§ Mr. Clive Soley (Hammersmith)
I am grateful for this opportunity of raising the case of Mr. Tobitt, a constituent, who has suffered considerable grievances over several years. I recognise that the House might not be able to redress those grievances, but I hope that this debate will make industrial tribunals and employers think carefully before they handle cases in future in the way in which this case was handled.
The appalling sequence of events followed a minor and largely unrelated disciplinary offence at Mr. Tobitt's work. Mr. Tobitt had worked for the Financial Times for six years—from 1982 until his dismissal on 19 May 1988. He was a satisfactory employee, but unfortunately his good record did not stand him in any stead in the events that then unfolded.
The facts, which are not disputed, are that Mr. Tobitt was arrested at work on 3 May 1988 for an alleged offence not connected with his later dismissal. It was alleged that he attacked a woman with acid and stole her handbag. The attack took place in Walthamstow at 7 am when Mr. Tobitt was at home in Hammersmith. The police alleged that his car was in the vicinity of the attack. Mr. Tobitt thinks that the police linked him to the attack because the lady was his ex-girlfriend. The police searched his car and found four copies of pornographic photographs, which had been reproduced on a Financial Times machine. Although the Financial Times was not part of the alibi, it was informed about the photographs by the police because—the police said—the photographs might have been used in court. The Financial Times then decided to suspend Mr. Tobitt fordamaging the reputation of the company".In dealing briefly with the court case, I hope that I shall not underestimate its importance and its effect on both Mr. Tobitt and the later handling of the case. The court case took place between 14 and 16 November 1988 at Snaresbrook Crown court. A witness stated that the attacker—the person who threw the acid in the face of the lady—was white. Mr. Tobitt is black. The case should have been dismissed. As was later acknowledged, the evidence did not stand up. At this stage—amazingly—the judge said that, although Mr. Tobitt was not the attacker, he could have been aiding and abetting, and he was therefore found guilty of that and sentenced to three years' imprisonment.
An appeal was lodged by Mr. Tobitt's solicitors, which he then won, but not before he had spent a month in prison for an offence that everybody agrees, and that the court made clear, and not only on technical or legal grounds, he could not possibly have committed or been connected with in any way. In other words, Mr. Tobitt left the appeal court with a clean reputation. The appeal court said that it was obvious that only one person was present at the attack.
It is important to note that the judge has ruled that the photographs, which were brought to the attention of the Financial Times by the police, should not have been used in court. That is an important point because of the issue of the reputation of the Financial Times.
On 16 May 1988 the first disciplinary hearing took place. There were two charges. The first was that Mr. Tobitt had been using the company's materials to produce 476 the photographs. The second charge was that he was bringing the company into disrepute. The Financial Times had made it clear that the first charge—using the materials—was not sufficient ground to warrant dismissal. Indeed, that was stated several times, not least in a letter dated 19 May 1988 from the Financial Times to Mr. Tobitt which said that the use of the materials was notin itself sufficient grounds for dismissing you.The Financial Times seemed to believe that if the material was used in court its reputation might be besmirched. That is pretty incredible. It is hypersensitive and absurd beyond reason. If many of us were in that position, we would think first and foremost that a person in this country was innocent until proven guilty. Therefore, we should not assume that what is produced and used in court is necessarily used in the appropriate way. The judge later ruled that the photographs should not and could not form part of the evidence. Again, that is important and it is a point that was overlooked.
Even if the Financial Times thought that the case would besmirch it, why did it not wait until after the court case? I draw attention to another quotation from the letter. It said:Four of the photographs still have the Financial Times name on them and are now in the possession of the police. It is highly likely that these photographs will be used in evidence in open court.The Financial Times was wrong: it was not likely. In my judgment and that of the solicitor, it was highly unlikely. Nevertheless, that was the conclusion of the Financial Times. I shall return to that later.
When Mr. Tobitt appealed against the dismissal, the case seemed to centre more on the use of the photographs and of the machine than the reputation of the company. In any event, the tribunal decided against him. I should add that the tribunal hearing took place only a few days after Mr. Tobitt's release from prison. That is not exactly the best time for a hearing for someone who has had that experience for an offence that he did not commit. He had to go through a tribunal hearing at which no one represented him. That is one of the main points of the case, as the Minister will appreciate, and I shall return to it.
