United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 961_94_0806

Appeal No. EAT/961/94

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 8 June 1995

Before

HIS HONOUR JUDGE J HULL QC

MR J H GALBRAITH CB

MRS B TURNER OBE

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MR J A CULKIN          APPELLANT

(1) WIRRAL BOROUGH COUNCIL

(2) GOVERNORS OF ROCK FERRY SCHOOL          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant IN PERSON


 


JUDGE HULL QC: This is an appeal by Mr Culkin which has given us a certain amount of anxiety for reasons which I shall explain. He appeals against a decision of the Industrial Tribunal which sat at Liverpool under the chairmanship of Mr Lloyd Parry on 21, 22 and 23 February 1994 and then again on 22 and 23 March 1994. I think one of those days was a short day, but at any rate they devoted a long time to the matter and they dismissed Mr Culkin's complaint of unfair dismissal which was coupled with a claim for relief in the form of reinstatement, which he had made to them on 12 June 1992.

Mr Culkin was a mathematics teacher at Rock Ferry High School and his application to the Industrial Tribunal was brought against the Wirral Borough Council, who were the local Education Authority, and the Governors of the school, who under the scheme for local management of schools and, of course, the relevant statutes, now have control over dismissal of members of the staff; although the staff are still employed by the local authority.

His employment began on 11 April 1988 and there were apparently various complaints against him which had nothing to do with this story at all except that they may have perhaps affected his relationship with the headmistress, a Mrs Arkell; the head teacher as I think I ought to call her.

On 29 January 1991, in circumstances which I do not need to go into, there was an untoward scene in the staff room and, as a result of that scene, Mr Culkin complained that he had been assaulted by the head teacher. He did not suggest that it was a very serious assault; he said it consisted of prodding him with her finger. He thought it right, instead of pursuing any domestic remedies, to issue a private summons in the Birkenhead Magistrates' Court complaining of assault by the head teacher.

There was a hearing on 26 July 1991 in the Magistrates' Court. Mr Culkin, of course, gave evidence. He called two witnesses who had been present, who denied that there had been an assault; and as a result of that, the magistrates acceded to a submission that there was no case to answer and dismissed the summons.

The matter did not rest there. Mrs Arkell, the head teacher, herself made a complaint against the Applicant and that had to be looked into by the Governors. One of the Governors acted as delegate of the others, looked into the matter and on 14 September Mr Culkin was suspended. Then the Governors, four of them, held a disciplinary enquiry. The allegations against Mr Culkin were of gross misconduct in that he had been guilty of perjury in the Magistrates' Court and malicious prosecution of the head teacher. They sat on four days: on 23 October, 8 and 15 November and 5 December 1991, and they found that the charges were established.

Mr Culkin was not content with that and he appealed to the Appeals Committee of the Governors. A Dr Forsyth, acting as Chairman, with four other Governors, sat to hear the appeal on 11 and 12 February 1992 and then on 2, 10 and 23 March 1992. So they devoted no less than five days to the matter. There is a long witness statement, among a number of other witness statements which is included with our papers, by Dr Forsyth and he sets out many matters concerning the hearing before the Appeals Committee. He records, among other things, that:

"16. (b) Mr Madden (Mr Culkin's trade union representative at the school) had given evidence to the Appeals Panel that Mr Culkin had told him shortly after the incident on 29 January, 1991, that Mrs Arkell had poked him several times in the chest. Before the Appeals Panel, Mr Culkin had claimed that Mrs Arkell had only prodded him once in the abdomen."

In the view of the Appeals Panel, "These self-contradictions were more likely to be the result of fabrication rather than a genuine lapse of memory" by Mr Culkin. They reached a very unfavourable view about Mr Culkin. At paragraph 19 Dr Forsyth recorded that:

"19. The Panel considered that Mr Culkin had been actuated by malice and a desire for revenge against Mrs Arkell. Mrs Arkell had initiated disciplinary action against him for misconduct on a number of occasions since 1989. Mr Culkin had said in the Magistrates Court that he thought that Mrs Arkell was picking on him .... ."

