MR S GILBERT v CLEARY INDUSTRIAL CLEANERS [2001] UKEAT 461_01_2409

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 461_01_2409Case No Appeal No. EAT/461/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR S GILBERTAPPELLANTCLEARY INDUSTRIAL CLEANERSRESPONDENT
Before
His Honour Judge D SerotaLord Davies of CoityDate 24 September 2001
[1]APPEARANCES For the Appellant Mr Gilbert in person JUDGE D SEROTA QC This is the preliminary hearing of an appeal brought by Mr Stephen Gilbert in relation to his dismissal that took effect on 23 September 2000, by Cleary Industrial Cleaners. Cleary Industrial Cleaners, as it name suggests, is a company of industrial cleaners.[2]Mr Gilbert's complaint was heard by an Employment Tribunal at Reading on 16 March, chaired by Mr J Simpson, and its Decision was promulgated on 29 March. The effect of the Decision was that the Employment Tribunal accepted that Mr Gilbert had been unfairly dismissed, however, having regard to Mr Gilbert's conduct, the Tribunal found that he had contributed to his dismissal to the extent of 100%.[3]The background to the matter is that at some point in time, we are not sure when, but certainly before the year 2000, Mr Gilbert was employed by Cleary Industrial Cleaners as a cleaner. For the moment we use the term "employed" in a neutral sense, and we mean no more than that he was on the payroll of Cleary Industrial Cleaners.[4]Cleary Industrial Cleaners had a major client, Medisense, and it was at Medisense's premises that Mr Gilbert was required to work. According to the evidence which was accepted by the Employment Tribunal, Mr Gilbert was seen by colleagues watching a TV type device, probably a DVD player, in his car, at times when he should have been working. This was not reported to management.[5]In March of last year, Mr Gilbert drew the attention of Mr Parsons, who was a partner in Cleary Industrial Cleaners and we believe his supervisor, to the defective lead to a mechanical scrubber. It was suggested by Mr Gilbert that one of his reasons for dismissal related to a health and safety reason of concern with this mechanical scrubber. This was a matter that was investigated by the Employment Tribunal. Mr Gilbert also alleged that:
"he was requested to remove dust and fibre debris from over a partition, and that he required to use a vacuum cleaner which had a defective hose and also that the cleaner had to be supported on steps to make the hose reach. Mr Parsons denied that this operation required the use of a vacuum cleaner, and that it should have been done using a tickling stick and wet cloth. The method of operation the Tribunal found was never discussed between the Applicant and Mr Parsons and the Applicant's objection was never drawn to the attention of Mr Parsons."
[6]On 21 September Mr Parsons attended the Medisense site and he found Mr Gilbert in his car watching the TV device at a time when, according to Mr Parsons, he should have been working. Mr Gilbert claimed that he was on his break at the time, but this was not accepted by Mr Parsons, nor was it apparently accepted by the Employment Tribunal. Mr Parsons made complaints on that occasion about the standard of Mr Gilbert's work. Mr Gilbert told him that one of his DVDs had been stolen by a work colleague, this led Mr Parsons to make enquiries about DVDs, and in turn led to the discovery that Mr Gilbert was, according to Mr Parsons, running a business trading in DVDs at the premises of Medisense, with Medisense employees. The Tribunal found that there was a large notice at Medisense premises which prohibited any trade on the premises.[7]This led Mr Parsons to give the matter consideration and he was concerned at what appeared to be an illicit trade in DVDs, and indeed he was concerned that they might be pirate, stolen or pornographic, and was worried about what Medisense might think if this turned out to be the case. However, he never carried out any proper investigation, and never sought any kind of explanation from Mr Gilbert, neither did he undertake any form of disciplinary proceedings.[8]Mr Parsons' reasons for dismissal of Mr Gilbert, which took effect on 23 rd , was his illicit trade in DVDs, conducted on the premises of Medisense, during the time he was working for Cleary Industrial Cleaners. The Tribunal found that Mr Parsons viewed this matter as "… so serious as to warrant only summary dismissal. This he did, but his letter of dismissal makes no reference to this being the reason for dismissal. The letter talks of poor performance and being missing during working time." 14. The Tribunal unanimously concludes that the reason, or principal reason for dismissal was the Applicant's trading in DVDs at the Medisense site. A further contributory factor was the Respondent's criticism of the way the Applicant performed his duties." The Tribunal rejected the allegation that health and safety reasons were the cause of the dismissal. The Tribunal found that they were:
"not the principal or even a contributory factor in the dismissal of the Applicant."
