Tan v. Norse Irish Ferries Ltd [2003] UKEAT 0397_03_1709 (17 September 2003)

JUDGMENT Revised APPEARANCES For the Appellant MISS C LEWIS (Of Counsel) Instructed by: Messrs John Halson Solicitors 26 Hope Street Liverpool L1 9BX For the Respondent MR M WEST Representative Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB JUDGE WAKEFIELD This is an appeal by Mr Tan against a decision of an Employment Tribunal sitting at Liverpool on 7 November 2002 by which his complaints of unfair dismissal and breach of contract were dismissed. The brief and undisputed background facts were that the Appellant had been employed by the Respondent since 22 October 1991, latterly at least as operations officer at Canada Dock. Part of his duties was to supervise the work of a security firm which had the contract to provide the security at the Dock. On 7 February 2002 two trailers in the charge of the Respondent were stolen from the Dock. On discovering this fact on the following day the Appellant upbraided members of staff in terms which led to complaints against him by the staff and to the Appellant apologising. On 15 February 2002 the Appellant was suspended from duty for reasons which in terms of the suspension letter were the following: "That you failed to carry out reasonable management instructions in relation to the implementation of new security procedures and in relation to the maintenance and repair of the CCTV system at Canada Dock, as directed by your Operations Manager, Mr Chris Davison. Your abusive behaviour and use of foul language towards the Freight Office Staff at Canada Dock." A disciplinary hearing was held on 6 March 2002 conducted by Mr Armson, the Operations Director. He had also been involved in the investigation of the security lapses which had resulted in the lost of the two trailers. At the conclusion of that hearing there was an indication to the Appellant that a decision would soon follow but in the event Mr Armson conducted further investigations and reconvened the disciplinary hearing for 17 April 2002. A letter to the Appellant informing him of this reconvened hearing set out three matters of concern and attached copies of statements made by some members of the security staff. Following the reconvened hearing the Appellant was dismissed by a letter dated 19 April 2002. He appealed. The appeal was heard by Mr Shepherd, the Managing Director, on 14 May 2002 and the decision to dismiss was confirmed. At the hearing before the Employment Tribunal on 7 November 2002 the parties were, we understand from their representatives before us today, each represented. The decision does not refer to that. Evidence was given orally and there were a number of documents put before the Tribunal. The decision gives no indication of who the witnesses were, what were the conflicts in any oral evidence nor on what basis any such conflicts were resolved. Having made certain findings of fact, the Tribunal found in paragraph 5 of the Extended Reasons that the Respondents dismissed the Appellant: "Because he negligently failed to carry out security procedures." They found that the investigation of the Appellant's conduct had been careful and fair and that the Respondent had reasonable grounds for belief in the Appellant's misconduct. The conclusion then was that the sanction of dismissal was one which the Respondent was entitled in the circumstances to impose. The Appellant argues on this appeal that the Employment Tribunal's decision as to there having been a full and fair investigation, that is to say the Burchell test, and as to the sanction of dismissal being within the range of responses open to the employer in the circumstances, are both wrong in law in that firstly on the evidence before them no reasonable tribunal could have reached such conclusions and secondly that the extended reasons failed in any event to indicate that the Tribunal went through the proper assessment and reasoning processes in terms of both the facts and the law. The representative appearing on behalf of the Respondent, whilst accepting that the decision may not be as full as it could have been, argues that the proper tests were applied and the reasoning adequate. On the issue as to the investigatory and disciplinary processes, we consider that the Employment Tribunal has not set out sufficiently in the extended reasons why they found that there had been a full and fair investigation. There was a clear issue at the investigatory and disciplinary proceedings as to whether in the circumstances the Appellant was disadvantaged by having Mr Armson conducting the disciplinary hearing, he having already been the investigating officer of the Respondent. As to that the Employment Tribunal said in its paragraph 7(c) the following: "The statements of Mr Armson and Mr Shepherd, and the ample documents demonstrate a careful and fair investigation. It did not appear to us that any unfairness was worked by Mr Armson having conducted both the fact-finding investigation and the disciplinary hearing. The documents indicate thoroughness. The letter of suspension and the conversation with Mr Armson told the applicant sufficiently in advance what he was accused of: he cannot but have realized what the respondents meant when they referred to breaches of security and abusive behaviour. The applicant was told enough to enable him to prepare for the hearing. The hearing itself went into proper detail about the incidents." Whilst the dual role played by Mr Armson is not necessarily fatal to a fair investigatory process we consider that the Appellant was entitled to have more explicit reasons from the Employment Tribunal indicating why they felt no concerns in this case. Nor do the extended reasons deal sufficiently in our view with the crucial dispute of fact as to whether the Appellant had been given an instruction at a meeting in January 2002 which it was his duty to implement. This was the subject of discussion at the disciplinary hearing and may have been addressed in oral evidence at the Tribunal. The Employment Tribunal in its reasons says merely at its paragraph 4(f): "In January 2002, Mr Davison, the applicant and a junior member of the security provided at the dock, a supervisor called Pam, changed the procedure so that the final security check reverted to the main gate. They did not tell Mr Armson of this change." Mr Davison, to whom the Appellant had reported at the time of the theft of the trailers, had himself been disciplined and ultimately dismissed by the Respondents. He had apparently cast blame on the Appellant in the course of his own disciplinary proceedings. The Employment Tribunal does not deal with the significance of this nor does it state any view as to whether the absence of any opportunity for the appellant to see at the disciplinary hearing any written record of Mr Davison's allegations against him nor have any opportunity to cross examine Mr Davison at that hearing impacted on the fairness of the proceedings. Additionally, since the Employment Tribunal expressed themselves as satisfied that the disciplinary hearing was fair there was no separate consideration by them of the appeal hearing and whether any defective process below was thereby cured. As to the question whether dismissal was a reasonable response by the Respondent, the Employment Tribunal posed the correct test in paragraph 6 of the decision but then do not in our view on the face of the decision apply that test. They merely say at their paragraphs 7(d) and 7(8): "The applicant's breach of security was a serious matter which the respondents were reasonably entitled to visit with dismissal. The applicant was guilty of conduct serious enough to entitle the respondent to dismiss him without notice." Overall we are satisfied that this decision cannot be upheld. The analysis of the evidence and the explanation of the reasoning processes are inadequate. The parties cannot be sure why the decision was reached as it was nor confident that it was correct in terms of the law. This appeal therefore is allowed. In our view it would not be appropriate either for us to substitute our own view as to whether there had been an unfair dismissal and breach of contract nor for the same Tribunal to be asked to expand on their existing reasons. The case is therefore remitted to be reheard by a freshly constituted Tribunal. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII