England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
(APPLICATION FOR PERMISSION TO APPEAL)

		Royal Courts of Justice Strand London, WC2 Tuesday, 8 October 2002

1. LORD JUSTICE KEENE: This is a renewed application for permission to appeal against a decision of the Employment Appeal Tribunal delivered on 10 April 2002. By that decision the Employment Appeal Tribunal dismissed an appeal by the applicant against an Employment Tribunal's decision rejecting a number of complaints against Cumbria County Council, his former employer.
2. Mr Bewry had been employed as health and safety officer in the social services department until dismissal for alleged misconduct involving financial irregularities. That dismissal was confirmed by letter dated 29 October 1996. During his employment he had brought six separate complaints alleging that he had been subjected to a detriment on the grounds of his health and safety activities contrary to Section 44 of the Employment Rights Act 1996, as it now is. Following his dismissal he brought separate complaints of unfair dismissal and unlawful deductions from wages.
3. His complaints were heard in January 2001 at a hearing not attended by him. Before the Employment Appeal Tribunal he raised four issues set out in his skeleton argument. It is worth quoting those:

"(i) Was the appellant deprived of his right to a fair hearing through the unavailability of public funding for his complex hearing:

(ii) Did the ET err in law by failing to properly, if at all, take into consideration serious procedural irregularities;

(iii) Did the ET err in law by taking into account matters which were false, misleading and irrelevant;

(iv) Did the appellant receive a fair hearing through the unreasonable delay in the preparation and issue of the decision."

