England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

		Royal Courts of Justice Strand London WC2 Friday, 26th April 2002

1. LORD JUSTICE KEENE: The applicant, Mr. Peter Wilson, seeks permission to appeal against a decision of the Employment Appeal Tribunal sent to the parties on 30th January 2002. By that decision the Employment Appeal Tribunal dismissed the applicant's appeal against the decision of an Employment Tribunal sitting at Sheffield, which had in turn dismissed his claims for victimisation and unfair dismissal. The Employment Appeal Tribunal had earlier dismissed all but one of Mr. Wilson's grounds of appeal by a decision after a preliminary hearing, a decision which was sent to the parties on 9th December 2000, and by its decision sent on 30th January 2002 it dismissed the remaining grounds.
2. The proposed appeal, which is solely against the decision of 30th January 2002, as has been made clear this morning, is somewhat out of time, but only by about two and a half to three weeks. I propose in any event to consider the merits before dealing with the application to extend time.
3. Mr. Wilson had been employed by the respondent Council as a resident caretaker from 13th January 1986 until his dismissal on 24th February 1998 following disciplinary proceedings. Under the terms of his employment he was required to reside at a flat provided by the respondents. He was prohibited from keeping a dog at those premises. There was some history of conflict between Mr. Benn, Mr. Wilson's line manager, and Mrs Wilson over the issue of her keeping a dog at the flat. At one stage Mrs Wilson alleged that Mr. Benn was acting contrary to the Race Relations Act 1985 and she submitted a questionnaire under section 65 of that Act. Nothing further happened in any formal sense in respect of that allegation, but Mrs Wilson seems to have moved out of the accommodation where Mr. Wilson was required to live.
4. The Employment Tribunal noted that the events which subsequently took place were not the subject of any significant factual dispute. In April 1997 Mr. Benn noticed that Mr. Wilson was arriving at work by car, which struck him as odd for a caretaker required to live in a council block of flats. Inquiries by Mr Benn suggested that Mr. Wilson was not living there but was living with his wife away from the council estate. The investigation also disclosed that there were discrepancies between the times of the applicant's actual arrival at work and the details recorded by him on his time sheet. The discrepancies were all in favour of the applicant.
5. At a meeting on 22nd July 1997 and in a letter to Mr. Wilson dated 25 July 1997, the respondent Council raised allegations, including ones that Mr. Wilson was not residing at the premises provided and that there were discrepancies in his time sheet recording. There were also some three additional allegations to which I need not refer in this judgment.
6. After interviews with Mr. Wilson a disciplinary hearing took place on 24th February 1998. It was conducted by Mr. Bailey, the head of Housing Services for the respondents. He heard evidence and found the first two charges proved. On each of them Mr. Wilson was dismissed. He appealed first to Mr. Morton, the head of housing for the council, and then to a committee of three councillors, using the procedures under the respondents' disciplinary procedures system. His appeals were unsuccessful. As a result his dismissal was confirmed.
7. The Employment Tribunal which dealt with the applicant's claims rejected the claim of victimisation. It found that the dismissal had not been decided upon by Mr. Benn between whom and the applicant there had been some history of trouble but by Mr. Bailey, whose decision had been independently confirmed after two properly conducted appeals. The Employment Tribunal found that the earlier allegation by Mr Wilson of race discrimination over the dog incident played no part, consciously or subconsciously, in the mind of Mr. Bailey or in the minds of those who heard the appeal. On the unfair dismissal claim the Employment Tribunal found that the reason for dismissal was the applicant's conduct, in that the employer thought that he had breached the terms of his contract of employment by not living at his council flat as required, and that he had failed to offer any explanation for the allegation that he had falsified his time sheets. On the issue of whether the dismissal was fair, the Employment Tribunal found that the council was

"fully justified in finding that the applicant was not residing at the flat and that that amounted to a blatant breach of his terms of employment. The whole purpose of a resident caretaker and the reason for providing him with a flat was to enable him to carry out his duties and responsibilities where necessary on a call-out basis outside his working hours. The applicant was well aware of the importance of residence yet he deliberately breached the terms."

8. Though that charge alone would probably not have justified summary dismissal, said the Tribunal, there was the second charge, the falsification of time sheets. This the Tribunal described as "an extremely serious matter which the applicant has refused to address or explain." Consequently, the Tribunal found the dismissal to be fair.
9. By his notice of appeal to the Employment Appeal Tribunal, Mr. Wilson sought to appeal the decision by the Tribunal below on the basis that that Tribunal had incorrectly applied section 2(1)(b), (c) and (d) of the Race Relations Act and section 98(1) and (2) of the Employment Rights Act 1996. In addition, he based his appeal on the conduct of the Tribunal hearing. In support of his application he filed affidavits by himself and his wife raising allegations about the conduct of the hearing and complaining, in particular, as to their treatment at the hearing by the chairman, a Mr. David. This included a claim that Mrs Wilson had been prevented from representing her husband at the hearing, despite the written assurance that she would be able to do so. There had been a letter dated 6th January 2000, sent by the Regional Secretary for Employment Tribunals before the Tribunal hearing took place, confirming that Mrs Wilson could act as Mr. Wilson's representative at that hearing. At a preliminary hearing on 15th November 2000 the Employment Appeal Tribunal held that the Employment Tribunal had been entitled to reach its decision as to the fairness of the dismissal and the Race Relations complaint and that the grounds of appeal under the sections of the two statutes to which I have referred should be dismissed. However, it also concluded that there should be a further preliminary hearing on the unfair trial ground after the chairman and his colleagues had the opportunity to give information about the allegations concerning the conduct of the hearing. As I have indicated already, there is no challenge before this court to that decision by the Employment Appeal Tribunal.
10. The further preliminary hearing took place on 22nd March 2001 after correspondence had been received from the chairman and members of the Employment Tribunal. At that further hearing the Employment Appeal Tribunal allowed the unfair trial allegation to proceed to a full hearing which duly took place on 27th November 2001. In its judgment after the full hearing the Employment Appeal Tribunal, chaired by His Honour Judge Levy QC, noted that the statements from the Tribunal chairman and members did not make it clear whether or not Mrs Wilson had been allowed to represent her husband. The Employment Appeal Tribunal was, however, prepared to assume that she had been prevented from representing her husband. Not surprisingly, they expressed some disquiet about that. However, the Employment Appeal Tribunal concluded that:

"We are satisfied that it would not have made any difference to the outcome of the case, given the clear findings of the Tribunal as to the investigation made by the respondent, and as to the clearly correct finding of the respondent's findings as to the conduct of the appellant."

11. The Tribunal in that context relied upon the Court of Appeal decision in Bache v Essex County Council [2001] IRLR 251, where Mummery LJ gave guidance on the fair conduct of proceedings. In particular, Mummery LJ said this:

"Even if the appeal tribunal or the Court of Appeal find that a ruling has been made in error of law, it does not follow that the appeal should be allowed and that the case should be reheard by the tribunal in whole or in part. This is not to diminish the importance of procedural fairness: it is as important in many ways as the application of the substantive law to the facts of the case. But the response to the finding of an error of law in procedure should be proportionate. If the appeal tribunal is sure that the result of the case is unarguably right and that the outcome would have been the same, even if the error of procedure had not occurred, it would be unnecessary, unjust and disproportionate to remit the case to the tribunal for a rehearing."

12. The Employment Appeal Tribunal said that the basic facts of the present case were very stark, given the charges against Mr. Wilson of non-residence in his service tenancy and of falsifying his time sheets on 15 occasions, to a total of nearly eight hours. Consequently, they dismissed the appeal. Mr. Wilson now seeks permission to appeal against that decision.
13. It is said by Mrs Wilson, whom I have allowed to speak on his behalf this morning, that the Employment Appeal Tribunal's decision is a perverse one. She advances two main arguments. The first is that Mr. David, the chairman of the Employment Tribunal in question, should have recused himself. The reason for this is, it is said, that he had, some eight months earlier, sat on a Disability Discrimination Act hearing involving the appellant. Consequently, he knew the appellant through those proceedings and therefore he was not someone who could be seen as unbiased. This was a ground, I have to say, which the Employment Appeal Tribunal considered and rejected, and in my judgment they were right to do so. I cannot see that there was any real danger of bias in this case given the involvement by the chairman in an earlier hearing. That earlier hearing had nothing to do with the allegations which were now being considered by the Employment Tribunal. It is not uncommon for a court or tribunal to deal with the matter when it has earlier heard some unconnected proceeding involving the same party or parties. I can see no real prospect of a successful appeal on that footing.
14. I turn to what is perhaps the more significant point which is raised on behalf of the applicant today. That concerns the procedural irregularity at the Employment Tribunal hearing. It is contended that the hearing was fundamentally flawed, in particular because Mr. Wilson was denied his chosen representative, namely Mrs Wilson. Consequently, it is argued that the hearing was not fair and that justice has not been done. That, Mrs Wilson emphasizes, is what she seeks on her husband's behalf today, namely a just outcome.
15. In arriving at a conclusion on this aspect of the case, I bear in mind not merely the gravity of the disciplinary charges faced by Mr. Wilson, but also the fact that he did not answer or explain the first two charges against him, the ones on which his dismissal was based. In particular, he gave no explanation to his employers for the apparent falsification of his time sheets. In those circumstances, it seems to me that the outcome of the disciplinary proceedings, and indeed of the employment tribunal proceedings, was inevitable. I accept that there was an error in procedure which took place before the Employment Tribunal, in that Mrs Wilson was apparently (I make the same assumption as the Employment Appeal Tribunal) not allowed to speak and act on behalf of her husband. She did give evidence but she was not allowed to be his representative. That is regrettable and it is a procedural irregularity. Nonetheless, I am bound, as would the full court be, by the decision made by this court in the case of Bache, to which I have referred. The principle which was spelt out there by Mummery LJ, in the passage which I have quoted earlier, seems to me to be entirely applicable in the present case. Whatever may have been the procedural irregularity at the tribunal hearing, there can be no doubt as to what the outcome of that hearing was going to be. There was no prospect whatsoever of the claim for victimisation being upheld, given the fact that the Council had followed the prescribed disciplinary processes, so that the decision to dismiss was confirmed by persons other than Mr. Benn against whom the allegation of antagonism had been raised, and subsequently by the three councillors. Likewise, the complaint of unfair dismissal stood no prospect of success given the facts to which I have already referred, namely the seriousness of the charges against Mr Wilson and the absence of any explanation for his conduct, in particular the falsification of the time sheets. In those circumstances, it seems to me that the Employment Appeal Tribunal was justified in arriving at the conclusion which it did on its final hearing. There was no error of law by the Employment Appeal Tribunal. It follows that there is no real prospect of a successful appeal in this case. In those circumstances, this application must be dismissed, as must the application for an extension of time.
Order: Applications refused.