Appeal No. EATS/0056/03

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH EH3 7HF

	At the Tribunal
	On 8 March 2004

 
Before
THE HONOURABLE LORD JOHNSTON
MR M R SIBBALD
MISS G B LENAGHAN

 

EAST AYRSHIRE COUNCIL	APELLANTS

 

 
HUGH CAIRNS	RESPONDENT

 
 
Transcript of Proceedings
 
JUDGMENT

 

 

 

 

	APPEARANCES

 

For the Appellants	Mrs A Forrest, Solicitor
Of-
East Ayrshire Council
Administration & Legal Services
Council Headquarters
London Road
KILMARNOCK   KA3 7BU

 

For the Respondent

 

 

 

Mr L Baillie, Solicitor
Of-
Messrs Ness Gallacher
Solicitors	
Stewarton Chambers
95 Stewarton Street
WISHAW   ML2 8AG

 

LORD JOHNSTON:
 
1.	This is an appeal at the instance of the employer against a decision of the Employment Tribunal sitting in Glasgow to the effect that the now respondent had been unfairly dismissed.  There was a finding of contribution to the extent of 40% and a substantial monetary award.  The latter two elements are not attacked in the present appeal.
 
2.	The background to the matter is that the now respondent was employed by the appellants in a Home looking after vulnerable children.  It was alleged that he assaulted one of them, as a result of which an extensive investigation was carried, out leading to his dismissal.
 
3.	In a comprehensive judgment the Tribunal rehearse the evidence and then reach the following conclusions:-
 
“The Tribunal found that the reason for applicant’s dismissal was related to conduct.  It was therefore a qualifying reason in terms of Section 98(1) of the Employment Rights Act 1996.  The question of whether or not the dismissal of the applicant was fair in terms of Section 98(4) of the 1996 Act depends upon whether in the circumstances (including the size and administrative resources of their undertaking) the respondents acted reasonably or unreasonably in treating the applicant’s conduct as a sufficient reason for dismissing him.  That question has to be determined in accordance with equity and the substantial merits of the case.
 
Notwithstanding considerable deliberation at a meeting of the Tribunal members on 7 March 2003, the Tribunal was divided in its decision.  In the opinion of the majority the applicant was unfairly dismissed.  The minority view was that the dismissal of the applicant was fair.  The majority was not satisfied that the respondents carried out as much investigation into the matter as was reasonable in all the circumstances.  While much information was before Mrs Gibson no opportunity was taken by her to question the child.  There was no visit to the site of the incident by any of the respondents who were involved either at the investigation stage, during the disciplinary hearing process nor at the appeal hearing.  There was no follow up on the discrepancies between the witness statements provided by Ms Murphy and Mrs Jackson on the various dates when they prepared statements or were interviewed as part of the investigation.  The majority was concerned particularly by the inconsistencies in Ms Murphy’s statements.  The applicant and his brother claimed that other children were present at the time when Ms Murphy arrived upstairs.  Those children were not interviewed. Ms Murphy was alleged to have witnessed the applicant holding the child by the throat.  The Tribunal heard conflicting evidence about whether the mark was located either near the child’s collar-bone or on his neck.  There was no dispute that there was a mark of some sort on that part of the child’s anatomy.  What was disputed was the cause of the mark and whether it could have been attributed to events of the evening of 4 August 2001.
 
In addition, there were a number of failures by the respondents to adopt a fair procedure.  There was a delay initially in carrying out the investigation.  The respondents offered the applicant the opportunity to work at their Bellsford Unit rather than be suspended.  He chose to be suspended. The majority view was that prior to the applicant’s suspension the respondents should have involved him in the investigation process.  In their view, he should have been interviewed at the same time as interviews were conducted with the other members of staff, that is around 10 August 2001.  Instead, he was informed on 17 August that he was either to transfer to the respondents’ Bellsford Unit or be suspended.  He was not interviewed as part of the investigation process until 24 August 2001.
 
The majority also considered that the fact that no site visit was made by any of the respondents’ management and, in particular, that the investigating officer Mr Laing did not visit the site was significant.  Mr Laing’s handling of the investigation was inept, perhaps because of his inexperience in being involved in such a procedure.  The majority considered that there should have been further investigation by the respondents prior to the disciplinary proceedings commencing or once the disciplinary hearing began.  The majority concluded that the respondents’ failure in this regard was a material breach of the respondents’ own disciplinary code.  (Production R2).  They also considered that Mrs Gibson’s handling of the disciplinary process was flawed.  She appeared to assume two roles.  The majority considered that there was not a full and proper investigation by Mr Laing as a result of his failure firstly, to visit the site and, secondly, to check Ms Murphy’s statements for inconsistencies.  He made no attempt to check whether there may have been other children present when Ms Murphy claimed she saw the applicant with the child.  By failing to do so, Mr Laing was not then in a position to interview these potential witnesses.  In the majority’s view the lack of fullness of the inquiry and the need for a robust and rigorous investigation meant that the respondents’ procedure was inadequate and therefore flawed.
 
