British Airways Plc v Marshall [1998] UKEAT 441_98_1712

EAT
British Airways Plc v Marshall
[1998] UKEAT 441_98_1712 · 1998-11-01
MR JUSTICE MORISON (PRESIDENT) : This is an appeal against the unanimous decision of an Industrial Tribunal which upheld Mr Marshall's complaint of unfair dismissal and wrongful dismissal, which he had brought against British Airways, the Respondents to his application and the Appellants in this Court.The facts found by the Tribunal can be shortly summarised. The Applicant commenced his employment as a member of the Air Crew, a pilot, in 1971. Since 1986, due to medical reasons, he ceased to be a member of the Air Crew and became an engineer and his employment was summarily terminated on 17 March 1997, by reason of the facts and matters referred to in the decision.On 18 February 1997 the Applicant was on the 2nd floor of his office when he met up with another British Airways employee whom we will call "H", a female. The Applicant normally worked on the 3rd floor where there was a print room. It was to the print room that H was going. Just after she had exited the lift on the third floor, she met up again with the Applicant who was walking along the corridor towards his office. They had a general discussion. The Applicant said that she said she only had 20 weeks to go and explained that she was pregnant. They then entered an office, which was large and open-plan, where there was the print room on the one part and a photocopier just adjacent to the entrance to the print room, but within the office. H went into the print room which was itself divided into two. The Applicant was working at the photocopier outside the print room. H made some remark about there being a mess in the print room, saying words to the effect "Look at this" and the Applicant walked into the room, H following. The Applicant picked up something in the print room whilst H was unloading ribbons from the trolley and stacking them on shelves. While she was lifting the ribbons onto the shelf the Applicant came up from behind her, put his hands on the sides of her breasts and squeezed. She recalls that the Applicant said something like "They lovely" in a low "purvery" voice. Within 25 minutes of that incident H made a written statement about it.After the incident she ran out of the room, calling the Applicant a pervert, and the Tribunal found that the Applicant ran after her, attempting to apologise. She made what would be described in another context as a recent complaint to two people with whom she normally worked. The Applicant said that he had been really stupid, that he should not have done what he had and said "I'm very sorry, I don't know what got into me" and apparently also said things like, "I do not know why I did it, I do not know what came over me" and "is there anything I can do for you".Although the Tribunal concluded that that there were inconsistencies in the material with which they were presented, they said they were satisfied that H had complained that she had been touched without her consent; that she was upset about it; that it was the Applicant who had touched her; that he realised his touching had been found to be unacceptable and upsetting. In another witness statement another employee recalls the Applicant saying "I saw her coming out of the print room and I grabbed a handful". He also apparently allegedly had a conversation in which he had said "I only gave her a squeeze. I can't believe I have just done that. I gave her a squeeze and I think she was upset". The Applicant admitted that he had had that latter conversation. In his own statement on 19 February, the day after the incident, the Applicant wrote this:
"I think that what has happened has been misconstrued as a pass or an advance on her. My feelings were ones of compassion at the time because following on from the conversation that we were having i.e. I was feeling sorry that she was having to lift things and because of the mess, all while she was pregnant, it was an act of compassion as I left, not an advance on her."
It is to be noted that that statement does not make it clear as to whether he was admitting that he had squeezed her breasts, or that he had squeezed her body, or that he had said words at the time when he was doing those actions.The matter came before Mr Bews, who chaired the disciplinary hearing, who heard all of the evidence and saw a demonstration of what was said to have taken place and the Tribunal say this:
"Mr Bews, who chaired the disciplinary hearing and who heard all of the evidence and who saw the demonstration considered that the Applicant had placed his hands on H's breasts and had made a comment to her at the same time, namely 'they're lovely'. Mr Bews found that the Applicant had intended to touch H's breasts. In Mr Bews' view such conduct was gross misconduct."
