Appeal No. EAT/0487/01

EMPLOYMENT APPEAL TRIBUNAL
SITTING AT COURT 70, THE ROYAL COURTS OF JUSTICE
THE STRAND, LONDON WC2A 2LL

	At the Tribunal
	On 26 September 2001

Before
MR RECORDER LANGSTAFF QC
MR A E R MANNERS
MS G MILLS

MR P E HUTTON	APPELLANT

VEHICLE INSPECTORATE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR S GILL
(Of Counsel)
Instructed by
Messrs Nash & Co 
Solicitors
Beaumont House
Beaumont Park
Plymouth
Devon
PL4 9BD	

MR RECORDER LANGSTAFF QC

1.	This is an appeal which comes before us by way of preliminary hearing from the Employment Tribunal sitting at Exeter.  In Extended Reasons promulgated on 19 February 2001 the Tribunal dismissed the Appellant’s claim that he had been unfairly dismissed.

2.	The essence of the facts was that the Appellant was alleged to have struck his manager in the face without justification in April 1998.  An investigating officer, a Mrs Campbell found this allegation to have been made out.

3.	An oral hearing followed in April 1998 before Mrs Campbell.  As to that the Employment Tribunal said at paragraph 12 of their Reasons that:

“The hearing was conducted by Mrs Campbell.  She said that it was not a disciplinary hearing but a meeting so that the applicant could support his written submission against the charge.  His union official Mr Higgins represented him and expressed his concern whether Mrs Campbell the Decision Officer had given advice to Mr Ricks.  (I interpose to say that he was the manager who was the other party to the contretemps which had occurred).  She explained that it was purely on the procedure but she was happy to stand down as Decision Officer and act as investigating officer passing her report to a new Decision Officer.  Both the union and applicant were happy with that arrangement.  Mrs Campbell continued with the hearing.”

4.	The recommendation of that inquiry was passed to a Decision Officer, a Mr Williams who concluded that the Appellant should be dismissed.  He appealed as he was entitled to do to the Civil Service Appeal Board.  

5.	Before the Tribunal the Applicant maintained that he had been deprived of one stage of appeal.  The Tribunal described the procedure in paragraph 17 as this:

“That if the Civil Servant has more than 2 years service his avenue of appeal is to the Civil Service Appeal Board.  If he has less than 2 years service he does not have the right to go to the Civil Service Appeal Board but in that event it goes to an Appeal Officer who is one grade higher than the Decision Officer.  It is this last point on which the applicant maintains that he had been deprived of a stage in the appeal.”

6.	The Employment Tribunal had submissions before them that the dismissal was unfair because a fair procedure had not been adopted by the employer.  The Tribunal came to a conclusion in these terms at paragraphs 19 then 20:

“It is possible to criticise the procedure but it is an agreed procedure of long-standing between the Civil Service unions and the Civil Service.  Following the case of East Hertfordshire District Council v Boyten [1977] IRLR 347 if an employer applies a code of procedure agreed between both sides it cannot be said that the employer is acting unreasonably in so doing.  Indeed if it were to do otherwise he would be open to criticism as acting unreasonably.

Whilst we have misgivings about the procedure in this case we cannot say that the respondents acted unreasonable in applying as they did the agreed procedures.”

7.	An application was made by the Appellant for a review.  It appears that he gave no details of the ground upon which he sought that review on 10 May 2001 and ultimately it was dismissed, no detailed grounds having been provided.

8.	The submissions on behalf of the Appellant which has been made before us today by Mr Gill seek to substitute amended grounds of appeal for the appeal which had originally been formulated.  We indicated that we would hear the argument and then rule whether or not we considered that we should give permission to substitute the grounds he thought arguable for those which had originally been proffered.  There is much which is common as between the grounds and the notice of appeal and the matters which Mr Gill argued.  In particular both concentrate upon procedural defects alleging a breach of natural justice or fair play because it is said the Respondents did not see or permit cross examination of witnesses, that there was no proper appeal because the appeal was by way of review not by way of re-hearing and that the agreed procedure between the union and the Civil Service was unfair and ought not to have been applied without consideration of whether it operated unfairly in this particular case or not.  

9.	What however is missing from the original ground of appeal is any suggestion, as we read it, that the procedure was flawed because the Civil Service Appeal Board in the course of hearing the appeal took evidence from a witness contrary to the procedures which should have been adopted, coupled with a denial of cross examination of that witness to the Appellant, and that it thus effectively breached the principle that both parties should be heard.  That ground was sought to be advanced as we see it for the first time in the substituted grounds for which Mr Gill seeks leave.  We shall return to the significance of that in due course.

