Aviation & Airport Services Ltd v Harris [1998] UKEAT 1049_97_0302

EAT
Aviation & Airport Services Ltd v Harris
[1998] UKEAT 1049_97_0302 · 1998-02-03

JUDGE PETER CLARK :

The Respondent employee, Mr Harris, was employed by the Appellant as a fuel farm operative from 22 October 1990 until his dismissal on 6 January 1997. The Appellant provides services to aircraft and the Respondent worked at Gatwick Airport, supplying fuel to British Airways aircraft.On 26 December 1996 the Respondent was on duty at that airport when he saw two people using a telephone on site. He went up to speak to them to ask if there was a problem and they explained that fuel was wanted, but no key was available to enable them to obtain it. The Respondent said he could supply fuel but not a key. After some conversation he provided the fuel. A short time later, one of those two people who had been involved in trying to obtain the petrol returned to him, complained about his behaviour and shouted at him. That person was Mr Hennessey, the Business Manager, described as a senior employee of British Airways, which was a major customer of the Appellant.Subsequently, Mr Hennessey telephoned Mr Walsh, the Appellant's Operations Support Manager, and complained about the Respondent's behaviour. Mr Walsh went and saw the Respondent, who was angry. The Respondent was then suspended on full pay, pending investigation. Mr Walsh also telephoned Mr Hennessey and apologised at that stage. Mr Hennessey said he would put his complaint in writing, which he did (by a letter of 30 December).The Respondent remained suspended until his dismissal. That occurred following a disciplinary hearing held on 6 January 1997. The Disciplinary Hearing was conducted by Mr Dupe, who was assisted by Mr May, the Support Services Controller of the Appellant. The Respondent attended without representation at his option. He said he wanted his Trade Union representative, but since his Union is not recognised by the Appellant, that request was refused.The Tribunal observed that Mr Dupe went through Mr Hennessey's letter. The Respondent asked for a copy of that letter which was refused. Mr Dupe asked the Respondent a number of questions and then, after a short break, Mr Dupe told the Respondent that he was dismissed for gross misconduct. He was offered the opportunity to appeal, which he took and the General Manager for the Appellant at Gatwick Airport, Ms Hammond, heard the appeal on 17 January and the appeal was dismissed.On 27 March 1997 the Respondent presented a complaint of unfair dismissal to the Industrial Tribunal. It was heard by a Tribunal sitting at London (South) on 14 August 1997. The Tribunal held that the dismissal was unfair, in that the Appellant had not carried out a reasonable investigation before dismissing the Respondent. Its critical findings are at paragraph 20 of the reasons dated 1 September 1997. We shall set them out.
"20. The Tribunal finds that the Applicant was unfairly dismissed. While those acting for the Respondent company genuinely believed that the Applicant was guilty of the misconduct on Boxing Day 1996 alleged by Mr Hennessey, they did not carry out a reasonable investigation into the matter. Accepting entirely Mr Hennessey's complaints made by telephone and by letter, they required no other evidence to be given at the Disciplinary Hearing on 6 January than Mr Harris's oral evidence. Parts of Mr Hennessey's letter were read out but the Applicant was not allowed to see it nor given a copy. More importantly, Mr Hennessey did not give oral evidence and the Applicant therefore was unable to test his evidence or that of anyone else who had been on the scene at the time. The same applied at the Appeal Hearing on 17 January. Throughout the disciplinary proceedings, the Respondent relied on Mr Hennessey's letter and accepted that to the exclusion of anything else, including oral evidence given by the Applicant, the only person at the Disciplinary and Appeal Hearings who had been present when the alleged incident had taken place."
The Industrial Tribunal then went on to find that the Respondent had contributed to his dismissal to the extent of 5 per cent, a finding which was made to reflect the Tribunal's view on the evidence that he had contributed to his dismissal by his conduct, in that he failed to exercise sufficient discretion in dealing with the incident on 26 December. He was insufficiently aware of the possibility of Mr Hennessey being a major customer of the Appellant and he could have been more flexible and tactful in his choice of approach. The Tribunal then went on to assess compensation.Against that decision the employer appealed, and at a preliminary hearing held before a division of this Appeal Tribunal presided over by Judge Byrt QC on 23 October 1997, the matter was allowed to proceed on two points. First, an argument that the Industrial Tribunal substituted its own view for that of the employer, and consequently erred in law in concluding that this dismissal was unfair. Secondly, a challenge by the Appellant to the finding of contribution limited to 5 per cent only.Mr Barr has advanced both arguments at the full appeal hearing before us today.As to the first point, we see that the Industrial Tribunal correctly directed itself at paragraph 17 in this way:
"17. It is well established law that the Tribunal is not entitled to substitute its own judgment for that of the employer, but must consider whether what the employer did was within the bounds of reasonable responses which might be adopted by an employer ( Iceland Frozen Foods Ltd v Jones [1982] [ should be 1983] ICR 17 p. 24)."
The question is whether the Industrial Tribunal departed from that self-direction. In our view it did not. The clear picture we have is that the Tribunal formed the view that the Appellant had accepted Mr Hennessey's complaint at face value from the outset. They closed their minds to the possibility that anything said by the Respondent could change that perception; they did not attempt to investigate further.In these circumstances the Industrial Tribunal was entitled, in our view, to conclude that the Appellant fell down on its investigation, applying the well known Burchell test.Further, we are satisfied that the Tribunal considered the band of reasonable responses test, first laid down by the Court of Appeal in British Leyland UK Ltd v Swift [1981] IRLR 91, and reinforced by Browne-Wilkinson J, in Icleland Frozen Foods v Jones [1983] ICR 17 .Finally, we reject Mr Barr's submission based on Ulsterbus Ltd v Henderson [1989] IRLR 251. We do not understand this Industrial Tribunal to be holding that the dismissal was unfair because Mr Hennessey was not called before the disciplinary hearing, rather than that in his absence it was important, and that at the very least the Respondent was shown a copy of Mr Hennessey's written complaint when he asked for it. He was not.Further, contrary to Mr Barr's submission we find nothing inconsistent between the Tribunal's observation in paragraph 9 of their reasons that Mr Dupe went through Mr Hennessey's letter and the description of that part of the factual matrix in paragraph 20, where the Tribunal say "Parts of Mr Hennessey's letter were read out but the Applicant was not allowed to see it nor given a copy".It follows, in our judgment, that there are no grounds in law for interfering with a Tribunal's finding of unfair dismissal.We can deal with the second point quite shortly. We each of us confess some surprise at the comparatively small deduction for contribution in this case. However, we did not see and hear the witnesses. The level of contribution is essentially a question of fact and degree for the Industrial Tribunal, as we think Mr Barr recognised. We bear in mind the approach of the Court of Appeal in Hollier v Plysu Ltd [1983] IRLR 260. In our judgment there are no grounds in law for interfering with this part of the Tribunal's decision either.In these circumstances this appeal must be dismissed.