ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS AND FIREMEN v MR S BRADY [2006] UKEAT 0057_06_3103

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2006] UKEAT 0057_06_3103

Case No Appeal No. UKEAT/0057/06 UKEAT/0130/06/DA

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

ASSOCIATED SOCIETY OF LOCOMOTIVE ENGINEERS AND FIREMENAPPELLANT

MR S BRADYRESPONDENT

Before

Mr Justice Elias

Date 31 March 2006

[1]APPEARANCES For the Appellant MR JOHN HENDY QC MR PHILIP MEAD (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 2LW For the Respondent MR MOHINDERPAL SETHI (of Counsel) Instructed by: Messrs Simpson Millar Solicitors 165 The Broadway Wimbledon London SW19 1NE SUMMARY Unfair dismissal. Tribunal found that the real reason was the hostility directed towards the Claimant and not the ostensible reason of gross misconduct relied upon by the employer (a Trade Union). Could the Tribunal reach this conclusion without determining whether the conduct amounted to gross misconduct in fact? Procedural failings. Was the Tribunal entitled to find that certain breaches of the Union rules rendered the dismissal unfair? If so, was it also entitled to conclude that the Appeals Committee was not independent and did not carry out a re-hearing so as to be able to correct any earlier procedural failings? MR JUSTICE ELIAS This is an appeal brought by the Trade Union ASLEF against the unanimous finding of the Employment Tribunal sitting at London that it had unfairly dismissed its General Secretary, Mr Brady. The background

[2]Mr Brady was elected General Secretary of ASLEF by a vote of the entire membership. The result was announced on the 17 th July 2003 and he took up office on the 18 October 2003. Under the Union rules he was elected for a five year term of office, and that was reflected in his contract of employment. However, he was dismissed for gross misconduct with effect from the 25 th November 2004.

[3]The immediate spark which lead to the dismissal was an incident which occurred on the evening of 24 th May at a barbecue at the ASLEF headquarters in Hampstead. Mr Brady had become involved in a fracas with the Union President, Mr Samways. The President had been loud and abusive and had struck a female member of staff on the mouth. The General Secretary became involved and some sort of fight ensued.

[4]Following this incident Mr Brady and Mr Samways, together with the Assistant General Secretary, Mr Blackburn, were all suspended from office. An inquiry was set up by the Union under the auspices of the TUC, chaired by Professor Aileen McColgan. The McColgan report was produced in June 2004. It painted the picture of a Union in disarray, deeply factionalised, and where "staff members suspected of disloyalty to particular constituencies within the elected hierarchy of the Union have found themselves isolated, harassed, and under threat of losing their jobs (and, in some cases, their homes.)" In relation to the particular incident at the barbecue it was highly critical of the behaviour of the President, but also criticised the General Secretary, noting that he had "got involved in an unseemly fight with the Union's president which led to appalling publicity for the Union." There is no doubt that there was much adverse publicity which the Union would have preferred to do without. The report concluded that the Union "would have to decide what to do about the President and the General Secretary".

[5]Following the receipt of the McColgan report, disciplinary proceedings were brought against Mr Brady. These included allegations of misconduct not merely relating to matters arising out of the barbecue incident, but also unrelated allegations which were raised and determined during a series of disciplinary hearings.

[6]At various stages in the months thereafter, a string of further charges were laid against Mr Brady. It is common ground that the disciplinary procedures should have been carried out in pursuance of the ASLEF disciplinary rules. This was because membership of the Union is a condition of employment, and the rules are contractually binding on both the Union and Mr Brady. The rules required that the charges were to be heard before the Executive Committee ("EC"), with an appeal to the Appeal Committee. Both are elected bodies under the rules. The procedures applicable to these hearings are also provided for in the rules. We set out below the material provisions. However, it is trite law that whilst the contractual position may be relevant to the question of fairness, a failure to comply with the rules does not necessarily render the dismissal unfair, nor does compliance ensure that it is fair.

[7]The Tribunal noted that they found it exceedingly difficult to identify the substance of each allegation and how it developed. They relied upon a schedule produced by Mr Mead, Counsel for the Union below. Many of the disciplinary offences were directed at Mr Brady's status as a member of the Union rather than as an employee, and we touch upon them only briefly since they are largely peripheral to the matters we have to decide.

[8]It appears that the chronology in relation to the disciplinary process was as follows. First, the following five disciplinary charges were considered at a disciplinary hearing on the 12 th August 2004.(1) Being involved in two fights, and failing to avoid fighting. This arose from the incident on the 20 th May.

(2) Speaking to the media following the incident.

(3) Speaking at a meeting at a certain public house on the 7 th June 2004

[9]These were all said to be a breach of the rule not to bring the Union into disrepute. (4) Failing to cooperate with an inquiry set up by the Union, chaired by a Matthias Kelly QC, (known as the Kelly Inquiry) in breach of instructions from the EC; (5) Misleading the Kelly inquiry

[10]These were said to be breaches of various rules which broadly require members to uphold the authority of, and carry out the instructions of, the EC.

[11]The first three charges were deferred to a hearing on 25 th August; the fifth was dismissed for insufficient evidence; but the fourth charge of failing to cooperate with the Kelly inquiry was sustained and the Claimant was dismissed by a letter dated 13 th August for gross misconduct.

[12]The Kelly inquiry was set up by the EC of the Union at a meeting in March 2004. It was conducted by Mr Matthias Kelly QC. Its remit was to inquire into "all matters relating to the operation of the Union from 1 January 1994 to the close of business of the EC on the 26 March 2004". Mr Kelly had noted in his report in critical terms and in some detail that he had had no assistance or cooperation from Mr Brady when conducting his inquiry.

[13]At the reconvened hearing on the 25 th August the first two charges were also sustained. Each was considered to be gross misconduct, and Mr Brady was again dismissed from his position as General Secretary by a letter dated 26 August.

[14]Mr Brady appealed against these decisions and the Appeals Committee was convened to hear the appeal on the 24 th November. The effect of the appeal was to suspend the operation of the dismissal. The appeal was chaired by Mr Morrison. The Committee upheld the findings of the EC and dismissed the appeal. The dismissal from office and employment then took effect once Mr Brady had been informed that his appeal had failed.

[15]The charges outlined above did not exhaust the allegations against Mr Brady. Further allegations were also made against him at the disciplinary hearing on 13 th August and two of these were deferred until they were considered at a disciplinary hearing on the 12 th November. They included failing to convene meetings of the trustees in respect of which he was subsequently censured concerning his future conduct; allegedly obtaining a cash advance of over £6000 on the ASLEF credit card which was withdrawn once Mr Brady had given his explanation; and a charge that he had made false allegations regarding certain payments made by ASLEF on behalf of an officer. This last charge was found proved on 13 th August and it was an act of misconduct for which Mr Brady was censured.

[16]Thirteen other charges of financial irregularity were also brought by the EC and heard on the 30 th November. Mr Brady was acquitted of some, found guilty of others, and the sanctions included expulsion from membership and suspension from holding any office in the Union for five years. The Tribunal described the letter notifying Mr Brady of the outcome of these charges as "wholly unintelligible." The Claimant sought to appeal these decisions by a letter dated 13 th January 2005. That was treated by the Union as being out of time, although the Tribunal found that it was plainly within time. That was not, however, the appeal against the dismissal itself.

[17]These disciplinary matters relating to Mr Brady's status as a member of the Union are not the subject of this appeal. They do not have a direct bearing on the matters which the Union relied upon as the justification for dismissal from employment, although they are part of the context. It is only the three acts of alleged misconduct identified above which are relied on to justify the dismissal. The Tribunal's conclusions: a summary

[18]The Tribunal's conclusions, in a nutshell, were as follows. The Tribunal found that the reason for dismissal was not any of the alleged reasons but rather the wish of the EC of the Union to be rid of Mr Brady because of their political antipathy towards him. The Tribunal also found that the procedures were unfair; that the appeal did not remedy earlier defects because it was not a true or sufficiently independent rehearing; and that there had been a disparity of treatment between Mr Brady and Mr Samways which was an additional factor lending support to the finding of unfairness.

