(1) MS N L PRATT (2) MS S WHITTINGTON v TRUSTEES OF THE GRACE EYRE FOUNDATION [2004] UKEAT 0037_04_2806

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0037_04_2806Case No Appeal No. UKEAT/0037/04Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
(1) MS N L PRATT (2) MS S WHITTINGTONAPPELLANTSTRUSTEES OF THE GRACE EYRE FOUNDATIONRESPONDENT
Before
His Honour Judge J R ReidDate 28 June 2004
[1]APPEARANCES For the Appellant MR T GREENSTEIN (Representative) Instructed by: Brighton & Hove Unwaged Advice & Rights Centre 4 Crestway Parade The Crestway Brighton BN1 7BL For the Respondent MR R GREGORY (Representative) Instructed by: Messrs Griffith Smith Solicitors 47 Old Steyne Brighton East Sussex BN1 1NW SUMMARY Unfair Dismissal Statement containing allegations that Appellants admitted the disciplinary offences charged and indicated they did not want to retain their jobs but were going to try to get compensation and that they had obtained doubtful doctors' certificates placed before disciplinary hearing and appeal hearing but not revealed to Appellants. Should have been disclosed. Point not dealt with in ET's reasons – remitted for rehearing. HIS HONOUR JUDGE J R REID QC This is an appeal from a decision of an Employment Tribunal held at Brighton on 6, 7 and 13 October 2003. The decision, which was a reserved decision, was given on 23 October and sent to the parties on 30 October. By that decision the Tribunal held that the two Applicants (Appellants here) had not been unfairly dismissed.[2]The background facts are that the Applicants were employed as Day Centre Officers at the Avondale Road Centre run by the Respondents for people with learning difficulties. On 1 October 2002 Mr Moss, another employee, was working in the snack bar area. According to him, over a period some 30-45 minutes he was humiliated by the two Applicants in the presence of various clients and at any rate one other member of staff. The following day he tendered his resignation but Mr Dennis who was his line manager persuaded him to withdraw his resignation and to make a statement and write a letter, setting out his complaints about the two Applicants. Mr Dennis received that document. He also made a note of what Mr Moss had told him. He then telephoned ACAS and, having spoken to ACAS, he suspended the two Applicants. There was no further investigation by Mr Dennis before 7 October.[3]On Friday 4 October the two Applicants indicated that they were not fit for a hearing or investigation on 7 October but Mr Dennis and Mr Morris, the Financial and Foundation Accountant who was to conduct the enquiry or hearing on Monday 7 October, determined that it would go ahead in any event and a letter was sent round to each of the Applicants by taxi through a Mr Ranger, the owner of Ranger Taxis, who had a contract with the Respondents for various transport runs. Mr Ranger made a report of what had occurred when he handed over the letters and that was then incorporated into a statement which is dated 4 October, though it appears that Mr Ranger did not sign it until 14 October.[4]The enquiry proceedings then took place in the absence of the two Applicants. There was a complete misunderstanding or lack of clarity so far as Mr Dennis and Mr Morris were concerned as to whether these proceedings were to be in the nature of the investigation or were to be in the nature of the disciplinary hearing. In the event they took the form of a disciplinary hearing and at the conclusion of that hearing, without having heard from either of the Applicants, Mr Morris took the decision that they should be dismissed.[5]They had the right of appeal against that decision and they exercised that right of appeal. For the purposes of the appeal they were represented by a very experienced union representative, a Mr Byrne. There was communication between Mr Byrne and Mr Squires, a director of the Respondents who was to conduct the appeal as to the form the appeal was to take and on 23 October the appeal did take place. A Mr Fry, a solicitor specialising in employment law, as we understand it, was brought in by the Respondents to act as an adviser to Mr Squires. The Applicants here sought to characterise his role as that of prosecutor but that seems to us to have been contrary to the findings of the Employment Tribunal.