Appeal No. EAT/65/02/ST

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 December 2002

Before
HIS HONOUR JUDGE J McMULLEN QC
MRS R CHAPMAN
MR M CLANCY

MR S HAMILTON	APPELLANT

TANDBERG TELEVISION LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS SALLY ROBERTSON
(of Counsel)
Instructed By:
Messrs Gales
Solicitors
512 Wimborne Road
Winton
Bournemouth
Dorset BH9 2ET
	
For the Respondent	MR DANIEL OUDKERK
(of Counsel)
Solicitors
EEF
Broadway House
Tothill Street
London SW1H 9NQ	

JUDGE J McMULLEN QC:

1	This case is about constructive unfair dismissal and employment tribunal procedure.  It is an appeal by the Applicant in those proceedings against the decision of an Employment Tribunal sitting at Southampton, Chairman Mr M.P.Kolanko, over three days in 2001, promulgated with Extended Reasons on 21 November 2001.

2	The Applicant represented himself on the first day and on the second and third days was represented by a Solicitor.  The Respondent was represented by an Officer of the EEF.  Today both parties are represented by Counsel.  We will continue to refer to the parties as Applicant and Respondent.

3	The Applicant claimed constructive unfair dismissal.  The Respondent contended there had been no dismissal, but if there was it was not unfair.  The essential issue for the Employment Tribunal was to decide whether circumstances obtaining at the time the Applicant left the employment amounted to a fundamental breach of contract to which he responded promptly by leaving.  The Employment Tribunal found that there had been no dismissal.  The Applicant appeals against that finding on grounds set out in an amended Notice of Appeal following a preliminary hearing conducted before an Employment Appeal Tribunal presided over by Miss Recorder Slade QC.  In a Skeleton Argument and oral submission today Miss Robertson submits that the Employment Tribunal misdirected itself as to what fair industrial practice consists of, made a perverse decision and made inadequate findings of fact.

4	The Respondent is engaged in the manufacture of systems which are part of the technology connected with satellite communications.  It runs a factory in the silicone belt around Southampton employing 290 people in the United Kingdom; worldwide another 50 or so are employed.  These are sent, by the Respondent, to perform tasks for clients overseas.

5	The Applicant was employed by the Respondent and its predecessor as a Senior Prototype Wireman from August 1998 until the relationship ended by a resignation on notice given on 22 September, which expired on 20 October 2000.  The Applicant’s career at the Respondent had been one in which it is common ground he was skilled at the work he did and no difficulties had arisen.

6	In March 2000 the Respondent introduced a scheme for annualised hours.  This was in response to a downturn in trade, culminating in redundancies. In order to avoid low morale caused by both the departure of staff and the cut-back on overtime, annualised hours were seen as a benefit by management.  On 4 April 2000 a meeting was conducted which included the Applicant and senior management.  This is an important meeting in the Tribunal’s approach to the case.

7	In May or June 2000 the Applicant was being considered for an opportunity to install technology in Australia.  He was keen to do that.  On 15 June 2000 the Applicant had his annual appraisal and the results were communicated to him.  The Applicant scored lower than he felt was justified and made a complaint, so that on 19 June 2000 at a meeting involving Mr Smith, the Production Manager and a representative from Personnel, the Applicant was advised about his appraisal results. Within three days he was told that he was no longer to be considered for the Australian trip.  His appraisal was revised upwards in his favour on 23 June but on 8 July 2000 he issued a grievance.  The grievance had two parts.  It was about his appraisal lower than he considered justified and the removal of the consideration of him for work in Australia.  

8	At a grievance hearing conducted over 25 and 27 July, matters were discussed by two other Managers, Mrs Sparks and Mr Wray.  A decision was made on 28 July which rejected the Applicant’s grievance.  On 30 August 2000 an appeal was held by another Manager, Mr Bredesen, who on 15 September 2000 decided that the appraisal results would stand.  The Applicant wrote a letter of resignation on 22 September 2000, which became effective a month later.