So they reached an unfavourable conclusion on the appeal. They recorded that he had "questioned Mr Cooper for a full day", and they had felt obliged to impose guidelines on "the length of Mr Culkin's questioning of all subsequent witnesses" and they felt he "was engaging in a strategy of delay and procrastination". In paragraph 22, according to Dr Forsyth:

"22. The Appeals Panel considered that Mr Culkin had been guilty of gross misconduct and merited dismissal. His malicious prosecution of his Headteacher which was compounded by his perjury in Court had destroyed the Panel's confidence in his integrity and his judgment. He had exposed the school's and Mrs Arkell's reputation to damage in the eyes of the public by conducting a prosecution against Mrs Arkell through the public forum of the courts rather than by using the internal disciplinary or grievance procedures. In bringing an allegation of assault against Mrs Arkell which he knew to be false, the Panel were satisfied that he had been motivated by spite against Mrs Arkell with whom he had clashed on numerous occasions in the past on matters of discipline."

Therefore, they reached the conclusion that the appeal should be dismissed and they recommended and, indeed, required that he should be dismissed.

So that was the very unfavourable view of the Governors, in effect sitting in two divisions, at first instance when they took at least four days over it and then, on appeal, with five Governors when they took five days over it and they found, as I say, that Mr Culkin engaged in a policy of procrastination, a strategy of delaying tactics. That was their view of him having heard, of course, him and all the other witnesses.

So then, they having recommended that Mr Culkin should be dismissed, he duly was dismissed, as required by the statutory provisions, by the local authority. His employment ended on 10 or 11 April 1992.

The actual day was of some importance because Mr Culkin said that since it was one day outside the fortnight, which the law gives under the Schedule to the Act of 1988, therefore the whole dismissal was invalid. That was a point which apparently he took to the Liverpool County Court. He claimed damages for wrongful dismissal, as a matter of law, and apparently (we see from the papers) on 10 September 1993 the Liverpool County Court held that the provisions of the statute with regard to time were directory rather than mandatory and the fact that it was one day late did not affect the lawfulness of the dismissal. So that was a decision of a court of competent jurisdiction on that particular point.

Then on 12 June 1992 Mr Culkin applied to the Industrial Tribunal complaining of unfair dismissal and both the Governors and the local authority put in substantially identical answers in the form of Notices of Appearance in form IT3 on 17 July. Then the Industrial Tribunal sat for five days in February and March 1994 under the chairmanship of Mr Lloyd Parry, and it is against their decision that Mr Culkin appeals to us.

As I remarked to Mr Culkin (I had better say it once more) our jurisdiction is simply on matters of law. Parliament has not given us any jurisdiction to review the facts at all. If we discover any point of law, then we are under a duty to consider it and this case is in our list under our Practice Direction to see whether we can, with Mr Culkin's assistance, discover any fairly arguable point of law on which the appeal can properly proceed.

We have read the Notice of Appeal in this case in which a very great many allegations are made by Mr Culkin, and in particular he alleges that he was not given a fair hearing by the Industrial Tribunal. He has expanded on that to some extent and he sums up his case to us like this. He says that the Industrial Tribunal and the Panels of the Governors were all crooked, that is rather a blunt way of putting it.

He suggests that there is no good faith to be found here anywhere, except in his prosecution of Mrs Arkell. He says that the Governors acted in bad faith throughout, did not hear him fairly - and the same applies apparently to the Industrial Tribunal. He has produced a skeleton argument for us. He says in paragraph (i) of that that "The decision of the IT was perverse". The particulars he gives of that allegation are really what I have just mentioned; "The Governors held no reasonable or genuine belief in my guilt" he says, and "The Council held no reasonable or genuine belief in my guilt" and he refers to the statement of Dr Forsyth, which I have just read from. And that, of course, was precisely the matter for the Industrial Tribunal.

