United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 1024_94_2610

Appeal No. EAT/1024/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26th October 1995

HIS HONOUR JUDGE P CLARK

MRS E HAMMOND OBE

MRS R A VICKERS

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MRS E WOOD          APPELLANT

COVERAGE CARE LTD          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

Revised


 


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APPEARANCES

For the Appellant MR R DOWNEY

(of Counsel)

Rowberry Morris

Morroway House

Station Road

Gloucester

GL1 1DW

For the Respondents MR A DEACOCK

(of Counsel)

Messrs Bailey McIlquham

7 Royal Crescent

Cheltenham

Gloucestershire

Gl51 3DF


 


JUDGE CLARK: This is an appeal by Mrs Wood against a unanimous decision of the Bristol Industrial Tribunal that she was not unfairly dismissed by the respondent employer.

The principal ground of appeal before us concerns the true construction of the Re-habilitation of Offenders Act 1974 "the Act", and the Exception Order, Statutory Instrument 1976 No. 1023 made under that Act, "the Order".

The factual background is as follows.

In 1984 the appellant took employment as a part-time care worker with Gloucestershire County Council and by autumn 1993 she had attained the position of Deputy Head of Home at Bohanam House, a residential home which included amongst its residents persons over the age of 65 years.

In 1991, the respondent company took over most of that local authority's residential homes, including Bohamam House, in circumstances where the appellant's employment was transferred to the respondent.

The appellant is now 51 years old. However, more that 20 years ago, she found herself in trouble. In 1971 on a conviction of handling stolen goods she received a probation order. In the same year, for an offence of theft, she received a suspended sentence of imprisonment. And in the following year 1972, for an offence of defrauding what was then the Department of Health and Social Security she was sentenced to four months immediate imprisonment. It is common ground that those convictions are now all spent under the provisions of the Act.

I turn now to the relevant provisions of the Act. Section 4(1) of the Act provides:

"(1) Subject to section 7 and 8 below, a person who has become a rehabilitated person for the purposes of this Act in respect of a conviction shall be treated for all purposes in law as a person who had not committed or been charged with or prosecuted for or convicted of or sentenced for the offence or offences which were the subject of that conviction; ..."

By subsection (3) of Section (4) at (b):

"(3) Subject to the provisions of any order made under subsection (4) below,-

(b) a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment."

Subsection (4) of Section (4) provides:

"(4) The Secretary of State may by order-

(a) make such provision as seems to him appropriate for excluding or modifying the application of either or both of paragraphs (a) and (b) of subsection (2) above in relation to questions put in such circumstances as may be specified in the order;

(b) provide for such exceptions from the provisions of subsection (3) [the material one] above as seem to him appropriate, in such cases or classes of case, and in relation to convictions of such a description, as may be specified in the order."

I turn then to the Order which provides by Article (4)(b) that paragraph (b) of Section (4)(3) of the Act shall:

"not apply in relation to -

(b) any office, employment or occupation specified in Part II ... of Schedule 1; ..."

to the Order.

Part II of Schedule 1 to the Order is headed "Offices and employments", and paragraph 12 provides:

"12. Any employment by a local authority in connection with the provision of social services or by any other body in connection with the provision by it or similar services, [Pausing there, it is common ground that the respondent is such a body] being employment which is of such a kind as to enable the holder to have access to any of the following classes of person in the course of his normal duties, namely-

(a) persons [...] over the age of 65; ..."

I shall also read paragraph 14:

"14. Any office or employment concerned with the provision to persons aged under 18 of accommodation, care, leisure and recreational facilities, schooling, social services, supervision or training, being an office or employment of such a kind as to enable the holder to have access in the course of his normal duties to such persons, and any other office or employment the normal duties of which are carried out wholly or partly on the premises where such provision takes place."

This Industrial Tribunal found that in late 1993 the appellant's post as Deputy Head of Home was identified for redundancy. The question of alternative employment for her arose. She was interested in two other posts at the home, that of Bursar and Outreach Manager. However, the respondent taking the view that the exception to Section 4(3)(b) of the Act provided by paragraph 12 Part II of Schedule I to the Order applied, took into account her spent convictions in concluding that she would not be a suitable post holder. Accordingly she was eventually dismissed by reason of redundancy on 23rd January 1994.

The Industrial Tribunal accepted that the exception applied, found that the employer's decision was reasonable in all the circumstances and held that the dismissal was fair.

On Mrs Wood's behalf Mr Downey submits that the two alternative posts of Bursar and Outreach Manager did not fall within the paragraph 12 exception. He submits that paragraph 12 is directed only at Social Workers, not those carrying out administrative functions. He says that those post holders were not required to carry out social service functions. Consequently the respondent was not entitled to take into consideration the appellant's spent convictions, and the Industrial Tribunal decision cannot stand, based as it is on the false legal premise that the relevant post fell within the exception to the general rule set out in Section 4(3)(b) of the Act.

In support of that construction he prayed in aid first the wording of paragraph 14 of Schedule II which I have read, and secondly passages from the speech of Lord Harris of Greenwich reported in Hansard when he moved on behalf of the Government for House of Lords approval to the draft order which became the Order we are considering.

We should say immediately that we found the wording of paragraph 14 of no assistance in construing paragraph 12. Further having looked at the relevant extract from Hansard we do not consider that it is necessary to consider Hansard as an aid to construction in this particular case.

We think that the meaning of paragraph 12 is clear and unambiguous, and that it is the construction contended for by Mr Deacock on behalf of the respondent.

Focusing on paragraph 12, we regard the words "in connection with" as important. That connotes a range of employment wider than just Social Workers as contended for by Mr Downey. We are re-enforced in that view by the statutory meaning of "Social Services". That expression is to be found and is defined in the Local Authority Social Services Act 1970. Section 3(1) of that Act refers to a local authority's power to delegate to their social services committee any of their functions in relation to matters which can be described as "social services functions". By Section 2 those functions are as specified in Schedule I to the Act. Amongst the functions set out in Schedule I are these:

"Provision of residential accommodation for the aged, infirm, needy etc."

and

"Promotion of welfare of old people."

We are quite satisfied that the Bursar and Outreach Manager's posts, fell within the definition, and we reject the restrictive interpretation contended for by Mr Downey. Further we are satisfied, indeed it is not in dispute that such post holders had access in the normal course of their duties to persons over the age of 65.

Accordingly we are satisfied that, as the Industrial Tribunal found, both posts fell within paragraph 12, and the respondent was entitled to take into account the appellant's spent convictions when considering her for those posts.

As an alternative argument, Mr Downey contends, and it is helpfully summarised in paragraph 10 of his skeleton argument, in these terms. He said if the positions were not exempt from the general rule that spent convictions may not be relied upon, the respondent's concern was for absolute financial integrity, and he refers to paragraph 15 of the Tribunal's extended reasons. He submits that this concern was not one which Parliament intended to be exempt. Accordingly, the reliance upon convictions for dishonesty in the manner alleged by the respondent was unreasonable and no Tribunal properly directing itself in accordance with the 1974 Act and 1975 Order could have reached the conclusion it did.

That alternative basis for the appeal has only been faintly argued. We think that it is unsustainable. This respondent was required to carry out a balancing act between the appellant's otherwise suitable qualities for the jobs and the need to protect vunerable residents. It did so. The Industrial Tribunal found that it acted reasonably in concluding that the appellant should not be considered for appointment to those posts. We can see no proper grounds for interfering with that finding.

Accordingly, this appeal will be dismissed.

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JUDGE CLARK: Leave to appeal to the Court of Appeal is refused.