Appeal No. EAT/953/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19th September 1995

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MRS R CHAPMAN

	MRS E HART

MR R UGRINIC 	APPELLANT

GODFREY DAVIS (LONDON) LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS S L BELGRAVE
(of Counsel)
Messrs Sri Kanth & Co
Solicitors
First Floor
604 High Road
Wembley
Middlesex
HA0 2AF

For the Respondents	MR PAUL NICHOLLS
(of Counsel)
Messrs Eversheds Phillips & Ruck
Solicitors
Fitzalan House
Fitzalan Road
Cardiff
CF2 1XZ

	MR JUSTICE TUCKER:   This is an employee's appeal from a decision of the Industrial Tribunal held at London (North) on three days in November 1993 and April 1994, whereby they dismissed the appellant's application that he had been unfairly dismissed by the respondents who are Godfrey Davis (London) Ltd.

	There had been an ex-parte preliminary hearing of the appeal held on 7th February 1995, whereby it was ordered that the appellant should file an amended notice of appeal by deleting certain grounds and by inserting the grounds on which it was submitted the Industrial Tribunal erred in law in their conclusion that the respondents had conducted a reasonable and fair investigation. 

	That amended notice is now before us, and it sets out the grounds of appeal, which are these, that the Industrial Tribunal erred in law in that:

		"a)	The Appellant complained about a number of matters which if proved could have been considered to be procedural irregularities such as to vitiate the disciplinary process. In each case the tribunal considered that the complaint had not been proved. At one stage of the decision the tribunal incorrectly states that Mr. Ugrinic actually had representation when he did not.

		b)	The tribunal failed to consider whether cumulatively these `minor' deficiencies in the process could have tainted the entire procedure with the result that the Appellant did not have a fair hearing.

		 (i) the Appellant's command of English;

		 (ii)	the Appellant was not allowed trade union representation;
		[with a reference to:]  ACAS Code of Practice paragraph 10.

		 (iii) failure to receive documents for the appeal hearing;

		 (iv)  the Appellant was not present at the reconstruction of the incident."

Those are the only grounds which have been argued before us and we wish to say that we have been much assisted in considering them by the submissions made by Counsel on each side and also by the very helpful skeleton arguments which they have presented.

	The appellant commenced working for the respondents on 2nd April 1980 and he had been working for them for over twelve years when he was dismissed following a disciplinary hearing on 18th September 1992 and an appeal hearing on 6th October 1992.

	He complains, as has been seen, of a number of matters which could have been considered procedural irregularities, so it is submitted, such as to vitiate the disciplinary process, and even if not individually sufficient, it is submitted that the cumulative effect was such that the process should be considered to have been tainted.

	The first matter is that relating to the appellant's command of English. The Tribunal found in paragraph 11 of their decision, that:

		"11	The Applicant is Serbian in origin and his command of English is not total."

They set out an example. Nevertheless, he has been in the United Kingdom for 25 years. The Tribunal heard him and saw him when he gave evidence before them. They made a finding as to this in paragraph 12 of their decision in these terms:

		"12	Similarly, at the appeal hearing held on 6 October 1992, Mr Hartill was satisfied that the Applicant had a sufficient command of English. The point has been mooted before us as well but we observed for ourselves at the hearing that the Applicant had not difficulty in understanding any question put to him and his replies showed him to have comprehended their meaning and to be tolerably fluent in the language, although not totally so. We are firmly of the opinion that the Applicant was not hindered at any stage either of the internal disciplinary proceedings conducted by the Respondent or at the hearing before this Tribunal by any lack of understanding of the English language. In our view, no unfairness resulted to him as a result of his less than complete fluency in the language."

That was a clear finding of fact made by the Tribunal, who had seen the appellant over a number of days and heard him, as we have observed, and we cannot possibly interfere with such a finding. This is not a ground, let it be said, upon which Ms Belgrave placed great reliance, and in our view, it is not substantiated.

	The second matter is that the appellant was not allowed Trade Union representation. There are two aspects to this matter; first, what did the respondents' own rules provide as to representation; and second, what in fact occurred at the two hearings conducted by them.

	The rules are to be found in the respondent's handbook at page 132 of our bundle where there is an extract from them, relating to disciplinary rules and procedures. At the conclusion of the first paragraph it is stated that: "you [i.e. the employee] will have the right to be accompanied by a fellow employee should you choose." Miss Belgrave submitted that the position was regulated by the National Joint Council Memorandum, to be found at page 128 of the bundle, but we disagree. It is clear as we think from that memorandum of agreement that as its title suggests it provides a procedure for the avoidance of disputes and related matters. It relates only to those matters and has, in our view, no application to disciplinary proceedings such as this. We take the view, that the rules which govern this proceeding are those set out in the employer's handbook. Therefore, we are of the opinion, and in particular it is the opinion of the Industrial members sitting with me which carries great weight, that the respondents were perfectly entitled to make the rules which they did, in particular the rule to which we have just referred relating to the accompaniment by a fellow employee should the workman wish it.

	We therefore agree with the finding made by the Industrial Tribunal at paragraph 15 of their decision as follows:

		"... A great many firms do not permit such representation at disciplinary hearings. they like the Respondent allow an employee charged with an industrial offence to be accompanied by a colleague. ..."

There is some confusion about whether the employee who is entitled to be present is there simply as a companion and possibly as a adviser, the equivalent of what in a court of law has come to be described as a "Mackenzie friend", or as a representative who is entitled to address the hearing on the appellant's behalf, as an advocate. 

	It is clear to us that the respondent's own rules envisaged and permitted only the former and not the latter status of the representative, and that that was perfectly legitimate. In other words, to describe the accompanying employee as a representative might be considered by some to be a misnomer if it were to imply that he or she was there able to address the court and in that sense, represent the workman before the Tribunal.

