MR A MARLEY v SECURICOR CASH SERVICES LIMITED [2003] UKEAT 1234_02_1501

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2003] UKEAT 1234_02_1501

Case No Appeal No. EAT/1234/02

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR A MARLEYAPPELLANT

SECURICOR CASH SERVICES LIMITEDRESPONDENT

Before

Mr Justice Burton

Lord Davies of Coity

Date 15 January 2003

[1]APPEARANCES For the Appellant MR A MARLEY THE APPELLANT IN PERSON MR JUSTICE BURTON (PRESIDENT) : This is the preliminary hearing of an appeal by Mr Marley, against the unanimous decision of the Manchester Employment Tribunal, that he was not unfairly dismissed, and that there was no breach of contract in respect of his dismissal by Securicor Cash Services Ltd, the Respondent, by whom he had been employed until 1 October 1999 for eight and a half years.

[2]It appears, although we have not the relevant papers before us, that this was the second hearing of his application, there having been an earlier hearing before the Employment Tribunal, which had resulted in his application being dismissed, pursuant to which he had brought a successful appeal to this Appeal Tribunal, which resulted in this second hearing. The hearing, therefore, which took two days in August 2002, was, although, no doubt, the first time for the particular Tribunal, the second time that the Appellant and the Respondent, and their witnesses, had gone through the exercise of reliving the events of August 1999.

[3]Again, although we have not seen the earlier documents, it appears that the basis of the Appellant's successful appeal was that there was inadequate eyewitness evidence brought by the Respondent to the Tribunal and, consequently, on this occasion there were witnesses called who had not been called as witnesses on the first occasion. Those witnesses included a Mr McCormack, who was present on the day of the incident for which the Appellant was dismissed, and Mr Jackson, his supervisor, who had had the incident reported to him and appeared on the scene very shortly afterwards.

[4]The Tribunal correctly addressed itself to the issue, which was, of course, not whether the Appellant was guilty of the assault on the two agency workers in question, but whether on a full reconsideration by the Tribunal, the employers, the Respondent, had acted reasonably in dismissing him, on the basis of their belief that he had assaulted those agency workers, and, of course, that would include the question as to whether dismissal was within the reasonable band of responses of a reasonable employer. The Tribunal concluded, as follows, in relation to the questions before them. In paragraph 66, they set out the facts of the case, with which they were concerned:

"(i) Did the head-butting accusation take on a prominence it did not deserve? (ii) Did Mr Davis have reasonable cause to think that that incident had actually happened in the light of all the evidence presented to him? (iii) Was the investigation, although thorough, focused? (iv) Should more effort have been made to find the agency workers in order to obtain more details of what had happened?"

[5]Behind the setting out of these particular matters can be seen the drift of the complaints which the Appellant was making to the Tribunal. They included the following:(1) That the nature of the allegation against him, which began with a suggestion of a physical assault on one agency worker, and resulted in his dismissal for violence, either physical or verbal, towards two agency workers, had thus shifted during the course of the investigation.

(2) That, particularly given his denial of the assault, the fact that there was no video evidence, as it was to be expected there would have been, given the presence of video cameras in the premises, ought to have been regarded as a significant factor and

(3) The fact that, although originally available, and interviewed, the agency workers disappeared from the scene shortly thereafter and were never interviewed again and, indeed, were not made available, by the Respondent, for the Appellant himself to interview.

[6]The Tribunal concluded, at paragraph 69 that, despite the fact that they had concerns, they were satisfied that they could not declare that the dismissal was unfair, and, in the following paragraphs, they address a number of the important issues:

"70 Although Mr Davis was never able to take further evidence from the two agency workers he had their initial evidence that head-butting had taken place. The evidence from other work colleagues of the applicant, who had nothing to gain or lose by giving evidence against the applicant, was that violence and threats had taken place in the workplace. 71 We cannot be sure that head-butting had taken place but Mr Davis was sure and on the evidence that was a decision that could reasonably have been taken by him. 72 Mr Davis was certain that threats of violence occurred. 73 With hindsight it may be thought appropriate to separate the head-butting incident from any other threat of violence that did or didn't take place on that particular day. In effect that is what the applicant has tried to do in presenting his case. It is our view having heard all the evidence that the officers of the respondent company were of the view that the applicant was guilty of violent behaviour. 74 We then considered whether such actions amounted to gross misconduct and we are clear that that must be the case. 75 Violent conduct or threat of such cannot be sanctioned when it takes place anywhere let alone the workplace. The sanction of dismissal was appropriate in the circumstances. 76 In relation to procedure we see nothing wrong in the way that the disciplinary hearings were dealt with. 77 We were concerned to find out whether the disciplinary procedures were thorough and focused. We are of the view that Mr Davis did know what the issues were and he allowed the applicant and his representatives to challenge the evidence."

[7]Then, at paragraph 79, the Tribunal concludes that the two appeals processes were dealt with fairly, openly, and thoroughly, by the respondent company, and in paragraph 80 that, in the circumstances, the Tribunal was of the view that the Applicant was dismissed fairly, both substantively and procedurally.