The Industrial Tribunal, as a Tribunal of fact, had to say whether Mr Culkin had been dealt with fairly in the matter of the dismissal; whether the employers had acted reasonably; and had they come to the conclusion that the Governors had not shown a genuine reason for the dismissal, and that they were not acting in good faith or had not treated Mr Culkin fairly, then it was their duty, of course, to say that it was an unfair dismissal and they would, most undoubtedly, have done so. In fact, they reached a completely contrary decision. I do not propose to read all through the decision, but they say:

"4(a) An account of this case would be misleading without reference to the most remarkable feature of the hearing, the applicant's conduct of his case. He was wordy, repetitive and rambling; he was not able to distinguish between what was important and what was not, what was relevant to the issues and what was irrelevant. Faults such as that are common to many lay representatives in this jurisdiction, but the applicant's conduct exceeded anything that any of us had previously experienced."

He is (as I say) a mathematics teacher, but apparently the Tribunal thought that about him.

They record the history of the matter and they reach findings. They describe the hearing in front of the Wallasey Magistrates' Court, when the prosecution was heard, and they describe an untoward incident on the third day of the hearing, when the applicant did not arrive, and they describe the rather extraordinary events of that day (I will not go into all that). They describe the hearing in front of Dr Forsyth and they go on to reach their findings. They say in paragraph 7 at page 35 of our bundle:

"7. The question for us was, having regard to that reason, whether the respondents were reasonable or unreasonable in treating it as sufficient to justify the applicant's dismissal [that of course, is right for them to say]. .... We further directed ourselves that we must not substitute our judgement for that of the respondents: [that is completely right in law]. .... ."

They say:

"8(a) The respondents held a genuine belief that the applicant had behaved as they accused him. We did not believe that there was any ulterior motive in the accusation against him or the decision to dismiss him. .... Those who accused him and those who decided on the merit of the accusation genuinely believed in the truth and justice of the accusation."

That is a plain finding of fact with which we can only interfere if some ground in law is shown to do so. Then they say:

"8(b) The respondents had reasonable grounds for their belief [that is another important finding] .... .

(c) The respondents carried out a reasonable investigation into the accusation against the applicant [another important finding]. .... .

(d) Dismissal was a penalty reasonably open to the respondents to impose for the misconduct of which the applicant was guilty. The accusation against Mrs Arkell was false. The incident giving rise to the prosecution was trivial. The action the applicant took was malicious, indeed scandalous. There could be no serious question of his return to the school."

Those are their findings of fact and, of course, they inevitably led to the conclusion that the complaint that was made to the Tribunal by Mr Culkin must be dismissed.

Now we must turn to the appeal and it is conveniently summarised in the skeleton argument which Mr Culkin has put before us. First of all he says that "The decision of the Industrial Tribunal was perverse" in that neither the Governors nor the Council held any reasonable or genuine belief in his guilt.

It seems to us that that is simply saying "The Industrial Tribunal were wrong in reaching the conclusions of fact which they did". It seems to us that there is no possible ground for saying that this was a perverse decision. A perverse decision is one which, quite plainly, on its face, shows that it is not rational; that it is one which no reasonable Tribunal could reach and that there must be an error of law somewhere in the minds of the Tribunal. There is no ground whatever for saying that.

Then he says too "The reasons given by the Industrial Tribunal for its decision are inadequate". That can only be answered by looking at, and reading in a fair way, the reasons given by the Industrial Tribunal.

It appears to us that in this case, which was monstrously inflated by Mr Culkin's wordiness and the strategy described by Dr Forsyth in his witness statement, the reasons given by the Industrial Tribunal were entirely adequate. It is true that they, like a breath of fresh air, state the matter shortly and to the point, but none the worse for that; this Tribunal addressed themselves faultlessly to the matters which they had to decide and did decide them.

Then he says "The Industrial Tribunal has substituted its own opinion for that of the employers, adopting an even more unreasonable position". On the contrary, it is quite clear to us, from reading the decision, that the Industrial Tribunal were saying in terms that they accepted the findings of fact because they believed (whether they were right or wrong) that they were reached in good faith. That was accepting that the Governors had carried out their duties, both at first instance and in the Appeals Panel, in good faith, and that there were reasonable grounds for the decision which they reached.