9	The Tribunal addressed itself to the relevant law indicating that it was engaged in discovering whether or not there was a dismissal.  The Tribunal recorded that it had been referred to the relevant authorities which we hold to be Western Excavating v Sharpe [1978] IRLR 27 CA, Malik v BCCI [1995] IRLR 375, and Goold v McConnell [1995] IRLR 516.  The first of those authorities, of course, deals with the test for constructive dismissal, as Lord Denning MR had by then described it.  The second deals with the importance of the implied term of trust and confidence in an employment relationship.  The third makes provision for an employee, as a matter of contract, to have an opportunity to raise a grievance.  

10	The Tribunal found that a number of issues had been raised by the Applicant which caused concern to the Respondent, so that they required investigation.  Four matters were relied upon, touching upon the Applicant’s attitude.  These were:

(1)	A complaint by Mr Hemmings about the Applicant’s attitude to Mr Fulford, who was working on a project for Mr Hemmings.  

(2)	A conversation with Mr Ketteringham regarding the latter’s salary and working arrangements which resulted in Mr Ketteringham speaking and, we divine, complaining to Mr Smith.

(3)	Aggressive behaviour at one of the annualised hours meetings, that is 4 April 2000 to which we referred.

(4)	Accusations to Mr Bailey of favouritism.

11	The substance of those was investigated by the Employment Tribunal by way of direct evidence from certain of those involved and by indirect evidence of the relevant investigators. So it was that the Employment Tribunal heard evidence on behalf of the Respondent from Mr Hemmings, Mr Bailey, Mr Ketteringham, Mr Smith and Mrs Sparks.  For the Applicant the Tribunal heard evidence from him and from five witnesses.

12	The essential issue before the Tribunal was to consider a submission, made on behalf of the Applicant by his Solicitor, that there had been a breach of the fundamental term relating to trust and confidence in the low appraisal and in the withdrawal of the consideration of him for Australia; and that the grievance relating to these two matters had not been investigated properly: see paragraph 8 of the Reasons.  

13	The Tribunal made specific findings about the events.  It upheld the investigation conducted by the relevant managers as being thorough.  It upheld the marks on the appraisal as justified. It did so in firm terms.  It had before it the complaints made on behalf of the Applicant about the imperfection, as he saw it, in the quality of the investigation, but the Tribunal noted that the principal difference between the Applicant’s side and the Respondent’s side was as to the treatment by the Respondent of the seriousness of the incidents.  With one exception, the Applicant did not dispute that the incidents had taken place but challenged the view taken by the Respondent as to their seriousness.  The effect of the appraisal and its adjustment did not live on, since the Tribunal found that the principal purpose of the appraisal was to assess pay for the coming year and in fact it had no impact on his pay.  

14	Realistically, Miss Robertson before us has accepted that the principal issue in this case was the withdrawal of the Applicant from consideration for the Australian job.  It was that, or possibly the treatment of that issue through the grievance procedure, which caused the Applicant to resign.  The Applicant submitted that the Employment Tribunal had erred in failing to carry out a proper investigation and had made a blanket finding, preferring the evidence of the Respondent to that of the Applicant.  In short, the decision was perverse and that no reasonable Tribunal, considering the investigation, could have concluded, that the investigation of the incidents and the Applicant’s grievance was fair, thorough and detailed.

15	For the Respondent, Mr Oudkerk submitted that the Tribunal had not erred in law.  The test for whether a grievance has been conducted properly was set by the Applicant too high.  A failure to follow a grievance procedure may or may not be a fundamental breach but the employer’s action had by Employment Tribunal findings to be categorised as falling outside the band of responses of a reasonable employer. The decision of the Employment Tribunal that the failure to interview a single person engaged in these various incidents could not be categorised as perverse.  The Tribunal had in mind the Applicant’s point throughout and it was not appropriate for the EAT to intervene in this case.

