Appeal No. EAT/547/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 14th October 1991

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)

	MRS M L BOYLE

	MR A D SCOTT

MR S F NAQVI	APPELLANT

BANK OF CREDIT & COMMERCE INTERNATIONAL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR C V PATEL
(Of Counsel)
Messrs Lawrence & Co
Solicitors
73 Battersea Rise
Battersea
LONDON
SW11 1HN

For the Respondents	MS A WOOD
Solicitor
Messrs Lovell White Durrant Solicitors
65 Holborn Viaduct
LONDON EC1A 2DY

	MR JUSTICE WOOD (PRESIDENT):  This is a Preliminary Hearing of an Appeal by Mr Naqvi from a Decision of an Industrial Tribunal sitting in London (South) under the Chairmanship of Mr Flint.

	The applicant was alleging against his employers, the Bank of Credit & Commerce International that he had been unfairly dismissed.

	The Hearing took some 10 days over a period of 12 months.  The Bank was represented by its Legal Adviser, Mr Sugden and Mr Naqvi was represented, as the learned Chairman puts it, variously, over that period of 10 days.  Although he was represented variously it is right to notice that on every occasion except one, if the records are accurate, he was represented by a lawyer and indeed on many of the later dates he was represented by Counsel.  So that he was, no doubt, properly advised and represented throughout.

	The Tribunal reached a unanimous Decision on the result of his claim, namely that it should be dismissed, but the majority and the minority reached that conclusion by somewhat different routes. 

	We look to see whether there is an error of law in the Decision because it is only if there is an error of law that this Court has jurisdiction to interfere.  

	Although normally these preliminary hearings are heard with only one side present ex-parte, in the present case there is representation before us from Messrs Lovell, White & Durrant, who are acting for the provisional liquidators of the Bank.  Those provisional liquidators are appointed on the 5th July 1991.  

	The Decision was promulgated on 5th September 1990 and the Notice of Appeal is dated 15th October 1990.  This Appeal was therefore in being before the appointment of the provisional liquidators.  Nevertheless the provisions of Section 130(2) of the Insolvency Act 1986 apply and that reads:
"When a winding-up order has been made or a provisional liquidator has been appointed, no action or proceedings shall be proceeded with or commenced against the company or its property, except by leave of the Court and subject to such terms as the Court may impose."

	Miss Wood for the liquidators has agreed we should look at the merits of the Appeal at this Preliminary Hearing and if we are minded to send it for a Full Hearing then of course there would be a stay upon any further hearing so as to preserve the position of the liquidators under the Insolvency Act.  But she has no objection and cannot see that the liquidators would be prejudiced if we considered the merits of the Appeal at this juncture.

	Mr Patel for Mr Naqvi, the Appellant, has asked us to look at the merits of the Appeal despite the fact that even if it is sent for a Full Hearing that there would be a stay pending any Order of the Court.

	We therefore approach this matter as we would any other Preliminary Hearing of an Appeal before us.

	Mr Naqvi was employed for some 3½ years at the premises of the Bank at America Street.  He was involved in various types of work in the Stationery Department and the case being put forward by the Bank was that he was dismissed on the basis of lack of capability.  There was in fact a final incident in June 1988 which followed the refusal of the Applicant to carry out certain duties, but the Tribunal looked at the evidence and decided that the true reason for the dismissal was one that related to capability.  They were unanimous in reaching that decision.  They were not unanimous in reaching a decision on whether or not the procedures adopted were fair or unfair.  

	In the Decision the procedures set out are explained at some length.  Problems are involved because at one stage the Applicant was in hospital;  at another stage one of the senior management was in hospital and for the most part over the earlier stages of the investigation and the disciplinary hearings the matter were carried out in writing.  From a reading of the Decision there seems to have been a mass of written representations;  arguments;  statements and so on, because it is clear that the paging of the Bundle went up to page 100 to the time when an appeal was actually heard.  So that it is clear that there was a substantial amount of documentation in connection with the investigation.  

	The appeal was ultimately heard and this was a hearing as indicated on the 2nd March 1989.  The Tribunal say this about that hearing towards the end of paragraph 7 of the Decision they say:
"A date was arranged for 2 March 1989.  On that date Mr Naqvi and Mr Dalton who was advising the applicant saw Mr Fairfield and Mr Hussain Murdin who subsequently interviewed the various members of the stationery department who were involved.  Their summary of the evidence and conclusions are set out in pages 109-103 of the bundle A1 and they came to the conclusion that the dismissal of the applicant was justified.  The General Manager accepted this conclusion and instructed Mr Orriss to advise Mr Naqvi accordingly."

	It is apparent therefore, that there was a hearing and it seems although the Tribunal did not expressly so find that it was a re-hearing of the whole of the evidence.

