MR A BONDSWELL v YORKSHIRE ENVIRONMENTAL SOLUTIONS LIMITED [2002] UKEAT 1366_01_3004

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1366_01_3004

Case No Appeal No. EAT/1366/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A BONDSWELLAPPELLANT

YORKSHIRE ENVIRONMENTAL SOLUTIONS LIMITEDRESPONDENT

Before

Mr Justice Wall Mr P M Smith Mr R N Straker

Date 30 April 2002

[1]APPEARANCES For the Appellant MR ANDREW BURNS (of Counsel) Messrs Eversheds Solicitors Eversheds House 70 Great Bridgewater Street Manchester M1 5ES THE HONOURABLE MR JUSTICE WALL This is the Preliminary Hearing of an appeal by Mr Andrew Bondswell against the unanimous decision of the Employment Tribunal sitting at Sheffield on various dates between 1 November 2000 and 29 August 2001. Before the Tribunal also was a counterclaim by the Respondent to the application, Yorkshire Environmental Solutions Limited, but we are today only concerned with the question of Mr Bondswell's complaint that he was unfairly dismissed, the counterclaim is immaterial for present purposes.

[2]The facts of the case are somewhat unusual. Mr Bondswell was the Managing Director of Yorkshire Environmental Solutions Limited, that company being a company within the Kelda Group plc (formerly known as Yorkshire Water plc). In essence, what happened was that it was clear to Mr Bondswell, as the Tribunal found, that during the autumn of 2000 there needed to be some redundancies in order to achieve reduction of expenditure. He decided that one of the people to be made redundant was his Personal Assistant, a lady called Mary Nadin.

[3]What happened, however, was that Mr Bondswell's wife applied for the post of Administrative Assistant with the Respondent. She did not apply in the name 'Bondswell' she applied in the name 'Defoe' which we understand is her maiden name and the name by which she is generally known. When she made her application she signed a declaration in these terms:

"I confirm that the answers given above are true and accurate to the best of my knowledge and I understand that if I am a relative of a director or senior manager of Yorkshire Water plc or Yorkshire Environmental Solutions Ltd it is necessary to declare this fact by attaching a written statement to this application."

No such declaration was attached to the application and, as the Tribunal found, the only suggestion of any connection with Mr Bondswell was the address. Mr Bondswell had been asked to fill in a 'new starter details' in relation to Miss Defoe and initially signed a document saying that her weekly hours of work would be 25 starting on 1 September 1999 and at a rate of pay of £8,500 per year. He signed this on 27 August 1999 and also a further document, undated, in which the hours had changed from 25 to 35 with the rate of pay unchanged. Miss Defoe's application was dated 25 August 1999 and in a letter dated 31 August 1999 Mr Bondswell confirmed to Mary Nadin that her role of Personal Assistant to the Managing Director had been selected as one of the roles which was likely to become redundant.

[4]On 6 September 1999 Miss Defoe wrote to the Human Resources Assistant of the Respondent company, Mr Paul Simpson, thanking him for his letter to her, and in her letter Miss Defoe included this paragraph:

"Please note Mr Bondswell has informed me that it will not be necessary for me to have a medical nor to provide references as this is a temporary position and I am known by him. However should a further reference be required, please contact my previous employer."

Miss Defoe signed a copy of her contract of employment on 6 September. This was, the Tribunal found, the same day when Mary Nadin had her consultative interview about her redundancy.

[5]On 15 September 1999, Susan Margiotta, the Human Resources Manager of the company, informed Mr Baalhuis, the Group Managing Director, that the Applicant had appointed Miss Defoe and that Miss Defoe was the Applicant's wife. Mr Baalhuis was Mr Bondswell's immediate superior. Quite how Ms Margiotta found out that Miss Defoe was the wife of Mr Bondswell is not clear and there is certainly no evidence that Mr Bondswell told her.

[6]Mr Baalhuis received the information whilst at the airport in Manchester and was shocked and surprised that a senior manager should make such a serious error of judgment. He told Ms Margiotta that he had not agreed to the appointment and on the following morning, 16 September, he telephoned Mr Bondswell and at the end of that telephone call he told him that he could not appoint his wife and as it had happened it was to stop at once. If he had been asked he would have refused permission. The Applicant tried to persuade him to let his wife continue for a couple of weeks but Mr Baalhuis refused. The Respondent company took the view, through the person of Mr Baalhuis, that the Appellant's behaviour in seeking to procure the appointment of his wife as his assistant was sufficiently serious to warrant instant dismissal. Mr Bondswell was, initially, suspended and then dismissed.

[7]The first and major point taken this morning by Mr Burns, on behalf of the Appellant, in relation to this process was that the dismissal was procedurally unfair, indeed, fatally flawed, because the person effectively dismissing Mr Bondswell, Mr Baalhuis, was also the person who then conducted the disciplinary enquiry in relation to that dismissal. The Tribunal deal with this matter in paragraph 7 of their reasoning. They found, first of all (and this, in our judgment, is a finding which no Employment Appeal Tribunal could interfere with) that the Appellant's conduct was sufficient to make instant dismissal a reasonable option for the employer. They then went on to consider whether the process itself was fair. We think it is appropriate in these circumstances to read the whole of paragraph 7 of the Tribunal's reasoning:

"The second matter for the tribunal to consider (with a neutral burden of proof) is whether the respondent had acted reasonably in dismissing the applicant for the above reason. The tribunal took into account Section 98(4) of the 1996 Act and in particular the size and administrative resources of the employer's undertaking and the equity and substantial merits of the case. In relation to the former the tribunal accepted that this is a large organisation which has the support of a large Human Resources Department and therefore the duty is an onerous one. The tribunal considered the cases of BHS Ltd v Burch ell and The Post Office v Foley and found that there had been a full and proper investigation into events which gave an opportunity for the respondent's disciplinary officers to make a considered and fair judgement and which resulted in a provision of documents and written statements which allowed the applicant to understand the case against him and to be able to put forward his defence in a clear way. The Tribunal was satisfied that the respondent had made a genuine decision that the applicant had been guilty of the misconduct stated above and that they had reasonable grounds for such a conclusion taking into account the thoroughness of their investigation. The Tribunal was impressed with the genuine nature and credibility of Mr Baalhuis who made the decision to dismiss and Mr Bond who confirmed the decision at appeal. Further the tribunal has to be satisfied that the procedure undertaken by the respondent in the making of the decision is a fair one. The tribunal in general found that the applicant was given every opportunity to state his case. He provided lengthy written statements to both the disciplinary and appeal hearing. Mr Nor bury for the applicant made a submission, relying on the case of Whitbread v Hall, that the fact that Mr Baalhuis made the decision to dismiss the applicant made the dismissal procedurally unfair. It was his contention that as Mr Baalhuis was the person who had given the applicant the order which he had not complied with he should have stood to one side so that he would not be influenced by his own personal involvement in the case. In this respect the tribunal came to two conclusions. Firstly, the tribunal found that it did not believe that Mr Baalhuis had been influenced to any extent and that he could take an independent view in relation to his decision both as to the applicant's guilt and the sanction imposed. Secondly, the tribunal found the circumstances of this case were exceptional in that the applicant was the Managing Director of the respondent. There was nobody senior in his part of the company. He was beholden only to Mr Baalhuis as Group Managing Director. Dr Bond who heard the applicant's appeal was the Chief Executive of the Kelda Group plc. The tribunal found in the circumstances that it was appropriate for Mr Baalhuis to make the decision and for Mr Bondswell to appeal to Mr Bond. If the tribunal is wrong about this, it did conclude that the proceedings of the appeal were thorough enough to amount to a rehearing and sufficient to cure any fault in the procedure of the disciplinary hearing."

[8]In his helpful and clear submissions to us this morning Mr Burns makes two essential submissions on this point. The first is that the behaviour of Mr Baalhuis in hearing the appeal is of sufficient seriousness to vitiate the entire procedure and render it procedurally unfair. Secondly, he submits, that that unfairness is not cured by the Tribunal's findings in relation to the nature of the appeal. Mr Burns submits that it was necessary for the appeal to be entirely at arms length if the defect was to be cured and to take the form of a complete rehearing. Only in that way, Mr Burns submits, can the procedural unfairness be cured.

[9]We have considered that submission with some care. We certainly accept that if the initial hearing by Mr Baalhuis stood alone it would be an arguable point for the Employment Appeal Tribunal that the procedure was unfair and was vitiated by Mr Baalhuis' conduct. However, it does not stand alone. The Tribunal heard evidence from Mr Bond and they were impressed by Mr Bond, as they were entitled to be. They heard evidence: we do not. They make a finding that Mr Bondswell had every opportunity to state his case and to provide written statements to both disciplinary and appeal hearings. They conclude, having heard that evidence, that the proceedings of the appeal were thorough enough to amount to a rehearing and sufficient to cure any fault in the procedure of the disciplinary hearing.

[10]In our judgment, the combination of the findings made by the Tribunal(1) as to Mr Bondswell's conduct and

(2) the response of the employer in being reasonable in treating it as a basis for dismissal, and

(3) the process, particularly of the appeal, are sufficient to render it unarguable that this process was unfair. the conduct was obviously, on any view, of an extremely serious nature and warranted dismissal. Mr Baalhuis should not have heard the disciplinary enquiry but we are quite satisfied on this point that were we to allow the matter to go through, the inevitable finding of the Employment Appeal Tribunal would be that he appeal process, as found by the Tribunal, was sufficiently fair to overcome any initial prejudice that might be perceived to exist as a result of Mr Baalhuis' conduct. A finding by the Tribunal that the appeal hearing, even in an organisation of this substance, was thorough, is one we cannot attack and the Tribunal's finding that it was sufficient to cure any fault in the procedure is one which we think that they were entitled to make, and as I said a moment ago, it is sufficient to render an argument to the contrary unarguable.

[11]This, I think, does, as I indicated a moment ago, gel in with the second submission made by Mr Burns that the Tribunal was wrong and perverse to make findings of dishonestly against Mr Bondswell in the attempt to secure employment by his wife. Mr Burns argues, in essence, that the dishonesty, if it existed, was not of Mr Bondswell but of his wife. That is an argument which we find singularly unimpressive. Mr Bondswell must have been aware of the policy of the company, that applications by relatives or those involved with members of staff had to be disclosed. Miss Defoe says, in terms, that she was told by her husband, and it is in the letter she wrote to Mr Simpson that I have already cited, that it would not be necessary for her to have a medical or provide references and that she was "known" to Mr Bondswell. The Tribunal, as I have already indicated, were, in our judgment, entirely entitled to find that this was conduct at best disingenuous and at worst dishonest and an attempt to conceal from the Respondent that the appointment had been made, certainly in the initial stages.

[12]Against that background we take the view that any investigation on the facts which were essentially not in dispute by the company was almost inevitably going to lead to the conclusion that the dismissal was fair and correct. That was, in our judgment, the inevitable conclusion that Mr Baalhuis would be likely to reach even if he were emotionally engaged in the process and it was, in our judgment, inevitably the result that Mr Bond was going to reach on appeal. In those circumstances we see no point in allowing the matter to go forward because the argument that the matter was procedurally unfair has been addressed properly by the Tribunal who have themselves concluded that the appeal process was sufficient. In these circumstances we do not think there is an arguable point for the full Tribunal and the appeal will be dismissed at this stage.