10.	The first ground that Mr Gill advanced was that the Employment Tribunal failed to take into account the fact that no person acting on behalf of the Respondent in determining to dismiss the Appellant or when carrying out the Respondent’s investigation into the Appellant’s alleged gross misconduct interviewed any person other than the Appellant.  This he submits meant that there was a failure sufficiently to investigate the case.  He prays in aid the well-known guidance from British Home Stores Ltd v Burcnell [1980] IRLR 303 that there should be as much investigation into the matter as is reasonable in all the circumstances of the case.

11.	What the Employment Tribunal had to do was to consider a procedure which they set out in some detail in the course of their extended reasoning.  They acknowledge in answering the question which they were obliged to pose to themselves by section 98(4) of the Employment Rights Act 1996 that there were possibly criticisms of the procedure.  Nonetheless, they came to the view that despite their misgivings they could not say that the Respondents were unreasonable in applying the agreed procedures.  They held that those agreed procedures had been applied and therefore concluded that the dismissal was not unfair.  That, it seems to us, was an application of the balance of fairness against unfairness which Section 98(4) requires.  It is unnecessary because of its familiarity to recite the provisions of that section in this judgment.

12.	The argument that an investigation is necessarily flawed because an investigating officer does not see a witness face to face and thereby assess that witness’ credibility is, we think, overstated.  Whereas it is undoubtedly desirable that investigations should be as full as reasonableness requires, we do not see that the failure personally to interview a witness invalidates a procedure.  It is not a breach for instance of either of the twin central principles of natural justice: first that no man should be a judge of his own case and second that both parties have a right to be heard.  Indeed it might be argued that by seeing the person subject to a disciplinary charge personally the accused is at the advantage which is denied those was are not so seen: it is not a disadvantage to him.

13.	Moreover, we note that the code of practice on disciplinary agreements procedures provides at paragraph 11:

“When a disciplinary matter arises, the relevant supervisor or manager should first establish the facts promptly before recollections fade, and where appropriate obtain statements from any available witnesses.  It is important to keep a record for later reference.  Having investigated all the facts the manager or supervisor should decide whether to, drop the matter; arrange informal coaching or counselling; or arrange for the matter to be dealt with under the disciplinary procedure.”

It is accepted by Mr Gill that there was no requirement in terms there that the witness be seen face to face by one of the investigating officer.  All that is required by that statement of good practice is that statements should be obtained.  In this case it is plain that they were and accordingly we see no reason on that ground to conclude that the Employment Tribunal were in error.

14.	The second ground was that the Tribunal erred by failing to take into account the fact that the Respondent also failed to carry out a reasonable investigation into the question whether there were mitigating circumstances for the Appellant’s conduct.  In this regard Mr Gill relied upon the case of Chamberlain Vinyl Products Ltd v Patel [1996] IRLR 113 and in particular to a passage which is to be found in the judgment of Smith J at page 119 between letters B and G.  In that passage she notes that in many cases the employer’s duty of investigation may be strictly limited to the issue of guilt or innocence.  But there may well be cases, she observed, where some aspect of the background needed to be investigated in order to put the misconduct into proper context.  In those circumstances she noted an Employment Tribunal might be justified in criticising the employer for failing to investigate a point raised in mitigation by the employee.  The case she was dealing was just such a case in which the Employment Tribunal had held the procedure unfair because the employer had failed to investigate a mitigation point.  Accordingly, the Employment Appeal Tribunal rejected an appeal against that Tribunal decision.

15.	What that indicates to us is that the decision was actually made by reference to the primacy of the decision of an Employment Tribunal.  Unless there is some error of law it is the decisions of fact and justified inferences from those decisions on fact which it is for the Employment Tribunal to draw and not for an Employment Appeal Tribunal to second guess.

16.	The two matters which Mr Gill submits were not taken into account by the employer with which the Employment Tribunal should have dealt were first the question of self defence and provocation and secondly the mitigating effects of the Appellant’s illness.  We understand that the point there was that the Appellant may have over reacted because of the severe anxiety state that he may well have been suffering from at the time of the incident and that therefore his conduct might have been excused when otherwise it would not have been.

