United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	THE APPELLANT IN PERSON


 


MR COMMISSIONER HOWELL QC:-

1. This Appeal on file EAT/760/99 is the first of two appeals before us today brought by Mr Simeon Wandou in relation to his dismissal by the London Borough of Hackney on the 28^th May 1996.
2. This Appeal relates to the question of whether his dismissal was unfair, and to the Tribunal's decision after a full hearing on 7^th, 8^th and 9^th April 1999, and their extended reasons as recorded in the document at pages 8-21 of the Appeal file sent to the parties on 19^th April 1999. Briefly, the background to the hearing before the Tribunal was that Mr Wandou's dismissal from his position as a teacher with the Hackney Borough Council took place after a report had been made by officers of the council that he had been guilty of making a fraudulent application for a home improvement grant to another local authority by understating his means, on the basis that his only source of income was his part-time employment as a security guard and omitting altogether to mention the fact that he was employed by the Hackney Borough Council as a teacher at a salary of some £20,000 per year. Those allegations in the report, if established as facts, would have amounted to an offence of dishonesty which would have justified (as we are all satisfied) the immediate dismissal of this Appellant from his position as a teacher with the Borough Council: being, of course, a position for which trust and confidence is of particular importance.
3. The Tribunal found as they stated in their reasons that since the facts of the allegation were, as they were satisfied, in fact made out - they accepted that to be the case and they so found themselves - there were therefore circumstances to justify the immediate dismissal of the Appellant in 1996 when the Council purported to do so and that further, his dismissal without Notice in those circumstances would have been reasonable. However, the actual way that the Council had gone about the dismissal process had itself been unfair, in particular because of an extremely protracted and unsatisfactory disciplinary appeal process for which the Tribunal in their decision severely, and we think rightly, criticised the Council. I should say that the criticism appears to have been directed more against various political difficulties to do with disputes between the councillors themselves rather than against any of the officers of the council responsible for carrying out their instructions, but that is a matter which is of no direct relevance to us.
4. The consequence of that finding, that the procedure in relation to Mr Wandou's dismissal had been unfair, was that the actual decision by the Employment Tribunal was that his dismissal, in the circumstances and in the way it took place had been unfair. So to that extent the case he had brought to the Tribunal was found proved. However, the Tribunal went on further to find that although the way the dismissal had been carried out was unfair, the defects were purely procedural; and the Tribunal themselves held, and found on the evidence before them which they went into fully, that any reasonable employer would have been justified in the circumstances in the immediate dismissal of Mr Wandou from his employment at the time the actual dismissal took place, in view of his dishonesty which they found as a fact. Consequently they exercised the power under sections 122 and 123 of the Employment Rights Act 1996 to reduce any compensation he would otherwise have been entitled to as a result of his unfair dismissal by 100%, effectively depriving him of compensation altogether. That was the decision of the Tribunal.
5. Mr Wandou, who has lodged a Notice of Appeal at pages 1-4 of the Appeal file dated 31^st May 1999 and who has helpfully and moderately explained his case to us in the course of the hearing today, sought to establish that he had an arguable case for pursuing an appeal before this Tribunal to a full hearing: an arguable case for saying that the Tribunal had gone wrong in law on 11 separate grounds which he itemised. I do not propose to go into each individual one: they can for this purpose be conveniently grouped into three separate heads. The first is that he wishes to contend the Tribunal applied the wrong legislation in dealing with his case: in particular, he says that they were wrong to base their consideration on provisions of the Employment Rights Act 1996 when the events which were under consideration went back over a considerable period of time, at any rate as far back as 1991 before that Act had been enacted. Also, he says that the decision to reduce his compensation to nil, in other words by a 100% reduction, was not authorised by that or any other legislation which the Tribunal were entitled to apply.
6. Both of those arguments are self evidently impossible to sustain since the 1996 Act (which includes sections 122 and 123) is a consolidating piece of legislation and in any event the actual dismissal which was the subject of the appeal to the Tribunal was by a process which began at a disciplinary hearing in May 1996 and was not completed (albeit extremely unsatisfactorily) until some two years later in 1998. So insofar as based on a claim of incorrect application of legislation there is no arguable case.
7. The second group of points he seeks to argue are based on the Tribunal's acceptance of evidence from the employee of the Council who had compiled the report into his activities; in particular when that evidence had been given to a disciplinary hearing of the Council in advance of criminal proceedings which were then still pending, and the Council disciplinary procedure had taken place without waiting for the result of the criminal proceedings. We should interpose that when the criminal proceedings did take their course some weeks later at St Albans Crown Court, the Appellant was convicted on that employee's evidence and was sentenced for obtaining property by deception, for exactly the same matters which were the subject of the allegations taken into account by the council's disciplinary procedure. All the criticisms Mr Wandou seeks to level under this head against the Tribunal's decision and the way they dealt with this and related issues appear to us to relate simply to factual questions which have already been considered, fully and adequately, and decided by the Tribunal. Accordingly, they do not appear to us to give rise to any arguable issue of law relating to the Tribunal's decision. And, in any case, all of those matters appear to us to go to the question of whether the dismissal was or was not unfair, and that issue was for different reasons decided in favour of Mr Wandou by the Tribunal in any event; so we do not consider that any of those group of issues gives him an arguable ground of appeal either.
8. The third and final group of issues are issues disputing questions of fact which are set out by Mr Wandou on the 4^th page of his Notice of Appeal at page 4 of the Appeal bundle under a paragraph headed "6.15 On The Grounds of Fact". Again, we are not satisfied that the complaints there set out disclose any arguable ground in law as all appear to relate to issues of fact, which insofar as relevant the Tribunal has in our view adequately considered and decided. It is well established that this Tribunal has no jurisdiction to interfere with the decision of the Employment Tribunal on questions of pure fact and we are not satisfied that any arguable point of law is disclosed in relation to those heads either.
9. For those reasons, we are not satisfied that there is any arguable ground for letting this case to go forward as an appeal for a full hearing and we now therefore unanimously dismiss the Appeal.