Neutral Citation Number: [2011] EWCA Civ 619
Case No: A2/2010/3011
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge McMullen QC
No: UKEATPA/0528/10/CEA

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 27/05/2011
Before :

LORD JUSTICE RIMER

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Between :

	PATRICIA HOWE	Appellant	
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	LONDON BOROUGH OF HAMMERSMITH AND FULHAM	Respondent	

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Ms Althea Brown (instructed by Employment Lawyers Limited) for the Applicant, Ms Patricia Howe
The Respondent was not represented

Hearing date: 17 May 2011
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Judgment

Lord Justice Rimer : 
1.	This is a renewed application for permission to appeal, Mummery LJ having refused permission on the papers on 12 February 2011 on the grounds that an appeal would have no real prospect of success. The challenge is to the order of 26 November 2010 made by His Honour Judge McMullen QC in the Employment Appeal Tribunal. Judge McMullen thereby (i) dismissed the applicant’s application under Rule 3(10) of the Employment Appeal Tribunal Rules 1993, as amended, (ii) directed that no further action was to be taken on her appeal against the judgment of the Watford Employment Tribunal (Employment Judge Heal, Mr B. Ludford-Thomas and B. Mrs Fraser) dated 10 February 2010 dismissing her claim for unfair dismissal, and (iii) dismissed her appeal. The explanation for that order is that Judge McMullen was not satisfied that the applicant had any reasonable ground of appeal that merited a full hearing before the appeal tribunal on notice to the respondent, the London Borough of Hammersmith and Fulham (‘Hammersmith’). The facts, as found by the employment tribunal (‘ET’), are as follows.
2.	Ms Howe commenced work for Hammersmith in April 1987 as a residential social worker, working three or four nights a week, latterly at a children’s home in Dalling Road. An investigation in 1996 revealed that she had simultaneously also been working for the London Borough of Brent (‘Brent’) as a full-time teacher at a primary school. The outcome was that both Boroughs told Ms Howe that she must relinquish one job or face disciplinary proceedings. She chose to give up the Brent job.
3.	A further investigation in 2006 revealed her, however, as again working for both Boroughs -- she was again working as a teacher for Brent. It also emerged, as the ET said in paragraph 7 of its reasons, that ‘on a number of occasions when Ms Howe had reported sick to [Hammersmith] in her night work, … she had in fact been able to work for Brent as a teacher during the day.’ The ET explained the evidence for that finding, saying that on two separate occasions she was off sick for two consecutive days (which I read as meaning nights). 
4.	Hammersmith suspended her on 27 October 2008 and in February 2009 invited her to a disciplinary hearing to answer charges that she had (a) ‘claimed’ dual employment with both Boroughs after being expressly forbidden to do so; and (b) committed fraud by reporting sick with Hammersmith whilst physically attending work with Brent. A hearing was held on 17 March 2009 when, as the ET found, Ms Howe tacitly acknowledged that she had been required to give up one of the jobs and gave an apparently disingenuous explanation by way of claimed justification for again working as a teacher for Brent whilst not disclosing to Brent that she was also working for Hammersmith. At the hearing Ms Howe was shown the Hammersmith staffing rotas and the dates of her absences; and I infer from paragraph 9 of the ET’s reasons that she was also shown the like Brent information. I infer from paragraphs 10 and 11 that she was given an opportunity to answer the charges and that she submitted documents directed at doing so, which Hammersmith confirmed it would take into account at the adjourned disciplinary hearing which was held on 14 April 2009. 
5.	Ms Howe did not attend the hearing on 14 April 2009. The ET summarised what happened at it and that Mr Trot, Hammersmith’s assistant director of finance:
‘… found that Ms Howe had been engaged in dual employment despite an instruction not to do so; he found too that she reported sick to [Hammersmith] while able to work for Brent. He considered that the allegations amounted to gross misconduct and dismissal was the appropriate sanction.’
6.	Ms Howe was dismissed by a letter of 14 April 2009 and informed of her right to appeal, which she exercised, the appeal being heard by Mr Pallace, Hammersmith’s director of environment, on 27 August and 25 September 2009. She attended the hearing with her sister, who made representations on her behalf. The ET summarised the hearing and explained that the outcome was that Mr Pallace upheld the dismissal and told the ET in evidence that he would have done so on the basis of the dual employment charge alone. Ms Howe’s claim to the ET for unfair dismissal followed.
7.	The ET set out sections 98 and 98A of the Employment Rights Act 1996. It had recorded in paragraph 2 of its reasons that Ms Howe’s dismissal was admitted; that there was no breach of the statutory procedure for her dismissal; and that Hammersmith claimed that the dismissal was on conduct grounds, which was obvious, although apparently disputed. Ms Howe, however, advanced no positive case that her dismissal was on some other ground. 