16	The view we have taken is that the Employment Tribunal’s Decision cannot be faulted.  In approaching our consideration of this matter we were asked to request the Chairman of the Tribunal to produce his notes relating to one of the four incidents, or at least part of one.  This application was made very late.  It had certainly been canvassed at the preliminary hearing before Ms Slade and no order was made.  Very sensibly, Miss Robertson’s advice to her client was to try to reach an accord with the Respondent’s legal team about a piece of evidence.  In doing so she was anticipating the approach now taken in the Practice Direction of 9 December 2002.  Sadly, agreement was not forthcoming about what has been described as “the kiss allegation”.  The allegation is this; that at the meeting on 4 April 2000 the Applicant had said to Mr Smith that “he should kiss the ground in front of him and call him God”.  The exchange of correspondence shows there is now no dispute as to whether those words were said.  It certainly did not come out in cross-examination of the Applicant who have his evidence first, nor in the witness statements exchanged between the parties in advance.  It came out when Mr Bailey was cross-examined and Mr Smith adopted it.  It is we think Mr Bailey’s own depiction of the Applicant’s attitude, and not what the Applicant in fact said.   

17	The Employment Tribunal may not have appreciated this distinction, but it was not necessary for it to resolve this matter because, standing back for a moment from the detail, the essential issue is the Respondent’s decision not to consider him further for Australia in the light of management’s perception of his attitude to work and to his colleagues.  Only one of four incidents, is the subject of such intense dispute and, indeed, only part of that incident at that. It is contended that failure by the Respondent to interview all who attended the 4 April meeting resulted in unfairness, because what was said and not said would be clear.  But the Employment Tribunal looked at the investigation and held that it had covered all those directly involved in the incidents which informed the decision on appraisal and the decision on Australia.

18	We decided that it was in the interests of justice, and a proportionate approach, that we would not adjourn these proceedings in order to ask the Chairman to produce his notes.  The application to us had been made very late in the day.  No offer was made of costs and we consider that the Applicant’s case is not affected by the absence of a note on this matter, since we are sure from the correspondence that the words in the kiss allegation were not used by the Applicant.

19	The Tribunal noted that an investigation had been conducted.  The failure by the Respondent to further consider the Applicant for Australia was based upon the problems that would be faced by the Respondent in sending him to the other side of the world when he was exhibiting criticisms of his immediate and very senior management, when the trading position of the Company was insecure and when there was low morale in England.  

20	It is important to note that the management decision was based not solely on their interpretation of what occurred on 4 April, but upon the Applicant’s conduct and attitude to other employees, Mr Ketteringham and Mr Fulford, for example, and upon direct abuse of Senior Managers.  The Employment Tribunal noted that the Applicant had himself kept a note indicating that he had a poor regard of Senior Managers, describing the Vice-President as “Murdoch’s Henchmen”, describing Mr Smith, the Production Manager and Mr Rocha, the Applicant’s immediate Manager, as both “prone to favouritism and cronyism” and condemning the whole of the Personnel Department as inept.  He made criticisms of the annualised hours scheme which he did not agree with.  At a meeting on 3 May he exhibited antipathy to management and criticised their competence and honesty. Thus it was that the Respondent decided to take no further the Australia posting, and management having conducted an investigation into these matters, upheld that decision.

21	As we understand the authorities, an employee is entitled to access to a grievance procedure: see Goold v McConnell above, but what was seen at the time as a radical approach by the EAT, has quite limited scope.  The facts of that case indicate no procedure was available to the relevant employees, that the employer prevaricated and was indecisive and failed to deal promptly, or at all, with the grievances raised legitimately by the employees.  Morison J held, as follows:

“It is clear therefore that Parliament considered that good industrial relations requires employers to provide their employees with a method of dealing with grievances in a proper and timeous fashion.  This is also consistent of course with the Codes of Practice.  That being so the industrial tribunal was entitled in our judgment to conclude that there was an implied term in the contract of employment that the employers would reasonably and promptly afford a reasonable opportunity to their employees to obtain redress and any grievance they may have.  It was in our judgment rightly conceived that the industrial tribunal that such could be a breach of contract:  see paragraph 11.”