4. His very lengthy grounds of appeal to this court which run to 41 pages in their amended form raise a total of six matters as grounds of appeal. The first, and the one upon which most emphasis has been laid this morning by Miss Eilledge who appears on his behalf, is alleged failure by the Employment Tribunal to adopt the test set out in British Home Stores v Burchell [1980] ICR 303, 304. In particular, the emphasis is on the need for the employer to have carried out a reasonable investigation into the suspected misconduct. It is contended that his employer failed to do that, in that during the disciplinary investigation it failed to interview material witnesses including the applicant himself. The majority of the complaints against him were based on circumstantial and hearsay evidence. The thrust of this ground, certainly as presented to the Employment Appeal Tribunal, was that the applicant himself was not given an opportunity to put his case to his employer before dismissal occurred.
5. Miss Eilledge has sought to persuade us that before the Employment Appeal Tribunal the point was also taken that the employer had failed to investigate properly by means of interviewing other members of staff. I am bound to say, having read with some care the skeleton argument put before Employment Appeal Tribunal, that that is not the way the argument was there presented.
6. I return to the contention that Mr Bewry was not given the opportunity to put his case before dismissal. This is of course a fundamental principle of employment law based on the rules of natural justice. What happened here was that, after an internal investigation carried out by the head of Departmental Services Unit, a disciplinary hearing was arranged at which the applicant would have been able to answer the charges. That was initially fixed for 26 September 1996 but postponed twice at Mr Bewry's request. Eventually a hearing was fixed for 28 October 1996. On 24th October solicitors then acting for him wrote to the council seeking a further postponement on the grounds that the applicant had just learned that his brother living in Jamaica had been shot and he had to fly there at short notice. The Director of Social Services decided not to allow a further postponement and the Employment Tribunal did not find any fault with that procedural decision.
7. The proceedings thus went ahead and were tape-recorded. Evidence was produced in the absence of the applicant and 10 of the 12 charges were held to be substantiated. There was then an internal appeal by Mr Bewry which he did attend, representing himself. That was in the nature of a rehearing with witnesses being called and cross-examined. It lasted some five days. In the end Mr Bewry's appeal was rejected.
8. In these circumstances, for my part, I cannot see that the applicant was deprived of an opportunity to put his case to his employer. He had such a chance at the disciplinary hearing which he did not attend and he had another chance, which he took, at the internal appeal hearing. None of the points made before us this morning about what went on in that appeal hearing appear to have any validity whatsoever. In those circumstances I can see nothing in the first and main ground advanced on behalf of the applicant.
9. The second ground advanced is that he was deprived of his right to a fair hearing and that his rights in terms of Article 6.1 of the European Convention on Human Rights were thereby breached. The principal complaint here is that he was unable to get public funding for legal representation before the Employment Tribunal. It is argued in his substantial written grounds of appeal that there was a lot of written material produced by the council, some of it not long before the hearing, and the proceedings were too complex for a litigant in person; at the very least the tribunal should have allowed him an adjournment.
10. The position about public funding is that the applicant sought such funding from the Legal Services Commission but was refused. He sought to challenge that decision by way of judicial review. Permission for judicial review was refused both on paper and orally. Permission to appeal to this court was refused by a single Lord Justice. In those proceedings the applicant had again argued that he was being deprived of a fair trial in breach of Article 6 of the European Convention on Human Rights. The Employment Appeal Tribunal has taken the view that that issue could not properly be re-opened before it and, in any event, having heard how skilfully Mr Bewry represented himself, concluded that he had not been deprived of a fair trial. It noted that at the Employment Appeal Tribunal hearing he had had the chance of free legal representation by counsel but had chosen to present his case in person.
11. I cannot see that the Employment Tribunal or the Employment Appeal Tribunal went wrong in this respect. The availability of legal aid is a matter essentially for the domestic regime in this country and it must be open to any authority to have machinery which decides that a case is lacking in sufficient merit to justify public funding being made available. In any event, this argument has already been as far as the Court of Appeal and has failed. It would be improper, in my view, for it to be allowed to proceed further yet again. Mr Bewry had put his case very fully in writing to the Employment Tribunal and clearly was capable of representing himself.
12. There is a further short point under this ground in which Mr Bewry seeks to challenge the Employment Appeal Tribunal's refusal to adjourn on 17 January 2001 on medical grounds. The tribunal did not accept he was unable to attend the hearing, and it had to bear in mind that the events with which it was dealing began in 1993. It had a discretion whether or not to allow an adjournment; that decision was not perverse or otherwise clearly wrong.
13. Ground 3 is that there was unreasonable delay by the employment tribunal in promulgating its decision. The hearing began on 11 January 2000. It continued with a number of breaks until 9 March, nearly two months later. The lengthy written decision by way of extended reasons was sent out on 2 August 2001. It is argued that that interval must cast doubt on the Employment Tribunal's ability to remember witnesses and assess their credibility. Reliance is placed on a number of decisions concerning the Immigration Appeal Tribunal. It seems to me that the Employment Appeal Tribunal dealt entirely adequately with this particular ground. It is unnecessary for me to set out in detail the basis upon which they rejected it. Those grounds appear to be entirely valid and I endorse them. I can see nothing in this point that merits further consideration by the Court of Appeal.
14. There is, fourthly, an allegation of bias on the part of the Employment Tribunal, particularly its chairman. This was not a ground of appeal at the Employment Appeal Tribunal and was not raised in the detailed skeleton argument put before that body. Not surprisingly, the Employment Appeal Tribunal did not deal with the point. It is right that the primary concern of this court is whether the decision of the Employment Tribunal was sound (see Hennessy v Craigmyle Ltd [1986] IRLR 300, 305). But it is not open to an appellant to seek to take points before the Court of Appeal which he has not taken before the Employment Appeal Tribunal. That would be to negate the whole appellate structure. A ground cannot be saved up for the Court of Appeal.
15. The same may be said of the remaining two grounds of appeal, namely number 5 that the Employment Tribunal made unreasonable findings as to his complaint of detriment and number 6 that there were factual inaccuracies in the Employment Tribunal's decision. Neither of these grounds was put before the Employment Appeal Tribunal, and this court does not have the benefit of any decision by that body on them. It is true that Mr Bewry did seek to challenge certain findings of fact by the Employment Tribunal before the Employment Appeal Tribunal, but the Employment Appeal Tribunal correctly pointed out that that was not something which fell within its jurisdiction.
16. I can see no prospect of a successful appeal from the Employment Appeal Tribunal on any of these grounds. I therefore would refuse this application.
17. LORD JUSTICE BUXTON: I agree with everything that has fallen from my Lord.
18. Having reviewed the whole history of this matter and read all the submissions put in by Mr Bewry at every stage, it is quite apparent to me that a large part of the complaints he makes now about the judgment of the Employment Appeal Tribunal were not in fact ventilated before that tribunal. It is also apparent that on ground 1 on which, with good judgment, Miss Eilledge has concentrated, the complaint made before us today is essentially new and different from the basis on which the matter was previously advanced in this case. Mr Bewry's complaint that his disciplinary offences were not adequately investigated, and that he did not have an opportunity to put his case, is simply and plainly wrong. We have looked, albeit briefly, at the record of the appeal hearing. It is clear that that was an occasion when Mr Bewry had ample opportunity to say everything he needed to in defence of the allegations brought against him.
19. The procedure cannot, in my view, be held to be open to criticism at all. There is no prospect of the Court of Appeal finding anything at fault in the judgment of the Employment Appeal Tribunal. Like my Lord, I would also refuse permission.
Order: Application refused with a legal aid assessment