8.	The ET analysed the issues succinctly in paragraphs 20 to 26. It found that Hammersmith decided to dismiss because it had a genuine belief in the conduct for which Ms Howe was charged, namely obtaining dual employment with Hammersmith and Brent despite having been forbidden to do so; and fraudulently reporting sick to Hammersmith whilst physically attending work for Brent. The ET found that Hammersmith’s belief in relation to both matters was reasonably based on a thorough investigation. It said in paragraph 22:
‘We consider that the investigation was thorough and fell within the range of reasonable responses. The investigators discovered the primary evidence and showed it to the decision makers. The primary evidence showed that Ms Howe not only held dual employment but that there were occasions when she had worked for Brent during the day and had been off sick for [Hammersmith]. Although we fully accept that there may be occasions when an illness can come on during the day so that one is well enough to work during the day but ill at night or vise [sic] versa, we do not see how this could possibly happen for two consecutive days. Therefore, we considered that the belief held by [Hammersmith] was reasonably based upon the investigation.’
9.	I shall also quote paragraph 26:
‘Lastly we have to consider whether the dismissal is a fair sanction. We remind ourselves that it is never our job to substitute our view for that of the employer and that what we would have done ourselves is irrelevant. We consider that a reasonable employer on these facts could have dismissed, that is [Hammersmith] was entitled (in the sense that it was within the reasonable range of responses) to find that there had been a clear instruction given and that it had been disobeyed. It was entitled to find that she was disobeying the instruction. In those circumstances a reasonable employer is entitled to consider that giving a warning is unlikely to have any effect because the claimant has made it plain by her conduct that she is unlikely to obey any further instructions from the employer. We consider that in these circumstances on these facts an employer is unlikely to be able to trust the employee in the future. For those reasons dismissal is a fair sanction.’
10.	Ms Howe’s grounds of appeal to the appeal tribunal covered more than seven double-spaced pages. It is in my experience often the case that the more extensive the grounds of appeal, the less substance there is in any of them, and His Honour Judge Peter Clark, on the paper sift, formed the view that they Ms Howe’s grounds raised no ground of arguable substance. He ruled that the appeal should not be further progressed. Ms Howe exercised her right under Rule 3(10) to persuade Judge McMullen at an oral hearing that, contrary to that view, she did have properly arguable grounds of appeal, but she had no more success before him, for the reasons explained in his judgment of 26 November 2010. She also had no success in persuading Mummery LJ that it was properly arguable that the two tribunals below had got it wrong. She now she seeks to persuade me that she has a real prospect of showing on an appeal that they did.
11.	The grounds of appeal against Judge McMullen’s order are twofold. The essence of the case made in the written arguments is that it is said he erred in law in failing to conclude that the two grounds raised points meriting a full hearing before the appeal tribunal on notice to Hammersmith. I will come later to the particular points that Ms Althea Brown, who appeared for Ms Howe on the application, advanced to me, but deal first with the points raised in the written arguments, of which she was not the authoress. The first ground is that it is said that the ET substituted its own view of the facts on two material issues and relied on those substituted findings to dismiss Ms Howe’s claim. I preface my consideration of that suggestion by pointing out that, bearing in mind the ET’s express self-direction that it must not substitute its own views (see paragraph 26, quoted above), it is improbable that it had nevertheless done so; and, absent cogent indications that it had, this court should not be ready to assume that, as an expert tribunal, the ET had committed the error attributed to it.
12.	The first issue in respect of which the ET is said to have substituted its own views is in relation to whether Ms Howe had in fact disobeyed an instruction given 13 years earlier not to work for both Hammersmith and Brent, following which she had ceased working for Brent. The point is made that in paragraph 24 of its reasons the ET said that she should have been given a letter containing the instruction but had, it is said, also held that ‘that did not matter.’ That submission does not, I consider, fairly represent what the ET said in paragraph 24, which was this:
‘Although it would have been preferable had a letter existed showing the instruction we consider that [Hammersmith] had sufficient evidence to show that the instruction had clearly been given.’
13.	The ET was not there substituting its own assessment as to whether the instruction had been given. It was finding that Hammersmith had sufficient evidence to be satisfied, as it was, that the instruction had been given. The ET had made a similar point about the lack of a written instruction in paragraph 5. But in paragraph 6 it explained that Hammersmith had been entitled to accept that the instruction was given ‘not least because Ms Howe admitted it: most notably at the appeal hearing (page 322 of the bundle).’ 
