Appeal No. EAT/1289/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 April 2002

Before
HIS HONOUR JUDGE J R REID QC
MR J R CROSBY
MR P DAWSON OBE

LOOKERS MOTORS LIMITED T/A LOOKERS OLDHAM	APPELLANT

MR KEITH HALLIDAY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T LINDEN 
(of Counsel)
Instructed by:
Messrs Beachcroft 
Wansbroughs Solicitors
St Ann's House
St Ann Street
Manchester
M2 7LP	

JUDGE J R REID:
1.	This is an appeal by the employer against a decision of an Employment Tribunal held at Manchester on 6 June and 6 July of last year, the decision being sent to the parties on 20 September last year.  By that decision the Tribunal held that the Applicant before them, Mr Halliday, had been unfairly dismissed for procedural reasons and that had a fair procedure been adopted there would have been a 75% chance that he would not have been dismissed at all.

2.	The parties had agreed the amount of compensation on the basis of that decision though clearly that was subject to the decision remaining undisturbed.  The points which are taken on behalf of the Appellant are these.  First it is said that the Tribunal was in error because they wrongly held that the disciplinary hearing was significantly and procedurally defective because of the employee’s perception that Mr Tieman who conducted the disciplinary procedure was biased against him.  They made no finding of actual bias and in our judgment it is at least arguable that where there is only a perception of bias, that perception cannot render the disciplinary proceedings unfair.  

3.	The second ground urged before us is that on the appeal from Mr Tieman’s decision, the Tribunal were wrong in saying that there were procedural defects in the appeal.  The Tribunal appear to have taken the view that the disciplinary procedures required that the person conducting the appeal should be of a superior grade to the person who made the initial decision.  In fact the rules require that to be the case only where that is practicable.  In this case, although Mr Whiting who conducted the appeal was of the same grade, he was substantially senior in service to Mr Tieman who conducted the initial hearing and was based elsewhere.  The Tribunal appears, at least arguably, to have misunderstood the disciplinary procedure and accordingly the argument that there is a properly arguable point that their finding the appeal was procedurally flawed for this reason is incorrect.   

4.	Thirdly, it is said that the Tribunal was in error and indeed perverse when criticising the fact that Mr Whiting attended the appeal procedure and was asked by Mr Tieman what his comments were.  It is at least arguable that there was nothing whatsoever wrong with this.  Mr Whiting had conducted the original disciplinary hearing in an inquisitorial way and on the appeal, as happens in a great many cases, he as the person having conducted the original disciplinary proceeding was present to retail facts to the appeal body and to answer questions about it.  It is at least arguable that there was nothing whatever improper in Mr Whiting asking Mr Tieman for his response to the Applicant’s complaint that dismissal was too harsh a punishment.  The Appellants would also seek to argue that the Tribunal, despite their assertions to the contrary, substituted their own view as to the question of the reasonable range of responses when they decided that the dismissal was rendered unfair.  The Tribunal undoubtedly took the view that the decision was a very harsh one and though they expressly say that they were aware that they should not substitute their own view, it seems to us that it is possible to argue that they nonetheless did substitute their own view as to the appropriate response.  In relation to all of those matters we take the view that the matter should go to full hearing.  

5.	That brings the question of any deduction to made from the award in the event the finding of unfair dismissal is upheld.  The Tribunal below were asked to consider a deduction on the grounds of contributory fault pursuant to section 123 sub-section 6 of the Employment Rights Act 1996 but so far as can be told from their decision they did not in fact consider this point.  In our judgment it is appropriate to allow the Appellant to appeal also on the ground that there was a failure to consider the point and that this amounted to an error of law.  The last point sought to be raised is that the finding that there was 75% chance that the Appellant would not have been dismissed but for the procedural errors was itself based on a variety of errors and was erroneous, perverse or inconsistent with the findings of fact made. 

6.	In our judgment that is a matter which should properly go to a full hearing on the basis that the question of the 75% chance of the Respondent retaining his job is intimately bound up with the other points raised on the appeal and that it is arguable that in certain circumstances the results of other grounds of appeal may effect that figure.  

7.	In those circumstances, what we propose to do is to give leave to the Appellant to amended the notice of appeal in the form of the draft amend notice of appeal, which has been lodged with us, to direct that the matter be set down in category C and to give a time estimate of half a day.