SOUTH WEST TRAINS LIMITED v MR P D MCDONNELL [2003] UKEAT 0052_03_0708

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0052_03_0708Case No Appeal No. EAT/0052/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SOUTH WEST TRAINS LIMITEDAPPELLANTMR P D MCDONNELLRESPONDENT
Before
His Honour Judge J BurkeDate 7 August 2003
[1]APPEARANCES For the Appellant MR J TODD (of Counsel) Instructed by: Messrs Kennedys Solicitors Longbow House 14-20 Chiswell Street London EC1Y 4TW For the Respondent MISS K NEWTON (of Counsel) Instructed by: Messrs Pattinson & Brewer Solicitors 71 Kingsway London WC2B 6ST HIS HONOUR JUDGE J BURKE QC The facts South West Trains Ltd ("South West Trains"), the employers, appeal against the decision of an Employment Tribunal, sitting at London South and chaired by Miss Lester and sent to the parties on 22 October 2002, that their employee, Mr McDonnell, was unfairly dismissed. Mr McDonnell cross-appeals against the Tribunal's conclusion that he was not automatically unfairly dismissed for trade union reasons, falling within section 152(1) of the Trade Union and Labour Relations (Consolidation) Act 1992 . Since that decision, the Tribunal have, in December 2002, made various further decisions on remedies; we have not seen the Tribunal's remedies decisions or the reasons for those decisions; and in this appeal we are not concerned with any matters arising from the remedies hearing.[2]The outline facts, in brief, are these. Mr McDonnell was employed by South West Trains as a Revenue Protection Inspector from October 1996 until his dismissal in February 2002. He was a member of the trade union known as RMT, was recruitment secretary of the Feltham branch of that union and, from January 2002, was elected to sit on the South West Trains Company Council, a body of management and union representatives.[3]On 28 January 2002 there was an official strike called by RMT in furtherance of a dispute or disputes with South West Trains. Some employees of South West Trains did not heed the strike call and worked despite that call. Mr McDonnell, according to the Tribunal's findings, spent a long day at Waterloo station taking part in a march and in meetings in support of the strike. He spent some six hours in a public house during the course of which he drank some alcohol and attending a union meeting. In the evening he travelled by train from Waterloo to Wimbledon with Mr Hemsley, a union official; at Wimbledon they were involved in an argument with Mr Bassani, one of South West Train's managers. Mr McDonnell then boarded a Thameslink train from Wimbledon to St Helier; and during that journey an incident occurred between Mr McDonnell and another South West Trains employee, Mr Elkins, who had been in South West Trains' employ for only a short time, who had not been taking part in the strike and had been working. Mr Elkins subsequently complained that Mr McDonnell had harassed and intimidated him during that journey. As a result South West Trains began an investigation. Mr Elkins and a Mr Parker, who worked at Wimbledon Station, were interviewed on the next day, 29 January. On 31 January the Group Revenue Protection Manager, Ms Prevett, interviewed Mr McDonnell; and on 1 February she interviewed Mr Bassani and interviewed Mr Elkins, who was thus interviewed twice. Mr McDonnell was placed on investigatory suspension on 31 January.[4]There was a disciplinary hearing on 22 February which was conducted by Mr Johnstone, Retail Manager London West. Mr McDonnell was represented by Mr Richardson, an employee of South West Trains who was also RMT's Company Counselling Representative for station staff and was experienced in representing union members at disciplinary hearings and the like. The hearing went on for well over two hours at the end of which Mr Johnstone concluded that Mr McDonnell was guilty of the charge that he had intimidated and harassed Mr Elkins; and Mr Donnell was dismissed on the same day. He appealed; his appeal was heard by a more senior manager, Mr Fairbank, Head of Retail Delivery, on 10 April. Mr McDonnell was, on this occasion represented by Mr Bialyk, a senior full time official of RMT. After a hearing very similar to that held by Mr Johnstone, Mr Fairbank upheld Mr Johnstone's decision.[5]Mr McDonnell complained to the Employment Tribunal that he had been unfairly dismissed, on two bases; firstly he said that he had been automatically unfairly dismissed because the principal reason for his dismissal was that he was a member of an independent trade union or that he had taken part in the activities of an independent trade union at an appropriate time within section 152(1)(a) or (b) of the 1992 Act. (At the hearing his case was put on or primarily on the basis of section 152(1)(b) ); secondly, he said that the dismissal was unfair within section 98 of the Employment Rights Act 1996 . In a lengthy, very detailed and obviously professionally drafted answer to box 11 of the Originating Application which asked for particulars of Mr McDonnell's complaint, he asserted at paragraphs 11.14 - 11.19 that the dismissal was unfair in all the circumstances because:- 11.14 South West Trains did not have a genuine belief that Mr McDonnell had been guilty of the harassment alleged. 11.15 . If they did such belief was not held on reasonable grounds following a proper investigation because South West Trains failed properly to consider or to attach proper weight to various facts (which we do not see it as necessary to recite in this judgment). 11.16. South West Trains were improperly influenced by media reports concerning intimidation by RMT during the strike. 11.17/18. For factual reasons the decision to dismiss was unreasonable and an unfair sanction.[6]It is to be noted that the Originating Application, although it set out Mr McDonnell's case in detail and in a particularised manner, did not allege that there had been any defects in the procedures adopted by South West Trains.[7]South West Trains' response denied that Mr McDonnell's union membership or activities were the reason or principal reason for the dismissal which arose from his gross misconduct in behaving towards Mr Elkins as Mr Elkins had alleged.