Appeal No. UKEAT/0032/07/MAA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 March 2007

Before

HIS HONOUR JUDGE BIRTLES
MR J HOUGHAM CBE
MR P R A JACQUES CBE

MS V BOWEN	APPELLANT

MILLBANK ESTATE MANAGEMENT ORGANISATION	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MICHAEL REED
(Representative)
Free Representation Unit
6th Floor
289-293 High Holborn
London WC1V 7HZ	
For the Respondent	MR PETER REDMAN
(Solicitor)
Instructed by:
First Business Support Employment Law Office
Unit 10 Newhallhey Business Centre
Newhallhey Road
Rawtenstall
Lancashire BB4 6HL	

SUMMARY

Unfair dismissal – Procedural fairness/automatically unfair dismissal 
The Employment Tribunal found as a fact that employee was not provided with the Employment Act 2002 Schedule 2 Part 1 Step 2 information but went on to hold that s.98A ERA 1996 was not applicable.

HIS HONOUR JUDGE BIRTLES
1.	This is an appeal from the decision of an Employment Tribunal sitting at London Central on the 14 and 15 September 2006.  The Chairman was Mr R A Hemmings, the members Mr R Graham and Ms J MacIntosh.  The decision was a reserved one and was sent to the parties and entered in the register on 5 October 2006.  The parties were Mrs V Bowen and Millbank Estate Management Organisation.  The unanimous judgement of the Tribunal was that the Claimant’s claim of unfair dismissal fails and was dismissed.  Today, the Claimant, the Appellant here, has been represented by Mr Michael Reed from the Free Representation Unit and the Respondent, who was the Respondent below, has been represented by Mr Peter Redman, a solicitor.  We are grateful as always to the Free Representation Unit for providing representation in cases where otherwise a party might be not represented at all.   

The Employment Tribunal Judgment: the Facts 
2.	The Employment Tribunal made a series of findings of fact which are set out in paragraphs 4 through to 46 of its Judgement.  They are incorporated into this Judgment.  Suffice it to say that Ms Bowen was employed by the Respondents from 6 October 2003 until 12 May 2006.  She worked in the office of the Respondent.  The Respondent is a Tenant Management Organisation which manages the Millbank Estate which is vested in the Westminster City Council.  It manages some 560 council homes located behind the Tate Gallery.  The Respondent has a board of 10 members elected by tenants and leaseholders and the day-to-day operations are undertaken by a team of 9 employed staff headed by the Senior Estate Manager.  There was a dispute between an employee of the Respondent who I shall call Mr W who was a Maintenance Officer and the Respondents.  He was to be the subject of disciplinary proceedings on 20 February 2006.  The month prior to that the Senior Estates Officer, Ms Michelle Crombie, had been absent on leave and in effect, the Appellant had been in charge of the office.  Access to the safe was by keys held by Ms Crombie or by the Appellant.  On that morning, 20 February 2006, all 10 Board members received an anonymous letter making serious allegations against Ms Crombie.  The letter was dated 15 February 2006.  Some of the material attached to that letter could only have come from material kept in the safe.  The likelihood of Ms Crombie being the person who sent the letter is unrealistic given the fact that she had been out of the country at all material times.  The finger of suspicion therefore pointed at the Appellant.

3.	There was a meeting between Ms Crombie and Mr Armin, the Chairman of the Board, and the Appellant was shown the enclosures to the anonymous letter.  There was a discussion about how a third party could have had access to the material which had been kept in a locked safe.  The Claimant was not able to offer any assistance:  See Judgment paragraph 20.  Mr Peter Wright and Mr Pat Fitzgerald commenced an investigation and interviewed various members of staff but not the Claimant.  An investigation statement was prepared by them.  There was then a decision taken to implement a disciplinary hearing.  The process is unclear: Judgment Paragraph 27.  The material part of the Tribunal’s findings of fact are contained in paragraphs 28 through to 32.  They say this:
(28)  the disciplinary hearing was convened on Thursday 2 March 2006.  The Claimant had still not been interviewed regarding the allegations.  She was provided with no documentation constituting the management case against her.

