United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR COLIN BOURNE (of Counsel) Instructed by: Jackson Canter & Co Solicitors 3rd Floor Merseyside House 9 South John Street Liverpool L1 8BN
For the Respondent


 


SIR CHRISTOPHER BELLAMY QC

1. In this matter the Tribunal has before it in effect two appeals: the first in point of time is a substantive appeal against the decision of the Employment Tribunal held at Sheffield on 20 and 21 January 2000 in which the unanimous decision of the Tribunal was that the Applicant was fairly dismissed from his post as a Nursing Lecturer with the Respondent University of Sheffield. The summary reasons for that decision were sent to the parties on 11 February 2000.
2. The second appeal is an appeal against the refusal of the Employment Tribunal to supply extended reasons on the grounds that the application to supply extended reasons was made out of time. In that respect, the Appellant had 21 days in order to apply for extended reasons, but no application was in fact made until the 21 March 2000. By a letter of 28 March 2000 the Chairman of the Tribunal refused the request for extended reasons. The Applicant had relied mainly on a difficulty in relation to obtaining funding as the reason for delaying the request for extended reasons and the Chairman held that that was not a sufficient reason.
3. The question for us on both appeals is whether the Tribunal erred in law, and the matter comes before us today by way of a preliminary hearing to determine whether any point of law in either appeal is reasonably arguable so as to justify the case going forward to a full hearing.
4. The circumstances of the affair in more detail are that the Applicant was employed by the University of Sheffield from 1 April 1978 to 22 December 1999 as a Nursing Lecturer:

"His primary role being in the Management Theme on the Diploma and Advanced Diploma in Nursing Studies, one of the specific areas of teaching covering "elderly admissions". His role included that of personal tutor to pre-registration students and liaison with NHS colleagues, representing the University in terms of those external relationships."

That is the Applicant's employment position as set out in paragraph 3 of the Summary reasons and which has not been contested.

5. What appears to have happened is that in April 1996 the Applicant was de-registered as the owner of a residential home following an investigation by Sheffield City Council and a decision by a committee of that Council. That decision found that the Applicant was not a 'fit and proper' person to be registered as an owner. It appears that this fact of deregistration came to the University's attention in October 1996 when the Applicant and his wife withdrew their appeal against deregistration.
6. At that stage, according to paragraph 4 of the summary reasons, the University had to consider the question of the Applicant's continued employment. There was then some very considerable delay in bringing the disciplinary proceedings against the Applicant by the University, and it was not until July 1999 that those proceedings were in fact concluded by the dismissal of the Applicant.
7. The Tribunal in paragraph 5 finds that dismissal was recommended, and proceeded with, and upheld on appeal: the reasons given were "the fact of, and reasons for deregistration". That reason is referred to again by the Tribunal in paragraph 9 of its decision where the Tribunal finds as follows:

"9 In all the circumstances of this case the Tribunal conclude that the respondents acted reasonably in treating the 'fact of and reasons for deregistration' as a reason for dismissal. The fact that the University refused to reopen/review the decision of the SCC on deregistration did not render the University's procedure unfair."

That conclusion by the Tribunal was reached in the light of what appears to have been the main arguments put forward by the Applicant in the disciplinary proceedings. The first argument was that the University could not directly rely on the finding of the sub-committee of the Sheffield City Council because that had been adopted in breach of the rules of natural justice: the University should therefore in some way re-open or review that decision before basing themselves upon it. The second argument apparently put forward was that the University's proceedings should in any event have been delayed, pending the outcome of a decision by the UKCC, the Applicant's professional body responsible for the nursing profession, as to his professional competence as a nurse.

8. The Tribunal rejected both arguments at paragraphs 7 and 8 of the summary reasons while expressing some concern at the long delay that the disciplinary proceedings had taken.
9. It is right to add that we have had put forward before us today the letter of dismissal which is dated 22 December 1998, which notified the Appellant of the termination of his employment. The first paragraph of that letter reads:

"The Vice Chancellor has given very careful consideration to the report of the Disciplinary Tribunal sent to you on 18 December 1998 and has today has instructed me to confirm his decision that your employment be terminated in accordance with the recommendations contained in that report…."

It continues:

"The fact of, and reasons for deregistration had brought into fundamental question Mr Armugam's role as a nurse lecturer, and disclosure of this deregistration had brought the University into disrepute. The Disciplinary Tribunal judge these reasons as constituting good cause for dismissal as defined in the statute of the University, i.e conduct constituting inability to perform the duties or comply with the conditions of that office."

10. Against that background we deal first with the appeal against the refusal of the learned Chairman of the Tribunal to supply extended reasons on the grounds that the application was out of time. The reason given for the delay in applying for those extended reasons was, as I have said, related to the Applicant's funding. By their letter of 21 March 2000 the Applicant's solicitors wrote:

"This is a matter in which funding was supplied by a third party and time was needed to try and secure such agreement. It is a usual conditional that such funding will need the support of counsel. The ambiguity in paragraph 7 of the decision of the Tribunal means that it was not possible to be clear as to the exact reasons for the Tribunal drawing the conclusions that it did. These leads to difficulty in determining any costs issue.