[6]The hearing proceeded. Evidence was heard. Mr Byrne wanted to have certain other evidence taken. There were two categories of this. One was evidence that might, roughly speaking, be described as character evidence. Mr Greenstein on behalf of the Applicants sought to characterise it otherwise but this was clearly evidence from people who had had no first hand knowledge of the events of 1 October. Secondly, there was evidence from a Mr Warriner who was present, at any rate part of time, of the incident of 1 October. Mr Squires, aided by Mr Fry, decided not to adjourn the hearing for the purpose of getting evidence from Mr Warriner and at the conclusion of the hearing he upheld the dismissal. So far as Mr Warriner's evidence was concerned, he did give evidence before the Employment Tribunal and the Employment Tribunal took the view that his evidence was not of any very great assistance.[7]The statement made by Mr Ranger was in these terms:
" Statement of Events Mr Ranger, who is owner of Ranger Taxis, has a contract with The Grace Eyre Foundation for various transport runs of clients/hot meals and correspondence. Delivered a sealed letter at approximately 5pm Friday 4 October to the home address of Mrs N Pratt. Mrs Pratt opened her door and stopped Mr Ranger before he drove off and asked as to what were the contents of the letter? Mr Ranger replied he had no knowledge of the letter's contents and was only asked to deliver it by Mr R Morris. At which point Mrs Pratt expressed remarks to Mr Ranger that he felt was behaviour that was damaging the Foundation's public reputation. Mr Ranger relayed his concerns by mobile phone and was asked to detail his concerns in the form of a written statement. Statement by Mr John Ranger I am not able to word for word recall every remark made by Nicky Pratt, but am clear as to the main points which are as follows: - Nicky stated and accepted that both she and Sandra (Sandra Whittington) had a go at Tim (Tim Moss) Discussed and agreed with Sandra that they would both go to their doctors and get sick notes Claimed it was easy to obtain a sick note if you say the right things to your G.P. Called Phil Dennis the Day Centre Manager a wanker Called the staff at the Avondale Centre lazy and useless Had no intention of attending disciplinary hearing Was pissed off with the job Did not care Didn't want the job anyway They could do what they liked at the hearing Couldn't be bothered to go back to work, as she thought the foundation would probably pay her off. Was going to involve the Unions and try and get more money from a tribunal."
[8]That statement was, it seems to us, clearly before Mr Morris on the initial hearing, and equally, it seems from the material before us, that it was before Mr Squires on the hearing of the appeal. It was not disclosed to anybody on the Applicant's side until 13 June 2003, ahead of the Employment Tribunal hearing. That seems to us to be highly material.[9]The Tribunal conducted a long and careful hearing. There were a wide variety of attacks made by Mr Greenstein, who appeared there as he has here, on the decision. As a result of that the Tribunal made detailed findings on most points. They held that the reason for dismissal was as asserted by the Respondent (see paragraph 85 of the decision):
"…we are satisfied the Respondents have established the principal reason for dismissal was their [i.e. the Applicants'] alleged misconduct on 1 October 2002."
[10]They held, having regard to Burchell , that the initial hearing was flawed and that it was unfair (see paragraph 92):
"In considering the fairness of the original decision to dismiss, we take into account the muddle in the mind of Mr Dennis over who was to carry out the investigation and the disciplinary hearing. We also take account of the absence of the Respondents' own medical evidence as to whether the Applicants were able to attend the hearing or not. The Respondents could at the very least have adjourned the hearing for a few days to make further enquiries about the health of the Applicants. All this, in our view, renders the hearing on 7 October 2002 procedurally unfair, and would render unfair the decision to dismiss the Applicants in their absence without hearing their side of the story."
