Post Office v Kalam [1998] UKEAT 285_98_1211

EAT
Post Office v Kalam
[1998] UKEAT 285_98_1211 · 1998-11-12
MR JUSTICE LINDSAY : We have before us, by way of a full hearing of an appeal, an appeal by the Post Office in the matter of Mr A Kalam against the Post Office. The appeal is against a decision of the Industrial Tribunal at Stratford under the Chairmanship of Mr Hossain. The decision was promulgated on 19th January 1998 after a hearing on 20th November 1997 followed by some further hearing on 15th December 1997 in chambers. The decision was unanimous and was that the applicant, Mr Kalam, had been unfairly dismissed. The date of dismissal and the fact of dismissal were not then nor now in dispute.We need to say something of the background to the case. Mr Kalam was employed from 23rd July 1990 at the Post Office. In March and April 1996 he was given warnings for unauthorised absence from his place of work, which was at the Mount Pleasant Sorting Office, a very large sorting office. There was a further offence on 23rd July 1996. He was suspended or, at any rate, was visited with a suspended dismissal for abuse for what is called 'casual release'. That is the Post Office's term that either described a man or woman going off to the lavatory or, at any rate, it includes that within 'casual release'. Ten minutes is habitually allowed by the Post Office for visits to the lavatory, and that is a 'casual release'. On 24th October 1996 Mr Kalam was at first dismissed for abuse of 'casual release' but later that was reduced to suspended dismissal. So that one can see that Mr Kalam had an unfortunate history in relation to 'casual release'.On 2nd March 1997 there was an incident. He approached Mr Guandin, his supervisor, who gave him permission for 'casual release' and he left his place of work at 10.55 and did not return till 11.25, half an hour later. He told Mr Guandin he had been ill and had vomited whilst in the lavatory. Mr Guandin accepted that at the time, but said that there were other supervisors interested in Mr Kalam and that he would have to give a written explanation. In other words, Mr Kalam would have to provide a written explanation, which he did. Then Mr Guandin conducted an investigatory interview; that was on 7th March. The matter passed upwards to a Mr Wellard, who also investigated it. There was a disciplinary interview on 2nd April 1997 and Mr Kalam was dismissed by letter of 17th April 1997, his last day of service being 7th June 1997.On 21st April Mr Kalam appealed within the Post Office Procedural Code and the matter came before Miss Little, the Division Appeals Manager. The appeal hearing before her, after she had looked into the matter, was on 27th May 1997. On 28th August 1997 she dismissed Mr Kalam's appeal and accordingly on 2nd September 1997 Mr Kalam lodged his IT1, his complaint to the Industrial Tribunal, and, as I have mentioned, the Industrial Tribunal's decision was on 19th January 1998.I ought to say something briefly about the nature of Mr Kalam's case. His case - and I am not suggesting that this emerged from the beginning, but it certainly had emerged by the time the appeal to Miss Little was dealt with - was that he had long suffered from migraine. A doctor's letter was produced to that effect. He said that it sometimes made him feel very ill, especially leading to feelings of nausea. He said that he could not be sure at any time, when he was inflicted by migraine, how far it would make him ill. One could not tell in advance what the effects of an attack would be. He said that on 2nd March 1997 he felt unwell but could not know how unwell he was about to become. He said that he asked Mr Guandin if he could have a 'casual release', that he had not said at the time that he was unwell, because he did not know that he would be. But that once he went into the lavatory, or whilst there, he felt very nauseous and in fact vomited several times over a period of time. He said that he cleaned himself up, gathered himself together and returned to work. He said he had been seen to be unwell by a number of colleagues, and, indeed, that a few days later he was ill again and was quite plainly seen to vomit by reason of his condition. He said that he was extremely keen to keep his job and would really have done nothing to jeopardise it and had been very grateful that his earlier brushes with the disciplinary code had led only to suspension rather than actual dismissal.The Industrial Tribunal held as follows:
"3. The Post Office assert that the reason for Mr Kalam's dismissal was conduct, that is to say, that his further abuse of the casual release whilst he was under a suspended dismissal.
. ..We are not satisfied that there was any proper investigation of the issues raised.. ..The matter was also raised before Miss Little on appeal and although the evidence before her clearly supported Mr Kalam's case, she nevertheless upheld the appeal. She could not give us any satisfactory explanation of why she refused to accept the statement of independent witnesses."I think that suffices as a matter of background.We then turn to the Notice of Appeal lodged by the Post Office, for whom Mr White has appeared, and that raises a number of grounds. The first is:
"i) The Tribunal makes no finding of what it found to be the principal reason for dismissal (British Railways Board -v- Jackson (1994) IRLR 235, CA).
It is obviously desirable that a tribunal should make an express finding, but here the case was manifestly one of "conduct" and the Industrial Tribunal say so. They put it, it is true, by reference to the Post Office's assertion, as I have read from paragraph 3, but it is hard to resist that that is an adequate statement of the reason for dismissal, and indeed Mr White does not press that point with any vigour.The second ground in the Notice of Appeal is that:
"ii) The Tribunal have not shown by their decision that they have identified the correct test of fairness (Conlin -v- United Distillers (1994) IRLR 169, Ct of Sessions). No explicit statement of the test being applied appears in the decision and the burden of proof appears to have been incorrectly placed on the Appellants to show fairness."
The Notice of Appeal refers to two expressions where it said by the tribunal:

"We are not satisfied that there was any proper investigation of the issues"

That was a passage I have already read, and also:

"She could not give us any satisfactory explanation ..."

Again, that is a passage I have already read.The Conlin case was a case where it had appeared that the Industrial Tribunal had applied the wrong test. Here, one can say with some fairness, that there is nothing which clearly shows that any wrong test was applied. It is a fair criticism that the nature of the test being applied is not expressly stated but one cannot say that it is clear that the wrong test was applied. One cannot jump from the view that no explicit test is mentioned to the conclusion that therefore the wrong test was applied. The references in argument to "satisfied" and "satisfactory" are, in our view, the very sort of pedantic examination which is discouraged in relation to decisions of Industrial Tribunals. In neither context is a burden or a burden of proof mentioned and it seems to us that the reference "we are not satisfied that there was any proper investigation of the issues raised" it is really no more than to say, applying the balance of probabilities, which is the correct balance or test, "we do not hold that there was any proper investigation of the issues raised". There is no indication there that suggests that necessarily the Industrial Tribunal regarded a burden to exist upon the employer or to be lightened in the task of the employee. So far as "satisfactory" is concerned, in relation to the expression "she could not give us any satisfactory explanation of why she refused to accept the statements of independent witnesses", again "satisfactory" there means no more than "appropriate" or "credible" or "acceptable". There is a world of difference between saying that "we are satisfied that such and such", which does not necessarily indicate the existence of a burden of proof on the one hand, and some expression which clearly indicates the existence of a burden. We do not feel able to say that either of those expressions wrongly indicates that one party or another was under a burden or that one party or another need to respond because of the burden being on the other side. So we do not attach weight to this second ground.The third ground is:
"iii) The Tribunal do not give sufficient reasons or proper explanations for those reasons to support the finding of unfair dismissal ..."
There is a reference here to Meek -v- City of Birmingham District Council [1987] IRLR 250 . It is plainly desirable that reasons should be given. We are bound to say that this is a decision that causes us considerable unease. It is shorter than it might have been and, although brevity is attractive, it is at a price, and this is, not to put too fine a word on it, a lazy decision. Of course, it would have been improved by being more explicit. But, on the other hand, it was clear that the Industrial Tribunal held that no proper investigation of the issues raised had been conducted and that the internal appeal machinery had been inadequate and they expressly hold that there had been too much reliance upon Mr Kalam's previous conduct. In other words, the result was coloured by the fact that he had earlier been guilty of not wholly dissimilar abuse of the 'casual release' procedure. The well-known summary in Meek is that a party should know why it has won or lost and, although it could far better have been more fully explained, we think that this decision scrapes home, so to speak, in the sense that it was clear enough that the tribunal took the view that there had been no proper investigation and too much reliance on what Mr Glyn conveniently calls "previous". Mr White also complains that no guidance is given. He says that a body like the Post Office wishes to be told, if it is wrong, how it has gone wrong, so it can amend its procedures and practices. Well, plainly guidance is desirable, but no decision of a Industrial Tribunal should be struck down simply on the ground that it fails to give guidance. We think that, narrowly, the Meek test is met here, although we would not wish to exonerate the tribunal from the charge of laziness.The fourth ground is that:
"iv) In paragraph 5(4) of their decision the Tribunal considered the actions of Mr Wellard, the manager who made the initial decision to dismiss Mr Kalam. The Tribunal only identify two flaws in his actions (although they state that there were several). One reason given was that Mr Kalam did not know that he faced dismissal. This is clearly contrary to the unchallenged documentary evidence before the Tribunal that Mr Kalam had received just such a warning."
In fact, the reason given by the tribunal was not that Mr Kalam did not know that he faced dismissal; that, I think, is a misunderstanding. What the tribunal had said in their paragraph 5(4) was that:
"He did not give Mr Kalam [ the ] notice that he was likely to face dismissal ..."
It was not that Mr Kalam did not know, but that he had not been given due notice. There are in the Post Office Code three stages of investigation. First of all there is discussion with the manager, that is Rule 11.1; then there is a fact-finding interview, that is Rule 11.2; and then there is a disciplinary interview, Rule 11.3. The disciplinary interview has provisions about who can attend. What Rule 11.3 says:
"At the interview you are entitled to be accompanied by a friend, who must be a Royal Mail employee from the same work location as you."
Between the second and third stage, if the investigating manager considers that dismissal is a possible outcome, he has to give notification to that effect. The Rule says as part of 11.3:
"If the manager is considering dismissing you the notification will make this clear."
and that was, indeed, done.The notice given by Mr Wellard on 27th March 1997 indicated that following the investigatory interview on Friday, 7th March, an interview was arranged in order to give Mr Kalam an opportunity to answer the charge. At the foot of that it says:

"One possible outcome could be your dismissal."

It is quite plain that at the stage at which the Rules require it, the notification was given.But there had been earlier an investigatory interview on 7th March 1997, and it was Mr Guandin, the Section Manager, who had given notice of the convening of that on 4th March. That investigatory interview notice said:
"You may be accompanied by a friend at the interview, who must be an employee of Royal Mail from your work location ..."
In other words, it was importing into the investigatory stage a requirement that, so far as the Rules are concerned, only expressly applies at the disciplinary stage. There is no doubt that the Industrial Tribunal was wrong to conclude that Mr Kalam had not been given notice that he was likely to face dismissal but I feel some sympathy to the Tribunal because, given that the Post Office introduced into the second stage - the Rule 11.2 stage - the requirement that is expressly related only to Rule 11.3 stage, it seems to me that there was a great possibility of confusion between the stages. That, perhaps, is rather a lengthy explanation. It certainly does not justify the mistake of the Industrial Tribunal which was wholly their own mistake, but if one asks is the mistake so serious that the decision cannot stand once it is recognised to be a mistake, we do not feel that it can be given that importance. Had the only defect been that, well, different considerations might have applied. But the Industrial Tribunal did find that there had been too much reliance upon Mr Kalam's previous conduct and that was a far more important ground.There were, it seems to us, procedural weaknesses in the Post Office's steps taken. We have not had them developed before us, or indeed, either attacked or defended. But one can see that there were some weaknesses in the procedure that was adopted. To give an example, it emerged on 4th April 1997 that Mr Guandin was alleging that on the day Mr Kalam had not shown any signs of not being 100% fit. Well, that plainly is an important point. That was reported to Mr Wellard by Mr Guandin who regarded it as an important point because, when he made a note on 22nd April, he noted that:
"Mr Kalam showed no outward signs of feeling unwell after coming back from Casual Release."
There is no blame on the Post Office for not looking into the question before 4th April 1997 because before Mr Guandin raised the point on 4th April there is no indication that Mr Kalam had said that he had looked unwell. But it was an important point and it emerged before the dismissal on 17th April, but there is no indication that it was reported to Mr Kalam that Mr Guandin was now saying that Mr Kalam had not looked unwell. Had Mr Kalam been told before he was dismissed that it was by then being said that he had looked well enough on the day, then Mr Kalam might have been able to collect his so-called independent witnesses who later indicated that he had looked unwell at that time, before dismissal. Who is to know what result that might have had? That is, as it seems to us, a procedural defect; it is not, perhaps, a crucial one, but one cannot say that it is wholly unimportant. I think that, in fact, that there are other possible weaknesses; for example, looking at Mr Wellard's notice of 22nd April, his memorandum speaks of his having received a statement from Mr Guandin. He said:
"Following this interview I made further enquiries with Mr Guandin, Section Manager, who has submitted a written statement (attached) to the effect that; ..."
He then states the effect. The first effect that is said to have emerged from Mr Guandin's notes was that:
"Mr Kalam on his return from the Casual Release had not approached him for an explanation but it was Mr Guandin who questioned him for taking longer, (30 minutes) although Mr Kalam claims it was not more than 20 minutes."