[8]There was also a claim for wrongful dismissal upon which the Tribunal did not adjudicate; as it was simply a money claim, they decided to deal with it at the remedies hearing; they did not say why they took that course; but it is not for present purposes of any importance. The Tribunal's Decision[9]There was a great deal of argument before the Tribunal as to whether or not what Mr McDonnell did took him outside the scope of what could properly be described as trade union activities falling with section 152(1)(b) of the 1992 Act. The Tribunal found, contrary to South West Trains' case, that Mr McDonnell was seeking to talk to Mr Elkins about membership of RMT and about the strike, that his conduct was not so unreasonable as to take him outside trade union activities and that he was taking part in trade union activities in seeking to speak to Mr Elkins.[10]However, the Tribunal found that Mr McDonnell's conduct had upset Mr Elkins and caused him to complain as he did and that South West Trains had to investigate that complaint, as they did, extremely vigorously. The Tribunal concluded, at the end of paragraph 21 of their Decision, that while Mr McDonnell's union activities played a part in South West Trains' decision - as they must have done because it was in the course of those activities, on the evening of an official strike, that Mr McDonnell acted as he did towards Mr Elkins - those activities were not the principal reason for the dismissal. The principal reason, the Tribunal found, describing it as the causa causans - the immediate cause - of the dismissal, in the context of the state of industrial relations that day, was Mr McDonnell's conduct in the course of the incident with Mr Elkins.[11]The Tribunal went on, wholly correctly, in paragraphs 22 and 23 of their Decision to treat the case as one to which the principles in British Homes Stores -v- Burchell [1980] ICR 303 applied. They concluded that in three respects South West Trains' investigation of Mr McDonnell's conduct was so seriously flawed that the dismissal was unfair. The three respects in which the Tribunal found South West Trains' procedure to have been flawed were these. Firstly, paragraph 11 of the Discipline section of the Procedure Agreement between RMT and South West Trains provides as follows:- "11 In cases in which disciplinary action is contemplated against an employee who is a trade union official or staff representative, no immediate action beyond oral warning will be taken until the circumstances have been discussed with the relevant full time paid official of the trade union concerned, failing which another full time paid official or senior person employed at the headquarters of the trade union concerned." The Tribunal did not make any detailed findings as to what had happened, so far as paragraph 11 of the disciplinary procedure is concerned, save by saying, as the first criticism of South West Trains' procedures, in paragraph 23 of the Decision:
"23 …… he should not have been suspended at the end of that interview i.e. until all the circumstances had been discussed with a relevant full time paid official of the union (paragraph 11 of the disciplinary procedure …… )."
[12]Secondly, the Tribunal criticised South West Trains in this way:- "……Further, Ms Prevett interviewed the Applicant (on 31 January) before she had interviewed either Mr Bassani or Mr Elkins; they were both interviewed by her on 1 February 2002. Thus, when she interviewed the Applicant, she was acting on second-hand information, that is, the notes of the interview with Mr Elkins by Mr Bassani on 29 January."[13]The Tribunal thirdly criticised South West Trains in these terms:- "More seriously, neither Mr Johnstone nor Mr Fairbank interviewed or heard any evidence from Mr Elkins, who was not present either at the disciplinary hearing on 22 February or the appeal hearing on 10 April. Neither were Mr Bassani or Mr Hemsley present. At no stage of the investigation or the disciplinary process was the Applicant able to hear Mr Elkins or to question him."[14]The Tribunal then concluded as follows:
"The Tribunal finds that, although Mr Johnstone's disciplinary hearing was full, it was fatally flawed for these reasons. Mr Fairbank's appeal hearing was similarly flawed. The dismissal was unfair."
[15]We must now set out in greater detail the nature of the investigatory process leading to the decision to dismiss Mr McDonnell. We have referred to the disciplinary procedure forming part of a collectively negotiated Procedure Agreement; it was common ground that that procedure had been incorporated into individual contracts of employment and, therefore, into Mr McDonnell's contract of employment. Paragraph 9 of that procedure provided as follows:- "The procedure set out in paragraphs 1 to 8 above shall not apply in cases of exceptionally grave misconduct which may warrant summary action. In such cases suspension from duty pending investigation may be justified for which payment will be made at the basic rate of pay. The employee concerned will be informed, in writing, at the earliest possible time, of the nature of his/her offence, within three working days of which a hearing will be arranged. The employee charged with the offence may arrange to be accompanied if he/she so desires by a spokesperson who shall either be a fellow employee of SWT or a representative of a trade union recognised by SWT. The employee will be permitted to call witnesses. After such a hearing the employee will be informed of the decision which will be implemented forthwith; this decision and his/her rights of appeal will be confirmed in writing as early as possible." South West Trains brought the charge of misconduct against Mr McDonnell under paragraph 9; and therefore the procedure set out in that paragraph applied to Mr McDonnell's case.[16]Paragraph 10 of the procedure provided for an appeal, in these terms:
"Where an employee has been dealt with in a case of exceptionally grave misconduct under the provisions of paragraph 9 and thereafter submits an appeal, in writing, a personal interview with the appropriate senior manager of SWT will be granted. At such interview the employee may be accompanied if he/she so desires by a trade union representative recognised by SWT or a fellow employee of SWT. The manager hearing the appeal must not be the manager who has adjudged the case or decided the punishment in the first instance. This appeal is to be heard and decided as early as possible and the employee advised of the result in writing without delay."
