Appeal No.	 EAT/303/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 July 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR D J HODGKINS CB
MS B SWITZER

MR G KING	APPELLANT

BRITISH AIRWAYS PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON	

JUDGE CLARK:	The Appellant, Mr King, was one of two loaders employed by the Respondent, British Airways Plc, at Heathrow Airport, whose complaints of unfair dismissal were dismissed by an Employment Tribunal sitting at London South on 7-10 December 1998.  The other was Mr Cawkwell.  The Tribunal’s decision was promulgated with extended reasons on 29 December 1998.

1	The short facts of Mr King’s case were that he was seen on a video recording handling baggage inappropriately.  In particular, he received a scarf, removed from an item of passenger baggage by Mr Cawkwell, and he was seen moving baggage into an area out of sight of the cameras where that baggage need not be.  

2	The Respondent deployed its full disciplinary procedure during which the Appellant, a former trade union representative, was himself represented by Mr Fisher, a union shop steward.  At the first stage, he was dismissed by Mr Steven, Loading Manager.  His first stage appeal was heard by Mr Kujala, General Manager and his second stage appeal was heard by Valerie Scoular, Director Customer Services.  Both appeals were dismissed.

3	In finding that Mr King’s dismissal on the grounds of his conduct was fair, the Tribunal rejected the following arguments, among others, advanced by Mr King:

1)	They found that he had not been differently treated because of his history of trade union activity as a shop steward
2)	That there was no disparity of treatment between his case and that of others who had been dealt with by action short of dismissal, in particular, Mr Connelly.  They were not truly comparable cases, so the Tribunal found (see Paul v East Surrey District Health Authority (1995) IRLR 305.
3)	That there was nothing untoward in Mr Steven and Mr Fisher meeting over the weekend to talk about the Appellant’s case before Mr Steven reached his conclusion in the disciplinary.
4)	That at the disciplinary hearing before Mr Steven, he had a letter on his desk from a Line Manager, Mr Peter Church, which the Appellant read upside down implicating the Appellant in a serious offence.  He claimed this was designed to intimidate him; however it appears that no mention of that letter was made by the Appellant or his representative throughout the three stage disciplinary process.

The Tribunal concluded that the Respondent had carried out an exemplary disciplinary process; the threefold Burchell test was passed; the sanction of dismissal was reasonable in all the circumstances.

4	This appeal focuses on certain procedural matters which arose during the course of the hearing.  First, Mr King tells us that at a directions hearing prior to this substantive hearing, he asked, as the then Chairman was rising, for a copy of his personal file kept by the Respondent and also a video in the case of Mr Connelly.  He says that a week before the case he was sent a copy of that video although it was very difficult to make out what was happening.  

5	So far as the personal file is concerned, British Airways said that they could not find it.  Ultimately, the Respondent’s solicitors, by a letter of 14 October 1998, sent to Mr King what were described as papers that had been found on his file.  Copies were enclosed, and it is Mr King’s case that that was a very small part of his full personal file.  

6	At the substantive hearing the first two days were occupied with the case of Mr Cawkwell.  On the third day, when his case began, Mr King tells us that he asked the Tribunal for a direction in relation to his full personal file.  The Respondents replied that they had disclosed all that they had and they could find no more documents.  It appears that the Tribunal accepted what the Respondent told them about the file.  

7	In the course of his submissions at the close of the evidence, we see from paragraph 59 of the Tribunal’s reasons, Mr King submitted that the absence of the majority of the documentation from his personal file was further evidence that something was amiss.  Dealing with this first ground of appeal it seems to us that it was within the proper exercise of the Tribunal’s discretion to conclude that the Respondent’s were being truthful when they said that they could not find any further documents that formed part of his personal file.  That was a matter for them, it is not something with which we, with our limited jurisdiction to correct errors of law, can ourselves become involved in.  

8	His second complaint in the appeal relates to the letter from his Line Manager, Mr Church, which he says was on Mr Steven’s table when the disciplinary hearing took place on 14 March 1997.  It seems that Mr Steven initially gave evidence and was cross-examined by Mr King on the third day of the hearing.  On the morning of the fourth day of the hearing, 10 December 1998, Mr King applied to recall Mr Steven, in order to put to him that the Church letter was on his table; that that letter falsely implicated Mr King in a serious criminal offence relating to the theft of computer equipment in respect of which Mr King was arrested, although no conviction ensued, and that this letter was used to intimidate Mr King and indeed influence Mr Steven in his ultimate confusion.  

9	The Tribunal dealt with the application to recall Mr Steven in paragraph 38 of their reasons.  They considered that it was not in the interests of justice for Mr Steven to be recalled in circumstances where, among other things, Mr Kujala, the first stage appeal officer, had been released and was then out of the country and might have had to be recalled to deal with any further matters put to Mr Steven.  

10	Again, it seems to us that that is the sort of case management which is essentially a matter for the Employment Tribunal.  We can see no error of law in their approach to the application to recall Mr Steven.  

11	Finally, Mr King submits that it was quite wrong for his representative, Mr Fisher, to meet with Mr Steven over the weekend of the disciplinary proceedings and to discuss his case without Mr King’s knowledge.  The Tribunal considered that submission and rejected it for the reasons given at paragraph 66 of their reasons.  Again we can see no fault in the Tribunal’s approach.  They concluded that that meeting, which was at the behest of Mr Fisher, Mr King’s representative, did not undermine the fairness of the disciplinary procedure that was applied in this case by the Respondent.  

12	In all these circumstances, having considered the way in which Mr King puts his case, we have reached the conclusion that it discloses no arguable point of law and in those circumstances it must be dismissed.