MR R COLES v UNITED BUSINESS MEDIA LTD (FORMERLY MILLER FREEMAN UK LTD) [2002] UKEAT 1171_01_0603

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1171_01_0603Case No Appeal No. EAT/1171/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R COLESAPPELLANTUNITED BUSINESS MEDIA LTD (FORMERLY MILLER FREEMAN UK LTD)RESPONDENT
Before
His Honour Judge Peter Clark Mr R SandersonDate 6 March 2002
[1]APPEARANCES For the Appellant MR C SAMEK (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE PETER CLARK: This is an appeal by Mr Coles, the Applicant before the London (South) Employment Tribunal, against that Tribunal's decision promulgated with extended reasons on 1 June 2001, dismissing his complaint of Unfair Dismissal brought against his former employer, the Respondent United Business Media Ltd, formerly Miller Freeman UK Ltd.[2]The Appellant commenced his employment with the Respondent as a subscription salesman in May 1993. The background to his dismissal, so the Tribunal found, was that on 18 and 19 November 1999 four threatening messages were left on the voicemail of a female member of the Respondent's staff. At that time the Appellant was off sick and had been since 17 September 1999.[3]The Respondent investigated. Two members of staff, who said they knew the Appellant well, said they were absolutely sure it was his voice on the messages. It appears that the recipient of the messages had previously raised a grievance against him.[4]The Appellant was spoken to about the messages; he denied leaving those messages, a stance which he has maintained to this day. Difficulties were then experienced in contacting the Appellant, who had moved address. The Tribunal was satisfied that reasonable attempts had been made to contact him before a disciplinary hearing was held in his absence on 16 March 2000. The result of that disciplinary was that he was summarily dismissed.[5]Against that decision the Appellant appealed internally. He was present at the appeal hearing held on 26 April 2000. It was effectively a rehearing. On that occasion the Appellant raised a contention that a Mr Brooks had allegedly confessed to making the offending calls. In these circumstances the Appellant was given the opportunity of a further appeal hearing at which he could produce evidence of Mr Brooks part in the matter.[6]On 13 June, the date fixed for the appeal hearing, the Appellant did not attend, nor did he produce any evidence implicating Mr Brooks. In these circumstances the second appeal panel disbanded without reaching any further conclusions.[7]On those facts the Tribunal concluded:(1) that the reason for dismissal related to the Appellant's conduct, that is, the Respondent's belief that he had left the voicemail messages(2) the Respondent carried out a full investigation and took into account the Appellant's illness(3) the Appellant was given every reasonable chance to present his case(4) the first appeal was a rehearing, which corrected any defect in the original disciplinary held in the Appellant's absence.(5) the further appeal offered to the Appellant gave him an opportunity to show that responsibility lay with Mr Brooks and not him. He did not take that opportunity.(6) the Respondent acted reasonably. The sanction of dismissal was appropriate. In these circumstances they held the dismissal to be fair.[8]Mr Coles appeared in person below and served a Notice of Appeal himself and has supplied us with a skeleton argument in advance of this preliminary hearing. Today he has the advantage of representation by Mr Charles Samek of Counsel under the ELAAS pro-bono scheme. Mr Samek accepts that the skeleton argument presented by Mr Coles raises no arguable point of law, our jurisdiction being limited to correcting errors of law, but he has sought, and we grant permission, to amend the grounds of appeal to take two points. The first point is that the Tribunal failed to give any or sufficient reasons for its conclusion that the Respondent acted reasonably in treating the Appellant's conduct as a sufficient reason for his dismissal as opposed to any other sanction. It is right to say that the Tribunal deal with that part of the case shortly at paragraph 25 of their reasons where they say this:
"Overall it is the Tribunal's conclusion that on reasonable grounds after full investigation, initially and at the subsequent hearings, the Respondent has reached a genuine belief that the Applicant has been guilty of the gross misconduct alleged. In our view it has acted reasonably in coming to that view and in determining that the sanction should be one of summary dismissal."
[9]Tribunal reasons must be read as a whole; the nature of the misconduct which the employer believed had taken place was a series of four threatening telephone calls to a female member of staff. The content of those calls is not set out in the Tribunal's reasons, but in the Respondent's notice of appearance at paragraph 6, they set out the nature of one of the calls, which in two places contains the ominous words, "We know where you live."[10]It seems to us that bearing in mind the Respondent's belief that Mr Coles was the author of these calls and his stout denial that he was responsible, coupled with the need to protect members of staff from such threatening calls, leads us to conclude that these were all factors which the Tribunal took into account when answering the question, "Did dismissal fall within the range of reasonable responses?" One reasonable employer might dismiss, another might administer a final written warning. In such circumstances, dismissal falls within the range. In these circumstances, it seems to us that the Tribunal overall gave sufficient reasons to explain to Mr Coles why he lost on the question of the appropriateness of the sanction being imposed.[11]The second ground of appeal argues that the Tribunal's conclusion, that dismissal was a fair sanction in these circumstances, was a perverse finding. The point has been faintly argued by Mr Samek, we think realistically. The question for us on appeal is whether no reasonable Employment Tribunal could conclude that dismissal fell within the range of reasonable responses in this case. The short answer to that question is that it was a permissible finding by the Tribunal in our judgment and consequently, there being no further grounds advanced, this appeal must be dismissed.