United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Rahamin Representative


 


JUDGE PUGSLEY:

1. It must be clearly understood that we sit as an Employment Appeal Tribunal not as the Blackfriars or Temple Employment Tribunal which hears cases at first instance. The point of this hearing is to identify whether there is an arguable point of law. It is not for us to rehear a case. We say that, because many of the issues that have been advanced before us, would be points that any Tribunal hearing the case at first instance, would no doubt wish to consider. But we are here purely to see if we can identify an error of law.
2. The decision of the Employment Tribunal which the Appellant's seek to impugn, is a decision which is drafted with brevity. It is worth perhaps citing the relevant parts of that decision to proceed then, to evaluate the criticisms that were made of it. Mr Walklett had been employed by the Respondents from October 1996 until the 12 February 1999.
3. The application was for unfair dismissal, and for written reasons for his dismissal. The Respondents justified the dismissal on the basis that the applicant employee had put up a poster about a non-college event about which the Director of the College, the Director of Studies had not been consulted and that he proposed to charge students a £1 for the event which went into his pocket. It is also said that he had been instructed not to show a video by the Director of Studies but nevertheless went on and did this. He was therefore dismissed.
4. Paragraph 2, 3 and 4, I quote in full:-

"2 The principal evidence on behalf of the Respondents was given by Mr Patrick Kelly the Director of Studies. He said that he had heard two students discussing a college party and subsequently noticed posters advertising a Valentine's party. He found that the Applicant had attempted to publicise the party without the permission of management and was also collecting money from the students. He had agreed with Ms Rahamin that this should not happen and instructions were issued to the Applicant. He also said that the Applicant had defied instructions by allowing his students to watch a video during their class. Evidence was also given by Ms Rahamin that following this she dismissed the Applicant.

The Applicant's evidence was that he was told by Ms Rahamin that these posters should not be put up whereupon he apologised and agreed to take them down. It was the custom on Friday afternoon for the students to watch a video and he had no idea that this was forbidden.

As to the reason for dismissal we find that the Respondent did not make the slightest attempt to carry out any proper investigations as to what had been going on. It is clear and we accept that as soon as the Applicant found out that the college authorities objected to the display of the posters he removed them. It is also clear that if the Applicant did receive any money from the students that this went toward expenses. It cannot be said that this amounts to a reason for dismissal. Equally, the question of the showing of the video was never investigated properly to discover exactly what sort of video it was. Nothing had been said in the past about the watching of videos. Accordingly, we find that the Respondents' case would fail on the basis that they have failed to demonstrate to the Tribunal that any reason existed for the Applicant's dismissal. Over and above this the matter is clearly procedurally unfair. There was no attempt at any sort of disciplinary meeting at which the matter could be properly discussed nor was the Applicant given any opportunity to present his side of the story. He was simply dismissed with notice. Accordingly the dismissal is unfair and the applicant is entitled to compensation, both for his unfair dismissal and in respect of the fact that he has not having asked for then been give the reasons for his dismissal".

5. The basis of the appeal as enunciated in the Grounds of Appeal and skeleton arguments can be summarised in this way. Because we do not specifically mention a point, does not mean we do not have it in mind. But we have had the advantage of a skeleton argument, and with greatest respect to Mr Rahamin, who has appeared for his wife the skeleton argument was clear, his attempts to elucidate and expand it, we did not always find it as helpful as the original type written version. Complaint is made that discovery was given late and that it was only submitted on the morning of the hearing of a bundle of 47 pages. Mrs Rahamin who appeared below and she did the advocacy below, was overwhelmed by the large number of documents, written statements bought by the Applicant. She was upset by what she regarded as false accusations, and that she did not have sufficient time to refute properly the allegations made. I quote from the skeleton arguments:-

"The false accusations were of such a vexatious and insulting nature, possibly calculated to irritate, that the college Principal could not refer to them properly during the hearing immediately after seeing them for the first time".

6. There are two answers to that. The first is as is clear from the papers, the Respondent employee had by fact offered to come to the College and agree such documents as could be agreed. The hand written note:-

"There is no need for any meeting inside or outside the College except for the meeting on Friday 11 June 1999".