In fact the note which is on page 39 of our bundle, says nothing of the kind.I do not think it is necessary to investigate further the possibilities of procedural deficiencies or abuse. But the case plainly is that if Mr Kalam had truly been unwell, as he claimed, then it would have been surely impossible to describe the 30 minutes spent as some form of abuse, and so the question became "Did the employer have reasonable grounds for a belief that Mr Kalam had not truly been unwell?" Well, the Industrial Tribunal took the view that Miss Little had really seemed to assume that Mr Kalam was not truly unwell but that she had been unable to explain in her evidence to the tribunal why that was so. She just could not explain to the tribunal why she came to the decision that she did. They held:
"She could not give us any satisfactory explanation of why she refused to accept the statements of independent witnesses."
By the time the appeal before Miss Little was heard she had before her a doctor's certificate or letter saying that Mr Kalam had had migraine for years. She had a letter from Mr Shokar that Mr Kalam looked like death warmed up at the time. She had a notice from Mr Gilbank saying the Mr Kalam was obviously ill. She had a letter from Ms Mangan saying that Mr Kalam was not himself. She had indications that Mr Kalam had been sick a little later on 5th March and had so been observed by the first-aider who was in the area. Against that, true it is that Mr Guandin had said that he had not looked unwell but there is no plain explanation of why that evidence should have been preferred against Messrs Shokar, Gilbank and Ms Mangan. Then there was very strange evidence from Mr Bird. Mr Bird said that he thought that Mr Kalam had looked well, but he came up with a totally different explanation of the visit to the lavatory and the absence from work. He said on 17th June 1997 in a note to Miss Little:
"Mr Kalam approached me in the late morning and asked me to speak to Mr Ken Guandin, Frontline Manager, to see if he would drop the case for him. He also informed me that the actual reason he was not on his point of duty was that he went to give brother some money."
Now that was a quite different explanation that no-one else seemed to have spoken of at all. Mr Kalam said that it was a total fabrication. There is no indication whatsoever that its truth or falsity was looked into in any way at all. If it had been, well then, suppose it was held on investigation that Mr Bird was not telling the truth, that would, of course, have greatly strengthened Mr Kalam's case. There is no explanation of why it was not looked into. That alone, would justify the view that there had been no proper investigation of the issues raised.We do not need to say that we would have held as the Industrial Tribunal held. We have already been critical of the brevity and laziness of the decision. But if we ask ourselves whether an Industrial Tribunal properly instructing itself could not have arrived at the conclusion which they did - that there was not a proper investigation - we find, although the decision causes us unease, that we cannot say that no Industrial Tribunal properly instructing itself could have concluded as this one did. Once an Industrial Tribunal concludes that there has been no proper investigation, well then, the question of the reasonable band of responses open to a reasonable employer hardly arises because it is unlikely to assist an employer that he responded reasonably where there had been an inadequate investigation. One has to say a reasonable response to what , and to find out the answer to what , one has to have some form of adequate investigation. The reason why one finds here no reference to the band of responses open to a reasonable employer seems to us to be that it was conceded below that if it was the case that there had been an adequate investigation and if it was the case that therefore the employer had reasonable grounds for the belief that the incident had occurred as it took it, well then, dismissal would be within the reasonable band of responses. Once that had been conceded, as it was at the very outset according to the Chairman's notes at the Industrial Tribunal, one can see that it is unlikely thereafter that one finds reference to the reasonable band of responses.We are uneasy at the brevity and laziness of the decision, but we detect, strictly speaking, no error of law and accordingly, we dismiss the appeal.