CARRAN v MELLORS HOTEL LTD [2008] UKEAT 1015_07_2401

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 1015_07_2401Case No Appeal No. UKEATPA/1015/07Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CARRANAPPELLANTMELLORS HOTEL LTDRESPONDENT
Before
His Honour Judge McMullenDate 24 January 2008
[1]APPEARANCES For the Appellant MR C QUINN (of Counsel) appearing under the Employment Law Appeal Advice Scheme HIS HONOUR JUDGE McMULLEN QC This case is about unfair dismissal for gross misconduct. I pre-read the papers. I will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal chaired by Regional Employment Judge Reed, sitting at Liverpool, registered with reasons on 16 July 2007. The Claimant represented herself and the Respondent was represented by Counsel. The Claimant claimed unfair dismissal. The Respondent contended it dismissed her fairly for gross misconduct having followed a fair procedure. The Tribunal rejected the claim. The Claimant appeals. She also applied for a review. That was rejected by the judge. There is no separate appeal.[3]On the sift of this Notice of Appeal in accordance with Practice Direction 2004 paragraph 9 Mr Justice Beaston exercised his power under Rule 3(7) of the Employment Appeal Tribunal Rules . He concluded in Chambers that the case disclosed no reasonable grounds for bringing an appeal. Where no point of law is found Section 21 of the Employment Tribunals Act 1996 deprives the EAT of jurisdiction to hear the case.[4]The Claimant was given the opportunity to amend the Notice of Appeal or to have the case heard before a Judge under Rules 3(8) or 3(10). I am thus hearing this case on more material than was available to the Judge and form my own view of the appeal. I do that on the basis of the further written material submitted by the Claimant and the considerable advantage which she has today to be represented by Mr Chris Quinn of Counsel, who gives his services under the aegis of the ELAA scheme. The question for me is whether there is any ground on which the appeal has a reasonable prospect of success. The legislation[5]The relevant provisions of the legislation are summarised by the Employment Tribunal without challenge here."11. Under Section 98 of Employment Rights Act 1996 there are five potentially fair reasons for dismissal. In this case, the reason for dismissal clearly was related to conduct and therefore was potentially fair.12. We must then ask ourselves whether the Company acted reasonably in treating conduct as justifying the dismissal of Mrs Carran." The facts[6]The Respondent runs the Royal Clifton Hotel, a substantial watering hole in Southport, Merseyside, whose mission is 'top quality service and food creates happy and successful people'. It employs 85 people. The Claimant was employed by it as a bar person from about 1997. The Tribunal found this:
"3. Mrs Carran began her employment with the Company in or around 1997. The Company owns the Royal Clifton Hotel and she was employed as a general bar person, with additional duties from time to time. 4. The matter that led to her dismissal was an incident that occurred on 9th December 2006 (or perhaps more accurately the early hours of the following morning). There was a function taking place at the hotel on that date and Mrs Carran was on duty. Also on duty that night was a Ms Walkden. 5. Put shortly, there was an incident concerning Mrs Carran and Ms Walkden and Ms Walkden alleged she was assaulted by Mrs Carran. 6. Various witnesses were interviewed as indeed were the protagonists. 7. On 14 th December the Company wrote to Mrs Carran to call her to a disciplinary meeting which took place on 18th December. 8. That hearing was adjourned and reconvened on 21 st December. By that date the claimant had attended a police station and had been administered with a caution for assault. 9. By letter dated 27 th December the Company wrote to Mrs Carran to inform her that due to her unacceptable behaviour and her assault on a staff member, she was dismissed. 10. Mrs Carran appealed against that dismissal and the appeal was heard on 18 th January 2007. On 25 th January the Company wrote to Mrs Carran to inform her that her appeal was rejected."
