MR S HIRANI v DOME COSMETICS LTD [2000] UKEAT 1390_98_0906

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2000] UKEAT 1390_98_0906

Case No Appeal No. EAT/1390/98

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR S HIRANIAPPELLANT

DOME COSMETICS LTDRESPONDENT

Before

Mr Justice Lindsay

Date 9 June 2000

[1]APPEARANCES For the Appellant MR S HIRANI (IN PERSON) For the Respondents MR T PULLEN (of Counsel) Instructed By: Messrs Kingsford Stacey Blackwell (Solicitors) 14 Old Square Lincoln's Inn London WC2A 3UB MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a full hearing the appeal of Shamus Hirani in the matter Hirani against Dome Cosmetics Ltd. Mr Hirani appears before us today in person and he had been in person below. Dome appears by Mr Pullen, who had also appeared below. Mr Hirani's claims, which are all in contract it has to be stressed, failed at the hearing. We need to say something of the background. Mr Hirani was the Financial Controller for the Dome Group. His contract of employment had the following term within it:

"If, during absence of five consecutive days during the first two years of employment, the employee has not provided the company with a sick note or made contact with the company to explain the reason for absence, then the company may terminate employment forthwith. There is no entitlement to pay in lieu in these circumstances."

His hours of work, which were varied to suit his disposition otherwise to arrive late, were from 10:30 am to 6:30 pm.

[2]On 8 January 1997 he had a row with Miss Meredith, the head of Personnel, and he was sent a written warning that very day. The Tribunal said this:

"5 On 8 January the Applicant had a disagreement with Miss Meredith over a customer enquiry and the argument escalated where both parties raised their voice. Miss Meredith accused the Applicant of incompetence and Miss Meredith left the scene. As a result of that argument, Miss Meredith sent a written warning to the Applicant dated 8 January 1997. This was an official warning letter as a result of language and attitude towards a director of the company on 8 January 1997 which was to be regarded as insubordination. The warning went on to say that if there were any further outbursts of this sort there would be no alternative but to terminate his employment … ."

[3]On getting the letter, presumably on 9 January 1997, Mr Hirani decided not to go into work. His case was that he had telephoned Mr Knox at the Company to tell him that because he had received the warning he was not going to come in to work but was to think about the situation.

[4]The Company's case was rather that they had no notice of any call at all from Mr Hirani on that day, 9 January 1997. Mr Hirani, reflecting on the point, thought that he would take the matter to the Managing Director, Miss Donaldson. He did not attend for work on 10 January 1997. Miss Meredith though, sent a written letter complaining of his absence without notice on both 9 January and 10 January and a third letter requiring him to attend a disciplinary interview on Wednesday 15 January at 10:00 am.

[5]Mr Hirani wrote to Miss Donaldson, the Managing Director, and the Tribunal, as to that, said this:

"6 In reply, the Applicant wrote to Miss Donaldson setting out the background to the incident and stating that he did not think he was going to get an impartial and fair hearing at a disciplinary hearing and he would not return to work as normal until he got (i) a withdrawal of the unjustified letter of warning, and (ii) no deductions would be made from his salary for the days he had been compelled to stay away from his job and that (iii) his hours were officially agreed at 10.30 to 6.30."

[6]The Group General Manager, sometimes called Mr Hardiman, sometimes referred to as Mr Hardman, but plainly the same individual, replied and the Tribunal dealt with that in their paragraph 7:

"7 Mr Hardiman replied to that letter on 14 January stating that he did not think it appropriate to answer the points raised in the letter but expected to see him at the disciplinary hearing at 10 o'clock the next day. The Applicant failed to attend the disciplinary interview on 15 January so Mr Hardiman adjourned it to be heard on 17 January at 10 o'clock and Mr Hirani was notified of the change. The Applicant did not attend the meeting on 17 January but wrote another letter on 16 January to Miss Donaldson, reiterating his stance which is that he would not come in to work as normal until the Respondents had withdrawn the letter of warning and that his hours of work would be agreed at 10.30 to 6.30. …"

[7]It is to be noted that it was no specified condition of Mr Hirani's attending the disciplinary hearing that Miss Meredith should take no leading part in it or that she should take no leading part in it save as a witness.