The Tribunal record that Mr Bews considered the Applicant's personal file, took into account his length of service and all that had been said on the Applicant's behalf as to penalty. Despite those matters, he concluded that the appropriate penalty was summary dismissal and that was confirmed by a letter dated 17 March 1997.At paragraph 7 of their decision the Tribunal said this:
"So far as the unfair dismissal is concerned, the Tribunal cannot fault the disciplinary process carried out by Mr Bews despite detailed criticism made when Mr Griffith-Jones [Counsel for the Applicant] , this Tribunal are satisfied that on the facts before Mr Bews there was ample evidence to support his finding that the Applicant did intentionally touch H's breasts by coming from behind her, placing his hands on the side of her body, his hands touching her breasts and that whilst doing so he said in a low voice 'They're lovely'."
The disciplinary procedure permits a two-stage appeal process, both of which the Applicant invoked. He made the point in his Notice of Appeal that there was a distinction to be drawn between a sexual assault, on the one hand, and sexual harassment, on the other. He was suggesting that, whereas the original charge was sexual assault for which a specific intent would be required, the dismissal letter mentioned sexual harassment, for which such intention was not required and he said that he had never been told that he was facing a charge of sexual harassment. He went on to say in the letter that, in any event, the decision-maker should have preferred his evidence to that of the complainant; that witnesses to the events after the incident were inconsistent and that, in any event, summary dismissal was not a reasonable penalty.The first stage of the appeal took place on 3 April 1997 before Mr Baker. Mr Baker expressed the view that sexual harassment was a form of discrimination and that sexual assault was a form of harassment and he went on to record, as was shown in the notes which were exhibited before the Tribunal and have been provided to us, as follows:
"The issue of intent therefore does not arise. Whether the occurrence was planned or unplanned is therefore not relevant. He was guilty of an act which was improper."
Accordingly, he dismissed the appeal. There was a further appeal from Mr Baker's decision to a Mr Matthews where very much the same arguments were raised on behalf of the Applicant, including a complaint that Mr Baker had not reviewed the evidence and had not looked at the inconsistencies which he wished to have considered. Mr Matthews dismissed the appeal and accompanied by letter dated 6 May 1997 he sets out, at length and with clarity, precisely what the grounds of appeal were that were presented to him and what conclusion he arrived at on those points. What he said in the letter was this:
"I have considered these points very carefully, and I have considered all the information available to me on this case.
I considered the question of the case to answer notified to you being described as one of sexual assault and then one of sexual harassment. It is apparent to me, both from the answers you gave me and from the way in which you have conducted your original defence and your appeals, that you were very clear that the case to answer to which you were responding concerned your conduct with H on 18th February. Specifically, the allegations were that you had made physical contact from behind her, placing your hands on her sides involving physical contact with her breasts, and that you had said 'they're lovely' - all of which caused her significant distress. You would be aware of this from the papers sent to you as a result of the Preliminary Investigation. I do not consider the use of the term sexual assault and sexual harassment to signal such materially different issues or the seriousness with which the company viewed the matter."He went on to say that he was satisfied that the first stage of appeal had been fairly conducted, and he pointed out that he had considered the witness statements together with what had been said, on the Applicant's behalf on the appeal, and had compared the two. He went on in this way:
"H clearly interpreted your actions as unwanted and as a serious and sexually related incident. You have described to me, and I was shown by you and Jim O'Donnell, how you placed your arms on her sides. You also admitted to me that you not only gave her a squeeze as you moved past her but also that you gave her what you described as a 'comforting, compassionate squeeze'. It was clear from H's evidence and from other evidence, including your own, that your contact was unwanted and upsetting.