[19]Mr Hendy QC for the Union challenges each of these conclusions. Before considering his arguments, it is necessary to set out the Tribunal's findings on certain contested areas of fact. In this context it is material to note that the Tribunal expressly accepted the evidence of Mr Brady, who it considered to be a credible witness. By contrast they were more critical of the evidence of the principal witness for the Union, Mr Tyson. He had chaired the disciplinary committee but had told the Tribunal that he was not in a position to speak for the EC of the Union as a whole. There was no witness who purported to do that.

[20]The Tribunal examined the issues by focusing upon the reason for dismissal, then the procedures, including the appeal process, and finally the disparity of treatment. We will consider their findings in the same order. The reason for dismissal.

[21]This was a central issue in the case. The Union claimed that the reason for dismissal were the three acts of gross misconduct found by the EC. Mr Brady said it had nothing to do with that but was the culmination of a campaign which had been designed to undermine his position and remove him from office. This, he said, was a politically motivated campaign orchestrated by a majority of the EC members. The ostensible reasons were not the real reasons, or at least not the principal reasons.

[22]In order to analyse these conflicting submissions, the Tribunal had to consider in some detail the background to Mr Brady's election and his subsequent treatment once he was elected by the membership and had taken up office. It was this background which was relied upon by Mr Brady as giving credence to his claim that he was from the beginning the object of a campaign designed to undermine his authority and effectiveness. His case was that in dismissing him as they had, the Union had been acting in bad faith.

[23]He had earlier been elected as a member of the EC and he successfully stood against the then incumbent, Mr Mick Rix, for the post of General Secretary. He was the first serving member of the EC to challenge the incumbent General Secretary. In the run up to that election there were false allegations in the national press that Mr Brady had been accused of sexual harassment. Although he had in fact been cleared of that allegation, there was no official confirmation of that fact by the Union itself. In the election all the seven Members of the EC – that is all the Committee except Mr Brady himself - supported Mr Rix. Mr Brady had little branch nomination support. What he did have was a very clear majority of the voting members. The Tribunal found that his election was deeply resented by the other members of the EC. The Tribunal identified all sorts of ways in which from the very beginning they sought to frustrate Mr Brady from carrying out his elected office. For any Union member concerned with the integrity of the Union, it makes bleak reading.

[24]Shortly before taking office, the EC imposed a limit of £500 on any spending in relation to matters such as staffing, employment of consultants and advisers, without the prior approval of the EC. Mr Tyson admitted this was unprecedented; Mr Rix had not been treated in this manner. It was obviously a serious constraint on Mr Brady's ability properly to carry out his office. The Tribunal described it as "a hostile act for which no convincing reason had been given". The personal nature of this action is demonstrated by the fact that the resolution was rescinded immediately after Mr Brady was suspended from office.

[25]On his first day in office, Mr Brady was offered a one bedroom flat for himself and two young children. It was plainly unsuitable and initially he had to commute from his home in Southampton. Mr Rix had occupied a flat at the headquarters building but Mr Brady could not use the flat because it had been leased to the Union's caretaker. The Tribunal found that that was deliberately intended to make the new General Secretary's life more difficult.

[26]On the first day in office he found the head office manager absent. She was the partner of Mr Rix. She was unwilling to work with Mr Brady She was paid a severance payment of £37000, more than a year's salary. The Tribunal found that there was actually no requirement to pay her anything. She had chosen to resign. The Tribunal noted that the arrangement was sadly lacking in any financial accountability. It was not only this officer who was absent. There were no staff remaining in the General Secretary's own personnel section when he joined and Mr Brady had to seek a volunteer to be head office manager

[27]Other officers sought to frustrate Mr Brady's operations. The Tribunal concluded that there had been no attempt to give any assistance to Mr Brady by any senior figure in the Union.

[28]When Mr Brady sought, on 9 th December, to ensure that no expenses would be paid without a fully supported receipt, because he felt that persons entitled to free travel appeared improperly to be claiming travelling expenses, he was forced to back down. The EC astonishingly passed a resolution in which it said that officers, representatives and EC members were no longer required to supply proof of purchase for their travel expenses.

[29]In March 2004, the EC took the unprecedented step, as the Tribunal described it, of announcing its intention to sit in permanent session at the Union headquarters. Until then, it had sat for a week each month directing policy and overseeing the strategic work of the Union. They passed a resolution requiring that the General Secretary and other senior officers "list every matter requiring approval in consideration of the running of ASLEF operations and organisation". The decision to set up the Kelly inquiry was also part of this resolution. This motion was tabled part way through the business of the EC meeting on that date. The Tribunal found that the resolution was unconstitutional under the rules as Mr Brady said at the time, although Mr Hendy challenges that. In the event, nothing seems to turn upon it.

[30]At that same meeting in March a report on Union finances was produced by a Mr Blagborough. He had originally been asked by Mr Brady to review the ASLEF finances. In an interim report he had described them as "shambolic". The EC then instructed Mr Blagborough to produce a full report which was presented to the EC in March. The report was rejected on the grounds that it contained inaccuracies and discrepancies. Mr Tyson confirmed that these alleged inaccuracies had not been raised with Mr Blagborough; indeed Mr Tyson was unable to identify any before the Tribunal. In addition, he refused to accept that the report was authorised by the EC. The Tribunal, for those and other reasons, questioned the reliability of Mr Tyson's evidence. Mr Hendy says that various discrepancies were in fact identified in the Kelly report and it was unjust to hold it against Mr Tyson that he could not identify any. We do not accept that; the question was whether in rejecting the report the EC was acting in good faith and did so because of genuine criticisms of it. The Tribunal were entitled to explore that issue with the witness.

[31]The Tribunal's conclusions about the conduct of the Union were as follows (para 35):

"We find that the EC gave the Claimant no assistance to carry out his duties from the day he started as General Secretary until he was effectively sidelined when the EC began its permanent session. In fact the EC actually took a number of steps to curtail his effectiveness and reduce his authority and sphere of influence as General Secretary. We find that the reason for this was that they were unhappy with, and unable to accept, the fact of his election as General Secretary of ASLEF."

[32]Mr Hendy placed on record the Union's objection to this analysis, commenting that the Tribunal failed to have regard to the fact that under the rules of the Union the EC is in control of the Union and the General Secretary acts under their direction. So, by way of example, it is said that the £500 spending limit was justified. We reject this criticism. The Tribunal was merely identifying the fact that Mr Brady was being subjected to much greater control, and was given far less assistance, than others before him. The spending limit was unprecedented. The issue is not whether the EC had the power to act as it did, but whether in exercising its powers it displayed a hostility directed against Mr Brady personally. The Tribunal found that it did, its findings reflecting on this issue the observations about factionalism in the Union found in the McColgan report.

[33]The Tribunal's conclusion as to the reason for the dismissal was that the real reason was not any of the reasons advanced by the Union (para 58):

"The Tribunal is satisfied that the reason for dismissal was not the EC's genuine belief that the Claimant was guilty of the conduct alleged, which is a potentially fair reason, but rather that they were determined to dismiss the General Secretary who had been elected in spite of their opposition to him. We have set out in detail the way in which Mr Brady's life was made more difficult by the EC and we find that the decision to commence disciplinary proceedings, and the manner in which they were conducted, was an act of opportunism. We reject the Respondent's assertion that the dismissal was " by reason of " the Claimant's conduct. The Respondent has therefore failed to satisfy the Tribunal that the dismissal was for a potentially fair reason."

The procedures .

[34]The Tribunal considered the fairness of the procedure which had been adopted by the Union. They noted that the procedures set out in the Union rules needed to be complied with. Rule 17, so far as it is material, provides as follows: "17.2(a) Any complaint made by a member against another member in relation to potential charges against such member shall in the first instance be put in writing to the General Secretary (except in the case where the complaint is against the General Secretary, where the matter should be addressed to the Assistant General Secretary).