[8]There was a hearing at the Tribunal before the Chairman, alone, Mrs Prevezer. She set out the matters which we have referred to and she continued, in paragraphs 9 and 10, as follows:

"9 The terms of employment are set out in the written contract but in addition there are implied terms which are implied at common law between a master and servant. There is an implied term in a contract that the servant shall obey reasonable instructions of the master and if he fails to obey a reasonable request or to comply with one of the terms of the contract, then the master can treat the contract as repudiated and would not be bound by the terms thereof. 10 There is an implied [term] in the contract under which the Applicant worked that he would attend work at the time specified unless he had a reasonable excuse or had been given authorisation to be absent, and also that he should obey reasonable requests of his employers. From these facts, I conclude that the Applicant failed to abide by the terms of his employment contract. He failed to attend work as requested and confirmed in evidence that he did not intend to attend during normal working hours for the reasons set out in the letters that he had sent to the managing director. In addition, he failed to obey the request of the employers to attend the disciplinary hearing arranged for 15 January and adjourned to accommodate him and enable him to attend for 17 January. I find, therefore, that the Respondents were entitled to treat the contract as at an end due to the repudiation of the contract by the Applicant as he had made it perfectly clear that he did not intend to be bound by its terms."

In her final paragraph, paragraph 11, the Chairman says:

"11. For those reasons, therefore, the Applicant's claim for pay in lieu of notice under the written terms of the contract fails."

[9]There had been no claim for unfair dismissal. The complaint was wholly in contract, as we mentioned earlier. The Decision followed a one-day hearing on 18 November, as long ago as 1997, and it was sent to the parties on 8 December 1997. On 18 January 1998 Mr Hirani put a date on his Notice of Appeal. It does not seem to have been received until 20 January 1998, one day out of time. The Registrar refused any extension of time. Mr Hirani appealed against that and on 22 October 1998 Mr Justice Morison, President, extended time and the Notice of Appeal was validated. The matter accordingly came on as a preliminary hearing at the Employment Appeal Tribunal on 22 March 1999. In the meantime, without the benefit of any leave to do so, Mr Hirani had purported to amend to add to his original Notice of Appeal. He did that on 16 December 1998 and a further undated addendum was added still later.

[10]Mr Hirani's allegations from the outset had included that Mrs Prevezer had not been impartial and that he had thus not had a fair hearing. When the preliminary hearing came on, on 22 March 1999 at the Employment Appeal Tribunal, it was pointed out to Mr Hirani that that type of allegation required an affidavit if it was to be considered by the Employment Appeal Tribunal: see paragraph 9 of the Employment Appeal Tribunal Practice Directions - and the matter was accordingly adjourned for such an affidavit to be provided. At that hearing Mr Hirani had mentioned a wish to adduce further evidence. It was ruled only that he would be able later to seek to adduce that later evidence; leave actually to adduce it was not given. Mr Hirani then swore an affidavit on 12 April 1999 and the adjourned preliminary hearing came on on 18 October 1999. The matter was permitted to go to a full hearing. No leave was given for the production of fresh evidence.

[11]The matter has taken an inordinate time to get to a full hearing but that, although unfortunate, is not without fault on the Appellant's behalf, although I am not suggesting that it is exclusively to be laid at his door. But it is to be remembered that the Notice of Appeal was out of time and a strict view is taken here of the 42 days provided being sufficient. The delay until the former President, Mr Justice Morison, extended time on 22 October 1998 was delay which would not have been suffered but for Mr Hirani's initial delay in not lodging his Notice of Appeal until the very last minute, or slightly after the last minute and, as to that period of delay, he has no one to blame but himself. Then, again, the delay from March 1999 to October 1999 was occasioned by the combination of Mr Hirani amending his grounds and of his failure to comply with Practice Direction 9 before being told that he needed to.

[12]We mention delay in this way because the Employment Appeal Tribunal on 18 October 1999 was rightly concerned about it. Suffice it to say that Mr Hirani is not in a position to complain of much of the delay, nor, to be fair to him, does he complain of much of the delay or, indeed, complain of any of the delay. That is very much an aside simply because there was comment on delay at the earlier preliminary hearing.

[13]Coming to Mr Hirani's Notice of Appeal with the addenda that had been added, they together assert a number of grounds which we will take in a different order. Our first heading is this rather crude summary of the point, call it "The panel of one point". The Panel of one point

[14]Mr Hirani asserts that his hearing was not impartial and equitable, as it was not heard by a panel of three judges, as is normal, but by a single judge whose decision was blatantly biased and unfair. No objection was taken below at the time to the hearing being before the Chairman, Mrs Prevezer, alone. It would plainly have been desirable that Mr Hirani should have been told before the hearing that the hearing was to be before a Chairman alone, and he should have been asked whether he agreed or objected. The unwisdom of questions of fact covering the whole range of the dispute between parties being decided by a Chairman alone, without the parties being warned that that was, or might be the case, or being given any reason for that being decided upon, has been commented upon in Sogbetun v London Borough of Hackney

[1998] IRLR 676

and in an unreported earlier case, United Airlines v Bannigan at the EAT decided on 25 June 1997. An experienced Chairman can be reasonably expected to foresee the difficulties and may decline to hear a case on his or her own. An inexperienced Chairman should, a fortiori, decline to embark on such a task and whether the Chairman is experienced or inexperienced he or she will be entitled to decline to go further alone: see Employment Tribunals Act 1996 , Section 4 (5). However, we see there to have been no error of law involved in the hearing being by the Chairman alone: see Section 4 (3) (d) and 3 (2) (a) and (b) and this ground therefore fails.

