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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Ashcroft v Bass Taverns Ltd [1995] UKEAT 415_93_3001 (30 January 1995) URL: http://www.bailii.org/uk/cases/UKEAT/1995/415_93_3001.html Cite as: [1995] UKEAT 415_93_3001 |
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I N T E R N A L
At the Tribunal
Before
THE HONOURABLE MRS JUSTICE SMITH
MR A C BLYGHTON
MR T C THOMAS CBE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant NO APPEARANCE BY OR
ON BEHALF OF THE APPELLANT
For the Respondents MR J PARKIN
(Of Counsel)
Messrs Cobbett Leak
Almond (Solicitors)
Ship Canal House
King Street
Manchester
M2 4WB
MRS JUSTICE SMITH: This is an appeal from the decision of an Industrial Tribunal sitting in Manchester on 9 July 1992. The unanimous decision of the Tribunal was that the Appellant had been fairly dismissed.
The Appellant was dismissed by the Respondents from his employment as a Licensed House Manager on 25 October 1991. When the Appellant's complaint came before the Industrial Tribunal on 14 July 1992, he was not present and was not represented. The circumstances in which that came about formed the basis of this appeal and we will say more of them later.
At the hearing, the Respondents admitted that they had dismissed the Appellant for misconduct. The Tribunal found that there had been a disturbance at the public house, of which the Appellant was the manager, on 13 October 1991. The police had been called. Several members of the public had been involved. The upshot had been that the Appellant was arrested and charged with an offence under the Public Order Act 1986. The Appellant did not immediately report this incident to his employers as he was required to do under the terms of his contract. It was only after he was directly questioned by Mr Egleston, who was investigating the matter on behalf of the employer, that he said what had occurred.
Following Mr Egleston's investigation, the Respondents conducted a disciplinary hearing and decided that there had been misconduct in two respects. They dismissed the Appellant. The Respondents took the view that the Appellant's conduct on the night of the disturbance in the public house was conduct unbecoming a Licensed Manager and was such as to put the licence in jeopardy. There was also the breach of the contractual requirement that any such incident should be reported immediately to the employers.
Following the dismissal, the Appellant appealed in accordance with the Respondents' disciplinary procedure, but on 29 November the Managing Director, Mr Harris, who heard the appeal, rejected it and confirmed the decision to dismiss.
The Tribunal record, as a finding of fact, that on 29 January 1992 the Appellant was found guilty of two offences by the Leigh Magistrates Court, one being an offence under the Public Order Act and the other of assaulting a police constable in the execution of his duty. They said that he had been fined. In fact, as we now know and as has been accepted by Mr Parkin who has appeared for the Respondents on this appeal, that was a factual error by the Tribunal. What had happened on 29 January was that the Appellant had been convicted of one offence only, under the Public Order Act, and he had not been fined as the Tribunal found. He had, in fact, been conditionally discharged and ordered to pay costs.
The Tribunal found that the reason for dismissal was misconduct. They said that it was clear that the Respondents' dismissing officer had formed a strong suspicion about the Appellant's conduct, that that suspicion had been properly investigated and that the attitude of the Respondent in regarding this conduct as bringing the Respondent into disrepute and running the risk of causing the loss of the licence, was a reasonable one. They referred in particular, to the points which had been made by the Appellant in his Originating Application. He had there complained that the Respondent had acted on the uninvestigated allegations of a customer and had conducted both the disciplinary and appeal hearings in an unreasonable manner. The Tribunal rejected those suggestions. They found that the Respondents' response in dismissing was well within the band of reasonable responses which an employer could make to the facts and circumstances of the case. They found that the procedure followed by the Respondents in dismissing the Appellant had been impeccable and completely in accordance, not only with its own disciplinary procedure, but also with the Code of Practice in relation to conduct dismissals.
Having reached that conclusion therefore, that the dismissal was fair, they added, as a rider to their conclusion the following paragraph:
"8. Although it would have made no difference to the reasonableness of the decision to dismiss which is not dependent upon any degree of criminal proof the fact that the applicant was subsequently convicted in a Criminal Court of the offences referred to [above] .... adds further weight to the reasonableness of the decision of the respondent to dismiss".
The Appellant's Notice of Appeal, as expanded upon by letter dated 13 January 1993, complains in essence that the Appellant's representatives, the National Association of Licensed House Managers, were not informed of the date of the hearing. The letter of 13 January 1993, sets out at great length the evidence which would have been called by the Appellant had he been able to appear before the Industrial Tribunal at the hearing.
Enquiries have been made by the Employment Appeal Tribunal of the Chairman who heard the case in July 1992, and it does appear that it is now accepted by the Regional Office that there was a failure in the Regional Office to notify the Appellant's representatives of the hearing date at their proper address. What had happened was that the Association had moved its premises and had changed its address. The Regional Office had been notified of this change of address although, it appears, only by telephone. It also appears that the Regional Office sent the notice of hearing to the old address and it was not sent on by the Post Office as had been arranged by the Association.
On the morning of the hearing, when neither the Appellant nor his representative appeared, the Regional Office telephoned the Association and were told that no notice had been received and that Mr Simpkin, the Regional Organiser who was to have attended on the Appellant's behalf, had gone to Northampton to attend to another matter.
The Industrial Tribunal decided to continue with the hearing in the absence of the Appellant, although it appears from the Chairman's letter (and we are told by Mr Parkin this morning) that the Chairman was aware that the Association had claimed that they had not received the notice of hearing.
