carrying out the foregoing, Directors and employees must in all circumstances bear in mind the need to avoid conflicts of interest and also take account of political sensitivities."And Mr Gill and, no doubt Mr Sharma, were invited to sign underneath the words:
"I have read and understood the above Code of Practice and consent to be bound by it."
Mr Gill did that in January 1996.The need for the Code of Practice had arisen because one Director of MAS and one employee, namely Mr Gill, had each got brothers who were solicitors and to whom work on immigration advice, which was MAS's speciality, might, but for the Code, have been diverted and possibly diverted improperly. Plainly it was a subject that needed regulation. On 20 June 1996 a further provision to the Code was added in these terms:
"1 All monies received from casework undertaken for MAS's clients shall, without exception, be formally receipted.
2 Any out-sourcing (sub-contracting) of work on behalf of clients shall be approved in writing by the Directors, and remain as stated until formally changed or cancelled by them.. ...7. Departures from the foregoing shall be treated as a breach of discipline."The need for that amendment arose because it was thought that Mr Sharma may have been charging clients of MAS for translations and retaining the fees for himself. Whether that was the case or not is neither here nor there; that was the reason why the further amendment to the Code was introduced.Fairly shortly after that amendment had been added (still in June 1996) two complaints were received by MAS which suggested that it was at least possible that there had been breaches of the Code of Conduct on Mr Gill's part. One of those complaints came to nothing because the complainant failed to substantiate the complaint when it came to the stage of providing detailed information or evidence. But the second complaint concerned a Mr Lal and looking at paragraph 13 of the Industrial Tribunal's Extended Reasons, it says:
"13. .... A few days later a further complaint was received in the form of a letter from a Mr Sohan Lal written in Punjabi which was translated by Mr Bains [a Director]. The gist of that complaint was that after Mr Lal had consulted the Respondents and had been seen by Mr Sharma, Mr Gill intervened and told Mr Lal to take his file to Mr Gill's brother's office where he (Mr H Gill) would do the work himself. .... This letter was accompanied by another letter written by a Mr Bhogal who described himself as a friend of Mr Sohan-Lal which to some extent corroborated Mr Lal's story. Accordingly on 1 July Mr Jones [a Director of MAS] wrote to Mr Gill notifying him of the complaints and asking him to attend a meeting of the Directors within the following few days. The letter [in part] reads as follows:
'I write to inform you that the Directors have received evidence which, taken at face value, would appear to indicate that you have contravened the undertaking regarding the referral of MAS clients which you freely entered into in January this year'."So that was a complaint that Mr Gill had to face and a disciplinary meeting was convened for 3 July, but then rearranged for 5 July. Mr Sharma supported Mr Lal's complaint. He wrote a letter that said, inter alia :
"At no time I have agreed with Mr Harjinder Gill that Mr Sohan Lal's case to be transferred to any external agencies or to any solicitor firms."
On 5 July there was a meeting of some one and a quarter hours in duration and the outcome was that Mr Gill was suspended and asked to clear his desk. He was given time in order to prepare a case on the subject and a reconvened further hearing was arranged for 11 July and Mr Gill set about preparing his case. When he returned on 11 July he had prepared evidence and amongst the evidence was an affidavit from the volunteer worker in the office, Mrs Chaudri. What the Industrial Tribunal said about that was in their paragraph 17, at the foot of page 15:
"17. .... Mr Gill presented a comprehensive typed statement of his case, supported by affidavits from Mrs Chaudri, the volunteer worker who was present at the time, and Mr Kennedy Okeh who was an employee of Gills Solicitors and handled Mr Lal's case."
At the meeting on 11 July the case presented by Mr Gill was in these terms (paragraph 18 of the Industrial Tribunal's Extended Reasons):
"18. Mr Gill's argument before the panel was that the whole incident had been manufactured by Mr Sharma who wanted to get rid of Mr Gill because Mr Gill had made trouble for him by reporting the incidents relating to translation charges and the giving of false receipts. In support of his allegations he pointed to the affidavit of Mrs Chaudri who said that she remembered Mr Lal leaving Mr Sharma's office after an interview on 14 February and informing Mr Gill in Mrs Chaudri's presence that Mr Sharma had told Mr Lal that he had a weak case and that he should get someone else to represent him."
He adduced Mrs Chaudri's affidavit to that effect and the Industrial Tribunal recites that:
"Mrs Chaudri's view, which supports that of Mr Gill, was that Mr Sharma had rejected Mr Lal's case because it was too weak."
