Sun v East Sussex County Council [1992] UKEAT 470_90_2511

EAT
Sun v East Sussex County Council
[1992] UKEAT 470_90_2511 · 1992-11-25
MR JUSTICE TUCKER: This is an employee's appeal against a decision of an Industrial Tribunal sitting at Ashford, Kent whereby the Tribunal held that the application failed and was dismissed. The Appellant, Mr Carl Sun, alleged before that Tribunal that he had been unfairly dismissed by the Respondent, the East Sussex County Council from his employment as a Physics Lecturer at the Hastings College of Art and Technology. The Industrial Tribunal examined that complaint on four days in June and July 1990. They found that the Appellant had been employed by the Respondents between the 1st September 1977 and the 29th January 1990.The Hastings College of Art and Technology is a College of Further Education, it is attended by approximately 6,000 students on full-time, part-time, evening and short courses. The complaints resulting in the Appellant's dismissal from that employment were, as the Tribunal found, complaints from a number of girls, whether students, or part-time or simply attending for other purposes the college, that he had been over familiar with them. There was no allegation of gross familiarity, no allegation of physical sexual harassment or anything as serious as that, but there were allegations by a number of girls that they had been pestered and sexually harassed to some extent by the Appellant, who it was said, had been over familiar with a number of them.Those complaints were taken up by Mr Ball from the College, who interviewed the Appellant in the presence of his trade union representative on the 20th June 1989. The matter was then considered by a Committee of Governors chaired by Mr Judge. I will list the number of tribunals, whether domestic or other tribunals, who have examined this case. Firstly, the hearing before the Committee of Governors, which took place on the 25th and 29th September 1989. The Committee heard evidence from a great number of witnesses, they believed the evidence of all the witnesses called on behalf of the Respondent and having regard to all the matters put before them they concluded that the Appellant could not continue to teach at the College. The decision was taken to dismiss him but that was subject to the confirmation of the Education Authority. The next Tribunal to consider the problem was the disciplinary panel of the Local Education Authority. They arranged to sit on the 10th November but the hearing was postponed because of the Appellant's inability to attend. The meeting was reconvened for the 12th January 1990. The panel met on that date and witnesses attended but it was decided to give the Appellant a further chance of being heard because he still did not appear. On the 12th January a letter was written to the Appellant in these terms:
"This is to give you a last opportunity to decide to attend or be represented at the hearing, or, alternatively, to submit medical evidence as to why you are unable to attend the hearing. The Disciplinary Panel have also decided that the County Education Officer should obtain further advice through a further medical consultation with you, the outcome of which will be submitted to the panel on 29 January 1990 ... If you fail to keep an appointment for a further medical consultation and to attend the hearing on 29 January 1990 or to submit medical evidence explaining your absence, the Disciplinary Panel will deal with the decision of the Governors of the college in your absence."
That was a plain enough letter. The Appellant's General Practitioner wrote a letter to the Respondent's Medical Advisor, it is dated the 23rd January, saying that the Appellant was not in a fit state to be questioned, but no further medical evidence was presented to the panel; no representative appeared before it and the Appellant made no attempt to do so himself. Accordingly, on the 29th January the panel sat and having heard evidence, though not of course evidence on behalf of the Appellant it confirmed the decision reached by the Committee of Governors.The Appellant was dissatisfied with that decision. He made application to an Industrial Tribunal alleging that he had been unfairly dismissed, and seeking re-instatement and compensation. That Tribunal sat to hear the matter on four days in June and July 1990 and it is apparent from the notes of their decision that they took very great care over the matter. Their Full Reasons are carefully set out and they run to no fewer than 17 pages and 52 paragraphs. They clearly went into it with very great care and in great detail and reached the decision that we have already described. Not content with that the Appellant sought a review. He applied for that to take place and the Tribunal agreed to review their decision and did so on the 19th October. They set out their Full Reasons on that occasion, again in considerable detail running to over 4 pages. The unanimous decision reached by the Tribunal on that occasion was that although they amended their decision in a number of factual respects at specific paragraphs, they otherwise confirmed their decision that the application failed.The Appellant was dissatisfied with that decision. He appealed to this Tribunal. A Preliminary Hearing was heard on the 4th February 1991. The President of this Appeal Tribunal and the Members sitting with him heard the Appellant in person, and decided that the matter should go forward to a Full Hearing. That has now taken place, on the 25th November 1992.So we are the fourth Tribunal to consider this question of the Appellant's dismissal. He has made very detailed and articulate submissions to us. He has referred to the evidence, he has referred to the findings of the Tribunal, which he criticises and he has set out his argument in a skeleton argument which he has prepared and set before us.Before we can interfere with the decision of the Tribunal it is, of course, necessary for the Appellant to persuade us that the Tribunal either misdirected itself in law or that it reached a decision of the facts which was perverse. We are satisfied that there is no point of law disclosed in the arguments presented by the Appellant such as would justify us in upsetting the Tribunal's decision. He asks us to review the facts upon which they reached their decision. We take the view that this appeal is an attempt by the Appellant to achieve a re-hearing and a review of the evidence. We are not able to, nor entitled to, do that save to the extent of examining the question whether there was some evidence which would justify the Tribunal's conclusions. Provided some evidence such as that exists it is not for this Tribunal to evaluate it. We are by no means persuaded that the Tribunal acted perversely in the sense set out in the cases and most recently in the case of Piggott Bros & Co Ltd v. Jackson [1991] IRLR 309 and in particular at paragraph 17 at p.312 of the Judgment of the Master of the Rolls in that case. It is clear to us that the Tribunal had evidence before them upon which to reach the decision which they did reach. They applied the correct test as set out in the well known line of cases, starting with the case of British Home Stores v. Burchell [1980] ICR 303 and approved in the case of W Weddell & Co Ltd v. Tepper [1980] ICR 287. They applied, as we have indicated, the tests which they ought to have applied, and they did not misdirect themselves in law. It seems to us that, against all the evidence, the Appellant has obsessively persuaded himself, and now seeks to persuade us, that the many Tribunals who have examined his case have reached wrongful, unjust, dishonest and perverse decisions. We are only concerned with that allegation in so far as it affects the decision of the Industrial Tribunal. We find no substance in it. It is not sufficient to assert, as he does, in respect of most if not all of the witnesses that they were untruthful or motivated against him. It is not sufficient for him to assert, as he does that all the tribunals and in particular the Industrial Tribunal reached a perverse decision. Assertions are not good enough - they have to be founded upon merit. There is no merit in this appeal and it is dismissed.