United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Laddie (of Counsel) under ELAAS


 


JUDGE CLARK:-

1. This is now an old case, the Appellant, Mr Nakatani having been dismissed by the Respondent from his post as a teacher at their Acton school on about the 31^st May 1995. The case was delayed by various interlocutory orders culminating in a strikeout of the Appellant's Originating Application which he presented on the 29^th August 1995. That order was appealed to the Employment Appeal Tribunal, resulting in the strikeout order being set aside. The substantive hearing of the Originating Application then took place before an Employment Tribunal sitting at London North under the Chairmanship of Mrs E M Prevezer on 11^th/12^th March 1999. By a reserved decision promulgated on 25^th March 1999 all complaints made by the Appellant were dismissed. It is against that decision that this appeal is brought. The Notice of Appeal dated 3^rd May raised, among other issues, an allegation of bias on the part of the Chairman. Those allegations were then set out in a number of Affidavits filed on behalf of the Appellant to which the Chairman and lay members of the Tribunal have responded in writing. The matter now comes before us for preliminary hearing to determine whether or not the appeal raises any arguable question or questions of law which ought to proceed to a full inter-partes hearing.
2. The material facts in summary, as found by the Tribunal, were these. The Appellant commenced employment with the Respondent in 1986. He was then a student who had permission to work in the United Kingdom. He was of Japanese national origin.
3. It seems that in 1994 the Respondent was concerned that the Appellant did not then have permission to work in the UK. They sought confirmation from him that he was so entitled. He would not provide it. He was warned that if he did not provide evidence of his immigration status he would be dismissed. He did not do so and was summarily dismissed by a letter dated 31^st May 1995.
4. In his originating application the Appellant raised a number of complaints with which the Tribunal deal in their reasons from paragraph 29 through to paragraph 48. It is not necessary to set out each and every one of their findings but the heads of complaint were as follows: Ordinary Unfair Dismissal; Dismissal for a Trade Union Reason; A complaint that he was not given written reasons for his dismissal; An itemised pay statement; A claim to entitlement for a redundancy payment which was later withdrawn; A complaint of sex discrimination (that is direct discrimination); A complaint of victimisation (contrary to section 4 of the sex discrimination Act 1975) and finally; A breach of contract claim (that is a claim of wrongful dismissal at common law).
5. He has raised a number of matters in his Notice of Appeal but today he is represented by Mr Laddie of counsel under the ELAAS pro-bono scheme. Mr Laddie has focused his submissions on three matters. First, he submits that in their findings on ordinary unfair dismissal the Tribunal concluded that the Respondent acting reasonably in treating the Applicant's refusal to comply with a reasonable request that he was to produce documents to clarify his status regarding his right to remain in the United Kingdom as gross misconduct entitling them to summarily dismiss him.
6. Mr Laddie has referred us to the letter of dismissal dated 31^st May 1995. It reads, so far as is material, as follows:-

"Dear Mr Nakatani

I write further to our Disciplinary Meeting on Saturday 27^th May 1995. You were asked to provide to the School evidence of you immigration status, namely your Passport and Police Registration Certificate. You did not do so. Whilst careful consideration has been given to the answers you provided at the meeting, your answers were not considered satisfactory and in the circumstances the decision has been taken to terminated your employment.

That being the case we should be grateful if you would take this letter as formal notification of the termination of your employment with immediate effect on the ground that the School cannot satisfy itself that it may legally continue to employ you."

7. In answer to the Originating Application the Respondent put in a Notice of Appearance which was settled by their solicitors, Clifford Chance. At paragraph 5 of the reasons given for resisting the complaint, the Notice says this:-

"5. The Respondent will say that the dismissal of the Applicant was fair and was for illegality and/or some other substantial reason i.e. failure to establish that the Respondent's could continue lawfully to employ him and/or failure to obey a lawful instruction."

8. Mr Laddie accepts that the third of those ways in which the reason for dismissal is put in the Notice of Appearance, that is failure to obey a lawful instruction, could amount to grounds for summary dismissal on the basis of gross misconduct. However, he submits that the letter of dismissal makes no reference to the Appellant's failure to obey the instruction of the Respondent to provide evidence of his immigration status and accordingly, it was not open to the Tribunal to hold that that was the reason for dismissal which in turn they found was a sufficient reason for dismissal for the purpose of section 98(4) of the Employment Rights Act 1996. We reject that submission. As Lord Justice Cairns put it in Abenethy v Mott & Anderson [1974] ICR 323:-

"A reason for the dismissal of employee is a set of facts known to the employer or it may be a belief held by him which cause him to dismiss the employee."

9. We note from the Tribunal's findings of fact that prior to the meeting on 27^th May the Respondent wrote to the Applicant on 22^nd April asking him to bring his passport and police residency certificate to a meeting to be arranged before the 6^th May. In that letter they say this:-

"In any event we would like to discuss your attitude and behaviour over the past few months. Your replies to our reasonable request for this information has been avassive (sic), disrespectful and wholly inappropriate."

10. It seems to us that on the evidence that was before the Tribunal and on the basis of the way in which the case was pleaded in the Respondents' Notice of Appearance that it was open to the Tribunal to find that the set of facts constituting the Respondent's reason for dismissal included first that he had not produced the necessary documents and second that he had not done so despite a number of perfectly proper requests by the Respondent for him to do so. In these circumstances the first limb of attack by Mr Laddie fails. Secondly, he complains that the Tribunal refused an application made by the Appellant by a letter dated 19^th February for discovery of all documents relating to the immigration status of all staff in the school. It appears to us faintly ironic that the Appellant should be requiring disclosure of immigration documents from all other members of staff while steadfastly maintaining up to and including this Tribunal hearing that he need not provide his own documents on what he described as a point of principle.
11. The Tribunal rejected that application, we see from paragraph 2 of their reasons, on the basis that the request was too onerus and further that such discovery was not necessary for the fair disposal of the issues in the case. We can see nothing wrong with that reasoning and we reject this further ground of appeal.
12. The final complaint it that the Chairman refused to allow the Appellant to call a witness, Ms Mori, and a further witness, Mrs Anderson. This is dealt with at paragraphs 27 and 28 of the reasons. It seems that neither witness had been proofed by the Appellant so that he had no witness statement to show to the Tribunal or his opponent. However, he indicated orally the nature of the evidence which he said Miss Mori and indeed Mrs Anderson would be able to give. Counsel for the Respondent then agreed that statement and accordingly their evidence was admitted by consent. It now seems that Mr Nakatani believes that Miss Mori could have given additional evidence, particularly in relation to his claim that he was dismissed by reason of his trade union activities. It seems to us that that is no ground for upsetting this Tribunal's decision. The matter was dealt with, it seems to us, perfectly fairly during the course of the hearing. There is no material disadvantage on the face of it to the Appellant and in these circumstances this third and final ground also fails. It follows that in our judgment this appeal discloses no arguable point of law to go forward to a full hearing and accordingly it must be dismissed at this stage.