14.	A further point is made that, in paragraph, 8 the ET found that at the disciplinary hearing held on 17 March 2009 ‘Ms Howe tacitly acknowledged the decision that she should give up one of her jobs; she said that the school she was working for had tried to overturn the decision.’ The point made on Ms Howe’s behalf about that is that ‘there was no documentary evidence of any acknowledgement.’ That is an odd submission. The tribunal was there making a finding as to the position at the disciplinary hearing, and it is a statement of the obvious that there are unlikely to be documents directly supporting the making of a ‘tacit’ acknowledgement. That, however, does not mean that the ET was not justified in making the finding that it did. Moreover, given that at the appeal hearing Ms Howe made an express admission of the same point, the argument addressed to the finding about the ‘tacit’ admission at the earlier hearing appears to me to be close to absurd. 
15.	It is then said that the ET omitted to consider the evidence that, 13 years after the instruction, Ms Howe had applied to work as a supply teacher for Brent and that Brent had repeatedly offered her work as such, despite the prior instruction. But the ET did not omit to consider this evidence. It was the very fact of Ms Howe’s breach of the instruction that was the conduct of which Hammersmith complained; and the ET’s findings were apparently to the effect that Ms Howe deliberately concealed from Brent that she was also working for Hammersmith. There is, in my judgment, nothing in this first line of argument. 
16.	The second issue in relation to which it is asserted that the ET substituted its own judgment concerns whether Ms Howe had falsely claimed sick leave from Hammersmith whilst working at her day job at Brent. Reference is made to paragraph 22 of the ET’s reasons, which I have quoted. It is obvious from that paragraph that the ET was not substituting its own view but was there assessing that Hammersmith had formed a reasonable belief that Ms Howe had acted fraudulently, one formed after a reasonable investigation. In making the point it did about Ms Howe having apparently been too ill on two successive nights to work for Hammersmith yet sufficiently fit during the days to work for Brent, the ET was simply making an obvious point by way of its assessment of the reasonableness of Hammersmith’s belief as to Ms Howe’s dishonest conduct.
17.	It is, however, sought to be argued that the ET nevertheless failed to find that Hammersmith had determined whether or not Ms Howe was in fact ill; or whether it had relied on any medical evidence in that connection; or whether there was any evidence on which a hypothetical reasonable employer could have claimed that Ms Howe had falsely claimed sick leave. The points are advanced against a schedule of sick leave showing that over four years Ms Howe had only six nights of sick leave from her work with Hammersmith on days when she was fit enough to work for Brent, albeit including the two lots of two successive days of sick leave, to which the ET made reference in paragraph 22 (the schedule shows her as having been absent from her Hammersmith job on sick leave on 1 December 2004, 10 and 11 November 2005, 18 January 2007, and 13 and 14 September 2007). 
18.	The point made comes down to the assertion that the ET could not, contrary to its finding, be satisfied that Hammersmith had conducted a reasonable investigation into whether Ms Howe had in fact acted in the dishonest way that it alleged and found. I am not prepared to accept that there is any arguable point here either. The ET’s findings in paragraph 7 of its reasons are that, if only on six occasions, Ms Howe reported sick with Hammersmith on nights when, during the days, she was working for Brent. Paragraph 7 records that Hammersmith drew up a rota showing the relevant days. Its investigation into those occurrences led to its letter of 25 February 2009 to Ms Howe asking her to answer at a disciplinary hearing a charge of fraud. Paragraph 9 explains that, at the hearing on 17 March 2009, Mr Houghton showed Ms Howe the relevant dates and does not suggest that she advanced any solid answer to Hammersmith’s point. She was given the opportunity to submit exculpatory documents and apparently did submit some documents, which Hammersmith said it would take into account. The ET then found, in paragraph 12, that at the final disciplinary hearing on 6 April 2009 (which Ms Howe chose not to attend) Mr Trot found that she had reported sick to Hammersmith whilst able to work for Brent, which was part of her misconduct found by Hammersmith to be gross misconduct meriting dismissal. At the subsequent appeal hearing, the only point apparently made by Ms Howe in respect of the rotas (in fact by her sister) was that there could be mistakes in the Hammersmith rota because both sisters worked at Dalling Road and both had the same initials. In paragraph 16, however, the ET explained why there was obviously nothing in that point. 
19.	Judge McMullen, in his judgment, recorded that there was no indication that Ms Howe told the ET that on the six relevant occasions she was sick during part of the day but well during another part of it. If Ms Howe was not guilty of dishonest behaviour on the two occasions in 2005 and 2007 when she was absent from her Hammersmith job on consecutive days, it appears to me that she needed to provide a convincing explanation as to why. I can find nothing in the papers before me to suggest that she ever provided any such explanation either to Hammersmith or to the ET.  The only complaint she now makes is that Hammersmith did not investigate the matter sufficiently and therefore was not entitled to conclude, as it did, that she had acted fraudulently.
