Cornelius v London Borough Of Hackney [1996] UKEAT 1061_94_1201

EAT
Cornelius v London Borough Of Hackney
[1996] UKEAT 1061_94_1201 · 1996-01-12
MR JUSTICE TUCKER : This is an employee's appeal from the decision of the Industrial Tribunal sitting at London South, delivered 12 May 1994 after a hearing lasting 21 days. The Tribunal unanimously decided:
"(l) The Respondent did not discriminate against the on racial grounds contrary to the provisions of the Race Relations Act 1976 and
(2) The respondent unfairly dismissed the Applicant contrary to the provisions of the Employment Protection (Consolidation) Act 1978 (as amended); and, the contributed to the said dismissal to the extent of 50%."The Grounds of Appeal are of the Appellant's own composition - they are set out in his Notice of Appeal, and are amplified in a later document which also sets out his argument, which he has presented in person. It appeared at one stage that these grounds contained no point of law. However the one point which has been argued before us is that the Tribunal's decision was perverse.The Appellant has firstly submitted to us that his complaints of racial discrimination and breaches of the Employment Protection (Consolidation) Act are technical matters, and that the only matter of substance is the Tribunal's finding that he contributed to his dismissal to the extent of 50%.We find the Tribunal were correct in deciding that the Respondent did not discriminate against the Appellant on racial grounds. The Appellant submitted that the Tribunal did not address his complaints of breaches of the Employment Protection (Consolidation) Act. But in our opinion this complaint is immaterial in view of the Tribunal's finding that the Respondent unfairly dismissed the Appellant, and he has lost nothing by any failure to make a separate finding in respect of the alleged breaches.Therefore we concentrate our judgment on the question whether the Appellant has shown that the Tribunal's decision on contributory fault was perverse. We approach the matter with considerable caution, having regard to the decisions in Hollie v Plysu Ltd. [l983] IRLR 260 and Yate Foundry Ltd. v Walters [1984] ICR 445 . We would not lightly interfere with the decision of an Industrial Tribunal on such a matter, particularly where, as here, the hearing took so long, and where, as we recognise, the Tribunal had the advantage of seeing and assessing the witnesses and of considering a great number of documents. That said, we have had the opportunity of seeing and hearing the appellant address us, which he did in a most helpful, articulate and impressive manner.The Appellant is an Accountant by profession. He was employed by the Respondents for 10 years, from between July 1982 and July 1992. His work with them was as an Internal Auditor. In that capacity it was his duty to be vigilant and investigative, and to report any irregularities of which he became aware. It was a job the rigorous performance of which might tend to make him unpopular with some of his colleagues. Apart from the matters giving rise to the present proceedings, the Appellant gave no cause for complaint. Indeed, the Tribunal found that he performed his duties in a competent and professional manner, and that whatever he did, it was not done for the purposes of personal gain or with any improper motive. He did what he did out of what he genuinely believed to be a crusade against corrupt practices; and the perceived unwillingness of the senior managers to take any action in relation to such practices. This arose out of the discovery by the Appellant of certain improper and illegal activity by a stores officer employed by the Respondents; referred to as Mr. L. The Tribunal found that Mr. L had acted corruptly and in a manner detrimental to the Respondents' interests. They helpfully summarised the facts in Paragraph 16 of their decision,and we do not need to repeat them.When they came to consider the complaint of unfair dismissal, the Tribunal set out their finding in Paragraph 19. They found that there were a number of procedural irregularities which were unfair to the Appellant. Amongst these was a delay of 10 months in commencing disciplinary proceedings, which was in our view not only unfair in procedural terms, but also indicative of the paucity of substantive justification for dismissal. In this regard we discern a crucial gap in the Tribunal's reasoning, between their findings of procedural (or other) irregularities, on the part of the Respondents and their findings of contributory fault on the part of the Appellant. There is no express or clear finding as to the reason for the Appellant's dismissal. The Tribunal record their view that the view of Hackney's management was that the relationship between the Respondents and the Appellant had so broken down that the Respondents believed that the Appellant had no viable future as their employee. The Tribunal having noted that this was the Respondents' view make no finding on it.There is no cross-appeal against the Tribunal's finding that the Appellant was unfairly dismissed by the Respondents. The conclusion which the Tribunal reached on contribution was as follows:
