Appeal No.	 EAT/715/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 July 1999

Before
HIS HONOUR JUDGE H WILSON
MR A E R MANNERS
MRS T A MARSLAND

MR C MASON	APPELLANT

BRITISH AIRWAYS PLC	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR D MASON
(Representative)	
For the Respondents	MR S JONES
(of Counsel)
Instructed by:
Ms J Harrison
Legal Department
British Airways PLC
Waterside (HBA13)
PO Box 365
Harmondsworth
UB7 0GB	

	JUDGE HAROLD WILSON:	This has been the final hearing on full argument of the appeal and cross-appeal in this matter. The Employment Tribunal’s decision was sent to the parties on 26th March 1998. The decision was that the applicant was unfairly dismissed and secondly that the tribunal made no award of compensation. So far as that is concerned, the appellant’s appeal is against the award of no compensation and the respondent company’s appeal is against the finding of unfair dismissal.

1.	We have heard argument and we have taken note of the contents of the decision itself. We note that this Appeal Tribunal in permitting the matter to go forward to full argument found that it was impossible to say whether the conclusion about compensation had been reached within the tribunal’s discretion because they had not described the complaints at all or explained the appellant’s attitude. The decision dealt only with procedures.

2.	Close attention to the decision illustrates the truth of those comments. Certainly the finding of unfair dismissal was based entirely on the finding that there was serious procedural error in the progress of the disciplinary procedure after the initial hearing. The initial hearing was based on statements made by complainants with which the appellant was invited to deal. The finding at the stage was of gross misconduct justifying dismissal. At the appeal stage the person charged with conducting the appeal was Captain Smith. His first reaction was that the decision to dismiss was out of proportion to any offence. Having read all the papers, he felt confirmed in that view. He interviewed the appellant, amongst others, and was still of the same opinion. He then decided to interview the complainants and, as a result of those interviews, completely changed his mind. He concluded that the decision to dismiss was amply justified and indeed was the only decision that could have been reached. Those interviews apparently were transcribed, but transcripts were not provided to the appellant or his advisors and the appellant and his advisors were never informed of the fact that the interviews had taken place as conducted by Captain Smith. As the tribunal expressed it in paragraph 27 of their decision:

“… it is our view that interviewing the complainant only after he had seen the Applicant resulted in the Applicant being denied an opportunity to give evidence that might challenge Captain Smith’s impression of them as credible witnesses. We consider that the Applicants had been left with a justifiable sense of grievance since the statements of the witnesses have not at any stage been revealed to them. We consider that they should have been given the last opportunity of reply. We find that this was a procedural error which was sufficiently serious to render the dismissals unfair.”

	So far as the final stage of appeal before Captain Jeffrey is concerned, the tribunal found that he had received all the papers used by Captain Smith including the transcripts of Captain Smith’s interviews with the complainants. In paragraph 28 of their decision the tribunal found that the “defect in the procedure was not remedied at this stage because the transcripts of the interviews were withheld from the Applicants.” Accordingly the tribunal found that the dismissal was unfair. We find that that was a conclusion to which the tribunal was clearly entitled to come. We dismiss the cross-appeal.

3.	We are informed that the tribunal then invited submissions concerning remedy, in the course of which the complainants were offered as witnesses by the respondent, but, as we understand it, that offer was refused by the tribunal and no further evidence was received. The judgment was announced quite bluntly and blandly that the tribunal had taken into consideration all of the circumstances and that the procedural irregularity, even if it had not occurred, would not have changed the decision, so the applicant would not have been reinstated. Therefore, the procedural error made no difference to the outcome of the disciplinary appeal and in those circumstances the tribunal made not award of compensation.

4.	In our view, that was an error into which the Employment Tribunal fell because the evidence necessary to form a view concerning what are called Polkey points and to decide the question of contribution under s.122(2) and 123(6) of the Employment Rights Act 1996 is entirely different from the evidence upon which to base a conclusion concerning the fairness or unfairness of a decision to dismiss. So far as the decision to dismiss is concerned, the tribunal is concerned only with whether or not there was reasonable belief or reasonable grounds upon which the employer could believe that there had been misconduct justifying dismissal. In this case there was grave procedural error which made the decision to dismiss unfair. 

5.	When it comes to the Polkey points and particularly the question of contribution, what is at stake is whether or not the tribunal concludes that the appellant contributed to or caused his own misfortune. The degree can vary from nothing to 100%. Polkey matters are usually expressed as a percentage chance. But the important thing is that the evidence upon which that conclusion is based is quite different from the evidence upon which the dismissal decision is based. It appears to us that the tribunal fell into error in failing to recognise that difference. Certainly, there is nothing on the face of their decision to suggest that they went through the proper procedural steps and differentiated the evidence as is necessary and as has frequently been emphasised by this tribunal.

6.	Accordingly, we uphold the finding of unfair dismissal and dismiss the cross-appeal by the respondent company. So far as remedy is concerned, we remit that aspect of the matter for proper consideration by a differently constituted tribunal.

	JUDGE HAROLD WILSON:	We are invited to give leave to appeal or rather to give permission for appeal and we refuse it.