Appeal No. EAT/437/93
	I N T E R N A L

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 9th February 1994

	Before

	HIS HONOUR JUDGE D M LEVY QC

	MISS A MACKIE OBE

	MR R TODD

METROPOLE HOTELS (HOLDINGS) LTD	APPELLANTS

D MIDDLETON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR SAM NEAMAN
(Of Counsel)
Cameron Markby Hewitt
Sceptre Court
40 Tower Hill
LONDON
EC3N 4BB

For the Respondent	MR R JONES
(Of Counsel)
Free Representation Unit
49/51 Bedford Row
LONDON
WC1R 4LR

	JUDGE D M LEVY QC:  Today we have heard an appeal by Metropole Hotels Limited against a decision of the London (South) Industrial Tribunal of a complaint by Mr D Middleton that he was unfairly dismissed by, the Appellant, Metropole Hotels Ltd.
The decision of the Industrial Tribunal was sent to the parties on the 21st April 1993.

	The facts behind the hearing below, very shortly, were these:  On 26th August 1991, Mr Rattee, the Chief Security Officer of the Appellant, had reason to believe that Mr Middleton, the Respondent here, had been guilty both of theft and of falsification of documents.  On that day he interviewed Mr Middleton.  On the 29th August there was a disciplinary hearing.  On the 18th September, pursuant to a request by Mr Middleton, there was an appeal from that hearing.  The Company dismissed him at the end of the disciplinary hearing and that dismissal was upheld on appeal.  The grounds on which he was dismissed was said to be the falsification of documents.  What happened, as given in the Reasons of the Industrial Tribunal, was the Company decided not to progress the charge of theft but simply to rely on the falsification of documents.  However, the falsification of documents, with intent to deceive was based on the theft because the documents were altered so that nobody would realise, so it is suggested, that Mr Middleton was the thief, if indeed he was.

	Mr Rattee, the Chief Security Officer, took a very active part at the disciplinary hearing and although at the appeal he meant only to be a witness, it is clear from the papers, that he took a very active part in the appeal hearing as well.  At the end of the day the Company dismissed Mr Middleton.  When the matter came to the Industrial Tribunal there was a review of what went on below and that review tribunal held that the dismissal was unfair.  The reason they held it was unfair was because of the breach of procedures of the Appellants in conducting their investigations.  I will not read out the Reasons in full but I am going to pick up them up towards the end of paragraph 10:
		"What is important is what part the confession of theft played in Mr Rattee's decision to dismiss."

pausing there to say that Mr Middleton had apparently confessed to Mr Rattee and Mr Williams, Mr Rattee's superior, the Appellants' Chief of Security.  Mr Rattee and Mr Middleton, the Respondent, are both ex-policemen.
		"In our view, if it was not the principal reason, it was a major contributing reason to the dismissal.  We have no criticism of this.  We think it would be extremely difficult in the light of an admission of theft not to consider it a very serious factor in making a decision on a charge of recording an incident that had not occurred.

		To complete the story the Applicant appealed to the General Manager of the hotel who conducted the sort of impartial assessment that most tribunals have given up expecting.  Mr Neaman [Counsel who appeared for the Hotel below, as here] suggested that it should be regarded as a full rehearing capable of curing the earlier procedural defects.  We think there is a lot to be said for this save that, unfortunately, it compounded the two defects which we consider most significant in our conclusion that the dismissal of the Applicant was unfair.

		Our decision rests on the first of these.  In our view Mr Rattee was the prime mover in the decision to dismiss and he was very substantially influenced by his reasonable belief that the Applicant was guilty of theft.  At the very least, in our view, it was, in his mind an offence of equal importance to that charged."

Then there is a reference to Spink v. Express Foods Group Ltd [1990] IRLR 320 and then the Reasons continue:
		"The accused should know the case to be met and should have a chance to argue his case.  In our view it is not enough that a chance to discuss such a matter arises.  The accused must know that that is one of the matters with which he is charged.  Otherwise he may well neglect the opportunity.  No doubt the Applicant could have raised the issue of theft at the disciplinary hearing.  He did not do so and this may well be because he was not charged with theft.  The Appeal did not cure this fundamental defect because theft was still not charged.  More significantly Mr Westwell, the General Manager, declined to discuss it on that ground. . . .

		14.	We are concerned about several procedural aspects of this case but would mention only one as secondary support for this decision.  Mr Rattee appeared and took a significant part in all proceedings including the appeal.  As judge at the disciplinary hearing it was clearly unfair for him to assess the validity of his own investigation.  It is said that the departmental manager is the proper person to make a decision on dismissal of a member of his department.  We accept that despite Mrs Coleman's view that the decision is hers.  We also accept that such a manager is quite likely to have played a part in the factual enquiries preceding discipline.  Mr Rattee's part in both was, however, so central that we cannot consider him impartial.  Indeed he said in evidence that once he had heard the confession of theft it meant dismissal.

		15.	There can be no doubt, however, that the Applicant contributed very substantially to his own dismissal.  If a major cause of that dismissal was his confession of theft then, whether or not that confession is true, he produced the Respondent's belief in the commission of that offence.  We would assess his contribution at 90%."

