Appeal No.	 EAT/1453/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 May 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
LORD GLADWIN OF CLEE CBE JP
MR B M WARMAN

MRS E HEYWOOD	APPELLANT

GREATER MANCHESTER WASTE LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR H GLAZIER
(Representative)
Employment Practice
17 Hartley Avenue
Manchester
M25  OAT	

		MR JUSTICE LINDSAY:   We have before us, as a Preliminary Hearing, an appeal by Mrs E M Heywood against a decision of the Industrial Tribunal promulgated on 17 October 1996, after a hearing spread over two days, 17 and 18 September 1996.  Mrs Heywood was there the Applicant as the former employee of the Respondent, Greater Manchester Waste Ltd.  

	The decision, which was unanimous, of the Tribunal under the Chairmanship of Mr Casket was that Mrs Heywood’s applications for sex discrimination and dismissal for trade union reasons were dismissed on withdrawal by the Applicant, and, secondly, that the application for unfair dismissal was dismissed.  Since then Mrs Heywood has put in a Notice of Appeal on 28 November and that claims a number of defects to exist in relation to the decision of the Industrial Tribunal.  

	It is claimed that the Industrial Tribunal’s decision was perverse.  Secondly, that the well-known case of Burchell, although cited by the Industrial Tribunal, was misapplied.  Thirdly that the Industrial Tribunal erred in their view of what was an adequate invitation.  Fourthly, that the Industrial Tribunal did not properly address the question of whether Mrs Heywood’s dismissal was within the band of reasonable responses open to a reasonable employer in the circumstances, and, fifthly, that where the employer relies, in an investigation into misconduct, on hearsay evidence, then there should be a careful testing of the veracity of that evidence but that that was not done and for that reason the process before the employer was inadequate.  

	Those are the grounds of appeal in the Notice of Appeal.  Mr Glazier has appeared for Mrs Heywood before us, and has touched on some of those grounds.  The Industrial Tribunal heard evidence on the employer’s side from five witnesses and three witnesses on Mrs Heywood’s side.  The issues were whether, in relation to the reasons given for Mrs Heywood’s dismissal, which was misconduct, there subsisted at the point of her dismissal a number of factual circumstances.  Firstly whether the employer then had a genuine belief that she had misconducted herself; secondly, whether that belief was supported by reasonable grounds - reasonable grounds subsisting after there had been a reasonable investigation, and thirdly, whether her dismissal was within the range of reasonable responses open to a reasonable employer in the circumstances as they seemed following that investigation.

	The alleged misconduct consisted of some unusual and offensive behaviour on Mrs Heywood’s part on 8 August 1995.  The first report and complaint to the employer as to the events on the earlier part of that day were indeed reliant upon hearsay.  A visitor to the company, Mr Cumley, spoke of what he had heard Mrs Heywood say, and the person to whom he spoke, a Mrs Ormrod, took that to be a complaint as to Mrs Heywood’s behaviour.

	What the Industrial Tribunal found in relation to that was this:
“7(d)   A Mr Cumley, a visitor and Management Training Consultant, had called to see Mrs Ormrod, the Human Resources Manager, and heard the applicant making a private call.  When Mrs Ormrod took him into her office, she said in her statement before the Tribunal:-
‘Ray [Mr Cumley] asked if we were having problems in reception and explained that it was extremely embarrassing that he had overheard the main points of EH’s (Mrs Hewyood’s) conversation.  I apologised to Ray on behalf of GMW Ltd [the employer] and asked him to expand on what he had heard.
He explained that EH was ‘calling into question the parentage of our Senior Management Team’ and, that the ‘fucking bastards’ upstairs were trying to take her job from her and victimising her and that she shouldn’t have to put up with this.’
Mrs Ormrod said he had been embarrassed and offended and she had taken this as a formal complaint.”

but the matter did not stop there.  Mrs Ormrod went down to reception and the position then was that a Mr Latham, on the employer’s part, was asking Mrs Heywood to leave the reception and go to the canteen.  Mrs Ormrod said that:
“EH [Mrs Heywood] was refusing adamantly, shouting and stating that it was her job and we were not having it.  That we were all ‘bastards victimising her’ and that it was her job and she would not move.  Her arms were flailing about and her manner was aggressive.
I spoke to EH, quite firmly and told her that as she was upset that she must leave the Reception area and this was not a request.”

That was taken up and Mr Latham also spoke to that.