(29)  Her chosen companion, Charles Hunter, was a former treasurer of the Respondent but not a work colleague or trade union representative.  The Respondent would not accept Mr Hunter at the disciplinary hearing and the hearing was adjourned to Wednesday 15 March 2006.  
(30) On Friday 3 March 2006, the Claimant wrote to the Respondent complaining about the disciplinary hearing the day before and requesting and querying the documentation relative to the disciplinary process.  That letter is at page 64 of R1.
(31)  The Respondent sent a letter dated 7 March to the Claimant confirming the adjournment to 15 March 2006.  That letter is at pages 65-66 of R1.
(32)  The Claimant attended the adjourned disciplinary hearing this time unaccompanied on 15 March 2006.  The disciplinary panel consisted of Mr van Vuren in the Chair, accompanied by Neil Thompson and Garba Sana, both Board members.  The Claimant was presented with the management case consisting of the Respondent’s letter to the Claimant, dated 7 March 2006, the investigation statement and its five appendices including the enclosures, the statement of Michelle Crombie and a copy of the Claimant’s contract of employment, reference to its confidentiality clause at page 50 of R1”.

4.	There was then a disciplinary hearing and we have the minutes of that hearing in the appeal bundle at pages 49-50.  The allegations were discussed at the disciplinary hearing on 15 March.  The Claimant wished to write to the Chairman of the Disciplinary Panel with what was called sensitive information which she was not willing to place before, and discuss openly, at the hearing and she undertook to write a letter.  The disciplinary hearing was then adjourned. 

5.	A letter was written by the Appellant on 21 March setting out the issues that she wished to be taken into account by the disciplinary panel.  That was acknowledged.  There was a reconvening of the disciplinary panel on 19 April.  The Appellant did not attend.  The panel considered the evidence and decided to dismiss the Appellant for gross misconduct.

6.	On 11 May 2006, a letter was sent to the Appellant confirming the outcome and her dismissal.  

Employment Tribunal Judgment: Submissions
7.	The Employment Tribunal set out at some length the relative submissions of the representatives of the two parties: see paragraphs 47 and 48.  It is quite clear from those paragraphs that the issue of whether or not the statutory dismissal procedure followed was one which was raised by the Appellant’s representative and responded to by the Respondent’s representative who was Mr Redman.  The Tribunal then set out the law at paragraph 50 of its Judgment and indeed at page 13 of the appeal bundle there is a specific reference to the statutory procedures set out in Part 1 of Schedule 2 for the Employment Act 2002 and the fact that the breach of them will make a dismissal automatically unfair under Section 98 (A) of the 2002 Act.  

The Employment Tribunal Conclusions
8.	These are set out in Paragraph 51 (1) through to 51 (17) of the Judgment.  It is not necessary for us to set them all out but I will read paragraph 51 (6).  It says this:
‘The shortcomings we identify in the process adopted by the Respondent included the unhelpful certainty about the scope and range of the investigation, the failure by the investigators to interview the Claimant, the uncertainty about the authorship of the investigation report, the uncertainty about the process by which at the conclusion of the investigation, a decision was reached, that there was a case to answer and go forward to a disciplinary hearing, the failure to provide the Claimant with the management case i.e. the investigation report, relevant statements and documents and any summary of the management perspective in advance of, and sufficiently in advance of the Claimant to know the management case and to prepare her case accordingly through documents, witnesses, written representations or whatever she considered reasonably necessary to put her perspective forward for consideration; and in the absence of Jose Almedia and Joao Abreu at the disciplinary hearing.

9.	On the specific issue of whether the statutory dismissal procedures were followed, the Tribunal made a finding in paragraph 51 (9) of its judgment which I will quote:
“This is a convenient point also to record our judgment that there were no breaches by the Respondent of the statutory procedures and that the Claimant’s dismissal of the Respondent was not automatically unfair within Section 98 4A of the Act.  Indeed our conclusion that the Claimant for whatever reason she considered justifiable, legal advice or otherwise, failed to meet the expectations of the statutory process and in terms of attending the disciplinary hearing meetings and participating in the appeal process.” 

10.	The Tribunal dealt with this case under Section 98 not Section 98 (A) and went on to hold, that for various procedural reasons, there had been an unfair dismissal.  However, it then went on to consider under Section 98 the question of whether or not fair procedures had been followed, the Appellant would still have been dismissed.  They answered that question in the affirmative and therefore found it was a fair dismissal.

11.	Against that Judgment, the Appellant appeals and the Notice of Appeal appears at pages 17-18 of the appeal bundle.  There is, in effect, only one ground of appeal.  In arguing the appeal, Mr Michael Reed from the Free Representation Unit, draws our attention to the specific provisions of Schedule 2 to Part 1 Chapter 1 of the Employment Act 2002.  We are concerned only with Step 2.  That provides as follows:   
2.1 “The meeting must take place before action is taken except in the case where the disciplinary action consists of suspension
2.  The meeting must not take place unless (a) the employer has informed the employee what the basis was for including in the statement under paragraph 1.1 the grounds or grounds given it and (b) the employee has had a reasonable opportunity to consider his response to that information.
3.  The employee must take all reasonable steps to attend the meeting.
4.  After the meeting, the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it”.

