United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT NEITHER PRESENT NOR REPRESENTED


 


JUDGE PETER CLARK: This appeal was first listed for a preliminary hearing before a division of the Appeal tribunal presided over by His Honour Judge Hull QC on 8th July 1998. The hearing was adjourned on medical grounds. This is the resumed preliminary hearing. The appellant has indicated that he does not intend to appear at the hearing, but relies on the written submission running to 28 closely-typed pages in support of his grounds of appeal, contained in a Notice of Appeal, running to some 34 pages. We have proceeded to consider the case on the basis of those submissions and the papers before us.

The appellant is of West African ethnic origin. He is a law graduate. He commenced employment with the London Borough of Camden ["the Council"] in January 1994. At the material time he was employed as a Controlled Parking Officer, processing Parking Appeals at the Council offices in the Town Hall. Vehicles illegally parked are on occasions clamped and removed to the car pound. Two contractors were engaged by the Council who had responsibility for operating the pound and obtaining payment from owners before releasing their vehicles, namely Granada Contract Services ["GCS"] and Arcade Motors Ltd ["Arcade"].

On 20th March 1996 the appellant drove his own Ford Orion motor car into work. He parked the car in a meter space near to the Town Hall. The meter ran out. At 5 p.m. a friend telephoned him to say that his car had been clamped. He could not afford to pay for its release. He went to the pound and there saw the Arcade manager, Mr Davidson. The appellant's account to the Employment Tribunal sitting at London (North) which heard his case over five days, was that Mr Davidson agreed to pay the penalty as a gesture of goodwill to a Council employee. It was in the nature of a loan. That was not Mr Davidson's account. He said that the matter was referred to him by another Arcade employee, Mr Bon, who was not prepared to release the appellant's vehicle without payment. The appellant indicated to Mr Davidson that he was a senior official in the Parking Department and that Arcade's contract was due for renewal. He persuaded Mr Davidson, against his better judgment, to release the vehicle without payment. Mr Davidson was told and believed that a waiver would be forthcoming. It never did. There was no question of Mr Davidson loaning the money to the appellant to pay for the vehicle's release.

The tribunal heard all three witnesses' accounts and rejected that given by the appellant.

The matter did not rest. Messrs Bon and Davidson referred the incident to their managers who in turn passed on the details to the Council's Parking Manager, Mr Griffiths. He instructed his staff to search for the Council's copy of the relevant Penalty Charge Notice ["PCN"]. They did so, took a copy, and placed the original back in the file.

Time was allowed to elapse so as to give the appellant a chance to explain the matter to his superiors. He did not do so. Further, a subsequent check showed that the PCN had vanished. The suspicion was that the appellant had removed it.

An investigation took place between 20th March and 4th April 1996. Mr Bon and Mr Davidson, among others, were interviewed. On 2nd April Mr Griffiths suspended the appellant on full pay. The suspension meeting was stormy. The appellant said that he had to go home due to a medical condition. He was asked to return his access swipe card and identification card. He refused. A security guard was called. A scuffle ensured. The tribunal made no finding as to what precisely happened since the appellant wishes to pursue separate civil proceedings for assault.

The appellant was told to attend a meeting the next day. He did not do so, but telephoned to say that he was unfit for work. He never returned to work.

He was informed by letter dated 23rd April that a disciplinary hearing would be held on 7th May. He was to answer two charges, namely:

"1. On Wednesday 20 March 1996 you used your official position as a Controlled Parking Officer to get your own vehicle released from the Council's Vehicle Pound, Regis Road, without payment, after it had been ticketed and clamped, thereby defrauding the Council of income.

2. You removed or conspired to have removed a PCN (CD 42282420) from the PCN processing system in the Communications Team Room 10/11 on Thursday 21 March 1996 or Friday 22 March 1996 in order to avoid payment, thereby defrauding the Council."

He applied for a postponement of the hearing, to be chaired by Mr Gonsal, Assistant Director. Reluctantly Mr Gonsal agreed.

The postponed hearing was fixed for 13th May 1996. The appellant did not attend. Mr Gonsal decided to proceed in his absence, reasonably as the tribunal found. He heard evidence from witnesses and considered detailed written submissions from the appellant. He found the first charge proved, but not the second. He concluded that the appropriate penalty on the first charge was dismissal. This was gross misconduct under the Council's disciplinary procedures. The appellant had defrauded the Council and abused his position to his personal advantage.

The appellant then exercised his right of appeal to the Council's Staff Appeal Sub-committee, consisting of elected Council members and chaired by Councillor Bob Hall who gave evidence before the tribunal. The appeal was dismissed.

On 13th July 1996 the appellant presented an Originating Application to the Employment Tribunal complaining of racial discrimination, unfair dismissal, breach of contract, unauthorised deductions from wages and equal pay.

The tribunal dealt with each of those heads of claim in their extended reasons dated 15th October 1997. In summary they concluded:

1. Unfair Dismissal

The reason for dismissal related to the appellant's conduct. The employer genuinely believed on reasonable grounds following a reasonable investigation that the appellant was guilty of the misconduct alleged in the first charge. There was no defect in procedure. Dismissal fell within the range of reasonable responses. It was fair.

