Appeal No.	 EAT/961/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 December 2000

Before
HIS HONOUR JUDGE J ALTMAN
MR A E R MANNERS
MR W MORRIS

MR A ALIE	APPELLANT

TELEWEST COMMUNICATIONS GROUP LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT 
IN PERSON	

JUDGE ALTMAN

1.	This is an Appeal from the decision of the Employment Tribunal sitting at London (South) on 3 days in May and June and on a further day in Chambers, no doubt for the Chairman and members to reach their decision.  The Employment Tribunal dismissed the applications of the Appellant relating to racial discrimination and victimisation and unfair dismissal.  The underlying case of the Appellant as he explained it to us is that he believes that his dismissal was contrived as a device to punish him and to deprive him of his employment.

2.	The matter comes before us by way of preliminary hearing, however, to determine whether this appeal contains an arguable point of law which will permit this case to go forward to be argued in full before the Employment Appeal Tribunal.  The history as found by the Employment Tribunal is that the Appellant began work for the Respondents on 31 March 1998 on a probationary basis.  At the end of May 1998 his employment was confirmed in that Mr Borsberry (one of the senior managers) decided to retain him.  Then there was a period in which he was away from work from September 1998 to the beginning of December 1998 due to an accident and then, apart from 1 day in January, he was away from 7 - 29 January 1999 through ill health.  

3.	The managers visited him on 20 January and were satisfied that he was unwell, they not having been able to contact him by telephone.  It was recorded that later that day he was seen at a night club, and explained that his friends had advised him to ‘sweat out’ his illness.  The matter was reported the next day to the Human Resources Section and the Appellant notified the Respondents that he would not be able to return to work until 25 January.  No action was taken in relation to that but shortly after, on 6 April, Mr Bacchus, his immediate manager, interviewed the Appellant about an allegation that on 29 March he had not been working but had falsified records to suggest that he had.  It was contended by the Respondents that householders had given statements that they had not received visits from the Appellant whereas he maintained that they had.  The Appellant was issued with a final written warning which was upheld on appeal.

4.	In his grounds of appeal numbers 2 and 3 the Appellant complains that the Tribunal were wrong to accept the evidence of a letter signed by a Mr Dave.  However, it appears that it was the employer who purported to act upon that letter; the letter from Mr Dave being on the face of it a description of a visit by that gentleman to the ladies concerned and their denial that they had been visited by the Appellant.

5.	In his notice of appeal the Appellant points out that he had always alleged that the letter was fabricated.  He complained that the Tribunal nonetheless accepted the letter without requiring Mr Dave to come to the Tribunal.  The Appellant contends that the Tribunal contradicted itself by saying first “Mr Alie contended in the course of the interview (with Mr Bacchus) as he has ever since that the evidence was fabricated” whilst also stating “It is not a matter which Mr Alie ever put forward to Mr Bacchus or at the subsequent internal appeal.”

6.	We have been told by the Appellant that he knew before the disciplinary hearing at the time from Mr Dave himself that this was a fabricated document but that he was unable and constrained from mentioning that in the disciplinary hearing because he recognised that Mr Dave’s own position as a family man would be endangered if the Appellant mentioned it.

7.	When the Employment Tribunal came to consider that matter in paragraphs 18 and 19 of their decision they said this:

“In the course of the interview (the Appellant) challenged the documents as being not “legal” because they lacked signatures of witnesses, and no one had accompanied Mr Dave on that visit.  He told the Tribunal that he has been informed since then by Mr Dave that Mr Dave did not in fact go to visit those premises on the Sunday concerned.  However, the Tribunal cannot act on that evidence, because it is not a matter which Mr Alie ever put forward to Mr Bacchus, or at the subsequent internal appeals.”

And the Tribunal recognised that nonetheless whilst not making reference to what Mr Dave had told him at his disciplinary interviews nonetheless he had always said and continued to say that the evidence was fabricated.

