United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS ANNE WHYTE (of Counsel) Instructed by: Jackson Canter & Co Solicitors Merseyside House 9 South John Street Liverpool L1 8BN
For the Respondent


 


SIR CHRISTOPHER BELLAMY QC

1. This appeal comes before us by way of a preliminary hearing to determine whether the Appellant can demonstrate a reasonably arguable error of law in the decision of the Employment Tribunal held at Liverpool on 30 November 1999 and 10 and 11 February 2000 which resulted in the decision sent to the parties on 21 February 2000. By that decision the Tribunal dismissed the Appellant's complaints of unfair dismissal and racial discrimination.
2. The general background to the matters before the Tribunal is that the Applicant was employed by the Respondent from 1991 to 1999, first as a trainee accountant and later as an auditor. There were, at a later stage, certain concerns about the Applicant's council tax and a renovation grant he had received, and the Respondents, who are Liverpool City Council, his employers, carried out an investigation. To put it very shortly, that investigation led to a disciplinary hearing which took place in April, May and June 1999 in which there were complaints against the Applicant in relation to three elements: certain irregularities with regard to a renovation grant, the Applicant's conduct of his council tax responsibilities, and his general conduct during the investigation.
3. The Tribunal found that Mr Callaghan, who was the relevant officer of the Council, was satisfied that there was substance in the allegations made, and that he, Mr Callaghan, considered that the Applicant had undermined the trust placed in him as an auditor, and that what had occurred amounted to gross misconduct. The Applicant was therefore dismissed by Mr Callaghan and an appeal against that decision was rejected in November 1999.
4. In its judgment the Tribunal sets out at paragraphs 4 - 6 what it considers to be the correct approach of law and refers in particular to the well known test in British Home Stores -v- Burchell [1978 ] IRLR 379. According to that test, the Tribunal has to ask itself a series of questions in dealing with a case of unfair dismissal:

) Did the employer believe, as distinct from merely suspecting, that misconduct had occurred?

) Was that a reasonable belief, in the light of what was known to the employer at the time?

) Was it a belief arrived at after as much investigation as was reasonable in the circumstances?

) Was it reasonable to dismiss, having regard to the gravity of the misconduct which the employer believed had occurred?

5. The Tribunal then went on to apply that test and at paragraph 7 it states that:

"7 The applicant's submission was helpfully summarised in a typed summary, which it is not necessary to set out in this Decision and to which reference can be made if and as necessary."

The Tribunal then also refers to what the Respondent, the Liverpool City Council are relying on principally, the auditor's report and investigating officer's report and the dismissing officer's letter. What paragraph 7 of this decision does not do, however, is to set out exactly what the Applicant's submissions were. We have been told by Miss Whyte on the behalf of the Applicant that an important part of his submission on the unfair dismissal claim was that the Respondent council did not in fact, or could not reasonably have had, a reasonable belief that misconduct had occurred, in the light of what was known to them at the time, which is in effect the second limb of the test in British Home Stores -v- Burchell.

6. We also have the benefit of a letter from the Chairman of the Tribunal, in circumstances that I will come to in a moment, which confirms, in paragraph 2, of 2 August 2000 that the Applicant was disputing that the investigation was sufficient to form the basis of the Respondent's belief in the Applicant's guilt of the matters complained of. However, as I have said, we do not have, either at paragraph 7 of this Decision or elsewhere in it, any detailed statement of what the Applicant's arguments were and what the Tribunal's response was to those arguments.
7. The Tribunal's decision then goes on at paragraph 8 to record their finding that the Applicant was fairly and not unfairly dismissed, and that paragraph contains the sentence:

"Mr Callaghan undoubtedly believed that there were reasonable grounds on which to believe the Applicant was guilty of misconduct in the respects referred to, that there were reasonable grounds on which to sustain that belief and at the stage at which Mr Callaghan formed that belief the respondent had carried out as much investigation as was reasonable in the circumstances of the case."

As we read that paragraph, the Tribunal is there finding what Mr Callaghan's belief was: it is not finding that there were in fact reasonable grounds for Mr Callaghan to hold that belief, and once again the Tribunal does not set out any factors capable of supporting the conclusion that the Respondent's belief as to the Applicant's misconduct was reasonable.

8. The Tribunal's decision then goes on to deal with the complaints of racial discrimination of which there were eight specific matters relied on: two of those against Mr Callaghan were more closely related to the disciplinary proceedings, in particular Mr Callaghan's decision to dismiss the Applicant, and his appointment of a Mr Modaley to conduct the audit management investigation. But six of the other complaints do not appear to be directly related to the investigation, but relate to a number of incidents concerning the Applicant and Mr Modaley apparently taking place between May 1998 and June 1999.
9. The Tribunal deals rather shortly with those complaints: at paragraph 10(c) of its Decision the Tribunal states, having summarised the complaints very shortly:

"The details of those complaints were only provided to the Tribunal and the respondent as a result of certain Directions."

