MR DAN KIEN TRAN v GREENWICH VIETNAM COMMUNITY PROJECT [2001] UKEAT 185_00_0504

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 185_00_0504Case No Appeal No. EAT/185/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR DAN KIEN TRANAPPELLANTGREENWICH VIETNAM COMMUNITY PROJECTRESPONDENT
Before
Mr Recorder LangstaffDate 5 April 2001
[1]APPEARANCES For the Appellant MR M F JENKINS Representative 13 Majendie Road London SE18 7QB For the Respondent MR R BRONKHURST Representative Interchange Legal Advisory Service Interchange Studies Dalby Street London NW5 3NQ MR RECORDER LANGSTAFF QC This is an Appeal from the Employment Tribunal sitting at Ashford which delivered its Extended Reasons on 21 December 1999. It is of importance and relevance to note that the Tribunal had sat for no less than four days before reaching their determination. By that decision the Tribunal dismissed the complaint of the Appellant that he had been unfairly dismissed.[2]The facts taken from the findings of the Employment Tribunal are essentially these. The Appellant was employed as a community worker. He had been employed for some eleven years from 16 March 1987 until 17 June 1998. On that date he was dismissed for misconduct. The misconduct arose from a number of allegations which began in early 1998, so it appears.[3]They were summarised on a charge sheet constituted by a letter of 19 May 1998 in which some eight allegations were raised against the Appellant. Ultimately the employer determined that of those eight allegations the majority were to be upheld. In consequence they considered that the Appellant should be dismissed for gross misconduct with immediate effect.[4]The procedure by which the employer reached that decision has been the subject of considerable discussion debate and disagreement before us. The management committee of the employer, it being a community association, run by a Management Committee. Though it was an incorporated body, in 19 February 1998 considered that by circulating a letter to various people including outside organisations the Appellant had brought the employer into disrepute. He was therefore suspended and invited to attend a meeting of the Management Committee on 25 March 1998. He did so together with a representative. This was described by the Employment Tribunal as an investigatory hearing. The full Management Committee were present. They were, therefore, from the wording used by the Employment Tribunal taking part in an investigation of the Appellant's conduct. In consequence of that meeting, the employer decided to pursue the matter further and invited the Appellant to attend a further meeting of the Management Committee.[5]Although this was originally to be on 29 May it was ultimately held on 10 June. Once again the Appellant was represented. The Management Committee again were present in full. The Management Committee being present in full, there was no obvious person within the organisation to whom any appeal might be brought against the decision which as we have recounted they reached upon the matters before them.[6]Against the background of those facts it was submitted before us as it had been submitted before the Employment Tribunal that the dismissal could not stand on two bases. First, it was procedurally unfair. There were two aspects to this. The first that was that the Management Committee had acted as investigator. It has also acted as judge. This was, said Mr Jenkins for the Appellant, a classic case of a man being judge in his own cause. This would be a plain breach of natural justice.[7]Second, the fact that there was no appeal, particularly in the light of the nature of the hearing before a body that was both investigator and judge, was a further breach of the requirements of natural justice. It may be borne in mind that though not referred to before the Employment Tribunal, Paragraph 27 of the ACAS Code of Conduct in relation to disciplinary procedures states that it is an essential requirement of natural justice that there should be an appeal process.[8]Thirdly, Mr Jenkins took the point that the decision was in any event substantively unfair. The way in which this was set out in the Notice of Appeal before us was that the Employment Tribunal failed to consider whether there had been substantive unfairness and specifically had failed to consider whether the Respondent had failed to make clear their findings of fact and to clarify what in their findings constituted gross misconduct. He made specific reference to three matters out of the eight in respect of which the Appellant had been charged and convicted.[9]That appears on the face of the Notice of Appeal to be a plea aimed at the conduct of the employer. It is not on the face of it a challenge to the lack of clarity with which the Employment Tribunal expressed itself. In his skeleton argument Mr Jenkins who represented the Appellant here as he had done below again did not develop any clear complaint that the Employment Tribunal had expressed themselves with a lack of clarity. He did not make any specific reference for instance to the well-known principles that derive from the case of Meek v City of Birmingham . Rather, when he argued the matter, the lack of clarity which he invited us to see in some of that which the Employment Tribunal said was used to demonstrate a lack of clarity expressed by the employer as to the detailed misconduct found proved. Nonetheless, we have to deal with that ground of appeal and in due course will set out our views upon it.