MR M BUTT v CALIGEN FOAM LTD [1999] UKEAT 951_99_1410

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 951_99_1410Case No Appeal No. EAT/951/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M BUTTAPPELLANTCALIGEN FOAM LTDRESPONDENT
Before
His Honour Judge John AltmanLord Gladwin of CleeDate 14 October 1999
[1]APPEARANCES For the Appellant MS M PLIMMER (of Counsel) Instructed by: Mr N Kennedy Messrs Maidments Solicitors St John's Court 74 Gartside Street Manchester M3 3EL JUDGE ALTMAN : This is an appeal from the decision of the Employment Tribunal sitting over three days in Manchester on 13th January, 15th March and 22nd April 1999. The Employment Tribunal decided that the appellant had not been unfairly dismissed. The appellant appeals on the grounds that in relation to one aspect of the evidence the Employment Tribunal came to a conclusion which no reasonable tribunal properly directing itself on the evidence or the law could have come.[2]The appellant was dismissed for misconduct due to the evidence of other employees. It is his case that the appeal hearing was flawed in that the manager, who, the appellant said, concocted the case against him, was not investigated and his words were not questioned at the internal appeal hearing.[3]In the Employment Tribunal's decision they set out in a discrete section the facts which they found. There were complaints received from employees that there had been intimidation by the appellant which led to employees unwillingly, in effect, lending him what were described as significant amounts of money, at a time or, at least, in part of the time in which he was in a senior position in relation to them. This was potentially and quite clearly the most serious sort of allegation about the way in which an employee was behaving.[4]It appears that a Mr Skinner, the business manager of the respondents, took formal statements from the employees. He arranged for a colleague, another manager, to interview the employees concerned. On the face of it, those interviews confirmed the complaint. Another piece of evidence emerged, apparently, in relation to a proposed fraudulent use of a credit card.[5]There was then a disciplinary hearing. It was to be conducted by Mrs Birtwistle, the Human Resources Manager for the respondents. However, when she arrived and received statements from the four employees, she then set about speaking to a Mr Beckett, the respondents' Distribution Manager, who had carried out the initial investigations, so it is said, and she herself then went on to personally interview the employees. This resulted in the appellant being kept waiting for his disciplinary interview for four hours, a matter which was subject to criticism by the Employment Tribunal. The disciplinary interview then took place. On a number of occasions it appears that the appellant sought an adjournment and it was declined. A decision for summary dismissal for gross misconduct was reached.[6]The respondents conceded and the Employment Tribunal found, that:
"7 … the Disciplinary Hearing was fundamentally flawed having regard to the excessive length of time that the applicant had been kept waiting, combined with Mrs Birtwistle's refusal to allow the applicant an adjournment."
[7]The sole question that arose before the tribunal therefore, was whether the appeal hearing had corrected the admitted unfairness of the disciplinary hearing. The appeal before us is on the basis that the tribunal took a perverse view of the facts in reaching the decision that it did. The reason alleged is that Mr Beckett was not separately investigated.[8]There were, apparently, certain steps taken. I refer to that part of the decision of the Employment Tribunal that focused on the matter that I have referred to. In paragraph 8 of their decision the Employment Tribunal found that before the appeal commenced there were further interviews with the employees and they found:
"… One of the purposes of these further interviews was to identify whether there was any possibility that these employees had in some way colluded or conspired to make false and malicious accusations against the applicant. Both Mr Lucas and Mr Hart concluded that there was no evidence at all to suggest that any such collusion had taken place."
[9]In paragraph 9 the Employment Tribunal record that the appellant had alleged that Mr Beckett was biased against him and was motivated by a desire to have him dismissed. Indeed, he suggested that the desire for him to go was common to the whole of management. The tribunal then found that the respondents' Mr Hart replied in the appeal hearing that that was inconsistent with various promotions that the appellant had had. The appellant then asserted that the employees who had made complaints were telling lies. The response was for them to be admitted to the appeal hearing, where it was recorded that they confirmed their allegations.[10]The Employment Tribunal then found that at the end of the appeal hearing the panel accepted the evidence they had heard from the employees and were particularly concerned about threats and intimidation applied by the appellant to one of them, who was only 20 years of age. They then considered the other factors to which I need not refer.[11]The tribunal then recorded the relevant law, about which no comment is made. They then recorded, if we may say so, with some care, the submissions made on behalf of the appellant. A number of submissions were very properly made on behalf of the appellant by Ms Plimmer, who has conducted the case before us, and it was recorded that she criticised Mr Lucas' conduct of the appeal in failing to investigate the appellant's concerns about the motivation of Mr Beckett.[12]I pause to observe that everything we have read indicates that investigation did take place about that motivation, in that it was considered and a response was given. The real complaint is that not only should the concerns have been considered and investigated, but that there should have been an investigation of Mr Beckett himself and he should have been questioned and interviewed about the allegations that were made.[13]The tribunal then set out its conclusions and they made the following finding at paragraph 24:
"We do not consider there was any obligation on Mr Lucas or Mr Hart to interview Mr Beckett. The applicant had not produced any credible evidence to suggest that Mr Beckett had instigated a conspiracy between the employees. On the contrary, all the information presented to Mr Lucas and Mr Hart suggested that the employees were entirely genuine; their version of events had remained consistent whenever they had been questioned, and the applicant had admitted that he socialised with at least two of these employees."