From your own evidence, I also consider that this physical contact was sexual, intimate and emotional in nature. I believe it was sexual even if mixed with some element or sense of compassion or paternal sense of being protective towards H - none of which are appropriate. You placed your hands close to an intimate and private part of her body. Further, by your own account, you then gave her a squeeze. You also used a phrase which your wife used which many people - and especially someone who you do not know - would consider intimate. Specifically, H considered your actions to be inappropriate. All this to an employee you yourself have said you did not know.I have no reason to consider H as anything other than a credible witness, and I have no reason to doubt the depth of her reaction to what you did.I consider your actions to have constituted unwanted physical contact and an assault - both being sexual harassment. While I do not believe these actions were planned or predetermined, they clearly caused considerable upset and were wholly unacceptable. I do not consider them to have been reasonable actions. As a manager and someone with your service and presumed maturity, you should have known that such actions were unwanted, likely to cause offence and be personally upsetting.I have therefore decided to uphold the original finding that the case to answer against you was proven."Having regard to the Tribunal's findings in paragraph 7, to which I have referred, one might have been forgiven for thinking, in the light of that material, that the decision in relation to unfair dismissal would have been that the Applicant failed, but the reason why the Applicant succeeded on that issue, despite those matters, was set out by the Industrial Tribunal in the remainder of paragraph 7 to which I will now refer. The Tribunal said:
"7. .... However for this Tribunal the difficulty starts at the appeal stage where the question of intention arose. The Tribunal does not find anything of significance in the complaint by the Applicant as to the different title given to the 'offence', initially, sexual assault and then sexual harassment. It is clear that the same incident and the same act is the subject of the complaint and the reason for the dismissal. What troubles this Tribunal is the fact that Mr Baker and Mr Matthews felt that intent was irrelevant."
The Tribunal went on at paragraph 11:
"11. We believe that the failures by Mr Baker and Mr Matthews to properly address the question of intention on appeal when it was raised as the principal ground of appeal flaws the disciplinary process and we believe makes the dismissal unfair. However [we would] then have to consider what the likely conclusion of Mr Barker and Mr Matthews would have been had they properly considered the point. It seems to us highly likely that had they have both considered the question they would have reached the same conclusion as Mr Bews. However, we did not hear argument from counsel as to whether in the event that the appeal process was properly carried out what the chances would have been that the result would have been the same and we wish to hear argument on that before we make a decision."
In relation to the wrongful dismissal the Tribunal said this:
"14. So far as the claim for wrongful dismissal is concerned, considering the best evidence which we had before us, evidence which could be tested and subjected to cross-examination, which was that of the Applicant he admitted touching H on the side of her body and admitted that probably he touched her breast on the side but that touching was accidental. He stated that touching was accidental and not intended. Evidence for the Respondent comprises the statement of H. The statement of witnesses to whom H spoke subsequent to the incident and the reports of the disciplinary proceedings with Mr Bews and Mr Baker giving evidence as to what they were told by H. The Tribunal has to be satisfied on the evidence before it that the Applicant committed a repudiatory breach of a fundamental term of his contract of employment. We find that on the evidence the Respondents have not proved to us that on a balance of probabilities the Applicant's conduct amounted to a fundamental breach of contract."
The arguments which were presented on this appeal with great clarity on both sides, may be shortly summarised.Mr Sutton, on behalf of British Airways, indicated that there were four grounds of appeal, the first two relating to unfair dismissal and grounds 3 and 4 relating to wrongful dismissal. Of those two grounds relating to unfair dismissal, the first was that the Tribunal's conclusion was simply perverse and the second was that the Tribunal decision was wrong in law, in the sense that they were wrong to have concluded that the appellate process and the facts of this case could have rendered what would otherwise have been a perfectly fair decision made by Mr Bews, unfair.In relation to a wrongful dismissal, they say firstly that the Tribunal's decision is wholly unspecific as to how they could have arrived at that decision and secondly, in any event, they say it was manifestly perverse.In relation to the perversity element on the unfair dismissal, our attention was drawn to the notes made of the appellate process, and the letters which the officers concerned wrote to the Applicant following the appeals. It was submitted to us that the Industrial Tribunal had got themselves into a confused state of mind about the word "intention". It was submitted to us that what the