8.	It appears on what we are now told that there may be an error of fact in the finding of the Tribunal that the Appellant received his information from Mr Dave after the disciplinary hearing, for he has told us today that it was before.  From the point of view of the employer however, that makes no difference.  Feeling constrained and restricted as he did, Mr Alie did not mention to his employers at the disciplinary interview the information he had received from Mr Dave.  If there is an error, therefore, in the Tribunal’s findings, it seems to us to make no difference, for the Tribunal was looking not at what they now know, but at what the employer knew at the time of the warning; for after all it was the reasonableness of the employers’ actions that the Tribunal was concerned with.

9.	In cases of misconduct it is often said, and importantly said, that a Tribunal is not concerned with whether someone has actually done or committed the act of misconduct.  They are concerned in looking at whether the employer was reasonable in coming to that view.  And therefore, it seems to us, that the fact of the Appellant not being permitted to adduce the evidence before the Tribunal could not have made any difference.  We say that for the reasons put forward by the Tribunal itself, namely that that is that it was not a matter which Mr Alie ever put forward either to Mr Bacchus or at the subsequent internal proceedings.  And the Tribunal found as a fact that the outcome of the disciplinary proceedings was that Mr Bacchus decided that the disciplinary offence, that of falsifying records and misconduct, had been committed and that a final written warning was given as a result which would remain on the record for 6 months.

10.	That formed part of the background to the events which purportedly led to the dismissal.  But in so far as the Appellant criticises in his notice of appeal the failure of the Tribunal not to accept the evidence of Mr Dave, it seems to us that it cannot be argued that they erred in law because they were entitled to come to the view that they were looking not at their own knowledge but at the knowledge that was before the employers at the time.  

11.	In ground 3 of his notice of appeal the Appellant says that the Tribunal were wrong to assume that the letter was accurate without hearing evidence from the author of the document.  However, it seems to us that the Employment Tribunal did not form a judgment of its own as to whether or not Mr Dave’s letter was accurate.  They simply said that they were not going to consider that issue one way or the other because they were considering the information before the employer at the time the decision to give a final written warning was issued.  Accordingly it does seem to us that there is no point of law upon which it can be argued that the Employment Tribunal were in error in the approach which they there adopted.

12.	Following the final written warning an allegation was then made, first that the Appellant had visited 2 customers and received cash deposits from them but had subsequently failed to pass them on to the administrative section of the Respondents and secondly, that on 1 of those 2 occasions his visit to the customer had been at a time when he was purportedly away from work on sick leave.

13.	On 11 May there was a disciplinary interview, as it was described by the Employment Tribunal.  It was preceded by a letter which invited the Appellant to attend such a meeting in respect of “irregularities in respect of monies” and with some particulars of the 2 occasions and the 2 women householders concerned.

14.	The disciplinary interview took place at which the Respondents had before them letters from the householders.  The Appellant said, so it was recorded, that the money had been returned to them.  One of the women was visited to enquire if, as the Appellant alleged, the money had been returned, to her boyfriend.  It appears that the employer through those conducting the interview including particularly Mr Bacchus and Ms Cook, had a conflict of accounts as to what had happened to this money, which they resolved against the Appellant.

15.	The Employment Tribunal went on to consider what happened and said this in paragraph 26:

“The outcome of this disciplinary hearing was the dismissal of Mr Alie”  

It is to be pointed out that the interview itself had not been preceeded by any warning or notification to the Appellant that the outcome may be dismissal.  It was simply called a “disciplinary interview”.  Nor did the interview itself contain any part in which the Appellant was given an opportunity to address the risk of dismissal, because where that is not done there can be a twofold consequence.

16.	In such an event the employer is hampered in 2 ways in reaching the right decision.  First, he does not have the input of the employee when the employer decides what is a fair disciplinary penalty to impose and therefore may fail to take into account matters which he would otherwise wish to have been told of so as to deal fairly.  And secondly, of course, an employee who is not alive to the possible serious consequences of such an interview may not prepare for it or conduct it with quite the care and detail in answering allegations as he would otherwise do.

