MR A LOCK v SEFTON SUPPORT SERVICES LTD [2001] UKEAT 1401_00_1403

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1401_00_1403Case No Appeal No. EAT/1401/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR A LOCKAPPELLANTSEFTON SUPPORT SERVICES LTDRESPONDENT
Before
His Honour Judge Peter Clark Mr H Singh Mr J C ShrigleyDate 14 March 2001
[1]APPEARANCES For the Appellant APPELLANT NEITHER PRESENT NOR REPRESENTED JUDGE PETER CLARK This is an Appeal by Mr Lock, the Applicant before the Liverpool Employment Tribunal sitting over 4 days, against that Employment Tribunal's reserved decision promulgated with Extended Reasons on 8 September 2000, dismissing his complaint of unfair dismissal brought against his former employer, Sefton Support Services Ltd. A subsequent review application was dismissed by the Chairman, Mr Michael Homfray-Davies under Rule 11(5) of the Employment Tribunal Rules of Procedure by a further decision dated 23 October 2000. There is no appeal against the review decision; nor could there realistically be any such appeal in our view.[2]Mr Lock conducted his own case before the Employment Tribunal. He lodged his own Notice of Appeal, and in a subsequent document dated 2 November 2000 raised points effectively re-arguing the facts of the case. It is not our function to retry the facts.[3]Today he is unable to attend due to work commitments. Accordingly he cannot take advantage of the ELAAS Pro Bono Scheme, although a member of the Bar is present today and would have advised him had he attended. In these circumstances we have considered the Appeal on the papers, conscious that our task is to determine whether the Appeal raised any arguable point of law which ought to go to a full hearing.[4]In our view one point arises on the face of the Employment Tribunal's reasons which merits investigation of the full hearing. In order to identify that point of law, we begin with the facts as found by the Employment Tribunal.[5]The Appellant was employed by the Respondent as a support worker at a residential house for clients of the Respondent's charity, which provides care for those with mental health problems and learning disabilities.[6]On 29 July 1999 he was sent notice to attend a disciplinary hearing. The charges against him were(1) that he had prompted a client at the home identified as BD to assert that his team leader, Arthur Morgan had abused him by placing a plastic bag over his head and taunted him. The Appellant had made a written complaint about Mr Morgan dated 14 July 1999(2) instigating unrest and discord among members of staff and spreading false rumours about Mr Morgan and Mr Dolby, a staff member(3) inappropriate behaviour towards a female member of staff, Ms Alty, in a taxi on 23/24 June 1999(4) abusive behaviour towards Catherine Johnson, a manager on 23 June 1999 at the Adelphi Hotel. The Appellant had had too much to drink that night.[7]A disciplinary hearing took place before Mr Fieldsend, Operations Manager, on 7 September 1999. On that occasion various witnesses were called and cross-examined. As a result of that hearing Mr Fieldsend wrote to Ms Williams of Human Resources recommending dismissal of the Appellant for breach of a number of policies and procedures. He did not make any findings of fact or set out his reasons for that recommendation.[8]Ms Williams took the file to Ms Crotty, Vice-Chair of the Management Committee, the decision maker. Ms Crotty did not read the file in detail, save to satisfy herself that the Respondent's procedure in general terms had been complied with, but sent a letter summarily dismissing the Applicant to him dated 8 September.[9]Pausing there, the Employment Tribunal found that the disciplinary process leading to the dismissal decision was defective in a number of respects, detailed at paragraph 3.17 of their reasons. They, there, at paragraph 3.17.3, specifically reject the Appellant's factual case that he had been the victim of a conspiracy involving various members of management to remove him from his post.[10]Against Ms Crotty's decision the Appellant appealed to Ms Bale. At paragraph 3.19 the Employment Tribunal find expressly that the appeal was not a re-hearing, it was a review of the evidence before Mr Fieldsend. Ms Bale indicated that she would take the statements made at the disciplinary hearing as being true unless the Appellant could put forward evidence to prove otherwise. In her judgment he was unable to do so. She dismissed the appeal.[11]On those facts the Employment Tribunal was required to determine 3 principal issues.(1) was the Appellant dismissed for an automatically unfair reason, that is, making a protected disclosure, as he asserted? They rejected that claim on the facts, as in our judgment they were entitled to do. The question as to what is the reason or principal reasons for dismissal is essentially a factual question for the Employment Tribunal(2) was he dismissed for a potentially fair reason? They found that he was, the reason for dismissal related to his conduct(3) was dismissal for that reason fair or unfair under Section 98(4) of the Employment Rights Act 1998? It is here that we think the Employment Tribunal's reasoning requires close scrutiny.[12]The reason, so the Employment Tribunal found, related to the subject matter of all 4 charges originally levelled against him. The Respondent carried out a reasonable investigation. Whereas the third and fourth charges, in respect of which it had then been indicated to him that he would receive a verbal warning would not of themselves have justified the sanction of dismissal, the reasonable belief that he was guilty of charges 1 and 2 relating to Mr Morgan were of themselves sufficient to justify dismissal.[13]That leaves only the procedural deficiencies identified by the Employment Tribunal at the dismissal stage? It is the Employment Tribunal's approach to that question, alone, which in our view gives rise to an arguable point of law.[14]At paragraph 7.2 the Employment Tribunal held:
"Save for the non disclosure of the documents referred to above, all the defects in the disciplinary hearing and the decision by Ms Crotty were cured by the appeal."
And at paragraph 7.3:
"In all the circumstances of the case for the reasons stated above, taken as a whole, we do not believe that any disadvantage the applicant suffered was sufficient to render an otherwise fair procedure unfair."
[15]Taking first the finding at paragraph 7.3, the fact that a single breach of natural justice is found to have occurred will not of itself automatically lead to a finding of unfair dismissal, although the finding that this single breach of fair procedure did not disadvantage the Appellant comes, arguably, perilously close to the 'no difference' approach disapproved by The House of Lords in Polkey vAE Dayton (1988) ICR 142 .[16]However, the more substantial argument, we think, arises out of the Employment Tribunal's finding that all other defects at the dismissal stage were cured by Ms Bale's appeal.[17]There is a strong line of Employment Appeal Tribunal authority, including Whitbread v Mills (1988) ICR 776; Clark v Civil Aviation Authority (1991) IRLR 412 and Byrne v BOC Ltd (1992) IRLR 505 for the proposition that procedural defects at the dismissal stage may be cured on appeal, provided that the appeal is in the nature of a full re-hearing rather than a review. Otherwise, the Polkey approach to procedural unfairness applies; it is only in exceptional circumstances, not found by the Employment Tribunal to exist here, where following a proper procedure would have been 'useless', that the dismissal will normally be found to be fair. An example of the Polkey approach in practice may be found in Spink v Express Foods Group Ltd (1990) IRLR 320.[18]The difficulty in this case is that the Employment Tribunal found in terms that Ms Bale's appeal took the form of a review and not a re-hearing. Does that fatally undermine the Employment Tribunal's conclusion that the dismissal was unfair? That is the question for the full appeal hearing.[19]Mr Lock should understand, he not being present before us, that this is the sole question to be argued at the full hearing. It will not be an opportunity for him to re-run his conspiracy theory, or indeed any other factual issue including the reason for his dismissal.[20]For the purpose of the full hearing we shall direct that the case be listed Category B - 3 hours. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of those skeleton arguments to be lodged at the Employment Appeal Tribunal at the same time. No further directions are necessary and in particular this is not a case for Chairman's notes of evidence.