Appeal No. EAT/0893/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 30 November 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR D J JENKINS MBE
MR A E R MANNERS

MR W F S STODART	APPELLANT

F J BLISSETT & CO LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	THE APPELLANT
In Person	

JUDGE PETER CLARK

1.	This is an appeal by Mr Stodart, the Applicant before the London (Central) Employment Tribunal, against that Employment Tribunal’s decision, promulgated with Extended Reasons on 6 June 2001, dismissing his complaint of unfair dismissal brought against his former employer, the Respondent F J Blissett & Co Ltd.

2.	The Appellant commenced his employment with the Respondent on 14 October 1991.  At the time of his dismissal on grounds of alleged gross misconduct on 8 August 2000 he was employed as a quality controller at the bindery in the Respondent’s book and journal binding business.

3.	It appears that the Appellant was much exercised by the volume at which radios were played in the workplace.  He had complained to higher management, but the Respondent’s attitude was that radios were played at a reasonable volume.  He did not accept that view.

4.	On 19 July 2000 he made a complaint about a radio being played on the shop floor to Mr Gary Blissett, the Managing Director.  Mr Blissett rejected the complaint whereupon the Appellant raised his voice, wagged his finger at him and told him that he was biased and never listened to him so the Tribunal found.  As a result Mr Blissett threatened the Appellant with suspension and asked Ms Hunt, the Personal Assistant to a fellow director, Mr Walton, to call the police.  When Ms Hunt asked the Appellant to calm down and be quiet as she was answering a telephone call he became aggressive and threatening towards her, leaning across her desk and inviting her to call the police as Mr Blissett had instructed.  Eventually the situation calmed down and the Appellant returned to work.

5.	The next day, 20 July, the Appellant became involved in an argument with a colleague over a fan on the shop floor.  Mr Walton this time intervened and the Appellant exhibited aggressive behaviour towards him.  Mr Walton asked Ms Hunt to telephone the police, and again the Appellant became aggressive towards her.  It ended up with the Appellant leaning over her desk, putting his face directly into hers and shouting and screaming at her, spitting saliva into her face.  Mr Walton intervened and asked the Appellant to leave the office.  The police were called this time and only after he was warned that he would be arrested for breach of the peace did the Appellant leave the premises with some reluctance.  Ms Hunt was so shaken by this further incident that she told Mr Blissett that she would have to consider her position with the company.  The Appellant was suspended under the Respondent’s disciplinary procedure.  Mr Blissett carried out an investigation, which included taking witness statements from employees.  The Appellant was charged with gross misconduct in respect of (1) his behaviour towards Ms Hunt on 19 and 20 July and (2) his refusal to obey a reasonable instruction to leave the premises when asked to do so.  The first disciplinary hearing before Mr Walton was adjourned, after the Appellant turned up late, so that he could read the witness statements.  It was rescheduled for 4 August.  The Appellant was told that he could be accompanied by a work colleague.

6.	On 4 August he attended with his wife.  The Employment Tribunal found that he was given every opportunity to state his case.  That was that everybody was lying and he was not aggressive or intimidating to anyone, a stance which he continues to adopt before us today.  Mr Walton noted that the Appellant was entirely unrepentant.  He considered that the offences were made out and decided that he must choose between the penalties of a final written warning and dismissal.  He chose the latter cause because of the Appellant’s lack of remorse or apology.  He feared that the behaviour would be repeated in the future.  In these circumstances he summarily dismissed the Appellant.

7.	The Appellant appealed to Mr Blissett.  An appeal hearing took place on 22 September .  After 2 hours of the hearing the Appellant walked out.  Having considered the matter Mr Blissett dismissed the appeal.

8.	On these facts the Employment Tribunal found that the Respondent had carried out a proper procedure, bearing in mind the limited resources of this small company.  The Burchell test, whether the employer had reasonable grounds based on a reasonable investigation for a genuine belief that misconduct had taken place was passed in the view of the Employment Tribunal.  The sanction of dismissal was a reasonable one.  The dismissal was fair.

9.	In this appeal Mr Stodart takes essentially 3 points in support of his contention that the Employment Tribunal erred in law.  First, he submits that the Employment Tribunal’s conclusion that dismissal was a fair sanction in this case was perverse bearing in mind what Mr Stodart describes as minor incident and his length of service with the company.  He submits that no reasonable employer would have imposed a sanction more severe than a final written warning. 

10.	We cannot accept that submission on the basis of the facts as found.  It seems to us that this behaviour which as we have indicated to Mr Stodart, on the tribunal’s findings of fact took place, plainly merited dismissal.  Secondly, he submits that there was a procedural unfairness in that the appeal hearing took place before Mr Blissett who had investigated the matter originally.  We have in mind decisions of this Employment Appeal Tribunal in Rowe v Radio  Rentals Ltd [1982] IRLR 177 and Byrne v BOC Ltd [1992] IRLR 505.  It may be in extreme cases that the appeals manager is so involved in initial investigation as to render the dismissal unfair.  See Byrne.
11.	However in this case the Employment Tribunal considered that matter carefully and at paragraph 5(i) of their reasons they said this:

“For a small company, with limited resources, we find that the process was admirable, and the investigation was separated from the disciplinary hearing as far as it could be, and also the disciplinary hearing separated from the appeal.”

It seems to us that this is one of those cases identified by Brown Wilkinson J in Rowe where it would be wrong to equate the disciplinary procedure in a small business, we are told by Mr Stodart there were about 45 - 50 employees in the business, with questions of a fair trial now live as a result of the passing of the Human Rights 1998.  In these circumstances again we are unable to accept that submission.

11.	Finally he submits that the investigation carried out by the Respondent was unfair.  In particular he says that Mr Walton heard his side of the story but did not speak to the radio user whose actions Mr Stodart says led to the initial problems.  Further he submits that there was no proper investigation carried out by Mr Blissett.  These matters were again carefully considered by the Employment Tribunal who found that there was overwhelming evidence of the Appellant’s misconduct before the 2 managers following a reasonable investigation.  It seems to us that that was a question of fact for the Employment Tribunal.  Our powers are limited to correcting errors of law and accordingly we shall not interfere with that finding.

12.	Finally, Mr Stodart was anxious to tell us about the background to this matter and the problems that he had during the course of his employment.  We sought to point out that it is not for us to retry the facts and accordingly this appeal must be dismissed.