[11]However, they then went on and dealt with the various matters which arose in relation to the appeal hearing, in particular the refusal to call character witnesses, in particular a Mr Woolven who had left about a year before. They held that Mr Byrne had not made it clear what evidence Mr Warriner might be able to give or why he wanted him there and they took the view that that was something that did not vitiate the appeal hearing. They took the view that the appeal hearing was a true rehearing and at paragraph 114 said this:
"We have looked long and hard at the way in which Mr Squires conducted the appeal hearing. Certainly, there is some legitimate criticism of him in that it appears on one occasion he allowed Mr Dennis to intervene and stop cross-examination rather than taking any action himself. It also appears that Mr Fry, who was there to give advice to Mr Squires, may have taken a slightly more active role than merely giving advice and may have asked some questions. However, these are peripheral matters and we are satisfied he did hear evidence from Mr Moss and allowed a reasonable cross-examination of Mr Moss. He also heard evidence from the two Applicants. Mr Byrne, their representative, was allowed to make closing submissions and to conduct the proceedings on behalf of the Applicants."
[12]All in all, they then found:
"116. In those circumstances, it appears Mr Squires did conduct what was in all the circumstances a reasonable appeal. He was therefore able to make a decision on the evidence which was reasonably before him. 117. We must say that in reaching this conclusion, although we find that the Respondents were allowed a reasonable opportunity to present their case that Mr Squires heard the three key witnesses, nevertheless we reach this decision with no enthusiasm, and have some doubts about the whole disciplinary process."
They then went on to consider whether the dismissal fell within the band of reasonable responses and held that it did.[13]Mr Greenstein has taken 10 points on his appeal. The first was that the Tribunal, having found that there was no reasonable investigation and having reached their conclusions that I have read out from paragraph 117 "with no enthusiasm", was wrong in law to find that the appeal hearing remedied the defects of the original hearing. He dealt with that in paragraphs 1 and 2 of the grounds of appeal. So far as that is concerned, it would have been better if the Tribunal had spelt out more clearly how it was they felt that the investigation had been reasonable. In our view they did enough by spelling out the areas which the Applicants said were insufficiently investigated, namely the failure to call the character witnesses and the failure to call Mr Warriner, and they reached a conclusion which they were entitled to reach.[14]It was also, in our view, right for the Tribunal to hold that the appeal hearing was a rehearing. Mr Greenstein homed in on the fact there appears to have been certain confusion in Mr Squires' mind as to the appropriate description of the hearing but, looking at the substance of it, it is clear that the appeal hearing was an appeal by way of rehearing. All the oral evidence was taken from the beginning and there was a proper opportunity to cross examine on it. Those two grounds seem to us to be without substance.[15]The third ground is that the decision to withhold Mr Ranger's witness statement vitiated the hearing. We have already read Mr Ranger's witness statement and, as can be seen, it was, if accepted, fairly damming of the Applicants, both because it appears to have contained an admission by one of them of the alleged wrongdoing and because of the attitude that it revealed (of one of the Applicants at least) to their jobs, and because it indicated, if accepted, a dishonest intent to avoid the disciplinary proceedings by, in effect, procuring unwarranted medical certificates.[16]Those matters might well have affected a disciplinary tribunal's view of the matters before it. This was clearly a matter which was raised before the Employment Tribunal: see page 63 of the bundle before us where, under the heading " Appeal Hearing – 23 rd October " and subparagraph (6) of that, Mr Greenstein said this in his closing submissions to the ET:
"We submit that there is one other reason which renders the Appeal Hearing fatally flawed. In his letter to Tony Greenstein of 13.6.03 … RF [that is, Mr Fry] admits that ' So far as Mr Ranger's statement is concerned, I was not aware that it had not been disclosed to Mr Byrne for the appeal hearing. It is not mentioned by Mr Morris as being a factor he took into account in reaching the decision to dismiss, nor by Mr Squires at the appeal hearing .' The failure to disclose a statement which, if true, completely undermined the case for the Applicants, was a fundamental breach of natural justice and by itself rendered the appeal hearing unfair. Richard Morris was clearly in possession of and aware of this statement as per his own evidence and the headnote of John Ranger's … statement under cross-examination ES [that is, Mr Squires] made it perfectly clear he was aware of the statement at the time of the hearing because he explained the reasons by JR [that is, Mr Ranger] didn't want it disclosed. It is inconceivable that RF could be aware of the statement yet the person he was advising was not aware."