We have set out paragraph 11 of the procedure earlier in this judgment; paragraph 12 sets out the normal types of recordable punishment in a list ranging from reprimand at the lowest to dismissal at the highest. Investigatory suspension pursuant to paragraph 9 is not on that list.[17]When Mr Elkins was first interviewed, on 29 January 2002, he said, referring to Mr McDonnell (who he did not know):- "He didn't say anything but I was aware I was going to be approached. The Thameslink came in. I walked towards the rear of the train (it was a 4 car) and I was aware that there was a presence behind me. I went and sat by the furthest set of doors and I looked up. He said:
"not a member of a union"
. I stated I did not want to talk about it and got up and walked away. He followed me and was saying stuff like why was I working - I was letting people down, what had I got to hide - he called me a wanker, kept going on saying wankers like you who are working and things like that. I said something like leave me alone and stop being a prat. I asked him to go away. I did feel intimidated, then a gentleman on the seat behind me on the train asked me if I was OK. He continued to go on at me, I asked him to go away again and then he became threatening in his tone and I said in the end "if you are going to hit me hit me, but I am not going to retaliate". I felt very intimidated. I was in full uniform and felt very uncomfortable …. I could tell he was under the influence of alcohol. I was intimidated and as I was in uniform very uncomfortable. I could tell if I had stood up abruptly it could have turned confrontational. He was saying wankers like you make it bad for the rest of us and we should stick together." When interviewed again on 1 February Mr Elkins gave a similar account.[18]When interviewed by Ms Prevett on 31 January, Mr McDonnell claimed that he was entitled to be represented during the interview. Ms Prevett replied that he was not so entitled; and the interview proceeded. In summary Mr McDonnell said that he did not remember the incident with Mr Elkins but that he did not intimidate people and did not use the expression "wanker". He agreed that he had "had a bit to drink".[19]At the conclusion of the interview Ms Prevett said that, in view of the seriousness of the allegation, she would be suspending Mr McDonnell from duty on investigatory suspension with basic pay. While the Tribunal did not set out in their Decision the next steps which South West Trains took, there is no dispute between the parties that South West Trains' Human Resources Department spent some time trying to contact the office of Mr Bialyk, who was the appropriate regional organiser, by telephone, but found the number continuously engaged. A fax was therefore sent to Mr Bialyk by Mrs Smith of the Human Resources Department informing him that Mr McDonnell, a staff representative, had been placed on investigatory suspension and inviting him to ring the number provided if he wished to discuss the matter. A message was received from a Mr Robertson, an RMT administration officer, confirming that he had received Mrs Smith's fax "and has acted accordingly as Paul Bialyk has gone sick". However nobody from RMT made any further contact with South West Trains about Mr McDonnell's case. Ms Prevett confirmed the investigatory suspension by formal letter on the same day and Mr McDonnell was formally charged with intimidating and harassing another member of South West Trains staff.[20]The disciplinary hearing resulting from that charge, conducted by Mr Johnstone on 22 February 2002, was described by the Tribunal as a full hearing. It took just under two and a half hours. We have described the nature of Mr McDonnell's representation; his representative, Mr Richardson, invited Mr McDonnell to answer questions from Mr Johnstone. Mr McDonnell gave an account of the incident, maintaining that he had done no more than seek to speak to Mr Elkins about membership of the union, that he had not used the word "wanker" and had not been adversely affected by drink. He said that Mr Elkins' account of intimidation and harassment was not true.[21]Towards the end of the hearing, Mr Richardson raised the point that procedures required that Mr McDonnell's case should have been discussed with a full-time RMT official before a charge was issued. Mrs Smith, who was present at the hearing as secretary, explained the sequence of events which we have already set out. Mr Johnstone said that the point had been noted. Mr Richardson then said "we have had a good discussion relating to this charge" and summed Mr McDonald's case, explaining Mr Elkins' complaint on the basis that Mr Elkins was upset because he had let people down by working on the strike day. After an adjournment Mr Johnstone said that the evidence suggested that Mr McDonnell was told on up to four occasions that Mr Elkins did not want to talk to him, that he moved away from Mr McDonnell for that reason, that Mr McDonnell swore at Mr Elkins and that Mr McDonnell had led Mr Elkins to feel that Mr McDonnell was going to hit him. He concluded that "Mr McDonnell was 100% contributory to this incident" and to the charge which followed.[22]The appeal hearing, on 10 April 2002, followed a similar but shorter course. No reference was made to any points of procedure. Having heard Mr Bialyk and Mr McDonnell, Mr Fairbank concluded, having summarised the main points of the evidence, as follows:
"This all points to reasonable belief that the incident that took place meant that the employee, Mr Elkins, felt intimidated and harassed and therefore made a complaint. I do believe that this employee did feel this way as outlined in the hearing and the issues that I have highlighted. On this basis I am upholding the hearing officers decision and you will remain dismissed from SWT employment."
