England and Wales Court of Appeal (Civil Division) Decisions

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

		Royal Courts of Justice Strand London, WC2A 2LL
		24 June 2015

1. LORD JUSTICE BEAN: This is a renewed application for permission to appeal against a decision of the Employment Appeal Tribunal itself dismissing Dr Devai's appeal from a decision of an Employment Tribunal, Employment Judge Baron sitting alone, rejecting Dr Devai's claim for unfair dismissal.
2. He was employed at London South Bank University as a Senior Lecturer in Informatics for a little under 15 years from 1 September 1997 until his dismissal on 16 February 2012, confirmed on appeal on 3 April 2012. (It may be that the effective date of termination was the latter. Nothing turns on that.)
3. He made a claim to the Employment Tribunal. As well as the claim of unfair dismissal, there was a separate claim in respect of detriments short of dismissal said to have been made following a protected disclosure or series of protected disclosures, the claim being made under section 47B of the 1996 Act.
4. Those claims were withdrawn by the Applicant's representative at the outset of the hearing, acknowledging that they were made out of time. However, I am satisfied that the advocate acting for the Claimant before the Employment Tribunal did not withdraw the case that the dismissal itself was not in truth on the grounds of misconduct as the employers claimed, but was on the grounds of the protected disclosures or, more accurately, that the protected disclosures were the reason or the principal reason for the dismissal. If that had been established, the dismissal would have been automatically unfair.
5. The series of events which led to the Claimant's dismissal principally concerned the Claimant's activities as a supervisor for a PhD student, Mr Rahman. Mr Rahman was writing a thesis. He complained in July 2010 to the head of the Appellant's department, Professor Culwin, about what he, the student, alleged was a lack of assistance from the Claimant. A meeting took place between the Claimant, Professor Culwin and another senior colleague. Professor Culwin sent an e-mail saying how essential it was that assistance should be given to Mr Rahman in the re-working of the thesis.
6. An exchange of e-mails then took place between the Dean of the Business Faculty, Jane Houzer, and the Claimant. There was, as the Employment Judge observed, a frosty reply from the Claimant to the Dean. The Claimant criticised Mr Rahman in various respects. There were then exchanges between Mr Rahman and Professor Culwin and the Claimant.
7. There was a meeting between the Claimant, Professor Culwin and this time a Professor Dilip Patel on 1 September discussing the alleged lack of support to Mr Rahman and the Claimant was asked to meet Mr Rahman at least twice a week. He was also asked to refrain from making disparaging, disrespectful and insulting remarks about his colleagues.
8. Mr Rahman and the Claimant had agreed to meet again on 3 September. On 2 September Mr Rahman sent an e-mail asking for the time to be changed. There was more to-ing and fro-ing by e-mail. Professor Culwin was involved. He sent an e-mail to the Claimant at 8.43 pm on the evening of 2 September asking for an explanation as to why he, the Claimant, could not meet Mr Rahman. The Claimant responded at 9.38 pm saying he had no time to explain. It was late in the evening and the e-mail was harassment about which he wished to complain.
9. In the meantime, on the Respondent's case the Claimant had sent an e-mail at 9.04 pm that day to Mr Rahman. It reads as follows:

"It wouldn't be a good idea to have a meeting before your interview tomorrow. I can give you an appointment on Monday at 2 P.M., but it would be better to leave the management out. As you can see from Fintan Culwin's memo, he doesn't really want to help you. His purpose is to waste my time, harass and discredit me. If you don't leave them out, I cannot possibly help you. Please let me know what you want to do and don't copy them in your message. Good luck again with your interview."