[10]In reply, Mr Jenkins accepted the thrust of the submissions which had been made by Mr Bronkhurst to us that there is no rule of law that requires as a matter of obligation that a disciplinary procedure must be one in which the investigating and the decision making bodies are separate. He also accepted that there is no rule of law which obliges an employer to have an appeal stage as part of a disciplinary process. He qualified both those submissions by suggesting - and we think he is entirely right in this - that where the same people are involved in the same process as both investigators and as those who determine the decision it should be regarded as unfair unless otherwise justified in all the circumstances. In effect he was submitting to us that it will be a rare case in which such a process can happen without it being found unfair.[11]Similarly, although he accepted that the absence of an appeal was a factor in the assessment of whether or not the process had been fair, and could not be elevated to the status of an obligation, he suggested that it was a factor which should have very considerable weight. Again, we agree with him. We think that in general terms any employer who operated a disciplinary process in which he who investigated the alleged defence was he who judged it, or any employer who operated a disciplinary process in which there was no right of appeal, would (and in most cases perhaps should) be found to have been outside the bounds of the fairness required by section 98 of the Employment Rights Act 1996.[12]It must be all the stronger when those two features are present in the same process. However, the question that we have to ask is whether or not the Employment Tribunal were entitled on the facts of this case to come to the conclusion which they did. Our starting point cannot be the common law of natural justice relevant though it is. It is, as it must be, Section 98 of the Employment Rights Act 1996. That provides that in determining for the purposes of unfair dismissal whether the dismissal of an employee is fair or unfair it is for the employer to show the reason for the dismissal.[13]More particularly in Section 98(4) where an employer has demonstrated such a reason:
"The determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."
[14]In opening the Appeal, Mr Jenkins placed considerable weight upon the fact that the Tribunal here may have failed fully to appreciate the scope of the administrative resources to which the employer could have had recourse. The Management Committee considerably outnumbered the staff of employees. It was in the nature of such a community association that they should do so. This was not a case in which an Employment Tribunal could, he submitted, look simply at the size of the staff and conclude that it was such a small outfit that the disciplinary procedures appropriate to a larger institution could not be followed.[15]We have given careful consideration to the points that he has made, but the question we have to ask is whether at the end of the day it was open to the Employment Tribunal to come to the conclusion they did. Having set out at paragraph 19 the submissions of Mr Jenkins, they asked themselves the questions which in our view they had to ask. Mr Jenkins in those submissions made the point that there had been no formal procedure adopted by the Respondent and there had been no right of appeal. Those two points were answered by the Employment Tribunal at paragraph 24 in these words:
"It is somewhat unusual to have the whole of the Management Committee involved in both the investigation and the disciplinary hearing but in cases such as this we have to consider not just the way in which the matters were dealt with but whether they were dealt with fairly or unfairly. We accept the Respondent's evidence that in calling for the whole Management Committee to deal with these matters they were attempting to be fair and to provide an opportunity for all the Management Committee to take part. The fact that the Management Committee acted thus was not, in our judgment, any act of unfairness. Indeed the Applicant did have a full and fair hearing on each occasion and was allowed to put his side of the case fully."
[16]That paragraph deals with the question whether the Management Committee here should have been held to be acting unfairly in law because they were both investigator and judge. The approach which the Tribunal took was that enjoined by Section 98(4) of the 1996 Act. They warned themselves of the difficulties and dangers of the case with specific attention paid to the duality of role that the Management Committee had adopted.[17]Having thus warned themselves we are confident that they reached a decision which was at least open to them. We should say for sake of completeness that there was a challenge made to the second sentence of that paragraph by reference to the evidence which had been put before the Tribunal. We have looked at that evidence and we cannot see that the sentence is not a fair reflection of the two main points that appeared to have been made in the course of that evidence. We do not think it fair to say that fairness was simply something that the witness was tacking on as a reason although Mr Jenkins urges us to take that view.[18]So far as Appeal is concerned, at paragraph 25 of their reasons the Employment Tribunal said:
"It is correct that there was no appeal but the Respondent has explained that since the whole management committee were involved in the dismissal process there was then nowhere else for the appeal to go. In an ideal world there should have been an opportunity for the Applicant to appeal but we find that the absence of an appeal is not a defect which renders this dismissal unfair."