In paragraph 25 the tribunal say:
"… We reject submissions … that he was denied the opportunity of making representations in relation to his alleged concerns about Mr Beckett or any other matter. Submissions that Mr Lucas and Mr Hart failed to check hand-written notes made by Mrs Birtwistle or Mr Beckett do not, in our view, in any way invalidate the overall fairness of the investigation conducted by the respondent and the Appeal Hearing conducted by Mr Lucas and Mr Hart. …"
The tribunal then went on to say that they were concerned about the evidence of another witness, Mrs Wilcock, which was to some extent inconsistent and unreliable, but that that did not impinge on the overall fairness.[14]In considering whether the Employment Tribunal were entitled to come to that view, we have also looked at the notes of the appeal hearing, exceptionally at a preliminary hearing, that are in the bundle that has been helpfully provided to us. We have been directed to the point at which, in what appears to have been quite a long hearing, the notes of which cover some 22 pages, the hearing being recorded as having started at 8.30 a.m. and concluded at 1.50 p.m. Amongst all the matters said, Ms Plimmer has helpfully identified to us the references to the appellant's concerns about Mr Beckett. At page 66 there is a reference to the fact that it was Mr Beckett who was allegedly first notified of the complaints that were being made. At page 70 the appellant is recorded as having asked if they were aware of any difficulties he had had with Mr Beckett and 'run-ins' between them. That was evaluated by a response that "this happens all the time" in any organisation and people do disagree. At page 71 the appellant asked if the panel had heard that Mr Beckett had said he was not happy with the way the appellant was doing things, and was going to do something about it. The response was that that was day to day management. Later the appellant was asked where this was leading and he suggested that it was leading to a decision whether Mr Beckett had been abusive towards him to such an extent as to whether the appellant wanted to make a complaint to senior management. That was interpreted as being a suggestion that Mr Beckett "had it in for" the appellant. It was pointed out that Mr Beckett had made no allegations against him, that it had come from other people, some of whom had, but others had not, been paid back their money. The question of whether the allegations had been proven was responded to by pointing out the extent of interviewing that had taken place, and that the appeal panel were not a court of law and had to make the best judgments they could. At page 73 the appellant asked, rhetorically, "did I say that could I imagine which manager it had been" and it was suggested that it was "irrelevant". The general wish of management not to want him as an employee was asked about by the appellant and it was said that that could not "hold up". The promotion that had taken place was pointed out. The appellant then asserted that Mr Beckett had told Mr Skinner that the appellant was not fit to be a manager. It was pointed out that he would not have been given a trial if they had not thought he was suitable. The appellant then suggested that there were people "hell bent" on stopping him getting on. He later asserted that, in effect, the statements of the witnesses of the complaints were tainted. He said these three people had been reassured and their statements had got stronger and stronger. "In the first statements there was garbage. Clive B (Beckett) has gone round asking "have you lent this man money."" At page 85 he said that he wanted to speak to Mr Beckett, that there were two points that he had brought up. There were many ways of interpreting it. Mr Skinner said that Mr Beckett was on holiday. Mr Lucas, who was conducting the hearing, said that Mr Beckett "was not concerned with this." In addition, we were told that when the employees came into the appeal hearing, the appellant had an opportunity of putting to them that they had been, effectively, manipulated by Mr Beckett into saying what they did. They were recorded as denying that suggestion.[15]It is quite clear, therefore, that during the appeal hearing, the concerns of the appellant were stated and the appeal panel gave a response to them, which, so it now appears, the appellant is dissatisfied with.[16]There are two sides to many questions. We have referred to the findings of the tribunal. They heard the evidence. They heard the argument. They considered the suggestion that there should have been an investigation of Mr Beckett. They rejected it and concluded that the appeal hearing was an adequate investigation of all the matters that were alleged and they concluded that it corrected the unfairness of the earlier disciplinary hearing. They did so in terms in the passages that I have to referred to in paragraphs 24 and 25 of their conclusions. The tribunal pointed to the absence of credible evidence to support the conspiracy theory and the positive evidence of the genuineness of the complaints.[17]The tribunal had to evaluate the evidence. They may have evaluated it in favour of the appellant's arguments. In the event, they rejected the appellant's arguments. But it seems to us that there was an abundance of evidence which entitled them to come to the conclusion they did. Whilst we can acknowledge the disappointment of any party that loses in an Employment Tribunal, we can find no error of law whatsoever. We cannot find any support for the proposition that their findings of fact were such that no reasonable tribunal properly directing itself could have made on the evidence. Accordingly, the appeal must be dismissed at this preliminary stage.[18]There will be an assessment of costs for the purposes of Legal Aid.