United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS I SIMLER (One of Her Majesty's Counsel)
For the Respondent	MR P GREEN and MISS K DONNELLY (of Counsel) Instructed by: East Sussex County Council Legal Services County Hall The Croft Lewes East Sussex BN7 1AL


 


SUMMARY

Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke

Unfair dismissal – Reasonableness of dismissal

Misconduct dismissal – ET finding of fair dismissal. Whether perverse. Whether ET reasons were Meek-compliant. Whether ET entitled to find that employer has reasonable grounds for his belief in misconduct alleged.

HIS HONOUR JUDGE PETER CLARK

1. This is an appeal by Ms Mary Moult, the Claimant before the Ashford Employment Tribunal, against that Tribunal's reserved judgment, promulgated with Reasons on 28 March 2007 following a three-day hearing and a further day's deliberations in private, dismissing her claim of unfair dismissal brought against her former employer, the Respondent, East Sussex County Council Transport and Environment. We shall describe the parties as they appeared below.

Background

2. The Claimant was a long-serving employee of the Respondent, her employment having commenced in 1980. From 1 September 2005 the Tribunal found she spent three days a week as INTERREG Project Officer. That project, for which she secured funding, was designed to improve countryside access in East Sussex for persons with disabilities.
3. Until 1 October 2005 her direct line manager, the Head of Rights and Way and Countryside Management, was a Mr Kitchener. He retired and was replaced by Ms Vicki Lawrence in that role.
4. The events leading to the Claimant's dismissal in summary were these. Ms Lawrence prepared a report identifying a number of issues relating to the Claimant's conduct in post. She recommended the Claimant's dismissal. A Disciplinary Hearing took place before Mr Robson, Assistant Director of Policy on 1 August 2006. By letter dated 8 August he summarily dismissed the Claimant. His reasons for doing so set out in that letter related to what may broadly be described as (a) conflict of interest and (b) health and safety grounds.
5. Following dismissal the Claimant exercised her right of internal appeal to a panel of three Councillors. That Appeal Hearing before a panel shared by Councillor Tunwell was heard on 27 October 2006. By letter dated 2 November that panel dismissed her appeal. Throughout the disciplinary process the Claimant was represented by her trade union representative, Peter Croxford. At the Appeal Hearing witnesses were called on each side and the Claimant's representative had the opportunity to cross-examine witnesses called in support of the management case.

Conflict of Interest

6. The Respondent's code of conduct for employees, paragraph 5.3 provides:

"You must declare in writing to the appropriate Assistant Director any relatives or partners, or friends who are engaged in any business, which either currently provides services to the County Council or may do so in the future."

The Claimant was aware of that policy and made a nil return in November 2004

7. Her partner was Mr Simon Kunath. As part of the INTERREG project, a report was required on appropriate software and hardware to be used by persons with disabilities for taking notes on footpaths and the like. She considered Mr Kunath to be qualified to provide that service and on 7 July 2005 emailed Sarah Fineman of Personnel to seek advice about putting him forward as a potential contractor. The Claimant was referred to a Jonathan Campbell and later sought advice from Mr Ankers, Assistant Director Environment.
8. In the event, Mr Kunath tendered for the work and was successful, his quotation being lower than others who tendered. His interim report was considered by the Respondent to be of poor quality. He invoiced the Respondent for £1,500 which was authorised for payment by the Claimant and certified by Mr Tweed, a colleague.
9. On 11 October 2005 the Claimant required additional work for a meeting in France six days later. She commissioned that work from Mr Kunath, the Tribunal found effectively unauthorised, by writing to him at their home address. He produced this further work and invoiced the Respondent for an additional £450 on 10 November. That payment was signed off by the Claimant and also certified by Mr Tweed. The Tribunal found this additional work was clearly in breach of the Respondent's policies on conflicts of interest.

Health and Safety

10. In her annual appraisal report for the year ending 25 April 2005 the Claimant identified as a high priority a review of health and safety systems for footpath volunteers. Ms Lawrence, following her appointment, was anxious to discover what steps had been taken to ensure the health and safety of volunteers engaged in work such as clearing and maintaining footpaths in the county. She found the Claimant somewhat evasive and reluctant to attend a meeting to discuss this matter, so she commissioned an audit of health and safety activities across the group. The outcome of that review was severely critical of health and safety aspects of the Footpath Volunteer Scheme which led to limits being placed on their activities.

The Tribunal Decision

11. Having set out their findings of fact summarised earlier the Tribunal directed themselves as to the well-known Burchell test approved by the Court of Appeal in HSBC Bank plc v Madden [2000] ICR 1283 (CA) and later endorsed by the House of Lords on the Claimant's petition for leave to appeal in Beedell v West Ferry Printers Ltd [2001] ICR 965 (Note).
12. At paragraphs 32 to 33 of their Reasons the Tribunal said:

"32. Misconduct is a potentially fair reason for dismissal under Section 98(ii)(b) of the Employment Rights Act 1996. The employer must show that misconduct was the reason for dismissal and that:-

i. He believed the employee was guilty of misconduct;

ii. He had in his mind reasonable grounds upon which to sustain that belief; and

iii. At the stage which he formed that belief on those grounds he had carried out as much investigation into the matter as was reasonable in the circumstances.

