United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR JOHN BALL (Representative) 26 Studfield Road Wisewood Sheffield S6 4ST


 


HIS HONOUR JUDGE J R REID QC

1. This is a Preliminary Hearing of an appeal by Mr Sykes and Mrs Smith from a decision of an Employment Tribunal sitting in Sheffield which was promulgated on 31 January 2001 after 10 days of hearing plus some further consideration time. The Tribunal dismissed an application which had been made by Mrs Smith and Mr Sykes asserting that they had been unfairly dismissed by Sheffield City Council.
2. The claims that were made were wide ranging. In brief, Mr Sykes and Mrs Smith had been employed by the Council. They had primarily been employed at the Woodfold Training Centre dealing with disadvantaged people. The allegations on the basis of which they were dismissed were numerous, varied and serious and related essentially to their treatment of those disadvantaged people.
3. The history behind their dismissal is that following an investigation, disciplinary proceedings were taken against Mr Sykes and Mrs Smith. Following those disciplinary proceedings they were dismissed. Each of them appealed. In the one case, first of all, to an intermediate level of appeal, and then finally to a panel of councillors. In the other case, owing to a change in the rules in the interim, direct to a panel of councillors. Those appeals were unsuccessful. They then launched these proceedings for unfair dismissal which, as I have indicated, failed. The failure is now the subject of this appeal to the Employment Appeal Tribunal and at this stage we are simply concerned to see whether there is sufficient material, and a sufficient point made, for it to be worth the case going to a Full Hearing with both sides being represented.
4. We take the various points in the Notice of Appeal one by one. The first point arises because the Tribunal had refused an application by the Appellants for discovery and inspection of various statements and tape recordings which had been used in the course of disciplinary proceedings. The Appellants' case was that the documents which had been used in the disciplinary proceedings had been edited, cut and pasted and perhaps fabricated in order to achieve the dismissal of the Appellants. In our judgment it is clear that the refusal is not a matter which is open to challenge by the Appellants in this appeal. The application for discovery and inspection was not a matter dealt with at the substantive hearing. It had been dealt with before the substantive hearing and determined, following a hearing before a different Chairman to that who conducted the final hearing, a Mr David. He gave his decision on 23 May. No appeal was made against his decision and therefore that matter was final and unappealable when the main hearing commenced on 2 October 2000.
5. The second ground of appeal is that the Chairman who did hear the case, a Mr Little, should have disqualified himself from being a member of the Tribunal. The reason, it is said, that he should have disqualified himself, is that he had heard another case in which he held that a Mrs Fletcher had not been constructively dismissed. Mrs Fletcher was a Community Nurse who had been prepared to support the present Appellants in their disciplinary proceedings, and about whom someone on the City Council had written to her employers, the Community Health Sheffield NHS Trust, a letter which was described in unflattering terms by Mr Ball, who has represented both the Appellants before us. The Chairman had been part of the panel of 3 who had dismissed her complaint, and it was suggested that he had said that that would rule him out of chairing the subsequent hearing relating to the present Appellants.
6. The Chairman, when this matter was raised, had no recollection of it and accepted that he may have said something in the course of the Fletcher hearing to the effect that he would not thereafter hear the Smith and Sykes case. That was a matter which was ventilated before him when the hearings had got underway and while the remainder of the first day was being treated as a reading day he took the opportunity to look back at his notebook. The Tribunal, he found, in that case, had dismissed Mrs Fletcher's claim and found, so far as it was necessary for its decision, that it did not have any evidence before it to suggest there was a conspiracy as she had argued. The Chairman carefully reconsidered the matter. In our view it was clear that he could reconsider the matter. When he did reconsider the matter he took the view that the fact that in the Fletcher Tribunal there had been a limited finding on a question of conspiracy (of course, on the evidence, or more accurately, absence of evidence in that case). He therefore took the view that there was no finding in relation to a conspiracy in that case which could impact on this case and there was no finding whatsoever in relation to the new conspiracy, the other conspiracy, which was being alleged by Mrs Smith and Mr Sykes.
