United Kingdom Employment Appeal Tribunal

BAILII case number: [1994] UKEAT 121_93_1703

Appeal No. EAT/121/93

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 17 March 1994

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MR J H GALBRAITH CB

MS D WARWICK

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MR A W BRIGHT          APPELLANT

LONDON BOROUGH OF ISLINGTON          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant NO APPEARANCE BY OR REPRESENTATION ON

BEHALF OF THE

APPELLANT


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at London North on three days in September 1992. For reasons notified to the parties on the 7 October 1992 the Tribunal unanimously decided that Mr Bright, the Applicant, was not dismissed by his employers, the London Borough of Islington, for Trade Union activities, nor was he unfairly dismissed.

Mr Bright was dissatisfied with that decision. He therefore appealed on the 16 November 1992. He has informed the Tribunal that he does not intend to be present at this preliminary hearing. The purpose of the preliminary hearing is to decide whether or not his appeal raises an arguable point of law. If it does, the matter proceeds to a full hearing. If it does not, then the appeal will be dismissed.

We deal with the case on the basis of the points which he makes in his notice of appearance. The background to the dispute appears from the notice of application and notice of appearance. In his originating application, presented to the Tribunal as long ago as the 17 October 1989, Mr Bright stated that he was employed as a Resident Caretaker by the Islington Council from the 21 January 1985 until the 12 October 1989. He stated that he was a GMB Caretaking Service Shop Steward, Safety Representative and Safety Adviser for Islington Number one Branch GMB. He was a very active union representative who had carried out many legitimate activities to the annoyance of his employer, including making complaints to Industrial Tribunals for legal redress.

On the 12 October 1989 he attended a disciplinary hearing to answer a number of charges, which he says specifically related to the carrying out of his trade union activities. His complaint was that for two years prior to that the Council had persistently harassed and victimised him for carrying out trade union activities. He referred to previous Tribunal proceedings. He said that the actions against him by the Council were preplanned. He complained that the Director of Housing deliberately sent in an incorrect and unsatisfactory reference to another local authority who had offered him a job with the result that the offer was withdrawn. He says that the reason which motivated the Council's conduct in relation to the disciplinary activities and his dismissal was his trade union activities. This was disputed by the Council in the notice of appearance. They accepted that he was employed by the Council as a Resident Caretaker until the 12 October 1989. But on the 12 October 1989 a Personnel Staffing Sub-Committee found a number of complaints proven against Mr Bright.

One was that he had failed to return to his place of work in January 1989 following a meeting with management. He failed to notify a Superintendent Caretaker that he would be absent from work under the facilities agreement. Having failed to give reasonable notice of a request to a health and safety investigation, in accordance with that agreement over the period 24 January to 27 January 1989, Mr Bright was absent from a place of work on those days without prior permission and contrary to a written instruction that he should work normally. He failed to give a satisfactory explanation as to his whereabouts. Other complaints proven against him were a refusal to accept written instructions to sweep stairs and bin rooms in Haslam Close where he was the resident caretaker; failure to give reasonable notice of a request to do health and safety investigations in January 1989, contrary to written instructions; being absent from work on the 31 January 1989 without authority; Carrying out inspections which were outside his jurisdiction, and contrary to the terms of a letter from the Director of Personnel; having failed to give reasonable notice of a request to do an inspection in accordance with the Council agreement, he was absent from work.

There are a number of other offences, found proven by the Sub-Committee, of a similar nature. The Council's case was that, in view of the seriousness of the complaints which had been proved against him, the Sub-Committee were entitled to dismiss him immediately for gross misconduct. Regard was had also to his previous disciplinary record. The Council's case was that in all those circumstances, having regard to the equity and substantial merits of the case, they had acted reasonably in dismissing him on account of misconduct. He lodged an appeal against the decision. An appeal hearing took place in November 1989. It was admitted that Mr Bright was a shop steward as alleged, but it was denied that his legitimate union activities had caused annoyance to the Council. The allegations of harassment and victimisation for trade union activities were also denied.

The Council said that the disciplinary proceedings had been in accordance with the procedures that were laid down and there had been no unfair dismissal, or dismissal for trade union activities.

When those matters were investigated at the Tribunal hearing on the 11, 14 and 15 September 1992, the Tribunal heard evidence from witnesses, including trade union officials. The Tribunal had set out in detail in paragraph 3 of its decision the findings of fact. The Tribunal dealt with the complaints mentioned. The conclusions of the Tribunal were set out in paragraph 5. Without setting out in detail the charges and findings of the Disciplinary Committee the Tribunal stated that it had formed the view that the Council had shown that the reason for dismissal as required under section 57 of the 1978 Act. They considered the criteria under Section 57 (3). They found that the procedure adopted by the Council was impeccable and not unreasonable. A reasonable investigation had been carried out in which Mr Bright had had the benefit of trade union representation, which had not extended to the hearing before the Industrial Tribunal. The Tribunal took into account the documentation introduced into the case. They considered Mr Bright's claim that the true reason for his dismissal was his trade union or health and safety activities. They concluded that those failed. He had not satisfied the Tribunal that the activities in question were carried out at an appropriate time within the meaning of Section 58 of the 1978 Act. He had failed to satisfy either the Council or the Tribunal that his absences were in fact on trade union and health and safety activities. He did not give the Council reasonable notice. He failed to account for his movements when requested to do so. On another occasion, he did not give notice after a meeting of what he intending to do and took the rest of the day off allegedly to study certain aspects of employment law.

The Tribunal concluded that, on those charges alone, there was sufficient evidence for the Council to reach the conclusion that it did, and to impose the penalty of dismissal which was well within the range of reasonable responses, whether or not one took account the earlier final written warnings.

The points taken by Mr Bright in his detailed notice of appeal do not, in our view, raise any error of law on the part of the Tribunal. In fifteen separate paragraphs of the notice of appeal what Mr Bright seeks to do is to re-open the evidence that was given before the Tribunal with a view to reaching a different conclusion on the facts of the case. His repeated complaint is that the Tribunal disregarded evidence, that he had new evidence which would help his case, but he gives no explanation as to why this new evidence was not produced at the hearing before the Tribunal. He refers specifically to cross examination of particular witnesses and other matters of alleged ignoring of the documentary evidence by the Tribunal.

It is impossible to gather from the sixteen paragraphs, taken individually or together, any point of law. The Tribunal can only deal with questions of law. If none is raised in the notice of appeal there is no point in this matter proceeding further. We shall, for those reasons, decide that this matter should not go to a full hearing.

I should mention, finally, that in a further document submitted to the Tribunal on the 21 January last year, Mr Bright added some further grounds to his appeal. He raises in those further grounds allegations of excess of jurisdiction, denial of natural justice, and perversity. He complains of a failure to allow him an adjournment, and submits that those further points also constitute grounds of appeal in law. We have reached the conclusion that none of these additional points identifies an error of law which is arguable. For those reasons, as well as on the original grounds of appeal, this appeal will be dismissed at the preliminary stage.