17.	The Employment Tribunal found that in fact the decision to dismiss could only be made by the area sales manager for the London area in this case Mr Borsberry and that therefore the outcome of that decision, or the decision to dismiss, could not formally be made by those who conducted that interview.  They prepared a report for Mr Borsberry.  The report itself seems to have been made, according to the finding of the Tribunal, by Mr Bacchus, but the Tribunal were unclear as to whether the recommendation for dismissal was made by Mr Bacchus or Ms Cook.

18.	They then explained the reasoning behind the recommendation on the basis of a receipt of a formal letter of complaint by a customer and a judgment that the Appellant had failed to follow company procedures in a deliberate act of falsification of records.  And that was relayed and adopted by Mr Borsberry.

19.	Mr Borsberry, having received the report, arranged for the Appellant to attend a meeting, eventually, on 24 May.  The Appellant may have gone to that meeting thinking that he was going to have some opportunity of contributing to the decision of Mr Borsberry before Mr Borsberry made his decision to dismiss.  But the Employment Tribunal recorded that the decision to dismiss was pre-determined by Mr Borsberry before the meeting and they found that it was not an opportunity for the Appellant to make any further representations which might persuade Mr Borsberry not to dismiss him.  This meeting then followed, in the event not take place whilst for a period, so it seems, the Appellant had been suspended on full pay.  However he was by then in poor health.  Nonetheless Mr Borsberry wrote a letter on 3 June in the following terms:

“I write to confirm the decision of the disciplinary hearing held on 11 May.  As you are aware, you are currently in receipt of a final written warning for falsifying records and misconduct.  A further allegation of falsifying paperwork on a customer order was made, and following the hearing, I feel this allegation has been substantiated.  Therefore, I am left with no alternative but to dismiss you from the position of Direct Sales Representative, effective 3 June 1999.”

The Appellant understandably complains in ground 1 of his notice of appeal of the matters to which we have already referred, pointing out that the summoning to the meeting made no mention of the possibility of dismissal.  And even at the end of the hearing the Appellant was not told of that possible outcome.

20.	The Appellant criticises the Tribunal for 2 things.  First he complains of their assumption that he knew about the possibility of dismissal and he says that that assumption should not have been made.  Secondly he criticises the decision that the defects were cured by the re-hearing, by way of appeal.  The Tribunal considered the appeal, which was conducted by Mr Lazarus on 18 June.  They refer to the note of that hearing.  They summarised it in paragraph 36.  They refer to the discussion that took place and the consideration of the arguments put forward by Mr Alie which was followed by a letter of 21 June confirming the dismissal in which, in effect, Mr Lazarus accepted the evidence which had given rise the original dismissal.

21.	The Employment Tribunal then considered the principles of law to apply and they reached their decision.  In paragraph 66 they relate to the very points of which the Appellant has complained saying that:

“The Tribunal has been troubled by the procedure which resulted in the dismissal, in that it involved Mr Bacchus and/or Ms Cook (it is not clear to us which) hearing what Mr Alie had to say and then that report becoming the basis of the decision by Mr Borsberry.”:

They then say that they have considered the provision of the ACAS Code of Practice and they conclude their findings in relation to the disciplinary hearing as follows:

“We note that the letter which summoned Mr Alie to the disciplinary hearing did not refer to the possibility of dismissal as an outcome, and at the end of that disciplinary hearing he was not told that it was a possible outcome; but he did not raise any queries on those points, and it appears to us that he understood the dismissal might be an outcome, since he was clearly aware that he was subject to a final written warning for other misconduct.”

22.	The Appellant says that the Tribunal were wrong to make that assumption.  The assumption they made was that, if a person has a final written warning for misconduct, it is implicit in that that the employee knows that if he is found to have committed other further misconduct he is at risk of dismissal.  And as this was a disciplinary interview the Tribunal concluded that the Appellant will have known from the existence of the warning, if for no other reason, that dismissal may follow.

