Appeal No. EAT/367/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8 & 10 July 1992
	Judgment delivered 22 October 1992

	Before

	HIS HONOUR JUDGE B HARGROVE OBE QC

	MRS M L BOYLE

	MISS J COLLERSON

VAUXHALL MOTORS LTD	APPELLANTS

MR M GHAFOOR	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	Mr John Bowers
	(of Counsel)
The Solicitor
Vauxhall Motors Ltd
PO Box 3
Luton
LU2 0SY

For the Respondent	Ms Heather Williams
	(of Counsel)
Luton Law Centre
2a Reginald Street
Luton
Bedfordshire
LU2 7QZ

HIS HONOUR JUDGE B HARGROVE:      On 1st June 1990 the Industrial Tribunal gave its Reasons (following a hearing on 21st and 22nd May 1990) for holding that the Respondent had been unfairly dismissed and that there should be no reduction in compensation on the basis of contributory fault.  The immediate cause of dismissal was the acceptance by the employers of the allegation that Mr Ghafoor had struck a fellow employee while upon the employer's premises.

	In summary the Industrial Tribunal found that the procedure was unfair both at the initial disciplinary proceedings and in the failure to provide an adequate method of appeal.  Further, having formed the view that Mr McGee should not be believed, the Tribunal declined to find contributory fault.

	The Appellant attacks the Reasons on a number of heads.  We have reminded ourselves of the limitations in our jurisdiction and the requirement that unless a finding of fact of the Tribunal is perverse in the sense that it is irrational or that it is not a permissible option we cannot interfere even though we would, on the evidence before us, have reached a diametrically opposite conclusion.  In considering the heads of appeal we have endeavoured to follow the pattern utilised by both parties.

The employee did not see the witnesses statements
	The first criticism of the decision is that it was in error in finding that the employee did not see or hear what was being alleged against him.  It is clear that initially the statements of the witnesses were not provided to the employee.  The Appellant says that this does not matter; there is no need for a full blown quasi tribunal to be set up at the disciplinary hearing.  It is sufficient that the well known rules of natural justice are observed; namely that the hearing shall be in good faith with the person accused knowing the nature of the accusation and being able to state his case.  In Khanum v. Mid Glamorgan Area Health Authority [1979] ICR 40, the Court said -
	"But in our judgment as regards the sort of domestic tribunal with which we are concerned in this case the law is as it was expressed by Harman J in Byrne v. Kinematograph Renters Society Ltd [1958] 1 WLR 762 at 784 approved and applied in the Privy Council to the context of a university's Vice-Chancellor's inquiry into cheating in examinations in Fernando's case

	"What then are the requirements of natural justice in a case of this kind?  First, I think that the person accused should know the nature of the accusation made; secondly, they should be given an opportunity to state his case; and, thirdly, of course the tribunal should act in good faith.  I do not myself think that there is really anything more"

	 If you apply the law as so expressed to the proceedings of a domestic disciplinary inquiry at both levels of this case each of the three requirements was amply fulfilled." 
In any event it is said that there is no magic about knowing the nature of the case against the employee.  It was that he punched a fellow employee in the face on a particular occasion at a particular place.  What more, the Appellant asks, does he need to know?

	The Respondents seek to uphold the decision relying on the view that the Polkey decision was something of a watershed in judicial thinking and that the rules of natural justice alone may not be enough.  In Louies v. Coventry Hood & Seating Co Ltd [1990] ICR 54 at 58 it was said -
	"Secondly, Mr O'Donovan says that what had happened here is that the procedure was unfair and that it was unfair in a fundamental matter in that the applicant was not shown the statements or told by whom they had been made.  He submits that that is fundamental.  Mr Jeans, for the employer, takes the point that whether or not the procedure is unfair, the facts must be looked at as a whole in connection with the whole of the investigation; you cannot divide the procedure from the rest.  It must be looked at as a whole.  It was not an issue of law, it was a question for the industrial jury, namely, the industrial tribunal. ...

	 In our judgment the issue of natural justice goes rather beyond the words there cited (from Byrne v. Kinematograph Renters Society Ltd) from Harman J". 

The judgment continues at p.59
	
	"It does seem to me that it must be a very rare case indeed for the procedures to be fair where statements which have been given in writing by witnesses and upon which in essence the employer is going to rely almost entirely - and that is this case -  that an employee should not have a sight of them or that he should not be told very clearly exactly what is in them or possibly have them read to him."

The evidence, which does not appear to have been rejected by the Tribunal, is that the statements were in fact read over to the Respondent, whether upon the basis of Khanum or Louies we are of the view that the Tribunal has misunderstood the law and applied too high a test.

