Appeal No.	 EAT/892/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 November 1995

Before
HIS HONOUR JUDGE D M LEVY QC
MRS R A VICKERS
MR N D WILLIS

MR G JOHNSON	APPELLANT

BLACK COUNTRY GROUNDWORK TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING
Revised

	APPEARANCES

For the Appellant	IN PERSON	

	JUDGE D M LEVY QC:	Mr Gary Ellis Johnson is now 37.  He commenced employment as a Graphic Designer with the Black Country Groundwork Trust in November 1988.  On 31 May 1995 he was dismissed.

	He complained by application dated 11 July 1995 that he was unfairly dismissed on the grounds that he was forced to accept voluntary redundancy as the only alternative to a threat of dismissal for sexual harassment.  He asserted that the claim of sexual harassment was a false and unwarranted accusation, brought about by the unwise involvement and extreme poor handling of a personal matter by the Trust Executive Director.  This situation, he said, was brought about through the wrongful involvement of two members of staff in a personal issue involving a young female member of staff, their involvement and accusations being extremely biased and harmful, through ignorance of any real and true facts in what was an extremely personal and sensitive matter.

	The response in the Notice of Appearance by the Company was that he was dismissed for misconduct.  There was a short statement in these terms:

“2.  The Respondent received complaints that the Applicant was subjecting a female member of staff to undue harassment.
3.  The Respondent Executive Director investigated the complaint and found it to be proven.  The Applicant was given a final written warning that if his behaviour continued he would be dismissed.
4.  The Applicant continued to harass the member of staff concerned and in view of the final warning that had been given was dismissed.
5.  To avoid embarrassment for the Applicant the Respondents agreed a termination package with the Applicant purportedly terminating his employment by reason of redundancy.  Had the agreement with the Applicant not been reached the Respondent would have dismissed the Applicant in any event.
6.  In all the circumstances the Respondent denies that the Applicant was unfairly dismissed.”

	There was a hearing of the complaint of Mr Johnson in an Industrial Tribunal.  It took place over some four days.  Mr Johnson has told us, and we accept this, that the four days were interrupted by the Chairman having to hear other matters, or for other reasons, including an adjournment for Members to attend a funeral of a former Chairman of an Industrial Tribunal.

	We accept that the four days were not four full days, but it is clear to us that that was a full hearing with Mr Johnson having the opportunity to call all such witnesses as he wanted.  The last day of the hearing was on 13 March and Summary Reasons were sent to the parties on 17 April.  The unanimous decision of the Tribunal was that the applicant was unfairly dismissed, but no award of compensation was made.  

	The reason that the applicant was unfairly dismissed was that proper procedures to precede a dismissal, the Industrial Tribunal felt, had not been undertaken by the employer.  The dismissal was not unfair because the Tribunal found, in truth and in fact, that if the proper procedures had taken place, Mr Johnson would have been dismissed by the employer.

	On receipt of the Summary Reasons on 24 April 1996 Mr Johnson asked for a review; that was refused.  On 30 April he made a further application for review.  The Industrial Tribunal refused his application for review.  He received the reasons for that decision on the same day as he received the Full Reasons of the dismissal of his complaint.  Both were sent to him on 26 June 1996.  After that was received Mr Johnson entered a Notice of Appeal dated 5 August 1996.

	The Notice of Appeal contained grounds alleging bias by the Chairman and improper procedure and accordingly, in accordance with the usual procedures of this Tribunal, he was invited to swear an affidavit regarding the complaints which he wished to make; he duly swore an affidavit dated 19 September 1996.  The Chairman commented on it in a document dated 25 September 1996.  We and Mr Johnson, of course, have copies of both of these.

	Mr Johnson wishes to pursue his appeal against the employer and this is the ex-parte application to see if the review should go forward.

	Whenever bias or misconduct is alleged against the Chairman this is something that this Tribunal investigates with great care.  Mr Johnson says in his Skeleton Argument to us that justice not only has to be done, but it has to be seen to be done.  This is absolutely true and therefore, we have looked in some length at the complaints which Mr Johnson has made and the answer of the Chairman.  Mr Johnson has addressed us for some 70 minutes on the grievances which he feels, both as to the conduct of the employer, and as to the conduct of the Chairman.

