United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR UPTON (REPRESENTATIVE ON BEHALF OF THE APPELLANT)


 


MR JUSTICE LINDSAY (PRESIDENT):

1. We have before us, as a Preliminary Hearing, the appeal of Mr J Cadbury in the matter Cadbury v South Thames College (which we can call "STC").
2. Mr Cadbury, who has appeared today represented by a friend of his, Mr Upton, who claims no legal qualification, was a computing lecturer in the faculty of business of STC. The Employment Tribunal first of all gave summary reasons and later fuller reasons. In the summary reasons they said, in their paragraph (iii),:-

On or about the 14^th February 1997, he spoke on the telephone to the Education correspondent of the Times Newspaper. On 17^th February 1997 that newspaper published an article which the Respondent considered damaging to its reputation. The Applicant was suspended on full pay and the result of a disciplinary hearing held by a Sub-Committee of Governors on 21 November 1997 was to find that the Applicant was guilty of gross misconduct within paragraph 10 of the College Lectures' Disciplinary code (forming part of his Contract of Employment which reads):-

"10. Offences within or outside the college's employment which by, their nature:-

(a) prevent the lecturer from continuing to do the job for which he/she is employed, or

(b) seriously call into question the lecturer's fitness to continue in the job which he was employed to do;

(b) have a damaging effect upon the reputation and integrity of the college".

Later in the summary reasons they describe the matter more fully and at the end of paragraph (iii) in the summary reasons they say:-

"The Code provides that the above examples of misconduct may lead to dismissal on a first occasion. The disciplinary panel did not consider that the Applicant could be reinstated to his formal position but were anxious to redeploy him. The Applicant failed to respond to letters sent to him concerning redeployment so that finally the panel after further discussion decided that there was no option but dismissal, which took effect on 31^st January 1998".

3. The date of dismissal was therefore the 31^st January 1998. On 31^st March 1998, Mr Cadbury lodged an IT1 claiming breach of contract and unfair dismissal. On 8^th April 1998, STC entered an IT3 and in may be noted that at that stage they made no allegation that Mr Cadbury had been disobedient to an instruction not to contact the press. The allegation in the IT3 which the STC was going to rely upon as being misconduct on Mr Cadbury's part was his discussing matters with the Education Correspondent of the Times, a Mr Charter.
4. There was a hearing on the 17^th and 30^th June 1998 at the Employment Tribunal. On 4^th August 1998 the Tribunal issued its summary decision. The unanimous decision was that the Applicant, Mr Cadbury had been fairly dismissed. Then on 25^th September 1998, there were extended reasons given. Some passages we ought to refer to; thus in their paragraph 6:-

"Both the Applicant and Mr Light had been told by their immediate line manager in very strong terms on the 12^th February 1997 not to speak to the press. On or about 14^th February 1997 the Applicant spoke on the telephone to the Education Correspondent of the Times newspaper concerning examination questions set by him. On 17^th February 1997 that newspaper published an article which the Respondent considered damaged its reputation."

Then in their paragraph 12 (x), they say:-

"The Applicant with full knowledge of the sensitivity of the subject nevertheless spoke to the Press. His evidence that he had spent many years in industry prior to embarking on an academic career makes it doubtful that he could not have appreciated the dangers of speaking to the Press. Selective reporting can distort what has been said. When he had only two days before had discussions with line manager about speaking to the Press, it was foolhardy to take the risk of speaking personally when he could and should have referred the matter to his line manager or other higher authority in the College hierarchy".

5. The Notice of Appeal in 1^st November 1998 raises a point as to contract. The Appellant's contract includes:-

"14.1. Employees shall not disclose or make use for their private advantage any information not available to the public"

"14.2. Notwithstanding the above, the Corporation affirms that academic staff have freedom within the law to question and test received wisdom relating to academic matters, and to put forward new ideas and controversial or unpopular opinions about academic matters without placing themselves in jeopardy or losing their jobs and privileges they have at the Corporation".

A little later the Notice of Appeal said:-

"14.3 The appellant neither disclosed or made use of any information not already in the possession of the newspaper which contacted him".

You will notice there the allegation is that the newspaper contacted him rather than that he contacted the newspaper and, continuing:-

"The appellant gained no advantage from responding to the newspaper's questions about his views".

And then later, so far as concerns the Notice of Appeal:-

"As the appellant did not act outside of any of the terms of his contract, his dismissal under that contract was both wrongful and unfair".

