Appeal No.	 EAT/743/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 9 March 1998

Before
HIS HONOUR JUDGE H J BYRT QC
MR P R A JACQUES CBE
MISS D WHITTINGHAM

YELLOW PAGES SALES LTD	APPELLANTS

MR P REJUWA 	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR T BRENNAN
(of Counsel)
The Solicitor
British Telecommunications Plc
81 Newgate Street
London
EC1A 7AJ	
For the Respondent	MR R THOMAS
(of Counsel)
Messrs Galbraith Quinn
Solicitors
3 Queen Square
Bristol
BS1 4JQ	

	JUDGE JOHN BYRT QC:     This is an appeal from a decision of an Industrial Tribunal sitting in Exeter.  Its decision was promulgated on 11 April 1997 and by it they held that Mr Rejuwa, the employee, had been unfairly dismissed.  They also found that the employers had given inadequate reasons for his dismissal.  The employer appeals that decision.  

	Mr Rejuwa was a field sales manager in the employment of the Appellants and he was in charge of a team of representatives which, at different times, included two particular women referred to in these proceedings as A and B.

	In March, April and May 1996, A made allegations to the effect that Mr Rejuwa had made extremely offensive remarks of a sexual nature to her which had caused her distress.  In May 1996 she went sick and she was visited by Mr Scott, a field sales manager.  The visit was on 3 June and she made complaints to Mr Scott of the nature that I have just referred to.  But in addition to that she put him on to B whom, she claimed, would have complaints of a similar nature to make to him.  

	When B was interviewed by Mr Scott, she alleged that between September 1995 and April 1996 Mr Rejuwa had made sexual advances towards her of an obscene nature.  In the first instance, when he found himself alone in a room with her, he had locked the door and thereafter induced or persuaded her to have oral sex with him.  It was alleged that thereafter there were some four or five other occasions when the same conduct had occurred - I think some three occasions in Mr Rejuwa’s house and a couple of occasions in B’s own home.

	It was said by B, that on all occasions this conduct was without her consent; she had co-operated merely because Mr Rejuwa took advantage of his managerial position and she just acquiesced because she could not refuse.

	As a result of his enquiries, Mr Scott thought he had sufficient material to justify reporting the allegations to a Mr Brightwell, who was a regional sales manager.  Mr Brightwell placed the matter in the hands of Mrs Nicholls, who was the regional personnel manager.  Mrs Nicholls took statements and, as a result of those statements, on 19 June Mr Rejuwa was suspended.

	It is right and fair to say that Mr Rejuwa denied the allegations at that time and ever since has continued to do so.

	A disciplinary hearing was convened on 26 June.  This was chaired by Mr Brightwell.  The proceedings extended to a second day on 1 July.  Mr Brennan, who has appeared on behalf of the employers in this matter, has conceded that those proceedings were flawed because Mr Brightwell came to his eventual conclusion without having ever met up with, or having interviewed either A or B.  

	It was obvious that the essential issue at stake in that disciplinary hearing was the credibility of the two ladies, as opposed to that of Mr Rejuwa.  Instead of meeting the ladies himself and getting an impression of their credibility as witnesses, Mr Brightwell appears to have asked questions of and then relied on the assessment of Mrs Nicholls.  In any event, the result of the disciplinary hearing was that Mr Rejuwa was dismissed and he appealed.

	The appeal came on for hearing on 26 July.  At that time a Mr Uppington was to preside over the appeal board and he was to be accompanied by two wing members, who were occupying managerial positions in the Company.

	In our judgment, the appeal hearing took the form of a review.  The employer’s procedures suggested it should be a review, but in view of what was perceived to be the important issue of credibility arising from the disciplinary hearing, additional evidence was adduced before the appeal board.  First of all, Mr Rejuwa himself had the opportunity of adducing additional evidence in the form of testimonials from a large number of his colleagues.  These essentially related to questions of character.  

