MR I HAMMOND v SIR JOHN FITZGERALD LTD [2000] UKEAT 1033_98_0603

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 1033_98_0603Case No Appeal No. EAT/1033/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR I HAMMONDAPPELLANTSIR JOHN FITZGERALD LTDRESPONDENT
Before
Mr Justice Burton Mr P DawsonDate 6 March 2000
[1]APPEARANCES For the Appellant MR P McDONNELL (Representative) For the Respondent MR D CLARK Senior Consultant Employment Tribunal Representation Service IRPC Group Ltd Stockwell House New Buildings Hinckley Leicestershire LE10 1HW MR JUSTICE BURTON : This is an appeal by Mr McDonnell on behalf of Mr Hammond, in respect of Mr Hammond's dismissal by Sir John Fitzgerald Ltd, on the basis of an allegation that, while acting as doorman at the public house operated by the Respondent company, the Appellant was involved in the distribution of drugs. There were a number of parties who gave statements to the Respondent company, which led the Respondent company to form that conclusion. In the circumstances we do not feel it necessary to set out the detail of those allegations, particularly given that they involved allegations of the commission of what would plainly be criminal offences.[2]A hearing took place on 17 December, which it was conceded by the Respondents before the Tribunal was procedurally unsound and defective and could not be relied upon by them as supporting a fair dismissal. Mr Hammond however, appealed against that disciplinary hearing and an appeal hearing took place on 13 January 1998, which was presided over by a Mr Garrett, General Manager of the Company. At that hearing Mr Garrett took a short contemporaneous note which he then subsequently copied out again in handwriting more fully.[3]The Respondent considered the appeal by Mr Hammond and rejected it and the conclusion of the Tribunal was (and this has not been the subject of any appeal before us) that the fairness of the hearing before the appeal tribunal, subject to the one point which is the subject matter of this appeal, cured any defectiveness in relation to the disciplinary hearing in the December. The Respondent company, through Mr Garret, concluded that its belief in the commission of the matters complained of by Mr Hammond during his employment and at their premises was well founded and they confirmed the dismissal.[4]The application by Mr Hammond before the Industrial Tribunal was heard by Mr Pickard and Members on 11 May 1998 and he delivered the decision of the Tribunal, which was unanimous, on 10 June 1998.[5]Mr McDonnell, a friend of Mr Hammond, conducted the application on his behalf before the Tribunal, as he has done before us today, having put in a lengthy skeleton submission which we have read. He has done so concisely and with courtesy.[6]The Employment Tribunal upheld the decision of the Respondent and dismissed the application.[7]The two grounds of appeal before us are both along similar lines, as will be seen, but relate to different points in the timetable.[8]The first ground of appeal is based upon the case on the Appellant's behalf that he was not given the opportunity at the appeal hearing to see and understand the statements, which appear to have been very short and unsigned, of those who had made the allegation on the basis of which the Respondent employers reached the conclusion they did. Those statements included statements from an ex-girlfriend of the Appellant which supported and corroborated the allegations.[9]The second ground of appeal is that when the Employment Tribunal hearing itself came on, Mr McDonnell and his friend, the Appellant, were only given copies of the statements just before the hearing began and consequently had an insufficient time to consider them for the purposes of putting forward Mr Hammond's application, and Mr McDonnell says that he asked for some time to consider the statements but was not given that time by the Tribunal. We deal with those two points in turn.[10]First, so far as the 13 January appeal hearing is concerned, the evidence given by Mr Garrett in a Witness Statement before the Tribunal relating to that appeal hearing, was in paragraph 8 of his Witness Statement:
"Although Mr Hammond had very little to say for himself, other than the statements were wrong and not true, I decided that before I could reach a decision on the appeal I needed to personally check the information obtained by Mr Hornsby."
He then gave evidence that he took further steps by way of investigation even after the appeal hearing.[11]That statement was based upon, not only his own oral recollection of what occurred, but two contemporaneous notes that he himself had taken, one almost exactly contemporaneous and one copied up shortly thereafter. The longer note reads as follows:
"The process of the appeal was explained to Mr Hammond and that it was his meeting. Mr Hammond was shown a number of statements that had been transferred to plain paper and were unsigned. He was also shown a 'wrap' which was made from a lottery ticket and appeared to have contained a powder. Mr Hammond read the statements and suggested they were wrong. They were heresay (sic). Mr Garrett suggested that we needed some more information to assist in the appeal. Mr Hammond just reiterated that the statements were not true. Again the point was made that we needed a further explanation. Mr Hammond suggested that he no longer wanted to work for the company. Mr Garrett asked if he wanted to say anything further. Mr Hammond said he had nothing more to say. Mr Garrett closed the meeting and indicated that he would need to verify the statements and would give a response as soon as possible."
The conclusion of the Tribunal was that statements were available at the appeal hearing.[12]Subsequent to the decision of the Tribunal and the making of this appeal, the Chairman has been invited to make comments which would, in any event, further avoid the need for the provision of any specific notes of evidence. From those comments we have the benefit of knowing what his note was in relation to the evidence that the Appellant himself gave about what occurred at the appeal and that note reads as follows, of the Appellant's evidence:
"At the disciplinary hearing I did not know the charges. At the appeal – I knew then what the allegations were. I did read the documents typed. I said I no longer wanted to work for the company. I did not read all the statement. I was shown the lottery ticket and the typed bits."
