Appeal No. EAT/725/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20th May 1994
	Judgment delivered on 24 June 1994

	Before

	THE HONOURABLE MR JUSTICE MUMMERY (PRESIDENT)

	MRS T MARSLAND

	MR K M YOUNG CBE

MR G R CABAJ	APPELLANT

WESTMINSTER CITY COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR JONATHAN MARKS
(of Counsel)
Messrs Kidd Rapinet
Solicitors
33 Queen Street
Maidenhead
Berks
SL6 1NB

For the Respondents	MR M KURREIN
	(of Counsel)
Mr C T Wilson
City Solicitor & Secretary
Westminster City Council
City Hall
Victoria Street
LONDON SW1E 6QP

MR JUSTICE MUMMERY (PRESIDENT)         This is an appeal from the decision of the Industrial Tribunal held at London (South) on 28th April 1992.  For Full Reasons notified to the parties on 26th August 1992 the Tribunal dismissed a claim for unfair dismissal brought by Mr George Cabaj against his former employers, the Westminster City Council ("the Council").

The Facts
	There was no serious dispute in the Tribunal about the facts of the case.  Mr Cabaj was employed as a Senior Computer Programmer in the Council's Finance Department from 25th November 1985 until 26th July 1991.  The responsibilities of that Department included the planning and implementation, maintenance and smooth running of computer applications within the Council.  Mr Cabaj had a long record of erratic attendance at work from 1988 onwards.  After a number of warnings, meetings and disciplinary hearings he was given a final written warning on 17th December 1990 upheld on appeal on 25th February 1991.

	In June 1991 Mr Cabaj was transferred to a different management team.  His new superior was a Mr Woodward.  Mr Cabaj had meetings with him.  He was referred to the Council's medical adviser who made a report and he was summoned to a disciplinary hearing held on 26th July 1991 when a decision was made to dismiss him for poor time keeping.

	The crucial event for the purposes of this case is the hearing of Mr Cabaj's appeal on 12th September 1991.  His appeal was dismissed by a panel consisting of two members of the Council.  The short point for decision on this appeal is whether there was a legal flaw in the hearing of the appeal such as to render his dismissal unfair.

	It is common ground that there was a flaw.  The dispute is: did it render his dismissal unfair?

	Section 5 of the Council's Disciplinary Code contains the relevant appeal procedure.  It is provided in paragraph 1.1 of the Code that
	
	"The Disciplinary Code forms part of the statement of written particulars of employment which, under the terms of the Employment Protection (Consolidation) Act 1978, the Council is required to provide to all members of staff. ..."
It is recorded in paragraph 1.4 that the Code, with the exception of disciplinary rules set out in section 2,
	"... has been agreed between the Council and the Officers and Manual Employees Sides of the respective Joint Committees.  The Officers' and Manual Employees' Sides consider that disciplinary rules formulated by the Council should be a matter of note and any amendments or additions to existing rules shall be notified to them prior to implementation.  Any proposed changes to the remainder of the Code will be subject to joint negotiation and agreement."
 
	Section 5 of the Disciplinary Code provides in paragraph 5.1 that -
	"A member of staff who is dissatisfied with any disciplinary action taken against him/her may appeal against that action to a level of management not previously involved. ..."
Paragraph 5.3 provides -
	"A member of staff who wishes to appeal against suspension on half pay, removal or withholding of increments, demotion or dismissal shall submit his/her appeal to the Chief Executive.  The Chief Executive shall convene a meeting of the Appeals Tribunal comprising 3 members of the Council drawn from a list of Members appointed by the Council."
Paragraph 5.7 governs the "order of proceedings" at the Appeals Tribunal.  No point arises on those provisions.

	In this case the Chief Executive summoned 3 members of the Council to a meeting of the Appeals Tribunal, but only two turned up.  A third person was in attendance, but he was an officer from the Central Personnel Department, not a member of the Council.

	The Appeals Tribunal did not adjourn the hearing of the appeal by Mr Cabaj to another day so that 3 members of the Council could be present.  Those who were present did not ask Mr Cabaj, who appeared in person, whether he agreed to his appeal being dealt with by only two members of the Council.  The two members of the Council present proceeded to hear the appeal by Mr Cabaj and, at the conclusion of their deliberations, dismissed it.

Decision of the Industrial Tribunal
	The Industrial Tribunal held that -
(1)  The reason for the dismissal of Mr Cabaj was the genuine and reasonable belief of the dismissing Manager, Mr Woodward, that Mr Cabaj had been guilty of poor attendance at work at a time when he was under a final written warning with regard to his work attendance.  That was a "conduct reason" which justified dismissal.

(2)  That belief was based upon as reasonable an investigation as the circumstances demanded.

(3)  The dismissal satisfied the test in S.57(3) of the Employment Protection (Consolidation) Act 1978.  In view of his "lamentable attendance record", the Council could well have dismissed Mr Cabaj at a much earlier stage.  Mr Cabaj showed no real understanding of the need for improvement required.  As a result of an interview held on 20th June 1991, he was was left with a clear understanding that his record of attendance was unsatisfactory and would be monitored.

(4)  As to the defect in the composition of the Appeals Tribunal, the Industrial Tribunal held that the Council was "guilty of a procedural error", but "did not consider that that error was so great or significant in all the circumstances of the case that we should find because of it that the dismissal  of this applicant by this respondent had been unfair."

	The Industrial Tribunal also observed that Mr Cabaj (who acted in person) had not before the Industrial Tribunal made any complaint about the "conduct of the appeal".  It appears that it was the Tribunal itself which took the point on the composition of the Appeals Tribunal.

