Appeal No. UKEAT/0796/03/ILB

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 May 2004
Judgment delivered on 26 May 2004

Before
HIS HONOUR JUDGE PROPHET
MR J C SHRIGLEY
MS P TATLOW

MR STEPHEN MELVYN EVANS	APPELLANT

DSDC	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR STEPHEN MELVYN EVANS
(the Appellant in Person)	
For the Respondent	MR TARIQ M SADIQ
(of Counsel)
Instructed by:
The Treasury Solicitor
Queen Anne’s Chambers
28 Broadway
London SW1H 9JS	

HIS HONOUR JUDGE PROPHET

1.	Following a four-day hearing before an Employment Tribunal at Cardiff in May 2004, with Mr J Thomas as the Chairman and Mr Lloyd and Mrs Smail as the lay members, Mr Evans’ complaint of an unfair dismissal was dismissed.

2.	The Employment Tribunal, very sensibly if we may say so, also found unanimously that if the complaint of unfair dismissal had been well-founded, Mr Evans contributed to his dismissal by 90%.

3.	Briefly, the essential facts were that Mr Evans had been employed as a messenger for several years, during which time he was regarded as a good employee, giving no cause for concern to his employer.  Unfortunately that sound record ended following an investigation by the employer into an allegation of harassment from a female employee against Mr Evans, which in due course led to his being dismissed for gross misconduct.

4.	Mr Evans lodged a Notice of Appeal against the decision of the Employment Tribunal.  When the appeal came up for a preliminary hearing at the Appeal Tribunal, Mr Evans had the good fortune to be represented pro bono by Mr Giffin QC, who persuaded the Appeal Tribunal that there was one arguable point which should be considered at a full hearing.  He also prepared an amended Notice of Appeal in respect of that point, which we have found very persuasive.

5.	The point arises in this way.  The employer has a comprehensive policy for dealing with allegations of harassment.  Bearing in mind the sensitivity of such issues, it sensitively provides for the investigation into a situation such as that which applied to Mr Evans to be conducted by a trained independent harassment investigating officer.  What happened, however, was that the employer appointed to that role a Mr Cuthbert, who was not a trained independent harassment investigating officer.  It is conceded by the employer that that was a breach of the procedure.

6.	As soon as he was aware of Mr Cuthbert’s appointment, Mr Evans immediately pointed this out, but the employer insisted that Mr Cuthbert should conduct the investigation, and it was following his report that Mr Evans was duly dismissed from his employment.

7.	Mr Evans’ argument at the Employment Tribunal that that breach of the procedure rendered his dismissal unfair did not find favour with the Employment Tribunal, partly because the Tribunal held that there was a satisfactory explanation for the departure from this policy, and partly because they were impressed by the quality of Mr Cuthbert’s investigation.

8.	We agree with Mr Evans’ submission as set out in the Amended Notice of Appeal, that the Employment Tribunal failed to give adequate reasons as to why, in the light of the evidence, it accepted that the departure from the policy did not cause the dismissal to be unfair.

9.	The Employment Tribunal accepted in one sentence in paragraph 28 of the Reasons that Mr Cuthbert was appointed because of difficulties in the availability of an independent harassment investigating officer.  Although we understand that Mr Evans, who was unrepresented at the Employment Tribunal, did not cross-examine Mr Mabbett (who gave the evidence upon which that sentence is based on) on that point, other evidence pointed to the need for the Employment Tribunal to look very carefully at that matter.
10.	Bearing in mind that Mr Evans had promptly objected to the appointment of Mr Cuthbert, it is difficult to understand why Mr Mabbett did not advise Mr Evans at that time of there being a difficulty in the availability of an independent investigating officer.  Instead, he simply confirmed that his earlier decision stood.  Also, if there was that difficulty, why did Mr Mabbett not seek to involve Mr Evans in reaching an alternative solution satisfactory to both sides?

11.	The Employment Tribunal emphasised that Mr Cuthbert handled the investigation satisfactorily, but it seem to us with respect that that is unlikely to meet what could only be regarded as a very serious procedural error, the consequences of which followed through to the disciplinary process.  Having a policy which ensures that harassment complaints have the attention of a trained independent person is an excellent one.  We cannot see that such a policy can be ignored or not applied by the employer without the most compelling of reasons.  Employees are entitled to expect management strictly to follow these arrangements, and that must be seen as even more the case where it is the employee who draws attention to the breach and is clearly unhappy with it.

12.	We recognise that a procedural step may be overlooked or not followed by an employer, and that a Tribunal may find that that did not affect the overall fairness of the process (see e.g. Fuller v Lloyds Bank plc [1991] IRLR 337); but that principle cannot usually apply to a major plank of the process, such as ensuring as far as possible that the management appointee conducting an investigation into a very sensitive matter which could well lead to dismissal not only has the independence indicated by the policy, but that the employee can be fully satisfied in that respect.

13.	We are not able to discern from the Employment Tribunal’s reasons that they satisfactorily explained why such a major departure from the policy could be justified as not rendering the process leading to Mr Evans’ dismissal as being unfair.

14.	We must, however, emphasise that although we will allow the appeal on the basis of a lack of satisfactory reasons being set out for the Employment Tribunal’s conclusions on this particular point, we are not in a position to decide that Mr Evans was unfairly dismissed.  There is no suggestion that the Employment Tribunal approached its task in any biased or improper way and the appeal process has extracted one particular point only which it is felt needs their reconsideration.  Accordingly, we remit the case to the same Employment Tribunal to look again at the above issue in the light of such further representations as may be put to them at a hearing.

15.	Although no doubt Mr Evans will be disappointed in respect of the finding on contribution, no appeal on that matter has been lodged, and this Tribunal cannot therefore disturb that finding.

16.	The conclusion by the Employment Tribunal following their further hearing will thus be to confirm that Mr Evans was not unfairly dismissed, having regard to and having explained their reasoning, following further representations on the Cuthbert point, or to find an unfair dismissal with a contribution of 90%.  It would seem therefore to be sensible for the parties to attend the further hearing ready to deal with remedy, should that be found to be necessary.