This represented a conflict with Mr Sharma's evidence. Mrs Chaudri continued with an important, simple and direct point in her affidavit, as to which the Industrial Tribunal says this:
"Significantly Mrs Chaudri gave evidence that it was her job to open files for every new client and that this was done as soon as or very shortly after the client was interviewed. The file might physically be opened by the adviser who saw the client but the details of the file would be put on to the computer by Mrs Chaudri. She was adamant that no such file had been opened or entered for Mr Lal. As she said in her affidavit:
'At no time did Mr Sharma open a file in this case as I would be aware of any new files as it is my duty to record all new files on the database'."The panel that met on 11 July and ruled on Mr Gill's position was recited by the Industrial Tribunal as having continued in this way:
"However the panel's view was that once they were satisfied that Mr Lal had been a client [and one notices 'had been' rather than 'was' at any particular time] (in that he had been interviewed by Mr Sharma) that was an end of the matter and Mrs Chaudri's affidavit was not given further consideration."
Those words "and Mrs Chaudri's affidavit was not given further consideration" need to be italicised. The panel concluded:
"Ultimately the panel concluded that Mr Lal was a client of MAS, that his case was then referred away from MAS to Gills Solicitors by Mr H. Gill, and that Mr Gill had been guilty of a conflict of interest; that constituted gross misconduct."
And Mr Gill was dismissed by MAS with effect from 12 July 1996.At the reconvened hearing on 11 July Mrs Chaudri had not given oral evidence. MAS did not ask that she should be called to give it, nor did Mr Gill. Neither side asked for an adjournment in order that she could give oral evidence.The Industrial Tribunal was especially concerned about the quality of the investigation that MAS had arranged. In their paragraph 38 on page 27, having looked into the matter, they say:
"It seems to us that confronted with this conflicting evidence, any reasonable employer would have taken the time and trouble to interview Mrs Chaudri to see whether her version of events was more likely to be accepted than that of Mr Lal, a person who was now in detention and had been found by the Home Office Special Adjudicator to be a liar."
Mrs Chaudri's evidence was, in effect, that Mr Lal was no longer a client of MAS as his case had been rejected by Mr Sharma and that if he had have been a client of MAS then a file would have been opened. It would have been opened by her and there was no file opened by her and therefore the suggestion was that Mr Lal was never, or not at the material point of time, a client of the firm. Of course, if Mr Lal was not a client of MAS then he would have been outside the prohibition in the Code, which was a prohibition on referring clients to other organisations or firms.The Industrial Tribunal concluded:
"We therefore find that as no reasonable investigation was carried out in all the circumstances, the Respondents failed the test in Burchell and the dismissal was substantively unfair."
At that point in the Extended Reasons, which is the very end of paragraph 39, they then set out and embark on some findings which, I think, could fairly be described as "vulnerable", including a highly dubious holding about the extent to which Mr Gill had or had not contributed to his own dismissal.As to the holding of there having been no reasonable investigation, which is the nub of the point, we have heard Mr Wilson and he has carefully drawn our attention to a number of authorities and it is, of course, the case that it is not necessarily so that to fail on one of the elements of the Burchell test inevitably leads to a conclusion that the dismissal is unfair. But here, given that there had been an express finding that any reasonable employer would have taken the time and trouble to interview Mrs Chaudri, and the absence of any such investigation and the express conclusion that the Respondents had failed the Burchell test, if we ask ourselves whether the conclusion that the dismissal was substantively unfair is such that no reasonable Industrial Tribunal, properly instructing itself, could have arrived at such conclusion, we find ourselves quite unable to answer in that sense.The Appellant argued (and at this point I am looking at the Notice of Appeal) that the Tribunal acted perversely and/or irrationally when it concluded that any reasonable employer would have taken the time and trouble to interview Mrs Chaudri, going on to say that Mrs Chaudri's evidence was, in effect, immaterial:
"6 (2) (i)..The evidence which Mrs Chaudri could provide as indicated by the Applicant was immaterial to the Respondent's disbelief in the Applicant's explanation of events. ...."
