Appeal No. EAT/1192/01 & EAT/1193/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 April 2002

Before
HIS HONOUR JUDGE J R REID QC
MR K EDMONDSON JP
MRS J M MATTHIAS

BRITISH AIRWAYS HOLIDAYS	APPELLANT

MRS C BOAKYE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR E SUTER
(Representative)
Industrial Relations Workshop
3 Park Drive
Weybridge Park
Surrey 
KT13 8UU	

JUDGE J R REID QC:
1.	This is an appeal from a decision of an Employment Tribunal held at Brighton.  The decision followed a hearing conducted on 25 September 2000 and 1 March 2001 and was apparently not promulgated until 31 July of 2001.  By that decision the Tribunal held that Mrs Boakye, the Applicant had been unfairly dismissed by the Respondent, British Airways Holidays, but that any compensatory award payable to her should be reduced by 75%.  

2.	Against that decision British Airways appeals.  The proposed amended notice of appeal identifies nine grounds on which it is said that the decision of the Tribunal was in error.  Before turning to those, I should say a little about the facts of the matter.

3.	Mrs Boakye was a customer services representative of British Airways Holidays, she was based at Gatwick at their welcome desk.  She had worked for them since September 1991.  At the time of her dismissal her work basically involved meeting and greeting passengers arriving at the airport, providing them with assistance and information and offering further services provided by British Airways Holidays.  Generally speaking she had a good disciplinary record.  

4.	The first major problem occurred on 15 February 2000 when it was discovered that £10 was missing from a petty cash box at the welcome desk.  There was an investigation; it appeared at that stage that the Applicant, Mrs Boakye, had borrowed the money.  The result of that was a disciplinary hearing and the company being satisfied that she had not intended to steal but had adopted an unacceptable practice in borrowing the money from the tin, gave her a final warning. That was done at a disciplinary hearing on 23 February.  The next day there was a return-to-work interview and over the following few days there were a number of occasions when Mrs Boakye was late for work.  

5.	On 3 March, Miss Davis, the Welcome Desk Manager was at Gatwick.  As we understand it, she is not necessarily always at Gatwick as the manager flips form place to place where there are welcome desks of the Appellant.  

6.	She decided to, unseen, monitor the meet and greet desk and her evidence was that between 9 am and 10.15 am Mrs Boakye was at the desk but didn’t move from her chair and in essence did nothing at all.  At the end of the period she approached Mrs Boakye and asked if she was alright or whether anything was bothering her or if there was anything in her personal life that was causing difficulty, but Mrs Boakye did not volunteer any problems or difficulties.  As a result of that there was a further disciplinary hearing on 7 March, to which Mrs Boakye was summoned on 6 March.  The nature of the disciplinary interview didn’t identify the particular problem beyond referring to; “conduct subsequent to the disciplinary hearing held on 23 February,” nor did it warn her that dismissal might result, although it is clear that Mrs Boakye appreciated that this was a possibility.  At that hearing Mrs Boakye put forward a number of reasons for her lateness and for an apparent attempt on one occasion to clock herself in some half hour earlier than in fact she arrived.  So far as 3 March was concerned she said that her failure to meet and greet was due to being very tired, having had to sit up all night at a relative’s wake.

7.	She did not, apparently, introduce that excuse at that time but at that stage said that she had carried out her meet and greet duties.  She also made an excuse that her lateness was due to her alarm clock not going off.  It appears that when one conflates all various matters, her final position is that the death of her father’s younger brother, i.e. her uncle, in Ghana, had resulted in her having to attend a wake and apparently to do some cooking for that wake.  As a result of that she returned home at 4 am that morning.  When she got home, she saw a light bulb was out.  She did not change it, thinking it was simply a light bulb that was out but went to bed setting her alarm.  She didn’t appreciate that in fact the main fuse had been tripped.  The result of that was that her alarm did not go off.  The result of that was that she was late.  She then did indeed, according to her, carry out some meet and greet duties but had to return to the meet and greet desk and thereafter had been too tired to leave it again and it was during that period that she was under observation.  