(b) The General Secretary shall then carry out an investigation, or appoint another officer not connected with the complaint, to investigate the complaint expeditiously. 17.3 (a) The Executive Committee upon receipt of the report may instruct the General Secretary to give written notice to any member of their intention to proceed against them under this rule. The written notice must contain the full details of the charges for taking such disciplinary action and must include any written evidence and correspondence submitted in the investigation report to the Executive Committee. (d) The member shall be afforded a full and fair hearing before the Executive Committee. The member will be entitled to representation by an ASLEF member and will be able orally to supplement any written evidence or testimony which has been submitted, to call other members of the Union as witnesses, to hear the evidence against them and to have an opportunity of answering it, and to question their own and the Union's witnesses.

[35]The Appeals Committee is set up pursuant to rule 8. Each of the eight members is elected for a fixed three year term by the members of the district electing him. The procedures, so far as is material, are as follows:

"8.1. (e) The applicant shall be afforded a full and fair hearing before the Appeals Committee. (f) The applicant and the Executive Committee shall be allowed to submit further written evidence or testimony to the Appeals Committee in support of their respective cases not later than 21 days before the hearing by the Appeals Committee. Such evidence will be forwarded to the applicant or the Executive Committee as appropriate at least 14 days before the hearing by the Appeals Committee. The applicant will be able orally to supplement any written evidence or testimony submitted, to call other members of ASLEF as witnesses, to hear evidence against them and to have the opportunity of answering it, and to question his/her own and the Union's witnesses. (g) The President of the Executive Committee and the General Secretary or appointed deputies shall have the responsibility for presenting of the case on behalf of the Executive Committee. They shall be able orally to supplement any written evidence or testimony submitted by the Executive Committee, to call other members of ASLEF as witnesses and to question the applicant's and the Union's witnesses. At the hearing of appeals by the Appeals Committee against a decision of the Executive Committee under Rule 17 the President of the Executive Committee and the General Secretary or appointed deputy or deputies shall attend the hearing of the appeal in order to explain the reasons for the decision of the Executive Committee. (j) The finding of the Appeals Committee shall be final and binding and shall be conveyed to the General Secretary within seven days of the hearing, who shall inform the applicant within seven days thereafter and the Executive Committee at their next following meeting."

[36]The Tribunal focused first on the initial decision to dismiss, which arose out of the finding that Mr Brady was guilty of gross misconduct in failing to co-operate with Mr Kelly's inquiry. There was no investigatory stage, the Tribunal found, as required by rule 17. Mr Brady had not been asked for his account; instead the Union simply relied upon the Kelly report itself as the evidence of non-cooperation and then required Mr Brady to deal with it at the disciplinary hearing. (This was so also in relation to other allegations made at that time, including failure to involve trustees and the use of the ASLEF credit card).

[37]The Tribunal then dealt with the procedures relating to the other incidents, namely the fight and the media coverage following it. It found that the McColgan inquiry was not a disciplinary investigation under the rules, as the Union indeed conceded, but rather a panel of three enquiring into what had occurred on that night. The McColgan report identified the fact that both he and Mr Samways had engaged in "a brawl, fight or wrestling" although they accepted that Mr Brady had not assaulted Mr Samways. Witness statements were taken in the course of the McColgan inquiry but they were not appended to the report itself nor were they shown to Mr Brady, despite his having requested to see them. The Union then disciplined him on the basis of the findings of fact in these reports. He was however sent some seven witness statements which had been obtained immediately after the incident by Mr Tyson and the Union's legal officer and had been sent to Professor McColgan.

[38]The Tribunal found a number of features of this procedure unsatisfactory. They said this (para 42):

"We find that this was not in any respect a disciplinary inquiry into Mr Brady's actions, nor was it in compliance with rule 17. Further, Mr Brady was not offered the opportunity of a disciplinary hearing to challenge the evidence on which the McColgan report based its findings. He was not given the opportunity to read the witness statements taken by the Panel on which they presumably founded their conclusions. This is important because by 25 May Dave Tyson had already carried out an investigation with John Usher, the Union's legal officer. They had obtained seven witness statements which were sent to Professor McColgan and were attached to the papers for the disciplinary hearing sent to Mr Brady. Mr Tyson was the only member of the EC disciplinary panel who gave evidence to the Tribunal on this charge. In our view, his earlier involvement in conducting a separate inquiry was incompatible with his role on the disciplinary panel."

[39]The Tribunal identified certain similar procedural failings with respect to the third charge (para 43):

"A further charge, on which the Claimant was found guilty of gross misconduct, was that at 1(b), bringing the Union into disrepute in relation to media coverage following the 20 May incident. No investigation was made into this allegation before Mr Brady was summoned to the disciplinary hearing. The Respondent relied purely on the contents of press reports themselves and on the conclusion in the McColgan Report which states that actions on 20 May had led to "appalling publicity for the Union"

. No explanation was sought from Mr Brady before the disciplinary hearing. We note that, despite quotations attributed to Mr Samways having been reported, and Mr Samways' own involvement on 20 May, the EC did not recommend a similar charge be brought against him."

[40]They summarised the weaknesses, as they saw them, in the procedural arrangements as follows:

"No investigation was carried out in accordance with rule 17(2)(b) into any of the allegations before the disciplinary hearing on 13 and 26 August. The EC relied on the findings in the McColgan and Kelly Reports, neither of which had been convened for disciplinary purposes and in doing so, in our opinion, they abrogated their own duty which was to make findings of fact on the allegations. In our view, this omission amounted to a substantive defect in the proceedings."

[41]In relation to other charges unrelated to the dismissal itself, the Tribunal found there were various additional failings in the procedures but it is not necessary to explore those here. The appeal procedures.

[42]The Tribunal recognised in accordance with well established authority that if the appeal is a true rehearing it can correct procedural defects in the original hearing. But it was satisfied that this appeal was not a rehearing. They heard from Mr Morrison who chaired the appeal. He confirmed that the appeal body had received transcripts of the original hearing. They did not hear evidence afresh. Moreover, the Tribunal was critical of the fact that the appeal body was taken from the membership of the Union and was in their view "junior" in the hierarchy to the EC. The Tribunal also observed that the EC had to accept and endorse the findings once they had been made. Both parties accept that this is not in fact what the rules require - as we have seen the decision of the Appeal Committee is final and binding - but it appears that this was nonetheless what Mr Morrison, the Chairman of the Appeal Committee, wrongly understood to be the position. According to the Tribunal he accepted in evidence that the Appeals Committee was the junior body.

[43]The Tribunal was also critical of the fact that the case against Mr Brady had been put by Mr Tyson, the Union President, and Mr Norman, who had taken over as General Secretary. They considered that this undermined the independence of the Appeal Committee.

[44]The evidence from Mr Morrison, who chaired the Appeal Committee and been a member of it since the 1980s, was that save for cases where there had been appeals against refusing to accept persons into membership, to his recollection the Appeal Committee had only on one occasion overturned an EC decision, namely when it substituted a fine for a five year suspension which had been imposed on Mr Samways for drunkenness.

[45]In view of these defects the Tribunal concluded as follows (para 45):

"In the circumstances, we find that the Appeal Committee was not a truly independent body and was unlikely regardless of the merits, to overturn the EC's findings on the Claimant's conduct."

[46]It then summarised its reasons for concluding that the procedural defects rendered the dismissal unfair in the following terms (para 59):

"However, we then went on to consider the fairness of the procedure adopted in accordance with the guidance at Section 98(4) of the Employment Rights Act 1996. With regard to charges 1 to 7, there was no proper investigation as there was no inquiry in accordance with the Union rules into the allegations made against the Claimant. Rule 17(2)(b) provides that an investigation should be carried out by the General Secretary or "... another officer not connected with the complaint"

. Neither the McColgan nor the Kelly inquiries complied with this rule, and neither of them was set up to investigate disciplinary allegations. In our view, the Respondent has failed the Burchell test. There was no inquiry into the allegations which accorded with the Union's rules. The Tribunal does not accept that the EC truly believed in the fact of the Claimant's guilt. Their motivation was as we find above. In any event, the investigation, such as it was, was in breach of the Union rules. We do not accept that such fundamental unfairness could be cured on appeal unless it was done by re hearing. The appellate body was not, in our view, truly independent and was unlikely, on past performance, to overturn the EC decision." Disparate treatment

[47]The Tribunal also highlighted the very different treatment of Mr Samways when compared with Mr Brady. He was initially charged with certain offences arising out of the incident on the 24 th May but he was never charged with bringing the Union into disrepute as a result of media coverage, notwithstanding that he had chosen voluntarily to speak to the media giving what was termed an "exclusive interview" with the Evening Standard. Subsequently his suspension and the charges against him were rescinded; as the Tribunal noted, it was as if the suspension and disciplinary charges had never happened.

