Appeal No.	EAT/1151/98
			EAT/1276/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 January 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR R JACKSON
MR J A SCOULLER

CAPITOL SECURITY SERVICES LTD	APPELLANTS

MR T J LLOYD	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellants	MR A BURNS
(Of Counsel)
Messrs Beers
Solicitors
29 Fore Street
Kingsbridge
Devon TQ7 1AA	

	JUDGE PETER CLARK;	These are appeals by the employer, Capitol Security Services Ltd against, first;  the liability decision of an Employment Tribunal sitting at Abergele and promulgated with extended reasons on 29 July 1998 and secondly;  the remedies decision of that same Tribunal sitting at St Asaph on 27 August and promulgated with extended reasons on 14 September 1998.

	The Respondent to the appeal, Mr Lloyd, was employed by the Appellant as a Chief Inspector on the Company’s contract with Stena Sealink to provide security services at Holyhead Port.

	It seems that Mr Taylor, the security manager, received a number of complaints from male and female security officers of intimidation and verbal sexual harassment made against the Respondent.   Those complaints were reduced into writing and copies of those statements were provided to the Respondent on Friday, 27 February 1998, when he was suspended pending a disciplinary meeting to be held on Monday, 2 March at which the regional manager was due to attend.   In the event the regional manager could not attend on that day;  the meeting was postponed to 3 March, he was again unable to attend but the meeting went ahead.

	Following that meeting the Respondent was dismissed for gross misconduct.   He appealed against that decision.   His appeal was heard by Mr Kingsley and Mr Elliott on 8 March:  the appeal was dismissed.   Before dismissing the appeal those two managers interviewed four of the five original complainants.

	The Employment Tribunal first found that the decision to dismiss was by reason of conduct and that that was a potentially fair reason.   They went on to consider the question of reasonableness under section 98(4) of the Employment Rights Act 1996.   In so doing they reminded themselves of the guidance given by Arnold J in British Homestores v Burchell [1980] ICR 303.   The Tribunal concluded that the dismissal was unfair.   

	In relation to its reasoning in arriving at that conclusion Mr Andrew Burns, on behalf of the Appellants, takes a number of points.   First he refers to what the Tribunal describe in paragraph 8 of their reasons as the ‘recurring theme of their deliberations’, that the Appellants had not made clear the specific reasons for regarding the Respondent as meriting dismissal for gross misconduct.   Mr Burns submits that, in this respect, the Tribunal fell into error since the question of whether or not the employer has properly articulated the precise reasons for dismissal after the event cannot go to the question of reasonableness under section 98(4), particularly in circumstances where the Tribunal itself has found that there was a potentially fair reason of conduct for dismissal in this case.

	Secondly he submits that, having reminded themselves of the Burchell guidance, the Tribunal then failed to make express findings, first as to whether Mr Taylor, the dismissing manager, held a genuine belief in the misconduct found and secondly whether or not he had reasonable grounds for such a belief if held.   It is accepted that the Tribunal made findings in relation to the level of investigation prior to dismissal (the further limb of the Burchell test) however, as to that, Mr Burns submits, the Tribunal’s findings in paragraph 9 of their reasons, that there was no formal meeting with any of the complainants, is nothing to the point.   The question is whether or not the investigation was adequate.   That investigation included Mr Taylor’s speaking with the complainants, as did the managers who heard the internal appeal.

	Thirdly he refers to paragraph 10 of the reasons in which the Tribunal make findings as to the application of the Appellants’ sexual harassment procedure.   His point, shortly, is that that was a procedure whereby individuals might complain of acts of sexual harassment against their fellow employees, not a procedure to be employed in disciplining the object of such complaints.   He submits that was a matter for the ordinary disciplinary procedure.

	Fourthly he submits that it was not open for the Tribunal simply to ‘wrap up’ this decision in paragraph 13 by holding that dismissal was not within the band of reasonable responses.   If the employer was entitled to conclude, following a proper investigation, that this employee had indeed been guilty of sexual harassment that would, of itself, he submits, plainly bring dismissal within the range of reasonable responses.   

	Those are the main points of argument in relation to the liability finding of the Tribunal.   We think those points are arguable and the case should be permitted to proceed in relation to those grounds of appeal.   

	Finally, in relation to the second appeal against the remedies decision, Mr Burns submits that although the Tribunal, in their remedies decision, made a finding that the Respondent had contributed to his dismissal to the extent of 50%, they do not address the question raised by the House of Lords in Polkey v A E Dayton Services Ltd [1988] ICR 142 as to whether or not, had a fair procedure been followed the result would have been the same or, alternatively, whether there was a percentage chance that the employee would have retained his job in those circumstances.

	The Appeal Tribunal has indicated in the past that such a question ought to be raised by the Tribunal of its own motion, even if not raised by the advocate for the employer.  Red Bank Manufacturing Co Ltd v Meadows [1992] IRLR 209.  In these circumstances we shall allow the second appeal to proceed on that ground as well.

	For the purpose of the full appeal hearing those two appeals will be heard together.   We direct that the case be listed for half a day, category C.   There is no requirement for Chairman’s notes of evidence, however, we think it would be of assistance to the Appeal Tribunal that ultimately hears this case to have a bundle of documents which includes, at the very least, the statements made by the five individual complainants in this case.   There are no further directions.