Appeal No. EAT/982/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20 June 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MR J H GALBRAITH CB

	MR R TODD

BENTLEY NEVADA (UK) LTD	APPELLANTS

MR D JOHNSON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR M THOMPSON
(SOLICITOR)
Eversheds Alexander
  Tatham
London Scottish House
24 Mount Street
Manchester M2 3DB

For the Respondent	MR N FEWTRELL
(OF COUNSEL)
Lloyd Jones Travers
Old Bank House
Deacon Road
Widnes
Cheshire WA8 6EA

		JUDGE HULL QC:	This decision which I am about to give is the decision of us all.  This is an appeal by employers, Bentley Nevada (UK) Ltd, against a decision in favour of an employee, Mr Johnson, given by the Industrial Tribunal sitting at Liverpool under the Chairmanship of Mr Heppell, with his Industrial Members.  The decision was promulgated on the 7 October 1993.

	The Applicant had begun work with the employers on the 12 November 1979 and in 1988 he had been appointed a manager.  In 1990 a Mr Taylor was appointed, apparently to much the same job that the Applicant had been doing as Manufacturing Manager.  The Applicant, Mr Johnson, was appointed Materials Manager responsible to Mr Taylor.  

	There were various difficulties and the employers were clearly dissatisfied with Mr Johnson's performance.  He was given a written warning about his work as Manager in February 1992 and then a second written warning on the 2 September 1992, and eventually he was dismissed on the 13 October.  There were interviews, before the dismissal of course, he was seen by Mr Taylor and by Mr Pullen, who was the Financial Director.  

	He, in due course, complained to the Industrial Tribunal that he had been unfairly dismissed.  The employers resisted that and the Industrial Tribunal sat in Liverpool on the 12 July and the 13 September to hear the case.  They heard evidence from Mr Taylor and Mr Pullen.  At page 19 there is an extract from the Chairman's Notes of Evidence.  Mr Taylor said that he was the dismissing officer, it was to him that Mr Johnson was responsible.  Then, when he was questioned by a Member of the Tribunal, he said he had discussed it with Mr Pullen.  He said that dismissal had to be with the Managing Director's approval.  The Managing Director was a Mr Perna, who had not been called.

	Then Mr Pullen gave evidence.  He too was questioned by Mr Winrow.  He told the Tribunal, among other things:

		"The final decision to dismiss was presented by Mr Taylor.  It required the stamp of approval of the Managing Director.  I was present."

	He said that Mr Johnson had an opportunity to elaborate, and could make any comments at the final meeting with Mr Taylor and with Mr Pullen.  But he said that the Managing Director had to approve the decision and he was not present at the meeting with Mr Johnson.  He went on:

		"Mr Taylor was the line manager, but he had no authority to dismiss.  As line manager he was requesting approval of his decision - Mr Perna's was the final stamp of approval, and he had not heard the applicant."

	That was Mr Pullen's evidence.   The Industrial Tribunal set out the facts very shortly, they set out the history of the warnings, and at paragraph 3:

		"On 13 October 1992 he was again interviewed by Mr Taylor and Mr Pullen and was dismissed and was told that he had a right of appeal to the Managing Director, Mr Perna.  In his evidence Mr Taylor said that he was the dismissing officer in consultation with Mr Pullen and Mr Perna as that was the procedure.  In his evidence Mr Pullen stated that Mr Taylor had made the final decision to dismiss but it was necessary to obtain the approval of the Managing Director Mr Perna.  This was given at a meeting between Mr Taylor, Mr Pullen and Mr Perna.  He added [Mr Pullen] that in a Company of their size only the Managing Director was above the Managers and the Managers did not have authority to dismiss, therefore Mr Taylor presented the facts to Mr Perna, and he approved a dismissal.  He said that Mr Taylor was the line manager but had no authority to dismiss or give written warnings.  These had to be approved by Mr Perna, but Mr Perna had not taken part in any of the disciplinary hearings."

	Those were plainly important findings in considering the fairness, or otherwise, of the dismissal.  If the decision was partly Mr Taylor's and partly Mr Perna's, or if it was a joint decision, then what had to be looked at was the decision itself and what led up to it.  It would not, in our view, be automatically unfair because the decision was divided between managers, or even because the Managing Director did not attend the hearings.  If the Tribunal was to be satisfied that the dismissal was fair, it would clearly have to look at the quality of the report which was given; not only at the meeting between Mr Pullen and Mr Taylor and the Applicant, but exactly what was laid before the Managing Director who had such an important part to play in it.  Of course, the Managing Director would be expected, if possible, to give evidence about these matters, because he would have as much of a recollection of it as Mr Taylor himself and Mr Pullen, perhaps more.  Mr Thompson, who appeared for the employers, told us that he wished to consider whether to call Mr Perna, but in the event he did not.

	However, the Tribunal dealt with it like this:

		"Having heard this evidence," [that is the evidence merely of Mr Taylor and Mr Pullen and no other evidence apparently] "particularly that of Mr Pullen, the Tribunal decided that this was clearly a case of unfair dismissal on procedural grounds, and therefore decided that it was unnecessary to hear any further evidence from the Respondent or from the Applicant.  It was clear from the evidence that the dismissing officer was Mr Perna and not Mr Taylor since Mr Taylor did not have the power to dismiss without the approval of Mr Perna."