[48]The explanation given by Mr Tyson as to why Mr Samways had been treated differently was that he had resigned and expressed deep remorse and regret. When the Tribunal asked to see the relevant correspondence to demonstrate this, they were, after some pressing, given an unsigned document which purported to be Mr Samways' personal statement. In the light of this, the Tribunal found that Mr Tyson's evidence on this point was "misleading". It was said that Mr Samways had expressed an intention never to seek Union office again. No such intention had been expressed, nor did Mr Samways express regret or remorse. On the contrary, the Tribunal found that he had disputed the McColgan findings, referred to the allegations as "absurd" and to the conclusions as having been reached with the absence of proof. He had also attended the Union's Annual Assembly of Delegates as a delegate. The Tribunal observed that the only justification for the difference in treatment was the Union factionalism. There was no justification for this different treatment and the reason given was not substantiated. In its conclusions, however, the Tribunal did not in terms expressly state that the disparate treatment of itself rendered the dismissal unfair. They concluded (para. 61) "We find a disparity of treatment which would lead us to question the fairness of the process against Mr Brady, were it necessary to do so. However, it is only one factor in a range of matters for consideration."

[49]We read the Tribunal as saying that the disparate treatment reinforced the concerns about the fairness of the dismissal but did not directly render the dismissal unfair. The law.

[50]Section 98 of the Employment Rights Act 1996 is as follows:

"Section 98: (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling into subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held. (4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."

[51]In Devis v Atkins

[1977] ICR 662

at 677-678 Viscount Dilhorne addressed the reason for dismissal in the following terms:

"The decision of the Court of Appeal in Abernethy v Mott, Hay and Anderson [1974] IRLR 213, was on the 1971 Act. Lord Denning M R said that the reason shown for the dismissal 'must be a reason in existence at the time when he is given notice. It must be the principal reason which operated on the employer's mind.' He went on to say that it must be made known to the man before he is given notice or told to him at the time. I do not see anything in the Act which makes it a condition of fair dismissal that the man dismissed must know before he is given notice or told at the time that he is given notice the reason for it. I prefer the view of Cairns LJ, who said: "

A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee. If at the time of his dismissal the employer gives a reason for it, that is no doubt evidence, at any rate as against him, as to the real reason, but it does not necessarily constitute the real reason. He may knowingly give a reason different from the real reason out of kindness ..." "

[52]So the question is: why did the employers dismiss him? If the principal reason was the act or acts of misconduct, then the requirements of section 98(1) are met. If, on the other hand, there was some other reason, they will not be.

[53]The proper approach to section 98(4) was established in the seminal case of British Home Stores v Burchell

[1980] ICR 303

at 304, in the following terms by Arnold J:

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."

[54]The Tribunal expressly made reference to this passage when setting out the relevant law early in its decision. The approach of the Employment Appeal Tribunal.

[55]Mr Sethi properly reminded us of certain well established general principles derived from the authorities. The EAT must respect the factual findings of the employment Tribunal and should not strain to identify an error merely because it is unhappy with any factual conclusions; it should not "use a fine toothcomb" to subject the reasons of the Employment Tribunal to unrealistically detailed scrutiny so as to find artificial defects; it is not necessary for the Tribunal to make findings on all matters of dispute before them nor to recount all the evidence, so that it cannot be assumed that the EAT sees all the evidence; and infelicities or even legal inaccuracies in particular sentences in the decision will not render the decision itself defective if the Tribunal has essentially properly directed itself on the relevant law. The grounds of appeal.

[56]The appeal against these findings is very extensive, although the grounds are to a significant extent interrelated. There are distinct challenges both to the Tribunal's assessment of the reasons, and its conclusions on procedural fairness. We will consider them separately. The reasons challenge.

[57]The principal grounds are these. First, Mr Hendy contends that the reasoning of the Tribunal was fundamentally defective. Nowhere did they properly consider the evidence of misconduct or the strength of the case against Mr Brady on any of these charges. It is alleged that this evidence was overwhelming and renders the decision of the Tribunal perverse. In connection with this it is alleged that the Tribunal without providing any explanation in fact made a finding that the Union had not held a genuine belief that the acts of misconduct had been committed. This finding was perverse and against all the evidence.

[58]Second, it is submitted that whilst there was admittedly evidence of what might succinctly be termed "antipathy" towards Mr Brady, there was no independent evidence to show that this was the reason for the dismissal. Conversely, there was plenty of evidence to support the view that the true reason was the misconduct relied upon. The Union submits that the Tribunal did not properly engage with the reasoning of either the EC or the Appeals Committee.

[59]Third, the Union contends that the Tribunal wrongly assumed that if the Union had acted for opportunistic reasons, then it could not have dismissed fairly for misconduct. The Tribunal saw these, it is said, as fundamentally inconsistent positions, whereas Mr Hendy submits that they are not. A dismissal can be both opportunistic and fair.

[60]Fourth, the Union says that in any event it was perverse for the Tribunal to conclude that it was opportunistic to pursue the disciplinary proceedings against Mr Brady given the findings of the McColgan report. There was obvious justification for commencing disciplinary proceedings in this case.

[61]There was a final point which we can deal with immediately. Mr Hendy submitted that if the Tribunal were to find bad faith, as it did, then this was a matter which should have been put unequivocally to the Union's witnesses by counsel for Mr Brady or by the Tribunal itself. He accepted that the Union always knew that what Mr Brady was saying was that he was being set up by the EC and punished because of the Executive's personal hostility towards him; that much was made clear not only in his application to the Employment Tribunal but even at the hearing before the EC itself. But Mr Hendy submitted that the allegation of bad faith should have been put unambiguously to the witnesses, and he says that it was not. Given that there could be no doubt what was being alleged, we would have been inclined to find that there is nothing in the point. The Union had a full opportunity to deal with the case against it. In any event, we did not have the Chairman's notes identifying precisely how the issue was put to the Union's witnesses, and Mr Sethi was not prepared to accept that he had necessarily failed to put in terms an allegation of bad faith; he may have done so. In the circumstances Mr Hendy recognised that he was not in a position to pursue the matter further.

[62]We turn to consider the other matters. Inadequate reasoning.

[63]The basic contention is this. It is said that the Tribunal should first have found whether a reasonable Trade Union, having regard to the evidence before them, could reasonably have concluded that Mr Brady had committed the acts of misconduct alleged and could reasonably have formed the view that these were acts of gross misconduct. In short, they should have determined whether these offences or any of them were in principle dismissible offences. If they were, then it is said that the Tribunal should have gone on to consider whether this particular Union did in fact conclude that there was gross misconduct. It is only once those findings have been made that the Tribunal could properly determine whether the ostensible reasons advanced by the Union were the real reasons, or whether they had been displaced by the alternative reasons suggested by Mr Brady. Without a proper assessment of the objective evidence the Tribunal could not arrive at a reliable assessment of the reason for dismissal. In this case there was no assessment of the evidence relating to the alleged acts of misconduct at all. Nor was there any proper attempt to analyse the reasoning of either the EC or the Appeals Committee.

[64]The Union supports this primary submission by relying on certain observations of Sedley LJ in Anya v University of Oxford

[2001] IRLR 377

, to the effect that the Tribunal should assess the totality of the evidence on any material issue.

