MR I POLAT v COSTA COFFEE LTD [2002] UKEAT 1382_00_2904

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1382_00_2904Case No Appeal No. EAT/1382/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR I POLATAPPELLANTCOSTA COFFEE LTDRESPONDENT
Before
His Honour Judge J R Reid Mr B Gibbs Mrs J M MatthiasDate 29 April 2002
[1]APPEARANCES For the Appellant MR J HORAN (of Counsel) Instructed By: Crawley Citizens Advice Bureau The Tree 103 High Street Crawley West Sussex RH10 1DD JUDGE J R REID: This is an appeal by Mr Polat against a decision of an Employment Tribunal held at Brighton on 28 July and 4 August 2000. By that decision the Tribunal unanimously held that Mr Polat, the Applicant was not unfairly dismissed by Costa Coffee Limited, the Respondent.[2]The facts can be taken fairly shortly. Mr Polat had been employed by Costa Coffee Limited at Gatwick Airport in August 1997. He was promoted in October 1999 to the position of Trainee Supervisor; on 22 December he was accused of kissing a fellow employee, female, on the neck. A complaint was made of which he was informed on Christmas Eve. On 29 February, the delay having been occasioned to some extent by the complainant's absence from work and subsequent resignation, he was informed of a disciplinary meeting. It took place on 7 March and then again on 9 March. He was dismissed on 9 March.[3]He exercised his right of appeal by a letter of 14 March and on 4 April an appeal hearing was conducted by Mr Ashmore. That appeal was conducted as a re-hearing. Mr Moore, who had conducted the original disciplinary meetings and had dismissed Mr Polat, was present at that hearing. The Tribunal held that there were defects in the original disciplinary proceeding because Mr Polat was not given adequate opportunity to prepare properly. They said that had matters stopped there, that would have been a serious concern to the Tribunal.[4]They went on however, to hold that Mr Ashmore's conduct of the appeal met all reasonable requirements for a disciplinary hearing of that nature. By that stage Mr Polat had all the necessary documentation, clearly understood the importance of the occasion, had a colleague with him to assist. The record of the meeting indicated that Mr Ashmore addressed the matter with great thoroughness by giving Mr Polat every opportunity to explain his position. The Tribunal held that it was satisfied that the conduct of the appeal rectified the shortcomings of the disciplinary hearing.[5]The two grounds of appeal which have been argued before us are first that the appeal hearing could not make good the defects in the original hearing because the first instance officer, as he is described, who appeared at the appeal hearing, was there throughout and (it was submitted) throughout the decision by Mr Ashmore of the appeal itself. It said that his presence was particularly capable of tainting the appeal process because Mr Polat had suspicions about Mr Moore's probity. It is said that the decision by the Employment Tribunal that the appeal process made good any defects in the original hearing was therefore flawed and that, viewed as a whole, it could not be said that the appeal process went far enough to rectify the earlier procedural defects.[6]Secondly, it is said that when one looks at the reasons given by the Employment Tribunal, one cannot see the basis on which they reached their decision. It is said that the Employment Tribunal made no findings as to whether or not Mr Moore was present during the deliberations and whether or not he contributed to them. In those circumstances it said that the Appellant is unable to see the basis upon which the Tribunal reached its conclusion that the appeal hearing rectified the original defects and so the Tribunal's decision fails the test set out in Meek v. City of Birmingham District Council (1987) IRLR 250 and Alexander Machinery v. Crabtree (1974) IRLR 120 because one cannot see whether the Tribunal made any error of law in making its findings of fact.[7]The position in this case was that the Originating Application made no complaint about the presence of Mr Moore during the conduct of the appeal, nor any allegation that he had been present during the consideration of the matter by the Tribunal. However, Mr Polat, in the course of his witness statement said this; "It will be seen from the barely legible notes that enclosures 53 -73 that Mr James Moore, who dismissed me, took a significant part in the proceedings. Furthermore, when I left the meeting, he remained behind with Mr Ashmore and must have influenced Mr Ashmore in his decision to confirm my dismissal. I believe this resulted in a procedurally deficient appeal and makes my dismissal on these grounds alone unfair."[8]The evidence of the two disciplining officers was this: Mr Moore gave evidence and very briefly at the end of his written statement, paragraph 21, he said:
"I attended the hearing of Mr Polat's appeal; I did not take any part of the decision reached by the appeal officer."
In cross-examination he said:
"I had no hand in decision making; I stayed behind because of Mr Polat's aggressive attitude. I did not feel safe. I left 15 – 20 minutes later, the meeting was adjourned, Mr Polat left the room. I stayed in the room while Mr Ashmore was making up his mind, I had no function, I waited until Mr Ashmore made his decision, I don't know why I remained in the room, the period lasted about 35 minutes."
Mr Ashmore said this; "At the ending of the hearing, Mr Polat and Frank went down stairs. I left the room and returned to the room, collected my things, checked Sarah's minutes. I went to the toilet and then to Costa Training Centre on my own. I wrote the note at page 73, returned to the meeting room where Moore and Noakes were still waiting and I asked Sarah Noakes to ask Mr Polat back." It does not appear that in cross-examination, he was asked any questions about that. All he appears to have been asked was whether he knew Mr Moore would be present at the hearing of the appeal. He replied; "I have always known Mr Moore would be there, perhaps the letter (page 49) should have said so. I opened the meeting clearly and explained peoples roles at the meeting (the meeting started late because Sarah Noakes was late)"[9]In our judgment it is clear that the question of whether Mr Moore had been present during Mr Ashmore's consideration and decision making was one which by the conclusion of the hearing had faded into insignificance. It appears that there was no attempt the challenge Mr Ashmoore's assertion that he had gone off to another place in order to write his decision.[10]In those circumstances, it seems to us entirely unsurprising that there should have been no specific finding as to whether Mr Ashmore was in the presence of Mr Moore throughout the decision making process. At that stage it was the non-point and was clearly a point revived only when the matter reached the Employment Appeal Tribunal.[11]In the circumstances, the finding at paragraph 26 of the extended reasons which begins:
"At the end of the appeal hearing, Mr Ashmore made the following findings…" and at paragraph 29, "
Mr Ashmore's conduct of the appeal however, meets all reasonable requirements for a disciplinary hearing of this nature. By this stage the Applicant had the necessary documentation, he clearly understood the importance of the occasion. He had a colleague with him and the record of the meeting clearly indicates that Mr Ashmore addressed the matter with great thoroughness, giving the Applicant every opportunity to explain his position. The Tribunal are satisfied that the conduct of appeal rectifies the short comings of the disciplinary hearing" contains all the findings of fact which could reasonably have been asked for. It is not a requirement that every single conceivable point that might have been dealt with in the decision, should be dealt with at length. The requirement is: that the Tribunal should deal with the live issues so that the parties can understand them and in our judgment it is perfectly clear that this issue was not by the conclusion of the hearing, a live issue.[12]It follows that in our judgment there is no substance in the first of the points raised. So far as the second of the points raised, that we think, falls with the first, as will already be apparent. The position is simply that by the conclusion of the appeal, there was no need to deal with the hare which had run for a short while as to the possibility of Mr Moore being present during the making of the decision, because that hare had long since vanished from the scene.[13]The requirements of Meek were quite adequately satisfied. It should be taken as no discourtesy to Mr Horan, for whose able and thorough argument are much indebted, if we do not go through the various cases to which he referred us, but the fact of the matter is that those cases really would only be capable of assisting the Tribunal were the facts other than it appears to the Tribunal the facts in reality were.[14]The appeal is dismissed.