The Chairman dissenting, did not agree with the views expressed by the majority that the respondents had failed to give the applicant a reasonable opportunity to respond and to state his case.  While there were some failings in the procedures adopted by the respondents, the Chairman did not consider that these failures were so material as to render the dismissal unfair.
 
The Chairman concluded that the respondents were entitled to dismiss the applicant on the basis that they entertained a reasonable suspicion about the applicant’s guilt, they had grounds to form that belief and they carried out such investigations as was reasonable in the circumstances.  The Chairman considered that the evidence of Ms Murphy was of particular relevance.  Ms Murphy stated very clearly in her evidence to the Tribunal that “I saw what I saw” when she was standing in the corridor.  She did not retract from the position which she had maintained throughout the investigation and the disciplinary proceedings.
 
Much was made by Mr Michael Cairns in his evidence of the fact that Ms Murphy’s statements changed, particularly regarding where exactly on the child’s anatomy she saw a red mark, coupled with the fact that this was not mentioned in her initial statement.  Mrs Gibson was faced with a situation of having to reach a conclusion based on the evidence of the applicant who denied having grabbed the child which was countered by Ms Murphy.  While Mrs Gibson did not interview the child herself, his statement from the note of the fact finding with him was that this was what happened.  In addition, Mrs Jackson in her evidence was clear that the child mentioned to her shortly after the incident that the applicant had held him by the throat.  There was a red mark on the child.  The child was clearly distressed following the incident.  There was no suggestion that the applicant had not removed the child’s t-shirt.  He admitted having done so although he said that he had used “minimum force”.  However, it was not suggested on behalf of the applicant that the child was not upset nor that he had not lodged a complaint although he later withdrew it.
 
The Chairman considered that Mrs Gibson was entitled to take all these matters into account in reaching her decision to dismiss the applicant.  While it was argued on behalf of the applicant that Mrs Gibson had made up her mind at an early stage the Chairman was not satisfied on this point.  Mrs Gibson’s evidence was that she took two days to reach her conclusion.
 
While it was the unanimous view of the Tribunal that several members of the respondents’ management team were clearly inexperienced in handling disciplinary procedures, the Chairman was satisfied that Mrs Gibson took all the relevant matters into consideration before reaching her decision.  In addition, the applicant was afforded the opportunity to attend a lengthy appeal hearing at which he was again represented by his brother.  In his written appeal against dismissal the applicant did not mention that there were other children present although considerable time was spent in pursuing this point during the Tribunal hearing.
 
The Tribunal was again unanimous in finding it surprising that the respondents prepared such an abbreviated report of the appeal hearing given that it had lasted 4 hours.  That document provided very limited information about the hearing itself.
 
The majority view was that the respondents again failed to act reasonably at the stage of the appeal hearing in that it was open to the respondents to adjourn the appeal hearing in order to arrange a site visit.  They were also of the view that the respondents should have questioned more closely how far open was the fire door and whether or not it obscured Ms Murphy’s view when she reached the top of the stairs and turned into the corridor.
 
The Chairman again dissented from this view.  The issue for the Tribunal was not to satisfy themselves beyond reasonable doubt but to assess on the balance of probabilities whether the respondents adopted a fair procedure and to apply the test set out in Burchell.  The Chairman was satisfied that in the circumstances the respondents had grounds for their suspicions, that they carried out as much investigation as was reasonable in the circumstances and the decision was within the band of responses open to them.  Mrs Gibson had before her compelling evidence from Ms Murphy who witnessed part of the incident.  Mrs Gibson also had Mrs Jackson’s evidence of what she was told by Ms Murphy and also Mrs Jackson’s own evidence as to what the child told her when she saw him in his bedroom soon after the incident.  While Mrs Gibson did not herself interview the child she had a statement available of what he said had happened.  The alternative would have been for Mrs Gibson to disregard all that evidence and accept the applicant’s explanation.  She did not do so.  The Chairman was not satisfied that Mrs Gibson’s decision was a foregone conclusion. She deliberated on the position before reaching her conclusion.  Her decision was based on two separate factors.  Firstly, Ms Murphy’s evidence that she had seen the applicant with his hand at the child’s throat.  Secondly, that the applicant admitted having removed the child’s t-shirt while the child was struggling.  There was no denial by the applicant that he left the child in his bedroom when he was still upset.  While the minutes of the disciplinary hearing refer to Mrs Gibson’s taking an active part in the questioning they also disclose that the applicant and his brother were given the opportunity to question all the witnesses, with the exception of Mrs Jackson.  The respondents’ decision to adjourn the hearing following the complaint by Mr West and their decision not to recall Ms Murphy was in the circumstances one which they were entitled to reach.  The Chairman found it surprising that Mr Michael Cairns referred to having made his own notes but he accepted that he did not produce these or refer to them as part of the applicant’s appeal. It was understandable that he accepted that with hindsight, he was perhaps not sufficiently impartial to act as his brother’s representative although he himself had considerable experience in handling disciplinary matters in the course of his own work as an experienced social worker.  The correct test to be applied is whether a reasonable employer acting reasonably could have reached the same decision as the respondents.  Did their decision fall within the band of reasonable responses of a reasonable employer.  The considered opinion of the Chairman was that dismissal of the applicant was an option open to the respondents and that the majority substituted their view of how the matter should have been dealt with for that of the respondent.  The Chairman concluded that the respondents did sufficient to meet the statutory test of fairness set out at Section 98(4) of the 1996 Act.
 