[65]It was further submitted that on the evidence before the Union, the case against Mr Brady in relation to each of these charges was overwhelming. He had admitted being involved in a fight; it was not disputed that he had spoken to the media; and the evidence of non-cooperation with Kelly was plain and fully documented. In the circumstances, Mr Hendy says that it was perverse of the Tribunal to find as it did in para. 59 that the Union did not genuinely believe that Mr Brady was guilty of the conduct alleged; as it was put "The Tribunal does not accept that the EC truly believed in the fact of the claimant's guilt." He says that there is no basis for this finding, and certainly no explanation by the Tribunal as to how or why they reached that conclusion.

[66]Mr Sethi made a number of submissions in response to this aspect of the case. They were designed to demonstrate that the Tribunal's reasoning did not have to be developed in the way suggested by the Union. First, he says that a finding of the reason for the dismissal is a finding of fact which can only be overturned if there is no evidence to sustain the decision, or if it is perverse. Second, he emphasised that the burden lies on the employer to show on the balance of probabilities that the principal reason was one of the five potentially fair reasons enumerated in section 98. The Tribunal does not have to make any specific findings as to the reason at all; it is enough for them to find that the employer has failed to satisfy them that it is one of the statutory reasons.

[67]Moreover he contended that even where the employer adduces some evidence which tends to show that the reason was a statutory reason, that is not necessarily enough. If the employee puts this reason in issue by adducing evidence which casts doubt upon the alleged reason, the burden lies on the employer to satisfy the Tribunal that the reason it relied upon was indeed the true reason. This principle was established in Maund v Penwith District Council

[1984] ICR 143

(a case referred to the Tribunal) in which the employee alleged that he had been dismissed for trade Union activities. The Industrial Tribunal held that he had the burden of proving that but the EAT and the Court of Appeal disagreed. Griffiths LJ (at 149A-C) said this:

"If an employer produces evidence to the Tribunal that appears to show that the reason for the dismissal is redundancy, as they undoubtedly did in this case, then the burden passes to the employee to show that there is a real issue as to whether that was the true reason. The employee cannot do this by merely asserting in argument that it was not the true reason; an evidential burden rests upon him to produce some evidence that casts doubts upon the employer's reason. The graver the allegation, the heavier will be the burden. Allegations of fraud or malice should not be lightly cast about without evidence to support them. But this burden is a lighter burden than the legal burden placed upon the employer; it is not for the employee to prove the reason for his dismissal, but merely to produce evidence sufficient to raise the issue or, to put it another way, that raises some doubt about the reason for the dismissal. Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal."

Purchas LJ put the matter in similar but slightly different terms:

"As my Lord has already said, clearly Parliament was not extending an open invitation to an employee who was angry at being dismissed to raise frivolous, imaginary or unsubstantiated allegations against his employer; and where that employer is a public body, a local authority, the bona fide performance of their duties by the members of that authority. With respect, I agree with Lord Justice Griffiths in criticising the description of the effect of an apparently properly arrived at resolution by a responsible body as being of little weight. In my judgment the onus that rests upon the employee is to show that there is an issue which warrants investigation existing, against which an alternative reason, or competing reason, may be established. I emphasise that the onus resting upon the employee is not to prove, on a balance of probabilities, that his contending reason is the principal reason, but he must prove, on the basis of probabilities, that the issue exists. The gravity of the accusations, if any, involved in raising the issue will reflect upon the quality of the evidence necessary to establish the existence of the issue. Once the employee has adduced evidence to establish, on the balance of probabilities, the existence of the issue, the onus of showing which of the two competing reasons, or more if there are more, is the principal reason, remains as it always had been, on the shoulders of the employer. If the exercise being carried out by the Industrial Tribunal, and reported in paragraphs 19 and 25 of their reasons, had been confined to a consideration of the question: Had the applicant established the existence of the issue? – then they would, in my judgment, have been correct in looking at the evidence to see whether the applicant had established the existence of the issue."

[69]In this case he submits that the employee clearly raised the issue of an ulterior motive or reason, and the employers therefore had to prove the true reason and satisfy that Tribunal that it fell within the statutory reasons.

[70]Fourth, the fact that there is evidence of circumstances which could justify the dismissal does not require the Tribunal even to adopt a presumption that that is the true reason. This, he submits, is in essence what the Union is suggesting. In Timex Corporation v Thomson

[1981] IRLR 522

the employee was found to be unfairly dismissed when the employer dismissed for redundancy or reorganisation. The Tribunal found that although there was a redundancy situation they were not satisfied that the employee was dismissed for that reason rather than that being a pretext for dismissing for another reason, namely his performance. Browne-Wilkinson J, giving the judgment of the EAT said this (at para 5):

"First, it is submitted that since the Industrial Tribunal had found that there was a redundancy situation (or alternatively that there had been a re-organisation of the managerial structure) they should have found that the reason for dismissal was either redundancy or some other substantial reason of a kind such as to justify dismissal. The submission was that the evidence of redundancy being clear, in the absence of compelling proof or some other reason, the Industrial Tribunal ought to have found that the redundancy or re-organisation was the reason. It was urged that since the employers had tendered the evidence as to Mr Thomson's alleged unsatisfactory performance in his job as evidence of the reason why he, rather than others, was selected for redundancy, it was not open to the Industrial Tribunal to look at such evidence as suggesting that it was the incapacity not the redundancy that was the reason for dismissal. We reject this submission. In our view, there is no such presumption as it is suggested. Even where there is a redundancy situation, it is possible for an employer to use such situation as a pretext for getting rid of an employer he wishes to dismiss. In such circumstances the reason for the dismissal will not necessarily be redundancy. It is for the Industrial Tribunal in each case to see whether, on all the evidence, the employer has shown them what the reason for the dismissal, that being the burden cast on the employer by s.57(1) of the Act. The evidence in this case, even though possibly tendered for some other purpose, certainly raised the possibility that redundancy was used as a pretext for getting rid of Mr Thomson. The Industrial Tribunal was entitled to hold that they were not satisfied as to the reason for dismissal. On that basis the employers' defence to the claim failed at the first hurdle and a finding of unfair dismissal followed as of course."

[71]He further denied that the evidence against Mr Brady was overwhelming. Mr Sethi showed us parts of the evidence which demonstrate that Mr Brady was contesting each of these charges and was far from accepting that the evidence against him was overwhelming. In relation to the fighting, his case was that he had done no more than seek to restrain Mr Samways and to protect himself in the process. He accepted that he had spoken to the media but only after another member or possibly other members of the EC had done so and he was concerned that there should be a truthful account of the incident in question. As to the Kelly Report, he submitted that he had only on one occasion refused to meet Mr Kelly for which he had apologised. Otherwise he had not refused to do so. It was then submitted that even if he had committed misconduct it was not, in the circumstances, gross misconduct. So Mr Sethi submits that it is inappropriate for this Tribunal to make any assumptions about the strength of the case, and we agree. We have not seen all the evidence and can form no considered view about that.

[72]In our judgment the submissions of Mr Brady on this aspect of the case are correct. There was no obligation on the Tribunal to analyse the evidence in the formalistic manner suggested by the Union. It is entirely a matter for them how they reach their conclusions. They were not obliged to reach a view about whether the conduct was in principle capable of amounting to a dismissible offence, nor whether the Union had in fact formed that view. It was open to the Tribunal to find that whether or not the conduct, in principle, could amount to gross misconduct, nevertheless in the circumstances of this case the Union had not satisfied them - the onus being firmly on the Union - that it was the real reason. The Tribunal did not in fact have to go on to determine what the real reason was, although they did choose to do so here. The only question is whether there is a proper evidential basis for their decision. For reasons we develop in relation to the second ground, we think that there was.

[73]We touch upon the allegation that the case against Mr Brady was overwhelming and that the Tribunal were perverse to find otherwise. For reasons we have given, we are not in a position to say whether it was overwhelming or not. But even if it was, as we have indicated, there is no reason in principle why the dismissal cannot be unfair even where misconduct has been committed. The question is whether the misconduct was the real reason, and it is for the employer to prove that.