Then grounds 4 and 5 are the ones which, as I indicated, give us anxiety and always will. He says that "The applicant was not given a fair hearing by the Industrial Tribunal and the Industrial Tribunal was biased against the applicant". He gave particulars of that in his Notice of Appeal and then deposed to it in substance by putting his Notice of Appeal on oath in the form of an affidavit; and the learned Chairman has replied on behalf of the Tribunal. The Chairman goes through various matters. He denies that there is any question of bias. He says that Mr Culkin was repetitious. He had the practice of arguing with witnesses, as though his task was to change their minds and convince them they were wrong.

The Chairman deals with the various incidents on which Mr Culkin relies for saying that the Tribunal was biased. He refers to the "teeming questions" which were asked, one after another, by Mr Culkin and he describes the alarming way in which the proceedings went on, in which the Chairman tried to keep order by directing Mr Culkin and, of course, others, to matters which were relevant, to try to keep proceedings (which lasted for five days) under some sort of control.

Attempts by an Industrial Tribunal, or any other Court, to keep proceedings under control are not merely desirable, they are essential. The processes of law in our jurisdiction and system, based on oral representations, are easily destroyed if the rules about relevance and the rules about cross-examination are broken.

It is very easy to turn a short summary matter, as a hearing in front of an Industrial Tribunal should be, into some sort of show trial which goes on and on and on. Attempts by tribunals, whether (in this case) the Governors or the Industrial Tribunal itself, to keep matters under control by pointing out what is relevant, insisting that witnesses and parties keep to the point and if necessary, keep to time limits, will be supported by this Tribunal, as they will be (as we understand) by the Court of Appeal too, if they are done fairly. And it is not the task of the Chairman or the members of any Tribunal to sit passively by while time is wasted and prejudicial issues are raised which are irrelevant to the hearing in front of them.

Having considered what is said to us; what is said in the Notice of Appeal; what is said on oath by Mr Culkin; and what is said in reply by the Chairman on behalf of himself and the members of this Tribunal, we have come to the conclusion that there is here no evidence, which we could accept, that the Applicant was not given a fair hearing by the Industrial Tribunal or that the Industrial Tribunal was biased.

Mr Culkin is a man who has brought proceedings (found by the justices to be wholly without merit) against his own headmistress. The findings which are recorded in Dr Forsyth's witness statement were indeed found against him by the Governors, both at first instance and on appeal. The same unhappy experience which the Governors had with Mr Culkin appears to have been repeated in front of the Industrial Tribunal, though most certainly not - to do him credit - by Mr Culkin before us, today.

We are satisfied that there was no question of bias or an unfair hearing and that the Chairman was engaged in the extremely invidious, but necessary, task of trying to keep the matter within just limits, so that a just result could be arrived at. As I say, a hearing which drags on and on, cross-examination which is not properly directed, repetition and verbosity are the enemies of justice and no aid to justice whatever and the Chairman was under a duty to do what he did do. In our view those grounds of appeal are not made out.

Finally, Mr Culkin says that the decision of the Industrial Tribunal was in conflict with Article 10 of the European Convention on Human Rights. He mentions the right to take legal action against a fellow employee; he says it is a valid form of expression in a democratic society and is protected under Article 10 of the Convention: "Under Article 10, freedom of expression may only be restrained or subjected to punitive measures as prescribed by law. Dismissal is not a punishment prescribed by law for the purposes of Article 10".

No doubt it is the right of every citizen to bring proceedings against another citizen in any court of lawful jurisdiction. That involves consequences, and Mr Culkin, having exercised his right, was found to have exercised it maliciously, that means dishonestly and improperly and to have given perjured evidence before the justices. He complains that he was not prosecuted for that; he should be congratulating himself that he was not prosecuted. Like most people who give perjured evidence, he got away with it, but not in the sense that a conviction resulted; fortunately, the justices dismissed the matter out of hand. The Governors decided (there were two hearings) that he had given perjured evidence and that his conduct was malicious.

The Industrial Tribunal had to enquire into that. It did enquire into it and found that the decision of the Governors was one which they were justly and fairly entitled to reach. They therefore dismissed the application on the basis that there had been no unfair dismissal.

In our view, no point of law is shown and we cannot therefore interfere with these findings of fact in any way. We have to dismiss this appeal at this stage.