The Financial Times' thinking—inasmuch as it was thinking—seemed to be out of touch with reality and out of all proportion to the incident. It was entirely insensitive to the suffering that Mr. Tobitt had been through.
In the letter to Mr. Tobitt dated 11 May the Financial Times said:Your letter makes the point that the photographs you had produced on the company's equipment were not, in the end, used in open court"—this was after the case—and therefore did not cause the company any embarrassment. This does not detract from the fact that at the time the decision was taken to dismiss you, it was highly likely that information about them and the circumstances surrounding their production would have become public knowledge. In the industrial tribunal's words the photographs were what the ordinary reasonable person would describe as pornographic".I shall come back to that point, too. The letter continued:Therefore, any publicity about them linked to the Financial Times' name was likely to bring the reputation of the Financial Times into disrepute. In the end, although no publicity was received in open court, there was some publicity in the press … However, Mr. Gilbertone of the managers who judged the dismissal—had to consider whether your return to work, having been charged with such an offence, would have had an effect on the rest of the St. Clements press employees.477 St. Clements press is the company under which the Financial Times operates. The letter goes on:I understand that Mr. Gilbert decided this was not relevant.I should hope so. Who on earth even put that thought in the management's mind, given that Mr. Tobitt was found not guilty?
The case goes from bad to worse. The evidence is overwhelming that the Financial Times assumed that the photographs would be used in court. Indeed, it said so. It is impossible to escape the conclusion that the Financial Times assumed that Mr. Tobitt was guilty. It took no account of his defence.
The report of the disciplinary hearing states of the police:We were interested that they had inferred that the photographs could be exhibited in court. That's why I asked if you had anything else to say. Don't want to go into your case. But the pictures are an integral part of the case.That was the view of the Financial Times and the police. It was not anyone else's view.
It is acknowledged that Mr. Tobitt produced the photographs at the request of the girl who wanted them done for a portfolio. The company, thinking that its image had been damaged, stated:Therefore, we have decided to summarily dismiss you for gross misconduct on the grounds that you have conducted yourself in a manner which has, and will, damage the reputation of the Company. The reputation of the Financial Times is of crucial importance.The way in which the FT handled the case is damaging to it. It should be thoroughly ashamed of itself.
At the appeal hearing against dismissal two of Mr. Tobitt's representatives, who are trade union representatives, were absent. His other representatives said at the hearing that his side of the case was disadvantaged because it lacked full representation. Nevertheless, the hearing went ahead. The case shows the mess and panic that the FT got itself into. I have great respect for it as an economic and political journal, but its handling of the case was disgraceful. A short clip about the case appeared in The Sun and Daily Mirror. An FT manager, speaking at the appeal tribunal, said:I know that the Sun claim a circulation of four million readers and a readership of twelve million. The reason I make this comment is that the Financial Times is a paper with a unique reputation.Why on earth is a strong and, presumably, responsible paper like the Financial Times panicking about a short piece appearing in The Sun and the Daily Mirror and fearing that it might damage its reputation? I am not sure that the FT knows anything about the readership of The Sun or the Daily Mirror. I would not think that the readership would be completely surprised that some people in the printing industry occasionally use machines to print pictures that should not be printed. One must be fairly out of touch with reality and, indeed, the reality of the print industry not to know that. Nevertheless, that does not justify its handling of the case.