It is the majority view that must prevail.  Accordingly the majority decision of the Tribunal is that the applicant was unfairly dismissed.  The majority concluded that the respondents did not act reasonably in treating the conduct as sufficient to justify the applicant’s dismissal.  Their conclusion was based on the fact that the respondents failed to give the applicant adequate opportunity to explain his position, their failure to interview the child, to visit the locus and to satisfy themselves as to the position of the fire door.  As indicated, the Chairman dissenting, concluded that the respondents had acted within the band of reasonable responses in deciding to dismiss the applicant on the ground of misconduct.  The respondents had afforded the applicant sufficient opportunity to set out his position.  The applicant’s brother had acted unreasonably in his manner of questioning the witnesses and the respondents were entitled to conclude that Ms Murphy should not be questioned further as a result of the method of questioning adopted by Mr Michael Cairns.
 
The majority concluded that the respondents did not act reasonably within the meaning of Section 98(4).”
 
4.	From this quotation, it is immediately apparent that the Tribunal members differed from the Chairman essentially upon the question of the adequacy of the investigation.  Before us, neither party seriously maintained that the Tribunal, both in the majority and minority, had applied the wrong test in the question of determining the reasonableness of dismissal against the background of section 98 of the Employment Rights Act 1996.  The well-known authorities were rehearsed before us but only to establish that point which was not in dispute.
 
Mrs Forrest, appearing for the appellants, submitted that the conclusion of the minority Chairman was correct in relation to the evidence that was heard as she sets it out particularly on page 19 and 20 of the decision.  She emphasised the points that were made by the Chairman in that passage.  Whatever might be the criticisms that could be made of the investigation conducted by the employer, and, even if some departures from procedures would otherwise have been followed had taken place, the substance of the matter was, as she submitted, clearly sufficient to justify a conclusion of an adequate investigation.  The majority had, in her submission, substituted their own view for that of the employer as to the reasonableness of the dismissal in all the circumstances and taken too strict a view of what could be regarded as a general factual issue as to the adequacy and fairness of an investigation.
 
5.	Mr Baillie, appearing for the respondent, reminded us against the background of the well-known cases of Piggott Brothers & Co Ltd v Jackson & Others [1991] IRLR 309 and Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 that this Tribunal was a Court of Appeal not of review and should not address issues of fact unless they have been improperly addressed by the lower Tribunal against the background of an improper application of the law, or, had reached a conclusion upon the evidence that no Tribunal properly instructed could ever have reached, i.e., perversity.  He submitted that neither of these situations existed in the present case.  The Tribunal had properly directed itself in the majority, and, indeed, in the minority, to the correct tests.  Then the issue was one of fact as to the adequacy of the investigation and they had determined it within the confines of their own entitlement so to do.
 
6.	This Tribunal has said many times that it will not interfere upon issues of fact if they had been properly addressed by the lower Tribunal against the background of a proper application of the law.  With regard to the issue of substitution of their own view for that of the employer, it has always to be borne in mind that the Tribunal must reach a conclusion in their own minds as to the reasonableness of the employer’s action and that only becomes flawed if it is apparent that they put themselves in the place of the employer in reaching that decision rather than merely assessing objectively the reasonableness of the employer’s action.
 
7.	In the present case we do not think that the majority have fallen into that error and we recognise that the reasoning of the minority Chairman is equally one to which a Tribunal would be entitled to come.  The fact, therefore, that we have two competing conclusions of fact before us emphasises the care with which this Tribunal must approach the matter if it is to interfere and it can only do so if it is demonstrated to us that the view that was in the minority in this case was the only one which the Tribunal should have reached upon the evidence.  Mrs Forrest accepted that and submitted that that was in fact the case.
 
8.	However, we are quite unable to accept that.  It seems to us that there was room for two competing conclusions as to the adequacy of the investigations each of which was open to the Tribunal.  The fact that the majority have opted for one which is in favour of the original applicant merely endorses the fact that we should not interfere at this stage with their own conclusions.
 
9.	We will therefore accept Mr Baillie’s submissions that we are precluded from interfering with this decision since it is adequately based upon the evidence against the proper test being applied by the majority.
 
10.	In these circumstances this appeal will be dismissed.