The Tribunal then goes on at paragraph 13, having made passing reference to certain of the arguments, as follows:

"13. The Tribunal are unanimous in deciding the applicant has failed to satisfy the Tribunal that he had been discriminated against on the ground of his race. Unfortunately the applicant (somewhat belatedly) attributed particularly the respondent's investigation and his ultimate dismissal to supposed racial dislike on the ground only of his race. In the view of the Tribunal that was totally unjustified having regard to the totality of the circumstances and the facts set out above. Moreover the Tribunal must have regard to its own finding that the applicant was dismissed fairly."

10. Then the Tribunal goes on to compliment the Applicant on the way that he has presented his case. Paragraph 13 is notable for the fact that the Tribunal does not distinguish between the complaints of racial discrimination, that are closely linked to the investigation, and the other six complaints against Mr Modaley which were not so related, nor does it set out any findings of fact, or indeed any specific findings at all in relation to the specific claims made. So one is somewhat in the dark as to whether this claim is rejected because the Tribunal has found that the incidents complained about did not happen, or whether they did not represent a difference in treatment, or whether if they happened and there was a difference of treatment, that difference of treatment was not on grounds of race.
11. At all events in those circumstances the Tribunal dismissed the Applicant's application and the Applicant has appealed to this Tribunal. At various stages in the appeal process three separate grounds of appeal have been presented, which have been helpfully marshalled together in the Applicant's Skeleton Argument that has been presented by Miss Whyte.
12. Essentially the principal submissions are, first, as regards the complaint of unfair dismissal, that the Tribunal's judgment contains insufficient findings of primary fact to support the conclusion that the employer had reasonable grounds for believing that irregularities had occurred. No reference is made, so it is said, to the Applicant's arguments, notably that he was disputing the irregularities and the reasonableness of the Council's belief. The Applicant stresses that he was unrepresented before the Tribunal whereas the Respondent was represented, that the hearing went on over three days and concerned a bundle of several hundred pages, and in those circumstances there should be clear findings of primary fact and clear reasons in order for the Applicant to understand why he had lost in accordance with the well known decision of the Court of Appeal in the case of Meek. The Applicant submits that it is impossible to analyse the thinking of the Tribunal on this point and refers in that connection to the case of Wadnam -v-Carpenter
13. On the issue of race discrimination the Applicant also submits that there must be extended reasons under Rule 10(4)(a) of the relevant Rules of the Employment Tribunals. The reasons here given, particularly in paragraph 13, are insufficient; paragraph 13 is also in error, as it does not distinguish between the allegations that are related to the dismissal and other discrete issues; there is an absence of findings of fact, even though in cases such as King and Glasgow City Council -v- Zafar, do require clear primary findings of fact to be made and do require the Tribunal to examine each of the elements capable of constituting racial discrimination so that the Applicant can again understand why he has lost.
14. The third part of the Applicant's case is that Mr Bradshaw, the Chairman of the Tribunal, exhibited a certain degree of bias against him. That is supported by an affidavit sworn by the Applicant on 10 July 2000, and we have had the advantage of the Chairman's comments on that affidavit of 2 August 2000.
15. In the light of those submissions we have come to the conclusion that there are arguable points of law in this case sufficient to justify this appeal proceeding to a full hearing. We have identified, in effect, two errors of law that arguably appear to result from the submissions that we have heard: first whether the Council erred in law in making insufficient findings of primary fact in respect of the claim for unfair dismissal, or in providing insufficient reasons for rejecting the arguments put forward by the Applicant in relation to that claim.
16. The second error of law is in effect the same error, but in relation to the issues of race discrimination, whether the Tribunal erred in law, in making insufficient findings of primary fact in respect of the claim for racial discrimination, or in providing insufficient reasons for rejecting the arguments put forward by the Applicant.
17. On those two points we are prepared to permit this appeal to proceed. We are not persuaded in the light of those points of law that it is necessary to allow this appeal to proceed in relation to the third allegation: that is to say the allegation of bias on the part of the Chairman. We are not making any finding of fact either way as to what happened in this particular case, but it is to be observed that the Chairman in his comments does not accept the Applicant's account of matters, and he refers also to the fact that the two other members of the Tribunal, against whom no complaint is made, consider that the hearing was a very full and fair hearing.
18. The matters raised as regards the Chairman do not appear to us to be sufficient at this stage to constitute a separate point of law which we should allow to go forward. The conclusion therefore is that the appeal should go forward on the two points of law that I have indicated - a category C case.