London Borough Of Camden v Edwards [1996] UKEAT 328_95_2702

EAT

London Borough Of Camden v Edwards

[1996] UKEAT 328_95_2702 · 1996-02-27

JUDGE BUTTER QC:

This is an appeal by the London Borough of Camden in respect of a decision of an Industrial Tribunal held at Bedford, in which, after the Tribunal had sat for three days, they decided unanimously that the Applicant, Mr Edwards, had been unfairly dismissed. Their reasons for that decision were sent out on 13 February of last year.

There was later a remedies decision on 5 July. The Tribunal unanimously decided that there should be a 60% reduction in compensation on the basis that if the shortcomings on the employers' part which they had earlier found to have existed had not been present, there would still probably have been a dismissal which was fair. It is against that decision that Mr Edwards appeals.

So far as the initial decision is concerned, in their extended reasons the Tribunal set out the background with such detail as was necessary. Mr Edwards had worked for the Local Authority from January 1992 as a Care Worker at Stockgrove Park School near Leighton Buzzard. He was dismissed for gross misconduct in February 1994. The School was a special school for boys with particular behaviourial problems. At the relevant time there were some 25 boys in the school, living there during the week and going home at weekends. The School was staffed by six teachers, four welfare assistants and some 8 care staff of whom Mr Edwards was one.

In March 1993, Mr Edwards had been suspended from duty in circumstances which are briefly referred to in paragraph 2 of the extended reasons. The matters which primarily occupied the attention of the Tribunal occurred towards the latter part of 1993. On 19 November of that year, the Head of the School interviewed a boy who has been referred to as child `A', who alleged that Mr Edwards had on the previous day sexually interfered with him during a basketball session in the school gym. As a result, Mr Edwards was suspended. The Local Authority decided to appoint Mrs Fenn, their Head of special educational needs, to carry out a preliminary investigation. On 13 December, Mr Edwards was arrested and interviewed about the allegations by Thames Valley Police, who by that time had already interviewed child `A'. The interview with child `A' had been video-taped in accordance with what has become the normal procedure. When arrested, Mr Edwards flatly denied that there was anything at all in the allegations made by child `A' and in the event no prosecution was brought against him. Mrs Fenn saw the video recording but she did not interview child `A' or any other child in the school, or make any enquiries of any of the boys who had been with, or in the vicinity of child `A', at the basketball session on 18 November.

Mrs Fenn interviewed Mr Edwards on 7 January 1994 and thereafter recommended that there should be a full disciplinary hearing. This took place on 10 February 1994 and was chaired by a Mr Peter Mitchell. Mr Edwards was represented by a full-time union officer, Ann Robertson, who was a qualified solicitor (though it appears that she had not practised as a solicitor). A police officer, Detective Inspector Faulkner, gave evidence, as did a Mr Steve Norman. Mr Edwards in turn gave evidence and again flatly denied that there was any truth in the allegations made. On the following day Mr Mitchell wrote to Mr Edwards indicating that he was satisfied on the balance of probabilities, that he, Mr Edwards, had sexually abused child `A' in the manner alleged, and accordingly Mr Edwards was dismissed with immediate effect.

Mr Edwards exercised his right of appeal against the dismissal. That was heard by a Staff Appeals Board, consisting of three councillors, on 12 April 1994. Again, Mr Edwards was represented by Miss Robertson and evidence was again given by Detective Inspector Faulkner and by Mr Norman. A point to which I shall refer later: Miss Robertson asked to call two witnesses who had come to the hearing, but her application to call them was refused. The appeal was rejected and Mr Edwards' dismissal was confirmed.

In paragraph 8 of their extended reasons, the Tribunal go through a number of the arguments and matters relied upon, as indeed they do in paragraph 9. It may be convenient, however, if I go simply towards the foot of paragraph 9, where the Tribunal consider the effect of Section 57(3) of 1978 Act , and they reach the conclusion that:

"9. "... any reasonable local authority employer would have recognised that it was right to explain to a young and relatively inexperienced care worker in the applicant's position that there were circumstances in which those representing his interests could view the video evidence which was such an essential element in the decision whether his career as such should be brought to an early end: and that in failing to do so they acted unreasonably and therefore unfairly."