	In addition to that, the appeal board decided that they should interview the ladies concerned.  This necessitated an adjournment to enable that to happen.  The adjourned hearing took place on 31 July.  On that date, they first of all interviewed B and the curious thing about that was that they conducted that interview and received her evidence in the absence of Mr Rejuwa.  When they had received that evidence, Mr Rejuwa was invited in before the appeal board and he was asked questions about the statement that had just been made by B.  There is no mention of this way of proceeding in the extended reasons.  But we are informed by Counsel that the questioning of Mr Rejuwa was of a comparatively perfunctory nature, lasting perhaps approximately ten or twenty minutes.  After that, the appeal board decided they should interview A, again in the absence of Mr Rejuwa.  The only difference in the pattern of procedure was that instead of asking for Mr Rejuwa’s comments after they had interviewed A, that was the end of the enquiry, save for the examination of one further witness, namely Mrs Nicholls.

	Mrs Nicholls had given evidence in front of Mr Rejuwa on 26 July.  However, she was recalled to give evidence again on the 31st.  This time, Mr Rejuwa was neither present; nor did he, until a later date, know she had given further evidence.  Once more, the point is a procedural one.  Her evidence had been taken in the absence of Mr Rejuwa and he had had no opportunity of questioning her or of challenging any part of what she had to say.

	There is a further problem relating to the hearing on 31 July.  When the matter was adjourned for the interviewing of the two ladies, Mr Uppington was unable to chair that further hearing of the appeal.  That second hearing was chaired by a Mr Wright.  Mr Uppington had talked to Mr Wright about what had happened on the earlier occasion, 26 July, and generally brought him up to date with the stage proceedings had reached.  But Mr Thomas, who has argued this case on behalf of Mr Rejuwa, has said that, far from curing defects in the disciplinary proceedings, the hearing before the appeal board merely compounded them.  Although the appeal board had, by now, interviewed the two ladies in question, the proceedings were somewhat bizarre.  Mr Rejuwa had not been present when they had been interviewed and he had only been asked questions about the statements that had been made by B.  As for the evidence given by Mrs Nicholls, he had had no opportunity of commenting about that either.  And further, there was a change in the constitution of the board.

	The Industrial Tribunal thought the fact that there had been a change in the chairman of the appeal board was in itself a sufficient ground for saying that the appeal board procedures were flawed.

	Mr Brennan has stressed that they were not entitled to come to that finding unless first of all they had analysed the proceedings and considered them with great care to see whether, notwithstanding the fact there had been a change of chairman, the proceedings were fair.  He says that the Tribunal never attempted such an analysis, never came to a finding as to whether the proceedings were fair, notwithstanding the change of chairman and, in consequence, the Industrial Tribunal’s findings about this matter were flawed for that reason.

	It is our view that this case is distinguishable from that of Westminster City Council v Cabaj [1996] IRLR 399.  In that case, the contractual procedures had required that the employee should be judged by a board consisting of three persons.  In fact only two attended and proceedings continued with only two people adjudicating upon the matter.  In that instance, the Employment Appeal Tribunal found that that was inequitable and wrong.  The Court of Appeal made a finding that it was not necessarily so, unless the Industrial Tribunal had gone on and considered the reasonableness and fairness of the proceedings that had taken place and had found them to be unfair.  Mr Brennan says that that authority is applicable in this instance too.

	It is, in our view, a world of difference between proceeding with only two members of a board instead of three, and in this case where there had been a swop of one member of the board for another, and particularly so where that other person is the chairman.  We find it difficult to conceive of any instance where one member displaces another after proceedings have commenced and, at the end of the day, it can be said that the proceedings were fair.

	In any event, that is the finding of the Industrial Tribunal.  Mr Brennan (as I say) attacks their finding on the basis they had not given their mind to the question of fairness and for that reason he says, this matter has to be considered afresh by a freshly constituted Tribunal. 

	We accept the submissions of Mr Thomas as to why the procedure for the appeal board was unfair.  Whilst we have to accept that the Tribunal have been short on their reasons why the proceedings were flawed, we think it would be a waste of time remitting this case to them so that they might make this same point in greater detail.  The facts we have set out above are essentially agreed between the parties.  There is no dispute about what happened.  It is our judgment that the Tribunal were fully justified in their conclusion about that part of the case.

	There is another issue however, and that relates to the finding of the Industrial Tribunal that Mr Rejuwa had not contributed to the dismissal by his own conduct.  They say this in one sentence, without spelling out any reasons or the basis upon which they come to such a finding.  We think that this is an instance where the Tribunal did fall into error.  

