Appeal No.	 EAT/372/96 &
		 EAT/730/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 25 February 1997

Before
HIS HONOUR JUDGE PETER CLARK
LORD GLADWIN OF CLEE CBE JP
MR K M HACK JP

MR M IQBAL	APPELLANT

THE OXFORD BUS CO	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D H PARRY
(Solicitor)
Messrs Mallam Lewis
21 Beaumont Street
Oxford
OX1 2NH	
For the Respondents	MR P OLDHAM
(of Counsel)
Messrs Herbert Mallam Gowers
West Way House
Elms Parade
Oxford
OX2 9LL	

	JUDGE PETER CLARK:     These appeals, brought by the Applicant, Mr Iqbal, first against the substantive decision of the Reading Industrial Tribunal dated 19 February 1996, dismissing his complaint of unfair dismissal and secondly, against a decision of the Chairman alone, dismissing his application for a review of the substantive decision on 10 June 1996, came before a division of the EAT presided over by Judge Hicks QC on 15 October 1996 by way of an ex parte preliminary hearing.  On that occasion the Appeal Tribunal allowed the appeal against the substantive Industrial Tribunal decision to proceed on ground (b) of the Notice of Appeal only and the appeal against the review decision also to proceed to a full appeal hearing.  A direction was then given that the Applicant lodge and serve on the Respondent an application for leave to adduce affidavit evidence in support of the allegations made in his application for a Review dated 29 February 1996.

The Issues

	It follows that the issues before us on this full appeal hearing are:

(1)  Ought we to admit fresh evidence submitted by the Applicant and on behalf of the Respondent?

(2)  Did the Tribunal err in concluding, in the substantive decision, that the Applicant was entitled to one and not two internal appeals against the decision to dismiss him?

(3)  Did the Chairman err in dismissing the application for a review summarily on the ground that it had no reasonable prospect of success?

	All three issues are inter-related.

The Facts

	The Applicant was employed by the Respondent as a bus driver from 17 February 1969 until his summary dismissal by Mr Moffatt, the Managing Director and General Manager of the Respondent, on 9 June 1995 for alleged gross misconduct.

	The circumstances leading to the dismissal were these:

“5  On 7 May 1995, a letter from the major shareholder containing offensive and defamatory material was received by Mr Moffatt.  A copy was sent to ... the Chairman of the holding company of the respondent.  Two further letters were received from Mr I. Hamilton of a company called Marketing Consultancy International. ...  No such company exists at the address given.  When the various letters were examined, Mr Moffatt and Mr Clarke [the Service Control Manager] noticed that there was a similarity in style and wording which indicated that the letters had been sent by the same person.  Further investigations were carried out, ... A report from a graphologist was obtained. ...”

	The result of that investigation was that the Respondent believed that the letters were written in a hand similar to that of the Applicant.

	On 6 June 1995 the Applicant was suspended.  On that occasion he was represented by his trade union representative, the Branch Secretary, Mr Alan Tyson.  

	On 9 June a disciplinary hearing was held before Mr Moffatt.  Following that hearing Mr Moffatt summarily dismissed the Applicant for gross misconduct.  At that stage he informed him of his right of appeal to Mr Alan Eatwell, also a Director of the Respondent.  The Applicant exercised that right of appeal and on 21 June Mr Eatwell heard the appeal and dismissed it.

The Industrial Tribunal Substantive Decision

(1)  The Industrial Tribunal found, on the balance of probabilities, that the Applicant did write the offending letters.  That of course is not the proper question.  The correct question is, “Did the Respondent honestly believe, on reasonable grounds, following reasonable investigation, that the Applicant had written the letters?”  However, it must follow from the Industrial Tribunal’s finding of fact that the Respondent did have an honest belief based on reasonable grounds that the Applicant had sent the letters; further the Tribunal expressly found that the Respondent had carried out sufficient enquiries, that is, an adequate investigation.

(2)  Procedurally, the Tribunal found that there was no objection taken at the time to Mr Moffatt chairing the original disciplinary meeting, at which the Applicant was again represented by Mr Tyson.  Further, no fault was found in the way in which the appeal was conducted by Mr Eatwell.  As to the appeal process, it was argued on behalf of the Applicant that he was entitled to two internal appeals under the disciplinary procedure agreed with the recognised union, the Transport & General Workers Union, however, the Tribunal accepted Mr Moffatt’s evidence that at a Central Consultative Committee Meeting attended by management and union representatives on 27 May 1994 it was agreed that there would in future be only one level of appeal, whereas previously there had been two.

(3)  Finally, the Tribunal found that dismissal fell within the range of reasonable responses open to the employer.  They concluded that the dismissal was fair.  