8.	Whether or not that is an accurate account of her movements and of the reasons for them is not for us to say, but the upshot of it was that at the disciplinary meeting she raised various points and the meeting was adjourned.  Mrs Jimirez, who conducted the meeting with a colleague, discussed the position and as a result determined to dismiss her summarily for gross misconduct.  That decision was communicated on telephone on 10 March, and by a dismissal letter sent out on 13 March, which set out the reasons and stated that her explanations were found to be unacceptable and/or inconsistent.  The letter informed her of her right to appeal and that the appeal should be directed towards a Mrs Balcombe and had to be made within seven days.  She did exercise her right to appeal by a letter dated 18 March, sent by special delivery.  It was delivered to the Respondents within time, reaching them on 21 March.  The letter, for whatever reason, went astray within the Appellant Company and did not re-emerge until a copy of it was provided by Mrs Boakye’s representatives to the Company’s representatives.  That of course happened after the claim had been brought.  

9.	The result of the failure of the company to have adequate systems in place to receive and properly deal with the letter was that Mrs Boakye was deprived of the right appeal given to her.  Indeed she was deprived of two rights of appeal.  In the company’s handbook under section B which are described surprisingly as “non-contractual matters.”  A disciplinary appeal procedure is set out:

“Employees may appeal against any disciplinary decision which has been made against them (other than a verbal warning) by using the following procedure.
(a)	The appeal must be lodged within 7 days of receipt of written confirmation of the decision from which you are appealing.
(c)	…Appeal hearings will normally be held within 7 days of receipt of your written appeal.
(e)		Having review all the evidence, the Manager conducting the appeal will reach a decision and inform the employee of the decision reached within 7 days.
(g)	Should the appeal be against the dismissal and the appeal hearing is not resolved to your satisfaction, you may appeal to the next level of authority.  The decision at this level is final.
Note:  An appeal hearing is not intended to repeat the detailed investigation of the disciplinary procedure, but to focus on specific factors which the employee feels have received insufficient consideration (e.g. extenuating circumstances, new evidence comes to light)”.  

10.	It was submitted on behalf of the Appellant that this was non-contractual as section B of the Handbook says and therefore, so far as we can make out the submission, of no real moment.  Clearly, however, whether or not this was a contractual provision, the employee, Mrs Boakye was given the legitimate expectation that the company would comply with the disciplinary procedure set out in its handbook and to which express attention had been drawn in the letter of dismissal.  

11.	The Tribunal had before it evidence from Mrs Balcombe, the lady to whom the appeal should have been made, that if it had gone ahead, she would, taking it shortly, have dismissed the appeal.  The Employment Tribunal held that the misconduct was not gross misconduct but it was misconduct on the basis of which, given the significant pattern of lateness, the apparent attempt to backdate her clocking in time on one occasion and the fact that she had done little or nothing on the meet and greet desk on the day when she was under observation, that there was a genuine belief on reasonable grounds that Mrs Boakye had been guilty of misconduct, they also held that the matter was investigated properly and that the decision to dismiss fell well within range of reasonable responses, particularly in the light of the final warning, given only a matter of a few days before.  The Tribunal went on to hold that the dismissal was unfair because the appeal procedure was aborted as a result of the Respondent having failed to deal with the properly served letter of appeal.  They were not much taken with Mrs Balcombe’s evidence which they described as not being tremendously persuasive and they pointed out, had there been an appeal hearing, the Applicant might have been in a better position to put forward a more attractive case.  They took the view that in the circumstances the dismissal was unfair, the Applicant was entitled to be paid in lieu of notice because she was to be dismissed for misconduct rather than instantly dismissed for gross misconduct, and that she was entitled to be paid her basic award in full.  So far as compensatory award was concerned, this was a case where applying the well known principal set out in the case of Polkey v. A.E Dayton there should be a deduction to take account of the very significant chance that at the conclusion of the appeal procedure she would have been fairly dismissed and that reduction should be one of 75%.  