[23]Before identifying, in paragraph 23 of their Decision, the three flaws in the investigatory process which caused them to decide that the dismissal was unfair, the Tribunal rejected Mr McDonnell's complaint that he was entitled to be represented when interviewed by Ms Prevett on 31 January; and that complaint has not been resurrected by Miss Newton. The Appeal[24]On behalf of South West Trains, Mr Todd attacks the Tribunal's conclusion that the investigative process was fatally flawed both on broad grounds and on the basis that the Tribunal's view that there was a procedural error in each of the three respects set out above was without foundation.[25]As to the process as a whole Mr Todd submits that, Mr Elkins having complained of harassment and intimidation, South West Trains properly pursued the complaint, carried out an extensive and full investigation (as the Tribunal found at paragraphs 22 and 23 of their Decision) and in doing so complied with the ACAS Code of Practice as to disciplinary procedures. He submitted that the findings of the Tribunal at paragraph 9 of their Decision demonstrated that the Tribunal had accepted the evidence of Mr Fairbank that he had concluded that Mr Elkins felt intimidated and harassed as a result of Mr McDonnell's conduct, that Mr McDonnell's conduct had been aggravated by alcohol and that his behaviour did not constitute legitimate union activity. While the Tribunal did not expressly make such a finding as to Mr Johnstone's conclusion, it was submitted that implicitly the Tribunal had taken the same view of his evidence. Thus the process was a fair one from which conclusions which were plainly open to the decision makers to reach had emerged.[26]Against that background, Mr Todd submitted, the Tribunal failed in considering the supposed flaws in the investigatory process to apply to the question as to whether the process was fair and reasonable the test of the range of reasonable responses or the need to apply the objective standards of the reasonable employer. Mr Todd submitted that the Court of Appeal in J Sainsbury PLC -v- Hitt [2003] ICR 1 (per Mummery LJ at paragraphs 28 - 30) had made clear, albeit that it was already clear from Foley -v- Post Office [2000] ICR 1283 , that that test applies or those tests apply not only to the general issue as to whether it was fair in all the circumstances for the employers to dismiss for misconduct but to each limb of the principles in Burchell and in particular to the question whether the investigation into the suspected misconduct was reasonable. Instead of adopting this approach, the Tribunal had substituted their own view of what was reasonable for that of the employer.[27]We agree with Mr Todd's description of the Tribunal's findings as to the investigative process in general terms; we do not however accept that the Tribunal made the mistake of not applying the range of reasonable responses test to the issue of the fairness of the investigative process. Having, as they expressly did, accepted Mr Fairbank's evidence as to his conclusions and his genuine belief and having by implication reached the same view as to Mr Johnstone's evidence - for, if they took the view that Mr Johnstone had not genuinely believed in the conclusions he expressed at the end of the first stage of the disciplinary process and repeated in his evidence, they would have undoubtedly have said so - the Tribunal did not make any finding as to whether dismissal was a sanction which would have been within the range of reasonable responses had there been a fair and reasonable investigatory process; they said at the conclusion of paragraph 22:
"Given the way the investigation was carried out, dismissal was not within the range of responses of a reasonable employer in the circumstances."
And at the end of paragraph 23, in the passage we have already quoted, they said that the disciplinary process was fatally flawed and the dismissal was unfair.[28]In our judgment the Tribunal were in those passages stating that the disciplinary process was fatally flawed and not within the range of reasonable responses and for that reason the dismissal was unfair; their words indicate that they did apply the correct test to the issue as to the reasonableness of the investigation; and having applied that test, they reached a conclusion which meant that they did not need to consider the Burchell principles any further. We do not accept that the Tribunal applied the wrong test to the question as to the reasonableness of the investigative process.[29]But were the Tribunal justified in their conclusion that the process was fatally flawed? They were, of course, the Tribunal of fact; and as Miss Newton rightly reminded us, we must not fall into the error ourselves of substituting our own view for that of the Tribunal on matters of fact and must be careful not to intervene unless the Tribunal's conclusions in this area were conclusions which no reasonable Tribunal could reach or which were not a permissible option open to the Tribunal.