Appeal Nos	EAT/0657/02/ILB  			EAT/0344/02/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 March 2003

Before
HIS HONOUR JUDGE J McMULLEN QC
MR J R CROSBY
MR G H WRIGHT MBE

MR JAYASURIYA	APPELLANT

MEAT HYGIENE SERVICE 	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR A TOLLEY
(of Counsel)
Instructed by:
Office of the Solicitor 
Department for Work and Pensions
Department of Health 
(Employment Team)
New Court
Sol Employment Room 523A
48 Carey Street
London WC2A 2LS

	
For the Respondent	MS J BRENNAN
(Solicitor)
Messrs Burton & Co
Solicitors
Stonebow
Lincoln LN2 1DA	

HIS HONOUR JUDGE J McMULLEN QC

1	This is case is about the investigation into an allegation of misconduct within the context of an unfair dismissal claim.  We will continue to refer to the parties as Applicant and Respondent.  It is an appeal by the Respondent in those proceedings against a Decision of an Employment Tribunal sitting over four days at Nottingham, Chairman Mr J C Traylor, registered with Extended Reasons on 13 March, liability, and 14 May 2002, remedy.  The Applicant was represented by Mrs Brennan, solicitor, and the Respondent by Mr Tolley, of Counsel, both of whom appeared before us.  

Introduction

2	The Applicant claimed unfair dismissal and direct race discrimination.  The Respondent contended it dismissed the Applicant for misconduct after a reasonable investigation had been carried out and denied race discrimination.  The Notice of Appearance provided this:
“The respondent has considered carefully all the evidence in relation to the serious allegations made against and by the applicant and has properly conducted an investigation.  The decision to which the respondent came, in finding the applicant guilty of gross misconduct was reasonable, and was not in any way influenced by the fact that the applicant is of Asian origin.”

3	The essential issues as defined by the Employment Tribunal were to determine whether the Applicant had been dismissed for misconduct, and if so, whether the dismissal was fair and whether or not the Applicant’s race played a part in it.  The Employment Tribunal found that the Respondent unfairly dismissed the Applicant and ordered it to pay £6,201.27, a sum reduced by 75% to reflect its assessment of the chance that the Applicant would have been dismissed fairly, had the Respondent carried out a fair procedure, pursuant to the principles in Polkey v AE Dayton Services Ltd [1988] ICR 142 HL. It dismissed the Race Relations Act claims; there is no appeal.  The appeal by the Respondent is against the finding on liability for unfair dismissal. The Applicant abandoned his appeal against the assessment of compensation. 

4	The events to which this claim relates date back to June 1999.  There has, however, been a complicated procedural history for the Applicant originally sued Lincs Turkeys Ltd and a Decision by the Employment Tribunal that his claim was not maintainable against Lincs Turkeys was made some time in 2000.  

5	That was the subject of an appeal and on 2 February 2001, His Honour Judge Pugsley and Members dismissed his appeal.  Permission was refused to appeal to the Court of Appeal; we understand that permission was sought and refused by the Court of Appeal, thus the claim is maintained solely against the current Respondent.  

6	The grounds of appeal, as argued in a Notice of Appeal and a Skeleton Argument and oral submissions today, are that the Employment Tribunal failed to apply the correct test, that is that there was a range of reasonable responses to the circumstances facing the Respondent.  The Tribunal wrongly decided that it was necessary to conduct some form of quasi-legal investigation and that the Applicant had been represented by an officer of his trade union at the relevant internal hearing, and points now raised had not been suggested there.  

The facts

7	The Respondent is a statutory body which took over the function of ensuring hygienic processes in meat production from local authorities in the 1990s.  The Applicant had been employed as a meat inspector since 1979 by local authorities and other bodies, and transferred his employment to the Respondent in 1995.  From 1 January 1996 he worked at premises owned by Lincs Turkeys at Spalding, Lincolnshire.  His duties were to examine and monitor the processing of turkeys within the factory.  The factory employed about sixty people.  The Applicant was, however, the only employee of the Respondent.  Naturally, his duties had the potential to conflict with the factory management and he had the power to stop production if, in his judgment, the standards of hygiene were not met.  The Respondent had a veterinary surgeon visit the premises each day and a line manager every four to six weeks.  The Applicant had a clean disciplinary record.  

8	A complaint was made by Jennifer Cuthbert, a 17 year old woman employed by Lincs Turkeys at the relevant time, but who had subsequently left, alleging sexual harassment by the Applicant as the reason for her departure, and indicating that if the Applicant was no longer there, she would come back.  The matter was referred for investigation to Mr Tom Kelly; the Applicant was suspended while the investigation was carried on; the suspension was made by Mr Barry Gidman.  Mr Gidman is the Regional Director and Mr Kelly the Personnel Manager of the Respondent.  