Whether that is true or not is perhaps very much on the margin. What is quite apparent is that Mrs Chaudri's evidence was essential to the question of whether, at the time Mr Lal was diverted, assuming that he was, he was a client and her evidence seemed to provide a very powerful pointer to the fact that he was not, by then, a client at all and hence that whether Mr Gill was giving a true or an untrue explanation of events, there was in any event no misconduct to explain.What is or is not a reasonable investigation is not a matter purely of law or even perhaps, largely of law. It is very much a question which is to be determined by the Industrial Tribunal in the light of all surrounding circumstances. The Industrial Tribunal hears evidence of the size of the organisation that is relevant; the people engaged in it; what precisely the offence was; what enquiries were made; what was alleged; what the possible defences might be and so on. As we have indicated, we find ourselves quite unable to say that the Industrial Tribunal's conclusion that there was no reasonable investigation was a conclusion that no Industrial Tribunal, properly instructing itself, could have come to. The decision in our view was neither perverse nor irrational for any of the reasons which Mr Wilson has been careful to explain to us.The Appellant criticises the way in which the Industrial Tribunal considered what the position would have been if Mrs Chaudri's version of events had been investigated and believed. Paragraph 39 begins: "If Mrs Chaudri's versions of events had been believed", and then there is a long discussion of what, in the Industrial Tribunal's view, the outcome would then be likely to have been. When an Industrial Tribunal is faced with an argument that, for want of a particular line of enquiry, an investigation has not been reasonable, it is very often the case that the Industrial Tribunal does not know at all what the investigation that has not been conducted would have thrown up. It has, inescapably, to speculate to some extent to judge what of relevance might have emerged if only the further enquiry had been made.We do not see paragraph 39 as doing more than establishing to the Industrial Tribunal's satisfaction (by reference to the likely outcome, as they saw it, of further investigation, had there been further investigation) that Mrs Chaudri was a highly relevant witness, so relevant that an omission to look into her evidence rendered the investigation unsatisfactory. Regarded in that way we do not see that paragraph 39 is in any way misguided or offensive.The Notice of Appeal says that at paragraph 39 the Tribunal state "If Mrs Chaudri's version of events had been believed, then the Respondents might well have concluded .... ". And the Notice of Appeal continues, "It was not for the tribunal to judge what the Respondent might have done". That, we think, is a misunderstanding of the purpose of paragraph 39, which establishes rather the prima facie importance and relevance of Mrs Chaudri's evidence by judging, as best the Industrial Tribunal could, where it might have led had it been enquired into.We do not find any error of law in the conclusion that the dismissal was substantively unfair but we do, moving on to a quite different point, have real doubts, already mentioned, about the view of the Industrial Tribunal on the subject of, how far, if at all, Mr Gill had contributed to his own dismissal. What they say on that in paragraph 44 is this:
"Having looked at the Applicant's conduct we find that there is only one matter in which it could be said that he had to any extent caused or contributed to the dismissal, and that is his failure to inform Mr Sharma or the Directors that Mr Lal had gone to his brother's firm. This is not 'action of the complainant' under section 123 (6) although it may be considered to be 'conduct' under section 122 (2)."
Both those points, in the light of section 122 (2) and section 123 (6), are at least open to doubt in law, in our view. So far the Industrial Tribunal has not yet gone on to compensation. In the common way the process had been divided into two hearings, one for (so to speak) liability and one as to compensation. But here, to some extent, questions that are commonly left over to the compensatory stage have already been touched on because the Industrial Tribunal hold:
"It therefore had an insignificant effect on the dismissal [that is Mr Gill's contribution] and as such we do not consider that the basic or compensatory awards should be reduced as a consequence thereof."
The basic award was held to be £630, unreduced by contribution. Of course at this stage, this being a preliminary hearing, Mr Gill has not been in front of us and we do not know what view he or his advisers would take on the contribution point. It might well be that when they come to consider it, if they do consider it, they might agree that it is, at the lowest, a very dubious decision in their favour on this point. They might, even more strongly, feel that they could fairly recognise that it is wrong. If they do come to that view, they might well be ready to abandon the benefit that it appears to give them on the ground that it would only lead to further unnecessary proceedings. It might well be uneconomic, and be recognised by both sides to be uneconomic, to require there to be a full hearing simply on the contribution point, especially where it only relates to a fraction of the basic award, namely £630.We have tried to devise a system under which the parties will only have a full hearing on the contribution point if it is truly necessary. What we determine is this. We will require the Employment Appeal Tribunal to write a letter - and it would be as well if the letter was put in front of me for me to vet it before it is finally sent - but we direct that Mr Gill or his Solicitors should be written to by the EAT and should be asked, firstly, whether he would be willing, without being further heard first on the point, to allow the holding that the basic award should not here be reduced by contribution to be set aside so as to leave the subject of contribution and the basic award to be argued afresh at the compensation hearing.Secondly, in a rather similar way, Mr Gill should be invited (in the same letter) to indicate whether he is willing to abandon at the compensation hearing any argument that the Industrial Tribunal's decision with regard to contribution and the compensatory award should again be set aside in a similar way, so that the Tribunal that hears the issue of compensation would hear it untrammelled and unaffected by this earlier decision that it should not be reduced in consequence of contribution, instead leaving that subject to be argued wholly afresh at the compensation hearing.The letter should say that if he is willing in either case (and so indicates in writing to the EAT within 21 days) then there need not be a full hearing on the point or points which he so agrees to be abandoned but that if he wishes there to be a full hearing, on either the effect of contribution on the basic award or the effect of contribution on the compensatory award, he is entitled to have one. In that way we would hope that there will only be a full hearing, with both parties present on the issue of contribution, if, having considered it, Mr Gill or his advisers see it to be necessary. In that way we hope to avoid a situation in which we bring all the parties here only to find (as might otherwise be a possibility) that time and costs have been wasted in that Mr Gill or his advisers then, at that stage, accept that the judgment on the point by this Industrial Tribunal is unsound.So, reverting to the immediate business of the day, subject to the writing of those letters, there will or will not be a full hearing on the contribution points, but we dismiss the appeal as to unfair dismissal.