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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Yellow Pages Sales Ltd v Rejuwa [1997] UKEAT 743_97_1310 (13 October 1997) URL: http://www.bailii.org/uk/cases/UKEAT/1997/743_97_1310.html Cite as: [1997] UKEAT 743_97_1310

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APPEARANCES

 

For the Appellants	MR T BRENNAN (of Counsel) The Solicitor BT Plc 81 Newgate Street London EC1 7AJ


 


JUDGE JOHN BYRT QC: This is a preliminary hearing in an appeal from the decision of an Industrial Tribunal sitting at Exeter, the decision being promulgated on 11 April 1997. The Tribunal held that the employee, Mr Rejuwa, had been unfairly dismissed and the employers now appeal from that decision.

Mr Rejuwa was a field sales manager in charge of a team of representatives. At different times there were two particular women who had been part of that team who were referred to as Woman A and Woman B.

Woman A made allegations against Mr Rejuwa based upon events which happened in March, April and May 1996. It is alleged that he made extremely offensive sexual remarks which plainly caused her distress. It was also alleged by Woman B that in September 1995 he took her to a room, locked the door and thereafter sexually assaulted her. Such conduct is said to have happened on some further five occasions. Woman B says that such sexual conduct was not properly with her consent because Mr Rejuwa took advantage of his dominant position as her manager and she just acquiesced in his advances for that reason.

In May 1996, Woman A went sick. Whereas ordinarily, Mr Rejuwa, as her manager would have gone to see her, that was not thought appropriate in the circumstances of this case and a Mr Scott went to see her. She made the complaints to him about Mr Rejuwa's conduct and also put him on to Woman B, whom she said also had something to complain about.

Mr Scott made his enquiries, found there was some justification for what had been alleged by these women and he took the matter to a Mr Brightwell, who was a regional sales manager. In due course, the latter interviewed these ladies and, as a result of what they told him, he took the matter to the regional personnel manager, Mrs Nicholls. Statements were taken from the girls. On 19 June Mr Rejuwa was suspended in his employment. He denied the allegations in relation to both the ladies.

A disciplinary hearing took place on 26 June 1996 and Mr Brennan, for the Appellants, concedes that that hearing was flawed because Mr Brightwell, who conducted the hearing, failed to take advantage of the opportunity of meeting both Woman A and Woman B face to face before coming to his conclusion that their allegations were proved so as to justify the employers dismissing Mr Rejuwa. So one does not have to consider that aspect of the matter any further.

There was then an appeal and the matter came on for hearing on 26 July. Mr Brennan poses the question whether the appeal procedures cured the defects of the disciplinary hearing.

There was a problem in relation to the appeal hearing. This began on 26 July but had to be adjourned part-heard till 31 July. During that interval of time, the officer who had chaired the first session of the appeal hearing, a Mr Uppington, was unavailable on the second occasion and in consequence a Mr Wright stepped into his position as chairman for the adjourned hearing. In any event, the result of the appeal hearing was that the appeal was dismissed and Mr Rejuwa's dismissal stood.

The first issue Mr Brennan raises is whether the appeal hearing cured the defects in the disciplinary hearing. The problem, he says, with the Industrial Tribunal's decision is that they took note of the fact that there had been a change in the chairman and said that that in itself rendered the appeal hearings flawed. The appeal process therefore, did not cure the flaws in the disciplinary hearing. However Mr Brennan says that they gave no reasons why they felt the change of chairman was a fatal flaw in the proceedings. He submitted that the crucial evidence in the case relating to the credibility of Woman A and Woman B had been dealt with at the second hearing. The Applicant, Mr Rejuwa, also gave evidence at that second hearing. In consequence the substantive part of the hearing took place on the second occasion. He says, that being so, it was incumbent upon the Industrial Tribunal to state their reasons why they thought the change in chairman, of itself, vitiated the appeal process.

Mr Brennan is right that the Tribunal do not state their reasons and the question is whether this gives rise to an arguable point, namely whether they should have gone into detail and demonstrated why they thought it flawed the appeal process.

Mr Brennan relies upon another point. He says that, notwithstanding the fact that Mr Rejuwa's contributory conduct was raised as an issue during the course of the hearing, the Tribunal came to the conclusion that he was not guilty of contributory conduct without stating any reasons for their finding. They merely stated that this was so, in one sentence of their decision in paragraph 19. Whether there was contributory conduct or not, he submits, depends entirely upon the credibility of Mr Rejuwa as opposed to the credibility of Woman A and Woman B and yet there is no finding on that crucial issue. Everybody is left in the dark about that important matter and in consequence the parties are unable to see whether an error of law has taken place.

There were other peripheral points. He says that it is apparent on the face of the documents and the Tribunal's decision that they made a potentially significant and crucial mistake about the date when a particular meeting took place; whether it was on 3 or 6 June 1996. They found that it was on 6 June. As a result, a particular point that could have been made on behalf of the employers was overlooked, at least that is arguably so. He also challenges the Industrial Tribunal's findings that the employers have not given sufficient or adequate reasons for dismissal.

We have considered the matter with care and think that, on the first two grounds Mr Brennan has raised, there is an arguable case to go for a full hearing before the Employment Appeal Tribunal. The first relates to the significance of the changing of the chairman for the second hearing of the appeal; the second is the issue of contributory conduct. On those two grounds specifically we give leave for this matter to go forward to a full hearing.

Having so decided, we think the employers should also have leave to proceed on what we have called the peripheral points. We so direct.