We note that in the Notice of Appearance by Cleary, the thrust of the reason for his dismissal is the illicit sale of DVDs, whatever the letter of dismissal may have said.[9]The Employment Tribunal, as we have already noted, came to the conclusion that the dismissal of Mr Gilbert was procedurally unfair. There had been no proper investigation into the matter; no disciplinary procedure had been invoked; no warnings had been given and in the opinion of the Tribunal, the circumstances relied upon by Cleary Industrial Cleaners did not amount to gross misconduct. The finding, therefore, was that Mr Gilbert's dismissal was unfair.[10]However, the Tribunal went on to find that he had contributed to his dismissal by his conduct and referred to the lengthy period that he spent in his car watching DVDs when he should have been working, and the fact that he was:
"conducting a business selling DVDs at the premises of a substantial client of the Respondent's knowing this was contrary to that client's regulations, which may have placed in jeopardy the Respondent's [Cleary Industrial Cleaners] contract for cleaning services. The Applicant responded in an arrogant and abusive way to his supervisors when challenged about these matters."
The Tribunal found that: "The evidence of the Applicant sitting in his car night after night, when he should have been working is overwhelming, as also is the evidence of the Applicant trading in DVDs" and preferred the evidence of the Respondent's witnesses, in preference to Mr Gilbert's and they came to the conclusion accordingly that had Cleary Industrial Cleaners conducted a proper investigatory disciplinary process it would have been entitled to dismiss the Applicant for gross misconduct. Accordingly the Tribunal found that the Applicant had made a 100% contribution to his dismissal. The Tribunal found that a proper process might have lasted three or four days, but the Applicant had already been given compensation that was more than sufficient to cover those three or four days.[11]Mr Gilbert applied for a review of that Decision, which was promulgated on 29 March by a letter dated 31 March. He also put in a Notice of Appeal dated 3 April. On 10 April the Employment Tribunal promulgated its Decision on the review and we also have the benefit of comments from the Chairman, dated 13 May, which do little more - we say this with no disrespect at all - than refer to the Decision on Review[12]Mr Gilbert, in his Notice of Appeal and in his Skeleton Argument, raises a number of points and we are grateful to Mr Gilbert for his Skeleton Argument and for the way in which he has made his submissions to us.[13]The first point which Mr Gilbert raises relates to the position of Medisense. He maintains that, in fact, he was employed not by Cleary Industrial Cleaners, but by Medisense, and that accordingly, he was never properly dismissed at all, because he says, Cleary Industrial Cleaners cannot be regarded as his legal employer and he drew our attention to the well known case of Mersey Docks and Harbour Board v Coggins and Griffiths [1947] ACI and the less well known case which we do not believe, as yet, has been fully reported - Interlink Express Parcels Ltd v Night Truckers Ltd (The Times 22 March 2001)[14]The thrust of what Mr Gilbert says to us is that one looks to see who controlled his employment. He says that to all intents and purposes, it was controlled by Medisense, and therefore Medisense should be deemed to be his employers. The facts of the Interlink case are markedly different to the present case. What the Court of Appeal in that case had to consider was whether, for the purposes of The Goods Vehicles Licensing and Operating Act 1995 agency workers supplied and paid by Night Truckers could be regarded as employees of Interlink. These staff worked, to all intent and purposes for Interlink; they drove Interlink lorries, they wore Interlink uniforms and they were controlled throughout their employment by Interlink In those circumstances the Court of Appeal found that the agency workers were, in fact, deemed to be temporary employees of Interlink.[15]Those facts are very different from the facts of the present case. There is nothing at all to suggest that Mr Gilbert was employed by Medisense in any sense at all. True it is that he worked at their premises, however those responsible for placing him there and for supervising him were not employees of Medisense, but were employees of Cleary Industrial Cleaners which held his P45, paid him, deducted PAYE, dismissed him and gave him instructions and also provided him with equipment.[16]It is also a matter of significance, and we refer to the Decision on Review of the Employment Tribunal, that Mr Gilbert made no submission at the Employment Tribunal that Medisense was his employer and that there was no evidence before the Tribunal to support the contention that there was any employment relationship between Mr Gilbert and Medisense. Indeed, the evidence was that Cleary Industrial Cleaners was a cleaning contractor, contracted at arm's length by Medisense, and that Mr Gilbert was an employee of Cleary.[17]This is point is, however, linked by Mr Gilbert to another point, and that is that he had required the production of various documents. The way that it is put in his Notice of Appeal is as follows:
"It was wrong of the Tribunal not to acknowledge the failure of the Respondent to comply with an Order ….to supply copies of documents relating to a housekeeping log, but still allow the Respondent's cross-examination of the applicant over an issue relative to the content of those documents. This situation is further compounded by the fact the Respondent cited the documents in his Notice of Appearance in support of the dismissal. This omission was to the detriment of the Applicant."
We have been provided with a copy of the housekeeping log which seems to us to take matters no further forward, but Mr Gilbert said "Ah, but the housekeeping log would include documents showing the precise basis upon which Cleary Industrial Cleaners provided services to Medisense". This matter is dealt with again in the Review, and the Review at paragraph 8 notes that:
"Mr Gilbert complained about this at the hearing but in a formalistic way ………When he was asked how he was in fact prejudiced he was unable to show how the document would have assisted him with any relevant and substantial point in the case."