7. The question that we had to ask ourselves is whether there was any apparent unfairness, or at this stage, whether it is arguable there was apparent unfairness, in the Chairman having decided that he would proceed to hear the Smith and Sykes case. In our judgment no reasonable bystander would take the view that the Chairman's participation with 2 different Lay Members in the earlier case would have predisposed him one way or the other in the latter case. It was suggested that there was a conflict of interest in the Chairman because to find no conspiracy and a fair dismissal would be consistent with his earlier decision. That is, in our view, an inaccurate and inappropriate way of putting the matter. Each Tribunal deals with cases on the evidence which is put before them. In the Fletcher case there was no evidence of a conspiracy. The issues in the 2 cases were entirely different. It cannot, in our view, be properly suggested that there would be any pressure, conscious or subconscious, on him to find fair dismissal in the case of Smith and Sykes because in the entirely separate case against entirely separate employers he had been part of a team of 3 finding that there was no constructive dismissal. In our judgment there is no seriously arguable point on this ground of appeal.
8. The third ground of appeal is that the decision was perverse and was one which no Tribunal properly directing itself in law could have made. The Appellants, as distinct from their representatives, I have no doubt wished to conduct before the Employment Tribunal, a re-hearing of the disciplinary proceedings which had been taken against them with a view to vindicating themselves and showing that the findings made against them should never have been made. That, as I have no doubt they were properly advised, is not the function of a hearing before an Employment Tribunal, still less is it the function of a hearing before the Employment Appeal Tribunal. The questions that we have to ask are whether the decisions which the Employment Tribunal came to are decisions to which they could properly have come, and the decisions which the Employment Tribunal had primarily to make was whether the procedures which were adopted were appropriate and whether against that background the decision to dismiss was a fair one. It is not for the Employment Tribunal to retry the disciplinary procedures substituting their own judgment and see whether they would have come as a matter of fact to the same conclusions.
9. Complaint is made that the Tribunal produced a comparatively short decision, running to only 20 pages, despite the length of time which the hearing took. The decision is comparatively short because the Tribunal did appreciate what it had to do and did cut through the evidence. We were told that the vast bulk of the evidence, some 8 or 9 days of it, was almost entirely cross-examination of various witnesses called on behalf of the City Council and, as the Tribunal made clear, they allowed considerable latitude in the scope of the evidence which was put before them. The fact that they allowed scope and latitude in hearing evidence does not mean that they were then compelled to go through a very large amount of almost entirely irrelevant material when they gave their decision.
10. The next substantive point was whether the Tribunal could properly have come to the conclusion that the disciplinary procedures were fair. It is not now suggested that anybody who made a disciplinary decision was biased or was part of any conspiracy against either of the Appellants. What was suggested, was that those who put together the case for the disciplinary hearings were biased, and that they were conspiring, in effect, to do down and get rid of Mrs Smith and Mr Sykes. The point, of course, was taken with Mrs Stephens, who originally heard the disciplinary hearing and she made it clear in her evidence, which was accepted by the Tribunal, that she would have been astute to spot any sort of 'cooking up' of a case against the Appellants.
11. So far as conspiracy therefore is concerned, it had limited relevance to the matters which fell to be decided by the Tribunal and in any event the Tribunal decided as a matter of fact, which was a finding which was open to them (even if the Appellants do not like it) that there was no evidence of such a conspiracy as was alleged. The real gravamen of this point of appeal is the suggestion that the disciplinary hearing was unfair and that the Tribunal was wrong to hold that it was fairly conducted. The essence of that complaint is that there was no production of live witnesses on behalf of the Council but that the matter was dealt with on paper, and that the paper on which it was dealt with comprised in part of edited statements and edited tape recordings.
