MR C D ROBERTS v ORACLE CORPORATION UK LTD [2002] UKEAT 1294_01_2604

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1294_01_2604

Case No Appeal No. EAT/1294/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR C D ROBERTSAPPELLANT

ORACLE CORPORATION UK LTDRESPONDENT

Before

His Honour Judge J R Reid

Date 26 April 2002

[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant JUDGE J R REID QC This is a preliminary hearing of an application of an appeal by Mr Roberts against a Decision of an Employment Tribunal held at Reading on 24 and 25 September of last year. The Decision was sent to the parties on 4 October of last year.

[2]The Tribunal rejected Mr Roberts' claim for unfair dismissal. He had been employed by the Respondent, Oracle Corporation UK from some time in June 1990 until 17 July 2000. His dismissal was on the basis of gross misconduct as a result of his use of company equipment to access an external internet chat room, and as a result of the nature of the messages that he posted there. The Tribunal came to the conclusion that the employer had reasonable grounds for the dismissal, believing the Applicant was, indeed, the person who had been going into the Adult Friend Finder website making abusive and racist remarks, while using Oracle facilities, and that he had been doing that for up to twenty seven hours over a weekend.

[3]The original disciplinary hearing took place on 17 July following a report by Mr Doyle on 14 July. The disciplinary meeting at which Mr Doyle and Mr Miller were present was on 17 July and before it, Mr Doyle had written the report in which he had used the words:

"Chris will be called into an interview on Monday 17 July 2000 when his contract of employment will be terminated."

From that decision Mr Roberts appealed. His defence essentially was that somebody must have hacked in to give the impression that it was he using his computer to place these obnoxious messages in the chat room.

[4]Following some further investigation a Mr Kerney conducted the appeal hearing. Mr Kerney had been the representative of Oracle dealing with the public relating to the allegations as to what Mr Roberts had been up to. Before he conducted the appeal, which was heard on 22 August, he had said, in correspondence with some complainants to the website:

"If the allegations are proven his employment will be immediately terminated."

And to various individual complainants he said this:

"Roberts will be fired for gross misconduct on Monday. The file we have compiled proves beyond doubt his use of several pseudonyms, we have no doubts about his responsibility for much of the actions complained of. He is clearly an unbalanced individual."

[5]The Tribunal held that the reason Mr Doyle drafted his report in the terms which he did was simply because of the strength of the evidence as he found it and they accepted, having observed Mr Kerney giving his evidence that:

"… whatever he felt in relation to his dealings with the applicant vis-à-vis the public face of the company, when it came to hearing an appeal, he both had to and was able to approach the matter with an open mind. He gave an example that a person who had been using Oracle internet facilities to make abusive comments regarding cat breeding was given a final written warning when it emerged when the person using the facilities was in fact his wife. Mr Kerney made it clear that had the applicant come up with an explanation that had some probability, that would have been considered. The difficulty was however, the applicant raised the issue of the hacker and asked for a number of tests to be carried out to explore that. Those tests were carried out until it became apparent that every test that was carried out merely confirmed the applicant's involvement and therefore guilt. At that point the tests ceased."

The Tribunal expressed themselves satisfied the way in which the Respondent's employees had continued to explore the ideas put forward by the Applicant after the appeal meeting demonstrated they had not closed their minds to the possibility that he might have a proper explanation.

[6]The grounds of appeal which are put forward by the Applicant, Mr Roberts, are these:

"At the hearing the tribunal permitted the respondent to present documentary and witness testimony gathered subsequent to the appellants appeal on August 22 nd 2000. This evidence purported to demonstrate the appellants guilt of the charges on which he was dismissed and the appellant holds that this unfairly influenced the Tribunals' decision as referred to in para 35 of Extended Reasons."

That is a reference to a passage in paragraph 35 which is a mere coda to the Decision:

"Finally, we noted that although we are not asked in a case of unfair dismissal where we find the dismissal is fair to decide whether or not a person actually committed those acts as that would only be relevant if we were to find against the respondent and to deal with contribution. We could not help but note that the language used in a very abusive email admitted to be sent by the applicant to the head of Oracle in the US contained language so markedly similar to that in the Adult Friend Finder website chat room and shown on the research conducted for the disciplinary appeal hearings that it could not be a coincidence."

We take the view that there is no such substance at all in this point of the appeal. The Tribunal were perfectly entitled to note that particular fact, but it is clear from the general layout of the decision that it was not something which had been regarded as being relevant to the issue of whether or not the Appellant had been unfairly dismissed. It follows that this ground of appeal will not be allowed to go any further.

[7]The second ground of appeal is this:

"The Appellant hold that the respondent issuing form P45 four weeks prior to the dismissal appeal hearing effectively rendered the appeal hearing null and void in law, the appellant's employment having been irrevocably terminated at that time."

Yet there is no substance in that point. An appeal process may take place after a dismissal has taken effect or, as is perhaps more common, take place while the Appellant in the appeal process is in some form of limbo and under suspension. Again, that point should not be allowed to go any further.

[8]The third point is in these terms:

"The Appellant holds that, referring to paras 18 + 19 of Extended Reasons failed to recognise the appeal chairman's prior involvement, sole decision to dismiss the appellant and personal vitriol towards the appellant, refer paras 18 and 19 of Extended Reasons. Refer Byrne v BOC Ltd [1992] IRLR 505 "

In our judgment, that last point is the point which deserves to be explored at a full hearing. We are by no means suggesting that it is sure, or even likely to succeed but it does appear that Mr Roberts should be allowed to develop his argument in relation to this point in circumstances where it is clear that the person conducting the appeal had, well in advance of the appeal, been going public to people who had complained about the employee's conduct, giving his dismissal as a foregone conclusion. Whether that demonstrated bias of such a nature as to invalidate the appeal procedure, and whether it would have had any effect on the outcome of matters can no doubt be discussed at the full hearing. We propose therefore the matter should go for a full hearing only on the last of the three grounds of appeal, category C, time estimate half a day.

[9]I should say as a coda that Mr Roberts has not attended here today, having written to the Employment Appeal Tribunal indicating that he is unwell and asking for the hearing to be postponed. We did not think it appropriate to postpone the hearing, in the absence of any medical certificate, he having been told that the matter would have to remain in the list in the absence of a medical certificate a week ago.