	Having heard the evidence about the procedures the majority give their view in paragraph 8 and find that there was every opportunity given to the Applicant. They say this:
"All members agree that it is not improper procedurally for an employer to proceed in this way namely by not interviewing the applicant or allowing him to be confronted by the witnesses but by simply conducting a written investigation if in the course of that investigation the respondent as they find here goes to great lengths to ensure that the applicant is informed of what the witnesses on behalf of the employer are saying against him and gives him an opportunity to comment in writing.  He cannot be then regarded as having conducted his disciplinary inquiries in a way which could be regarded as unfair.  He must of course make sure that the applicant knows what is alleged against him and must take great care to consider and obtain reports on anything which the applicant may say but our view is that if the employer does this then any dismissal which subsequently follows cannot be attacked on procedural grounds.  As this procedure was followed in this case and the inquiries which we have set out at length above are regarded by us as adequate and giving the employee every opportunity to make any point which he wished to make in response to the accusations made against him it cannot be said that the procedure is unfair."

	Mrs Tipping was the dissenting Member;  she took the view that the conduct of the appeal hearing was not fair.  Her view was that the disciplinary procedures provided that the Applicant be given an opportunity to present his case to confront the witnesses and that this had not been done.  That is not entirely clear because it seems that the appeal hearing, the investigation did take place in front of Mr Naqvi.

	However, even though she took that view she felt that the evidence against the Applicant was overwhelming as to his lack of capability and that even if he had been given every chance to make his points, and she applied the principles laid down in Polkey v. A E Dayton Services Ltd House of Lords, [1989] ICR 142, that the further enquiries or representations would not have enhanced the chances of him not being dismissed and therefore apply the provisions of Section 73 and 74 of the 1978 Act there would be a reduction of 100%.   Therefore she reached the same result by a different route.

	Mr Patel, who as far as we can see did not appear below, made a number of points;  we are grateful for the succinct way in which he has put it.  He has first and foremost in his argument submitted that there was an error in the way this hearing took place because a number of facts were not put before the Industrial Tribunal.  Documents were not produced by the employers and they were secretive in the way they dealt with this matter.

	Secondly he said that the Industrial Tribunal should have had a view of the basement where Mr Naqvi worked and  thus they would have then been in a better position to assess the evidence.

	Those criticisms are difficult to accept when one sees that the hearing took ten days over twelve months and that Mr Naqvi was on the vast majority of occasions represented by lawyers, in some cases by Counsel.  Any documentation could have been obtained by an Order for Discovery and any witnesses could have been produced and no doubt would have been if application had been made.  Where one has a case of someone acting in person that sort of comment is perhaps more tenable but in the present case we find it very difficult to accept that everything possible had not been done, and if it had not been done, certainly it was not the fault of the Tribunal.

	Turning to the Notice of Appeal.  Six points arose.  Mr Patel is not responsible for this Notice of Appeal.  The first point is that there was some lack of clarity in the way that the Tribunal was expressing the view of the majority and the view of the minority.  Having read the Decision we are unable to accept that.

	Points 2 and 3 deal with the evidence and that is dealt with already in the reasons which we have given.

	Then it is said that the Tribunal failed properly to assess the evidence and that the Applicant was really a competent and hard working man;  that is an issue of fact for the Tribunal.  

	Fifthly, it is said that they erred in the burden of proof.  We can find no error there.  The dismissal was accepted;  the reason was proved, thereafter the position is neutral.

	In paragraphs 6 and 7 of the Notice of Appeal criticism is made of the way in which the Tribunal approached the problems of the procedures.

	We have read the Decision with care, it seems that the reasoning is clear.  What the majority were saying was that although the bulk of the inquiry and the proceedings were dealt with in writing probably because of the convenience of it or difficulties involved with illness, every opportunity had been given to show the whole case to the Applicant, who had been given every opportunity to reply and deal with it;  he had a representative with him; it did not strike them as being unfair.  To say that they could not reach that conclusion would in our judgment be in itself an error.  

	So far as the dissenting view of Mrs Tipping, that was clearly set out and as we have said it seems the final appeal could possibly have been regarded as a re-hearing.

	One last point, that is that Mr Patel asks us to allow this matter to be re-heard, because he submits there are now a number of witnesses who would be prepared to come forward from amongst the other employees of the Bank since their employment is no longer in jeopardy if they were to give evidence.  Therefore justice demands that the matter should be re-heard.  We are unable to accept that as a sound basis for allowing an Appeal and remitting the matter.  In any event there would be difficulties with the liquidators if that were the case. 

	So in the outcome we take the view here there is no apparent error in the Decision of the Industrial Tribunal and the Appeal must be dismissed at this juncture, which it is.