The Application for a Review

	Following promulgation of the substantive decision on 19 February 1996, the Applicant, through his Solicitor, applied for a review by letter dated 29 February.  In that letter it was said that the Applicant had just discovered that, on 8 November 1995 and only 19 days before the substantive hearing, Mr Alan Tyson was reinstated by Mr Moffatt, the Managing Director, as a result of a second appeal made by Mr Tyson against a decision to dismiss him summarily.

	It was alleged that Mr Tyson was originally dismissed by Mr Clarke on 2 November 1995.  He then appealed to Mr Kirk, the Operations Manager on 8 November; that appeal was dismissed.  But finally, he lodged a second appeal to Mr Moffatt.  That appeal was heard on the same day, 8 November and following that appeal Mr Tyson was reinstated.  

	It was said that, had the Applicant known about the case of Mr Tyson, then cross-examination would have been directed to Mr Moffatt in relation to the distinction between Mr Iqbal’s case, where only one appeal was allowed and Mr Tyson’s, where two were allowed.

The Review Decision

	The Chairman dismissed the application under Rule 11(5) of The Industrial Tribunal Rules of Procedure 1993 on the ground that it had no reasonable prospect of success.  His reasons for that decision are shortly stated as follows:

Reasons

“After the Applicant’s dismissal, he appealed.  The Appeal Hearing took place on 21 June 1995.  The Appeal was dismissed.  The Applicant did not take any further steps towards a further appeal.  At the Tribunal hearing, the Applicant claimed he was entitled to two Appeals.  The Respondent’s Disciplinary Agreement with the Transport and General Workers Union dated 27 May 1994 states there was only one level of Appeal.  The Applicant has not satisfied me that the new evidence would have made any difference to the outcome of the case.  The Application is dismissed.”

The Appeals

	Two preliminary matters arose for consideration.  First, whether we should admit further evidence in the appeals, consisting of an affidavit sworn by the Applicant on 17 November 1996 and one sworn by Mr Moffatt on behalf of the Respondent on 6 January 1997.  The second is whether we should entertain the appeal against the Review decision at all in the absence of extended reasons, which rule 3(1)(c) of the EAT Rules 1993 require to be lodged with the Notice of Appeal.  We are satisfied that these were summary and not extended reasons.

	We indicated to the parties that we would consider the affidavit material de bene esse and the review appeal on its merits before ruling on either point.  No objection was taken to that course.

	Having done so, we have concluded that the various issues raised before us come down to one central question.  Can the Respondent provide a satisfactory explanation for the apparently different treatment afforded to Mr Tyson, who was granted two appeals on 8 November 1995 when compared with Mr Iqbal, who was given only one appeal in June 1995?  In order to answer that question it is necessary to look at the chronology of events relating to the internal disciplinary procedure.
The Disciplinary Procedure

	The starting point is the written Disciplinary Agreement made between the Respondent and the T & GWU on 30 June 1993.  That provided for dismissal by the Assistant Operations Manager, with a right of appeal first to the Operations Manager and then, secondly to the Managing Director (or his appointed deputy).

	At a CCC (Central Consultative Committee) meeting held on 27 May 1994 Mr Moffatt proposed a change to the disciplinary procedure whereby in future there would be only one level of appeal from all disciplinary awards, and that would be to the Director and General Manager.  That proposal, we see from the minutes, was agreed in principle.

	On 6 March 1995, by a letter to the Union Branch Secretary, Mr Tyson, Mr Moffatt proposed a new procedure whereby the Operations Controller would normally handle most disciplinary matters.  Any appeals against dismissal were to go to the Operations Manager and then to the General Manager.  No agreement was reached at that stage.

	On 9 June 1995 the Applicant was dismissed by Mr Moffatt, and on 21 June his appeal was rejected by Mr Eatwell.

	On 5 July 1995, at a CCC meeting Mr Kirk, the Operations Manager, tabled a new draft disciplinary procedure.

	On 11 October 1995, the CCC agreed the new procedure in principle.  It provided for two levels of appeal.

	On 2 November Mr Tyson was dismissed allegedly for fighting.  On 8 November his appeal was dismissed by Mr Kirk.  However, later that day Mr Moffatt heard a further appeal by Mr Tyson and ordered his reinstatement.

	On 6 December 1995 the new disciplinary procedure was agreed, and formally came into effect on 1 January 1996.

The Explanation

	In his affidavit Mr Moffatt accepts that Mr Tyson was treated differently from Mr Iqbal.  His explanation is that whereas when Mr Iqbal was disciplined in June 1995 he was dealt with under the procedure agreed in principle on 27 May 1994, that is, a right to one appeal.  Mr Tyson was dealt with in November 1995 under the new procedure, allowing for two appeals which had been agreed in principle at the CCC meeting on 11 October 1995.

