United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MISS A MORGAN (of Counsel) Instructed by: Ms Alison Lowton Borough Solicitor London Borough of Camden Town Hall Judd Street London WC1H 9LP


 


JUDGE ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London (North) over three days in December 1999. It comes before us by way of preliminary hearing to determine if there is an arguable point of law such to justify consideration in full of this appeal by the Employment Appeal Tribunal.

1. The appellants were the employer in this case. The respondent, at the relevant time, was a housemother in a residence for children in care up until its closure in 1980. She remained in the employment of the appellants until her suspension in 1997. The complaints against her, which featured in the dismissal, related to the period before 1980 and the way in which she was alleged to have treated two of the children in the home.
2. The Notice of Appeal sets out a number of grounds, which we have considered. First, paragraph 6(1) asserts that the Employment Tribunal erred in law in finding that the dismissal was unfair only because it was summary rather than on notice. Reliance is placed on the words of the decision as set out in paragraph 39 in which the Employment Tribunal concluded by saying that they did not find that the employers acted reasonably in treating the reason for dismissal as a sufficient reason for dismissing summarily. They found that therefore the dismissal was unfair. It is argued that in paragraph 42 in the section on compensation the tribunal said, in terms, that they found that the respondent should not have been summarily dismissed but should have been dismissed with notice and they restricted compensation to lack of notice pay and the basic award. We consider that that does give rise to an arguable point of law and we give leave for this appeal to proceed on that ground.
3. Secondly, it is alleged that rather than considering the reasonableness of the employer's actions under section 98(4) of the Employment Rights Act 1996, the tribunal formed its own assessment of the nature of the conduct complained of and that that, it is argued, must have coloured their assessment of the action of the employer, for instance, in relation to whether vulnerable children or people who have been vulnerable children, should be interviewed or cross-examined. Reference is made to paragraph 11 of the tribunal's decision in which they held back from specifying the alleged abuse but describe it as consisting of physical abuse consistent with the respondent's running of "a very strict disciplinary regime at the home in her efforts to control the children." We have seen the allegations that were being referred to, and our attention was directed to them, and it seems to us arguable that the way in which that is phrased, whilst using the term "physical abuse", may be a rather subjective description of what it amounts to and which, arguably, would not have been their view if the tribunal had been asking themselves what a reasonable employer's assessment of it would have been. Paragraph 23 is also referred to in which the tribunal said, in terms:

"23 … we conclude that the allegations were that the Applicant had a military style regime during the time that she was looking after these children which resulted in the children being punished for various misdemeanours. …"

The tribunal quote a police officer, who said that "this was a military style regime which had affected these children for the rest of their lives." In paragraph 40 they then draw the strings together on this particular theme in saying:

"40. … Although we conclude from his [the police officer's] evidence that some of the allegations were true we accept that this appears to demonstrate that the regime at the home between 1973 and 1980 was strict and ran with military precision. The Applicant had found it difficult to discipline these children as they grew older and she lost control of them which resulted he said in the home being closed down. The regime therefore instilled fear into these children which nowadays would be unacceptable."

4. It is argued on behalf of the appellants that the Employment Tribunal appear to have been applying their own assessment of the seriousness of these allegations in a way that was more forgiving than the allegations on their face would draw forth from an assessment of the view of a reasonable employer. Whilst it is true that there is reference to a "military regime", it does seem that the Employment Tribunal were adopting a term that had been used in evidence and it is not wholly clear to us whether the Employment Tribunal were saying, or could be held to be saying, that simply because it was a military regime it was acceptable. Nonetheless, it does seems to us that there is sufficient in the matters raised, essentially in paragraph 6(2) of the Notice of Appeal, to say that there is an arguable point of law that in this area the Employment Tribunal were asking themselves the wrong question and coming to their own judgments about matters in a way which may have led to a different judgment as to the seriousness of these incidents or even as to the nature of them. We therefore give leave for this matter to proceed on that basis also.
5. Thirdly, the Employment Tribunal is criticised for their finding that having directed themselves about the principles set out in British Home Stores v Burchell [1978] IRLR 379, they came to the judgment in paragraph 37 of their decision that

"37 … the investigation was flawed in that Mr Liddicott did not thoroughly investigate all the allegations that were before him but relied on the fact that the police and the NSPCC were making the investigation and he thought that as they were proceeding that was sufficient for his purposes. …"

It is clear from the body of the decision that the evidence before the Employment Tribunal, which they accepted, was that the reason for dismissal related to what happened to two particular children, about whom information was given, and it is argued that an opportunity to make wide ranging investigations beyond that was not really part of the matters for consideration. It is also argued that the Employment Tribunal failed to consider the international investigation that took place in order to trace former residents of this home in coming to that judgment. Be that as it may, the Employment Tribunal then go on to point out that Mr Liddicott accepted the statements of the two residents, to whom I have referred. In paragraph 38 the Employment Tribunal found as follows:

"38. … At no time was the Applicant able to interview the persons or confront any of the persons who were making these allegations in order to question what they were saying. We find therefore this investigation and this dismissal was procedurally flawed and therefore we conclude that Ms Brazil did not have sufficient information before her to reasonably conclude that the facts on which she relied had occurred. …"

6. It seems to us that there was material pointing in both directions requiring the assessment of the Employment Tribunal. On the one hand it appears that the employee was advised to say nothing at the disciplinary hearing. But in paragraph 15 of the decision the tribunal point out that:

"15 It was accepted that Mrs Coley was unable to bring any witnesses to defend herself about these allegations as she had been forbidden to interview any of the other residents and that this restriction was not lifted until after the Crown Prosecution Service decided not to prosecute in 1999."

It was decided not to postpone until after the police hearing because of the need to deal with the disciplinary meetings as soon as possible and the tribunal observe that the person holding the disciplinary meeting did so "realising that Mrs Coley was unable to interview any of the witnesses because of the police restrictions." We are also told that it was before the Employment Tribunal that it was a matter of policy of the local authority that they would not offer to facilitate their employees' confronting residents to ask them questions or to cross-examine them. It is pointed out, and we agree, that the right to cross-examine is not "writ in stone" as a requirement of a fair procedure. A person has a right to a fair trial, and this right may apply to a public body conducting disciplinary proceedings, but that does not necessarily in all cases mean that there has to be a right to cross-examine.

7. It seems to us that there was evidence upon which the Employment Tribunal were able to exercise a judgment as to whether they accepted that that stance was reasonable or not and they came to the judgment they did upon evidence that seems to us was available to them. There was no error of law discernible that gives rise to an arguable ground of appeal because they came to a judgment with which others might differ or which the local authority would find inconsistent with their duty to those who had been in their care and were still under the care of social workers. Accordingly, we find that there is no arguable ground of appeal in the Employment Tribunal's coming to the conclusion that there was a flaw in the investigation such as to lead them to come to the conclusion that the investigation was not reasonable. We enter a caveat. To an extent it may be that the appellants contend, and, indeed, it is part of the appellants' argument, that the approach of the Employment Tribunal in certain of the areas, particularly the matters set out in paragraph 6(3) spilled over into other areas of their consideration. By not permitting the argument, as a separate ground of appeal, that the tribunal can be criticised as erring in law in their finding that there was not a reasonable investigation, we are not to be taken as saying that there does not still possibly remain the argument that this finding by the tribunal was a consequential aspect of the matters which remain to be argued before the Employment Appeal Tribunal.
8. Accordingly, this appeal will proceed on the matters set out in paragraphs 6(1) and 6(2) of the Notice of Appeal. It will be listed in Category C for one day and skeleton arguments will be furnished in accordance with the Rules.