	From the reasoned decision of the Industrial Tribunal, the Hotel has appealed essentially on two grounds.  First of all that the finding of unfair dismissal was not one that could be found on the facts, alternatively, it was perverse.  Secondly, the facts were wrong, the contribution of 90% should have been 100%.

	So far as the first is concerned Mr Neaman referred us to the well known decision of Rowe v. Radio Rentals Ltd [1982] IRLR 177 in particular to passage at p.179, paragraph 13 of the judgment of Mr Justice Browne-Wilkinson - and the passage which Mr Neaman relies on is this:
		"There may be some exceptional case (which we cannot now think of) in which the rule that justice must appear to be done might apply to the full extent that it applies to a judicial hearing.  But, in general, it is inevitable that those involved in the original dismissal must be in daily contact with their superiors who will be responsible for deciding the appeal:  therefore the appearance of total disconnection between the two cannot be achieved.  Moreover, at the so-called appeal hearing (which in this and many other cases is of a very informal nature) the initial dismisser is very often required to give information as to the facts to the person hearing the appeal.  It is therefore obvious that the rules about total separation of functions and lack of contact between the appellate court and those involved in the original decision simply cannot be applied in the majority of cases.  It seems to us that the correct approach is that indicated by Lord Denning in Ward v. Bradford Corporation [1971] 70 LGR 27 at p.35:

			`We must not force these disciplinary bodies to become entrammeled in the nets of legal procedure.  So long as they act fairly and justly, their decision should be supported.'

		On  the facts of this case, the majority of the Industrial Tribunal have come to the conclusion that the appeals procedure was proper and that justice was done.  In those circumstances, it would be wrong for us to say that the rules of natural justice had been breached simply because justice might not appear to have been done."

In this case, the Tribunal below felt that natural justice had not been done and that there had been a very great breach of the rules of procedure.  Effectively, Mr Rattee dominated the proceedings and even more fundamental, the fact was that although it was a falsification of the documents with which they were supposedly enquiring into to see whether Mr Middleton could be dismissed, effectively the reason for the falsification of documents was to cover up the theft.  So the theft had to be part of the enquiry.  By not withstanding all attempts by the Appellants to shut that out and trying not to cover it at all, it kept creeping in its head and there was no proper case put to Mr Middleton so he knew what he had to answer, and accordingly, he did not answer it.  It seems to us that the decision of the Tribunal was one it could well have come to and one which we can well understand.

	Mr Neaman suggested to us in the alternative that it was a perverse decision.  Having regard to the finding which we have already made it must follow that the decision was far from perverse;  indeed, it was the only one which in our view the Tribunal could have come to on the facts as they found them.  We were referred to the decision of Clarke v. Trimoco Motor Group Ltd [1993] ICR 237 where at page 245B Mr Justice Knox said:
		"The two important issues which arise and neither of which is directly addressed by the industrial tribunal decision are, first, does the fact that the reason stated in the dismissal letter and relied on in the employers' notice of appearance is a different reason from the reason found by the industrial tribunal to be the real reason for dismissal, render the latter unfair?  Secondly, can the dismissal without any interview of, or contact with, the employee by the officer of the employers responsible for the decision to dismiss, after 25 January 1990, be fair, [given the time it was given]."

and then he turns to the first question:
		"We turn to the first question, the effect of the mis-statements of the reason for dismissal.  Different considerations apply to the mis-statement in the dismissal letter and the notice of appearance.  So far as the dismissal letter is concerned in our view the critical question is whether the employee was aware of what we shall call the real reason for dismissal and whether the facts in relation to that real reason were therefore available to him to challenge in the industrial tribunal proceedings."

Here, the real reason for dismissal was the background of the theft to the allegation of the falsification of the documents, and that issue was not one which Mr Middleton knew or was supposed to know, that he was facing at the time.

	It seems to us in those circumstances that Clarke v. Trimoco does not help Mr Neaman's case.

	Mr Neaman said if he failed on that then he wished to argue that it was wrong for the Tribunal to reduce by only 90% the award of the contribution for Mr Middleton's behaviour.  He suggested, by analogy with Polkey v. A E Dayton Services Ltd [1988] ICR 142, on a situation on redundancy, if Mr Middleton was going to be dismissed anyway then the  reduction should have been 100%.

	In answer to that Mr Jones submitted rightly, that was a false analogy.  No one knows what would have happened if there had been a proper hearing;  one simply does not know what would happen and in those circumstances it is impossible for us to say that the decision on Polkey in redundancy cases are appropriate.

	Further, he says, and we think there is much in this as well, that the Tribunal had all material on which they could judge.  I have read Paragraph 15 of the decision which deals with contribution.  I will not read it again.  On the facts, there were grounds for the Tribunal to reduce the contribution to 90%. If they had made a greater or lesser reduction as an Appeal Tribunal, it would have been difficult for us to say they were wrong.  An Appeal Tribunal can only interfere if there are perverse decisions or if there are mistakes of law below.  We do not think either of those things happened here and we think this appeal must therefore be dismissed.

	We are sorry to find that the two Counsels before us this morning had not exchanged their "skeleton arguments" prior to the hearing.  The letter sent to the parties about the procedure in this Tribunal provides for "skeleton arguments" to be exchanged. We hope that this provision in the letter will not be ignored in the future.  We thank Counsel for their assistance in this case.