[30]We propose to consider the second and the third of the flaws in the investigative process identified by the Tribunal before referring to the first. The second criticism is that Ms Prevett interviewed Mr McDonnell before she had herself interviewed Mr Bassani or Mr Elkins and was therefore relying on secondhand information when she interviewed Mr McDonnell. Miss Newton accepted that she had not raised this criticism in the course of the evidence or in her closing submissions; and she presented no arguments to us in support of it, beyond submitting that it was for the Tribunal to consider the fairness of the process as a whole and to express such criticisms as they thought appropriate on the evidence. We feel bound to say, however, that if the Tribunal were entitled to criticise at all South West Trains' investigative process in this respect, when such criticism had not been flagged up in the Originating Application, in evidence or in closing submissions (which we very much doubt) the criticism was, in our judgment, one which no reasonable Tribunal could properly have made. Ms Prevett was not involved in the decision to dismiss at either stage; she was only the investigating officer with the task of gathering evidence; once she had gathered the evidence and seen from it that there was material in it which justified a charge, she ceased to have any role. Even if she had in some way erred in the sequence of interviews, we do not see how any such error could have been said to have had any effect upon the decision to dismiss. But, in any event, the criticism that she did not herself interview Mr Elkins before she interviewed Mr McDonnell and was therefore acting on secondhand information is unfounded. When she interviewed Mr McDonnell, Mr Elkins had already been interviewed by Mr Bassani; and Ms Prevett had the contents of that interview in front of her and put it to Mr McDonnell so that he could respond to what Mr Elkins had said. It could not possibly have mattered whether Ms Prevett herself or Mr Bassani had carried out that first interview of Mr Elkins; what was important was that Mr Elkins should be interviewed as soon as possible so that a record could be made, as it was, and that Ms Prevett had that record before her when she interviewed Mr McDonnell so as to put Mr Elkins' allegations to him - as she did. We wholly understand why Miss Newton did not make this criticism to the Tribunal; it was not a criticism which had any basis.[31]The third criticism, which the Tribunal described as more serious, related primarily to the absence of live evidence from Mr Elkins at either the disciplinary hearing or the appeal hearing. It is to be noted that the Tribunal also referred to the absence of Mr Bassani and Mr Hemsley; but Counsel made little or no reference to Mr Bassani and Mr Hemsley in the context of this criticism and proceeded on the basis that the thrust of the criticism was directed against the absence of Mr Elkins.[32]In considering this criticism, we need to refer again to the disciplinary procedure. This was not a case in which the disciplinary procedure required that the complainant or witnesses on whom the employers relied had to be called to give live evidence or to be available for cross-examination at a disciplinary hearing; although such procedures are sometimes found, they are not recommended by the ACAS Code of Practice. Under the disciplinary procedure which applied in this case, there was no provision that the employers had to call witnesses live or provide witnesses for cross-examination. The procedure entitled the employee to call witnesses.[33]Mr Elkins had been interviewed twice before the disciplinary hearing; both sides had the record of both interviews. While it was, of course, apparent that the charge against Mr McDonnell was based on an incident as to the facts of which there was a direct issue between Mr Elkins and Mr McDonnell, there was no need, under the agreed procedure or otherwise, for Mr Johnstone or Mr Fairbank to require Mr Elkins to attend to give his account live by way of evidence-in-chief; his account was fully set out in the notes of the interviews. The thrust of the Tribunal's criticisms cannot lie in Mr Elkins' not giving his account live; it must lie in his not being available to be cross-examined. However, the suggestion that the procedure was flawed on the basis that Mr McDonnell or his representative did not have an opportunity to cross-examine Mr Elkins, at either stage, faces three formidable difficulties. The first difficulty is that there is a strong line of authority against the validity of any such criticism. In Ulsterbus Limited -v- Henderson [1999] IRLR 251 the employer was dismissed from his employment as a bus conductor following a complaint that he had failed to issue tickets for fares collected. The complainants were not present at the disciplinary hearing or at the appeal hearing; they had been interviewed by the dismissing manager but not re-interviewed by the manager who heard the appeal. The Employment Tribunal in Northern Ireland found that the dismissal was procedurally unfair. On appeal O'Donnell LJ, with whom Hutton LCJ agreed, said, at paragraph 21:
"What the Tribunal appears to be suggesting is that in certain circumstances it is incumbent on a reasonable employer to carry out a quasi-examination with a confrontation of witnesses, and cross-examination of witnesses. While some employers might consider this to be necessary or desirable, to suggest as the Tribunal did, that an employer who failed to do it in a case such as this was acting unreasonably, or in the words of Lord Denning, acting outside ' …… a band of reasonableness, within which one employer might reasonably take one view, another quite reasonably take a different view,' is in my view insupportable."