10. There was a further e-mail from the Claimant to Mr Rahman at 7.30 am the next morning. I do not think there was any dispute that this was from the Claimant. I will return to the issue of whether the 9.04 pm e-mail had in fact been sent by the Claimant later.
11. There was continuing dissatisfaction expressed by Mr Rahman about the Claimant to Professor Culwin. There were a good many further meetings.
12. Professor Elliott was asked to report on the matter and did so in November. He included in the report a view that there was a long history of a poor relationship between the Claimant and Mr Rahman. But he concluded that Dr Devai intentionally and deliberately failed to follow reasonable management instructions, requests and directives by the Head of Department and Dean of Faculty; engaged in an inappropriate and obstructive correspondence which undermined the professional relationship between the supervisor, his Head of Department and the student; attacked and discredited his Head of Department in the public and private correspondence, placing the PhD student in a invidious position; deliberately or otherwise distributed negative and critical correspondence with regard to his Head of Department; and undermined his Head of Department in his attempts to manage and resolve the student's concerns. It may be that, insofar as these relate to the alleged e-mail of 2 September, they are five different ways of saying the same thing.
13. An approach was to made to management by the Claimant's union representative, who tried to effect a solution avoiding the necessity for disciplinary proceedings. There was a proposal that until his retirement the Claimant could be transferred to a research role without teaching.
14. There were without prejudice exchanges. They are referred to in paragraph 36 of the Employment Judge's judgment and so unsurprisingly Ms Nabila Mallick, who has represented Dr Devai before me today, has referred to them as well. I rather doubt whether they should have been adduced in evidence before the Tribunal, but in any event they do not seem to me to affect the question which the judge had to decide.
15. There was a substantial subsequent history. The Claimant raised a grievance alleging that disciplinary action had been launched against him in retaliation for raising concerns about academic standards. Professor Ellis was appointed to consider the grievance. She concluded that the grievances should not be upheld. She also concluded that the disciplinary process had been started for legitimate reasons. There was an appeal by the Claimant against that decision to the Vice-Chancellor no less, Professor Martin Earwicker, which he dismissed in a lengthy letter of 15 November 2011.
16. The disciplinary procedure was then restarted in a letter of the following day from the Pro-Vice-Chancellor, Mrs Jullien, which effectively repeated as allegations of misconduct the five conclusions contained in Professor Elliott's report of a year earlier.
17. The disciplinary hearing took place on 7 December 2011. Mrs Jullien heard the case together with Professor Bhamidimarri, Executive Dean of the Faculty of Engineering, Science and the Built Environment. The Claimant had a representative from the UCU. The hearing lasted some five hours. The decision was given in a letter of 16 February 2012. I will not set it out in full. It runs to several pages.
18. Essentially, Mrs Jullien found the five allegations proved. She set out the e-mail of 2 September at 9.04 pm and recorded that at the disciplinary hearing Dr Devai had alleged that the e-mail had been fabricated in some way to be used as evidence against him.
19. She recorded that when that allegation had been raised, Mr Barry Radoo, the Senior ICT Engineer in the ICT Department, had been asked to investigate the matter, Dr Devai's own e-mail account had been accessed and the e-mail had not been located. Nevertheless, Mr Radoo had, with others present, accessed Mr Rahman's own electronic copy of the e-mail, including the headers, and had prepared a report stating that in his expert opinion, he could verify that an e-mail had indeed been received by Mr Rahman from Frank Devai on 2 September 2010 at 2104 hours.
20. Dr Devai had argued at the disciplinary hearing that the phraseology was not wording he would have used. For example, there is a different style of layout and there is a question of whether he would have written the phrase 2.00 pm as "2 P.M." or simply as "2 PM" without the full stops.
21. At all events, the panel took the view that on the balance of probability Dr Devai had sent the e-mail and that it was highly improbable that another individual could have fabricated it. They referred to another e-mail of 30 August 2010 that the Claimant had admittedly sent to Mr Rahman and they considered that that was further evidence of a deliberate breach of the Dean's instructions.
22. The second allegation was one of inappropriate and obstructive correspondence. They found that the statement in the e-mail of 2 September 2010 that Professor Culwin "doesn't really want to help you [Mr Rahman], his purpose is to waste my time, harass and discredit me" was unprofessional and derogatory and undermining to the Head of Department's position.
23. They found that allegation substantiated. Similarly and for similar reasons, they found the third, fourth and fifth allegations substantiated. They recorded that the position of trust between Dr Devai and Mr Rahman had, in their view, been increasingly eroded.
24. They referred under the heading "Other Matters", in particular in section 6.2 of their report, to Dr Devai's grievance in which he had made allegations of academic misconduct in respect of three MSc dissertations. This, I should say, did not involve Mr Rahman.
25. Dr Devai had stated that the research within the dissertations had been fabricated by the students concerned and that therefore those responsible for awarding the degrees had knowingly colluded in some way with this misconduct and therefore had not complied with university academic standards.
26. The Claimant and his representative said that this was relevant to his disciplinary hearing as he believed his disagreement over the award of these degrees had led others to bring forward maliciously the disciplinary allegations against him.
27. The panel in the decision letter note that this had been considered at two stages of the grievance procedure and not upheld. They had reviewed the question of the dissertations themselves. They were satisfied that due process was followed and the degrees properly awarded. They rejected an allegation that the Claimant had been harassed and undermined by Professor Culwin through the exchanges on the subject of Mr Rahman.
28. The letter concluded as follows:

"Having carefully considered all of the allegations made against you, it is our view that they are substantiated. In our view, there has clearly been an irrevocable breakdown in trust and confidence between you and your managers as a result of your actions. This, together with your repeated failure to follow reasonable management instructions as outlined in this letter, amount to serious breaches by you in respect of your employment contract with the University. In accordance with the staff disciplinary procedure, this constitutes gross misconduct on your part and as a result, it is our unanimous decision that you be dismissed from your employment, your dismissal being effective from the date of this letter."

29. They then referred to its right of appeal. He exercised the right of appeal. The appeal was chaired by the Vice-Chancellor together with two independent members of the board of governors. The appeal was dismissed. It is unnecessary to go through the contents of the letter. It appears that it is in this letter that a decision was made that the Claimant's dismissal would be effective from 31 March 2012, so the Employment Tribunal claim was in time.
30. The Employment Judge heard evidence and arguments in the course of a three day hearing, 24 to 26 June 2013. The reserved judgment of the Tribunal is dated 27 September 2013. As I have said, the judge found that the dismissal was fair. He found that the reason for the dismissal was not the making of protected disclosures, but was conduct.
31. He found that there was sufficient evidence before Mrs Jullien from which she could reasonably come to the conclusion that the Claimant was the author of the e-mail of 2 September 2010 at 9.04 pm. Indeed, the judge went further and concluded himself that the Claimant was indeed the author of the e-mail.
32. The judge was satisfied that there had been a reasonable investigation in the circumstances and that the Claimant was made aware of the allegations he was facing. He concluded that in those circumstances, dismissal was within the range of reasonable responses of the Respondent.
33. The Claimant appealed to the EAT. The case was first considered on the rule 3(7) sift by His Honour Judge Clark, who decided that no further action should be taken. He wrote:

"The Claimant/Appellant's case was clearly put by his experienced representative below. It was roundly rejected by the Employment Judge, who concluded that the reason for dismissal related to the Appellant's conduct, not his disclosures, and significantly that he did send the e-mail at 2104 on 2nd September 2010 to Mr Rahman. It was not a forgery, as the Appellant contended. In these circumstances, the finding of fair dismissal must stand. The Appellant's grounds of appeal seek to raise factual issues. No arguable point of law is there advanced."

