United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR WILLIAM HANSEN (of Counsel) Messrs Osbornes Solicitors 68 Parkway London NW1 7AH


 


JUDGE COLLINS:

1. This is the preliminary hearing of an appeal against the decision of an employment tribunal sitting at London North. The extended reasons were promulgated on 13 October 1999. By their decision the tribunal held that the appellant had been fairly dismissed on the ground of his conduct.
2. The brief circumstances are that the appellant is now 55 years old. From 20 November 1995 until 8 December 1998 he was employed as a Site Services Officer at a school run by the respondent council. His appointment was subject to references and well into his employment the employers discovered that he had forged a reference, concealing the fact that he had been previously dismissed for gross conduct. That was established at an investigatory hearing during the course of which he lied about the circumstances. Subsequently there was a disciplinary hearing at which he was dismissed and that decision was confirmed on appeal. He commenced proceedings for unfair dismissal and the tribunal decided, as I have indicated that he was fairly dismissed.
3. There are two points, which arise on this appeal. The first one is procedural. The appellant conducted his case in person before the tribunal and he expected up until the last minute that a Ms Alvarez would turn up and give evidence for him. She did not attend and he applied to put her statement in evidence and the tribunal declined. He says that if the statement had been admitted the outcome might have been different.
4. We have seen the statement today. At our prompting we were informed that Ms Alvarez did not attend the hearing because her employer had summoned her to a meeting and we found it remarkable that that information had not been available to this tribunal earlier. But in the event we find nothing in the statement of Ms Alvarez which could conceivably have affected the outcome of the case. On its face, she was informed by the investigating officer, who was the head teacher of the school, that there was going to be a disciplinary hearing and that Mr Lyons would be dismissed. It said that is an indication that the fate of the appellant had been decided before the hearing. But Mrs Pohle was not a member of either the disciplinary panel or the appeal panel. Although if she was making an educated guess at the result, she made a very good guess, there is nothing in this statement which would in our judgment have led to any other outcome in relation to the fairness of the procedure.
5. The main point is this. Mr Lyons says: "Well yes, I did submit a forged reference and the employers would have been perfectly entitled to dismiss me if they called it 'some other substantial reason' instead of misconduct. But as they called it 'misconduct' they cannot dismiss me." And he says, "misconduct only means misconduct during the course of the employment." Mr Hansen has mentioned some authorities in the course of his skeleton argument, neither of which support his submission and it is worth recalling that S.98 Employment Rights Act 1996 says:-

"A reason for dismissal may relate to the conduct of the employee."

But it does not say the conduct of the employee during the employment and it is difficult to think of more obvious misconduct of an employee than submitting fraudulent and forged reference on the strength of which he gets the employment. This was an impudent appeal with no prospects of success whatsoever and it must be dismissed.