 	That appears, with respect, to be a non sequitur.  It was a joint operation, as it appears to us, but at any rate the Tribunal should have considered that aspect of the matter.  

		"The final decision therefore lay with Mr Perna and he had decided that the written warning should be issued and that the Applicant should be dismissed, but had not taken any part in the disciplinary hearings and had relied solely on the facts put to him by Mr Taylor without hearing anything that the Applicant wished to say."

	If true, if that literally means that Mr Taylor told Mr Perna nothing of what had passed between him and Mr Johnson, then that would be clearly a finding of blameworthy behaviour.  But it seems that what the Tribunal is saying there is merely that Mr Perna, of course, was not present at the disciplinary meeting.

		"The Tribunal considered that this procedure was completely unreasonable being contrary to all normal practice and also contrary to the rules of natural justice which require that a decision making person or body must hear both sides of the question before coming to a decision."

	That again appears to us to telescope the thing.  The Tribunal appears not to be considering whether - given that Mr Taylor had this part to play, Mr Pullen had perhaps a lesser part to play and the Managing Director had also an essential part to play - whether the combined efforts of all three men resulted in justice, whether they showed that the employers had acted reasonably, or not.  They took the view, apparently, having heard that Mr Perna was to have the last word, that he was therefore the dismissing officer, that it was unnecessary to hear any further evidence and that the dismissal was procedurally unfair.

	It appears to us that so far as their written decision goes, the Tribunal's enquiries on that matter were inadequate.  If, in fact, they did address their minds to these matters, then they should have set out exactly what they found happened.    

	That is the first complaint which is made.  The second complaint which is made against this decision is that the Tribunal never, so far as their decision goes, embarked on the second stage of the enquiry which has conveniently been called the Polkey enquiry.  Having decided that it was unfair the Tribunal must next go on, as the statute requires, to consider what compensation should be awarded, what loss has been suffered as a result of the unfairness complained of.  The Tribunal were under a duty to address their minds to the question what would have happened if all had been conducted regularly and fairly?  Given that here was a Manager who had apparently failed to give satisfaction to Mr Taylor and indeed to Mr Perna, and who had received written warnings.  They would have to consider that.  

	It might be that they would have decided on balance that if he had been treated fairly, he would never have been dismissed.  That appears to be the only basis of their decision in which they made no deduction whatever in respect of doubtful or imponderable points.  On the other hand they might have decided that even if all had been done fairly there was a substantial chance that Mr Johnson would have been dismissed.  These are the matters which they have to consider under the Polkey decision.  In particular, it may be very important to see exactly what the employee himself has to say about it.  They did not hear from him.  
	
	It appears, therefore, that there is fatal omission in their written reasons.  If they made the Polkey enquiry and decided on that matter, then they should have said so.  They did not say so.  

	The final complaint which is made by Mr Thompson is that he personally, being there, recalls that the enquiry with regard to compensation proceeded like this.  Mr Johnson was seated on the bench where the representatives sat, and he was asked by the Tribunal, not as a matter of evidence, but simply informally, about what he had done since his dismissal.  Mr Thompson wanted to cross-examine him and in particular to suggest that he had not done all that he should to mitigate his loss.  Apparently the Chairman said "that is unnecessary".  

	It is pointed out to us with great force, by Mr Fewtrell, that if there is a complaint of the Tribunal's conduct, then there is a procedure which under our Practice Direction should be followed.  In particular, the Chairman, of course, should be given an opportunity to comment on the complaint.  It is clear from this decision that, as the Tribunal say in their own words:

		"We therefore decided that it is was unnecessary to hear any further evidence."

	It does appear that if they had thought about it, and considered the issues which we have referred to, and in particular the question of the correct measure of compensation, they would not have thought it unnecessary, simply because they had decided that it was Mr Perna who was the dismissing officer, to hear any evidence about these matters.  Although we regret that the Chairman has not been given an opportunity to comment on that matter it appears to us, simply going on what is written in the Tribunal's own full reasons, that no adequate reason is given for dispensing with the evidence of Mr Johnson himself.

	It appears to us, therefore, so far as the written reasons go, that this was not a satisfactory enquiry in that there were omissions.  Mr Fewtrell has rightly warned us against the danger of supposing that an experienced Tribunal has not considered something simply because it does not mention it and of course, with regard to details of evidence, that most certainly must be so.  They proceeded for more than one day with this enquiry and no doubt heard about a great many matters which they are not bound to set out; but certainly they should have considered the questions which we have indicated with regard to fairness or unfairness and have given some indication that they did, rather than deal with it in the very, very short way in which they did.  

	They most certainly should have dealt expressly with the Polkey point albeit, again, they could have done so quite shortly if they were minded to do so, and they should have expected to hear evidence concerning the important matter of this very substantial claim for compensation.  It appears strange to us that they should simply say that they will hear from Mr Johnson sitting in his place without his giving evidence, having said that it was unnecessary to give evidence, thereby denying implicitly the right to cross-examine; certainly, if Mr Thompson's recollection is correct, actually saying so; but we are not of course proceeding on what is apparently a contested recollection.

	In those circumstances since, in our view, this decision is flawed, it appears to us that the only just and proper solution is to remit the case to a different Tribunal so as to hear the case again and reach a decision on the points which we have mentioned and of course all other points which they find it necessary to investigate in order to come to a proper decision.