two officers on the appeal were concentrating on was whether the conduct in question amounted to unwanted sexual contact of an intimate nature. Both of them were content to conclude that that was so. It was not a matter of deciding precisely where he had put his hands. In other words, whether he had put his hands directly on her breasts, or not directly on her breasts, it was a question of looking at the whole of the incident in the round. Accordingly, it was unfair of the Industrial Tribunal, and quite unreasonable of them, to have suggested that there something fundamentally wrong with the appellate procedure.In relation to the point of law, both parties relied on the decision of The Post Office v Marney [1990] IRLR 170, p.174. The Employment Appeal Tribunal in that case at paragraphs 22 and 23 of the judgment said this:
"It does not follow from any of those passages [the cases referred to] that any and every breach of an applicant's contractual rights of appeal necessarily renders the decision to dismiss and its upholding on the appellate process unfair. That was specifically found to be the case in Whitbread & Co plc v Mills [1988] IRLR 501 and Mr Main-Thompson on Mr Marney's behalf rightly did not seek to persuade us to the contrary. At paragraph 54, Mr

Justice Wood, in that case, said:

'It would follow therefore that not every formality of legal or quasi-legal process is required during the disciplinary and appeal procedures. Each set of circumstances must be examined to see whether the act or omission has brought about an unfair hearing'."So far as we have been approaching the Industrial Tribunal's reason that the denial of Mr Marney's contractual right of appeal resulted in the dismissal being unfair, in our judgment, that by itself is an over-simplification. It is not every denial of a contractual right that has that result. It is, in our judgment, only when the circumstances warrant that conclusion, and only in this type of case of a defective appellate stage there has to be a circumstance that renders the appellate process defective, in the sense that it should or could have found and demonstrated a flaw in the decision at first instance, in the appeal procedures of the employer.So it was argued by Mr Sutton that, having concluded that the first dismissal stage, namely the decision of Mr Bews, was fair and a proper conclusion to have reached on all the material, there was no flaw in the decision at first instance which required to be further considered on an appeal. There was nothing that could be said to have demonstrated a flaw in that decision and indeed, it was not suggested by the Industrial Tribunal that that was so. Accordingly, it was said that the decision of the Industrial Tribunal on unfair dismissal was wrong for those two reasons.In relation to the unfair dismissal complaint, the argument was short and made the points to which I have already referred. Counsel pointed out that it was an extraordinary result in this case; that the Industrial Tribunal, while acknowledging that the two officers concerned at the appellate stage would have been highly likely to have reached the same conclusion as Mr Bews, they themselves felt obliged to reach a conclusion which was entirely the opposite of that.On behalf of the Applicant, Mr Griffith-Jones in an equally able submission, said that the question for the Industrial Tribunal as to whether the dismissal was unfair, having regard to all stages of the dismissal procedure, was a question of fact for the Industrial Tribunal. They heard the evidence of the two dismissing officers and their attitude towards the issue of intent and it was quite open to the Industrial Tribunal to conclude, on the basis of the evidence that they had heard, that the failure of the two officers at the appellate level properly to consider intent, flawed the disciplinary process and rendered the dismissal unfair. He took us to a number of passages in the documents to demonstrate that the two dismissing officers may have, themselves, been confused as to intent.As to the question of when an appeal will render a dismissal unfair, which otherwise would have been fair, he said that that was a pure question of fact and judgment for the Industrial Tribunal. The circumstances referred to in paragraph 23 of the Marney case are simply examples of why, on the facts of that case, the appellate process might or might not have rendered the original decision unfair. It was not intended by that paragraph to lay down principles of law which were binding in every case. In that particular decision, each of the decision-makers were of the same view as to the facts, whereas here it would appear that the decision-makers at the appeal stages had looked at the facts differently from the way they had been viewed and determined by Mr Bews. In other words, at the appeal stage British Airways was taking the view that the Applicant was guilty of gross misconduct, even if the Applicant had accidentally touched H's breasts during the course of an intimate contact with her.In relation to the wrongful dismissal complaint, Mr Griffith-Jones maintained that it was perfectly clear from paragraph 14 of the decision why British Airways had lost. The complaint that there was no sufficient reasoning was not sustainable. The task of a Tribunal, when looking at wrongful dismissal, was to look at the question as to whether on the balance of probabilities the Applicant had done the act complained of, whereas for unfair dismissal the question was different. When