In paragraph 10 the Tribunal recognises the difficult situation in which the Local Authority was placed. In paragraph 11 they go on to deal with two other points which they regard as of importance, and in respect of which they felt the Local Authority should be criticised. First, the refusal to allow Miss Robertson to call the two witnesses to the Appeal Hearing. Further, they considered that any reasonable employer would have found some way at least of asking the boys who had been in the vicinity "did you see anything?" and assessing their response as part of the proper investigation of the allegations which had been made.

Before this Tribunal today, Mr Ramsden on behalf of the Local Authority has presented a skilful and forceful argument. He has argued among other things that the Industrial Tribunal sought to impose on the Local Authority a positive duty to advise and/or guide Mr Edwards in the preparation and presentation of his case at the disciplinary hearing and the subsequent appeal, and that they were going beyond that which was reasonable in the circumstances.

The video evidence was undoubtedly of great importance. We have been given conflicting information as to why it was not seen by Mr Edwards' representative. Whatever the reason, it is apparent that she had little scope for a successful cross-examination of Mr Faulkner and Mr Norman without having had the advantage of seeing that video. This was a point of which the disciplinary tribunal and the appeal tribunal below must have been aware. The difficulty is that there is much to be said for the argument that the die had been cast against Mr Edwards, once the people who have expertise in relation to such matters, had seen the video and given evidence as to their belief that child `A' was telling the truth. We do not think it is appropriate for us to lay down guidelines as to the use of videos by local authorities or other employers. We do consider however that there is some force in respect of the criticisms directed by the Tribunal at the Local Authority in this respect. It seems to us to be of importance, particularly where video evidence and the assessment of video evidence by experts is likely to form a major part of a decision to dismiss an employee, that the latter should know of his rights or potential rights in relation to the video, to give him a proper opportunity of challenging the expert evidence.

We have considered the case of Khanum v Mid-Glamorgan Area Health Authority

[1979] ICR 40

. This is helpful, but is distinguishable on its facts. The law must move with the times to take into account factors such as the importance of video evidence. In relation to the further ground of appeal, we do not consider that the Tribunal misdirected itself in relation to the burden which was on the Local Authority. So far as interviewing other children is concerned, there were obviously difficulties about this; the Industrial Tribunal took those difficulties into account in reaching the decision which it did. So far as the exclusion of oral evidence at the appeal hearing is concerned, we attach importance to this. Mr Edwards' representative gave notice before that hearing that she wanted to call two witnesses: at the hearing she applied, but her application was refused.

Those witnesses were not there just to give evidence as to extracts from the day books but to give evidence in relation to their knowledge of, and dealings with, child `A'. We do not know, neither did the Industrial Tribunal know, neither did the Appeal Committee know, precisely what evidence would have been given. At least there was there a possibility, it may be a real possibility, for Mr Edwards to adduce direct evidence concerning child `A's' character which might have persuaded the Appellant committee to view the expert evidence which they had received in a different light. In the end, this Tribunal today is unanimously of the view that the Industrial Tribunal did not misdirect itself or reach a conclusion it was not entitled to reach. We come to the conclusion accordingly that the Local Authority's appeal fails and must be dismissed.

In relation to Mr Edwards' appeal, the Tribunal set out the decision in paragraphs 6, 7 and 8 of the reasons which were given in relation to the remedies hearing. They said in paragraph 6:

"6. However, it has been necessary to consider whether the applicant would still have been dismissed (and fairly dismissed) if the short-comings on the respondents' part on which our finding of unfair dismissal is based had not occurred. There are of course no certainties in attempting to answer this question and the exercise is inevitably speculative to a degree."

In paragraph 7 they then pose a number of questions which called for consideration. At paragraph 8 they said:

"8. Doing the best we can in consideration of those questions we have concluded that there must be a 60% probability that the applicant would still have been dismissed - and fairly so and we accordingly reduce by that percentage the amount of the compensatory award which would otherwise have gone to the applicant."

The Tribunal in reaching that conclusion clearly dealt with the case on the basis that they had found earlier procedural errors, as distinct from substantive faults. Today this Tribunal is unable, with respect, to accept Mrs Hamid's argument that defects were of such a kind as to be substantive not procedural. Mrs Hamid cannot in these circumstances identify any error of law on the part of the Tribunal and rightly does not seek to persuade us that their decision in this respect was perverse. In all the circumstances we are again unanimously of the view that this appeal fails and accordingly must be dismissed.