[15]The second ground is the alleged bias of the Chairman. Looking to try to separate wheat from chaff, in Mr Hirani's affidavit we notice a number of alleged shortcomings in the Chairman of which he complains. Thus, it is said:

"After being sworn in, the Chairperson's first words to me were, 'You had disobeyed reasonable instructions of the employers'. One can understand if such a statement were to come out towards the end of a hearing, after being deliberated on the evidence and questioning of the parties concerned, but to start off the hearing with such a statement implies bias and prejudgment."

A little later:

"I would suggest that the Tribunal chairperson had not made every effort or undertaken the required pains to uncover the truth. Had she done so, she would have discovered that the whole incident resulting in this dispute, (of which I am the innocent victim who lost his job and livelihood) arose from incompetence of the Personnel Director, Ms Meredith."

And a little later:

"The judgment was perverse and the chairperson had substituted her own views and had misdirected herself."

And later still:

"… the chairperson dismissed my statement and chose to believe the respondents and furthermore, the chairperson in her IT decision [then a reference is given] worded it in a manner which insinuated that instead of phoning in, I had decided to write to Ms Donaldson, when in fact it is very clear from my incident notes and my verbal evidence under oath, that I had done both."

[16]Even without considering the Chairman's, Mrs Prevezer's, answering comments (because, in the ordinary way, the accusations made by Mr Hirani were put to the Chairman) those complaints of Mr Hirani hardly indicate bias; that Mr Hirani had disobeyed reasonable instructions ie an instruction to attend a disciplinary hearing had from the outset been the Respondents' case and the likelihood thus is that Mrs Prevezer was simply alerting Mr Hirani to the case which he had to address, and indeed, that is exactly what Mrs Prevezer says in a letter from her of 20 May 1999. She says, in response to this point:

"In identifying the issues I would have stated that the Respondents are submitting that he had disobeyed a reasonable instruction of the employer and I recall that he did say that, in his view, it was not a reasonable instruction. The rest of that paragraph refers to Ms Meredith. My views on the evidence are as stated in the decision."

[17]As for the Chairman failing to take pains to uncover the truth, we draw attention to the Employment Tribunal Act s.9 (1). The Chairman here, presumably, pursued questions in an inquisitorial manner rather than leaving it wholly to the party-adversaries, but only to such extent that she thought appropriate. Her doing so would not represent an error of law unless it could be shown that no Tribunal, properly instructing itself, could have acted as she had done and we have no material entitling or requiring us to come to any such conclusion.

[18]As for the plea that Miss Meredith should not have been judge and jury at any disciplinary hearing (and leaving aside whether there was evidence that she would have been judge and jury at a disciplinary hearing) it is notable, as we have mentioned, that Miss Meredith's non-involvement was not one of Mr Hirani's three conditions at the time and it was surely therefore open to the Chairman to take the view that Mr Hirani's proper course would have been to have attended the hearing and to have then raised the objection had the Company persisted with Miss Meredith's conduct of it.

[19]So far as concerns the Chairman, Mrs Prevezer, disbelieving the Applicant, well, of course, if that were itself an indication of bias a huge proportion of cases would have to be set aside. It is not an allegation to which we can attach any weight. So this head of Mr Hirani's argument also fails. Mrs Meredith as Judge and Jury

[20]The next is not unrelated; Miss Meredith as being plaintiff, judge and jury at the disciplinary hearing. The complaint in the notice of appeal is:

"The judge did not even consider the fact that my main reason for not attending the disciplinary interview was that it was going to be presided, judged and juried by the very person with whom I had had the unfortunate incident! The judge seemed to think that this was quite a reasonable request. How can this equate with fairness and reasonableness? If so, it is a travesty of justice."

[21]It is not apparent from the Tribunal's Decision whether the Company had indicated to Mr Hirani that Miss Meredith, with whom Mr Hirani had rowed, was to take part in the disciplinary hearing other than as a witness or that the Company remained of that view after Mr Hirani had objected to that, if he did. However, it is, as we have mentioned, notable that Mr Hirani was laying down his conditions for attendance at the disciplinary hearing and did not specify her absence as one of them. It was thus, surely, open to the Chairman to doubt whether Miss Meredith's possible or threatened presence was truly Mr Hirani's main reason for not attending, as he later claimed to be the case. Moreover, even if Mr Hirani had had it in mind to object to Miss Meredith's presence and even if he had understood that she was to preside and not merely be a witness, it would still have been open to the Chairman to hold that the better course, a reasonable course for Mr Hirani to have adopted, would be (as we have mentioned) to attend the disciplinary hearing and then to object if it transpired that Miss Meredith was, indeed, to preside and that the Company insisted that she should. The Chairman obviously took the instruction to Mr Hirani to attend the disciplinary hearing to be a reasonable request on the Company's part in all the circumstances put in evidence before her and we cannot say that that conclusion involved any error of law and we have to emphasise to Mr Hirani that it is only questions of law with which we can deal here. Communication