Consideration of the decision as stated put the Applicant outside the 21 day time limit prescribed by Regulation 10(4)"

11. In our judgment difficulties regarding funding and delay in considering the summary reasons supplied by the Tribunal do not constitute good grounds for not respecting the time limits prescribed by Regulation 10(4) of the relevant Rules governing the Employment Tribunal. In this particular case there appears to have been no reason why an application for the extended reasons should not have been made within time. That is a very simple application to make: it could have been made either by the Applicant himself or by his solicitors. Indeed in a case where the possibility of an appeal was being considered and Counsel was going to, apparently, be consulted, it was in our judgment an obvious step to take, in order that such consideration should be properly given to the appeal, bearing in mind that the time for appealing, in a case where extended reasons are supplied, does not run until 42 days from the supply of those extended reasons. On that basis we can see no grounds for holding that the Chairman of the Tribunal erred in law, or reached any perverse decision, in refusing to supply extended reasons .
12. To that extent, therefore, we dismiss the first appeal regarding the refusal to supply extended reasons.
13. In that first appeal, however, there is an alternative claim asking the Tribunal:

"7……. to exercise its discretion to admit the appeal without extended reasons, by virtue of its power under Rule 39(2) Employment Appeal Tribunal Rules 1993."

The argument is support of that request for us to exercise our discretion is as follows:

" It is submitted that the decision in essence is quite full. It contains a detailed rehearsal of fact and the arguments in law presented at the Tribunal. Any uncertainty on the facts can be dealt with by reference to the Chairman's Notes of Evidence. The Appellant has clearly identified the areas where it is believed the Tribunal misdirected itself in law and the issues for the EAT to consider are clearly defined."

14. In effect, we treat that as an application in the second appeal, that is to say in the substantive appeal, to allow the substantive appeal to proceed on the basis of the summary reasons.
15. For the purposes of the argument before us, we have allowed reference to be made to the summary reasons, provisionally. We have further found it possible to determine, on the basis of the arguments we have heard on the basis of the summary reasons, whether there is a reasonably arguable point of law in this case.
16. So we now come to deal with the substantive arguments on this appeal, on the basis that the Tribunal has before it the summary reasons and is able to deal at this stage with the appeal on the basis of those summary reasons. The question is, again, whether there is a reasonably arguable point of law, as regards the substantive appeal.
17. Mr Bourne, who has said everything on behalf of the Appellant that could possibly be said, has indicated that he does not contest the Tribunal's rejection of the primary argument that was put before them, namely that the University in some way should go behind the findings of Sheffield City Council regarding the deregistration. It is, as we understand it, effectively conceded that the fact that the University refused to re-open/review the decision of Sheffield City Council on deregistration did not render the University's procedure unfair: that finding, as set out in paragraph 9 of the Tribunal's decision is not contested.
18. As regards the second point that was argued before the Tribunal, namely that the University should have waited until the outcome of the decision of the UKCC, which we are told was in the event favourable to the Applicant, Mr Bourne again concedes that it would be difficult to establish a perverse finding by the Tribunal on that point. The Tribunal's finding on that point, at paragraph 7 of the Decision, is that the University was not unreasonable in concluding its disciplinary proceedings before any decision was arrived at by the UKCC. Mr Bourne submits that it is difficult to say that that finding by the Tribunal was a perverse finding, although he draws attention to a certain ambiguity in the Tribunal's approach to this question, in criticising the delay that is mentioned in paragraph 8 and then saying, at paragraph 7, that nonetheless the University was not unreasonable in continuing its proceedings without further waiting for the UKCC decision. At the end of the day however, it is said on behalf of the Appellant that this point could at best have tipped the balance if the Tribunal was in doubt about the main point of law which is argued on this appeal, to which we now come.
19. The central argument, as we understand it put forward on this appeal, is that the Tribunal failed to follow the two-stage test that is effectively required by Section 98 of the Employment Rights Act 1996. That section, says Mr Bourne, requires the Tribunal first to clearly identify the reason for the dismissal, in accordance notably with Section 98 1(a) and then to go on to consider, as a separate question, whether the reason for dismissal is reasonable, and in particular whether the dismissal is fair or unfair, having regard to the terms of Section 98(4) of the Act.
20. The submission is that had the Tribunal made that distinction very clearly, they would have been bound to consider, notably, whether dismissal in this case was an appropriate sanction, having regard to the possibility that the Applicant, who had been employed for many years by the University, might be offered alternative employment. The fact that the Tribunal did not follow the correct sequence under section 98 so the argument runs, debarred it from considering that possibility, and it is there that one identifies an error or law. In particular it is submitted that the Tribunal led itself into error by using a shorthand for the reasons given for the dismissal in paragraphs 5 and 9, and in particular by using the words that the reasons were "the fact of and reasons for deregistration". If one refers to the letter that we cited earlier of 22 December 1998, it is clear, so that Applicant argues, that it was the consequences of deregistration and not the fact of deregistration itself that were the principal concern of the University. That is shown by a letter of 22 December which contains a more complete sentence, which reads that the reason for dismissal is

"the fact of and reasons for deregistration had brought into fundamental question the Appellant's role as a Nurse Lecturer and the disclosure of this deregistratin had brought the University into disrepute".

