Appeal No. EAT/522/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20 January 1992

	Before

	HIS HONOUR JUDGE J HICKS QC

	MR J R CROSBY

	MR D A C LAMBERT

CITY ELECTRICAL FACTORS LTD	APPELLANTS

MR N J COUSENS	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR M WEST
(Personnel
    Consultant)
Peninsula Business Services
Stamford House
361/365 Chapel Street
Manchester M3 5JY

For the Respondent	MR A WATERS
(COUNSEL)
Messrs Penman Johnson
	5 George Street
	Watford
	HERTS WD1 8SQ

	JUDGE J HICKS QC:  Mr Cousens was a branch manager employed by the Respondents to the Application, the Appellant before us, City Electrical Factors Ltd, from 17 February 1986 until he was dismissed with effect from 30 January 1991.  The circumstances immediately preceding that dismissal were that at the end of December 1990, Mr Cousens had gone on holiday to Australia for four weeks.  On his return, which we were told - and I do not think there is any dispute about that - was on 28 January, he found waiting for him a letter dated 2 January, headed  "NOTICE OF DISCIPLINARY MEETING 29/1/91", from the group manager, Mr Williams.  It begins:

"Dear Nigel,
Before your return to Hemel Hempstead branch I expect you to attend the above meeting where I will be demanding answers to the following questions."

	Seven questions are set out, of which the first four concern the circumstances surrounding his holiday and related matters.  It is alleged in the letter that he took unauthorised leave knowing that approval from the group manager was essential but had not been sought or given.  It is alleged that on 20 December he had told Mr Williams that he had such approval from his previous group manager and that that was, in the terms of the letter, "a total lie".   It is alleged that he had overstayed his holiday entitlement by deleting from branch records evidence of leave already taken, and finally that, effectively, it was wrong to leave the branch for so long with inadequate supervision in any event.

	Those were the matters, and in particular the first three, which it seems clear were the grounds on which dismissal actually took place.  It is not irrelevant to note that the letter contained three other matters, one of which is perhaps of comparatively little significance in the context of the present appeal about a statement that was said to undermine the stores manager.  The final two would clearly have required, for proper investigation, a wide ranging consideration of his performance, because they relate to an allegation that branch morale under his management had sunk to an all-time low and that he had brought his branch, which had (it is alleged) considerable sales potential, into a state of financial loss.  In other words the whole commercial performance of his branch was raised.

	The letter continues:

"	I am far from satisfied with this catalogue of events and with a question mark hanging over your ability, I have had to bring in an experienced Relief Manager with sales and people skills to oversee and arrest the intolerable staff situation.

	At our meeting perhaps you would like to inform me in which direction you see your future."

	The meeting required by that letter took place on 29 December and lasted, as Mr Cousens told the Tribunal and they found, some ten minutes.  At the close of that meeting Mr Williams decided to dismiss Mr Cousens and that was confirmed by a letter of dismissal dated 30 January.

	As to the allegations in the letter of 2 January the Tribunal found, having heard Mr Cousens' explanation of the conversation between him and Mr Williams, and also having heard Mr Williams, that there was no lie on the part of Mr Cousens and that the truth of the matter was that there had been an honest misunderstanding between them as to what it was the conversation was about.  As to that, it is clear that Mr Cousens' explanation, as given to the Tribunal, had not been given at the interview.  

	The other important dispute of fact and allegation which the Tribunal had to consider was the alleged alteration of the holiday records.  Again, Mr Cousens gave the Tribunal an explanation which the Tribunal accepted, and there it seemed that in part an explanation may have been given in the interview but not to the same full extent.  As to both of those matters, the Tribunal found that if sufficient time had been allowed in the disciplinary interview Mr Cousens would have given the explanation which he gave to the Tribunal and it would have been accepted.

	The Tribunal's Reasons mention two respects in which the investigation by the employers was deficient and therefore unfair.  First, in regard to the length of the interview, that is to say its shortness in terms of time, and I have mentioned the fact that it lasted for just ten minutes on the evidence accepted by the Tribunal.  As to that Mr West, for the employers, refers to the finding that it was ten minutes and to the reference in paragraph 9 of the Industrial Tribunal's Reasons in which they say "Apart from this meeting being too short," and go on to deal with another matter.  He asks us to draw the conclusion that the Tribunal was simply relying on length in itself, the "ten-minute" fact, and submits that is not the right way to approach the matter.  He submits that the question the Tribunal should have asked itself is not whether the meeting was long or short but whether it was adequate to give the employee the opportunity to give his side of the story.  The Tribunal therefore erred in law in not asking themselves the question in that form, one factor in particular being the extent to which the employee has had advanced notice of the matters to be raised, and he says that in this case the allegations were put in a letter well in advance of the meeting. 

	We agree that mere length is not decisive, but before we can say that the Tribunal misdirected itself and erred in law we must in our view, have regard to a number of other matters.  One is the agenda for this meeting, which was before the Tribunal in the form of the letter of 2 January, and the Tribunal was perfectly entitled to take into account, and in our view must be assumed to have taken into account, not just the length of the meeting as a bare number of minutes but how it related to the matters which needed to be dealt with.  In that regard there were not only the specific allegations which led to the dismissal of Mr Cousens, there were also the more wide-ranging questions in the last two items of that letter.

