Bennett v East Sussex County Council [1994] UKEAT 650_92_1102

EAT
Bennett v East Sussex County Council
[1994] UKEAT 650_92_1102 · 1994-02-11
MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against the decision of the Industrial Tribunal held at Brighton on the 20th, 21st, 22nd and 23rd January 1992. The Tribunal unanimously decided that Ms Bennett, the Applicant, was dismissed for a substantial reason of a kind such as to justify her dismissal from the position which she held. They held that the dismissal was not unfair and her claim failed against her former employer, the East Sussex County Council.At the hearing Ms Bennett was represented by a friend, Mr Naredo. Ms Bennett was dissatisfied with the decision. A Notice of Appeal was submitted to this Tribunal on the 3rd May 1992, signed on Ms Bennett's behalf by Mr Naredo.Since the appeal was notified further documents have been submitted by Mr Naredo to the Tribunal on behalf of Ms Bennett.By a letter dated the 8th February 1994, Mr Naredo informed the Tribunal that, due to health reasons, it was not possible for him to appear "in person" on Ms Bennett's behalf today. Instead, he enclosed a written submission in support of the appeal and requested that this should be available to the Tribunal which heard the appeal. The position is that neither Mr Naredo, on behalf of Ms Bennett, nor Ms Bennett herself, have attended the hearing. In accordance with the request in the letter of the 8th February we deal with this appeal on the basis of written representations.Each Member has read the documents in the case, including the submission of written representations. Because of the length of the documents submitted by Mr Naredo this has been a time consuming task. But it is an important one, so that the Tribunal knows the submissions of a party, who, on account of illness or for any other reason, is unable to attend personally.The background to the dispute is this: As long ago as the 30th July 1991, Ms Bennett, a class teacher, with responsibility for music teaching at the Chiddingly County Primary School in Chiddingly, East Sussex, presented a complaint to the Industrial Tribunal against the County Council for unfair dismissal. She had been employed from January 1985, suspended on full pay on the 8th March 1989 and her contract was terminated on the 31st August 1991.The Council in its Notice of Appearance agreed on the date of termination of the contract, but, in their submission, the relevant employment began on 1st September 1979. Nothing much turns on that. What matters is that, in the Notice of Appearance, the Council agreed that Ms Bennett had been dismissed. The reason for dismissal was some "other substantial reason" within the meaning of the statutory provisions, namely, irretrievable breakdown in working relationships and personality difficulties.The Council's side of the case was set out in detail in an attached document. It is unnecessary to go into the details of the dispute since the matter was examined with commendable thoroughness by the Industrial Tribunal at the end of the four day hearing in January 1992. The decision, which was notified to the parties on the 28th March 1992, runs to 14 closely typed pages of reasons, with a very comprehensive review of all the evidence and a statement in clear terms as to the findings of fact and the conclusions of law.In our view, the Tribunal took enormous pains to ensure that there was a full investigation of the allegations formed a balanced view of the position. The Tribunal states early on in their decision details of the evidence heard on the issue as to whether there had been an irretrievable break down in working relationships and personality difficulties. They list the people who gave evidence on behalf of the Council and the names of witnesses who were former colleagues, who gave evidence for Ms Bennett. Ms Bennett gave evidence. Statements of evidence were also given by a parent and by the Area Primary School Adviser for Ms Bennett. The Tribunal summarised the documentation put before them containing two files with many documents referred to during the hearing.In paragraph 8 of the decision, the Tribunal began their statement of the events which gave rise to the dispute. They expressly said that no useful purpose would be served by chronicling and detailing every incident, interview or other step which took place in the three years or more before the hearing by the panel in April 1991 when Ms Bennett was dismissed. They noted that the matter was well documented. What they did was to deal with certain of the events and matters which they had heard from witnesses or which were contained in the documents and set them out in chronological order running to 38 sub paragraphs. It is not necessary for us to repeat all those matters in the decision. The Industrial Tribunal came to make its findings of fact in paragraph 10 onwards. The Tribunal said this:
"It is quite evident that Ms Bennett, unfortunately, became suspicious of those who did not agree with her or did not do what she thought they should. She ascribed to them wrong intent and, in one instance, a bad intent. Innocent acts or omissions, whether of any consequence or not, assumed importance and were seen by her as showing ulterior motives."