12. The Tribunal took the view, as they were entitled to do in our judgment, that there is no absolute requirement for there to be confrontation with oral cross-examination. The Appellants were represented in the disciplinary proceedings. No objection was taken at that stage. The Tribunal found that this was in accordance with the usual practice of such disciplinary hearings. A suggestion was made that that finding was wrong, but it is clear that there was evidence that that was the procedure and in our view it cannot be said that the Tribunal was perverse in choosing to accept that evidence even though it might have been that had the Appellants thought about it, they might have wanted to produce further evidence on the point. The specific complaint is that one of the representatives representing Mr Sykes was prevented from cross-examining further on the point but it appears that he was prevented from cross-examining in relation to what went on, not in relation to his client, but in relation to Mrs Smith's disciplinary hearing. The procedure therefore that was adopted was not one that in our view can properly be challenged as being manifestly inappropriate. It seems to us that the Tribunal was perfectly entitled to take account of the fact that the procedure seemed appropriate enough to experienced people dealing with the matter on behalf of the Appellants at that time. In our judgment there is no point of law there which can properly be explored at a Full Hearing.
13. There was then an allegation that several of the allegations made against the Appellants had been trumped up, deliberately misconstrued or regurgitated from a previous investigation which had taken place and had led to no action. That, in essence, is an attempt to say that the disciplinary hearings produced the wrong answer. Quite rightly that was not a point that the Employment Tribunal would have any truck with. Similarly there was evidence that Mrs Smith had made an allegation against a Mr Cartlidge who had made a counter allegation and that only his counter allegation had been acted on by way of the Council suspending somebody. That again does not help so far as the matters that we have to decide are concerned because at the end of the day there was a disciplinary hearing by somebody who is not alleged to be in any way tainted. The fact that there may have been some impropriety in deciding whether or not to suspend Mr Cartlidge does not effect the validity of the disciplinary hearing which took place so far as these Appellants are concerned.
14. The next ground of appeal is that the Tribunal did not avert to the fact that 2 witnesses who the Appellants would have liked to have seen giving evidence, and in respect of whom witness statements were served, were not in fact called as witnesses and therefore, of course, their witness statements formed no part of the evidence. Again we can see nothing in that. There is nothing to suggest that the Tribunal should have taken some point about failure to call witnesses or that had they referred to the fact that these witnesses were not called in their decision it would have made one happ'orth of difference to the conclusion which they reached.
15. Finally, it is suggested that the Tribunal ought to have referred to the fact that a member of the Adult Abuse Investigation Team, which looked into the allegations against the Appellants and whose report led to the disciplinary proceedings, was the carer for a particular disadvantaged person at the time that Mrs Smith alleges that that disadvantaged person had been abused by Mr Cartlidge. Therefore, it is said, that this gave rise to a conflict of interest and so Mrs Ball should have disbarred herself from investigating the allegations. It seems to us that there is a non sequitur in that proposition. We do not find it in the slightest degree surprising that the Tribunal did not make any reference to that assertion in its decision and it does not seem to us that, even if it had, it could have made any difference to the outcome.
16. All in all, what we have here is an attempt to dress up as points of law the unhappiness that the Appellants feel as to the outcome of the hearing before the Employment Tribunal. This we suspect is in large measure because they could not use that hearing as they would have wished to do as a re-trial of the disciplinary procedures. In our judgment there are no points of law which merit a Full Hearing of the appeal. No doubt there is still considerable mileage in these various complaints and cross complaints. If there is, those will have to be investigated elsewhere in whatever of the appropriate Tribunals or Courts. So far as this appeal is concerned there nothing here which in our judgment merits going to a Full Hearing and the application will therefore be dismissed at this stage.

Sir, if I may, the Appellants have indicated to me that if they were unsuccessful today they should wish to further appeal. I therefore formally make an application for leave to appeal.

No, if you wish to proceed further you will have to ask for leave in another place.

Very well sir, thank you.