[22]The next point was that there was no failure on his part to communicate with the Company and the point is raised as follows:

"The Respondents had summarily dismissed the Appellant on grounds of 'unauthorised absence', claiming on their case papers and again in court that the Appellant had failed to make contact with them to communicate his absence as required by the contract. This is the crux of the matter and goes to the very heart of the case. The Appellant now has evidence to prove that he had indeed communicated and that the Respondents had lied in court, under oath, to cover up their failings."

[23]We have looked at the BT evidence which Mr Hirani wishes us to receive. We are told it was available at the Tribunal below. The Employment Appeal Tribunal does not provide an opportunity for some general re-run for those who lose below; some error of law has to be established. No error of law would be involved in the failure of the Chairman to consider evidence which was not fully put in front of her. As to our receiving the evidence, it would have first to be shown that it could not have been laid before the hearing below had proper diligence have been directed to its production. There is no evidence on that subject and so that test, if appropriate, must be failed, but the position is, if anything, even worse because orally Mr Hirani has indicated that the only reason why the evidence, although available, was not produced and referred to below was that he thought it was unnecessary in the sense that he thought the Chairman was with him on the point. So plainly the material could have been produced had due diligence been directed to its production and could have been relied upon but was left without being drawn to the Tribunal's attention. In any event, it is a misunderstanding of the Tribunal's Decision to concentrate on whether or not Mr Hirani telephoned in on 9 January because, in any event, he failed to attend on other days than the 9 th and failed to attend the disciplinary hearing or the adjourned disciplinary hearing and such other failures were failures relied upon by the Chairman. Implied Contractual Terms

[24]Then there is a complaint that may be headed "Implied Contractual Terms". It is put as follows:

" Implied terms may be imported into a situation ONLY where the contract is silent on them . The Industrial Tribunal had imported implied terms of a 'reasonable request by an employer' to cover instances of absence from work by an employee, in a situation where my contract was very specific on the procedure in cases of long absences, and I had fully complied with that procedure."

The Chairman, Mrs Prevezer, in a passage we have already cited, had said:

"There is an implied [term] in the contract under which the Applicant worked that he would attend work at the time specified unless he had a reasonable excuse or had been given authorisation to be absent, and also that he should obey reasonable requests of his employers."

[25]Mr Hirani now wishes to add to the evidence some further pages headed "Disciplinary Procedure". Leaving aside whether those pages could properly be received into evidence (because there is no indication that they could not have been produced, even had due diligence been directed to their production) nothing in them provides expressly in any way inconsistently with the Chairman's suggested implied terms, nor can it be said that there is anything unreasonable about those suggested implied terms. As to their breach, then, in the passage already cited, the Chairman found there to have been a breach of those implied terms, in particular as to the failure to attend the disciplinary hearing and the adjourned disciplinary hearing. We detect no error of law in the conclusions of the Chairman in that behalf.

[26]Handed in this morning by Mr Hirani was a newspaper advertisement in the Evening Standard, Accountancy Section, for Monday, 20 January 1997. It appears to be (we have no reason to think that it is not) an advertisement by Dome Ltd. How far that is different from Dome Cosmetics Ltd is not clear but it is an advertisement by Dome Ltd for a Financial Controller and Mr Hirani says that that is an advertisement by the Respondent Company for his job, even before he was dismissed on 22 January. There are some difficulties in the way of us attaching any significance to that. First of all, going back to the Ladd v Marshall test and as to whether that newspaper could have been laid before the Tribunal had due diligence been applied to its production, Mr Hirani has indicated, orally this morning, that the paper was all along in his possession. He just failed to notice the date and hence the significance of it. It thus plainly fails the Ladd v Marshall test. It is therefore not proper for us to receive it, but, even if we were to receive it, he was not dismissed until 22 January. He had failed to attend the disciplinary hearing on 15 January and 17 January and it might be that the Company was doing no more, if it was indeed the same Company, than arming itself against the possibility that it would have to bring in a new Financial Controller. We have no evidence about advertisement lead times to throw further light on that issue.

[27]We have now, I think, dealt with every remotely arguable point of law which has been touched on. Mr Hirani was very economical in his oral address and we are grateful to him for that. He chiefly relied on his papers that we have been drawing attention to, but we have been unable to detect any error of law in the Tribunal's decision and accordingly we must dismiss the appeal.