[19]Again in that paragraph the Tribunal appears to recognise that the absence of an appeal is an important factor. They recognise that the absence tells in favour of the Appellant. They have weighed that against the fairness of the dismissal process as a whole as they saw it. They have reached a conclusion. We have to remind ourselves that the evaluation of the facts, particularly against the backdrop of as much evidence as this Tribunal plainly had, is for them and not for us unless we can see that there has been a plain misdirection in law or that it is a decision which no Employment Tribunal could properly reached without perversity. We cannot go that far.[20]We are fortified in our approach relying thus far simply upon the wording of Section 98, and the approach as demonstrated by the reasons of the Employment Tribunal, by the case of Shanon v Michelin (Belfast) Limited [1981] IRLR 505. In that case one of the two main points before the Northern Irish Court of Appeal was referred to in these terms in the judgment of Lord Justice O'Donnell with which Lord Justice Gibson agreed. At Paragraph 15, this is said:
"There had been at one time at final stage of the procedure where the dismissal was referred to a panel consisting of two representatives of the employers and two representatives of the trade union. The Appellant's trade union had however withdrawn from membership of the joint industrial Council for the rubber industry sometime before his dismissal. With this withdrawal the disputes procedure also disappeared. Negotiations were in progress at the time of the Appellant's dismissal to create a new procedure but this had not been completed. The Tribunal came to the conclusion that there was no breach of procedure and went on "it might well have been very sensible for the Respondents to have themselves suggested that the dismissal should go to arbitration but that is perhaps a view based on hindsight. "
I am satisfied that the absence of an appeal or review would not in itself make a dismissal unfair nor do I think that an employer can be said to be unreasonable in failing to create some ad hoc appeal or review in the absence of agreement between him and the trade union. The absence of an appeal or review procedure is just one of the many factors to be considered in determining whether a dismissal is fair or unfair." In that case the Tribunal had, the Northern Irish Court of Appeal held, considered that aspect of the case carefully. They were therefore entitled to come to the conclusion, which they did in that case, that the absence of an appeal procedure did not vitiate the decision.[21]We think that Mr Bronkhurst is right in the present case to submit that for Mr Jenkins to make out this part of his case on behalf of the Appellant he would have to show that there was a legal obligation for there to be an appeal. He cannot do so. We therefore turn to look at the third ground. Here as I have indicated the ground pursued before us most actively in reply was that taken as a whole the decision, which the Employment Tribunal reached, was not sufficiently expressed so as to enable the Appellant to know why he had lost the case.[22]We have two bases for being unable to accept that submission. The first is that on a careful reading of the Notice of Appeal it does not on the face of it appear to be within its scope. Secondly, bearing in mind the fact that it was agreed before us (albeit to support the arguments in respect of there being a lack of substantive justice in the findings of the employer and hence the Employment Tribunal) we have asked whether it is in any event right that this decision does not adequately deal with the matters with which it should have dealt.[23]This was a misconduct case. In a misconduct case it is a matter of importance that the misconduct should be clearly identified. If it is not clearly identified by the Employment Tribunal evaluation of the facts relating to it by the Tribunal is liable to fall into error. Here, the Employment Tribunal said little about the nature of the misconduct save that it was set out in the documentation and save for the outline which they gave in very summary form between paragraphs 10 and 14 in the course of their decision.[24]However, we have been told (and it is a matter of agreement between the parties) that this Employment Tribunal had a bundle consisting of no less than 153 documents or pages before it. Although the wording is terse and is close to the border of being so terse as to be uninformative we think that taken as a whole there is sufficient within it for the employee to know why it was that he lost his case. We are forced to remind ourselves that an Employment Tribunal cannot be expected to dot every 'i' nor cross every 't'. What matters is whether it deals with the allegations in substance. And here we have little doubt that the substance of the matters which the employer had canvassed against the Appellant were sufficiently identified for this decision to tell the Appellant why it was that the Employment Tribunal took the view that the employer had reasonable grounds for reaching the honest belief which they found him to have reached after reasonable investigation so as to make the dismissal substantively justified.[25]We are fortified in that conclusion by the fact that when the Notice of Appeal was first drafted it does not appear to have occurred to the mind of the draftsman that the Employment Tribunal were at fault in failing sufficiently to express themselves. Rather the allegation is one against the employer that the employer had not himself made it clear what had been held against the employee. To that we add that the skeleton argument of Mr Jenkins similarly did not address this as a point of substance. We are reassured therefore that we are right to come to the conclusion, which we would in any event have done, that this decision does not fall foul of the principles established in Meek v The City of Birmingham . There is no other ground which has been seriously pursued before us.[26]Suffice to say that in paragraph 26 of its decision the Employment Tribunal said this:
"We find that the Respondent did have a reasonable belief in the misconduct, that belief was based on reasonable grounds as set out in the evidence before us and in the relevant documents. The Respondent did carry out a sufficient investigation and in all the circumstances dismissal was an appropriate sanction."
It seems to us that in that summary paragraph, having already dealt with and disposed of the procedural arguments put before them, the Employment Tribunal were saying all that was required of them under Section 98 in the light of the facts that they had earlier set out in their decision.[27]For those reasons we see no basis on which this Appeal can succeed and we have to dismiss it.