[8]The grounds of appeal are settled by the Appellant himself. It appears that the Appellant represented himself, both at the original hearing, and on the appeal to the Employment Appeal Tribunal where he was, of course, successful, and at the second Tribunal hearing, and he has done so both in writing and orally before us today.

[9]He is plainly both committed to and involved with his own case, and an able speaker and he, it seems, did not have the benefit of union representation. He explains that he felt he could cope perfectly well with it himself, at least for the purposes of the first hearing, and, he says, that he discovered after he had failed on the first hearing that he would not be able to have any further union assistance. Of course, in the event, he did it himself and was successful on the appeal, but the fact that he had no representation, and has now no representation, which has not prevented him from presenting a very full skeleton argument and notice of appeal does not, of course, count in his favour in terms of discounting, in any way, the obligations of an appellant to identify to this Tribunal, and satisfy this Tribunal that there is, an error of law on appeal.

[10]Even without the opportunity to probe Mr Marley in oral submission, it was difficult to draw from his skeleton argument what error of law he was asserting, and, notwithstanding that the Appellant has today ably set out the nature of his challenge to the decision of the Employment Tribunal, by way of emphasising his disagreement with it, he has no more succeeded than he did previously, in identifying a point of law. He understands, I am sure, that it is not sufficient that the Tribunal should not have reached, in his opinion, or in anyone's opinion, the decision that it did. He must show that there was an error of law, which involves either an erroneous application of the legal principles, or a decision that no reasonable Tribunal could come to such that it can be said to be perverse.

[11]One such example would be where there was no evidence available on which conclusions could have been reached. Here, there was evidence. The Appellant has pointed out to us again, as he pointed out to the Tribunal, the absence of the video evidence, which he would have expected, and this is referred to in paragraph 31 of the Tribunal Decision. He set out, before us, as he set out before the Tribunal, his case about the changing nature, as he saw it, of the allegations being made against him; the absence of the agency workers whom he was alleged to have threatened or assaulted, and alleged inconsistencies between evidence given by witnesses, including the witness, Mr McCormack, who was actually called live to give evidence at the Tribunal. He also pointed out the absence, before the Tribunal, of a number of live witnesses, albeit he must accept that two relevant witnesses, Mr McCormack and Mr Jackson did give live evidence. But all these points were available to be made and, no doubt, were made at the Tribunal hearing itself, and the Tribunal made the findings of fact in paragraphs 11 to 45; none of such points either individually, or collectively, amount to any basis to challenge in law the decision of a Tribunal which has seen the witnesses, heard the arguments, and reached conclusions on the evidence. Given in particular, which we re-emphasise, the fact that all that the Tribunal had to decide was whether the employer had acted reasonably, both in relation to the formation of its belief as to the guilt of the Appellant, and the procedure by which it investigated that procedure, there were findings of fact to which we have made some reference, in relation to both aspects of the case.

[12]We cannot see that there is any ground, either as adumbrated in his written submissions, or as expanded upon orally by the Appellant in argument before us, on which any of the findings of the Tribunal, and, in particular, the finding that there was no unfair dismissal can be challenged.

[13]The Appellant makes a further point which, if it was right, would amount to a point of law, namely that there is, on his case, no sufficient decision in relation to breach of contract. The way he puts it in his skeleton argument is, "The breach of contract complaint was not dealt with by the Tribunal". It is right to say that, at an earlier stage, the Appellant, who was suspended pending the investigation, was not paid his salary in full, and was complaining of that failure as a breach of contract; but that failure was made good by the Respondent, and it is not to that, therefore, that he now addresses his arguments. He submits that, irrespective of the fairness of the dismissal, the Respondent failed to carry out a proper investigation, thus to carry out proper procedures which was itself a breach of contract, and he points to what the Tribunal said at paragraphs 81 onwards, namely, having turned to the issue of breach of contract, in paragraph 82:

"There are no additional facts that we needed to consider in order to make our decision on this particular issue."

[14]He submits that the Tribunal ought to have reached a different, and separate conclusion, in relation to breach of contract, irrespective of having found that there was no unfair dismissal. We conclude that the Appellant is misconceived in this regard. First, the Tribunal do continue in their Decision as follows: "83 The disciplinary process was dealt with correctly under the contractual terms. Most importantly the decision to dismiss summarily without notice payment was a proper decision given the facts of this case.

[15]At paragraph 85, Mr Davis was of the view that the actions of the Applicant amounted to gross misconduct. On that basis, he was entitled not only to dismiss, but to do so on a summary basis. There were thus findings, for the purposes of the breach of contract claim, by way, of course, of cross-reference to the earlier part of the Decision,(1) that the procedure was properly followed and

(2) that there was a sufficient decision in relation to misconduct, pursuant to that procedure as to justify summary dismissal, and thus lawful termination of the contract without notice. There was thus separate consideration by the Tribunal, in any event, but even had they not done so, in the light of their findings that there was justification for summary dismissal, and a proper procedure carried out, which they had set out at great length in their conclusions, much of which we have recited, on the issue of unfair dismissal, then the issue in relation to damages for breach of contract followed automatically, as indeed the Tribunal itself concluded, and the application was bound to fail, in relation to breach of contract, based on the findings made by the Tribunal in its Decision. In those circumstances, this appeal is dismissed.