A v B [1998] UKEAT 1040_98_0712

EAT

A v B

[1998] UKEAT 1040_98_0712 · 1998-12-07

JUDGE J. ALTMAN: This is an appeal from the decision of the Industrial Tribunal sitting at Liverpool on 6 May 1998. It comes before us by way of a preliminary hearing to determine whether the Notice of Appeal raises a reasonably arguable point of law so as to give the E.A.T. jurisdiction to entertain and determine it at a full hearing. At the outset of the hearing, Mr Otto on behalf of the Applicant who is the Appellant asked us to receive evidence not before the Industrial Tribunal of the prosecution witness statement, which produced the alleged victim's diary to the Court dealing with the criminal proceedings after the dismissal.

The argument is that had the Police been consulted as the Applicant says they should have been, this is the evidence which probably would have been disclosed to the Respondents and no doubt the submission would be made that therefore that may well have changed the way in which the Respondents dealt with this matter. However, it seems to us that this evidence was not before the Industrial Tribunal and we can see therefore no basis upon which we should admit it. In any event, it does not seem relevant to consider the substance of the evidence in hearing Mr Otto's argument. The extent to which the investigation was flawed by failing to seek that information, is an argument which can still be maintained.

Whatever the evidence was, once it is accepted that, inevitably, it would have been relevant evidence in that it would have dealt with the matters in issue, (and there is no question of that) it stands to reason that we do not need to see the evidence to be satisfied with that. Accordingly the application is refused and we are about to hear the issue as to whether it is an arguable point of law on the decision.

The basis of the appeal essentially is that the Industrial Tribunal erred in law in failing to find flaws in the way in which the employers proceeded to deal with the allegation relating to conduct which formed the basis of the dismissal. Mr Otto has argued the case very fully and helpfully on behalf of the Applicant who is the Appellant before us.

The Applicant was employed by the Respondents as a porter. On 24 September 1997, the employers received from the Police information about events occurring wholly outside the Applicant's employment, from which the employers knew that the Applicant was about to be charged with offences of assault on a child under the age of 16.

On the following day the Applicant was arrested, interviewed and charged and the Police then began a process of investigation and prosecution leading to ultimate acquittal before the Crown Court. Let it be made absolutely clear that the process of the Courts has found the Applicant not guilty of these offences, in other words, innocent of them. That process was going on whilst the Respondents conducted their own investigation and assessment of the evidence, which lead ultimately to dismissal.

The Respondents appointed Mr Taylor, assisted by the Personnel Manager to investigate and prepare a report. That investigation included an interview with the mother of the alleged victim preceded by an interview with the Applicant and therefore the interview process itself did not include a further interview at which the evidence garnered from others by Mr Taylor was put to the Applicant at an interview with him. Furthermore, although being very much involved in the actual arrest process which was run contemporaneously with the Respondents' decision to suspend the Applicant. Mr Taylor did not include, in his investigation, speaking to the Police and seeking to obtain from them statements of witnesses and a production of what we are told was an important document, the diary of the alleged victim. It is said, apart from anything else, that if only that information had been obtained an argument of impossibility could have been raised in relation to most of the allegations, because the dates of them did not coincide with the dates when the Applicant would have been in a position to commit the alleged offences.

So Mr Otto says that first of all the employer had a duty to go further than he did, and secondly, the Tribunal when considering this matter, had a duty to advert to that failure, set it out, make findings upon it and he would say conclude that the dismissal had been unfair.

Furthermore, the inevitable consequence of that, says Mr Otto, is that the employers received an allegation that there had been an assault, but never investigated actually what was alleged to have happened, and that defect was replicated says Mr Otto by the Tribunal. Furthermore, by referring to allegations being eight years previously, the Tribunal got the date wrong because it was between four and seven years previously. Then Mr Otto says, that there was a breach of natural justice in that the evidence gathering process effectively should have included an opportunity to the Applicant to deal with the allegations, although Mr Otto accepts that that possible defect was cured by such opportunity being given at the final disciplinary hearing which is obviously correct and, effectively, Mr Otto did not persist with that allegation. Finally, it is said that both the employer and following upon that the Industrial Tribunal, took no account of the evidence from a lady who knew the Applicant well, who was able to give evidence of an earlier allegation that had been found to be groundless and untrue and they make no comment upon it and the Industrial Tribunal who had read the material, also made no comment about it.

Dealing with that last factor first. It has been established in the law relating to Industrial Tribunals, for probably well nigh on 25 years that providing the notes of evidence of a Chairman contain material which justify the findings of the Industrial Tribunal, the fact that the decision of the Industrial Tribunal does not repeat those facts or make specific findings upon it, is not an error of law on the part of the Industrial Tribunal.

We have considered the reasons of the Tribunal against those submissions by Mr Otto. The decision followed a clear and fairly traditional pattern. In paragraph 7 the Tribunal set out the issues which had to be considered; whether the dismissal of the Applicant was dealt with fairly, whether the proper procedures were followed, whether a full investigation took place and whether the alleged criminal offence which was outside the scope of the Applicant's employment was likely to affect his employment and make the Applicant unsuitable for his work or unacceptable to other employees or the patients of the hospital.

This appeal really deals with the investigation of the complaint as presented to the Respondents at the disciplinary hearing. The Tribunal having set out the brief statement about the matters of complaint, found facts set out in paragraph 9 of their Decision which shows in (vi) that Mr Gawthorne who handled the dismissal process set up an enquiry, to which I have already referred, and suspended the Applicant, that there was an investigatory meeting on 2nd October and a disciplinary hearing on 13 November, and that at the disciplinary hearing evidence was taken from the Applicant and he was questioned and evidence was given by Mr Taylor who had conducted the investigation. The Tribunal found that Mr Gawthorne was of the view, on the balance of probabilities that Mr 'A' had committed the offences. The Chairman goes on to point out that the Applicant when he gave evidence to the Tribunal was of the view that he had not committed the offences, and he believed that his evidence should have been believed against that brought to the disciplinary hearing. Indeed it is quite clear from the finding of the Tribunal that the Applicant took the point that Mr Taylor's view was based solely on interviews with the mother of the alleged victim, and the point that management did not know her but knew him and should have relied upon his integrity.

Paragraph 10, the Tribunal went on in the following way:

"10. Having considered all the evidence, in oral and written form, we were of the view that the proper procedures had been followed - indeed this issue was not challenged by the Applicant - Mr Gawthorne had correctly set up an investigatory team, that he acted on the evidence placed before him by the investigatory team and the Applicant and Mr Gawthorne had acted fairly throughout."

Then they dealt with the question as to whether or not it was right to proceed before the criminal trial, they then in Tribunal dealt with the question as to whether there was, in their words, "an adverse connection between the offence and the Applicant's employment" and that is not a matter of which a complaint in itself is made. Reference was then made to the Respondent's disciplinary procedure which provided that where there were reasonable grounds to believe the commission of an offence and the risk of undermining confidence in the Respondents, there may be dismissal. The Tribunal found that the employers considered that there was.

Finally, the Tribunal said that:

"17. Although the applicant was eventually found not guilty of the offences, this did not change the Tribunal's view that at the time this matter came to the Trust's attention they acted appropriately and fairly in dealing with the situation as they saw it at the time.

18. In all the circumstances therefore, it is this Tribunal's view that the applicant was fairly dismissed and that consequently his application should be dismissed."

Mr Otto has not taken pedantic points about the actual words used, whether the Tribunal were expressing their own view or that of the reasonable employer which is so often rehearsed before us, but he makes the points to which I have already made reference.

It seems to us that it would have been legitimate to argue before an Industrial Tribunal that the employer should have done more in investigating this matter. That is a legitimate argument to place before an Industrial Tribunal. It was not placed before this Industrial Tribunal, but what effectively is said, is that the Tribunal of its own motion should have come to that conclusion and in so failing to do, erred in law. The inference from that, is that at this level, the Employment Appeal Tribunal should find it is an error in law in this sort of case, even where the point is not taken before a Tribunal, for a Tribunal to fail to find out or consider the fact that the availability of Police evidence as additional material was not investigated by the employer.

It is one of the facts for a Tribunal to take into account if the material is placed before them. Obviously, a case in which a litigant appears in person, may well be conducted in a different way from that where a litigant is represented, but the Industrial Tribunals, as they then were, are very experienced in receiving cases from Applicants in person and indeed Respondents in person. That is the whole nature of this jurisdiction and indeed was the aspiration of those who established it, and it would be placing an intolerable burden on a tribunal and a most inappropriate one if there was some legal fetter upon the matters that had to be considered by the Tribunal in every case. We can see no basis for a finding that the Tribunal erred in law. Had that material been placed before the Tribunal, we have no doubt that they would have considered it as part of the facts, and had that suggestion been made to the Respondents when they investigated this matter, perhaps they too would have considered it. But at the investigatory hearing the Applicant chose not to be assisted by his trade union. He chose to deal with this matter himself before the Tribunal, and it may be that unfortunately as a result, one piece of evidence was not presented that otherwise, who knows, might have been. But that is not an error of law in the procedures or the decision making process of the Tribunal.

So far as the proposition that no account was taken of the evidence of the woman who knew the Applicant, there is no basis for that proposition. The fact that the employers or the Tribunal did not refer to it specifically, does not mean that they took no account of it, anymore, may we say, than those who decided they had sufficient evidence to prosecute took no account of it. It is all part of the overall picture, which was no doubt at appropriate times balanced.

Accordingly we are driven to the conclusion that in what we must say appears to us to be a carefully reasoned and logically arranged decision of the Industrial Tribunal, there was no error of law whatsoever and indeed no possible argument that there was an error of law. At the heart of this case is the Applicant's assertion, no doubt, of his innocence and his belief that if all the evidence had been looked at at the proper time, everyone else would have agreed with his innocence. But that is not the question. The question before the Tribunal was whether in the procedures they followed, and the judgments they exercised, the Respondent employers acted reasonably or unreasonably in treating the allegations of misconduct as the reason for the dismissal. They came to a conclusion on information to which they had referred and upon the basis of material that they were entitled to base their decision, that the employer had not acted unreasonably.

This appeal must therefore fail at this preliminary stage as disclosing no arguable point of law. It must be understood that we have made a decision simply that there is no arguable point of law. The fact that the Applicant has failed in this Tribunal is nothing to do with the rightness or wrongness of his case as to the allegations made against him.