The Claimant's case[7]The Claimant originally made two submissions. The first was based upon the footing that she had to raise questions of law pursuant to the jurisdiction which I have just outlined. The second was on the alternative basis that questions of facts may be raised. At the hearing today two essential points have been made on her behalf. The first is that as a matter of fact she assaulted nobody.[8]The second is that the employment judge gave the appearance of bias. When the proceedings opened in the Cunard Building on Merseyside the owner of the Respondent hotel, Mr Timmermas, came into the Tribunal, and the Employment Judge said "Good morning, how are you?" to him. On the basis of this the Claimant was most concerned that Employment Judge and the owner of the hotel knew each other. Further, there were manifestations of, what is said to be, apparent bias in two respects. One was that the Claimant was given insufficient assistance by the Employment Tribunal. She wanted to call witnesses. She did not know she could. If she knew that she was able to call witnesses she would have called her son and her daughter. Secondly, she went through an ordeal at the hearing representing herself while the Respondent was represented by Counsel. She was distracted by noise at the back of the Tribunal. This was created by the Respondent's people. On this basis, the judgment should be set aside. The legal principles[9]The first legal principle is that the Claimant is entitled to a fair hearing before an independent and impartial Tribunal which is not and does not appear to be biased. The second is that a litigant in person is entitled to respect for the fact that she represents herself and may not find that easy given that the other side is represented by Counsel. Third in a case of dismissal for misconduct, the rules in British Home Stores Ltd v Burchell [1978] IRLR 379 apply, and the question is whether the Respondent formed a genuine belief in what was put against the Claimant after as much investigation as was reasonable in the circumstances. That rule has, of course, been restated in Post Office v Foley [2000] IRLR 827 CA and other cases. Unless a question of contribution or wrongful dismissal, arises when it is necessary to make a specific finding about what actually happened, a Tribunal is looking at the material which was available to the employer or which reasonably ought to have been available to it had it carried out proper procedures. Discussion and conclusions[10]Of course I accept that the Tribunal did not have to make a finding as to whether the Claimant was guilty of the criminal offence of assault. As a matter of chronology the Claimant admitted assault for, upon advice from a solicitor at a police station, a caution was administered to her for assault, which means that she admits the offence but is not convicted of it. It is not clear to me whether or not the Respondent knew that at the time of the reconvened hearing on 21 December and nor does the Tribunal make a finding about it, so I will put that to one side. Nevertheless, the material which was seen by the Tribunal, and which was in the form of the statements taken by the Respondent during interviews, indicated that the offence of assault appeared to them to have been committed. Thus the Employment Tribunal could find that there was reasonable material after such investigation as was reasonable for the Respondent to believe that the Claimant did do what they said she did, which was to assault the victim.[11]The second matter relates to the appearance of bias. On this evidence it is insufficient for me to order an inquiry under the Practice Direction para 11. That requires substantial steps to be taken to inquire of the regional employment judge charged with this impropriety and of the two Members, and of Counsel for the Respondent and the Respondent's witnesses as to what was said. Doing the best I can today, let me assume that there is no dispute that the words were said. How does that give an appearance of bias? Mr Timmermas gave no evidence. The evidence was in the form of a witness statement from Mr Hopkins and various other material which was adduced. I can understand from the layout of the Cunard Building, which I know well, how it would be a natural response of an employment judge when people enter the room to say good morning. There is no indication that the employment judge knew Mr Timmermas's name, but in any event the names of people attending a hearing are all there. These days, as Mr Justice Rimer, as he then was, made clear in London Borough of Hackney & Ors v Mrs S Sagnia (EAT/0600/03 & EAT/0135/04), very many claims are brought to this Employment Appeal Tribunal by dissatisfied litigants complaining of bias, very few of them have any substance on investigation. In my judgment, this has none. At the highest, it displays ordinary courtesy by an employment judge. I am fortified in that conclusion by the fact that the Judge does not sit alone, and Employment Tribunal Members, by their training and experience are well able to upbraid an employment judge who oversteps the mark and to express their feelings both privately and in writing. None of that has occurred in this case. It is perhaps unfortunate that the Claimant formed a view that there was a connection between the judge and Mr Timmermas. I see no evidence of that.[12]As to the manifestations, which may be taken separately, I agree that some assistance would be forthcoming from an experienced Tribunal to an inexperienced litigant. The issue in this case was that the Claimant asserts through Mr Quinn that she did not know she could call witnesses. I reject that contention as having no foundation. At my asking, I have been shown, the letter of 26 March 2007 (which Mr Quinn did not know of) giving standard case management orders. It is in the form which applies throughout the Employment Tribunals in England and Wales so far as I can tell and it sets up a timetable for witnesses. It says this:
"In particular the parties shall prepare the full and complete statements of all witnesses including parties. No additional evidence will be allowed at the hearing without permission. A witness statement shall have numbered paragraphs. They should be sent to the other parties, not necessarily at the same time. The Tribunal will require four copies of the statement for the hearing."
After that on 19 April 2007 a further letter was directed to the parties in which this occurs:
"You are responsible for ensuring that all witnesses you may wish to call can attend on the hearing date and know the time and place of the hearing."
[13]On that material I reject the submission that the Claimant did not know she could call a witness or that she was insufficiently assisted by the Judge.[14]As to the second manifestation, which is that there was distraction by noise at the back of the Employment Tribunal, I have no doubt that if there was a level of noise which made it distracting it would have distracted not only the parties but the Employment Tribunal and it would have been stopped. The rooms in the Cunard Building are small and any noise could cause a distraction but I do not know whether the Claimant asked the employment judge to stop the conversations or not but in any event this allegation is jejune.[15]I will dismiss the application. No further action will be taken on the appeal and the Notice of Appeal is effectively dismissed with my thanks to Mr Quinn for the services he has rendered this morning.