Failure to provide an appeal procedure
	The appeal procedure provided by the employers also came under fire from the Tribunal.  This aspect of the case we have found of considerable difficulty not least because the nature of the appeal procedure provided is novel even to those members of this Court with wide experience of both sides of industry.  It seems that if an aggrieved employee wished to appeal from a dismissal then his case was considered by the Trade Union convenor if the employee was (as he was here) a member of the union.  If the convenor assented then the appeal went forward.  If the convenor did not consider the matter suitable for an appeal then no appeal could be made.  It was not a question of whether the Trade Union would support the appeal, the right of appeal ceased once the convenor had rejected the case.  If the employee was not a trade union member then apparently there was no appeal at all.  The procedure was said to have been agreed between the employers and the trade union and was a matter of custom and practice.  It was not reduced into writing.  Any appeal on which the union was not represented would be regarded by the union as a breach of the collective bargaining agreement according to the employers.  The Tribunal requested further information upon this point but it was not forthcoming.

	Here the union convenor decided that nothing could be done and refused to further the appeal.  There was some evidence that Mr Ghafoor had consented to this but the Tribunal seems by implication to reject this evidence.  Two of the policy-makers in the Appellant's employ voiced the view that there should be an appeal provided in the instant type of case.

	It is said that the criticism of the appeals procedure by the Tribunal was wrong.  In East Herts District Council v. Boynten [1977] IRLR 347 at 349, the position of an employer following an agreed code of appeal procedure is considered
	When one comes to consider what an employer has to show under sub-paragraph (8) it is quite clear he has to show that he acted reasonably.  It is perfectly possible to imagine a situation where, if an employer considering a disciplinary matter followed a code of procedure which was unfair, it could be said, and has been said in other cases, that he acted unreasonably.  But this is not a case where the employer is following a code of procedure of his own devising or unassisted by others.  This is a case where the employer was following a code of procedure laid down and agreed by both sides of the industry.  It is in effect the Bible on what should happen in these circumstances.  As was pointed out in the course of the argument, it may be extremely difficult for an employer if he does not follow the agreed procedure laid down, because it may be said in those circumstances that in not following an agreed code of procedure he is in fact acting unreasonably because that code was one which in the context of industrial relations had been agreed between both sides of industry.   It appears to us that in looking at this matter the Industrial Tribunal wholly overlooked the question that what they were really deciding was whether the employer acted reasonably.  We cannot find it possible to say, in a case of this character, at any rate, that an employer, in following such an agreed procedure, could be said to be acting unreasonably.  Of course there may be an argument that the code could be improved, or that greater safeguards could be included.  But that is not the point of this case.  The point is that there is a code, carefully agreed between the parties, and, in the way we look at it, it is not for an Industrial Tribunal or, indeed, this Appeal Tribunal to re-write an agreed code of that kind which has been hammered out by both sides of industry.  No employer, it seems to us, should be accused of acting unreasonably in those circumstances, if that employer follows a code which has been arrived at in that way."

	Further it is pointed out that the basis upon which this approach operates is that the employee who is a trade union member constitute the union as his agent for negotiations and once the union has negotiated an agreement he is bound by it in relation to appeals procedure.

	As a matter of common sense the Boynten decision must be correct, but this case differs materially from the Boyten case and we distinguish it.  The right of appeal is the right of the individual.  Without his express agreement he should not be deprived of it.  The employer cannot wash his hands of the duty to provide an appeal on the basis of procedure which in fact can deprive the employee of an appeal without his case being heard.  We do not consider the Convenor's decision to be an adequate substitute.  Nor do we accept that any employee, by joining a union, constitute the union as his agent for such a far-reaching purpose as the acceptance that the right of appeal ceases upon the Convenor's decision.  Further, we find it surprising that such an agreement is not in writing and notified to every trade union member/employee.  The Tribunal was therefore right in law to criticise the appeals procedure.

Absence of adequate notes
	The Industrial Tribunal found that there was a procedural error in that the notes taken during the disciplinary proceedings were in handwritten form, abbreviated and difficult to read.  Further, they were incomplete in that they failed to record certain submissions.  Reliance was placed upon Linfood v. Thompson [1989] IRLR 235 and the Tribunal considered that it was a procedural defect in failing to keep notes during disciplinary  proceedings and to provide them for the employee.  We accept (as did the Tribunal) that Lintood is mainly concerned with the question of the evidence of informers.  However we are of the view that bearing in mind the value of such notes it was permissible for the Tribunal to find that this was a procedural defect in all the circumstances.

That the same Trade Union representative should not have appeared on behalf of both the Respondent and the Complainant at the disciplinary interview.   
	The Tribunal does not seem to have directed its mind to the fact that this was a question to be determined, not by the employers but by the employee and his trade union.  The employee never suggested separate representation and there was evidence that he could have asked for a change of such shop steward had he wished.  The manner of party's representation at a disciplinary interview, insofar as it is not the subject of an agreed procedure, should, so far as is possible, be at the election of the employee and the employer cannot be criticised for failing to interfere in that selection.  It is a fair comment that in presenting his case the experienced shop steward appears to have been less than helpful to the Respondent but nevertheless we do not consider that the approach adopted by the Tribunal was a permissible option upon the situation confronting the employer.