7. Furthermore, Mr Rahamim has very openly told us that no application was made by wife for adjournment so that she could have greater time to digest the documentation.
8. The second matter is that contrary to the Chairman's directions no such agreement had been arrived at before the Hearing. The answer to that is that was largely due to the Appellant's attitude in not wishing to see Mr Walklett and agreeing things with him. We do not think it now lies in the Appellant's mouth to complain about the failure to agree a bundle..
9. The third matter is this. It is contended the identity of the Employer was incorrect. I quote from the skeleton argument:-

"The decision was given against a person who is neither the employer, nor the respondent in the case, and, in fact, against a non-existent entity.

The decision was given against 'Leyla Rahamin (sic) trading as Metropole College'. There is no such entity. Mrs Laya Rahamim is an employee of Metropole College Ltd."

10. It is a significant the warning letter to which we will refer later, only has the words Metropole College; it does not have the words Limited on it. Further the Notice of Appearance gives the name and address of the Respondent, Metropole College 7 Praed Street London. There is nothing there to indicate it is a Limited company. As one of the Industrial members of this Tribunal, Mr William Morris pointed out to the Appellant in argument:-

"you can't complain if people take you at your word and you don't chose to reveal what the true position is".

11. All of us were somewhat concerned at the prevarication in answering the question as to who held the shares in Metropole College Ltd. This proved to be, as we suspected, both Mrs Rahamim and her husband. We do not consider an arguable ground exists when the Respondents had full opportunity of making known who the person was, who was they say the employer, and failed to do so. It is pertinent to note in this case Mr Walklett is here. We asked him if he objected to the amendment.. He says he is concerned about the instability of the company. We see no reason for ourselves to intervene because this matter was not taken below before the Industrial Tribunal.
12. The fourth ground in the skeleton argument is the Tribunal failed to consider whether the behaviour of the plaintiff amounted to gross misconduct, which is argued by Metropole College justified dismissal only after one written warning. We find the whole issue of written warning somewhat bizarre. The first written warning is as follows:-

"Following our preliminary discussion on 3^rd February 1999. After some consideration of the act in question, I feel that you have been in the college long enough to realise that college events must be authorised by the Director of Studies or Principal and are not left to any individual teacher. Your event was organised and advertised without any consultation with the academic management of the college.

Added to this is the fact that, whether for reasons of personal benefit or not, you sought to charge the students. I feel that a written warning is the only course of action which adequately reflects the seriousness of the offence".

13. In effect the written warning is about the same incident which is in part said to justify the dismissal.
14. It is true, as Mr Rahamin has stated that the Tribunal did not deal with the issue of Mr Walklett querying various matters about the written warning. This was referred to by Mr Walklett in his application to the Tribunal and we were told Mrs Rahamin gave evidence about this. This matter does not surface in the Tribunal decision. We note the Tribunal did make the finding that the Respondent failed to demonstrate what the reason for the dismissal was and that no proper investigation took place.
15. The final point taken is that the calculation is perverse. The Applicant was awarded compensation and the issues briefly summarised in the decision in which the Tribunal said this:-

"We therefore proceeded to assess compensation. The Applicant is entitled to a basic award of £440. He has not been in receipt of Unemployment Benefit and has since his dismissal worked casually earning the sum of £333 for which he must give credit. He has applied for jobs but it would seem that all the places for teaching for the autumn term had been filled and it may be that it will be January 2000 before he can obtain a job. He said that there was a possibility he would be able to obtain further work in due course. We propose in the circumstances as we feel it is likely that the Applicant will obtain work to give him loss of wages for a period of 31 weeks. This period we propose to start from 26 February in order to take care of the fact that the Applicant was given two week's pay in lieu of notice when he was dismissed. Accordingly, for loss of wages we award him the sum of £5,704 gross and after deduction of £333 net the sum of £5,371 and we also award him the sum of £200 for loss of statutory industrial rights".

The point that is made in the skeleton argument is that this institution is not an academic institution which works in terms as with School or University. It has a continuous session. No doubt this was put before the original Employment Tribunal and they came to the conclusion they did. At the end of the day having considered at some considerable length the submissions made in our view there is no arguable point of law and therefore we dismiss the Appeal.

16. This decision is somewhat homespun and does not set out the standard directions which apply in the unfair dismissal cases. The factual basis could be set out in greater detail. However, the Industrial Tribunal are the fact finding body and their decision was a permissible option. We do not consider on the grounds raised there are arguable points of law and we therefore dismiss the appeal. With hindsight the decision could have been drafted more felicitously, but that that proposition applies to many decisions.