On 14 July 1992, that is five days after the hearing, Mr Simpkin wrote to the Secretary at the Regional Office confirming that the Association had not received the notice of hearing. It was suggested that the change of address must be the explanation for this unfortunate error.
The Assistant Secretary of the Regional Office replied to Mr Simpkin on 21 July saying that the case had been heard and that the application had been dismissed. She promised that a decision would be sent out shortly.
A decision in summary form was sent on 14 August 1992. Mr Simpkin asked for full reasons to be provided and these were sent to him under cover of a letter dated 22 September. The Notice of Appeal was lodged in time on 12 October 1992. It is significant that at no stage was a review requested under Rule 10 of Schedule 1 of the Industrial Tribunal (Rules of Procedure) Regulations 1985. Had such a request been made it would have been granted. We say that, because the Chairman in his letter to the Appeal Tribunal, has indicated that had such an application been made, and had he been told of the full facts of the matter, as he now knows them to be, he would have granted the application for a review. It appears to us, that the provisions of Rule 10 are designed specifically to correct any injustice that may have been done in such a case as this. Rule 10(1) provides as follows:
"10.(1) A tribunal shall have power to review and to revoke or vary by certificate under the chairman's hand any decision on the grounds that -
(a) the decision was wrongly made as a result of an error on the part of the tribunal staff; or
(b) a party did not receive notice of the proceedings leading to the decision; or
(c) the decision was made in the absence of a party or person entitled to be heard; [and so on] ....".
Had that application been made, as it should have been made, within 14 days of 22 September, it appears highly likely that there would have been a re-hearing and the Appellant would have been able to present his case and to challenge the Respondents' case in the usual way. Instead of doing that, he has pursued this appeal.
The Notice of Appeal, even as extended by the letter of 13 January 1993, does not disclose any question of law. The letter, as we have indicated, seeks to present the evidence which would have been presented at the Tribunal hearing. The Notice and letter allege that it was unfair that the hearing should have proceeded in the absence of the Appellant. They do not identify any error of law in the actual decision of the Industrial Tribunal. Nor, after giving it careful consideration, are we able to identify any such error of law.
We have referred already to the factual error which appears within the Tribunal decision, but it is clear to us that that factual error has not affected the Tribunal's decision. Indeed, they make it plain that they have left out of account the information as to the convictions recorded against the Appellant in the Leigh Magistrates Court. That would, of course, not have been a proper matter for the Tribunal to take into account in deciding whether the Respondent had acted reasonably in deciding to dismiss the Appellant when it did, because the hearing in the Magistrates Court had not then taken place. However, we are satisfied that the Tribunal did not take into account the fact of the conviction, erroneously recorded as it was.
It seems to us that what has happened in this case is most unfortunate. It is now over three years since this Appellant was dismissed and his case has not been heard in his presence, due originally to an error in the Tribunal office. We feel some sympathy for the Appellant's position. However, we have come to the conclusion that we are unable to provide any relief.
This Appeal Tribunal has power only to consider appeals on a point of law. We cannot re-hear the case on the basis of evidence now advanced. Nor can we remit the case for re-hearing by the Industrial Tribunal unless the Tribunal which heard the case has made an error of law. As we have indicated, the decision discloses no error of law in the application of the appropriate law to the evidence heard by the Tribunal. The real complaint is that the Tribunal heard the case at all.
An Industrial Tribunal is entitled to hear a case in the absence of a party. Rules 7(4) and 8(3) of Schedule 1 of the 1985 Regulations provide a discretion in the Industrial Tribunal to dismiss or to hear and dispose of an application in the absence of the Applicant. That is the effect of Rule 8(3). There is also, of course, a discretion to adjourn the hearing to another date. Rule 7(4) provides that if the Tribunal decides to continue with a hearing in the absence of a party, whether the party has made any representations in writing or not, the Tribunal must treat the Originating Application as a written representation and it is clear that this Tribunal complied with that rule.
We have asked ourselves, whether it could be said that the Tribunal's decision to go on with the hearing in the absence of the Appellant and his representative on 9 July, could be categorised as perverse. We feel bound to say that it was a surprising decision by the Tribunal, given that the Chairman was aware that a telephone call to the Association's office had resulted in information that no notice of a hearing date had been received. However, it was apparent that the Respondents were present with their representative and their witnesses. It is also apparent from the decision and this is confirmed to us by Mr Parkin, that the Chairman did not consider it appropriate to dismiss the application out of hand.
A hearing was conducted which was by no means a formality. Two witnesses were heard and a substantial amount of evidence received. Moreover, it is apparent from the decision, that the Tribunal gave consideration to the representations which appeared in the Originating Application. This, as it seems to us, appears to be an exercise by the Tribunal of a discretion which is provided for them under Rule 8(3). In our judgment therefore, it is difficult to categorise that decision as perverse. Although as we have indicated, we find it a surprising decision.
A further reason for concluding that this is not a decision which should be categorised as perverse lies in the existence of the review procedure. The review procedure appears to exist for the purpose of rectifying procedural mishaps. Indeed, the very procedural mishap which occurred in this case, appears in the rule as one of the situations in which a review should be granted.
With regret, we say that we cannot give any assistance to this Appellant. He was represented by his Association and it is most unfortunate that the error made originally by the Tribunal office staff has been compounded, as it seems to us, by the Appellant's representative's failure to apply for a review at the appropriate time.
We draw attention to the fact that there does exist the power in the Industrial Tribunal to extend the time for consideration or acceptance of an application for a review, but we note that the time which has now elapsed since the appropriate time for that application is now in excess of two years.
In the event, there is no alternative before this appeal tribunal but to dismiss this appeal.