United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R THACKER (Of Counsel) Appearing under the Employment Law Appeal Advice Centre


 


JUDGE PETER CLARK

1. This is an Appeal by Mr Anthony, the Applicant before the Ashford Employment Tribunal, against that Employment Tribunal's reserved decision, promulgated with Extended Reasons on 9 August 2000 following a 4 day hearing further day's deliberation in Chambers, dismissing his complaint of unfair dismissal against his former employer, the Governing Body of Hillcrest School.
2. The facts, as found by the Employment Tribunal, may be summarised in this way, Mr Anthony, a teacher, applied for the post of history teacher at the school, a large comprehensive in Hastings in June 1995. In his Curriculum Vitae, submitted with his application form he included among his qualifications MsC in European Studies from the London School of Economics. He was interviewed and appointed to the post.
3. In 1998 the local authority responsible for the school required all schools in the area to check their teaching staff's claimed qualifications in the of the case of Sion Jenkins, a local teacher who was convicted of murder of his foster daughter and who turned out to have misrepresented his qualifications when applying for his teacher post.
4. Mr Russell, the head teacher, carried out the required check. The Appellant was unable to produce evidence of his LSE qualification. Eventually, on 3 December 1998, he admitted that he had not completed his degree. He did not have the qualification claimed.
5. Following an investigation Mr Russell recommended to the Governors that the Appellant be dismissed. A first panel of Governors adopted that recommendation, exercising its own judgment, so the Employment Tribunal found, and summarily dismissed him. On appeal, a second, different panel of Governors upheld that decision.
6. The Appellant's case before the Tribunal was that the inaccuracy in his CV was an inadvertent error on his part and secondly that Mr Russell had produced such a biased and unfair report to the Governors that the subsequent disciplinary process was skewed, removing any prospect of their imposing a penalty short of dismissal.
7. The Tribunal rejected those arguments and held that dismissal by reason of his conduct was fair, applying Section 98(4) of the Employment Rights Act 1996. There is no appeal against their application of that statutory provision. In the Appeal the Appellant takes 2 points and today has the advantage of representation by Mr Thacker of Counsel under the ELAAS Pro Bono Scheme.
8. Taking them in reverse order, Mr Thacker submits that the Employment Tribunal's decision was perverse and he has made submissions in relation to 5 specific paragraphs in the Employment Tribunal's reasons, Paragraphs 10, 11, 17, 26 and 31. Further he complains that evidence was called from teachers who were colleagues of the Appellant as to his good character and none of that evidence is referred to in the Employment Tribunal's reasons.
9. We can deal with that ground of appeal quite shortly. It seems to us that the submissions made are really industrial jury points. They do not amount to a contention that the Employment Tribunal made findings of fact for which there was no evidential basis. An Employment Tribunal is not bound to set out all of the evidence which it heard nor even any of the evidence which it felt did not materially assist in reaching its conclusion. Accordingly we shall dismiss that ground of appeal.
10. However, the principal point taken in the appeal is in our view arguable and ought to be argued at a full hearing with the Respondent present. The complaint here is one of bias, or more accurately, the appearance of bias on the part of the Employment Tribunal chairman, Mr David de Saxe.
11. On the affidavit evidence before us, unchallenged by the Chairman or the Respondent's solicitor in his affidavit, it seems that the Respondent went first and called Mr Russell to give evidence. In cross-examination by the Appellant's then Trade Union representative, Mr Reynolds, the witness was asked to concede that the explanation which the Appellant was to offer in his evidence was a tenable one. At that point the Chairman interjected saying words to the effect

"If that is going to be Mr Anthony's explanation he can save himself the trouble. Does he take us for complete fools?"

12. It is the Appellant's case that it was plain to him and he submits, would have been plain to an independent observer, that by that remark the Chairman was indicating that he was not interested in the explanation to be advanced by the Appellant and gave the appearance of a closed mind against the Appellant's case.
13. There is a secondary complaint that later in the hearing the Chairman threatened the Appellant with the prospect of a costs order being made against him.
14. In his response the Chairman apologies for the remark, which he accepts he should not have made. However, he asserts that his expressing that view did not affect the Employment Tribunal's consideration of the case. He sat with lay members.
15. Complaints of bias are not uncommon in the Employment Appeal Tribunal. A careful analysis of the principles is to be found in the judgment of Peter Gibson J in Peter Simper & Co Ltd v Cooke (No 2)(1986) IRLR 19.
16. However, this area of the law has been brought increasingly into focus as a result of the passing of the Human Rights Act 1998, bringing formally into English law the right to a fair trial enshrined in Article 6 of the European Convention of Human Rights, and the guidance given by the Court of Appeal in the Locabail Judgment (2000) IRLR 96. The procedural problems arising where the facts as to what happened before the Employment Tribunal are in dispute have recently been addressed by the President in Facey v Midas Retail Security (2000) IRLR 812. This is a case in which so far the facts are not really in dispute. Are they sufficient to render the decision a nullity, with a result that the Respondent must be put to the time and expense of having the matter relitigated through no fault of its own?
17. We think it would be helpful if this question were to be considered by the President and accordingly we shall direct that the case be listed for a full hearing before him and members if practical. We are also asked to direct that it should be listed as soon as possible bearing in mind the time that has elapsed since the original dismissal and the prospect that if the appeal succeeds the matter then will have to go back to a re hearing before a fresh Employment Tribunal.
18. For the purpose of that hearing we give the following directions. First, Mr Thacker has indicated that it is the Appellant's intention to file further affidavit evidence both from his representative below, Mr Reynolds and from another person who was present and took notes during the Employment Tribunal hearing.
19. We shall direct that any further affidavit evidence to be lodged shall be served both on the Employment Appeal Tribunal and on the Respondent within 21 days of the date of this Order. Further evidence will then be copied to the Chairman for his further comments. The Respondent will be entitled to file any affidavit in reply 21 days after service of the Appellant's further evidence on it.
20. We have already observed that today Mr Anthony has the benefit of Pro Bono representation by Mr Thacker of Counsel. We hope that his trade union, which assisted him before the Employment Tribunal, will feel able to extend legal representation to the full hearing before the President's division. That, of course, is entirely a matter for them. In any event we give as firm an indication as we properly can that it would be in everybody's interest for Mr Anthony to be legally represented at the full appeal hearing.
21. We shall list the case for 1 full day for argument. There will be exchange of skeleton arguments between the parties. Copies to be lodged at the same time with the Employment Appeal Tribunal, not less than 14 days before the date fixed for the full appeal hearing. There are no further directions and in particular Chairman's notes of evidence are not necessary.
22. We should finally add this. If a dispute arises on the further affidavit evidence it may be necessary for there to be a directions hearing. If so, application should be made for the attention of the President.