17.	The Employment Tribunal undoubtedly did deal with the question of provocation as we read their decision at paragraph 8.  They recited Mrs Campbell’s conclusion on the Appellant’s case that a blow which had been struck was as a result of a combination of self-defence and provocation, and in a passage at paragraph 20 they comment that they cannot say that the Respondents acted unreasonably.  In paragraph 21 they say:

“The respondents were faced with an incident of violence and unless there were special circumstances, and we find none here, it would be impossible to say that any reasonable employer acting reasonably could not dismiss on those facts.”

The reference to their finding of no special circumstances here has to be read in the light of their knowledge that they were aware as they have recorded earlier that there were allegations of provocation and/or self-defence.

18.	This does not deal with the question of whether or not the employer should or should not have investigated the medical question.  As to that, the Employment Tribunal could as we see it only reach a conclusion upon matters which were in issue before it and in commenting upon matters which were in issue before the employer.  So far as the matters in issue before the employer are concerned we have been provided with a copy of the submission which the Appellant made to the Employment Tribunal, which is itself an extension we were told of a submission made by him to his Civil Service Appeal Board.  We do not know where the submission to one begins and the other begins.  It may well be because both were prepared upon a word processor and the one document evolved from the other.  Be that as it may there are very few references as we read it within that document to any relevance of the Appellant’s medical state.  One passage providing some of the history and background of the incident which occurred refers to the Appellant complaining to the business performance manager about severe headaches he was suffering and to medication for a number of health problems including work related stress and high blood pressure that was prior to the incident which occurred.  As to the incident itself there is a reference in one paragraph which reads as follows:

“My managers were fully aware of my medical condition and the need for my meal breaks, to continue forcing questions on me and behaving in the way that my manager did as I started my meal break and took my medication was appalling and intimidating.  I would also point out that as I had worked for over five hours I was now required by law to take a break.”

The medical condition there is relevant, if it is relevant to any issue, to that of provocation rather than mitigation.  We can see no other clear reference to the medical condition of the Appellant within that document and certainly no clear indication that the Appellant was relying upon his medical state in mitigation of what would otherwise have been an unjustifiable attack upon a superior.

19.	When he came to submit his originating application to the Employment Tribunal, under the heading ‘Details of Complaint’ the only reference that we can see to his medical condition was the third paragraph in which he says this:

“Prior to and during the incident I made it clear to my manager that I was entitled to and needed a break, not least because of medical treatment I am receiving for serious anxiety.”

That is very far removed from an argument that the employer’s decision was flawed because the employer failed to make reasonable inquiries about the medical condition which has been advanced by way of mitigation, or which would naturally have appeared to have any link with mitigation of the seriousness of any offence found to have been proved.

20.	We take it as axiomatic that in reviewing the fairness of the decision of an employer to dismiss only those matters which appeared to warrant investigation would have been the proper subject of investigation.  Here it seems to us from the material that we have reviewed that there was no sufficient highlighting of the Appellant’s medical state as would necessarily have required an employer to have investigated that.  The possibility that it might give rise to mitigating circumstances does not appear to have been raised so far as we can see before the Employment Tribunal in the originating application.  We do not think we can criticise the Employment Tribunal for failing to fault the employer on the same ground.  We note that in the original notice of appeal submitted to this Tribunal there is no clear argument as to mitigation although paragraph 23 of the notice of appeal simply reads “the medical condition of the Appellant at the time of the alleged assault.”

21.	We therefore think there is no sufficient basis here for deciding that there was an error of law in the decision making process of the Employment Tribunal.  As to ground 3 Mr Gill argued that the Tribunal misapplied East Hertfordshire District Council v K Boyten in failing to consider the unreasonableness of the procedure.  In East Hertfordshire District Council v K Boyten Forbes J for this Tribunal said this at page 348 of a report which begins at Industrial Relations Law Reports 1977 at page 347:

“We cannot find it possible to say, in a case of this character, at any rate that an employer, in following such an agreed procedure, could be said to be acting unreasonably.  Of course there may be an argument that the code could be improved, or that greater safeguards could be included.  But that is not the point of this case.  The point is that there is a code, carefully agreed between the parties, and, the way we look at it, it is not for an Industrial Tribunal, or indeed, this Appeal Tribunal to rewrite an agreed code of that kind which has been hammered out by both sides of industry.  No employer, it seems to us, should be accused of acting unreasonably in those circumstances, if the employer follows a code which has been arrived at in that way.”

