United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR THACKER (of Counsel) ELAAS


 


SIR CHRISTOPHER BELLAMY QC: This is an appeal against the decision of the Employment Tribunal sitting at Liverpool, the reasons for which were sent to the parties on 4th January 2000. In that decision the Employment Tribunal dismissed the complaint presented by Mr Maher against the respondent, Liverpool City Council. According to the applicant's IT1 that complaint was for "unfair/wrongful dismissal discrimination". As far as we are aware the discrimination matter was not pursued.

1. The appellant was a security officer with the respondent Council. Very briefly, an incident occurred on 20th August 1998 when the appellant was on patrol in Newsham Park when he encountered a youth accompanied by his seven-year-old sister. It is unnecessary to describe that incident in any detail at this stage. As a result of that incident (and apparently as a result of the appellant's subsequent attempt to issue a summons against the youth involved, for breach of the City byelaws and for being cheeky and provocative) the appellant was suspended. In due course a disciplinary procedure was taken against him and he was dismissed.
2. The Tribunal in its decision held that the appellant had been unfairly dismissed, but at paragraphs 43 to 46 of the decision the tribunal held that the appellant had contributed 75% towards his dismissal.
3. A number of points have been raised at an earlier stage in these proceedings in the appellant's Notice of Appeal including certain procedural points which were the subject of an interlocutory order in this case by His Honour Judge Wilcox and two members on 16th June 2000.
4. It is first of all accepted that in its decision the tribunal did not deal with the appellant's complaint for wrongful dismissal. That is in particular accepted by the Chairman's comments which this Appeal Tribunal sought on certain procedural allegations made by the appellant. It therefore appears to be the case that the tribunal did err in law in failing to deal with the matter of wrongful dismissal and on that matter the case should, formally speaking, proceed to a full hearing. The tribunal expresses however the wish that the parties should, if possible, reach agreement on that aspect of the case which does not appear to be one that will, at the end of the day, be contentious.
5. More substantially, and this is in effect the main matter now canvassed on this appeal, the appellant contests the tribunal's decision that he "contributed 75% towards his dismissal", as the tribunal found at the end of paragraph 46 of the decision. The arguments presented in that respect are clearly set out in a draft amended Notice and Grounds of Appeal prepared by Mr Thacker which has been handed up to the tribunal in the course of this hearing.
6. At this stage we simply have to decide whether there is a reasonably arguable point of law so as to permit this matter to proceed to a full hearing. We do not in any way express a view on the merits, but we have come to the conclusion, in the light of the arguments presented, that there are two reasonably arguable points of law in this case, which essentially address the same issue from slightly different perspectives.
7. It seems to us, first, that there is an arguable point of law as to whether the tribunal erred in law in applying sections 120(2) and 123(6) of the Employment Rights Act 1996 in deciding that the appellant contributed 75% towards his dismissal on the grounds relied on by the tribunal in paragraphs 43 to 46 of its decision.
8. The second point of law, which is closely related to the first, is whether the tribunal's decision "that he [the appellant] contributed 75% towards his dismissal" is a decision to which a reasonable tribunal could have made, having regard to the findings of fact made by the tribunal in the decision taken as a whole.
9. It is therefore on those two points of law that we consider that this appeal should proceed to a full hearing.
10. We give leave to enter the amended Notice of Appeal. The case should be listed for ½ a day, Category C, and skeleton arguments to be exchanged in the normal way.