Mundell v Knoll Pharmaceuticals [1998] UKEAT 811_96_2606

EAT
Mundell v Knoll Pharmaceuticals
[1998] UKEAT 811_96_2606 · 1998-06-26

JUDGE PETER CLARK :

This is an appeal by Mr Mundell against a decision of the Nottingham Industrial Tribunal Chaired by Mr J H Bellis, sitting with Miss M Feighan and Mr R Tarrant, on 28 May 1996, dismissing his complaint of unfair dismissal against his former employers, the Respondent, Knoll Pharmaceuticals. That decision with full reasons was promulgated on 14 June 1996.

The Facts

The reasons formulated by the Chairman are concise and it will be of assistance in explaining our decision in this appeal to set out the background in a little detail, based on the material which was considered by the Tribunal. At a Preliminary Hearing presided over by Morrison J, on 29 January 1997 the President directed that the Chairman be asked to produce his Notes of Evidence. Unfortunately the Chairman fell ill after this case was heard and was obliged to retire. It has not, in these circumstances, been possible to obtain the Notes of Evidence, nor indeed the Chairman's comments on an affidavit sworn in these proceedings on 4 February 1997 by the Appellant pursuant to a further direction by the President. However, we have the comments of the two lay members of the Industrial Tribunal on that affidavit to which we shall refer later in this judgement.The Appellant, aged 44 years at the date of dismissal on 4 December 1995, had been continuously employed by the Respondents since 7 November 1977. He was a plant operative.The material incident, leading to his dismissal on grounds of alleged gross misconduct, occurred on the night of 30 November/1 December 1995 and it was characterised by the Respondent as an assault by the Appellant on an older employee, Chris Dillon, in the D79 canteen.At about 4.45am on 1 December Mr Dillon reported to the shift chemist, Mr Gregory, that he had been assaulted by the Appellant and his spectacles had been broken. He also complained of suffering a slight cut and bruising of his eye, presumed to have been caused by the breaking of the spectacle side frame. Mr Gregory later interviewed Mr Dillon who said that he did not wish to get anyone the sack and asked Mr Gregory not to report the incident further, saying that his family would take care of things. Mr Gregory nevertheless decided to report the matter to higher management and did so by written memorandum.The matter was taken up by Dr Bowen, the Beeston Chemicals production group manager, who suspended the Appellant by a letter of 1 December and required him to attend a meeting with him on 4 December at which the Appellant's local trade union representative, Mr Harry Marshall was to attend.Prior to that meeting Dr Bowen interviewed three employees who had been present in the canteen when the incident involving the Appellant and Mr Dillon took place. Each was interviewed in the presence of Mr Harry Marshall. None was willing to become involved for what they described as fear of reprisals from the Appellant. Mr Marshall agreed that they could remain anonymous. Each signed a statement giving his account of the incident. The general consensus was that the Appellant went for Dillon and pushed his head into a glass partition, causing his glasses to fly across the room. There was no specific suggestion that Dillon had struck the Appellant.During the interview held on 4 December the Appellant gave his account of events. He said this, (and I quote from the notes of that disciplinary hearing):
"He went down to the canteen for his break and Mr Dillon was there. They started to shout at each other and Mr Mundell called Mr Dillon a lying bastard. Mr Dillon said that his family would sort it out even if they had to go to his girlfriend's or his Mother's house. Mr Mundell got angry at this and went across to Mr Dillon. Mr Dillon started to get out of his chair and Mr Mundell put his hand on to Mr Dillon's shoulder. He says that he must have accidentally dislodged his glasses. Mr Dillon sat back into his chair.
Mr Mundell says that he got annoyed because some time ago his girlfriend's door was kicked in by four people who arrived in a Nottingham City taxi with baseball bats and pick axe handles. He claims that they were Mr Dillon's family.He offered to pay for the glasses and to take Mr Dillon home - Mr Dillon refused."Copies of the three witness statements taken by employees in the canteen were not given to the Appellant. Based on the evidence before him Dr Bowen concluded that the Appellant had attacked Dillon; it was no accident that his glasses were knocked off. He decided that the Appellant should be dismissed for gross misconduct in that he assaulted a colleague.The Appellant appealed against his dismissal to Dr Page, the director of chemical production. Meanwhile Mr Dillon was seen by Dr Bowen who issued him with a verbal warning, confirmed in writing, for his part in the incident.The appeal hearing took place on 13 December 1995. On this occasion the Appellant was represented by a full time official, Mr Collington. At that hearing the Appellant handed in a written statement in which he set out various background matters concerning his employment and his relationship with Mr Dillon. As to the material incident, he said that grabbed Mr Dillon who retaliated by striking him; the Appellant then slapped him and his glasses fell off and broke. During the hearing Dr Page put to the Appellant Dillon's version, that the Appellant had taken him by the throat and bumped his head such that his glasses broke against the side of his face causing a cut and bruising and the glasses flew across the room. The Appellant denied that version of events, claiming that it was an accident.The question of the witness statements taken by Dr Bowen was raised by the Appellant but Dr Page was not prepared to make them available.Dr Page considered the evidence and representations made by Mr Collington on behalf of the Appellant and concluded that the Appellant had assaulted Dillon and that the dismissal should stand.On 24 January 1996 the Appellant presented his complaint of unfair dismissal. At the Industrial Tribunal he was represented by Mr Collington and the Respondent by their solicitor, Mr Campion, who appears before us today.