2. Race discrimination

Having considered the case of certain white comparators put forward by the appellant the tribunal concluded that they were not truly comparable. There was no difference in treatment, whether the comparison was made with the actual comparators advanced or hypothetical comparators. Had there been a difference, they would have accepted the respondent's explanation for the treatment. The appellant was dismissed solely because of his abuse of his position as a Council employee. It had nothing to do with his race.

3. Breach of contract

This claim was based on the premise that the Council was in breach of the contractual disciplinary procedures. The tribunal found that no such breach was made out.

4. Unauthorised deductions

It seems that due to an error the appellant did not receive a small pay increase for the months of April and May 1996. The error was detected and the shortfall of some £71 made up. This claim was accordingly dismissed.

5. Equal pay

The point was not advanced at the hearing and consequently dismissed.

The Appeal

The principal difficulty faced by the appellant in this appeal is that his claims are wholly without merit, as the Employment Tribunal emphatically found. Quite simply, he was dismissed for abusing his position as an employee for personal advantage. Nevertheless, that has not deterred him from advancing a range of arguments, ostensibly supported by numerous authorities. We are not impressed. Nor do we propose to deal with his submissions line by line. The question on any further appeal is not whether we are right, but whether the Employment Tribunal was wrong. In our judgment the tribunal's decision and reasons stand without any need for further embellishment. Nevertheless, we should indicate broadly our grounds for dismissing the various heads of appeal.

Unfair dismissal

6. The reason for dismissal. It is abundantly clear that it was the Council's case that the appellant was dismissed by reason of misconduct, that is, the first charge on which he was found guilty. The tribunal accepted that case.
7. The Burchell test. We are quite satisfied that the tribunal correctly addressed the three questions posed by Arnold J in the Burchell case, remembering that there is no burden on either party to establish reasonableness. Boys and Girls Welfare Society v McDonald [1996] IRLR 129. There was ample evidence led on behalf of the respondent to permit the tribunal to reach conclusions under all three heads. Scottish Daily Record and Sunday Mail (1986) Ltd v Laird [1996] IRLR 665.
8. Procedure. The appellant complained that Mr Gonsal, having made the initial decision to dismiss, ought not to have provided information to those hearing the appeal. In our experience there is no breach of natural justice where the dismissing officer presents the management case at the appeal. Difficulty arises where he is then a party to the appeal decision. That is not this case.

He also complained that the decision to dismiss ought not to have taken place in his absence. For the reasons given by the tribunal in paragraph 39 of their reasons we are satisfied that it was open to the tribunal to conclude that Mr Gonsal acted reasonably in proceeding in the appellant's absence in the particular circumstances of this case.

Generally, we can find no basis for impugning the tribunal's conclusion that the Council carried out a fair procedure in this case.

9. Sanction. Contrary to the appellant's submission to us we are satisfied that the tribunal applied the guidance given by Browne-Wilkinson J in Iceland Frozen Foods v Jones [1982] IRLR 439. Dismissal for the offence under charge 1 fell within the range of reasonable responses open to this employer. Nor has the principle in Smith v City of Glasgow District Council [1987] IRLR 326 been "violated". The decision to dismiss was based on one charge only, which was plainly sustainable. That was the reason for dismissal by which the tribunal judged the fairness of dismissal.

Breach of Contract

We accept the tribunal's finding that the Council dealt with this case in accordance with its own procedures.

Race discrimination

It is clear from the appellant's s.65 Questionnaire that his complaint of race discrimination focused on the events starting with the clamping incident and leading through to his eventual dismissal. These were considered by the tribunal in the context of his complaints of unfair dismissal and breach of contract. Based on those findings, and in the context of the race discrimination complaint, the tribunal was entitled to conclude (1) that the appellant was not subjected to less favourable treatment and (2) even if he was, that was solely due to his conduct and not on grounds of his race. In these circumstances no arguable point of law arises. We confess that we find the grounds of appeal and written submissions on this aspect of the appeal incomprehensible.

Unauthorised deductions

The tribunal found that the small underpayment of wages in April and May 1996 was attributable to an error within the meaning of s.13(4) of the Employment Rights Act 1996. It was not a deliberate refusal to pay the increase. cf. Morgan v West Glamorgan County Council [1995] IRLR 68. Accordingly no breach of s.13 was made out.

Bias

We have considered the contents of the appellant's affidavit sworn in these appeal proceedings on 18th May 1998 and the Chairman's comments thereon dated 25th June 1998. It is becoming all too common for the losing party before an Employment Tribunal to accuse members of the tribunal, and particularly the Chairman, of bias and a failure to allow a proper hearing. Our impression is that this appellant received a fair hearing in difficult circumstances. The tribunal's reasoned decision is a model of clarity, dealing with all the relevant issues. We cannot fault the tribunal's approach throughout. This appeal is dismissed.