[17]It seems to us that there was at least a possibility of a fundamental unfairness in that statement not being disclosed. The Employment Tribunal does not deal with it. It may be that the possibility of fundamental unfairness does not stand up. It may be that the Tribunal took the view that the statement of Mr Ranger was something material only to the question of the adjournment or otherwise of the proceedings fixed for 7 October, the original disciplinary hearing, and that they took the view that nothing in it affected the fairness of the appeal hearing. The trouble is that there is nothing whatever in the decision which deals with the statement from Mr Ranger or with the failure to hand it over to Mr Byrne in advance of the hearing.[18]In those circumstances it seems to us that, so far as that ground is concerned, the decision cannot stand and the matter will have to go back. But I should, before concluding this judgment, go on to deal with the other matters which were raised in the Notice of Appeal.[19]Paragraph 4 asserts that there was an error of law in the Tribunal's finding that the failure of the Applicants to demonstrate why the evidence of the witnesses they wished to call was relevant. In our view there is nothing in that. The Tribunal looked at the other evidence which it was sought to call and the failure of Mr Byrne to make it clear why he wanted Mr Warriner there. The Tribunal were perfectly entitled to take the view that notwithstanding the non-calling of that additional evidence there was enough in what was done in the appeal hearing to remedy the defects of the original hearing and the earlier lack of investigation.[20]So far as paragraph 5 of the appeal is concerned, the Tribunal do set out grounds why the dismissal was within the band of reasonable responses.[21]So far as paragraph 6 is concerned, this is a misunderstanding of what Mr Fry's situation was. There is no requirement for different standards in proceedings where the Tribunal conducting it is receiving legal advice. Nor is there any requirement for any different standards, even in those circumstances where the employer chooses to have legal representation, whereas the employee chooses to have simply a union representative. But, as I have already said, that was not the situation here because Mr Fry was advising the Tribunal rather than acting as prosecutor.[22]As to paragraph 7, it is alleged that the Tribunal erred in law in their application of Maund v Penwith . That is incorrect. The Tribunal set out Maund v Penwith when looking at the law and they held that the employer had satisfied them as to what was the reason for dismissal.[23]Paragraph 8 is what might be called the 'standard form' Meek objection. There is nothing in that. The Applicants can see perfectly well why they lost.[24]As to paragraph 9, that was not mentioned in oral argument before us and appears to have been abandoned for good reason.[25]As to paragraph 10, the final ground is this:
"The Employment Tribunal appear to have forgotten there was also a claim for Wrongful Dismissal. It did not make any decision about this claim, even though, in the originating application (IT1) for both Applicants, there was a claim for Wrongful as well as Unfair Dismissal."
The answer is there was no monetary value in that claim because the Applicants had been paid notice pay. At most, it was an arcane and valueless dispute about the supposed date of termination. It was not mentioned in the Applicant's final submissions and the Tribunal quite clearly rightly took the view that that had been abandoned.[26]It follows therefore that the appeal will be allowed because of the failure of the Tribunal to deal with the Ranger point, if I can put it like that, and the matter will have to go back to be reconsidered by a different Tribunal. That means that the whole of the proceedings are open for re-argument, no doubt at further great expense.[27]It may well be that the employers, having read the first decision, will take the view as to quite where they will draw their battle lines on the second occasion and one can only hope that the parties will think about the possibility of compromise, bearing in mind that even were the Applicants to succeed the second time round, there must be a very substantial prospect that there would be found to be a very high degree of contributory fault on their part which might have the effect of very substantially reducing any compensation which would be payable to them.[28]Whether, with that guidance from this Tribunal, the parties find themselves in a position to compromise their differences is of course not something with which we are concerned, but I have no doubt that, as both sides have got respectable and responsible advisers, they will give careful thought to whether it is possible to avoid going back and relitigating the whole of this at some future stage.[29]For those reasons and to that extent the appeal is allowed.