Tran v Greenwich Vietnam Community Project
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lady Justice Arden,Lord Justice Brooke |
| Judgment Date | 25 April 2002 |
| Neutral Citation | [2002] EWCA Civ 553 |
| Docket Number | Case No: A1/2001/1646 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 April 2002 |
[2002] EWCA Civ 553
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand,
London, WC2A 2LL
Lord Justice Brooke
Lord Justice Sedley and
Lady Justice Arden
Case No: A1/2001/1646
Martin Westgate (instructed by Messrs Ole Hansen & Partners) for the Appellant
Martin Fodder (instructed by the Bar Pro Bono Unit) for the Respondent
This appeal arises out of the dismissal of the appellant, Mr Dan Tran, by the small charitable project for which he had worked for over ten years. A series of allegations of misconduct had been investigated by the entire management committee of twelve or thirteen people, which then sat again in full as a disciplinary committee, found some of the charges proved and dismissed him. There was no body to which he was able to appeal.
Mr Tran contended that his dismissal was both procedurally unfair, for reasons which will be immediately apparent, and substantively unfair because the evidence could not sustain the charges.
The Employment Tribunal before whom his claim for unfair dismissal came sat for two days in April 1999 and for a further two days in late September 1999. On 4 th October they sent out their decision, accompanied by a page of summary reasons, dismissing his application. It read as follows:
"1. The Applicant was employed from 16 March 1987 to 17 June 1998.
2. The Applicant was dismissed with effect from 17 June 1998 and the reason, pursuant to section 98(2)(c) of the Employment Rights Act 1996, was conduct of the Applicant. More particularly, it was because of his gross misconduct as set out in the Respondent's letter dated 17 June 1998.
3. In accordance with section 98(4) of the Act, we have to consider the fairness of the dismissal. Mr Jenkins, on the Applicant's behalf, has submitted that the dismissal was procedurally unfair. He pointed out that there was no written disciplinary procedure, although one was referred to in the Applicant's contract. It is correct that there was no written disciplinary procedure and this is a defect which should be rectified. However, we have to have regard to the size and administrative resources of the Respondent, and also to what actually happened in practice. In this case, the Applicant was made aware in writing of the allegations against him. He was given all the relevant documents and was given the opportunity of attending, with his union representative, the investigatory meeting and the disciplinary hearing. The Applicant did have a fair hearing and the opportunity of presenting his side of the case.
4. Mr Jenkins had also submitted that there was no appeal in this case, nor any procedure for an appeal. Again this is correct, but there is no strict legal requirement for an appeal, although good industrial relations practice dictates that there should be one. In this case, the whole Management Committee were involved in the disciplinary proceedings and, in these circumstances, there was no person or body to which an appeal could be made. We find the absence of an appeal is not a defect which renders this dismissal unfair. We find that any failure in the procedure in this case does not render dismissal unfair.
5. Mr Jenkins has also submitted that the dismissal was substantively unfair. We have heard in detail all the allegations against the Applicant and the Applicant's explanations. In a case such as this, it is not for us to substitute our own views. We have to have regard to the situation as the Respondent saw it at the date of dismissal. We find that the Respondent did have a reasonable belief in the Applicant's misconduct, that belief was based on reasonable grounds, and a proper investigation had been carried out. We find that dismissal was a reasonable response.
6. We find that this dismissal was fair and the application is dismissed."
Mr Tran's representative applied, as he was entitled to do, for extended reasons to be given. These were sent out on 16 December 1999. They cover three pages. The first two contain in paragraphs 1 to 18 a recital of the procedural history of the case and this paragraph of factual background:
"5. The members of the Management Committee were unpaid volunteers and the day to day activities of the Respondent were carried out through one full time co-ordinator and two full time community workers. The Respondent was therefore an extremely small organisation with only three full time employees."
