United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G FOSTER Representative


 


JUDGE PETER CLARK

1. This Potential Appeal has been lodged by Mrs Foster, the Applicant before the Exeter Employment Tribunal, against that Employment Tribunal's decision, promulgated with Extended Reasons on 16 October 2002, dismissing her complaint of unfair dismissal brought against her former employer, the Respondent, Somerset County Council.
2. Having considered her Notice of Appeal dated 26 November 2002 the Registrar concluded that that Notice disclosed no question of law, a pre-requisite for giving the Appeal Tribunal jurisdiction to entertain the appeal under Section 21 of the Employment Tribunals Act 1996. Accordingly, by a letter dated 29 January 2003, the Registrar communicated her decision to take no further action on the appeal under Rule 3(7) of the Employment Appeal Tribunal Rules to the Appellant. The Appellant expressed her dissatisfaction with that ruling and so, pursuant to Rule 3(10) the matter has been referred to me for further consideration.
3. The factual story is fully set out in the Employment Tribunal's reasons. In summary, the Appellant commenced employment with the Respondent in October 1994; in August 1999 she was transferred to the personnel and administration department of the Somerset Fire Brigade as an Administrative Assistant. Her time in that Department was an unhappy one all round. She complained of bullying, although she did not translate that allegation into a formal complaint under the Respondent's bullying and harassment procedure. Other members of staff in the department became stressed. The Appellant went off sick on 8 December 2000 suffering from stress, never to return to return to work before her employment ended on 24 May 2001.
4. There was an issue between the parties as to whether that termination amounted to a dismissal by the Respondent. The Employment Tribunal found that it did.
5. Thus the next question for the Employment Tribunal was whether the Respondent had shown a potentially fair reason for dismissal. They had. It related to the Appellant's conduct. Specifically, her repeated failure to attend meetings arranged by the Respondent to seek a resolution of the workplace problems or to respond to alternative options offered by the Respondent or to offer her own solutions.
6. As to the fairness of dismissal for that reason the Employment Tribunal concluded, looking at the overall history, that dismissal fell within the range of reasonable responses open to the employer. They were however concerned as to whether the Respondent's failure to follow its own or any formal disciplinary procedure leading to dismissal (the Respondent having taken the view, wrongly so the Employment Tribunal found, that the Appellant had not been dismissed) rendered the dismissal procedurally unfair.
7. It appears that the precise disciplinary procedure was not put before the Employment Tribunal. They reminded themselves of the observation by Lord Mackay of Clashfern in Polkey v A E Dayton Services Ltd [1987] IRLR 508, that not every procedural breach will necessarily render a dismissal unfair and concluded that this was an exceptional case in which despite the Respondent's failure to follow a formal disciplinary procedure the dismissal was not unfair.
8. In the proposed appeal and for the purposes of this hearing the Appellant, represented by her husband, Mr Graham Foster, has lodged 2 bundles of documents. In addition to the core documents, the Employment Tribunal decision, Notice of Appeal, pleadings and Registrar's order and the skeleton argument prepared for today's hearing, all of which I have read, there are witness statements correspondence and medical evidence, extending to some 140 additional pages which I have deliberately disregarded until this hearing. The reason is simple. Our jurisdiction is limited to correcting errors of law. It is not our function to review the Employment Tribunal's decision de novo or to retry the facts. Hence the Rule 3 procedure which brings this case before me.
9. In these circumstances I have looked for a point or points of law which give this Employment Appeal Tribunal jurisdiction to entertain the appeal. The best point it seems to me relates to the Employment Tribunal's finding that notwithstanding the Respondent's failure to follow a recognised procedure the dismissal was not procedurally unfair.
10. I have carefully considered whether, on the facts as found, the Employment Tribunal may be said to have fallen into error on this aspect of the case. I have concluded that such an argument is open to the Appellant. The Employment Tribunal, it seems to me, has proceeded in accordance with the principles laid down by the House of Lords in Polkey. However I bear in mind the sequence of events in the case of Westminster City Council v Cabaj [1996] IRLR 399. There, the employer having dismissed Mr Cabaj, set up an internal appeal panel consisting of 2 elected members only. The contractual disciplinary procedure required a 3 member panel. The appeal was dismissed and the employee brought a complaint of unfair dismissal.
11. The Employment Tribunal found that despite that procedural error the dismissal was nevertheless fair. On appeal the Employment Appeal Tribunal allowed the appeal and substituted a finding of unfair dismissal. On further appeal the Court of Appeal upheld the Employment Appeal Tribunal decision to allow the appeal but directed that the matter be remitted to a fresh Employment Tribunal for rehearing.
12. In my judgment there is an arguable question of law raised on the facts of this case as to whether this Employment Tribunal did properly consider whether the procedural deficiencies rendered the dismissal unfair and fell into error in finding that it did not. I say no more about the merits of the appeal other than that in my judgment this is a point which ought properly to go to a full hearing with both parties present to argue the appeal. It follows that I differ from the Registrar in this case and shall direct that the appeal be formally registered.
13. I have found only 1 matter which it seems to me raises a question of law. In those circumstances I explained to Mr Foster that 2 options were open to me. Either to put the whole of the appeal down for a preliminary hearing at which stage a full division of the Appeal Tribunal would decide which if any points ought to proceed to a full hearing. Alternatively if he on behalf of the Appellant wished to abandon all grounds save the one which I have identified earlier then that ground alone could proceed to a full hearing, it not then being open to the Appellant to argue any other grounds of appeal.
14. Having conferred, I was told that the latter option was that preferred by the Appellant and accordingly I shall direct that this appeal be set down for a full hearing limited to the sole point which I have identified in this judgment. The case will be listed for 2 hours. Category C. It will be heard before a Judge and 2 Members. I direct that within 14 days of the sealed order the Respondent shall lodge an answer and, if so advised, a cross appeal. For the purposes of the full hearing the parties shall cooperate in compiling and agreeing by not later than 35 days prior to the date fixed for the hearing of the full appeal 4 copies of an agreed indexed and paginated bundle of documents material to the single issue now raised in this appeal.
15. The parties shall exchange and lodge skeleton arguments not less than 21 days before the date fixed for the appeal hearing. A chronology will be lodged at the same time by the Appellant or, by agreement, by the Respondent. There should be an agreed list of authorities with copies of those authorities prepared for the purpose of the appeal not less than 7 days prior to the date fixed for the hearing of the full appeal. There will be liberty to the parties to apply on paper on notice to vary or discharge this order. There will be a transcript in this case and finally any application for leave to appeal should be made to the Court of Appeal within 14 days of the sealed order.