9	The investigation by Mr Kelly included an interview with Miss Cuthbert in her home in the presence of her mother; notes of the investigation were prepared.  The investigation unearthed a number of allegations made by Miss Cuthbert against the Applicant.  The Applicant was also interviewed by Mr Kelly at his home and notes were created; the Applicant’s union representative was present.  

10	The investigation included interviews with a total of 14 people: 12 employees from Lincs Turkeys, the Applicant and one employee of a different organisation.  The interviews were reduced into writing, and made available to the Applicant.  He was required to attend a disciplinary hearing by a letter of 7 June 1999, which took place on 16 June, where he was represented by his union official.  The hearing went on for three and a half hours, conducted by Mr Gidman.  He had with him all of the witness statements and a report prepared by Mr Kelly.  The report indicated that from the material disclosed in the interviews there was a disciplinary case for the Applicant to answer.  

11	The Tribunal noted in its findings a number of discrepancies between statements made by those who supported Miss Cuthbert and criticisms are made of the procedure adopted for the enquiry.  A number of incidents were the subject of investigation which were, or could have been, seen by potential witnesses.  The Tribunal made criticisms of the failure to investigate, for example, all of the people - some 15 - who were on a bus when one of the incidents alleged against the Applicant took place. Nevertheless, those on the bus named by either the Applicant or Miss Cuthbert as having a contribution to make were interviewed.  

12	The Tribunal pointed out contradictions which were not explored or resolved by Mr Gidman in the disciplinary hearing and it decided that it was incumbent upon Mr Gidman to investigate further.  The Applicant had contended that the allegations were a put-up job and that Mr Gidman was obliged to conduct his own independent investigation.  The Tribunal noted that some of the allegations made by Miss Cuthbert were without any independent witnesses, and, further, that Mr Gidman had accepted the version of Miss Cuthbert without hearing from her personally and without putting to her the version of events given by the Applicant.  

13	Mr Gidman placed weight on other witnesses who gave information which had been suggested by Mr Kelly to show a propensity, on the Applicant’s part, for sexual harassment; the Tribunal found that this was untested information and criticised Mr Gidman for his failure to make any further attempt to investigate it.  Mr Gidman accepted that the allegations made by Miss Cuthbert constituted gross misconduct in the form of sexual harassment.  The Applicant was summarily dismissed.  

14	The Tribunal concluded by saying this:
“50 ……. We believe a reasonable employer should have taken steps to satisfy himself as to whether the Applicant or his accuser and the other witnesses were correct.  He should have explored these face to face in view of the contradictions.  In addition he should have made investigations as to who many people were on the bus where some of the allegations were said to have taken place and taken steps to investigate with those witnesses.”
51  In making this decision we accept that there is no obligation on an employer to have a face to face confrontation of witnesses with cross-examination.  However, we believe, in this case, given the resources and circumstances of the employer and that they had free access to the workforce at Lincs Turkeys Mr Gidman could have taken the time to make these face to face investigations and decide which version of events he believed.  We take into account the fact that Mr Kelly wrote a statement out for Miss Cuthbert and also that she signed it as being correct.  It would clearly have been inappropriate for Miss Cuthbert aged 17 to be called to accuse the Applicant face to face but Mr Gidman could have gone on to see her.”

The legal principles

15	There is no dispute that the procedure corresponded to the Respondent’s disciplinary process, nor as to the applicable law in this case.  Both advocates accept that the Tribunal correctly directed itself by reference to section 98(4) of the Employment Rights Act (fairness) and the relevant authorities which it set out and which we hold to be BHS Limited -v- Burchell [1978] IRLR 37; Post Office -v- Foley [2000] IRLR 827; and Ulsterbus Ltd -v- Henderson [1989] IRLR 251.  The Tribunal also considered that sexual harassment is correctly defined in Porcelli -v- Strathclyde Council [1986] ICR 564.  

The Respondent’s case

16	The Respondent’s case is that the Tribunal has imposed an obligation beyond that of a reasonable employer upon the Respondent’s management to conduct an investigation in a way prescribed by the Tribunal.  Notwithstanding its correct direction, contends Mr Tolley, the Tribunal has failed to apply that direction to the facts. The Tribunal also noted that Mr Gidman had given weight to the information about the Applicant’s propensity propensity to assault females.  In the circumstances, the Tribunal erred when it decided that a reasonable investigation had not been conducted by Mr Gidman.  

The Applicant’s case

17	The Applicant’s case, as advanced by Ms Brennan, includes an acceptance today that the passage we have cited relating to Mr Gidman going to see the Applicant is incorrect.  What she contends is that the Respondent, through its officer of Mr Kelly, should have gone back to Miss Cuthbert and put more points to her.  Thus it is that Mr Tolley’s central criticism of the Tribunal, for imposing on Mr Gidman an obligation himself to form a view from live evidence, is not resisted at this hearing.  