What is said on the Appellant's behalf is that even assuming, for argument's sake, that the University was entitled to remove him as a Nurse Lecturer, it does not necessarily follow that they were entitled to dismiss this long serving employee from the University as such, and they might well have been able to find him some alternative employment.

21. As regards that submission, our views are as follows: first, we remind ourselves that summary reasons are inevitably summary and do not set out the detail that is to be found in extended reasons. Nonetheless, in this particular case, the summary reasons provided by the Tribunal are full, as the Appellant himself submits in paragraph 7 of his Notice of Appeal in the first appeal.
22. The first question for us is whether it is fairly arguable that the Tribunal did not apply the two-stage test to which Mr Bourne refers, or to put it another way, did not follow the statutory provisions that are provided under Section 98. On this point we are not satisfied that the Tribunal did err in law, in its application of Section 98.
23. There are, first of all, the findings to which we have already referred, notably in paragraphs 5 and 9 of the decision, as to the reason for the dismissal. The fact that the Tribunal refers "to the fact of and the reasons for deregistration " without going on to refer to the rest of the letter of 22 December 1998, is in our view solely attributable to the fact that these are summary reasons and the Tribunal is expressing itself in a summary way. There is no doubt that the letter of 22 December 1998 was before the Tribunal and we are quite satisfied that the Tribunal sufficiently found the reasons for the dismissal.
24. It is similarly clear that the Tribunal did consider the reasonableness of the actions of the Respondents, and they reached their conclusion in paragraph 9. They dealt with the arguments that were advanced to them in that regard at paragraphs 6 - 8, so in that respect there is no reason to doubt that the Tribunal has, in effect, correctly addressed the question of which it was seized: having determined the reason for the dismissal, they have then gone on to consider whether the dismissal was fair or unfair within the terms of Section 98(4). The fact that they do not specifically mention Section 98(4) in the case where we are only dealing with summary reasons, is not, in our view, material. We are therefore at this stage not satisfied that the Tribunal has erred in law in the way suggested by the Appellant.
25. As we understand it, the Appellant's main argument is that had the Tribunal approached the matter differently, and according to the Applicant, correctly, it would have considered the question of whether the Appellant should have been offered any alternative employment. As we have said, we do not consider that the Tribunal did approach the matter incorrectly, but in any event, there is nothing before us to suggest that the Appellant ever put forward the possibility that although his removal from the post of Nurse Lecturer could be justified, the University was nonetheless obliged to find him some alternative employment without going so far as to dismiss him. Mr Bourne candidly concedes that he has personally no knowledge of the way the argument was put before the Tribunal, but he has no instructions that would suggest that this argument was put, and indeed we cannot detect anything in the decision to suggest that such an argument was before the Tribunal. The only small indication in the papers is the original IT1 which indicates that what the Applicant was seeking was reinstatement to his old job, rather than another job. We cannot, of course, place very much weight on that particular point, but there is nothing to suggest that the possibility of alternative employment was ever canvassed.
26. We cannot accept the suggestion, which we understood to be made in one point of the argument, that even if the question of alternative employment was not raised before the Tribunal, it was nonetheless a matter which the Tribunal was itself obliged under Section 98 to investigate even if it was not an argument being put forward. It seems to us that such a duty on the Tribunal is not expressed in Section 98 and is not to be implied from Section 98, although of course it is fair to say that the Tribunal must consider, in a general sense, whether the dismissal was fair or unfair, having regard to Section 98(4) in particular. In our judgment there is no ex officio duty on the Tribunal to investigate the possibility of the Applicant being offered alternative employment; indeed to do so would risk the Tribunal being drawn into the question of substituting itself for the employer.
27. In a case such as the present, where the Applicant is represented, as he apparently was, by Counsel, where he has retained solicitors, and is supported by his union, in our view the Tribunal is fully entitled to treat the case within the framework that it is presented to it, and not to go outside that framework except if some exceptional circumstance presents itself. Since we have no evidence at all that this Tribunal went outside the framework of the case that was presented to it, we can not find that it made an error of law in not considering the question of alternative employment, we do not know whether that matter was canvassed or not.
28. The result of these conclusions is that the second appeal is also dismissed and we have no need to make any further direction regarding the summary reasons because we have effectively taken those reasons into account in reaching our conclusion.