They give details of an example of that. They say in paragraph 11:
"We are unanimous in finding, and we have no doubt, that Ms Bennett was dismissed for the reasons explained in the letter written to her on 1 May informing her of the decision of the Panel. We are also unanimous in finding that they constituted a substantial reason of a kind such as to justify her dismissal from the position which she held - Section 57(1) of the Employment Protection (Consolidation) Act 1978 ."
They turned to Section 57(3) of the Act to decide the question whether the dismissal was fair or unfair in all the circumstances, having regard to the size and administrative resources of the Council's business or undertaking and in accordance with equity and the substantial merits of the case. They then referred to the position in these terms:
"What was written by Ms Bennett in her Originating Application, gives confirmation, if it were needed, that the governors had ample grounds for coming to the decision which they did, and that, after a very full hearing, the Panel were justified in their decision to dismiss."
Those complaints against the Panel were referred to in Ms Bennett's application.The Tribunal accepted, at paragraph 15, that the actual suspension of Ms Bennett could have been much better handled than it was. Unfortunately, this was due to lack of experience. It must be said also that the attitude and demeanour of Ms Bennett at that time did not improve matters.Reference is then made in paragraph 16 to the fact that Ms Bennett was counselled and advised, including professional advice. She was well aware of the case against her and was given every opportunity to make representations or call evidence before the Panel which she did. It was her choice not to attend the Governors' hearing notwithstanding that she had been given proper and ample advice. At the Panel hearing she was represented by her friend Mr Naredo who also represented her at the Tribunal hearing.The Industrial Tribunal concluded in paragraph 17:
"We find that in the particular circumstances of this case, the decision to dismiss the applicant was within the band of reasonable responses which a reasonable employer might have adopted; and having regard to the matters to be taken into account and the principles to be applied in accordance with Section 57(3) we further find that the respondents did not act unreasonably in dismissing Ms Bennett for the reason found."
The grounds of appeal against the decision go into considerable detail as to how it will be contended on the appeal by Ms Bennett that the Tribunal's decision was inconsistent with the evidence and that the decision was taken in the absence of evidence on matters and the absence of essential witnesses. Arguments were advanced in the grounds of appeal that in its decision the Tribunal did not have regard to the spirit of the 1978 Act, in particular to question whether dismissal was fair or unfair being made with regard to all the circumstances. It was argued in the appeal that the Tribunal had disregarded essential circumstances referred to in the grounds of appeal. The appeal notice states that:
"A fully detailed comparative analysis of the factual evidence available and the Tribunal's subjective version of events, with appropriate cross-references, will be supplied, if required, in support of the above contention."
Those are the main grounds on which the matter is sought to be appealed. There are other matters of detail, which it is not necessary to state in this judgment.What has been submitted since by Mr Naredo, on the 8th February, are documents which comment on the decision in detail. There are comments, paragraph by paragraph, on the decision of the Tribunal. It is not necessary to read out all the detailed complaints that are contained in the documents. One of the documents with the covering letter runs to 16 pages, another document to 6 pages. The reason we do not find it necessary to go into all the detail of the complaints is this: the jurisdiction of this Tribunal is limited. It is not a Tribunal which re-hears the case argued with such thoroughness on the facts and law before the Industrial Tribunal. By statute the Appeal Tribunal's jurisdiction is limited to errors of law which arise in the proceedings or out of the decisions of an industrial tribunal. We have looked at the written submissions, the grounds of appeal and the very thorough decision of the Industrial Tribunal. We are unable to find any error of law in the decision of the Tribunal. The findings of fact cannot be appealed. When the Tribunal came to apply the law to the facts they correctly addressed themselves to the two relevant subsections of Section 57 and stated, contrary to Ms Bennett's submissions, or the submissions made by Mr Naredo on her behalf, that they concluded that there was a substantial reason ie the irretrievable breakdown in working relationships and the clash of personalities. They decided that dismissal was, in all the circumstances, a reasonable response which a reasonable employer might have adopted in this case.It is a sad story. It may be that sympathy should be extended to everybody concerned in these unfortunate events. It is not for us to carry out a reinvestigation of the facts, such as we are invited to by Mr Naredo in his submissions. There is not an error of law reasonably capable of argument at a full hearing. On this preliminary hearing and on the basis of the written representations before us, we dismiss the appeal.We should go out of our way to mention, in dismissing this appeal, that we have seen no evidence or grounds for making the allegations in the written submissions against the Chairman and Members of the Tribunal. So far as we can see from the decision to which I have referred this matter was considered with great thoroughness, impartiality and patience on the part of the Tribunal. There is no ground for seeking to impugn the competence or integrity of any of the Members of the Tribunal.