"He (the Appellant) genuinely felt that he had a duty to uncover corruption. However, he could and should have acted through the proper channel of communication with management. It was highly irresponsible and unprofessional of him to pass on to Councillor Lewis and to his union representative the documents with his unflattering remarks about his colleagues. Even if he had been unaware of the further distribution of these documents to Mr. Black, he should have anticipated the probability of such wider distribution. We assess his contribution at 50%"
It is to be noted that it was the Respondents' case that the Appellant was not dismissed for making false allegations, but by reason of the publication of the memoranda and the tone of the annotations made thereon. (See Paragraph 10 of the Decision).In view of this, and of the Tribunal's finding on contributory fault, it is highly material to consider the reasons for, and the nature of(a) the publication and(b) the annotations. As we have already observed. the Tribunal found that the Appellant did not act with any improper motive.The publication to Councillor Lewis was made following her letter of request to the Appellant of 17 October 1990. She was working as Chairman of the Performance Review Sub-Committee. She had become very concerned about the investigation of the stores irregularities. She asked the Appellant to furnish her with the history of events and any reports that were not passed to members. The Tribunal found that prior to that letter there had been no contact between the Appellant and Councillor Lewis. They found that the Appellant, through his union, sent a copy of his Affidavit and supporting documents to Councillor Lewis, and that copies of the Affidavit were sent to the Conservative and Liberal representatives on the committee by the Appellant's union representative. Councillor Lewis later presented the documents to the Respondents' Chief Executive, Mr. White. Copies of those documents, except for the Affidavit, were subsequently found in the deputy convenor's desk.There is a high duty upon local government officers in the Appellant's position to report dishonesty in any form, and to persist if need be in ensuring that it is brought to the attention of those in authority and that appropriate action is taken. (See e.g. Wai Yu-tsang v R [1991] 4 AER 664). It is difficult to see how the Appellant could be criticised for passing the documents in his possession, all of which related to his duty to uncover corruption, to the Chairman of the Committee which was concerned in investigating the matter, and who had expressly requested to see them. In our opinion it was quite unreasonable, and wrong to the point of perversity, for the Industrial Tribunal to categorise such conduct as "highly irresponsible and unprofessional". Indeed this view is inconsistent with the finding, at paragraph 20(3) that "the Applicant's communications with the councillors should not have formed part of the charges against him."Equally we are at a loss to understand why the Appellant should be criticised for sending the documents to his Union in order to obtain advice from them, if he was unable to resolve the matter satisfactorily by other means.The contents of the Appellant's Affidavit and the annotations which he made upon memoranda, were certainly uncomplimentary towards the Respondents' officials. These annotations were made on his own working papers, with no thought to their being seen by others. He might have been wiser to have moderated his comments. We accept that it would be contrary to an auditor's training to delete them. As the Tribunal found he was not motivated by self-interest or any improper purpose. His motive was to bring to justice what he perceived to be, and what the Respondents now acknowledge to have been, corrupt irregularities. He was doing what he considered to be right.In these circumstances, we consider that the Tribunal had no basis for and were quite wrong in concluding that the Appellant contributed to his dismissal, let alone that he did so considerably. In our opinion this is one of those exceptional cases where we should interfere with the Tribunal's finding, despite our reluctance to do so. In our judgment the only reasonable conclusion to have reached, and the conclusion which we reach, is that the Appellant did not contribute to any extent to his dismissal. We so declare, and we allow the appeal accordingly. The Appellant will be compensated in full, without any reduction.We ought to add that since the hearing, the Appellant has submitted copies of all the relevant documents which were before the Industrial Tribunal, so that we believe we have had all the material which was before the Tribunal. We understand that the Appellant has notified the Respondents of this course of action.