	The Industrial Tribunal was thoroughly aware that the initial complaint was based on hearsay but that later on it became a matter of direct evidence from persons that the employers could take evidence from and which the Industrial Tribunal took evidence from.  This is not the sort of complaint based upon hearsay where the complainant requests anonymity and the nature of the complaint remains secret.  In this particular case, as the Industrial Tribunal found in the end of their paragraph 7, the Tribunal was satisfied that at this hearing Mrs Heywood and her representative fully knew the allegations against her by Mr Cumley and by all the members of staff who in their statements and at the hearing corroborated her state and condition and the way she was speaking and shouting on the morning of 8 August.  That is relative to the state as things were at the disciplinary hearing on 31 August.  

	That, in itself, distinguishes the case before us from the case of Linfood Cash & Carry Ltd v Thomson [1989] IRLR 235, which Mr Glazier has drawn to our attention.  There the allegations were made by an informant who had refused to allow his identity to be disclosed.  But also the case very properly lays emphasis on the obvious point that each case must depend on its own facts and circumstances and that those circumstances are likely to vary widely from case to case.

	The Industrial Tribunal, we note, did not even receive, so far as one can tell from their findings, any denial by Mrs Heywood of what had taken place as was observed by Mr Cumley.  Had she sworn that she had not behaved as Mr Cumley was said to have said, she could have said that, and she could have been believed.  The position was that the Industrial Tribunal held, after hearing evidence of both sides, as follows:
“8.	  The Tribunal had the advantage of hearing all the witnesses personally over the two days of the hearing and noting their demeanour and perusing the very extensive documentation.  Where there was conflict of evidence - particularly regarding the events of the morning of 8 August 1995 - the Tribunal strongly preferred the evidence of the respondents’ witnesses and found the facts to be in accordance with their evidence.  The Tribunal found the applicant an unreliable witness.”

I have already quoted from what happened and what was before the employer and before the Industrial Tribunal, not in reliance upon hearsay, but in reliance upon direct evidence about Mrs Heywood refusing adamantly, shouting and stating that it was her job, and so on, as I have cited above.

	There was a disciplinary hearing on 11 August to look into Mrs Heywood’s conduct.  On 31 August there was a very lengthy disciplinary hearing.  On 4 September 1996 Mrs Heywood was told, by letter, that she was summarily dismissed.  An appeal was arranged by her against that summary dismissal; it was arranged for a date in September, but Mrs Heywood’s representative then abandoned the appeal.

	In those circumstances and having heard the evidence and having preferred the evidence of the Respondents in the manner indicated, the Industrial Tribunal went on:
“12.   But the Tribunal was satisfied from the evidence and from the statements and found as a fact that on that morning she, as a receptionist, had lost control of herself and had sworn both in public and private and been abusive of her manager and supervisor and had used the words alleged particularly in the statements of Mrs Ormrod and Mrs Flintoff.
13. 	 This was a strongly contested case with a great deal of factual evidence.  The duty of the Tribunal was clear.  In taking account of the guidelines of British Home Stores v Burchell, the Tribunal had to determine whether the respondents, at the time of dismissal, genuinely believed the applicant had been guilty of this misconduct, had reasonable grounds for that belief and had carried out such investigation as was reasonable in all the circumstances.  In the respondents’ view, this constituted gross misconduct which entitled them to dismiss her summarily.  In the view of the Tribunal that was not unreasonable.  Dismissal was well within the range of reasonable responses.
14.	  In all the particular circumstances of the matter, including the size and administrative resources of the respondents, and having regard to equity and the substantial merits of the case, the Tribunal was satisfied the respondents acted reasonably in treating the reason for the applicant’s dismissal as a sufficient reason for dismissing her.”

	It cannot, in our view, be said that the decision was perverse.  We, on studying the papers and hearing the argument, do not find ourselves saying something such as “My goodness, that cannot be right” but, if anything, we are inclined to say “Surely that cannot possibly be wrong”.  Whether the employer’s investigation into alleged misconduct is reasonable in all the circumstances is very much a question of fact for the Industrial Tribunal.  Here we find the Tribunal’s analysis to be faultless.  They specifically address the question of whether the dismissal was within the range of reasonable responses.  They were very conscious that hearsay is weaker than direct evidence and they looked into that.  In the long paragraph 11, which I have not cited, they examine into the reliability, in the particular circumstances of the case, of what had been received by way of hearsay.

	We are able to detect no error of law.  We do not think it is appropriate that this should go to a full hearing, and accordingly we dismiss the appeal.