	It is not for us to comment how the Industrial Tribunal came to that conclusion, but we think this matter must go back to the same Industrial Tribunal for them to spell out their reasons.

	The last issue concerns the alleged failure of the employers to provide written statements of the reasons for Mr Rejuwa’s dismissal.  That is the way in which it was phrased in the IT1 and this means that it is being alleged that the employers had failed to state written reasons as required by section 92 of the Employment Rights Act 1996.

	The Industrial Tribunal read a number of documents before them.  First, there was the letter, No. 35 in the documents before the Industrial Tribunal, written by a Mr Brightwell in which the charges were set out, Mr Rejuwa had to meet.  Then there was the letter, No. 80 dated 1 July, written by Mrs Nicholls in which she set out the reasons for dismissal.  These were given as “Contravention of the Company’s Sexual Harassment Policy”.  Following the appeal board hearing on 2 August, Mr Uppington writes letter No.116 in the bundle, “Your appeal failed and the decision to dismiss you is upheld” and he gave the formal decision that the Company’s procedures had been followed and the allegations had been thoroughly investigated before they came to their decision to uphold the disciplinary hearing proceedings.

	Thus far, there is no question of the employers being guilty of any offence under section 93 of the Act.  Section 92(2) states that no obligation falls upon the employer to state their reasons until such time as the employee requests a written statement.  So the next two letters are of some importance.  

	There is a letter from the Solicitors, instructed on behalf of Mr Rejuwa, dated 19 August in which they ask for the reasons for dismissal to be set out.  This is the formal letter of request.  That is replied to by letter No. 20 in the bundle dated 28 August.  In that letter the employers state 

“Our view is that Mr Rejuwa was issued with adequate written reasons for his dismissal and (2) during his employment Mr Rejuwa was issued with a company employee’s handbook, which contained the company’s disciplinary procedure and its sexual harassment policy; (3) I regret it is not possible to supply notes of the appeal hearing or interviews at the present time.”

	And that essentially is the exchange of correspondence upon which a decision in this matter stands to be decided.  All centres, in effect, on the contents of that letter of 28 August.  

	The Industrial Tribunal in their reasons found that the reasons given by the employers were inadequate and that would suggest that they were making a finding that the employers were in breach of section 93(1)(b) of the Act but, unhappily, as occurred several times in this decision, the Industrial Tribunal failed to state their reasons for that finding or the means by which they came to it.  Mr Brennan submits that the letter of 28 August which the employers wrote does not purport to be a statement of reasons for dismissal, that it is but an answer to the letter written by the Solicitors acting for Mr Rejuwa at the earlier date, 19 August.

	In those circumstances, it is implicit that it amounts to a refusal to grant the stated reasons and consequently, it falls to be considered under section 93(1)(a), but if that be the case, it is a matter for the Tribunal to decide as to whether the refusal was “reasonable”.  If, on the other hand, it purported to be a written statement of the reasons for dismissal, then it is incumbent upon the Industrial Tribunal to make a finding that it is such a written statement, in which case they would be required to state why they had found it to be a written statement and then to consider the issue arising under section 93(1)(b) namely the manner in which it is inadequate.

	We accept those submissions made by Mr Brennan and once more we think that this is a part of the case that must be remitted to the same Industrial Tribunal for them to spell out their findings on the documents before them.  There is no reason why there should be any additional evidence.  The matters in issue between the parties here arise from the face of the documents themselves and we suggest that the questions the Industrial Tribunal have to answer, spelling out their reasons for them, are whether the letter dated 28 August purported to be a written statement.  If yes, what were their reasons for so finding and what were the inadequacies they found in the document?  If, on the other hand, they found that the letter was but an answer amounting to a refusal, they then have to consider whether it was reasonable of the employers to refuse to give a written statement and if that be the case, they must again spell out their findings about this matter giving their reasons for it.

	In conclusion, we allow the appeal to the extent stated, and remit the case to the same Industrial Tribunal for a statement of the reasons why they found no contributory fault, and for a statement of those matters which fall to be determined under Section 93 of the Employment Rights Act, 1996.