HARRY WILSON DONALD v AMP (UK) SERVICES LTD [2004] UKEAT 0053_04_1612

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2004] UKEAT 0053_04_1612

Case No Appeal No. UKEAT/0053/04

Venue 52 MELVILLE STREET, EDINBURGH EH3 7HF

Between

HARRY WILSON DONALDAPPELLANT

AMP (UK) SERVICES LTDRESPONDENT

Before

Lord Johnston Mr J M Keenan Mr R P Thomson

Date 16 December 2004

[1]APPEARANCES For the Appellant Mr F Lefevre, Solicitor Of- Quantum Claims Employment Division 70 Carden Place Queens Cross ABERDEEN AB10 1UP For the Respondent Mr K Forrest, Advocate Instructed by- Messrs Mace & Jones Solicitors Drury House 19 Water Street LIVERPOOL L2 ORP SUMMARY UNFAIR DISMISSAL Unfair dismissal LORD JOHNSTON: This is an appeal at the instance of the employee against a Decision of the Employment Tribunal, sitting in Aberdeen, to the effect that the Appellant had not been unfairly dismissed by the Respondents. Applications in relation to breach of contract and in respect of the Wages Act were also dismissed.

[2]The background to the matter is that the Defendants are an insurance company and the Appellant was employed selling policies. In the course of 2002 he was investigated by the Company's disciplinary process in relation to instances of mis-selling in 2001, as a consequence of which he was issued with a final written warning. However, in the course of 2003 the employer reinvestigated the same issues, presumably under pressure from the change of circumstances in the insurance industry with regard to regulation and not least by reason of the fact that a representative of the regulator appeared to have been appointed to the Company. There was, in addition, a further case added to the investigation involving a Mrs Woods.

[3]As a result of those investigations, and a disciplinary hearing and an appeal, the Appellant was dismissed, losing out both on a substantial redundancy payment and also certain other contractual entitlements.

[4]Mr Lefevre, appearing for the Appellant, argued on three basic fronts that the Tribunal had misdirected itself as to the adequacy of the investigation into the cases in question.

[5]Under reference to AvB

[2003] IRLR 405

, he argued that the Tribunal had not placed sufficient attention to the gravity of the matter as far as the Appellant was concerned, as enunciated by the EAT in that case, and in particular the judgment of Elias J. Secondly, he submitted that the delay between the original cases and the final investigation was prejudicial to the adequacy of the investigation in 2003, not least because the matter had been considered already and not considered serious enough to go beyond a final written warning. The case of Woods added nothing or rather compounded the position, he submitted, because in that case the Appellant had been in fact supported by his line manager, who was well aware of what was going on.

[6]Thirdly, Mr Lefevre submitted that the investigation was prejudiced by an inadequacy of investigation into witnesses, and not least be reference to an affidavit from Mr Gardner as to whether or not an amnesty had been granted consequent upon the first investigation under reference to the phrase "a line drawn in the sand".

[7]Mr Forest, advocate for the Respondents, argued under reference to Sainsbury's Supermarkets Ltd v Hitt

[2003] IRLR 23

that the Tribunal had considered the issue on the broader question of gravity, and that AvB was not the case to be followed in this particular case. The delay issue, he submitted, was not material to the essential question as to the adequacy of the investigation and, while the Tribunal might have made a unfortunate reference to the issue of amnesty, they had determined the matter as one of credibility and therefore this Decision should not be interfered with by this Tribunal.

[8]We have to confess that we approached this matter with a certain cynicism by reason of the fact that the second investigation apparently coincided with the likelihood of the Appellant receiving a very large redundancy payment since redundancies were being put into place by the Company.

[9]Be that as it may, the essential position for us is whether or not the investigation, on the evidence before the Tribunal, can properly be said to have been fair, and in this respect we have little doubt that it was not or at least that the Tribunal have not given adequate reasons as to why it was, under reference to the requirement of a tribunal to give adequate reasons so that a party knows why he has won or lost. The fact that there was a considerable delay between the cases themselves, apart from Mrs Woods', and the final investigation, is a further factor which compounds the need for the employer to make an adequate investigation. We are impressed by the fact that in the case of the Woods issue, the employer supported the salesman by reference to his line manager and has done nothing since then to suggest that the policy should be revoked or otherwise varied through mis-selling.

[10]We are also concerned about the question of amnesty or "the line in the sand". We consider the Tribunal had contradicted itself when it deals with this matter at two separate places and has equally left out of account the affidavit of Mr Gardner, the evidence of which was available but not apparently used. This raises a further doubt in our minds as to whether or not, upon the evidence, it can be reasonably said that the Appellant was fairly treated.

[11]In all these circumstances there are sufficient doubts in our minds as to the adequacy of the reasoning of the Tribunal to render its Decision unsafe and it should not be allowed to stand. We are in no position to make any alternative findings of our own, and in these circumstances the regrettable course is that we must Order a rehearing before a freshly constituted tribunal.

[12]In these circumstances the appeal is allowed and the case remitted to such a tribunal for a fresh hearing.