Barrett v London Borough Of Lewisham [1997] UKEAT 1312_96_3004

EAT
Barrett v London Borough Of Lewisham
[1997] UKEAT 1312_96_3004 · 1997-04-30

JUDGE PETER CLARK :

This is an appeal by the applicant before the London (South) Industrial Tribunal sitting on 25th April 1996, Mr Barrett, against that tribunal's decision to dismiss his complaint of unfair dismissal against his former employer, the London Borough of Lewisham ["the Council"]. Extended reasons for that decision are dated 7th October 1996.The appellant commenced employment with the Council on 20th July 1987, and in 1988 he became a glazier in its Direct Labour Department ["DLD"]. In 1994, with the demise of the DLD, the appellant was given notice of termination of his employment by reason of redundancy to take effect on 19th June 1994. However, his employment did not terminate on that date. He was offered and accepted a temporary contract as a security officer in the Housing Department commencing on 20th June 1994. This was followed by a further temporary contract as a senior caretaker commencing on 11th July 1994. He continued in that post until 30th May 1995, shortly before which date he was offered a permanent residential caretaker's post.It was the practice of the Council to ask applicants for residential caretaker posts to complete a form asking whether the applicant has any previous convictions, cautions or prosecutions pending. The appellant completed such a form on 23rd May 1995, answering in the negative the specific question:
"Do you have a prosecution pending or have you ever been convicted at a court or cautioned by the police for any offence?
A police check was then carried out which revealed that the appellant had eight convictions involving 12 separate offences in the Dorset area between 1977 and 1984. Two were for possession of drugs and allowing premises to be used for drug-taking. All the convictions were spent under the terms of the Rehabilitation of Offenders Act 1974 .That information did not arrive until November 1995. On receipt, the Council wrote to the appellant on 27th November 1995, in these terms:
"Dear Derek,
As you are aware the post of resident caretaker is subject to a police check clearance process. Arising from this there are some queries which need to be discussed with you.Can you please attend Housing Personnel, Capital House at 10.00 am on Monday, 4th December 1995. You will be seeing myself and Dean Shoesmith, Head of Human Resources. You may bring a friend of Trade Union Representative with you if you wish."The letter was signed by Bev Jones, Neighbourhood Manager.At the meeting held on 4th December 1995 the appellant was accompanied by a trade union representative. He was told that he failed to meet the Council's requirements under its procedure for the disclosure of previous criminal convictions and he was dismissed.He sought to appeal that decision, but was told that he had no right of appeal in these circumstances.

The tribunal decision

The tribunal rejected the argument advanced on behalf of the appellant, first that the job of resident caretaker was not covered by the Rehabilitation of Offenders Act (Exception) Order 1975 ["the Order"]; and secondly, that the dismissal was in any event unfair. Further, the absence of an appeal hearing was not, so the tribunal held, unfair in the circumstances of this case.His complaint was dismissed.

The Appeal

Mr Hodkinson, on behalf of the appellant, takes these points in this appeal.(1) Failure to disclose spent convictions .S.4 (3) of the Rehabilitation of Offenders Act 1974 provides:
"(3) Subject to the provisions of any Order made under subsection (4) below ... (b) a conviction which has become spent or any circumstances ancillary thereto, or any failure to disclose a spent conviction or any such circumstances, shall not be a proper ground for dismissing or excluding a person from any office, profession, occupation or employment, or for prejudicing him in any way in any occupation or employment"
The Order was made under subsection (4) of the Act to provide for exceptions from the provisions of subsection (3). Included amongst those exceptions in Schedule I paragraph 14 of Part II of the Order was this:
"14. Any office or employment concerned with the provision to persons aged under 18 of accommodation, care, leisure and recreational facilities, schooling, social services, supervision or training, being an office or employment of such of a kind to enable the holder to have access in the course of his normal duties to such persons, and any other office or employment the normal duties of which are carried out wholly or partly on the premises where such provision takes place."
Despite Mr Hodkinson's submissions, we are satisfied that the tribunal was entitled to conclude that the post of residential caretaker in a block of Council flats fell within the exception contained in paragraph 14.(2) Internal Appeal .So far as the internal appeal is concerned, Mr Hodkinson submits that had the appeal process been permitted by the respondents, then it would have been open to the appellant to argue that he ought to be re-deployed under the Council's re-deployment procedures.We are not satisfied that this point was raised before the Industrial Tribunal, and under the ordinary principles, is not a matter which can be raised today.The position is that although the absence of a contractual appeal may lead to a finding of unfair dismissal. See West Midlands Co-operative v Tipton [1986] IRLR 112 , a dismissal in the absence of a contractual appeal is not necessarily unfair. See Westminster City Council v Cabaj [1996] IRLR 399 . In that case the Court of Appeal held, following Polkey vAE Dayton Services Ltd [1988] ICR 142 , that failure to entertain a contractual appeal whereby the appellant was denied an opportunity of showing that the reason for dismissal was not sufficient may render the dismissal unfair. However, where a reasonable employer would consider that an appeal would be futile the dismissal may be fair.Applying that approach, and having considered the argument presented to us by Mr Hodkinson, we have concluded that this tribunal was entitled to take the view that the absence of an internal appeal was not such as to render this dismissal unfair in the particular circumstances of the case.(3) Redundancy payment .The form IT1 completed by the appellant, then represented by his trade union, claimed unfair dismissal only. However, in the details of complaint it is said:"In 1994 my post became redundant".In their summary reasons dated 4th July 1996, the tribunal indicated a provisional view, without the point apparently being argued, that the appellant was entitled to a redundancy payment.That view is not repeated in the substantive decision and extended reasons of the tribunal. On an application for review the appellant raised the question of a redundancy payment. In a decision dismissing that application, with extended reasons dated 11th December 1996, the Industrial Tribunal state:
"2. Entitlement to a redundancy payment was not a complaint referred to in the Applicant's Originating Application received on 5 January 1996, and in the decision of the Tribunal the Applicant was not found to have been dismissed by reason of redundancy."
Now, in this appeal, it is said that the tribunal ought to have ordered a redundancy payment based on his nine year's service.In our judgment, that argument fails. Even if the claim for a redundancy payment was properly raised in this case, it was bound to fail. The applicant was not dismissed by reason of redundancy, although as Mr Hodkinson submits, the tribunal's reasons are not clear as to what it was the tribunal found was the reason for dismissal. On the facts before it, the correct label to be attached is that of some other substantial reason. Mr Hodkinson accepts that the facts here properly fall within that category.The potential redundancy dismissal in July 1994 vanished when he was re-deployed and continued working for the Council in alternative employment for 17 months before his eventual dismissal.The reason for dismissal was not redundancy, it was some other substantial reason. In these circumstances, he is not entitled to a redundancy paymentAccordingly, it seems to us that there is here no arguable point of law to go to a full hearing before this appeal tribunal, and therefore, we must dismiss the appeal.