[34]In Voluntary Hostels Group -v- Horn (EAT/603/02 and 865/01 unreported 14 January 2003) the Employment Tribunal found the dismissal for misconduct of the Appellant's Chief Executive to have been unfair on both procedural and substantive grounds. One of the procedural grounds for the Tribunal's decision was the failure to allow the employee to cross-examine the witnesses at the appeal hearing. On appeal to the Employment Appeal Tribunal, presided over by Nelson J, it was held that the Tribunal were in error in this criticism of the employers; at paragraph 53 of its judgment the Employment Appeal Tribunal said:
"As to the failure to allow the Respondent the opportunity to cross-examine at the appeal process we are satisfied that this finding is contrary to the decision in Ulsterbus and amounts to an error. It could not be said that in the circumstances the Appellant acted unreasonably in failing to provide her with an opportunity to cross-examine witnesses when neither she nor her representative had asked for the opportunity to do"
[35]In Santamera -v- Express Cargo Forwarding (EAT 780/01) which was heard in the Employment Appeal Tribunal after but in which judgment was given before Voluntary Hostels Group , leave was given by Lindsay P at the preliminary hearing to the employee, who had been dismissed for bullying and intimidating a colleague, to proceed to a full hearing on the basis that the Employment Appeal Tribunal would have an opportunity to consider, in the light of Ulsterbus , how far, if at all, an ability to see and hear one's accusers is ordinarily to be regarded as an essential part of a fair disciplinary hearing, and if it is, what factors might justify departure from that rule. In a reserved decision the Employment Appeal Tribunal, presided over by Wall J, rejected the employee's complaint that she had not been able to cross-examine her accusers. At paragraphs 35 - 38 the Employment Appeal Tribunal said:
"35. Section 98 of the Employment Rights Act 1996 and the cases decided under it and its predecessors do not, of course, require the dismissing employer to be satisfied, on the balance of probabilities, that the employee whose conduct is in question has actually done what he or she is alleged to have done. In a dismissal based on conduct, it is sufficient for the employer to have a genuine belief that the employee has behaved in the manner alleged, to have reasonable grounds for that belief, and to have conducted an investigation which is fair and proportionate to the employer's capacity and resources. The employer has to act fairly, but fairness does not require a forensic or quasi-judicial investigation, for which the employer is unlikely in any event to be qualified, and for which he, she or it may lack the means. 36 These considerations, we think, explain why, in the workplace investigation of misconduct, cross-examination of complainants by the employee whose conduct is in question (or even confrontations between them) are very much the exception. To a lawyer, accustomed to the judicial process, cross-examination designed to undermine credibility - in this case putting to the complainants the matters alleged by the Appellant in paragraph 19 of this judgment - would appear the natural way of testing whether or not they were telling the truth. It does not, however, follow that an employer is bound to take the same course; nor, on the facts of this case does it necessarily follow, in our judgment, that the process was unfair because Ms Phillips and Mr. McKenna did not put the contents of paragraph 19 to the complainants when they re-interviewed them. Whilst, in order to be fair, it is incumbent on an employer conducting an investigation followed by a disciplinary hearing both to seek out and take into account information which is exculpatory as well as information which points towards guilt, it does not follow that an investigation is unfair overall because individual components of an investigation might have been dealt with differently, or were arguably unfair. Whilst of course an individual component, on the facts of a particular case, may vitiate the whole process, the question which a Tribunal hearing a claim for unfair dismissal has to ask itself is: in all the circumstances, was the investigation as a whole fair? …… 38. Mr Horne accepted, as he was bound to, that there was no rule of law which rendered it incumbent on an employer, when dismissing an employee for misconduct, to arrange a hearing which gives the employee who is liable to be dismissed the opportunity to cross-examine the person making the complaint. He accepted that the law was accurately stated in paragraph 21 of Ulsterbus -v- Henderson ……."
The Employment Appeal Tribunal further said, at paragraph 42:- "42 We do not read Ulsterbus Ltd -v Henderson , and in particular paragraph 21 of the judgment in that case, as laying down the proposition that cross-examination can never be required in any investigation carried out by a reasonable employer. O'Donnell LJ rejects the proposition that "an employer who failed to do it in a case such as this" was "acting unreasonably". The issue, in section 98(4) of the Employment Rights Act 1996 is always reasonableness and fairness. We do not exclude the possibility that there will be cases in which it would be impossible for an employer to act fairly or reasonably unless cross-examination of a particular witness is permitted. The question, however, in each case is whether or not the employer fulfils the test laid down in British Homes Stores -v- Burchell , and it will be for the Tribunal to decide whether or not the employer has acted reasonably, and whether or not the process has been fair."[36]In their Decision in this case the Employment Tribunal did not set out any reason why this case should have been regarded as one of the rare and exceptional cases in which it was impossible for the employers to act fairly or reasonably unless cross-examination of Mr Elkins had been permitted; indeed it would have been difficult to come to such a conclusion in the light of the fact that neither at the original hearing nor at the appeal hearing did Mr McDonnell or his representative ask for the opportunity to cross-examine Mr Elkins. Miss Newton submitted that the determination of the disciplinary hearing appeal depended entirely on which version of events was accepted and that it was not irrational in those circumstances for the Tribunal to conclude that there was a need for Mr Elkins to be present to give live evidence and that it was open to the Tribunal so to conclude; but such a situation regularly arises in the context of a disciplinary process; and we see nothing, nor did Miss Newton identify anything, which took or could have been regarded by the Tribunal as taking this case into the class of rare and exceptional cases in which a right to cross-examination should have been permitted, particularly in the absence of any request for cross-examination on Mr Elkins' behalf.