United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR O OGUNNOWO (Solicitor) City Legal Associates Wickham House 10 Cleveland Way London E1 4TR


 


JUDGE H WILSON: In this preliminary hearing the Appellant has been represented by Mr Ogunnowo, who appeared on her behalf at the hearing before the Employment Tribunal.

1. The proposed Appellant was employed by the Respondent authority as a care worker. In particular, her responsibilities involved clients who lived at an establishment called Messina Avenue. The Appellant was a Housing Support Worker looking after the interests of the people living there who were a vulnerable client group and comprised black men with mental health problems.
2. It appears that a Project Manager was put in post on 20 October 1997 and one of his first tasks was to undertake a Benefit check on all current tenants. He quickly identified one former tenant who had received very much less than his entitlement for a very long time. Initial investigation showed that a renewal form for Disability Living Allowance had been completed in March 1997 by a locum worker but it was completed so poorly that it led to the tenant losing his entitlement. That tenant was a client of the Appellant and, although the form had been completed by a locum, it was her responsibility to ensure that his Welfare Benefits were managed correctly. It ultimately was established that his loss was between £8,000 and £10,000 and at the hearing itself this particular case emerged as part of a pattern of neglect by the Applicant concerning that particular tenant.
3. In the course of investigations, so far as the disciplinary side of things was concerned, evidence of what appeared to be theft on two occasions came to light and those were to be considered at the disciplinary hearings in due course. The outcome of the disciplinary hearings was that the Applicant/Appellant was dismissed. She did not exercise the domestic rights of appeal which were to go to the Chairman of the Disciplinary Board herself or to appeal to a panel of the Management Committee, either instead of or following an appeal to the Chairman. She complained that she had been unfairly dismissed.
4. The Employment Tribunal found that she had been fairly dismissed but Mr Ogunnowo, on her behalf today, said that the decision of the Employment Tribunal was flawed. First of all because it failed to take into account properly the nature of the duty imposed on the Employment Tribunal by Section 98(4) of the Act. We have had regard to paragraphs 8 and 9 of the Decision and it seems to us that the Tribunal properly directed itself concerning the way in which it had to proceed and took account of the guidance of the cases referred to there.
5. Mr Ogunnowo said that, so far as the Appellant was concerned, the Employment Tribunal should have had regard to the merits of the matter but that that was impossible because the Appellant had no chance to put her case. That submission is based on the fact that the disciplinary proceedings were put back on a number of occasions, sometimes because the Respondent authority had discovered more information and, in informing the Appellant of that new evidence, gave extra time for her to take it into account. On two or three occasions postponement was to accommodate the Applicant's own personal requirements or those of her representative. Eventually the authority said that it was going to go ahead with the proceedings, whether or not the Appellant was present. They wrote to say that they were under a duty to investigate allegations as expeditiously as possible and she was therefore advised in writing that in the event of her still being unwell on 3 December, the disciplinary hearing would take place and the Respondent expected her to submit her evidence to the hearing in a documentary form or for her to be represented by any other person of her choice. It appears that Mr Ogunnowo did appear on behalf at the hearing.
6. Mr Ogunnowo further submits before us that it was inequitable for the employer not to have allowed a further adjournment for health reasons. He goes on to say that any suggestion that Mrs Adeyemi's failure to avail herself of the internal appeal procedure cannot be used to justify dismissal. So far as that last point is concerned, in our view it is totally irrelevant. Although we have perused the Decision closely we can find no suggestion that the Employment Tribunal fell into that trap. In its conclusions at paragraph 10:

"10 …. The Tribunal reminds itself that its purpose is not to determine whether or not someone is guilty of theft or to substitute its view for that of one or other of the parties. It is the Tribunal's function to determine whether the Respondents have identified a fair reason for dismissal within Section 98(2) of the 1996 Act and thereafter if appropriate to go on and consider the provisions of Section 98(4)."

7. The Tribunal went on in paragraph 11 to find that, in the circumstances of the case and having regard to its findings, the Respondent had established a fair reason for the termination of the Applicant's employment.
8. The Tribunal then went on to consider the provisions of Sections 98(4) and once again reminded itself that it was not for the Tribunal to substitute its view for that of the Respondent but to consider whether the matter had been dealt with fairly.
9. So far as her non-appearance was concerned, in paragraph 13 of the Decision the Tribunal stated that:-

"13 Although the Applicant was not attending the disciplinary hearing she did not avail herself of an opportunity, either personally or through those representing her, to write to the Respondents to put before them anything to suggest why the case that was being pursued was misconceived …."

10. The Tribunal went on to conclude that in the circumstances before them the Respondents had acted fairly by proceeding with the disciplinary hearing, notwithstanding the Applicant's absence. In paragraph 15 the Tribunal stated that it had weighed and considered all the matters and had taken account of what was said in Section 98(4) of the Act and the guidelines set out in Iceland Frozen Foods v Jones and British Home Stores v Burchell and unanimously concluded that the Respondent acted fairly in treating the reason for dismissal as a sufficient reason to terminate the Applicant's employment.
11. Having listened to the submissions made in support of the application for this matter to go forward for full argument, we have concluded that there is no prospect of success if that course were taken and accordingly, the appeal must be dismissed at this stage.