[74]Contrary to the submission of the Union, we are not satisfied that the Tribunal was making a positive finding that the Union actively did not believe that these offences had not been committed; even less were they saying that there was insufficient evidence from which a reasonable Union could have so concluded. We agree with Mr Hendy that if they had been intending to say this, one would have expected some explanation for that decision. Whilst we accept that there is some ambiguity on this point, the observation in paragraph 59 was made in the context of dealing with the Burchell case. We think the Tribunal was merely saying that the Union had not satisfied them that the reasons relied upon were the genuine reasons which caused the dismissal. Whether misconduct objectively viewed was committed or not, the Union had not satisfied them that it was this which caused the dismissal. This of course is consistent with their finding that the true reason was the political campaign and the determination to get rid of Mr Brady at the first opportunity. Was there evidence to justify the Tribunal's conclusion as to the true reason?

[75]The Union accepts that there was cogent evidence of hostility towards Mr Brady on behalf of the EC, but submits that this was not sufficient to infer that this was the reason for dismissal. Mr Brady says that there was a mass of evidence. It was what he was asserting, and at that point it was necessary for the Union to satisfy the Tribunal of the true reason. In addition, it was pointed out that although it was plain from the beginning that Mr Brady was challenging the bona fides of the EC, only one witness, namely Mr Tyson, was called to give evidence about the decision of that body, and he expressly denied that he was speaking for the Committee as a whole. There was no documentary evidence emanating from either the EC or the Appeals Committee, which identified how they reached their conclusions. All these were matters which were material to the conclusion that the reason was not the one relied upon by the Union.

[76]As a preliminary point we reiterate that in fact it was not incumbent on the Tribunal to make any finding as to the actual reason at all. It was sufficient for them to say that the Union had not satisfied them that the real reason was a statutory reason. But in any event, in our judgment there was plenty of evidence here sustaining the Tribunal's decision. In addition to the matters referred to by Mr Sethi, the Tribunal also made reference to the decision to commence proceedings –which would fairly include, we think, the different treatment of Mr Samways and the decision to subject Mr Brady to the other extensive string of charges - and the procedural failings. Moreover, given the paucity of evidence adduced by the Union to explain the decision of the EC, the finding by the Tribunal that the Union had failed to discharge the burden of proof is readily understandable. Whilst we are not satisfied that all the procedural defects identified by the Tribunal were justified criticisms, nevertheless it cannot in our view possibly be said that there was no proper basis for drawing the inference which the Tribunal did as to the real reason for dismissal. Does a finding of opportunism necessarily exclude a fair reason?

[77]Mr Hendy submitted that the fact that the tribunal found that the Union was determined to dismiss the General Secretary and that it had acted opportunistically did not preclude the true reason being that identified by the Union itself. He says that there is nothing intrinsically inconsistent with an employer taking an opportunity to discipline someone of whom they are delighted to be rid, whilst at the same time taking that decision properly and in accordance with the rules. He submits that the Tribunal here failed to appreciate that possibility. It treated opportunism and having a legitimate reason for dismissal as though they were mutually inconsistent, whereas he submits that they may sit comfortably together. Moreover, the Tribunal did not expressly find that the Union had acted in bad faith or dishonestly, or that the allegations themselves were trumped up. The fact that the Union seized upon the acts of misconduct with some alacrity did not demonstrate that they did not also genuinely believe that Mr Brady was guilty of the offences for which he was charged.

[78]We would agree that in principle there is indeed a difference between a reason for the dismissal and the enthusiasm with which the employer adopts that reason. (Mr Hendy in fact drew a distinction between reason and motive, but we do not think that the analysis in this case is assisted by referring to the elusive concept of motive.) An employer may have a good reason for dismissing whilst welcoming the opportunity to dismiss which that reason affords. For example, it may be that someone perceived by management to be a difficult Union official is perfectly properly dismissed for drunkenness. The fact that the employers are glad to see the back of him does not render the dismissal unfair. What causes the dismissal is still the misconduct; but for that, the employee would not have been dismissed.

[79]It does not follow, however, that whenever there is misconduct which could justify the dismissal a Tribunal is bound to find that this is indeed the operative reason. The Thomson case shows that even a potentially fair reason may be the pretext for a dismissal for other reasons. To take an obvious example, if the employer makes the misconduct an excuse to dismiss an employee in circumstances where he would not have treated others in a similar way, then in our view the reason for dismissal- the operative cause - will not be the misconduct at all. On this analysis, that is not what has brought about the dismissal. The reason why the employer then dismisses is not the misconduct itself. Even if that in fact merited dismissal, if the employee is treated differently to the way others would have been treated, being dismissed when they would not have been, then in our judgment a Tribunal would be fully entitled to conclude that the misconduct is not the true reason or cause of the dismissal. The true reason is then the antipathy which the employer displays towards the employee.

[80]But it is not only where there is evidence that the employee has been treated differently to the way others would be treated that a finding of unfairness can be made. As we have said, once the employee has put in issue with proper evidence a basis for contending that the employer has dismissed out of pique or antagonism, it is for the employer to rebut this by showing that the principal reason is a statutory reason. If the Tribunal is left in doubt, he will not have done so. Evidence that others would not have been dismissed in similar circumstances would be powerful evidence against the employer, but it is open to the Tribunal to find the dismissal unfair even in the absence of such strong evidence. In a case of mixed motives such as malice and misconduct, the principal reason may be malice even although the misconduct would have justified the dismissal had it been the principal reason.

[81]For reasons we have given, we think that the Tribunal had ample evidence to justify that conclusion. Moreover the different treatment of Mr Samways lends significant support to that conclusion. The Tribunal said in terms in paragraph 58 that the dismissal was not by reason of Mr Brady's conduct. Accordingly, whilst we accept Mr Hendy's submission that it would be wrong to say that because a decision is opportunistic it cannot be fair, nevertheless we do not think that this Tribunal made that mistake. They concluded that the Union seized the opportunity and dismissed for reasons other than a genuine belief in guilt. Was the tribunal entitled to find the commencement of proceedings opportunistic?

[82]Finally, it is contended that it was unjust for the Tribunal to say that the Union simply took the opportunity to initiate these disciplinary proceedings against Mr Brady. The McColgan report was an independent report, under TUC auspices, which made certain criticisms of the General Secretary. It also commented that the Union had to decide what to do about Mr Brady and, indeed, the President, Mr Samways. In the circumstances Mr Hendy says that it was plainly justifiable for the Union to initiate these disciplinary proceedings, and it was inaccurate and unfair for the Tribunal to say that they were merely opportunistic.

[83]We see some force in this point in relation to the fighting incident if considered in isolation, although even there the fact that different treatment was meted out to Mr Samways, who was not disciplined at all, provided evidence to suggest that the disciplinary proceedings were being adopted on a selective basis. But in any event the same argument does not run for the other two offences relied on as grounds for dismissal. Moreover, there were a significant number of other disciplinary charges added later which we have not analysed in the course of this decision. Whilst not directly relevant to the question of dismissal, they do add support to the Tribunal's conclusion that the Union had, in effect, been taking advantage of the fighting incident and had acted in an opportunistic way in resolving to bring all these disciplinary charges against Mr Brady. Accordingly, we find that there was evidence which justified the Tribunal concluding that it was opportunistic even to commence proceedings.

[84]It follows that we reject the Union's challenge to the reasons. Since they failed to establish a fair reason it follows that the dismissal was unfair and the question whether there were additional procedural defects is strictly academic. However, we heard argument on these matters and will summarise our conclusions, albeit more briefly. The procedural failings.

[85]The Union has raised a number of independent grounds with respect to this part of the case. First, it submits that the Tribunal did not ask whether it was within the band of reasonable responses for the Union to conduct matters as they did. Rather it fell into the trap of substituting its own view for that of the employer.

[86]Second, it is said that the Tribunal was wrong to find that there was a breach of rule 17 by failing to hold a disciplinary investigation; and that in any event any such breach could not conceivably be treated as rendering the hearing unfair. A related point is that it is alleged that the tribunal further erred in law in finding that there were defects in the disciplinary process arising from the fact that the Union failed, in the case of the McColgan report, to make the primary evidence given to that inquiry available; and in relation to both McColgan and Kelly, to take their findings as read. The Union contends that it was wholly justified in doing just that.