Further, the Tribunal was satisfied that the document did not go to the principal reason found for his dismissal by the Respondent, namely the fact that he was trading in DVDs nor did it go to any of the reasons found by the Tribunal for Mr Gilbert's own contribution to his dismissal.[18]It seems to us, in all the circumstances, that both in relation to the documents and in relation to the question of who his employer was there is no arguable case that the Tribunal were wrong, indeed it seems to us quite clear on the material that is both before us and before the Tribunal, that Mr Gilbert was correct in his initial assertion that his employer was in fact Cleary Industrial Cleaners, as made clear in his Originating Application.[19]The next complaint made by Mr Gilbert is that the Chairman prompted a witness, Mr Raymond McIntyre. He suggested that assistance was dangerous in the event of the evidence being false and also gave an impression of favour. This is a matter that was again addressed by the Employment Tribunal in the Review. The Employment Tribunal says that Mr McIntyre produced a prepared written statement as evidence-in-chief. The recommended practice designed to save time in Employment Tribunals is for such statements to be read by Tribunal members, either before the hearing or when the witness is called and then to proceed to cross-examination. However, Mr Simpson himself did not himself comply with that practice, as he prefers all the evidence to be given publicly. He also bore in mind Rule 9(1) of the Procedure Regulations requiring:
"The tribunal shall make such enquiries of persons appearing before it and witnesses as it considers appropriate and shall otherwise conduct the hearing in such manner as it considers most appropriate for the clarification of the issues before it and generally to the just handling of the proceedings."
It was apparent that Mr McIntyre had a reading difficulty. Mr Simpson considered it was the obligation of the Tribunal to assist Mr McIntyre to feel at ease and to give evidence and Mr Gilbert was in no way prejudiced as he had the opportunity to cross-examine Mr McIntyre. In the event, he elected not to cross-examine Mr McIntyre. It seems to us that it is wholly appropriate for the Chairman of any Tribunal to assist a witness who is in difficulty in giving his evidence and where the party calling the witnesses is not represented, to assist that witness in giving evidence. It seems to us that there is nothing in this particular ground of appeal.[20]The next matter that Mr Gilbert complains of is that during the course of the proceedings, the Chairman advised the Respondent against its decision not to give evidence. According to Mr Gilbert, the Chairman said:
"So far we have heard no evidence in support of the dismissal, if you do not give evidence, the Applicant will win his case without the need to say anything."
Mr Gilbert complains that this is partiality and something that should not have been done by the Chairman. The Chairman pointed out that neither party was represented. Unrepresented parties are generally unfamiliar with Tribunal procedure and do not appreciate the difference between giving evidence which could be challenged by cross-examination, and making submissions which could not. Parties who are unrepresented also do not necessarily understand the different weight attached to evidence on oath and evidence given by way of unsworn statements. The Chairman considered, having regards to the Rules that he had an obligation to point this out to the Respondent. In our opinion, he was absolutely right about this and there is nothing in this ground of appeal either.[21]Mr Gilbert then suggests that the Chairman allowed radical changes to be given for the reasons for his dismissal and complains that he could not deal with these new points in time. This again does not appear to us to raise any matter of law and furthermore the factual basis for this submission is lacking. This matter is dealt with in the review, at paragraph 7.[22]It must be borne in mind that we cannot review findings of fact by the Tribunal, and the Tribunal found that Medisense had a notice in its premises prohibiting selling of any kind on its premises. Cases before Tribunals are not required to be pleaded in the same way as cases before a County Court and evidence often turns out to be different from the way the case is put, either in the Originating Application or in the Notice of Appearance, particularly in the case of unrepresented parties. But this case was not radically different - we have already referred to the Notice of Appearance in which it was made absolutely clear that the basis of the dismissal for gross misconduct related to the Applicant's illicit trading in DVDs. Furthermore, Mr Gilbert did not raise this point during the hearing nor object to any of the evidence given, nor did he seek an adjournment to deal with any element of surprise. It seems to us that there is nothing giving rise to an arguable point of law in this particular complaint and that the Decision of the Employment Tribunal is absolutely correct.[23]The next matter we proceed to is the ground given by Mr Gilbert that the Decision is flawed because of perjured evidence given on behalf of the Respondent. He regards this as the central, or one of the central planks of his appeal. The Employment Tribunal heard witnesses. It came to conclusions, having heard those witnesses, as to which evidence was to be believed and which evidence was to be rejected. We have not heard the witnesses, we do not have that benefit which the Employment Tribunal had. We can only interfere in the case of an appellant showing that there has been, in the case of perjury, some clear evidence not available to the Tribunal, and not available at the time, which demonstrates that there has in fact been perjury. No such evidence has been put before us; no such evidence was put before the Employment Tribunal in relation to the review, and in the circumstances, it seems to us that this claim also is without merit and there is no arguable chance of success.[24]In all the circumstances therefore, we have come to the conclusion that there is no arguable point of law in this case which has any chance of success and having gone through the various grounds of appeal, we therefore must dismiss this appeal.