	The second question is what actually occurred at these hearings. Unfortunately, the Tribunal were mistaken in finding, as they did in the concluding sentence of paragraph 15 that: The Applicant was in fact accompanied by one, [meaning a colleague] Mr B. Taylor." It is clear from correspondence which has been placed before us that Mr B Taylor was the personnel manager employed by the respondents and was there to represent the respondents. The appellant himself was not represented nor was he accompanied at that disciplinary hearing. Had the matter ended there we would have been troubled by this mistake which the Tribunal made, but the matter does not end there. It is clear from notes of the disciplinary interview which are to found at page 42 of our bundle, that BT, who we presume to be Mr Brian Taylor himself, made to the appellant an offer of representation. Again we think that was perhaps a confusion of the functions of the accompanying employee, but representation would certainly include accompaniment. But the appellant is recorded as saying that he was: "unable to find anyone willing to assist."  The Tribunal found that those notes were accurate, a finding which cannot and is not challenged. We therefore feel that we can deduce from the appellant's answer that he was aware of his rights to have someone present to assist him, that he had attempted to find someone to accompany him, but that no one was willing to do so. We wondered at one stage whether the respondents should have offered an adjournment. If it had been the case that the appellant had said that no one was able to take time off work in order to accompany him then in that situation, in our view, the respondents might have been obliged to have offered an adjournment in order that the appellant could find someone to assist or accompany him. But that was not the situation, and we do not believe, in those circumstances that it was incumbent upon the respondents to go further.

	When the matter came to the appeal hearing, the appellant was accompanied by his daughter whom we deduce from the letters which she wrote is an articulate and intelligent lady, and who we are informed, works in a solicitors office. Having regard to all those factors, in our opinion the respondent discharged their obligation to provide an opportunity for the appellant to be accompanied in accordance with their own rules, and this ground fails not withstanding the mistaken finding by the Tribunal.

	The third ground relates to the failure on the part of the respondents to provide the documents to the appellant for the appeal hearing in good time. We note that this was not at the forefront of Ms Belgrave's submissions, nevertheless it is a matter which caused us some concern. We take the view that it is important that any documents relating to an appeal or to any other disciplinary hearing should be provided to an employee in good time before any hearing, so that he or she can consider them, and if possible, agree them.

	We agree with the Tribunal when they state at paragraph 24 of their decision, that:
"It is regrettable that he did not receive the documents in time for the hearing." Had there been any question of any inaccuracy in the documents which had gone uncorrected because of the appellant not having the opportunity to consider them in time, we should have been very troubled by this point. However, the Tribunal, found as follows:

		"Having heard the evidence of the Applicant and his daughter in this regard on the one hand and that of the Respondent's witnesses on the other, we prefer that evidence of the latter and consider that the notes do in fact contain an accurate record of what had occurred at the disciplinary hearing."

Having regard to that finding, we do not feel able to disturb what was, in essence, a matter for the Tribunal's judgment and evaluation, which was that no injustice had occurred. In the words of the Tribunal:

		"We do not, however, consider that the failure to provide him with them [the notes] before it was a substantial breach of a fair procedure, as he was well aware [they say] what had occurred at the disciplinary hearing and could have applied for an adjournment if seriously handicapped in presenting his case to Mr Hartill."

As we have made plain, had it been possible to challenge the finding that these notes were accurate, then we would have taken another view. But as it is, we do not find that that ground of appeal is substantiated.

	That leaves the fourth ground, which was that the appellant was not present at a reconstruction of the scene of the incident giving rise to his dismissal. Again, we agree with the Tribunal that is regrettable that he was not present. Ideally he should have been present in order to satisfy himself that the reconstruction was an accurate one. But the Tribunal found that the appellant was told:

		"... that he would be allowed to be present at such reconstruction but in the event appears not to have been."

The Tribunal did not consider that:

		"... it amounted to a substantial breach of a fair procedure, since Mr Hartill was merely holding the reconstruction in order to satisfy himself from what could be seen from the reception and the Applicant's presence was not necessary for that purpose."

Here again, in our view, it was for the Tribunal, as the industrial jury, to decide as a question of fact what was the effect of that situation, and what impact it had on the case. It was for them to evaluate the significance of that failure of the appellant to be present. We do not feel able to disturb their finding in that regard.

	Accordingly the four specific grounds of complaint fail. It remains to consider whether nevertheless taken cumulatively they still amounted to such material as could vitiate the decision of the Tribunal that a fair hearing was had, and in particular, the complaint that the Tribunal themselves did not consider that aspect of the matter.

	It seems to us that Mr Nicholls is right when he submits that the Tribunal certainly posed the correct test for themselves. They looked at the section of the Act, they looked at the relevant authority which is British Homes Stores Plc v Burchell [1980] ICR 303. They posed to themselves the tests propounded in that case, and they came to their answers. 

	It seems to us looking at in particular paragraph 30A of their decision (because there are two paragraphs so numbered) that the Tribunal do seem to be approaching the question in the round, and taking all proper matters into consideration. We take the view that even cumulatively it could not be said that the various defects were such as to vitiate the decision which was arrived at, and it seems to us that no proper criticism can be made of the Tribunal in their approach to the matters, save for the one regrettable mistake as to which we find there was in fact no significance. We bear in mind as to that, that although they mistakenly found that Mr Taylor was there accompanying the appellant, they did not find, as they could have done, that an offer had been made to him of representation and that at the appeal hearing at any rate he was accompanied by his daughter, so, in the event, no mischief occurred in our view, even as a result of that mistaken finding.

	I am sorry to say Ms Belgrave that despite your efforts for which we are much obliged that the appeal must be dismissed.