12.	The grounds of appeal to which I referred earlier, are first that the Tribunal was perverse in finding that the Applicant’s dismissal for gross misconduct was in breach of her contract of employment.  It is said that her employment was in a position of trust.  That was clearly a matter argued before the Tribunal and one which appears not to have found favour with them.  In our judgment, it is easy to see why it didn’t find favour with them.  Here was a representative meeting and greeting, it is true that in minor aspects, dealing with the petty cash, she was in a position of trust, but to suggest that what she was doing in arriving late was a breach of trust and suggest that in failing to work as she ought to have done, she was again in breach of trust,   it seems to us to be submissions which the Tribunal rightly did not accede to.  

13.	In our judgment it cannot be said that the decision of the Tribunal was perverse in holding that she was dismissed for ordinary misconduct, nor can it be said it was perverse in failing to find that she was employed in a position of trust.  The third ground of appeal is that the decision was perverse in finding the Applicant’s dismissal was unfair.  That ground is manifestly untenable.

14.	The Appellant had in place a detailed method of appeal involving two tiers of appeal.  As a result of the Appellant’s failure to monitor or deal with its incoming mail properly, the Applicant, Mrs Boakye was deprived of both her rights of appeal.  The dismissal was therefore manifested procedurally unfair.  The next ground of appeal is that the decision was perverse in finding that the Applicant was entitled to any compensation arising from her unfair dismissal, as I have indicated the Tribunal awarded her the basic award plus 25% of her compensatory award.  The unfairness of the dismissal arose entirely from the failure of the Appellant to apply its own dismissal procedure properly and we can see no error of law in the Tribunal’s decision to allow the whole of the basic award.  So far as the compensatory element, the Tribunal did make a very substantial reduction.  

15.	A further ground, ground F, asks us to hold that the Tribunal’s decision was perverse in finding that a 25% chance that the Applicant would have been kept in employment had the appeal of Mrs Balcombe been heard.  The Tribunal had held that there was a very substantial chance that she would have been dismissed at the end of the day and that is why they reduce the compensatory award by 75%.  It is noticeable the ground of appeal makes no reference to the prospect of her retaining her employment on an appeal beyond Mrs Balcombe.  In our judgment, this was essentially a matter of fact for the Tribunal.  The Tribunal was entitled to make the judgment it did and it cannot be said that it displays any error of law or any element of perversity in the decision which it reached.  

16.	A separate criticism is made of the fact that it is said the Tribunal made at the first decision that Sally Balcombe’s evidence was not credible.  That ground of appeal is without merit.  The Tribunal did not find that Sally Balcombe’s evidence was not credible.  What it said was this:

“The hypothetical evidence given by Mrs Balcombe of what she would have done had an appeal gone ahead is not tremendously persuasive.”   It was a finding which was inevitable in our judgment.  Either Mrs Balcombe, in saying that the appeal would have failed, was saying that she had prejudged the appeal before the hearing, which would itself of course have vitiated that decision, or she was expressing a view as to what might have happened in the absence of having heard the things which would have been said to her by Mrs Boakye or a representative whom she was entitled to bring along at that appeal.  In those circumstances it is hardly surprising that her evidence as to what would have happened at the outcome of the appeal was rightly described as not being tremendously persuasive.  

17.	The next matter raised is that the Tribunal erred in law in failing to consider properly or at all the question of the Applicant’s contribution to her dismissal or reduction in compensation to be made therefore.  They did consider the question as appeared from a letter written on behalf of the Tribunal following a refusal to review.  They considered whether there should be a reduction and they reduced the compensatory award by 75%.  So far as the basic award was concerned they were perfectly entitled as a matter of law not to reduce it.  There was no error of law in that.  A separate head of appeal relates to the refusal of review.  That really takes matters no further, but in our judgment the Tribunal was perfectly right to say that the application for review should be refused on the ground that it had no reasonable prospect of success.  Finally it was said that the Tribunal erred in law in failing properly to apply the test in section 98 sub-section 4 of the Employment Rights Act.  There is nothing either in the decision or in the skeleton argument or in the lengthy oral submissions that have been made to us today which gave any weight to that submission.  
18.	In those circumstances it does not seem to us that there is any basis on which this matter should go any further and the appeal will be dismissed at this stage.