[87]Third, the Union contends that the Tribunal made unjustified and erroneous criticisms of the Appeals Committee. It wrongly held that it had not carried out a rehearing; it misdescribed its status as being junior to the EC; it concluded on inadequate and anecdotal evidence that it would not act independently; and it ought to have concluded that it could, and did, put right any defects in the earlier hearing.

[88]Fourth, it was submitted that the Tribunal was not entitled to find that there was a disparity of treatment.

[89]Finally there were certain criticisms directed at the role of Mr Tyson. The Tribunal found that it was incompatible for him to chair the Disciplinary Committee given that he had earlier begun an investigation and obtained certain witness statements; and that he ought not to have presented the case against Mr Brady at the appeal. Did the tribunal substitute its view for that of the employer?

[90]We can deal with this point briefly. We accept that there were one or two observations in which the Tribunal does appear to be expressing its own views as to the preference for matters to have been handled differently. For example, there is the comment that it was not necessary to inform Mr Brady that he had been found guilty of the first charge when there had been an adjournment of the other charges. But that did not figure in the conclusions on unfairness; the Tribunal properly directed itself on the proper test, and it referred again to Burchell when stating its conclusions. In the circumstances we are satisfied, as Mr Sethi submitted, that reading the judgment as a whole, it did not make this error attributed to it. (It was also alleged that it fell into the same error in making certain findings of fact, but that submission is misconceived. It reaches its own assessment of such matters.) Was there a breach of rule 17?

[91]It is alleged that the very basis on which the Tribunal found a procedural error, namely the failure to hold an investigation in accordance with rule 17(2)(b), was flawed. Mr Hendy points out that nowhere is it alleged that the disciplinary hearing itself was unfair. The Tribunal simply focused on the rule which required that there should be a preliminary investigation by the General Secretary and gave it a literal interpretation. He submits, relying upon a number of cases which say that Union rules should not be interpreted literally or like statutory provisions but in a looser and more benign way ( Jacques v Amalgamated Union of Engineering Workers

[1986] ICR 683

and Hamlet v General Municipal Boilermakers and Allied Trades Union

[1987] ICR 150

) that this was the wrong approach and that there had been compliance with these rules. The object of these rules was achieved by these two inquiries. The purpose, as rule 17.3(a) shows, was to provide a report so that the EC could decide whether or not to institute proceedings. In effect the General Secretary had delegated his function to these committees.

[92]Mr Hendy says that even if he is wrong about that, there was not on any view a fundamental unfairness here. Mr Brady had a full opportunity to deal with the case against him at the disciplinary hearing. There was manifestly a basis for the charges he faced, and it would have been pointless to have carried out a further investigation given the clear and unambiguous findings of the two inquiries. Any breach of the rules was trivial and did not create any unfairness. Moreover, good disciplinary procedures do not in fact require that there should be a preliminary investigation of the kind identified in the Union's rules. The ACAS code of practice recommends that no disciplinary action should be taken before the matter has been properly investigated, but that does not require a preliminary investigation to take any particular form.

[93]Mr Sethi submits that there was a clear breach of rule 17. The tribunal was right to say that there had been no disciplinary investigation in respect of any of the charges. In any event the failure to make witness statements available or to allow questioning of witnesses so that disputed facts could be resolved, as the rules envisaged ought to be done, was a serious breach. The Tribunal was not only entitled but right to conclude that the EC did not reach its own view on all the evidence but effectively contracted its decision making function to others.

[94]We do not agree with Mr Hendy that Rule 17 was complied with in this case. There was no preliminary investigation by the Assistant General Secretary, and the Kelly and McColgan inquiries were not, as the Tribunal correctly observed, part of the disciplinary process. Nobody had ever suggested that they were. There is some flexibility in the construction of Union rules, but to say that these inquiries fell within the terms of rule 17 goes well beyond the limits of legitimate interpretation. Nor in our view can it be said that Mr Kelly or the McColgan Committee were acting as agents of the Assistant General Secretary in making their reports. In any event, the Kelly inquiry, unlike the McColgan inquiry, was not investigating the same matter as an investigating officer would have done at all. On the contrary, the alleged misconduct arose directly out of the context of that inquiry itself.

[95]We would, however, accept Mr Hendy's submission that at least as far as the fighting charge was concerned, the broad objective of that rule was achieved by setting up the McColgan inquiry. Mr Brady had the opportunity to put his case to McColgan, and the Tribunal could not properly conclude in the circumstances that the mere failure to have a preliminary investigation resulted in any real unfairness to Mr Brady. He knew exactly what charge he had to meet. It was fanciful to think that any preliminary investigation would have been anything other than a formality, at least as regards that charge. In our judgment a reasonable employer could have justifiably dispensed with the need for any further investigation in the circumstances.

[96]In the case of the other two charges, however, the position is different. McColgan did not consider the allegation about approaching the media, save to observe that there had been damaging publicity. As to the Kelly inquiry, that merely constituted the case against Mr Brady. In respect of both these charges a preliminary investigation would have alerted the Committee in advance that Mr Brady was taking issue with at least some aspects of what was being alleged against him, and one cannot discount the possibility that it could have caused a bona fide committee not to take matters further. Not without some hesitation, we consider that it was open to the Tribunal to find that not only did this involve a breach of the Union rules, but that in addition it amounted to an unfairness in the process.

[97]There was, moreover, the additional problem with respect to the McColgan inquiry that the witness statements were not made available to Mr Brady. We are satisfied that the tribunal was entitled to conclude that this failure rendered the proceedings unfair. Mr Hendy rightly points out that on the assumption that the McColgan report could be treated as an investigatory report, this failure did not involve any breach of the rules at all. The duty is merely to make available such statements as are appended to the report. In the case of the McColgan inquiry, there were none. He submits that the rule is designed to ensure that the same material is given to the member as was before the EC. That is precisely what happened. The reports themselves provided the basis for these charges. It is not alleged that the disciplinary hearings themselves were in any way unfair. Mr Brady had the opportunity to call witnesses before the EC and before the Appeals Panel to explain or rebut the findings in those reports.

[98]No doubt Mr Hendy is right to say that one of the objectives of this rule is to ensure that the Member has the same material as the Executive. But in our judgment it is implicit in the rule that the statements taken in the course of an investigation, or at least the significant ones, would be appended to the report. In any event, even if that is not the case in our judgment the Tribunal was entitled to say that it was unfair not to provide them and to conclude, as they did at para.43, that the failure to reach an independent view of the facts but rather to accept the factual conclusions of these reports was a substantive defect in the proceedings. Mr Brady could put his own case and call witnesses, but he could not question the witnesses who had given a different account. This is contrary to his rights under rule 17.3(d). Indeed, without the primary witness statements which had been the foundation of the McColgan report, he did not even know who had made the statements or what they had said.

[99]In short, whilst in our view it could not be said that there was any real unfairness not to carry out a preliminary investigation in relation to the fighting charge, the Tribunal was entitled to find that the Union ought to have carried out a preliminary investigation with respect to the other two charges, and that it should not thereafter have treated these reports as though they contained established facts. Had Mr Brady accepted the conclusions of the authors of the reports, the situation would have been different. But he did not do so. Was the tribunal entitled to find that any defects were not cured on appeal?

[100]Mr Hendy submits that the Tribunal erred in finding that the Appeals Committee could not cure any defects in the decision of the EC. Contrary to the finding of the Tribunal, it carried out a rehearing. The fact that it received a transcript of the evidence rather than hearing the witnesses afresh was irrelevant. It was not necessary to require the witnesses to give evidence again. Moreover, the Tribunal was wrong to criticise the independence of the Appeals Committee. It could not properly be described as junior or subordinate to the EC merely because it was drawn from the membership at large. Nor was the Tribunal justified in relying on anecdotal evidence from Mr Morrison to infer that the Appeals Committee would but rarely override the Executive. Similarly, the fact that Mr Morrison may have misunderstood the rules and assumed that decisions of the Appeals Committee had to be endorsed by the EC did not undermine its independent status in fact.