	The second matter is the notice which Mr Cousens had - the time which he had to consider the matter.  Mr West says that the letter was written well in advance, and so it was, but that is not the point;  the situation facing Mr Cousens was that he arrived back after a journey from Australia (and we are entitled to take judicial notice of the fact that after an air journey of that length a person is unlikely to be in a position to act as promptly and efficiently as during the normal circumstances of life) and that the letter required a meeting the next day and required him to attend it without access to his place of work and to his records.

	The third matter which we consider we should take into account, before reaching any conclusions as to whether the Tribunal misdirected itself in law, is to look at the reasons they give to see whether length as such was indeed the only matter which they took into account, and in our view it is plain that it was not.  After accepting in paragraph 4 the evidence that the meeting took some ten minutes the Tribunal, in paragraph 6, say:

"Mr Cousens said that he did not have an adequate opportunity, in the short interview he had with Mr Williams, to explain this."

	- "this" being the matter of the conversation with Mr Williams and the earlier discussion with the previous group manager which he was referring to.   That was direct evidence, not just about the interview in terms of time elapsed, but in terms of adequacy for explanation, the very point which Mr West, rightly, says the Tribunal should have directed their minds to.  That, of course, is only a recital of the evidence but in paragraph 12 it is plain that the Tribunal accept that evidence and find as a fact that the opportunity was not adequate.  They say:

"..........he [Mr Williams] did not give an adequate opportunity for Mr Cousens to explain himself at the disciplinary interview."

	Finally, the Tribunal had anticipated that summary by an express finding to the same effect in paragraph 9 of their Reasons:

"9	........... We also do not think that Mr Williams gave Mr Cousens an adequate opportunity to explain at the disciplinary meeting."

	So, in our judgment, the Tribunal were not relying simply on counting time on the clock, they were also addressing their minds to the question whether there was an adequate opportunity for explanation.  

	This last point is important, in our judgment, not just in itself but also because Mr Cousens' credibility was absolutely crucial to the decision which the Tribunal had to reach.  It was not just a question of whether his explanation to them was acceptable as an account of what had happened, but even more importantly whether they believed him as to why he had not given that explanation at the interview.  They did believe him, and that was entirely a matter for them and not one into which we can go.  Credibility of witnesses is pre-eminently a matter for the Industrial Tribunal.

	Lastly we take into account the principle, clear in the authorities - and we do not need to cite them by name - that in the context of this jurisdiction Reasons by an Industrial Tribunal are just that;  they are summary reasons;  they do not have to be a discursive judgment that goes into every detail and a Tribunal is not, without good reason, to be assumed to have ignored facts simply because they are not all expressly set out.  We therefore reject the criticism that the Industrial Tribunal erred in law in the manner in which they dealt with the extent to which the disciplinary interview gave Mr Cousens an adequate opportunity to deal with the allegations against him.  

	The second criticism by Mr West is as to the finding by the Industrial Tribunal that the conduct of the interview did not conform with the Respondents' Disciplinary Rules, in that Mr Cousens was not given the opportunity to be accompanied by a colleague.  It is clear that he was not accompanied by anybody;  it is clear that the Disciplinary Rules did entitle him to be so, but Mr West says that those simple facts do not deal with this point in a proper way because the question is, did Mr Cousens wish to have a representative and, if so, was that wish refused by the employers?  He says that there is no finding by the Industrial Tribunal on either of those points, and he also refers to the fact that Mr Cousens was a branch manager, had been so for some time and as such was not only likely to be well acquainted with the Disciplinary Rules as they affected him;  he was also a person who had been responsible for the conduct of disciplinary action in regard to his subordinates.

	We take those points but we do not consider that this was a matter in which that passing reference by the Industrial Tribunal indicates that they gave undue weight or, indeed, any particular weight to that point as compared with what was plainly their major ground for finding the dismissal unfair, namely the fact that Mr Cousens had not had an adequate opportunity of giving his explanation.  In paragraph 12, where the Tribunal summarise the grounds on which they reached their conclusion, they do not mention this matter;  they mention only the lack of adequate opportunity.

	In any event, although Mr West's points about Mr Cousens' standing and experience are no doubt perfectly valid, it was equally open to the Tribunal to have regard in relation to this point, as well as to the other, the circumstances in which Mr Cousens found himself confronted on his arrival after a very long-distance return from holiday, with a letter requiring him to attend a disciplinary meeting the next day without, meanwhile, going back to his office.  We do not, therefore, consider that that criticism entitles us to find that the Industrial Tribunal erred in law.

	In conclusion, therefore, we find no error of law in the Reasons or the Decision of the Industrial Tribunal and must dismiss the appeal.

	The jurisdiction to award costs in this Appeal Tribunal is a sparing one and we are entitled to award costs in certain limited circumstances.  The one on which Mr Waters relies is that there was unreasonable conduct in bringing the relevant proceedings, that is to say, this appeal.  It has been held that that will be the case where the case is obviously hopeless.  

	We have dismissed the appeal, but we cannot say that it was obviously hopeless or so unarguable that it was unreasonable to bring it.  Insofar as the Appellants were seeking to gain any financial advantage (a) by bringing the appeal and (b) by delaying the assessing of quantum, the latter aspect has been dealt with by the Industrial Tribunal which assessed the quantum by awarding costs in that case, and from that date onwards the Applicant is entitled to interest on the award.  

	In all the circumstances we do not consider this is one of the exceptional cases where costs should be awarded.