Failure to apply the correct tests
	It is said that the Tribunal failed to apply the correct test in the light of the procedural defects which they found.  In Bailey v. B.P. Oil (Kent Refinery) Ltd [1980] ICR 642, the Court of Appeal after citing the relevant statute continues at p.648
	"This wording, which is clear and unambiguous, requires the tribunal, which is the one which hears the evidence, not the one which hears the legal argument, to look at every aspect of the case.  The employer must show that he acted fairly and reasonably - and whether he did will depend upon what the employee was known, or had been proved, to have done, the circumstances in which the misconduct occurred and his behaviour when found out and asked for an explanation.  Each case must depend upon its own facts.  In our judgment it is unwise for this court or the Employment Appeal Tribunal to set out guidelines, and wrong to make rules and established presumptions for industrial tribunals to follow or take into account when applying paragraph 6(8).  An example will show why guidelines can mislead.  In most unfair dismissal cases industrial tribunals are likely to be critical, and justly so, of an employer who has dismissed a man without giving him an opportunity of explaining why he did what he did; but cases can occur when instant dismissal, without any opportunity for explanation being given, would be fair, as for example when on the shop floor a work was seen by the works manager and others to stab another man in the back with a knife.  The dismissal in such a case would not be any the less fair because the employers did not follow a disciplinary procedure agreement with a number of trade unions containing the kind of provisions which are under consideration in this appeal.  In most cases, if not all, a failure to comply with such an agreement would be a factor to be taken into account; but the weight to be given to it would depend on the circumstances.  An industrial tribunal should not base its decision on reasoning to the effect that because there has been a failure to comply, the dismissal must have been unfair."  

While there is no specific finding that the Tribunal carried out the final evaluation ie "does the procedure of defect render the decision unfair", we take the view that it is implicit in the Tribunal's reasoning and we have been mindful of the need to approach Industrial Tribunal decisions without the minute analysis which the Court of Appeal has indicated as inappropriate.

Contribution and contributory fault
	The proper approach of the Tribunal was to consider whether, if the procedural defects had not existed and, for example, a proper appeal procedure had been provided what would have been the outcome on the material before the appeal body.  The usual test of fairness would have applied and it is the employer's approach which is to be considered, not that of the Industrial Tribunal.  The Tribunal looked at a solicitor's letter sent on 29th November not to the employers but to the Respondent.  It dealt with events which were alleged to have occurred after the date of dismissal.  It contained untrue allegations.  Upon that basis the Tribunal found,
	"Mr McGee admitted in evidence that the statement that Mr Ghafoor had been making a nuisance outside his place of work and making threats to Mr McGee was untrue.

	  If Mr McGee has made untrue statements of this nature, as he has admitted, then we can have no confidence in the truth of his allegation that Mr Ghafoor hit him.  In these circumstances, therefore, we see no reason to conclude that Mr Ghafoor has made a substantial contribution to his own dismissal." 

	There seems to be substance in the Appellant's complaint that the Tribunal has substituted its own assessment for that which the employers would have made.  On the basis of Devis v. Atkin [1977] ICR 662 the Industrial Tribunal may not take into account what they find to be untruths as told to the Industrial Tribunal but only those told before the time of dismissal.  Similarly, this rule must apply in relation to dismissal of the presumed appeal.

	The errors are compounded by the route taken by the Tribunal to assess the outcome of the presumed appeal.  An assumption is made that the solicitors' letter would have come to light before the appeal.  It would have weighed with the employers that the solicitors had given a false account of another incident which occurred after the dismissal, the employers would have concluded that as the complainant must have lied to his solicitors he must also have lied to the employers and that they would have accepted the Respondent's evidence and not dismissed him.  In order to reach the conclusion that the letter would have been before the appeal body.   The Tribunal produced, without any notice to the parties, a case which had been before the Industrial Tribunal concerning the same employers where there had been a two months' gap  between dismissal and appeal.  That case, Chandler v. Vauxhall Motors Ltd (Case No.28455/89) was we are told, and accept, a case where delay was caused by the need to obtain medical reports.  The employers had no opportunity to consider the matter or to bring forward evidence of other cases where the period was very much shorter.  In Zim Israel v. Edwards (unreported) this Court said  
  	"Before us, therefore, quite apart from a number of other points, namely, on the issue of frustration the calculation of the loss of one or two other lesser matters, the point is taken and is, in effect conceded, that this tribunal reached the decision on the fundamental issue, namely the dismissal, which was not raised or argued by either side and in a situation where neither side had the opportunity of dealing with it at all.  It seems to us that if a tribunal has managed to reach a decision in a way and on a point which has not been raised by either side and which must take both sides by surprise, then the appropriate procedure would be for the parties to be recalled and the point put and argument and submissions heard." 
The argument that since the question of early dismissal is a matter for the employer to prove they ought to have come to the Tribunal equipped to deal with the Chandler case is not a contention which we view with favour, it seems to us that the effect of the Tribunal producing this case of its volition and without notice was to ambush the Appellants and inflict a considerable injustice upon them.

	In these circumstances we have no option but to order that the case should be reheard before a new Tribunal.  We note that a very considerable time has elapsed since the event of which complaint is made and consider that the rehearing should take place as soon as possible.