[37]The Tribunal did not refer to Ulsterbus or to any statement of the law in this area from authority or from textbook. The reason why they did not do so appears plainly from Miss Newton's candid and wholly professional acceptance that she did not advance to the Tribunal criticism that Mr Elkins was not present to give evidence live or to be cross-examined; and that is the second difficulty with this aspect of the Tribunal's Decision. In this respect too, neither in the Originating Application nor in evidence nor in final submissions was the point that Mr Elkins was not available to give evidence live or to be cross-examined put forward as a reason why the dismissal should be regarded as unfair. The Tribunal appear to have arrived at this criticism of their own initiative, without having been addressed upon it by Counsel and without the benefit of any reference to authority, and in particular to Ulsterbus . ( Voluntary Hostels Group -v- Horn had not been decided at the date of the Tribunal's Decision).[38]The third difficulty which confronts this aspect of the Tribunal's Decision is the point which we have already made, namely that neither Mr Richardson nor Mr Bialyk asked for Mr Elkins to be present. What view of such a request would have been taken by South West Trains, had it been made, we do not know; nor can we speculate as to what view the Tribunal would have taken if such a request had been made and rejected. The simple fact is that the request was not made at either stage of the investigatory process; and RMT had not taken any steps to procure Mr Elkins' attendance. We cannot say whether this was a tactical decision on the part of those representing Mr McDonnell; such a decision may well have been taken; but whatever the reasons, no request for cross-examination was made. We do not see how it can be said that the investigative process was flawed by South West Trains' failure to provide an opportunity to cross-examine Mr Elkins when Mr McDonnell sought no such opportunity. Even if we are wrong about that, the fact that no such opportunity was sought was a highly relevant matter which the Tribunal did not mention and either did not consider or regarded as of no importance.[39]For these reasons, we conclude that the Tribunal's second criticism is, also, one which it was not open to the Tribunal to make and which must have been reached without appreciating or without taking into account that the disciplinary procedure did not require cross-examination, that no request for cross-examination had been made in the course of the disciplinary process, that the point had not been made to them on behalf of Mr McDonnell and that South West Trains had not had an opportunity to deal with it.[40]In her Skeleton Argument, Miss Newton specifically made the point that the Tribunal did not attempt to suggest that any of the individual flaws in the process, which they found to have existed, would have been sufficient on its own to have rendered the dismissal unfair. Mr Todd made the same submission. Although, when we asked her what would be the effect of our concluding that the Tribunal had erred in relation to one or more, but not all, of the three flaws, Miss Newton, not unnaturally, sought to retreat from her Skeleton Argument and submitted that the first of the three flaws on its own was sufficient to render the dismissal unfair and that, if the second and third flaws were removed from the totality of the Tribunal's criticisms, the finding of unfairness would not or would not need to be adversely affected; but in our judgment Miss Newton's first thoughts represented the true position. The Tribunal plainly regarded the three flaws cumulatively as having the effect of rendering the dismissal unfair without attempting to rank them, save that they use the words "more seriously" in introducing their exposition of the third flaw. It is inescapable, in our judgment, that on the basis that the Tribunal erred in law in concluding that the investigative procedure was flawed in the second and third of the three respects which they identified, their conclusion that the dismissal was unfair cannot stand.[41]The first of the three respects in which the Tribunal found the investigative procedure to have been flawed is more controversial, in particular because there is no question of the Tribunal making a criticism which was not advanced on Mr McDonnell's behalf at the Tribunal hearing. The position taken by the parties are starkly contrasting; Mr Todd contends that there was no breach at all of paragraph 11 of the disciplinary procedure or that, if there was, it was trivial in the light of the undisputed evidence of the attempts made by South West Trains to contact RMT on 31 January and of RMT's failure to communicate with South West Trains at all after Mr Robertson applied to Mrs Smith's fax which expressly invited such communication. He relies heavily on Mr McDonnell's answer in cross-examination that the absence of any discussion between South West Trains and RMT did not cause him any problem. Miss Newton, on the other hand, submitted that the point that there had not a breach of paragraph 11 at all had not been taken below and that the breach was a serious and important breach, particularly in the case of an allegation of misconduct against a trade union representative who maintained that he was doing no more than carrying out trade union activities in the context of poor industrial relations and strike action.[42]At this point it is essential for us to stand back and consider the effect of our conclusion that the decision that the dismissal was unfair cannot stand for the reasons we have already set out and what would be the effect if we concluded that the Tribunal were or were not, in law, entitled to make the first of their three criticisms of the investigatory process.[43]Mr Todd submitted that, if we find that the Tribunal had erred in relation to all three criticisms, we should conclude that that only result which the Tribunal could have reached, on the basis that there was no flaw in the investigative process, was that South West Trains genuinely believed that Mr McDonnell had been guilty of serious misconduct, that there had been a reasonable investigative process and that South West Trains' belief was therefore based on reasonable grounds and that the sanction of dismissal lay within the range of reasonable responses. He accepts, of course, that in order so to hold, we would have to be satisfied not only that those were reasonable conclusions but also that no other conclusion would be open to any reasonable Tribunal or that those conclusions were "plainly and unarguably right" applying the principle in Dobie -v- Burns International Security Services UK Ltd [1984] ICR 812 .