Mr. Tobitt fully accepts that he should never have got involved in producing the material. He makes no issue about that, and the FT accepted that he agreed that he should never have done it. It is worth putting on the record why he did it. At the hearing he was asked:Why did your girlfriend want these photos reproduced?He said:She's a difficult girl and doesn't take a lot exactly. When she has had a few drinks, says she hated that sort of thing and said she did not know where to go, what to do. I suggested 478 that she got a better job. She calmed down. Later, this was the first time the photos came up. She said, 'I know what you can do for me'. She works in a nightclub. She is always being asked out. Then she said she could make a book. I know how the actual thing came about. Her idea was to make a book with the photos. The idea was just to look at them, not create a sophisticated item. I suggested I would take them. I knew what she wanted to do. I wanted to keep control of them. I did not want to get mixed up but felt I could wean her off the idea of the photos. My idea was to drag it out.It is worth pointing out that Mr. Tobitt was also helping the girl in other ways, including paying some of her bills because he found that when she was under less stress she could break away from some of the situations that she was getting herself into. One might say that he was doing a good voluntary service job, but I would not expect the FT', the police or anyone else to accept that.
The FT had counsel at the industrial tribunal, but the essential issue in this case is that Mr. Tobitt had no one at the tribunal and had just come out of prison. He could not afford a lawyer and his trade union felt that the tribunal, rightly or wrongly, was not the best machinery to deal with the case. Thus, Mr. Tobitt, just out of prison, was totally unrepresented at the tribunal. Surely in hearings linked to a court case a person should be offered legal aid. Mr. Tobitt's case was linked to a serious charge, which was later found to be utterly unfounded.
The FT argued that the reason for dismissal was that Mr. Tobitt had brought the paper into disrepute; he was not dismissed for printing the pictures. Curiously, the industrial tribunal said:The respondents"—the FT—said that had the matter merely been that the applicant had used the respondents' equipment for the production of the photographs for his own purposes it is unlikely that dismissal would have resulted. It was more probable in those circumstances that the applicant would have been warned as to his future conduct. They based their decision to dismiss on the nature of the photographs themselves; the fact that on one set of photographs there appeared the 'Financial Times' logo".Everyone agrees, however, that that logo was to be cut off before the photographs were used. The tribunal went on to say that the police told the FTit was probable that the photographs would be used at the applicant's trial for the purpose of attempting to establish where the applicant might have been at particular times and that consequently by his actions the applicant knew or ought to have known that he was bringing the respondents' names and or the name of the 'Financial Times' into disrepute, in that the facts would indicate that the specialist equipment at the 'Financial Times' was being used for the production of pornographic photographs, thus indicating either that the management connived in such activities by the staff or that the management was so lax that the staff were able to carry out this type of activity.I do not reach that conclusion. From time to time such things happen. We all agree that they should not, but one would not necessarily conclude that the management was lax or bad or colluded with such activity. It is clear that the industrial tribunal was already moving away from deciding whether Mr. Tobitt had brought the paper into disrepute and was considering the fact that he had produced the documents. The tribunal also stated:We do not here think that the test is, are these photographs pornographic or obscene in contravention of any statute but what would be the reaction of a reasonable person looking at these photographs and what would he think of them. Would he consider that they are simply the ordinary sort of photographs which one can see in many newspapers these days or do they go beyond this into the realms of what 479 might be described by the ordinary person as pornography? We are unanimously of the opinion that the ordinary person would describe these photographs as pornographic.I have not seen all the photgraphs, but Mr. Tobitt accepts that one could interpret them as pornographic to some extent. One concerns a spanking scene, but I do not believe that a court of law would necessarily define spanking as pornographic. The case in the industrial tribunal, however, was that the pornographic content of the photographs was the reason for dismissal. The Minister will be aware that, in law, pornography is a much more difficult case to prove. The industrial tribunal wanted to assume that the photographs were pornographic on the basis of reasonable assessment. I cannot say for sure, but I do not believe that that would stand up in a court of law.
The FT and the industrial tribunal assumed that the police case was correct, including the use of the photographs. That assumption is one of my serious criticisms of the case. The industrial tribunal said:We think that the test is what would a reasonable person in the position of Messrs Gilbert and Rhodes"—the two managers who dismissed Mr. Tobitt—have thought of the information which was given to them by the Sergeant in charge of the case at Walthamstow police station?So the industrial tribunal is saying that the information given by the prosecution mattered. At no time was any check made with the defence. In other words, the case was assumed to be proven even after it had been dismissed. That cannot be right.
Why on earth is an industrial tribunal—let alone what happened at the first hearing—and the management of the Financial Times asking for only the prosecution side? Does it not have a duty to ask for the defence side? Did it not have a duty to ask the solicitor and not just Mr. Tobitt, who all along was making the points that I have been making? It cannot be right to assume guilt.
To summarise my points, the Financial Times has brought itself into disrepute by the handling of this case. It was a disgraceful overreaction by what is, by any standard, a good newspaper. It should never have got itself into that position. It was a pathetic display of almost paranoid fear of what might be said in papers such as The Sun and the Daily Mirror. You, Mr. Deputy Speaker, and I would not even be here if we had such fears. Indeed, it might be said that we might be brought into disrepute if the House of Commons reacted in such a way.
An industrial tribunal must be weak in a situation in which a case is closely linked to a court case and the only contact is with the prosecution side. That is an important part of my case. It cannot be right for an industrial tribunal, a disciplinary hearing and all involved from that point of view to communicate with the prosecution but not with the defence lawyer, who deals with the case but who cannot represent the client at the tribunal because the client does not have any money.
The reason for dismissal by the industrial tribunal related only marginally to the reasons given by the Financial Times. It seems that the tribunal assumed, as did the Financial Times, that Mr. Tobitt was guilty. That was a disgraceful slur on the reputation of a man who had already suffered far more than any of us will suffer in that way in our lives. It should never be allowed to happen again.
§ The Parliamentary Under-Secretary of State for Employment (Mr. Patrick Nicholls)
The hon. Member for Hammersmith (Mr. Soley) will appreciate that I know much more now about his concerns, having heard his speech, than I could have known beforehand. Inevitably, in the nature of these matters, the titles of debates do not always yield up their secrets as well as they might.
The hon. Gentleman will accept that I cannot pass comment on the criminal court case to which he referred. Nor can I speak about the quality of the judgment made by the industrial tribunal. He would be the first to complain, and rightly so, if he felt that in any sense Ministers reserved unto themselves the right or privilege to go through findings made by an industrial tribunal and comment on them.
Having said that, I will respond to some of the concerns that the hon. Gentleman voiced, and it might help if I began by setting out the sequence of events as I understand them to have occurred. The hon. Gentleman spoke of the arrest and what followed. A search was made of the effects, which led the police to find the photographs in the boot of the car, and they obviously saw that some of them bore the Financial Times logo. Some of them had been trimmed and others had not.
At that stage, the police asked officials of the Financial Times to examine the photographs and, on the basis of that examination, formed the conclusion that the photographs were pornographic. Obviously, an explanation was called for from Mr. Tobitt. The police felt that an explanation was called for because it appeared that one set of photographs at least had been printed on Financial Times specialist equipment. That was clearly the case because they bore the FT logo.
I understand that at that stage the senior industrial relations executive and the production manager interviewed Mr. Tobitt and that, while mentioning his arrest, he did not refer to the photographs. They did not take any immediate action at that stage but told him to report for work as usual. They then themselves examined the photographs, which were still held by the police. They had a further interview with Mr. Tobitt, who at that stage was represented by his union representative, and again he did not mention the photographs.
At that stage, the FT executive and manager themselves raised the subject and, after a short adjournment, declared that they would be considering disciplinary charges, and I believe I am correct in saying that Mr. Tobbit was suspended on full pay pending a disciplinary hearing. That was conducted some days later, in accordance with the disciplinary procedures, after a full letter had been sent to Mr. Tobbit detailing the charges against him. At the disciplinary hearing, Mr. Tobitt was represented by his union. Matters were thoroughly gone into and it was decided that he should be dismissed.
I understand—this is clear from what the hon. Member for Hammersmith said—that none of those facts is in dispute. But subsequently a case for unfair dismissal was brought before the industrial tribunal on the ground that it was reasonable to dismiss him merely for producing the photographs. The respondents in the case argued that they had based their decision to dismiss him on the nature of the photographs, the fact that the Financial Times logo appeared on one set, their likely use in the police 481 proceedings and the fact that the applicant knew, or ought to have known, that his actions could bring the name of the Financial Times into disrepute.
