United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR NIGEL GRUNDY (of Counsel) Instructed by: Ms Elizabeth Howard Solicitor Sheffield City Council Town Hall Sheffield S1 2HH


 


JUDGE PETER CLARK

1. This is an appeal by the employing Council against a decision of the Sheffield Employment Tribunal sitting on 31 January, 1 February and 28 March 2000, upholding the Applicant, Mr Radford's complaint of unfair dismissal subject to a finding of 50% contribution on his part. That decision with extended reasons was promulgated on 26 April 2000.
2. The Applicant held a senior post with the Council, having originally commenced his employment in 1975. He was dismissed on grounds of alleged gross misconduct on 9 April 1999. His internal appeal to councillors against that decision was rejected.
3. In short, he faced four charges. The thrust of the allegations was that he had misused his position as an officer of the Council and in two particular instances had been involved in the purchase of land owned by the Council in circumstances giving rise to a conflict of interest. The last two charges related to alleged breaches of the Council's procedures for procuring goods and services and misuse of the telephone.
4. The Tribunal found that his dismissal was unfair on the basis that even though the Council had a genuine belief in his guilt, the Tribunal doubted whether those beliefs were reasonable or that the Respondent acted reasonably in treating their reasons as sufficient to justify dismissal.
5. In support of the appeal Mr Grundy submits:

(1) That the Tribunal failed to follow the practice now suggested in London Borough of Barking & Dagenham v Oguobo [2000] IRLR 179 for the exchange of closing written submissions (the natural justice point).

(2) that the Tribunal carried out its own evaluation of the evidence which it heard, instead of considering whether the employer acted reasonably in its findings on the evidence before it at the disciplinary and then appeal stages (the substitution point).

(3) A finding by the Tribunal that dismissal fell outside the range of reasonable responses was, submits Mr Grundy, an impermissible option (the perversity point).

6. In our judgment all three points are arguable and should proceed to a full appeal hearing. The grounds of appeal develop those points, as did Mr Grundy's Skeleton Argument. We shall allow the Notice of Appeal to proceed on all grounds as presently constituted.
7. We would simply make this general observation at this stage. This case was decided at a time before the Employment Appeal Tribunal observations in Haddon v Van Den Bergh Foods Ltd [1999] ICR 1150, particularly as to the Tribunal substituting their views for that of the employer, and the range of reasonable responses test, were disapproved by the Court of Appeal in the conjoined appeals of Foley and Maddon [2000] IRLR 827. This Employment Tribunal expressly referred to Haddon and Maddon in the EAT at paragraph 6 of their reasons. It may be that the guidance given in those cases caused this Employment Tribunal to take a wrong approach.
8. We shall direct that the case be listed Category C for 3 hours. The parties to agree a bundle of the documents which were before the Employment Tribunal for use in this appeal. We think, in particular, it would be helpful to include the parties' Statements of Case presented at the internal disciplinary hearing and appeal hearing, and also the minutes of those hearings. There will be exchange of Skeleton Arguments between the parties, not less than 14 days before the date fixed for the full appeal hearing, copies of those Skeleton Arguments to be lodged at the same time at the EAT.
9. There are no further directions at this stage. In particular, we shall not order Chairman's Notes of Evidence, but each party has liberty to apply, in the event that Chairman's Notes are thought necessary. Any such application should be made in writing directed for my attention.
10. I remind parties of the requirement, under our practice direction that any such application should refer specifically to the particular parts of the evidence in respect of which notes are required, linking that evidence to the particular issue or issues raised in the appeal, for which they are said to be necessary.