34. Dr Devai exercised his right to an oral hearing under rule 3(10). That took place before Singh J on 4 June 2014. Dr Devai was again represented, this time by Miss Russell appearing under the Employment Law Appeal Advice Scheme. Singh J essentially reached the same decision as Judge Clark, though at somewhat greater length, as one would expect in a rule 3(10) hearing. I note that a number of cases were cited to him and he refers to them in paragraph 8.
35. I will not go into his reasoning because it is well-established that in a case of this kind the question for the Court of Appeal is not whether the Employment Appeal Tribunal was right, but whether the Employment Tribunal was right. Therefore, Ms Mallick in this court has understandably and correctly focussed on the reasoning of the Employment Judge.
36. Dr Devai, being dissatisfied with the outcome of the hearing before Singh J, applied for permission to appeal to this court. It was considered on the papers by Lewison LJ, who refused permission again essentially for the same reasons that the decision of the Employment Tribunal raised no issues of law and that all the findings of which Dr Devai complains were questions of fact.
37. The matter now comes before me on the renewed application for permission to appeal. I simply observe that I am the fifth judge to consider the case. More accurately, I am the fourth judge to consider whether there is any defect in the reasoning of Employment Judge Baron who saw and heard the witnesses.
38. I have before me a skeleton argument submitted by Dr Devai in person in June last year, together with supplementary grounds of appeal and a skeleton argument in amendment. Then there is a document with submissions on the Employment Tribunal's judgment sent in last week. I have had the advantage of focussed submissions from Ms Mallick, who has considerable experience in this court and the courts below.
39. I will deal with the points which she raised before me. Before doing so, I will simply say for the record, although Ms Mallick knows this very well and it is a point which has been made by Judge Clark, Singh J and Lewison LJ already: there is no appeal from findings of an Employment Tribunal except on a point of law. It can be argued, and sometimes successfully argued, that there was before the Tribunal no evidence (I emphasise no evidence) to support a conclusion, but it is quite hopeless to seek to argue, where an Employment Judge has made a finding as to who was telling the truth about a particular aspect having heard oral evidence, that the Employment Judge should have reached the opposite conclusion.
40. I put into that category any attempt to say that the Employment Judge should have found that the e-mail of 2 September 2010 at 2104 hours was fabricated or that the disciplinary panel chaired by Mrs Jullien acted unreasonably in coming to the conclusion that Dr Devai had indeed sent it.
41. Ms Mallick's first complaint was that the Employment Judge does not set out the test so well-known to employment lawyers, laid down in British Home Stores v Burchell more than 30 years ago, that the question in an unfair dismissal claim where the reason for the dismissal was conduct is whether the employer had a reasonable belief in the facts alleged against the employee, had carried out a reasonable investigation and came to a conclusion based on reasonable grounds.
42. It is right that the Employment Judge does not refer to British Home Stores v Burchell, still less set out the familiar test, but in paragraph 85 of the decision, which I have already cited, he does indeed make findings in the Respondent's favour on each of the three elements of the Burchell test. So in my view, there is nothing in the failure to set out the test.
43. The question is really, as I see it, whether it is arguable that the conclusion that dismissal was in the range of reasonable responses of the Respondent is sufficiently argued. Ms Mallick also says that there is no express finding that the reason for the dismissal was conduct. That, if I may say so, is a bad point. Paragraph 76 of the decision says in the first sentence:

"I find that the reasons for the dismissal of the Claimant were as set out in the letters of 16th November 2011 notifying the Claimant of the disciplinary hearing and the letter dated 16th February 2012 containing the outcome of the hearing."

That is a finding that the reason was conduct as particularised in those two letters.

44. Ms Mallick also complains that the public interest disclosure allegation is simply ignored. Again, I cannot accept that either.
45. It is clear from paragraph paragraphs 74 to 77 of the decision that the Claimant's advocate at the Employment Tribunal, Mr Dutton, did indeed argue the case that the protected disclosures were, in truth, the reason or principal reason for the dismissal. He referred the judge to the chronology. He submitted that neither Professor Ellis nor the Vice-Chancellor in the grievance procedures had made findings about the allegation that the disciplinary proceedings were commenced in retaliation for protected disclosures. The judge said that he did not accept the submission on the facts and went on to set out why.
46. I do not accept that this is anything other than a finding of fact properly open to the Employment Judge on the evidence. He correctly treated the alleged protected disclosures in the context of an unfair dismissal claim. Dr Devai could not rely on them as separate causes of action involving detriment short of dismissal, but he could and did allege that they were the true reason for the dismissal. Since the judge found that they were not, they cease, as I see it, to have further relevance.
47. Turning to the reasonable investigation limb of the Burchell test, Ms Mallick submits that the Employment Judge failed to take into account that the employers had not investigated the Claimant's own computer, only Mr Rahman's, so the judge was not entitled to find that there had been reasonable investigation since any reasonable investigation would surely involve investigating the Claimant's computer.
48. I think, with respect, that is not quite factually accurate. The judge found that the Claimant's computer was indeed examined and that it did not have any record in sent items of the e-mail being sent, but nevertheless the decision maker, Mrs Jullien, had available to her the report of Mr Radoo expressing the expert opinion that the e-mail sent to Mr Rahman at 2104 on 2 September 2010 had indeed come from the Claimant's computer.
49. On that basis, as it seems to me the decision makers were plainly entitled to come to that conclusion and the Employment Judge was entitled to find that that was a reasonable conclusion of Mrs Jullien (which is all that is necessary to reject this aspect of the unfair dismissal claim), but also to go further and say, having considered the evidence available to him, including the Claimant's oral evidence, that he personally was satisfied that the e-mail had indeed been sent.
50. Before coming to question of mitigation, Ms Mallick submitted that the Employment Tribunal did not ask itself whether the conduct involved in the case amounted to gross misconduct. There is no finding that this misconduct was gross.
51. Ms Mallick referred me to the decision of the Employment Appeal Tribunal, Langstaff J, President, in the chair, in Brito-Babapulle v Ealing NHS Trust UKEAT 0358/12/1406 in which she appeared (and in which indeed there was an appeal on a different point to a Court of Appeal, including myself). For present purposes, it is the President's judgment, not mine, which is relevant.
52. In the Brito-Babapulle case, the Employment Tribunal had held that the employer was entitled to find that the Claimant's actions mounted to gross misconduct. They went on to say:

"Once gross misconduct is found, dismissal must always fall within the range of reasonable responses and it is not for this Tribunal to substitute any sanctions we might have imposed or whether we would have dismissed the Claimant in these circumstances. We cannot say that the dismissal was outside the range of reasonable responses."

53. The Employment Appeal Tribunal considered that this finding involved a logical jump from the finding of gross misconduct to the proposition that dismissal must then inevitably fall within the range of reasonable responses. As the President said, the Employment Tribunal in that case had set out the proposition that once gross misconduct is found dismissal must always fall within the range of reasonable responses was a stark proposition of law omitting of no exceptions.
54. As the Employment Tribunal with Judge Eady QC presiding said in Burdett v Aviva Employment Services Ltd UKEAT/0439/13/JOJ, to which Ms Mallick has also referred, if a employer dismisses for a reason characterised as gross misconduct, the Employment Tribunal will need to determine whether there were reasonable grounds for belief that the employee was indeed guilty of the conduct in question and that such conduct was capable of amounting to gross misconduct implying an element of culpability on the part of the employee.
55. In the Burdett case, Judge Eady went on to say:

"Assuming reasonable grounds for the belief that the employee committed the act in issue, the Tribunal will thus still need to consider whether there were reasonable grounds for concluding that she had done so wilfully or in a grossly negligent way."

56. That was in the context of assaults committed from a Claimant suffering from paranoid schizophrenic illness. It is of no assistance in the present case. The factual inquiry in relation to the e-mail was whether the Claimant sent it. If he had sent it, it was clearly a deliberate act.
57. Returning to the present case, it seems to me that the logical jump for which the Employment Tribunal in the Brito-Babapulle case was criticised on appeal was exactly what Employment Judge Baron did not do. As Ms Mallick rightly says, the judge does not use the phrase "gross misconduct", but, or the contrary, adheres strictly to the statutory test of whether the employer acted reasonably in treating the conduct as grounds for dismissal as elucidated in British Home Stores v Burchell and Iceland Frozen Food v Jones.
58. I am bound to say that as the decision letter of 16 February 2012 sets out in great detail, I do not see how any Employment Judge could have come to any other conclusion. This is so even in respect of an employee of 15 years service as Dr Devai was.
59. The decision maker was plainly entitled, having made the critical finding of fact about the sending of the e-mail, to conclude that it undermined the professional relationship between the Claimant and his Head of Department and the student concerned; that he had attempted to discredit the Head of Department; that he had distributed negative and critical correspondence with regard to the Head of Department; and that the position of trust between him and the student had been so undermined that he had to be removed from further responsibility.
60. They concluded in section 7 of the decision letter that there had clearly been an irrevocable breakdown in trust and confidence between Dr Devai and his managers. The Employment Judge found that they were entitled so to conclude.
61. Like the three previous judges who have had to consider that finding, my view is that it raises no issue of law and no arguable ground of appeal. While I am grateful to Ms Mallick for her help as always, I must refuse the renewed application for permission to appeal.