I understand that the industrial tribunal agreed that the employers' action was reasonable in the circumstances and was unanimous in dismissing the applicant's case of unfair dismissal. That decision was sent to both parties on 25 January last year. As I understand it, Mr. Tobitt made no attempt after that to appeal to the employment appeal tribunal.
I should emphasise, and I am sure the hon. Gentleman will accept, that industrial tribunals are independent judicial organisations, responsible for reaching their own decisions without interference from Government. It would clearly be quite wrong for Ministers to attempt to become involved in particular cases or to try to get decisions changed.
It is not my Ministry's normal practice to comment on the merits or demerits of particular decisions. However, the hon. Gentleman was particularly concerned that the lack of representation at the hearing might have meant that Mr. Tobitt was treated unfairly. I have been through the tribunal's findings, as I am sure the hon. Gentleman has, because he has quoted from them. He will have formed his own views, but it seems to me that the tribunal was in no doubt about the decision it should make. It did not seem to dispute any of the facts as given by Mr. Tobitt, and obviously its members had to form a view.
I should emphasise two points. First, the tribunal said:We do not here think that the test is, are these photographs pornographic or obscene in contravention of any statute, but what would be the reaction of a reasonable person looking at these photographs and what would he think of them. Would he consider that they are simply the ordinary sort of photographs which one can see in many newspapers these days or do they go beyond this into the realms of what might be described by the ordinary person as pornography?We are unanimously of the opinion that the ordinary person would describe these photographs as pornographic. We were originally shown only the photographs which bore the Financial Times logo but later at the request of the applicant we saw the whole set of photographs and we have no hesitation in saying that the ordinary reasonable person would describe these photographs as pornographic or, as Mr. Gilbert put it, going over the line.Perhaps most importantly for the hon. Gentleman, the tribunal said:For these reasons therefore we are unanimously of the opinion that to dismiss the applicant not for the use for private purposes of the 'Financial Times' equipment but for the use for private purposes for producing pornographic 482 photographs was a reasonable action taken by the employers and consequently the applicant's claim of unfair dismissal is dismissed.It is not my responsibility to double-guess the decision made by the industrial tribunal. I merely say in passing that, having read the transcript, I feel that it is one of the more clear-cut cases that come before industrial tribunals. I merely hold an opinion—if the hon. Gentleman disagrees, I accept that there may be two views on it—but I believe that a common-sense view would be that using an employer's equipment to produce pornographic photographs is not the sort of action that is normally thought to be compatible with normal harmonious relationships between employers and employees.
The hon. Gentleman perfectly properly raised the issue of whether legal aid should be available in industrial tribunal cases. The hon. Gentleman knows that the idea behind industrial tribunals is that, as far as possible, they should be a quick and informal way for people to obtain redress. The Government have always felt that it is inappropriate to extend legal aid to unfair dismissal cases for precisely that reason. I might have a professional interest in this as a lawyer, but there are times when it is a good idea not to have the system gummed up by lawyers. Having realised that difficulty, the hon. Gentleman said that that should not be so where an unfair dismissal is connected with other cases, in this instance, a criminal one.
I accept—and I am sure that it will have been perfectly obvious to the House from the way the hon. Gentleman presented his constituent's case—that he knows his constituent and has talked to him. Clearly Mr. Tobitt feels badly about it, as does the hon. Gentleman. It seems clear from the tribunal's decision that it did not take into account, in a pejorative or beneficial way, the fact that there was another case pending. As I understand it, from what the hon. Gentleman said, when talking about the admissibility of the photographs the judge was referring to the earlier hearing. Even on the basis of what the hon. Gentleman says, the photographs would clearly be irrelevant to that.
The hon. Gentleman clearly feels strongly about this matter on behalf of his constituent. However, at the end of the day the industrial tribunal considered the matter, which clearly was well canvassed. The tribunal reached its decision having heard the evidence, and, however strongly the hon. Gentleman feels, it would not be appropriate for me to say whether the tribunal should have reached that decision. The tribunal took a certain view, and I do not feel that I can double-guess it.