[101]Finally, he says that Mr Brady had a full opportunity to make representations before the Appeals Committee and any defects were therefore cured. In any event, since a major procedural error as identified by the Tribunal was the failure to carry out an investigation, the Appeals Committee was in no better position than the Executive to cure that particular defect.

[102]Mr Sethi disputes this. He says that the Tribunal were fully entitled to find that the Appeals Committee was not independent and that there was no true rehearing. In any event, the Appeals Committee could not possibly cure the failure to provide witness statements or the reliance on the facts found in the McColgan and Kelly reports since it simply relied on exactly the same evidence.

[103]We accept some of the submissions of Mr Hendy, but they do not carry the day. In particular, we agree that the mere fact that all the witnesses were not called again does not of itself prevent the appeal being considered to be a rehearing. It would often be time consuming and unnecessarily onerous to expect witnesses to give evidence again. The real issue is whether the Appeals Committee is reaching an independent conclusion and not merely reviewing the decision of the original disciplinary body. However, it is then obvious that in so far as the complaint is that the way in which the evidence was obtained was defective, an Appeals Committee which simply repeats the same approach is not putting the defect right. In our judgment that is fatal to the argument of the Union here. The Tribunal found that the reliance on the reports for primary findings rendered the procedures unfair. The Appeals Committee did not cure that particular problem because they had precisely the same evidence. Mr Brady did not have the witness statements which were before McColgan at any stage.

[104]We do agree with Mr Hendy that the Appeals Committee could not fairly be described as being junior to the EC merely because it was elected from the membership. It was simply a differently elected body under the rules. It is true that in general an appeal should be to a senior manager. The reason is obvious; if it is to a junior then that employee will often feel inhibited about overturning the decision of a more senior colleague, particularly if that colleague has influence over his career prospects. There may be the perception of unfairness even if in fact the process operates fairly in any particular case. But the real issue here is the independence of the Appeal Committee, and that is not a legitimate concern here at least if the rules are properly applied. The members of the Appeal Panel were not beholden to the EC in any way; each member of the appeals panel is elected for a three year fixed term and each is ultimately accountable to the Membership who elect him. It is not uncommon for Unions to have disciplinary appeal panels of this nature, and in our opinion it cannot be said that the disciplinary process is thereby rendered unfair.

[105]However, it does seem to us that the Tribunal was entitled to conclude that the independence was threatened by the fact that the decision had to be endorsed by the Executive. That is not in fact what the rules provide - as both parties accepted. The Appeals Committee's ruling is final and binding. But it appears that this was Mr Morrison's understanding of the position and he was a very experienced Chairman of the Committee. If that was how the role of the Appeals Committee was perceived - and by its own Chairman - then it was open to the Tribunal to say that this would have undermined its independence and effectiveness. It is less likely to want to overturn a decision of the EC if it believes that its rulings have to be endorsed by that body. Moreover, whilst we agree with Mr Hendy that mere anecdotal evidence about the frequency with which the Appeals Committee had overturned decisions of the Executive in the past would not of itself justify an inference of lack of independence, since nothing was known about the circumstances or merits of any of those appeals, or indeed the volume of such cases, nevertheless the Tribunal was entitled to find that it does carry some - albeit we would ourselves have said very limited - weight in the light of the misunderstanding of the authority of the Appeals Committee.

[106]Mr Sethi submits that in any event the Appeals Committee could not redress the errors identified here. We have already indicated that, in our judgment, this must be so with respect to the evidential criticisms identified by the Tribunal since the Appeals Committee simply relied upon the same evidence and therefore replicated such errors.

[107]As the failure to carry out a preliminary investigation, we agree with Mr Hendy that the Tribunal was in error in assuming that the Appeals Committee were somehow in a better position than the original disciplinary hearing to remedy the defect. There is no reason why that should be so. However, the logic, it seems to us, is that it was a defect which neither body could remedy. If the Tribunal was entitled to conclude that the failure to hold a disciplinary investigation was an unfair element in the process, the disciplinary hearing itself cannot remedy that fact.

[108]We should add that it seems to us highly arguable, as Mr Sethi submitted, that given the finding of the Tribunal that the proceedings were commenced in bad faith, this was in any event something incapable of being remedied on appeal. The logic of that finding by the Tribunal is that the disciplinary proceedings may never have been initiated at all but for the unfairness at the first stage. The procedure before an Appeals Committee is not such as enables it readily to correct a fundamental failing of that nature. However, it does not appear that this point was argued below, it was not a matter considered by the Tribunal and we express no concluded view on it. Disparity of treatment.

[109]As we have noted, the fact of the disparity found to exist between the treatment of Mr Brady and Mr Samways was not central to the conclusions of the Tribunal but it did provide support for their findings on fairness. It also supports the conclusion that the real reason was not that advanced by the Union.

[110]Mr Hendy accepted that the Tribunal properly directed itself that only exceptionally will disparate treatment actually amount to an unfairness, referring to the decision to that effect of the Court of Appeal in Paul v East Surrey District Health Authority

[1995] IRLR 305

. Nevertheless, he submits that they erred in law in failing to accept that there were certain features which justified the Union treating the two cases differently. In particular he pointed to the fact that Mr Samways had resigned from office. But the Tribunal was fully alive to that fact. In our judgment it was justified in holding that the reasons given for the different treatment were not satisfactorily explained by Mr Tyson and were not born out by Mr Samways' statement. The Tribunal considered that the fundamental difference appeared to be that Mr Samways was in the faction which the EC supported whereas Mr Brady was not. The Tribunal heard evidence about this from Mr Tyson, and they gave cogent reasons for their conclusions after having properly directed themselves as to the relevant law. We see no error here. The role of Mr Tyson

[111]Mr Hendy submits that the Tribunal were wrong to find that Mr Tyson had acted improperly in conducting the initial investigation because he subsequently sat on the disciplinary committee. He refers to the cases of Slater v Leicestershire Health Authority

[1989] IRLR 16

and Sartor v P and O European Ferries

[1992] IRLR 271

in which such conduct was allowed. Then he says that the Tribunal again erred in law in saying that the President and General Secretary should not have put the case for the EC to the appeals body; that is precisely what the Union rules require; see rule 8(g).

[112]In fact, although these criticisms were made, they were not specifically relied upon in the conclusions of the Tribunal. In view of that, and because of our findings on the other issues, it is not necessary to determine this issue. Suffice it to say that we think that there is considerable force in Mr Hendy's submissions on this point. The authorities referred to by Mr Hendy do suggest that there is no inherent unfairness in the person investigating also judging, and the incident at the barbecue justified an urgent investigation from a senior officer unconnected with the events. As to Mr Tyson's role in the appeal, in Rowe v Radio Rentals Ltd

[1982] IRLR 177

in the context of a commercial company, Browne-Wilkinson J, giving the judgment of the EAT, said that it was not in general necessary that the manager hearing an appeal should insulate himself from the manager who has recommended or implemented a dismissal, and treat himself as a judge hearing two contending parties. The person originally dismissing will often appear at the appeal. Here there is admittedly a more formal disciplinary structure, as Mr Sethi noted, but we think that there is considerable force in the argument that the Union could not simply depart from the terms of its own rules without the consent of Mr Brady. He has a contractual right to have the Union comply with those rules. He did not suggest that the procedure adopted in accordance with the rules on this matter was unfair. Of course, the rules are not decisive of fairness, but they are material matters to consider. It was unsatisfactory for the Tribunal to have reached the conclusions it did, with respect to Mr Tyson's role, without recognising that this was what the rules required. Conclusions.

[113]For the reasons we have given we find that the Tribunal was entitled to conclude that the Union had not established that there was a reason for dismissal falling within the statutory reasons. We also conclude that whilst some of the Tribunal's criticisms of the procedures were not justified, others were. These would of themselves have been sufficient to justify a finding of unfair dismissal.

[114]It follows that the appeal fails and the finding of unfair dismissal stands.

Cited in 1 later judgment

Ms S Morgan v London Design and Engineering UTC: 3202616/2020 2020