The Industrial Tribunal Decision

The Tribunal concluded that the Respondent believed that the Appellant had assaulted Dillon and had reasonable grounds for so believing based on a reasonable investigation. The disciplinary procedure had been carried out fairly, although the Tribunal was concerned about the Respondent's refusal to disclose the three witness statements, which were finally produced by Mr Campion at the Industrial Tribunal hearing. However, on that point, the Tribunal was satisfied that Mr Marshall, who had been present when those witnesses were interviewed by Dr Bowen, had agreed to the non-disclosure. In any event, the nature of the complaint, supported by those witnesses was plainly put to the Appellant and he was given every opportunity to give his side of the story, which he did. Finally, the Tribunal found that dismissal fell within the range of reasonable responses open to the Respondent employer.

The Appeal

By his Notice of Appeal, settled by Solicitors and dated 19 July 1996, the Appellant contended that the Tribunal had failed to take into account or give sufficient weight to the fact that Mr Dillon had made threats against his mother; that the Appellant could not fully meet the allegations against him because the witness statements taken by the Respondent were not disclosed to him during the disciplinary process and when they were produced before the Tribunal the Appellant was given insufficient opportunity to consider them; that his account of earlier harassment and discrimination by his immediate superiors within the Respondent was wholly disregarded by the Tribunal in their reasons and that there was disparity of treatment between himself on the one hand and Mr Dillon, who was not dismissed.In permitting the matter to proceed to a full appeal hearing the President, giving the judgement of this Tribunal at the Preliminary Hearing, considered the following points in the appeal to be arguable:(1) a complaint about the conduct of the Tribunal hearing whereby the Appellant was not permitted to give evidence on his own behalf.(2) whether the Tribunal properly took into account the Appellant's contention that he had applied for voluntary redundancy, and the history of relations between the Appellant and Dillon.(3) Whether the Tribunal referred to any evidence that was presented to them or whether they concentrated on what the Respondent did or did not do in its investigation of the alleged misconduct.In his affidavit, lodged pursuant to the President's direction, the Appellant complains that he was not provided with the three witness statements until the Tribunal hearing. When Mr Campion applied to adduce them in evidence the Chairman adjourned so that the Appellant and Mr Collington could read them. He contends that he only had chance to read one of the three statements, that of a Mr Stafford and he was then recalled to give evidence. He says in his affidavit that a written statement prepared on behalf of him by his representative was put in; Mr Collington asked him no questions and then he was cross-examined by Mr Campion. He asserts that he informed the Chairman that he had not finished reading the statements but the hearing nevertheless continued. After being asked three questions by Mr Campion in cross-examination the Chairman intervened to say that he felt he had heard enough and he knew what his decision was.The Appellant then sets out his account of the past relationship between himself and Dillon, which included a visit in 1992 or 1993 by men who had smashed the door of his house, whilst he was absent, with a sledge hammer after Dillon had informed him that he was going to send his son and son-in-law and his mates to sort him out, and he would get his knee cap broken. Finally, he refers to earlier incidents when he had complained to management, and his sick absences, which he contends engendered hostility towards him by the time of his dismissal.

The Parties' Submissions

Mr Mundell has presented his appeal in person. He submits that after 18 years impeccable service his dismissal was unfair. He did not assault Mr Dillon; He was defending himself from threats made by Dillon and directed, in part, to his elderly and infirm mother. He asks to clear his name.We have sought to explain, we fear unsuccessfully, that it is not our function to retry questions of fact. Our jurisdiction is limited to correcting errors of law.On one aspect of his submissions we cannot accept what he has said. He contends that before the Industrial Tribunal he gave no evidence before being cross-examined by Mr Campion. Mr Campion tells us that in fact the Appellant read out a written statement to the Tribunal, a copy of which was given to Mr Campion and which he has in turn copied and placed in a bundle prepared for the purposes of this appeal. We prefer Mr Campion's account for the following reasons:Mr Mundell tells us that that particular statement was prepared on his behalf after the Tribunal hearing by Solicitors whom he then instructed. However it bears the reference of Mr Collington, the Appellant's full time trade union representative: we see that from a letter to the Appellant from Mr Collington dated 1 May 1996. That letter enclosed a draft statement for the Appellant to approve and return with a view to its being read out by him at the Industrial Tribunal hearing. Mr Collington wrote to Mr Campion on 17 May indicating that his member, the Appellant, would read out a statement to the Industrial Tribunal.The statement itself begins:
"In support of my application for unfair dismissal to Nottingham Industrial Tribunal, I hereby state the following facts."
Further, in his affidavit, sworn on 4 February 1997, at paragraph 5, the Appellant states, and this is agreed as a fact by Mr Campion,
"My statement was put in and I was not asked any questions by my union representative..."
We are satisfied that that statement was before the Tribunal and formed the basis of the Appellant's evidence in chief.In approaching this appeal, and in order to assist and do justice to the Appellant, who appears in person, we have put to Mr Campion five issues which we believe arise for consideration in this appeal. Having heard his response we have reached the following conclusions on those issues:

(1) The witness statements

There is authority for the proposition that in an appropriate case the employee accused of misconduct ought to have made available to him the statements of his accusers, Bentley v Mistry [1979] ICR 47, Lewis v Coventry Hood & Seating Co Ltd [1990] ICR 54. Further, where there are grounds for preserving the anonymity of informants, Wood J, laid down guidelines in Linford Cash & Carry v Thomson [1989] IRLR 235 for balancing the requirement that the employee should know the case against him with the need to preserve anonymity for informants who were in genuine fear of reprisals.However, in this case the Tribunal found, and in our view was entitled to find, that the Appellant's position was sufficiently safeguarded by his union representative, Mr Marshall, being present when the three witnesses were interviewed, and agreeing that their statements should not be disclosed to the Appellant.As to the production of the statements before the Industrial Tribunal, we accept the lay members comments to the effect that following the adjournment Mr Collington said that he was ready to proceed with the hearing. Before us today the Appellant has complained about the effectiveness of the representation which he received from Mr Collington. We make no comment on the merits of that complaint, we merely say that the inadequacy of representation at the Industrial Tribunal will not form a basis for appeal against the Tribunal's decision to this Appeal Tribunal.

(2) Disparity of treatment

We bear in mind the guidance of Waterhouse J in Hadjiannou v Coral Casinos [1981] IRLR 352, approved by the Court of Appeal in Paul v East Surrey District Health Authority [1995] IRLR 305, that where disparity of treatment is relied upon as a ground for finding the dismissal unfair, the two cases compared must display truly parallel circumstances. In our view the Tribunal was entitled to conclude that a distinction could reasonably be made by the employer in this case between the respective culpability of the Appellant and Mr Dillon in the circumstances of the material incident.

(3) Failure to consider the background

It is clear from the hand written statement made by the Appellant and put before Dr Page at the internal appeal, and his witness statement put before the Industrial Tribunal, that his contentions as to the history of his relationship with Mr Dillon and his family, and the earlier incidents of conflict with management during his employment, were fully ventilated and considered both by Dr Page and the Industrial Tribunal. Those factors did not prevent either Dr Page or, in due course, the Tribunal from concluding that the Appellant had been the aggressor on the particular occasion, that no blows were struck by Dillon and that assaulting a fellow employee was a serious matter justifying dismissal. We repeat, it is not our function to decide the factual question as to precisely what happened in the canteen that night.

(4) Voluntary redundancy

It does not appear to have been argued below that the real reason for the dismissal was that the Respondent wished to avoid making an enhanced redundancy payment to the Appellant. We say that having considered the course of the internal disciplinary proceedings, the statement put before Dr Page and the witness statement which was before the Industrial Tribunal. Accordingly we shall not permit the point to be raised for the first time on appeal, see Kumchyk v Derby City Council [1978] ICR 1116 , there being no exceptional circumstances justifying such a course, see Jones v Governing Body of Burdett Coutts School (C.A. 2 April 1998, Unreported).

(5) Conduct of the Industrial Tribunal hearing

We have earlier referred to the introduction of the three witness statements in evidence by the Respondent. Two further complaints are made. First, that the Appellant was not permitted to give evidence on his own behalf. Plainly that is not correct. He was called by Mr Collington and read out his witness statement as we have indicated earlier in this judgement. If the performance of Mr Collington was ineffective, as the lay Tribunal members suggest, that is not, (again, as we have pointed out), a ground for appeal to this Tribunal. Secondly, it is suggested by the Appellant in his affidavit that early in his cross-examination by Mr Campion the Chairman indicated that he had heard enough and knew what his decision was. That allegation is not borne out by the lay members in their comments; we accept their account, (supported by Mr Campion), that what the Chairman actually conveyed was that the Tribunal had heard the evidence and would retire to reach a decision. Furthermore, if anyone was cut off it was the Respondent's side, not the Appellants'.In all these circumstances we have reached the conclusion that the Appellant has failed to make out any error of law in the decision and reasoning of the Tribunal. That decision must stand and the appeal must be dismissed.