	Mr Cabaj subsequently made an application for a review of the decision, but that was refused by the Chairman on 18th June 1992 on the ground that it had no reasonable prospect of success.

The Legal Position
	In our judgment, the Industrial Tribunal erred in law in its treatment of the defect in the composition of the Appeals Tribunal as only a "procedural error" in deciding whether or not the dismissal of Mr Cabaj was fair within the meaning of S.57(3) of the 1978 Act.  Our reasons for this decision are as follows:-
(1)  The right of appeal of Mr Cabaj to the Appeals Tribunal was a contractually necessary element in the overall process of terminating his contract of employment.  The Disciplinary Code, which prescribed the composition of the Appeals Tribunal, formed part of the terms of the employment of Mr Cabaj by the Council.  In other words, it was his contractual right to have his appeal decided by an Appeals Tribunal composed of 3 members of the Council.  In fact, his appeal was decided by only 2 members of the Council.
(2)  Mr Cabaj was not given an opportunity to insist on the attendance of the third member of the Council at the hearing.  This was not simply a "procedural error".  The effect of the absence of the third Council member was that the decision on the appeal was not taken by the Appeals Tribunal at all.  It was taken by two members of the Council who could not by themselves constitute an Appeals Tribunal within the meaning of the Disciplinary Code.  The two Council members did not have the power to hear and determine the appeal by Mr Cabaj against the decision to dismiss him.

	Mr Kurrein, who appeared for the Council both before the Industrial Tribunal and on this appeal, made a number of submissions on this point.  We reject them.

	He submitted that the decision of the Appeals Tribunal was reasonable, lawful and proper because the Appeals Tribunal is a sub-Committee of the Council's Policy and Resources Committee.  That Committee has a constitution of 3, but, under the Standing Orders of the Council, a  quorum for a sub-Committee is two members.  In our view, this submission is misconceived.  A decision of the Appeals Tribunal may satisfy the procedural requirements of the Council, but it does not satisfy the requirements of the Disciplinary Code which forms part of the contract of employment of Mr Cabaj.  The Standing Orders of the Council are not referred to in the Disciplinary Code.  The Standing Orders were not incorporated in the Disciplinary Code or, either directly or indirectly, in the contract of employment of Mr Cabaj.

	Mr Kurrein also submitted that the Chief Executive had complied with paragraph 5.3 of the Disciplinary Code by convening a meeting of 3 Council members and, because a quorum attended, he had no power, nor did any other officer have power, to prevent the Appeals Tribunal from proceeding to deal with the appeal.  Again, it is our view that those matters are irrelevant to the composition of the Appeals Tribunal required by the Disciplinary Code.  We accept the submission made by Mr Marks on behalf of Mr Cabaj that the Council's Standing Orders relating to the composition of its sub-Committees could not operate to deprive Mr Cabaj of his contractual right to have his appeal heard and decided by an Appeals Committee consisting of 3 members of the Council.  Further, the fact that the point argued on the composition of the Appeals Tribunal were not raised by Mr Cabaj but by the Tribunal of its own motion makes no difference.  If the point is a good point of law, it does not matter who raises it.  It is pertinent to observe that the point was in fact raised by Mr Cabaj in his application for a review, which was rejected.

	It is true that the Industrial Tribunal took into account the defect in the composition of the Appeals Tribunal and concluded that that defect did not render the dismissal unfair.  Mr Kurrein submitted that a decision which took proper account of that matter could not be characterised as perverse.  This argument does not, however, meet the point that the Industrial Tribunal failed to appreciate that, as a matter of law, the defect in the composition of the Appeals Tribunal was not simply a matter of "procedural error".  There was a fundamental flaw in the composition of the Appeals Tribunal affecting its jurisdiction to determine the appeal.  We repeat that Mr Cabaj did not have his appeal heard and decided by a properly constituted tribunal.  In the case of Stoker v. Lancashire County Council [1992] IRLR 75, the Court of Appeal emphasised the importance, with regard to internal appeals, of addressing the fact that an employee has not been accorded a right of appeal to which he was contractually entitled.  It is not a question of looking at the reasonableness of the actions of the Council.  The legal error, in our view, was in regarding the defect as a procedural error instead of a significant contractual and jurisdictional failure.  For those reasons we should allow the appeal.

	The question arises as to whether the matter should be remitted to the Industrial Tribunal for fresh consideration in the light of this ruling.  We have reached the view that the denial to Mr Cabaj of his contractual entitlement was so fundamental a defect in the dismissal process that, if the matter were remitted to an Industrial Tribunal, it could only come to one conclusion, that the dismissal was unfair.  In those circumstances this Tribunal will reverse the decision of the Industrial Tribunal and hold that Mr Cabaj was unfairly dismissed.

	We should mention finally that early in the hearing of the appeal an application was made on behalf of the Council to adduce fresh evidence.  That application was refused for reasons to be included in this judgment.  The evidence sought to be adduced in fact related to a different point raised on the appeal which it is unnecessary to decide, since the appeal has succeeded on the ground mentioned above.  The other point raised on appeal was whether an officer of the Personnel Department present at the hearing of the Appeals Tribunal was in fact substituted for the absent third member of the Council, with the consequence that the presence or possible participation of the Personnel Officer in the proceedings gave the appearance that the Council was in fact acting as a judge in its own cause.  As it is unnecessary to decide that point in order to dispose of this appeal, it is unnecessary to admit the fresh evidence identified in the Council's application.

	For all those reasons this appeal is allowed and this Tribunal holds that Mr Cabaj was unfairly dismissed.