United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M COTTLE (of Counsel)


 


JUDGE PETER CLARK: The appellant, Mrs Gahan was a trusted and long serving employee of the respondent and its predecessor at University College Hospital London. She began employment on 19th June 1967 as a telephone supervisor, was promoted to telephone manager on 1st January 1992, and appointed telecommunications manager on 24th November 1993.

On 22nd October 1996 she was suspended on full pay pending an investigation into allegations of fraud by her on her employer. Over the preceding week-end, the Industrial Tribunal note, she had removed two bags of documents from her office. She told her employers during investigatory proceedings that this was because she was moving office in two weeks time and she removed the documents and destroyed them as being of no further use.

She attended those investigatory meetings on 28th October 1996 and 7th January 1997.

On 17th February 1997 the respondent obtained a Mareva injunction against the appellant in the High Court in connection with its claim for monies which they alleged she had wrongly obtained from them. That injunction was granted (ex parte) on the basis of an affidavit sworn by Mr Holden, the respondent's Deputy Director of Finance. The amount frozen under the order extended to £200,000. In due course, on 27th October 1997, the respondent obtained summary judgment against the appellant in the sum of £157,750 plus interest.

On 26th March 1997 a disciplinary hearing was conducted by Ms Elaine Young, General Manager Support Services. The appellant did not attend on grounds that she was sick. Her husband attended on her behalf, submitted a written statement, and then took no further part in those proceedings.

On the following day Ms Young wrote to the appellant, informing her that she was summarily dismissed for gross misconduct. That letter was followed by a further letter dated 7th April in which Ms Young gave detailed reasons for her finding of gross misconduct. In summary they were:

(1) that the appellant had claimed monies for work done through an agency, using her maiden name and authorising the payments herself.

(2) she had not done the work for which the claims were made, but was in effect receiving a double payment from the respondent.

(3) cheques not banked to the value of £23,095 were found in her office.

The appellant did not exercise her right of internal appeal, but presented a complaint of unfair dismissal to the Industrial Tribunal on 3rd June 1997. That claim was resisted. On 13th October a four day hearing of the complaint was listed for 8th-11th December 1997. Very shortly before the hearing the appellant applied for an adjournment on the grounds that she did not have representation for the hearing. That application was refused by a Chairman by letter dated 3rd December 1997.

On 8th-9th December the hearing took place. The appellant's husband appeared on her behalf. The Industrial Tribunal dismissed the complaint with costs for reasons given with a decision dated 9th January 1998.

On 18th January 1998 the appellant served a Notice of Appeal to this tribunal against that decision.

In support of the appeal the appellant has sworn an affidavit with exhibits dated 10th February 1998 and this morning she appears through Counsel, Mr Cottle, who has overnight, it would seem, having been instructed late in the day, prepared a draft amended Notice of Appeal which substantially adds to the complaints made in the original Notice of Appeal and to some extent adds to the complaints raised in the affidavit.

The thrust of the appeal is first, that Ms Young was biased against the appellant because she was well aware of and involved in the civil proceedings taken by the respondent for a Mareva injunction and could not be expected to reach any decision other than the one which she did. Secondly, it is said that the Industrial Tribunal did not give her a fair hearing. There is a complaint against the original Chairman's interlocutory order refusing the application for a postponement on 3rd December 1997. The appeal against that order is strictly out of time. We can see no reason for extending time, but have considered the merits of that part of the appeal.

The appellant was advised by solicitors up until very shortly before the date of hearing of the complaint. No proper arrangements appear to have been made to hand-over from those solicitors to any other representative. If the appellant feels let down in that respect, that is a matter between her and her solicitors. We would have dismissed the appeal against the order of 3rd December 1997 even had the appeal against that order been brought in time.

As to the matters raised Mr Cottle in the draft amended Notice of Appeal. We have considered them and say straight away that having first read the papers our provisional view was that they raised no arguable point of law. Mr Cottle has sought to persuade us that that provisional view should be altered. He has concentrated on a number of points.

First that the appellant was not allowed to call a potential witness, Ms Penelope Croft by the Chairman before the Industrial Tribunal. We have been handed a draft affidavit of what it is said Ms Croft would have said in evidence, and we can see no reason to interfere with that interlocutory order.

It is said that the Industrial Tribunal's reasons are insufficient in that they do not condescend to particulars in terms of the underlying factual basis which formed the employer's reason for dismissal. In our judgment these extended reasons sufficiently tell the parties why they won or lost. They refer to the nature of the allegations and in paragraph 5 they make findings that the ordinary Burchell principles have been complied with in this case. In our view these reasons are sufficient.

There is a specific contention that the tribunal's finding in that paragraph accepting Ms Young's evidence that she had not been a party to any discussions concerning the Mareva injunction and that all she knew was that matters other than the disciplinary hearing were being pursued separately by the Finance and Audit Department was a perverse finding in the light of the matters which had been put before her by Mr Gahan at the disciplinary hearing. It seems to us that it was a matter of fact for the Industrial Tribunal to decide whether or not it accepted that witness' evidence.

Taking this matter in the round, we have no hesitation in concluding that this was an impertinent application from the outset. The Industrial Tribunal were perfectly justified in dismissing it. They were equally justified in awarding costs against the appellant on the basis that this was an unreasonable, frivolous or vexatious application. We regard the appeal against that decision to this tribunal, whose jurisdiction is limited to correcting errors of law, breathtaking. We have no hesitation in dismissing the appeal at this preliminary hearing stage.

Mr Cottle: First, may we have leave for Legal Aid taxation?

JUDGE PETER CLARK: Why should we give you Legal Aid taxation? Is it discretionary?

Mr Cottle: It is discretionary. There were clear and specific instructions as to what transpired.

JUDGE PETER CLARK: How was Legal Aid obtained in the first place?

Mr Cottle: On advice of Counsel.

JUDGE PETER CLARK: Advised that this appeal had a reasonable prospect of success?

Mr Cottle: On specific instructions on points such as not being allowed to call witnesses, a sense of injustice.

JUDGE PETER CLARK: Well we regard this appeal as utterly hopeless and to have given advice that it had a reasonable prospect of success was, in our view, an abuse of the Legal Aid system and we shall not order Legal Aid taxation.