United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS K OGUN (of Counsel) Messrs Akodu & Co Solicitors Wickham House 10 Cleveland Way Whitechapel London E1 4TR


 


JUDGE BYRT QC: This is an ex parte hearing in the course of an appeal from the decision of an Industrial Tribunal sitting at Stratford on 22nd April 1997. They decided that the applicant who is now the appellant, in this case, had been fairly dismissed by reason of his misconduct. They also at the same time dismissed an application based upon an allegation of race discrimination, and awarded the respondents £50 costs against the appellant.

Briefly the facts are as follows: The appellant was what is known as a Mobile Patrol Officer in the employment of the respondents' Housing Department. He had been employed in that capacity since August 1993. Early in 1993, he had filled out a Council Tenant Claim Form claiming Housing Benefit from the London Borough of Newham. He back-dated it to the date when his last payment of benefit had expired. In the second application he had stated that his earnings were limited to £65 a week. What he failed to disclosed, or is alleged to have failed to disclose, was that by now he was in employment with the London Borough of Hackney. There were also certain discrepancies in the addresses at which he said he was living, who is employers were and who his referees were.

In any event, as a result of a Tenancy Audit Team investigation, the circumstances of this second benefit claim were investigated in depth and a report made. The appellant was brought before the local officer for a disciplinary hearing on 15th May 1995. The local officer was a Mrs Challoner. The appellant was represented by a union representative, Mr Hallesy. Early in that enquiry Mr Hallesy, purportedly acting on behalf of the appellant, admitted that there had been a fraudulent housing benefit claim made by the appellant.

The local officer, Mrs Challoner, in the course of giving evidence before the Industrial Tribunal said she had given the applicant ample opportunity to say anything else that he wished to say on his own behalf. He failed to avail himself of that opportunity and, in particular, did nothing to contradict the concession that had been made by Mr Hallesy to the effect that he had made a fraudulent housing benefit claim. As a result of the evidence she heard, Mrs Challoner decided at the end of the disciplinary hearing that the respondents should dismiss the applicant from his position of trust on the grounds of his misconduct.

There was an appeal to the Employee Appeals Sub Committee, but that on 15th November 1995 that was rejected.

The matter then came before the Industrial Tribunal. On that occasion the applicant was represented by a Mr Johnstone, who claimed he was a barrister, it has since been ascertained that he was not so. It appears that he had attended the first day of the hearing together with Mr Nahon who was represented to be his barrister's clerk. Matters proceeded in an orderly way on the first day, that is 26th March 1997; but on the second day, 27th March 1997, Mr Johnstone did not appear, but Mr Nahon, agreed to represent the applicant instead. Thereafter, with Mr Nahon representing the applicant, the proceedings continued. The evidence was completed between 10.10 a.m. and 11.10 a.m.. At that stage the Chairman of the tribunal decided that further enquiries should be made as to what had happened to Mr Johnstone. One can only assume that the purpose of that enquiry was to get Mr Johnstone before the Industrial Tribunal so that he could make the closing submissions. An adjournment was granted between 11.10 and 1 o'clock to find out where he was. At 1 o'clock no contact had been made with him despite Mr Nahon's efforts. Thereafter the Industrial Tribunal came to its findings.

Essentially the crucial findings in this case were all questions of fact. The tribunal concluded that the applicant had been guilty of making a fraudulent housing benefit claim; that this had been confirmed by what had been conceded in the course of the disciplinary hearing and by a letter before the tribunal from the London Borough of Newham, the Borough who had accepted the applicant's first housing benefit claim. They rejected the applicant's evidence that he had made the concession because he had been bullied by Mr Hallesy. In the circumstances, it is easy to see how the tribunal came to the conclusion that the applicant had probably been guilty of gross misconduct which justified his dismissal.

Miss Ogun, who has appeared on behalf of the appellant at this ex parte hearing, has perceived the difficulty she had in proceeding with the main grounds of the appellant's appeal. They are all essentially based on questions of fact, which of course, is for the Industrial Tribunal to decide and not us.

She has focused the main thrust of her submissions on the fact that there seems to have been an application made on behalf of the applicant at the commencement of the second day of hearing on 27th March 1997, arising out of the fact that Mr Johnstone who had conducted the case on behalf of the applicant hitherto, was not present. She has submitted it was inconceivable for any tribunal to have allowed the barrister's clerk to continue with the hearing in the absence of the barrister himself and, that in exercising their judicial discretion the tribunal should have granted an adjournment. Miss Ogun says that had the applicant been able to secure the benefits of Mr Johnstone's services on the second day, to argue the case, the tribunal's findings of fact might have been different. He would have been assisted, she submits, by the fact that the London Borough of Newham had decided not to commence any prosecution or claim back from the applicant any sums which it is alleged he had fraudulently claimed from the housing benefit whilst he was with them.

We have had the advantage of having some additional information from the Industrial Tribunal. A letter from a Mrs Oomar on behalf of the Regional Secretary of the Tribunals records that the Chairman's Notes state:

"Mr Nahon represented the Applicant with the Applicant's consent in the absence of Mr Johnstone. Mr Nahon said he was content to do so."

That, on the face of it, would seem to be an end of Miss Ogun's argument, because whilst the appellant is now saying he applied for an adjournment before the Industrial Tribunal, this record of the Chairman's Notes suggests that there was no such application . It says the appellant was happy and content that Mr Nahon should continue the hearing and represent him.

We have also a record provided by the Industrial Tribunal which shows that the hearing had recommenced on 27th March at 10.10 a.m. and that evidence had been given in the course of the next hour. We are not sure at what stage it was that the Industrial Tribunal satisfied itself about the applicant's representation, and the fact that Mr Nahon should continue in the place of Mr Johnstone.

It may be that the Industrial Tribunal came to a conclusion, having regard to the evidence that it had heard, that it might not matter who was representing the applicant. However, it is so unusual that any tribunal would listen to a barrister's clerk making submissions on behalf of anyone, that we think it is important that we have very clear in our mind at what stage various events happened, in particular, at what stage the applicant consented to Mr Nahon representing him.

In those circumstances, we are not minded to dismiss out of hand this ex parte submission. We think that it appropriate that we should adjourn the hearing, in order that the Chairman's Notes of Evidence of what happened on 27th March 1997 can be secured for this tribunal. Accordingly, that is the direction that we give.

We feel that were we take any other course, it is just possible that a serious miscarriage of justice might take place. We think that it is essential that before this tribunal gives its ultimate decision in this ex parte hearing, it is in full possession of all the facts of what happened on that second day and the sequence in which they happened.