United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR J HORAN (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


JUDGE PETER CLARK:

1. This is an appeal by Mr O'Rourke, the Applicant before the Liverpool Employment Tribunal, against that Tribunal's decision, promulgated with extended reasons on 20 September 2001, dismissing his complaint against the Respondent, St Helens Borough Council (St Helens).

Employment History

2. In 1997 the Applicant was employed as a social worker by Bolton Metropolitan Borough Council (Bolton). In that year he was dismissed for what was later described in a decision on remedies made by an Employment Tribunal sitting at Manchester in proceedings between Mr O'Rourke and Bolton as an admitted act of dishonesty. He successfully appealed that decision internally and was reinstated by Bolton.
3. In 1998 he was again dismissed by Bolton, that dismissal taking effect on 23 July. The reason given for dismissal was gross misconduct, relating apparently to an academic course of study. This time the dismissal stood and the Applicant presented a complaint to the Manchester Tribunal. That Tribunal upheld his complaint and ordered his reinstatement on 8 July 1999. Bolton did not comply with that order and the Applicant in due course received compensation for unfair dismissal, including a special award for non-compliance by the employer with the Tribunal's reinstatement order.
4. According to a letter from the Inland Revenue dated 5 April 2002 and placed before us by Mr O'Rourke, between 5 January and May 1999 he worked for a firm called Total Amber. On 4 November 1999, he obtained employment with St Helens as a social worker. In order to obtain that employment he completed a job application form, in which he stated he had left Bolton in August 1998 for a new challenge. He omitted to mention the dismissal by Bolton or the subsequent Manchester Tribunal proceedings and their outcome. He implied, so the Liverpool Tribunal found, that he had been continuously employed by Total Amber between September 1998 and June 1999, whereas in fact the Tribunal found he had worked only 6 days for which he had been paid £810. Finally, he falsely stated that he had been offered a place at Salford University to study for a diploma in social work, in fact the Tribunal found he had been excluded from that course by the University in February 1999.
5. On 27 July 2000 Bolton wrote to the Director of Social Services at St Helens, referring to the Appellant's employment with St Helens and stating that Bolton had dismissed him in July 1998. Following receipt of that letter St Helens carried out a disciplinary investigation which culminated in the Appellant's summary dismissal on 19 November 2000. The reason given for dismissal was that he had included false and misleading information on his job application form, a reason going to conduct, a potentially fair reason for dismissal. A subsequent internal appeal failed.

The Tribunal Decision

6. Having identified conduct as the reason for dismissal the Liverpool Tribunal was divided on the question as to whether or not that dismissal was fair under section 98(4) of the Employment Rights Act 1996 (ERA). The majority thought that it was. They concluded that for a social worker working in a Local Authority Social Services department to breach the necessary mutual trust and confidence as did this Appellant warranted summary dismissal. The minority member thought it was understandable that the Appellant did not give a full description of the circumstances in which he left Bolton and that a reasonable employer would have given him another chance. The majority view prevailed and the complaint was dismissed.

The Appeal

7. Today the Appellant is represented by Mr Horan under the ELAAS pro bono scheme. Mr Horan has advanced the following points in support of the appeal, which do not emerge clearly from the grounds of appeal settled by the Appellant himself. He invites us to adjourn this hearing so that draft amended grounds may be prepared and if necessary an affidavit be sworn by the Appellant dealing with the first point taken by Mr Horan. In order to consider that application we should first look at the points taken on behalf of the Appellant today.
8. The first is directed to the Tribunal's pithy finding at paragraph 4.5 of their reasons which reads, "The Respondent adopted a fair procedure." Mr Horan submits that there were issues before the Tribunal as to whether or not St Helens carried out a fair procedure leading up to the Appellants dismissal and subsequent internal appeal and that the short statement of the Tribunal's finding does not adequately tell the Appellant why he lost on those issues.
9. We return to the original grounds of appeal and indeed the skeleton argument prepared by Mr O'Rourke. No mention is there made of any procedural point on which it is said that the Tribunal fell into error in law, nor have we been provided with any real substantive points in oral submissions today. It seems to us that the Tribunal expressed their findings succinctly but clearly. In these circumstances we do not consider it necessary for the matter to be adjourned so that at this stage the Appellant may put in some affidavit evidence dealing with the procedural issues below.
10. The second point relates to the Tribunals finding at paragraph 4.2 of their reasons, that it was false of the Appellant to assert by implication that he had been continuously employed by Total Amber from September 1998 to June 1999 and that he had drawn a salary for each month. In fact he had worked on only 6 days and been paid £810. It seems to us that that is a clear finding of fact with which we cannot interfere. In any event, on the document now produced by the Appellant from the Inland Revenue, it appears from their records that his work for Total Amber took place between January and May 1999 and not earlier.
11. The next point relates to the proceedings against Bolton. Mr Horan refers us to section 114 ERA. By section 114(1) it is provided:

"(1) An order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed."

True it is that if the employer complies with an order for reinstatement the dismissal is effectively expunged. However that is not what happened in this case. Bolton did not comply with the reinstatement order; as a result the machinery provided for in section 117 of the Act came into play and under section 117(3) he received both an ordinary award of compensation for unfair dismissal and an additional award. Those awards of compensation were made for unfair dismissal. It follows, under the scheme of the Act, that the Appellant was dismissed by Bolton and the suggestion that he need not disclose the circumstances in which he truly came to leave Bolton because a reinstatement order was made and there was nothing that misled St Helens is in our view unsustainable.

12. The final point is that at paragraph 4.3, the Tribunal make a clear finding of fact that the Appellant had been excluded from the Dip SW course at Salford University in February 1999. It is submitted that that finding contradicts a finding by the Manchester Tribunal in the Bolton proceedings at paragraph 3.1 of their liability decision, which was promulgated with summary reasons on 27 May 1999. There are two flaws in that submission in our view, the first is that a finding of fact by the Manchester Tribunal in proceedings between the Appellant and Bolton does not and could not bind the Liverpool Tribunal in proceedings between the Appellant and St Helens. The parties are different and therefore no question if issue as estoppel arises.
13. But secondly and more substantively the Manchester Tribunal merely found that Bolton had not adequately investigated the Appellant's assertion that he was a mature student and therefore did not need academic qualifications for entry to the Salford course. That is quite different from the finding of fact from the Liverpool Tribunal's decision, that the Appellant was in fact excluded from that course.
14. Those are the points raised by Mr Horan, he does not pursue a point raised in the original grounds of appeal as to victimisation for good reason. The question of victimisation will only arise, as a matter of law, where there is a protected act for the purposes of either the race, sex or disability discrimination legislation. None of those Acts of parliament apply in this case. In these circumstances, having considered the ways in which the case was put, we can find no grounds in law for interfering with the majority decision of the Liverpool Tribunal, whether on the grounds of perversity or otherwise and in these circumstances we must dismiss this appeal.