[44]However, because they regarded their findings as to the unfairness of the investigative process as determinative of the issue as to the fairness of the dismissal, the Tribunal did not go on to consider the third Burchell question, i.e. whether dismissal was, in all the circumstances, a sanction falling within the range of reasonable responses; and while we recognise the force of Mr Todd's submission as to the strength of South West Trains' case, we do not regard ourselves as being in a position to be wholly sure that, in the absence of procedural unfairness, the third Burchell question would have inevitably be answered in favour of South West Trains. Miss Newton pointed out that there was a number of arguments as to the fairness of the sanction of dismissal which were put forward on behalf of Mr McDonnell but which are not referred to in the Tribunal's Decision; and as an appellate tribunal, we are in no position to judge the weight of such arguments. It would not be sufficient for us to consider that the result sought by Mr Todd would probably be the results of a rehearing or that South West Trains might be thought to have a strong case on the merits; and further than that, we would not regard it as safe to go.[45]Accordingly (unless of course the cross-appeal succeeds) there will have to be a remission, which would, in justice, have to be to a fresh Tribunal (neither side suggested a remission to the same Tribunal), if we were to conclude in favour of South West Trains on the first criticism of the investigative process; and in the light of our conclusions on the second and third criticisms of that process in the Tribunal's Decision, there will (again subject to the cross-appeal) also have to be such a remission. In those circumstances and for the additional reason that the Tribunal in their Decision expressed no view as to the seriousness or otherwise of the flaw in that process described in their first criticism and because there is a dispute as to whether South West Trains took the point that there was no breach of paragraph 11 of the disciplinary procedure in any event, we have concluded that it is wiser for us not to express any views as to the first criticism and to leave that issue to be resolved by the Tribunal, to whom the question of the unfairness of the dismissal of Mr McDonnell for misconduct must be remitted. The cross-appeal[46]Miss Newton's argument in support of the cross-appeal can be summarised, fairly we believe, in this way. She submits that the Tribunal, in paragraph 21 of their Decision, found as fact that what had occurred between Mr Elkins and Mr McDonnell did not involve any actual or threatened violence and did not go beyond taking part in the activities of an independent trade union at an appropriate time. Taking Mr Elkins' description at the highest, what occurred, she argued, was no more than part of efforts by Mr McDonnell to recruit Mr Elkins to the union and to persuade him to take part in official industrial action; and Mr Elkins' perceptions of discomfort and intimidation were not explained by Mr McDonnell's actions. The effect of these findings, Miss Newton submits, is that Mr Donnell's conduct, for which he was dismissed, consisted only in taking part in trade union activities; thus the Tribunal could only have found that the reason or principal reason for dismissal fell within section 125(1)(b) of the 1992 Act.[47]Mr Todd submitted that, in considering South West Trains' reasons for dismissing Mr McDonnell, the Tribunal had to decide what was in the mind of South West Trains; South West Trains' reasons were not to be determined by the Tribunal's view of what actually occurred but by the Tribunal's making a finding as to what South West Trains believed Mr McDonnell to have done and then as to whether objectively what they believed he had done fell within section 152(1)(b) of the 1992 Act. He submitted that the evidence of Mr Johnstone and Mr Fairbank and the records of the disciplinary and appeal hearings, all demonstrated what South West Trains believed Mr McDonnell to have done; and the Tribunal expressly accepted Mr Fairbank's evidence and implicitly accepted Mr Johnstone's evidence as to their belief. South West Trains' belief was, therefore, that Mr McDonnell had sworn at Mr Elkins, had become threatening in his tone and had behaved in such a way as to cause him to say "If you are going to hit me, bit me but I am not going to retaliate" or to feel that Mr McDonnell was intimidating him and was going to hit him.[48]In our judgment there is a crucial distinction between what actually occurred between Mr Elkins and Mr McDonnell and what the employers believed to have occurred. It was not strictly necessary for resolution of the issues before them for the Tribunal to determine what actually occurred; it would have been necessary to reach such a determination had the Tribunal been determining issues such as contributory fault; and we can understand why the Tribunal did embark on a determination of what occurred; there had been argument as to what did and what did not fall within the scope of trade union activities; they had been referred to authorities on that issue, such as Bass Taverns -v- Burgess [1995] IRLR 596 and Shillito -v- Van Leer [1997] IRLR 445 ; but Mr Todd was entitled and was right to press the Tribunal in his closing submissions not so to decide.[49]However, having so decided, the Tribunal did then make the crucial distinction between what had actually happened between Mr Elkins and Mr McDonnell and the reason or principal reason why South West Trains had dismissed Mr McDonnell. Having accepted that South West Trains believed Mr McDonnell to have gone outside the bounds of legitimate trade union activities and to have intimidated and harassed Mr Elkins in the manner described by Mr Elkins - which no one could or did describe as objectively within the bounds of legitimate trade union activity - it was open to the Tribunal to conclude (and it may be - but we need not so decide - that it was only open to the Tribunal to conclude) that the principal reason for the dismissal was misconduct. The Tribunal's decision that that was the principal reason for the dismissal was one of fact; it was a decision which the Tribunal were entitled to reach and not one which was not a permissible option or which was perverse.[50]It is, in the light of the conclusions which we have set out, unnecessary for us to say anything about Mr Todd's submission that the Tribunal's finding of fact, that there was no suggestion of actual or threatened violence, was perverse.[51]Accordingly the cross-appeal fails. Conclusion[52]The cross-appeal must be dismissed. The appeal is allowed to the extent that the issue as to whether Mr McDonnell was fairly dismissed for misconduct is remitted for re-hearing by a differently constituted Tribunal. For the sake of clarity we emphasise that there is no remission as to the reason or principal reason for the dismissal; the Tribunal's conclusion on that issue stands.