6. It is a familiar part of any case on dismissal for misconduct that there shall have been an enquiry by the Employment Tribunal to see whether there had been a reasonable investigation by the employer into the alleged misconduct. In the grossest and most obvious cases, that is unnecessary; for example, when the man is seen by everyone to punch a fellow employee or something of that order, but short of that, one can expect there to be a disciplinary enquiry and it is one of the functions of the Employment Tribunal in misconduct cases to look into the nature of the disciplinary investigation to see whether its findings were reasonable and, indeed, to see what its findings were.
7. That has been so since the well known Burchell case in 1978 to which the Tribunal here refers itself. One therefore might reasonably expect to find the Employment Tribunal describing what STC's disciplinary investigation consisted of and what it unearthed in relation to misconduct. The procedure adopted by the disciplinary investigation is described in some detail by the Employment Tribunal, but, for all that, no investigation is mentioned by the Employment Tribunal as having been conducted by STC to establish a number of relevant considerations. For example, what did Mr Cadbury say to Mr Charter at the Times; Whether Mr Charter had the information from any other source already other than Mr Cadbury; Whether the information Mr Cadbury gave to Mr Charter was true; What did the article in the Times say? Was it the case that Charter's article included any reliance upon the information that he had had from Mr Cadbury? Had Mr Charter in his article distorted or misrepresented information that he had obtained from Mr Cadbury? Whatever inference Mr Charter may have drawn from the information that he got from Mr Cadbury, was that a fair inference which Cadbury could be said to be responsible for or an unfair or unforeseeable inference for which Mr Cadbury could not be said to be responsible?
8. STC apparently took the view that Mr Charter's article in the Times was harmful to STC but was that a view which was reasonable or not? That is particularly relevant as it by no means necessarily follows that it is harmful to say of an academic institution that its academic standards are falling. If they truly are falling it may be that only by saying so and drawing attention to the fact can one be likely to generate activity so that whatever decline is being suffered is arrested. Without knowing what the primary facts found by STC's disciplinary enquiry were, it is not possible to know whether there truly was any offence at all by Mr Cadbury. Talking to the press as such it is hardly likely to be an offence independent of the content of the talk. Disobedience may be some form of offence but if it has no significant or harmful consequence in itself, it might hardly lead to redeployment or to dismissal.
9. The Employment Tribunal was satisfied with the procedure adopted by the disciplinary hearing - see extended reasons paragraph 12 - but just what the facts were that were found by the disciplinary investigation are never described. It is not said, at any stage, what Cadbury said to Charter, what Charter published and whether what Cadbury had said was true. It is as if the Employment Tribunal was overwhelmed by its study of the disciplinary hearing's procedure and had thereby forgotten to describe the facts which the investigation established. The Employment Tribunal should have turned its mind, under the Burchell test, to the question of whether the STC had reasonable grounds for believing that Cadbury had been guilty of misconduct, grounds still available to STC after the holding of a reasonable investigation. That question is not answered merely by saying that the investigation's procedure was adequate. The primary facts found by the investigation should have been specified by the Employment Tribunal.
10. So there is here, in our view, arguable error of law. We need say no more than "arguable" at this stage. Either the Burchell test was not satisfied, despite the Employment Tribunal having referred to the case, or the Meek v City of Birmingham test was failed in that Mr Cadbury was not told why he lost the crucial issue of whether STC had reasonable grounds for belief in his misconduct, grounds either established by or surviving after a reasonable investigation. We thus see the matter as proper to go to a full hearing.
11. Mr Cadbury also raises arguments concerning the conduct of the Employment Tribunal. We have read his PHD form of the 10^th December 1998; he has also lodged a note of the 31^st January 1998 and Affidavits of 17^th February 1999 and 24^th February 1999. We have also the Chairman's answering letter of 12^th April 1999 and, of course, we have Mr Cadbury's skeleton argument of 25^th November 1999.
12. The Chairman's notes of all evidence which related to what was found by the disciplinary hearing will, as a minimum, be necessary and the Chairman should be requested to supply such notes, but Mr Cadbury's complaints include that the Tribunal inaccurately summarised or misunderstood some of the evidence and so, in the circumstances, the better course is to request from the learned Chairman the whole of his notes of evidence. Mr Cadbury also raises in his complaint allegations of bias or prejudice as against the Tribunal. We have looked at those and we took the view that they had no prospect of success. We have mentioned this to Mr Upton, acting for Mr Cadbury, and he tells us that Mr Cadbury, whilst not wishing wholly to abandon such allegations in his mind, is content that the matter should go forward without those allegations being further ventilated. We think that is a proper decision because, as we say, we see no prospect of success in that area. So we do not permit allegations of bias and prejudice on the Tribunal's part to go to a full hearing.
13. The arguable errors of law which we have detected may, perhaps, differ a little from the main thrust of Mr Cadbury's argument, which has been that he simply has not been guilty of any misconduct. The ground we have described as arguable is not exclusive of that; in other words, the ground that has been no misconduct survives and can go to a full hearing, but the way we have put it is rather more that the STC arguably failed to establish that there had been a sufficient investigation at the disciplinary hearing stage to enable it to demonstrate that it had reasonable grounds on which to dismiss Mr Cadbury. That ground is rather different from the way that Mr Cadbury has so far put his case and we think that it would be appropriate that the Notice of Appeal should be amended to indicate that slightly different ground, if indeed, Mr Cadbury elects to run it.
14. So, given that Mr Cadbury and his representative have no legal qualification between them, the better course is to give them time to reflect on how to amend the Notice of Appeal once they have read the transcript of this judgment. We give leave to amend the Notice of Appeal within 14 days after the receipt by Mr Cadbury or his representative of the transcript of this judgment. If the Notice of Appeal is unamended - in other words, if it remains as it is - he will be confined to precisely the grounds specified there save, of course, for the grounds of prejudice and bias, which we do not permit to go forward.
15. So, we give leave to amend the Notice of Appeal in the way that we have indicated within the time that we have indicated. We invite the Chairman to supply the whole of his notes of evidence and we allow the matter to go forward to a full hearing in the manner we have indicated.