22.	Mr Gill recognises that that is authority to the effect that in cases similar to that of East Hertfordshire District Council v K Boyten the fact there is an agreed procedure between unions and management which is followed will normally resolve the issue of fairness but he points to Vauxhall Motors Ltd v Ghafoor [1993] IRLR 376 for an example that it is not inevitably the case.  Upon the facts of that case this Tribunal presided over by Judge Hardgrove QC determined that an agreed procedure had nonetheless resulted in unfairness.

23.	That of course raised the question as to what it was that was manifestly unfair about this procedure.  We think that the Employment Tribunal were not even arguably in any error of law by applying the words of East Hertfordshire District Council v K Boyten.  There was as we see it nothing which was inevitably unfair which would have required them to take a different approach.  It follows that we do not see that there was an error of law there nor one which is arguably present.

24.	The fourth ground sought to be advanced was that the Tribunal’s decision that the Respondent acted reasonably was perverse.  In circumstances which included Mrs Campbell not interviewing any witness other than the Appellant as we have already indicated this ground, which overlaps significantly with the first, has in our view no substance as demonstrating that the Employment Tribunal were necessarily wrong and we should emphasise that the decision in this respect is for them and not for us unless we can detect an error of law.

25.	The fifth ground and the final ground is this.  That the Tribunal failed to take into account that the appeal which the Appellant was afforded by the Civil Service Appeal Board was not a proper rehearing.  We were told that at the hearing the Board had invited Mr Ricks who was the victim or the aggressor depending on how one saw the original incident giving rise to the dismissal to address the Appeal Board.  We were told that the Appellant was not permitted to cross examine him yet the Appeal Board determined that Mr Ricks was a credible witness.  This material we were told was before the Employment Tribunal even if not quite in that stark form.  Accordingly it is submitted that the process of the Appeal Board was such as to deny the Appellant a fair hearing.  Effectively it had heard one side of the matter and not the other.
	
26.	We approach that ground in this way.  First, it is not dealt with by the Employment Tribunal in terms, unless the comprehensive approval which it gave despite misgivings to the overall procedure covers it.  We note that there was nothing in the originating application which makes this point nor was there anything to this specific effect in the original notice of appeal.  The matter raised before us we think must inevitably fail on these bases.  First, it does not appear to have been argued before the Employment Tribunal as such.  Secondly, if it had been a serious issue which the Appellant considered himself unfairly done by we would have expected it to have formed part of the notice of appeal which was originally submitted to this Tribunal.

27.	It appears that we are therefore being asked to find that the decision of the Employment Tribunal is in error of law upon a basis which was not argued below nor one which was appealed in time if indeed it had been argued below.  We think therefore that the appropriate course so far as this ground of appeal is concerned to refuse leave to substitute this ground for any of the grounds which were originally before this Tribunal.  It should not be thought however that our refusal is simply technical, although we have exercised our discretion on that technical basis.

28.	We would have considered that there would have been little force in the point.  For these reasons: the essence of fairness is giving each party a proper chance to address the case against him or her or to argue the case for him or her.  That may be done in many different ways.  What is essential however is that it is done.  Thus, if a procedure is that material is received orally which is new, and contrary to the interests of one party, justice and the principle which we have expounded demands that the other party has a chance to address it.  What is argued by Mr Gill is that justice demanded not just that the matter be addressed or there be an opportunity to address it but that it should be addressed in a specific way, that is by cross examination.  We note that at the Civil Service Appeal Board a record is made that there were submissions made orally to it.  That appears to be a reference, and we so take it, to both sides having their say.

29.	If it is the case that Mr Ricks answered questions addressed to him by the Tribunal he did so in front of the Appellant who is recorded as being present.  Submissions made either by him or on his behalf seem to us to be a proper opportunity to address anything prejudicial which may have come out of that questioning.  Accordingly, we would not have been inclined to see this as necessarily a reason for falsifying the decision of the Employment Tribunal.  We would have expected, had the matter been raised before the Tribunal, that they would have taken it into account in drawing the balance that they did but as we have said it appears that it was not specifically argued before.

30.	We have looked at each of the grounds individually, lest there be any risk by concentrating upon the individual we missed the eloquence of the totality.  We should say that we have considered the totality of the matters complained both in the original notice of appeal and in that which substitution is sought and we have concluded that they do not give rise to an arguable appeal.  Accordingly it follows that so far as the suggested new grounds are concerned we refuse leave.  We should make it clear that it is on the basis that we consider they have no reasonable prospect of success.  The only exception is the ground which we have specifically dealt with, ground number 5 which fails also on the basis set out at paragraphs 26 and 27 above. It follows that the appeal must be dismissed.