There follow two short paragraphs summarising the submissions of each side's lay representative. The remainder of the extended reasons reads as follows:
"21. In considering the fairness of the dismissal in accordance with section 98(4) of the Act we do have regard to all the circumstances of the dismissal and also to the size and administrative resources of the Respondent. In this case the Respondent is an extremely small organisation relying to a large part of its existence on a grant from the local council.
22. There were various matters which had come to light and which the Management Committee felt should be investigated. As a result they did have an investigatory meeting with the Applicant who was represented by his Union representative. Subsequently there was a disciplinary hearing before the full Management Committee when again the Applicant was represented and he knew the allegations against him in advance.
23. Some of the main criticisms have been that the whole Management Committee were involved in the investigation and in the disciplinary hearing and in the decision to dismiss and that there was no further right of appeal.
24. It is somewhat unusual to have the whole Management Committee involved in both the investigation and the disciplinary hearing but in cases such as this we have to consider not just the way in which matters were dealt with but whether they were dealt with fairly or unfairly. We accept the Respondent's evidence that in calling for the whole Management Committee to deal with these matters they were attempting to be fair and to provide an opportunity for all the Management Committee to take part. The fact that the Management Committee acted thus was not, in our judgement, any act of unfairness. Indeed the Applicant did have a full hearing on each occasion and was allowed to put his side of the case fully.
25. It is correct that there was no appeal but the Respondent has explained that since the whole management committee were involved in the dismissal process there was then nowhere else for the appeal to go. In an ideal world there should have been an opportunity for the Appellant to appeal but we find that the absence of an appeal is not a defect which renders this dismissal unfair.
26. We find that the Respondent did have a reasonable belief in the misconduct, that belief was based on reasonable grounds as set out in the evidence before us and in the relevant documents. The Respondent did carry out a sufficient investigation and in all the circumstances dismissal was an appropriate sanction.
27. In these circumstances we find the dismissal was fair and this application is dismissed."
No application was made to the Employment Tribunal to review its decision by amplifying its reasons. By notice of appeal given on the 23 rd January 2000 Mr Tran appealed to the Employment Appeal Tribunal. On 18 April 2000 the EAT, Mr Commissioner Howell QC presiding, held a preliminary ex parte hearing and sent the case on for a full hearing, requesting the Chairman to provide his notes of evidence on the single issue of why there was no appeal process. The EAT did not ask for fuller reasons to be given, nor did they accelerate the hearing with a view to remission for this purpose.
It was not until 5 April 2001 that the appeal came on for hearing. The EAT, presided over by Mr Recorder Langstaff QC, accepted that to have had the entire Management Committee first investigating then adjudicating, especially when more than one of them had been involved in the material event, and with no appeal, was in itself an indicator of procedural unfairness. But they accepted that the Employment Tribunal's finding in paragraphs 24 and 25 of their extended reasons was sufficient to rebut it. As to the substantive fairness of the dismissal, the EAT accepted that the notice of appeal complained of a lack of clarity in the Employment Tribunal decision, but they took the view that inadequacy of reasons was not spelt out as a ground of appeal. They nevertheless briefly considered the point and held that the decision did not fall foul of the principles established in Meek v. The City of Birmingham [1987] IRLR 250. They said in particular:
"23. This was a misconduct case. In a misconduct case it is a matter of importance that the misconduct should be clearly identified. If it is not clearly identified by the Employment Tribunal evaluation of the facts relating to it by the Tribunal is liable to fall into error. Here, the Employment Tribunal said little about the nature of the misconduct save that it was set out in the documentation and save for the outline which they gave in very summary form between paragraphs 10 and 14 in the course of their decision.
24. However, we have been told (and it is a matter of agreement between the parties) that this Employment Tribunal had a bundle consisting of no less than 153 documents or pages before it. Although the wording is terse and is close to the border of being so terse as to be uninformative we think that taken as a whole there is sufficient within it for the employee to know why it was that he lost his case. We...
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