We further had the note, apart from Mr Garrett's evidence in chief and cross examination, confirming what I have already indicated, that there was apparently evidence from a Mr Hornsby of the Respondents who, under cross examination, said of the appeal:
"At the meeting we gave them [that is the statements] to him to read. I do not remember him asking for copies."
[13]In those circumstances it appears to us clear that at the very least there was evidence upon which the Tribunal was entitled to find that the Applicant did have the opportunity of considering statements at the appeal hearing, knew full well what they contained, knew the nature of the case being made against him and did not seek to say anything more than that he denied the matter, although in the end he said that he was not interested in working further for the Company, which effectively was in those circumstances rather a surrender to the case being made against him without, of course, in any way admitting it.[14]It appears to us that the employers were perfectly entitled in those circumstances, not least with the addition of apparent further researches by Mr Garrett, to reach the conclusion they did, but more importantly the Employment Tribunal was entitled to reach the decision it did that the employers acted reasonably in arriving at that belief and consequently had grounds for fair dismissal.[15]The second basis of the appeal is more personal to Mr McDonnell himself in the sense that he was then, as he is now, the advocate for the Appellant. It appears that the Solicitors who had been acting for the Appellant prior to the Tribunal went off the record shortly before the hearing. They had been asking, as the Appellant had been asking, for bundles for the hearing and shortly before the hearing the Respondent supplied a list of the documents that it was proposing to rely upon at the Tribunal.[16]It seems possible that they could have gone further and actually supplied the bundle, although that would have cost them some money and it is not normal to do so, at least without a Solicitor's undertaking to pay the costs, where Solicitors are on the record.[17]Whatever may have been the position, in fact the result of the matter being dealt with in that way and the Solicitors in fact coming off the record, was that on the day when the hearing began before the Tribunal Mr McDonnell had not seen, in advance, the statements, which on the finding of the Tribunal had been supplied and shown to the Appellant at the appeal hearing itself. He was given those documents outside the Tribunal shortly before he went into the hearing. He, Mr McDonnell, says that he asked for the opportunity to read the statements before being required to conduct the case, on behalf of Mr Hammond, effectively a short period. It is not suggested he asked for any adjournment, but he asked for a short period to assimilate the statements and he said that the Chairman and the Tribunal refused that request.[18]The Chairman has been asked for his response to that and he answered the question in a letter dated 16 June 1999 to this Appeal Tribunal as follows:
"1. Was the Chairman aware that the Respondent's bundle of documents including the witness statements was handed to Mr Hammond for the first time at the Tribunal Hearing? YES. 2. Did Mr McDonnell, Mr Hammond's representative, ask for the opportunity to read those statements before being required to conduct the case on behalf of Mr Hammond at that Tribunal Hearing. I DO NOT RECALL SUCH A REQUEST. 3.Did the Chairman refuse the opportunity for him to do so? I WOULD NOT HAVE REFUSED."
[19]Those answers given by the Chairman have been the subject of further comment by Mr McDonnell in response and it is always, of course, difficult for any Appellant to go behind such a firm statement by a Chairman of a Tribunal, for which there could be no opportunity or need for cross examination of the Chairman, or calling the Chairman to give oral evidence. It is certainly not the case necessarily that this Appeal Tribunal automatically accepts what a Chairman says in those circumstances. It will still listen sympathetically to any submissions that are made but the fact remains that that is a very firm reply by the Chairman.[20]It seems to us possible that Mr McDonnell may think he asked for time and may have commented that he had only just received the documents and thought that that was an indication that he wanted time, without actually making such an application. Perhaps that is the case, perhaps it is not, but this Tribunal has not limited itself to simply saying, well because the Chairman says no application was made, it therefore was not. We have asked ourselves the question, what difference in fact would it have made if Mr McDonnell had asked and had been granted the half an hour that he was asking for. We have also asked Mr McDonnell that question, and Mr McDonnell was unable to come up with any answer and it is therefore not surprising that we have not come up with any answer either as to whether it would have made any difference and we are entirely satisfied that it would not.[21]In those circumstances we do not conceive that there was in any way any unfairness by the Tribunal, or any procedural irregularity, but even if the position were that some time had been given to Mr McDonnell, whether he asked for it or not, then, given the finding of fact that the Appellant himself well knew what was in those statements and had been given the opportunity for dealing with them at the appeal, the fact that the Appellant knew the nature of the case on any basis, and had known it for some months prior to the Employment Tribunal itself and that he had not come to the Employment Tribunal armed with any evidence, but simply armed with the intention to make the same denial as he had made before the employers some months before, and further the fact that the statements appear to have been very short, so that in fact we are satisfied Mr McDonnell was able to assimilate them, albeit in the short time that he fact had to look at those documents, we are satisfied that there is no complaint whatever that can be made about the handling of the Tribunal, or about the procedure adopted by the Chairman; nor any case that can be made that this Appellant did not know what the case was, or did not have an adequate opportunity to deal with it, either himself or with the undoubted benefit of Mr McDonnell's assistance.[23]In those circumstances this appeal is dismissed.