33. The employer must therefore have a genuine and reasonable belief reasonably tested.

Adding:

34. When assessing whether these requirements have been met the Tribunal must ask itself whether what occurred fell within the 'range of reasonable responses' of a reasonable employer. This test applies in a conduct case both to the decision to dismiss and to the procedure by which that decision was reached. A Tribunal is not entitled to substitute its own view as to what the appropriate penalty would be."

13. Applying the law to the facts as found the Tribunal expressed their conclusion shortly at paragraph 35 thus:

"Having heard the evidence and read the document referred to in these reasons the Tribunal has unanimously concluded as follows:-

i. That the reason for dismissal was misconduct;

ii. That although after so many of years' service the decision may appear harsh, the Respondents had a reasonable belief that the Claimant was guilty of misconduct following a proper investigation and that the Respondent's decision fell within the range of reasonable responses."

14. Accordingly, her claim failed.

The Appeal

15. Before the Tribunal the Claimant appeared in person. Having set out her own Notice of Appeal, Wilkie J on the paper sift directed that the case proceed to an Appellant Only Preliminary Hearing. At that Preliminary Hearing, on which I sat with Members, the Claimant had the advantage of representation by Ms Simler QC under the ELAAS Pro Bono Scheme.
16. We permitted the case to proceed to a Full Hearing on the basis of what became amended grounds of appeal settled by Ms Simler and for which I gave permission to amend. That is the hearing before us today. Mr Green now appears on behalf of the Respondent with Ms Donnelly who appeared below.
17. Ms Simler has organised her submissions under three heads: first that the Tribunal failed to consider whether the Respondent had reasonable grounds for their belief that the Claimant was guilty of misconduct. Secondly, and to some extent overlapping the first ground of appeal, that the Tribunal failed to give adequate reasons for any implicit finding that the Respondent had reasonable grounds for their belief. Finally, a perversity ground, first on the legitimately arguable grounds (see Piggott Brothers & Co Limited v Jackson [1992] ICR 85 at 92) that there was no evidence to support a finding that the Respondent have reasonable grounds for their belief. Secondly, and impermissibly, we accept on Mr Green's submission (see Chiu v British Aerospace plc [1982] ICR 156) that a conclusion that the Respondents had reasonable grounds for their belief was contrary to the evidence.
18. In advancing that case Ms Simler has taken us to parts of the evidence before the Employment Tribunal designed to show that on the conflict of interest point (the Tribunal found, contrary to the view of Mr Robson, that the health and safety issue alone did not justify dismissal) (a) the Claimant had notified management, up to the Assistant Director, of a potential conflict of interest with Mr Kunath who was instructed to provide services to the Respondent, (b) she had not been informed that she must follow the Respondent's conflict of interest procedure and make a written declaration and (c) that a failure to do so was merely a technical rather than a substantive breach of the Respondent's rules.
19. Attractively as that factual scenario was played out by Ms Simler, Mr Green was able to counter each premise by reference to material before the Tribunal designed to show that (a) a breach of the conflict of interest procedure was admitted and thus the question for the Respondent was how serious was that breach, (b) that the second piece of work from Mr Kunath was commissioned by the Claimant (contrary to advice which she had earlier been given) with reference to no one and she authorised payment for that work, again certified by her colleague Mr Tweed; that this was a substantive breach of the Respondent's policy and offended the principle that she should be "whiter than white" as Mr Munn, to whom she went for advice, had told her and (c) that the Tribunal accepted that her action in commissioning the second piece of work was effectively unauthorised and a clear breach of the Respondent's policies which she ought to have given more thought to, as she was aware of the pitfalls of involving her partner in external work for the Respondent (Tribunal Reasons paragraphs 22 and 23).
20. We set out the rival positions of Counsel for this reason: it demonstrates the dangers of this Appeal Tribunal entering into the evidential arena which is the preserve of the fact-finding Employment Tribunal. On the grounds of appeal advanced by Ms Simler, we can state our conclusions shortly.
21. (1) We are satisfied that the Tribunal did consider the question as to whether the Respondent had reasonable grounds for their belief in the misconduct found, first by Mr Robson and set out in his dismissal letter of 8 August, and later upheld by the Internal Appeal Panel (see their Decision letter of 2 November 2006). They identified that question at paragraph 32(ii) of their Reasons.
22. (2) Whilst their conclusion at paragraph 35 is brief it must be viewed in the context of their earlier findings and the whole of the evidence to some of which we have been referred by Counsel as earlier set out. Seen in that way we are satisfied that the Tribunal considered the question raised and answered it permissibly in favour of the Respondent. There was evidence to support that finding as Mr Green submits. The Reasons sufficiently, in our view, state the Tribunal's conclusion so as to pass the Meek test.
23. (3) Whilst we agree with the Tribunal that the decision to dismiss may seem harsh in the case of an employee with 26 years' service, they were entitled to take into account the need for absolute transparency in the dealings of local authority employees to which Councillor Tunwell adverted in his evidence; they accepted that evidence. The Tribunal were, in those circumstances, unable to say that dismissal for the reasons put forward by the Respondent fell outside the range of reasonable responses. On appeal, we cannot say that that conclusion was legally perverse (see Yeboah v Crofton [2002] IRLR 634).
24. In these circumstances this appeal fails and is dismissed.