23.	We have to ask ourselves whether the Tribunal were wrong in law to make that assumption.  The Appellant says they were in fact.  However, it seems to us that it was a conclusion which the evidence entitled them to reach and therefore we can see no error of law in their approach in that respect.

24.	In the skeleton argument that was presented to us, the breach of the ACAS Code was referred to.  But in cases of misconduct an employer may still act fairly even though he does not follow the ACAS Code to the letter and it is a matter for the Tribunal to determine on the facts of the particular case whether a fair procedure has been adopted.  We referred ourselves to the case of Clark v The Civil Aviation Authority [1991] IRLR 143 in relation to this and another matter to which I refer.  I only need to refer to the head note where the general principles governing dismissal procedures were set out by Mr Justice Wood in the following way:

“After due investigation before reaching any final decision a disciplinary hearing is necessary as is any appeal hearing.  The practice of such hearing will follow the rules of natural justice, which are really matters of fairness and common sense.  Although the procedure may vary from one situation to another, according to the industrial members, the order of what is required is to explain the purpose of the meeting; identify those present; if appropriate, arrange representation; inform the employee of the allegation or allegations being made; indicate the evidence whether in statement form or by the calling of witnesses; and allow the employee and representative to ask questions; ask whether the employee wishes any witnesses to be called; allow the employer or representative to explain and argue his case; listen to the argument from both sides upon the allegation and any possible consequence, including mitigation; ask the employee whether there is any further evidence or enquiry which he considers could help his case”

25.	In this case it is clear that the Appellant never had an opportunity to address the risk of dismissal.  And secondly, he never had the opportunity to make representations on the facts to the person who made the decision as to whether or not there should be a dismissal.  And the failure to give the Appellant the opportunity to address the risk of dismissal had the twofold consequence to which we have already referred.  But those were matters to which the Tribunal itself were clearly alive and which on the face of their decision did really trouble them; that was the word they used.  However, the Appeal then proceeded by way of a re-hearing, as the Tribunal found, and in Paragraph 68, the final paragraph of the reasons the Tribunal expresses their final conclusion in these words:

“In any event, even if there were grounds for criticisms of the fairness of the procedure which resulted in the dismissal, we would treat them as being cured by the re-hearing by Mr Lazarus, which addressed both procedural issues and the fundamental question of Mr Alie’s guilt or innocence.”  

26.	Reverting to the case of Clark to which I referred a few minutes ago Mr Justice Wood said this:

“However, there was here, and there have been in other cases, an Appeal which took place.  The law has crystalised over recent years, and although the procedure at the initial stages was clearly faulty and unfair, nevertheless, the situation when looked at in the round can be rectified if there is an effective full and proper hearing on Appeal, a re-hearing.  Therefore, in the present case it was important to the Industrial Tribunal to look at the Appeal before Mr Murphy, to see whether it could properly be so described, and looking at the fairness in the round to describe whether the earlier unfairness had been rectified.”

It seems to us that that is exactly what the Employment Tribunal did in this case.  They in fact found that this was a re-hearing and not a review.  They had already in paragraph 46 of their decision directed their attention to an unreported case of the Employment Appeal Tribunal on the way in which an Appeal can correct an otherwise unfair dismissal and it is clear to us that they reached a conclusion on the facts which it was open to them to reach.

27.	It is clear that life has dealt the Appellant in this case a number of heavy blows and we have the utmost sympathy with his present predicament.  It is also clear to us that he harbours a deep sense of grievance that he was unfairly treated, in the broadest sense of that word, by his employers and by particular employees whom he believes used his actions as a device and constructed a means to ensure that he was dismissed.  But our task in this hearing is to examine the decision of theTribunal and to come to a judgment as to whether it could be argued that in reaching the decision they did, namely that in effect whilst there were defects in the dismissal procedure which they were mindful of nonetheless such defects were cured because there was a re-hearing, there was any arguable error of law.

28.	Whilst the Appellant believes the Tribunal were wrong and got the facts wrong we have been unable to discern any arguable error of law in their approach to their decision and in those circumstances the Appeal must be dismissed at this stage.