	So far as concerns the conduct of a Chairman, we have to say that what Mr Johnson is really complaining about are things which the Chairman did in order properly to control the procedures.  He would not, for instance, allow documents of a witness statement to be handed to the Tribunal as a document in the case.  Clearly such a statement was not evidence.  Apparently, it was of a witness who, at one time, promised to give evidence, but then had reneged on his promise to give evidence for Mr Johnson.  Apparently, he was called by the employer and Mr Johnson had the opportunity to cross-examine him.

	Another instance given by Mr Johnson is that he was not permitted to cross-examine, at very great length, the lady who had made allegations against him, but it is clear he was allowed, and we accept this, to examine her at length.  What the Chairman was obviously trying to do was to control the proceedings so that the Industrial Tribunal could properly discover what it was that the Company had done so that the Company, on whom the onus lay, could prove that the dismissal was fair.  As appears from the decision the Industrial Tribunal found that the dismissal was unfair, but it is also clear, from a careful reading of the decision, that there were ample grounds and ample facts found by the Tribunal for it to say that no reasonable employer, faced with the situation that this employer found itself, could possibly have tolerated Mr Johnson continuing as a member of staff.

	We will not set out the Full Reasons which we have carefully considered, but from what we have read in them and of the documents which Mr Johnson has provided for us, there is ample justification for the Tribunal finding that the dismissal of Mr Johnson by the employer, albeit that it was procedurally improper, would have been a course properly taken if the correct procedures had been carried out, having regard to the conduct of Mr Johnson which the Tribunal found proved to its satisfaction.  It was not a matter whether the Tribunal would have dismissed because of that conduct, but it was a matter as to whether a reasonable employer would have dismissed and this is something we find addressed in paragraph 23 of the Full Reasons.

	One of the matters which gave us particular source of concern was an allegation put in the Notice of Appeal under the heading “the decision was contrary to the evidence”.  The passage reads:

“It is stated that the applicant ‘spent the weekend redrafting the final written warning’ - There was no evidence given to that effect and the appellant strongly refutes this allegation.  The applicant made no changes whatsoever and strongly contested the warning at the time it was given and subsequent to that time with indisputable evidence to prove this.  (The tribunal has made quite an issue of this false fact).”

	The passage of which complaint is made appears in paragraph 25 of the Full Reasons and in context it makes sense.  Mr Johnson appears to have had the opportunity to redraft the warning he was to be given.

	We observe (and this was put to Mr Johnson in terms during the hearing before us) that he was, in effect, accusing the Chairman of fabricating evidence in the Decision.  We have of course, not at this stage, got the notes of evidence because those would only be ordered if there was a case to go forward and it was thought that the Chairman’s notes would be helpful to the Tribunal hearing the appeal.  We do, however, note that, in the affidavit, in the course of which Mr Johnson makes many allegations against the Chairman, something as gross as this, which would be very important, is not alleged.  Accordingly, the Chairman has not had the opportunity to answer it.

	We can quite understand that Mr Johnson feels very strongly, not only about the way he was treated by the Company, but also by the way he was treated by the Industrial Tribunal.  However, nothing that he has said to us or in the documents which he has submitted, has satisfied any of us in the slightest that there was, in fact, any bias shown by the Chairman or the Members of the Tribunal, nor are we satisfied that the decision can, in any way, be faulted, either on the facts it found, or the law which it has applied.  

	In these circumstances, as we have explained to Mr Johnson, the appeal is bound to fail and it is only right therefore that it should be stopped at this stage.

	We should add, in fairness to Mr Johnson, that he has addressed us coherently, calmly and quietly during the time he has been before us.   In the course of the hearing, when he has put points to us, we have tried to explain to him why we were unable to accept the validity of those points.  We hope that he feels he has had a fair hearing before us today.

	We certainly have done what we can, to explain to him why it is that his appeal must fail.  One of the points he made was that during the hearing below, most of the questions were coming from the Chairman.  That has also been the position during the hearing before us.  It is much easier for a litigant if he has to face questions from one source, rather than three, particularly a litigant in person.

	We hope therefore that Mr Johnson will understand that it is our duty not to let a hearing go forward unless there is an arguable point on which an appellant may succeed.  We obviously have sympathy with a man of his age who, as he says, may have some difficulty getting another job.  He says that his employers will not give him a reference, bearing in mind that he was made redundant by them in the circumstances which they outlined.  This does not seem to be necessarily something that has been tested.  

	In the circumstances however, we do not think it right to let this appeal go forward and accordingly we will dismiss it at this stage.