Conclusions

18	In our judgment, the submission by Mr Tolley is correct. Given that the complainant was 17 and had already been interviewed, there was no obligation upon the decision maker himself to conduct a one-to-one interview which would likely be in the absence of the Applicant.  It is accepted that there is no obligation to set up cross-examination; what is required in such an investigation is fairness.  This investigation elucidated the complaint by the Applicant and made sure that the Applicant knew it; knew the evidence upon which it was based, that is the witness statements taken by Mr Kelly, and had an opportunity himself, through his representative, to put his case.  

19	Imposing upon the decision maker the personal obligation to interview a complainant is not correct.  The obligation is to behave fairly and to conduct as much investigation as is reasonable in the circumstances. Such investigation is to be informed by the range of responses of a reasonable employer - see Sainsbury’s Supermarket -v- Hitt [2003] IRLR 23, paragraphs 30 - 34 per Mummery LJ.  The Tribunal in this case has taken account of what it considers to be defects in presenting the material to Mr Gidman.  We disagree that they are defects.  

20	We have been taken to a number of authorities which indicate the correct approach. Ulsterbus (above) does not require proceedings to be conducted internally, in the nature of a trial, with cross-examination of witnesses.  See also Fuller -v Lloyds Bank [1994] IRLR 336, paragraphs 21ff, and Hussein -v- Elonex PLC [1999] IRLR 420, paragraphs 24 to 26 and 29.  

21	It was submitted by Mr Tolley (Skeleton Argument at paragraph 28) that the Tribunal appeared to have invented a procedure which would have given the Applicant greater grounds for complaining of unfairness, in that what would have been required was an endless proliferation of evidence.  While putting the case very strongly, we see some force in his argument.  We can see the difficulties, as Ms Brennan accepts, in going back to re-interview the complainant.  

22	Fairness involves disclosure by the Respondent of the material used by the decision maker. That was done in this case. It was an error to require Mr Gidman to conduct one-to-one further enquiries.  There is every reason for there to be separation between an investigating officer and a decision maker.  It is entirely appropriate for those functions to be performed by separate persons, and for all of the material available to the decision maker, through the investigating officer, to be given to the Applicant and his representative.  

23	It was further contended that the Applicant and his representative could have raised points at the hearing with Mr Gidman which are now raised, and which were raised at the Employment Tribunal.  In other words, if it had been said on behalf of the Applicant that it was unfair to proceed without any further communication with either the complainant or other witnesses, that would have been a factor for Mr Gidman to weigh; we do not know what his response would have been.  

24	It is common ground that it was inappropriate, and not demanded by fairness, for Miss Cuthbert to attend to be cross-examined by the Applicant’s representative. There is substance in Mr Tolley’s submission that points made about the procedure, and about the paucity of investigation, could have been made to Mr Gidman, and Mr Gidman could then have considered what to do. That is not the one we are dealing with.  

25	We accept Mr Tolley’s principal and simple submission that the touchstone in respect of procedural aspects of unfair dismissal under section 98 is that the investigation and the disciplinary hearing should be fair.  In our judgment, the defects which the Tribunal has identified in Mr Gidman’s decision-making process, based upon the investigation made available to him, constitutes a higher standard than that of a reasonable employer making responses within a range available to it, both for the substantive decision and for the decision relating to procedure.  In this case, the Tribunal upheld Mr Gidman’s judgment in that he had an genuine belief, on the material available to him, that the allegations made against the Applicant were true.  Mr Gidman was found to be an honest witness.  The failing in procedure vitiated his honest decision, the Tribunal found.  

26	It will be noted that in the remedy hearing, which was the subject of an appeal by the Applicant, abandoned before today’s hearing and which is now dismissed, it was contended that the Applicant had contributed to his dismissal by way of his blameworthy conduct.  The Tribunal had conducted a split hearing, and, therefore, ought possibly to have considered contribution at the outset. Instead it concentrated solely on primary liability. When considering remedy, it said it had no direct evidence as to the conduct for which the Applicant had been dismissed.  It made no finding that the Applicant was blameworthy in his conduct and so did not record any reduction on that account.  It did, however, record a reduction of 75% based on the principles in Polkey (above) that he would have been dismissed in any event, had the defects not occurred.  

27	We set aside the Decision of the Employment Tribunal on liability and its Reserved Decision on remedy.  It was indicated at the beginning of this appeal that should that be the judgment of the EAT, the Respondent would not seek any Order for costs against the Applicant arising out of his abandoned appeal on remedy.  We would like to thank both the advocates before us today for the careful and expeditious way in which they have concluded the proceedings.  The appeal is allowed.