it came to the question on the evidence before them (that is the Industrial Tribunal) had the employers discharged the burden of proof? The Tribunal were quite entitled to conclude that they had not, having regard to the fact that none of the primary evidence, that is no evidence from H or from any of the other witnesses, had actually been given in evidence. The only live evidence, which could be tested and subjected to cross-examination, was that of the Applicant himself. Accordingly, it was a finding which was open to the Industrial Tribunal and, as to the suggested conflict between that finding and their decision that it would have been highly likely that the appellate persons would have reached the same conclusion as Mr Bews, that was simply an aspect which the Tribunal were entitled to have regard to. There was no inherent inconsistency between those two findings.It seems to us that the arguments for the Appellant are to be preferred to those on behalf of the Respondent Applicant. Anybody reading the decision of the Tribunal and having reached paragraph 7, bar the last sentence, would have anticipated a conclusion that the dismissal was fair. The Tribunal had, in our judgment, become unduly worried or concerned about the question, as they put it, of intent. It seems to us entirely reasonable that at the appellate stage the employers could conclude that, whether or not the Applicant had intended to touch her breasts, the circumstances of the whole incident involving H was such as to constitute gross misconduct. On his own case, he had grabbed a person whom he did not know. He had probably touched her breasts, albeit on his case accidentally, and had made a comment to her which was entirely consistent with him having touched her breasts otherwise than accidentally and was an intimate touching of a sexual nature. That being so, it was entirely appropriate for the employers to consider whether, given those facts, it would be appropriate to treat it as serious misconduct justifying dismissal. It seems to us that there is nothing inconsistent by what happened at the first stage and what happened at the two stages of the appeal.It further seems to us that this is not a case where it could be said that any defects in the appeal process has rendered the dismissal unfair. Looking at the process overall it seems to us, having regard to the letters which were sent and the notes which were made of what took place at the appellate process, that the case for the Applicant was considered with very great care.The comment by the Industrial Tribunal that the persons conducting the appeal had failed properly to address the question of intention seems to us to be wholly unsustainable on the evidence presented to the Industrial Tribunal. It is clear that a great deal of attention was given to that very question, and the way it was dealt with by those two officers becomes manifest from the documents which were provided to the Industrial Tribunal.Accordingly, we are satisfied that this was a decision which no reasonable Tribunal could have arrived at. Having reached the conclusion that Mr Bews could reasonably conclude that there should be a dismissal, it seems to us that that effectively should have been an end of the case.We can see good reason for arguing that, even given that he had done what he had done, bearing in mind his long and faithful service to British Airways and their size and resources, it might have been possible for them to have dealt with this disciplinary matter in a different way, such as by demoting the Applicant or transferring him to a completely different location, but it was the Industrial Tribunal's conclusion, obviously having looked at the matter with care, that it was correct or at any rate arguably correct, for an employer to treat what had happened as so serious as to justify dismissal despite those factors.On the question of wrongful dismissal, it seems to us quite right, that for Mr Sutton to observe the conflict between the statements that it seemed to them highly likely that had the appellate officers considered the question, they would have reached the same conclusion as Mr Bews, yet the Tribunal themselves, felt able to arrive at a conclusion that the matter had not been proved before them.It is true that the Applicant's evidence was the only evidence which was tested and subjected to cross-examination, but Tribunals are invited to take account of written representations and written statements of evidence. The rules of procedure that apply in Courts of law do not apply in Industrial Tribunals. On the material before them, having concluded that the employers would have been highly likely to have considered that Mr Bews' decision was right, it seems to us that that effectively was the only conclusion open to them.The circumstances are really entirely clear. The evidence as to what the Applicant himself admitted to; what he was observed doing after the incident and the admissions that he made, all led, and inevitably led, to the conclusion that the physical contact was sexual, intimate and emotional in nature. In those circumstances, it seems to us that the complaint that the decision on wrongful dismissal was perverse, because it was simply not able to sit with what they had earlier said in their decision, has been made out.Accordingly, it is our duty to allow the appeal in relation to both matters and substitute a finding that the dismissal was fair and a finding that the Applicant's claim for wrongful dismissal has not been made out.