12.	Step 2 is headed “Meeting”.  It follows Step 1: “Statement of Grounds for Action and Invitation” and comes before Step 3: “Appeal”.  We fully accept that the procedures in Schedule 2 Part 1 Chapter 1 are to provide a basic fair procedure for dismissal and disciplinary procedures.  However, because they are part of an Act of Parliament they have to be followed.  We have been referred to a number of authorities and the leading case is now Alexander – v- Brigden Enterprises Ltd. [2006] IRLR 422. 

13.	Our attention has been drawn by Mr Redman to paragraphs 36 and 37 of the judgment in that case. A careful reading of paragraph 36 makes it quite clear that the question of the operation of Section 98 (4) of the Employment Rights Act 1996 only comes into play once the statutory procedures have been complied with.  It does not seem to us that the other cases cited to us, namely Drapers and Mears [2006] IRLR 869 and YMCA Training –v- Stuart [2006] IRLR 185, have any bearing on the factual matrix of the case in front of us.  Mr Reed’s submission is a simple one.  If one looks at the findings of fact by this Tribunal and particularly paragraphs 28 and 32 it is crystal clear that this Employment Tribunal found that the Appellant was not presented with the management case against her until the morning of the adjourned disciplinary hearing on 15 March 2006.  Having been given that material the disciplinary hearing then commenced albeit it was later adjourned for the Appellant to write a letter to the Chairman.

14.	The Tribunal from its findings of fact in paragraphs 28 and 32 specifically concluded in paragraph 51 (6) that there was a failure to provide the Claimant with the management case i.e. the investigation report, relevant statements and documents and any summary of the management case in advance of the disciplinary hearing for the Claimant to know the case against her and prepare her case accordingly through documents, witnesses, written representations or whatever she considered reasonably necessary to put her case forward for consideration.  It seems to us that having found those facts and reached that conclusion the Tribunal was in error in paragraph 51 (9) of its Judgment when it said that there were no breaches by the Respondent of the statutory procedures and the Claimant’s dismissal by the Respondent was not automatically unfair within Section 98 (A) of the Act.  

15.	In our judgment on the facts of this case as found by this Tribunal, there was a clear breach of Step 2.  As Mr Reed has pointed out, the effect of Regulation 12 of the Dispute Resolution Regulations 2004 is to operate a guillotine procedure at each stage of the three steps.  It is irrelevant that when the disciplinary tribunal reconvened in April, the Appellant did not attend.  The breach had occurred on the morning of 15 March 2006 and the guillotine then came down making a breach of Step 2 and the dismissal automatically unfair under Section 98 (A).  For those reasons, this appeal is allowed.     

16.	Disposal
We have carefully considered the question of disposal.  Mr Reed, for the Appellant, urges us to remit this case but to a fresh tribunal.  We have, in fact, substituted our decision on Section 98 (A), for that of the Tribunal.  The remission would therefore only be on the issue of compensation.  It being an automatically unfair dismissal under Section 98 (A) the question of whether or not there should be a Polkey reduction of the compensatory award and if so, how much, would be a matter for that Tribunal but that would be the only matter to be tried.  

17.	On the other hand, Mr Redman, invites us to remit the case to the same Employment Tribunal.  We note that this hearing lasted some 2 days on 14 and 15 September 2006.  It seems to us that it would be wholly disproportionate for us to remit this case to a fresh employment tribunal bearing in mind that the original Employment Tribunal has only heard all of the facts of this case and the members will have reread their notes when they come to consider the matter again.  It seems to us that the issue can be dealt with by way of submissions, but that is a matter for the Tribunal. 

18.	It would be quite disproportionate in our view for us to remit this case to a fresh tribunal to hear evidence solely on the question of whether or not there should be a Polkey reduction of the compensatory award.  We have also borne in mind the factors set out by Mr Justice Burton in the Sinclair Roche case.  We do not accept Mr Reed’s submission that this Tribunal will be affected by the fact that we have allowed an appeal on a point of law and substituted our decision for it.  Neither do we think that this Tribunal will in any way be prejudiced or biased against the Appellant.  There is certainly no evidence to suggest that at all.  We have no doubt and every confidence that the Employment Tribunal will deal with this matter fairly and justly on the facts that it has already found.

19.	The Appeal is allowed and the case is remitted to the same Employment Tribunal for assessment of compensation.