22	As a statement of the law we, of course, agree with that.  In this case, none of the criticisms made by the EAT in Goold applies.  There was a procedure, it was activated, it was prompt, it was the subject of an appeal.  The Applicant had an opportunity to have his say.  There was in reality little dispute about some of the matters which formed the basis of the investigation.  The criticism however, is of the Respondent’s judgment as to the seriousness of the incidents and of the quality of the Respondent’s investigation.  It is suggested that the Employment Tribunal erred in law in failing to condemn the investigation.  The standard against which investigation should be judged appears to us, in this case at least, to be the band of reasonable responses.  As we pointed out to the advocates in this case, the Court of Appeal has recently reaffirmed that the band of reasonable responses approach applies to the conduct of investigations as much as to other procedural and substantive aspects of the decision to dismiss a person from his or her employment for conduct. See Sainsburys Supermarkets Ltd v Hitt [2002] EWCA Civ 1588 per Mummery LJ.  That, it seems to us, represents a slight lowering of the standards of fairness in an investigation of a disciplinary matter.  

23	Miss Robertson submitted to us today that we should read across the approach in conduct dismissals into the case of an employer handling a grievance.  We think that is sensible, at least as it is applied in the circumstances of this case, which does carry with it some criticisms of the conduct of the Applicant, albeit arising in the context of the grievance hearing.

24	So, judged against the standard of a reasonable employer, can it be said that no reasonable Employment Tribunal could have found that the failure to investigate every single person at the 4 April 2000 meeting constituted a breach of the standards required of a reasonable employer, such breach being of a fundamental nature entitling the Applicant to leave forthwith?  In our judgment the criticisms made on the Applicant’s behalf of the investigation by the Respondent fall well below that standard.  The Tribunal was fully alert to the Applicant’s criticism and balanced the arguments.  The Tribunal acquitted the Respondent in strong terms and said this of the Applicant:

“9 ... we are satisfied that for whatever reason … for a period certainly of 4-5 months the applicant was acting in a critical, confrontational, and on occasions aggressive manner towards management and fellow employees.”

25	The Tribunal gave reasons for that.  The Tribunal was more impressed with the evidence given by the Respondent’s witnesses than the Applicant’s.  The Tribunal gave reasons for that and did not fall into the error identified by the Court of Appeal in Anya v University of Oxford [2001] IRLR 377 CA, of failing to give reasons for such a generalised comment.  It will be noted that in paragraph 24 of the Court of Appeal’s judgment reference is made to a decision of Morison J sitting in the EAT in Tchoula v Netto Foodstores Ltd 6 March 1998 (EAT/1378/96), where the practice was spelt out.  The President said this:

“It is always unacceptable for a tribunal to assert its conclusion in a decision without giving reasons.”

26	We need not set out each of the paragraphs, since in our judgment the criticism made by Miss Robertson fails on the face of the decision.  There is no finding critical of the Applicant’s evidence or favourable to the Respondent’s evidence which is not supported by reasons:  see, for example, paragraphs 9 and 11.  It will be recalled that the Applicant had put his case very high through his advocate on the day, indicating that the Respondent had concealed the truth, concocted documents had been hell-bent on ensuring that he no longer remained in their employment (Reason paras 8) and had come to the Employment Tribunal to lie and falsify documents (para 11).  Against that submission the Tribunal was bound to make findings which it has reasoned cogently in our judgment.  The Tribunal then came to the conclusion as follows:

“We find no basis for asserting or alleging that the grievance procedure as a whole was anything other than fair, detailed and thorough.”

27	The Tribunal had set out its reasoning perfectly adequately for this decision.  It will be noted, from what we have said above, applying Sainsburys Supermarkets, that this seems to be a higher standard than is required.  Nevertheless, the Tribunal accepted the Respondent met that very high standard and it follows would have done so at the lower standard which we hold to be applicable.

28	In these circumstances the Applicant’s appeal is dismissed.

29	We are grateful to both advocates for the assistance which they have given to us, in completing this case within the timescale and expeditiously.