Conclusion

	It seems to us that the following consequences flow:

(1)  That the further evidence is not properly admissible either before this appeal tribunal or on an application for review before the Industrial Tribunal because it would probably not have an important influence on the result of the case (Wileman v Minilec Engineering Limited [1988] IRLR 144).  On the contrary, in our judgment the new material would tend to confirm rather than undermine the Tribunal’s finding of fact in paragraph 8 of the substantive decision reasons that the Applicant was entitled to only one appeal.

(2)  That the Chairman’s decision to refuse the application for review was plainly and unarguably right (Dobie v Burns International Security Services (UK) Ltd [1984] ICR 812), even if we were minded to allow the appeal against that decision to proceed under Rule 39(2) of the EAT Rules in the absence of extended reasons, see Wolesley Centers Ltd v Simmons [1994] ICR 503, and we found that there was an error of law on the part of the Chairman.  Accordingly we shall dismiss that appeal without deciding those two further issues.

(3)  The substantive appeal under paragraph 6(b) of the Notice of Appeal dated 28 March 1996 also fails.  It is an attack on the Tribunal’s finding that the Applicant was entitled to only one appeal.  There was evidence before the Tribunal at the hearing held on 27 November 1996 to support that finding, namely the oral evidence of Mr Moffatt and the minutes of the CCC meeting held on 27 May 1994.  Further, had the Applicant been aware of the treatment accorded to Mr Tyson on 8 November 1995 that would have made no difference to the finding in the light of the explanation which Mr Moffatt would have been able to give to the Tribunal in line with his subsequent affidavit evidence.

(4)  The EAT decision in Vauxhall Motors Ltd v Ghafoor [1993] ICR 376 may be distinguished on its facts.  In that case the employee had the right to two appeals, but his right to a second appeal ceased when the Works Convenor refused to support it.  Here, he had a right at the material time to only one appeal.  He exercised that right; the appeal was properly conducted by Mr Eatwell, so the Tribunal found and it failed. Further, the Tribunal’s findings are consistent with the House of Lords decision in West Midlands Co-operative Society v Tipton [1986] 1AER 513.

(5)  We should finally deal with Mr Parry’s submission that in the review decision the Chairman’s finding that following the appeal to Mr Eatwell the Applicant took no further steps towards a further appeal, was inconsistent with the full Tribunal’s findings at paragraph 8 of the substantive decision reasons.  Those findings, so far as material are these:

“8  ...  On 22 June the applicant wrote to Mr Moffatt asking him to reconsider the applicant’s reinstatement.  At the Tribunal hearing, the applicant claimed that he was entitled to two appeals, but on 27 May 1994 at a Central Consultative Committee Meeting the appeal process was amended so there would in future only be one level of appeal in all appropriate disciplinary awards which would be directly to the Director and General Manager who was Mr Moffatt.  He had powers to appoint an appropriate deputy to each of the appropriate cases.”

	We have seen the letter from Mr Iqbal dated 22 June 1995.  As the Tribunal found, it is a request to Mr Moffatt to reconsider the question of the Applicant’s reinstatement.  It is not a request for a second appeal to a person other than Mr Moffatt or Mr Eatwell.  We can see no inconsistency between the respective findings.

	For these reasons we shall dismiss both appeals.

___________________

Following our judgment in this case Mr Oldham, on behalf of the Respondent, makes an application for costs.  He puts it in this way.

	Although on 15 October 1996, a division of this Tribunal allowed the matter to proceed to a full hearing, that leave was coupled with a direction that Mr Iqbal should apply for leave to adduce evidence before the Appeal Tribunal.

	Mr Iqbal himself swore and lodged an affidavit and in reply Mr Moffatt swore his affidavit on 6 January 1997.  Mr Oldham realistically accepts that he is unable to claim costs prior to the affidavit being lodged by the Respondent.  However, he says that once that affidavit was in, the Applicant ought to have reconsidered the position and for him to continue with this appeal to a hearing today, was unreasonable or unnecessary within the meaning of Rule 34(1) of the EAT Rules 1993.

	That submission gains further force when we are told by Mr Parry that whereas legal aid was initially granted for this appeal, on 4 February 1997 the Legal Aid Certificate was discharged on the grounds that the appeal had no reasonable prospect of success.

	Had the matter ended there we would have ordered costs in this case, limited to the costs of today.  However, we felt it right to enquire into the Applicant’s means.  Mr Parry tells us that the Applicant has not worked since his dismissal by the Respondent in June 1995.  He is now aged 56 years and he has been on Income Support since that time and to the best of Mr Parry’s knowledge remains on Income Support.

	In those circumstances and for that reason alone we shall not make an order for costs in this case.