20.	In my judgment there is no substance in the argument that Hammersmith did not carry out a sufficient investigation. The ET found that Hammersmith was entitled to be satisfied by its investigation that Ms Howe had acted dishonestly. In circumstances in which it appears to have had information raising a presumption of fraud, being a presumption that Ms Howe appears to have made no attempt to answer or rebut by a cogent responsive explanation of her own, I do not consider that it can fairly be open to her to say that Hammersmith did not conduct a sufficient investigation into matters which were essentially within her own knowledge. There is no real prospect of this court holding on an appeal that this part of the ET’s conclusion in this respect was vitiated by any error of law. 
21.	The second ground of appeal appears simply to repeat and expand the complaint about the investigation into the sick leave point. The complaint includes the surprising assertion that ‘The ET did not seek or obtain medical or other evidence to support its conclusion that the Appellant falsely claimed sick leave and therefore committed gross misconduct.’ It is not the ET’s function to obtain evidence. The question was whether it was entitled to be satisfied that Hammersmith had carried out a reasonable investigation into the fraud allegations and I am not persuaded that there is any arguable substance in the submission that it was not. The reasonableness of an investigation is conditioned by what has to be investigated. As I have said, there is no suggestion in the ET’s findings that it was any part of Ms Howe’s case before it that she ever sought to answer on the facts Hammersmith’s inference from its investigation that she had acted dishonestly. Absent the advancing of any such defence, I do not see why the ET was not entitled to find, as it did, that Hammersmith was reasonably entitled to be satisfied that the dishonesty charge was made out.
22.	At the oral hearing for permission, Ms Althea Brown, who has had no previous connection with the case, appeared for Ms Howe. She sought first to raise two new points. The first was that, in relation to the dual employment charge, the ET was under an obligation, which it did not discharge, to consider and decide whether the express instruction that Hammersmith had admittedly imposed on Ms Howe in about 1996 was one that it was reasonably entitled to impose. The second was whether a breach of that instruction amounted to gross misconduct. 
23.	The first point is, for practical purposes, brand new, as Ms Brown accepted. Judge McMullen noted, in paragraph 16 of his judgment, that it was ‘not put that the instruction was unreasonable or a breach of contract, and Mr Sykes [Ms Howe’s then representative] makes no application before me for this new point to be adduced as a ground of appeal.’ It appears therefore that the point was alluded to at the appeal tribunal hearing but not pursued on Ms Howe’s behalf. It was also not taken before the ET. In those circumstances, there can be no justification for seeking to take it now. 
24.	First, an appeal to this court can only be based on an alleged error of law on the part of Judge McMullen and there can have been no such error on his part in declining to rule in Ms Howe’s favour on a point that she might have pursued before him but chose not to. Second, the point is not a pure point of law. If it were to be taken at all, it would require an investigation into the factual circumstances in which the instruction came to be imposed, so that its reasonableness or otherwise could be assessed. That would necessitate a remission of the case for a re-hearing by the ET. There can be no justification for that. Ms Howe has had her opportunity to make her case to the ET and that was her opportunity to advance her whole case. The subsequent occurrence to her of a new point that she might have taken before them but did not is not a basis for a re-hearing. If it were, the process of litigation before courts and tribunals would be never-ending. There is nothing in Ms Brown’s first point. 
25.	The second point is whether Ms Howe’s breach of the instruction was gross misconduct. Again, it does not appear that that argument was advanced either to the ET or to Judge McMullen, so it appears to be another new point. I can again see no reason why Ms Howe should be entitled to take it for the first time in the Court of Appeal. The point anyway appears to me to have no arguable merit. If it is not open to Ms Howe to challenge the reasonableness of the express instruction, I am not satisfied that she would have a real prospect of showing on an appeal that her deliberate breach of it was not gross misconduct. 
26.	The only other point advanced by Ms Brown covered the same territory already covered, namely that there was no sufficient investigation by Hammersmith into the dishonesty charge levelled against Ms Howe. I have set out my views on the merits of that argument and Ms Brown’s submissions did not bring in any consideration casting a new light on the dishonesty allegations. The most striking feature of her submission on this was that she was unable, even after taking instructions, to tell me what Ms Howe’s case about these allegations had been either at the disciplinary and appeal hearings or at the ET. I might add that the concentration by the applicant of her focus on the sick leave issue is probably anyway ultimately immaterial. Mr Pallace, who conducted the September 2009 appeal, would have upheld the dismissal decision on the dual employment ground alone; and in paragraph 26 the ET held that dismissal on such single ground was, or would have been, a fair sanction falling within the reasonable range of responses.
27.	I regard this renewed application as lacking merit. I agree with Mummery LJ that an appeal before the full court would have no real prospect of success. I refuse permission to appeal.