Jessop v Kirklees Metropolitan Council [1998] UKEAT 156_98_2407

EAT
Jessop v Kirklees Metropolitan Council
[1998] UKEAT 156_98_2407 · 1998-07-24
MR JUSTICE KIRKWOOD : This is the preliminary hearing of an appeal by an employee, Mr Jessop, from a decision of an Industrial Tribunal at Leeds on 30th June 1997. The Industrial Tribunal dismissed Mr Jessop's complaint of unfair dismissal. The tribunal sent extended reasons for its decision to the parties on 5th September 1997.Mr Jessop had been employed by Kirklees Metropolitan Council, as what the tribunal described as an estate guardian, from 5th January 1992 until his dismissal on 2nd September 1996. His duties included being present on site for tenants and maintaining properties in connection with the provision by the Council of homeless persons' accommodation.In due course, three allegations came to be made against Mr Jessop by his employer which led to a disciplinary hearing. One allegation was of aggressive and confrontational behaviour towards his manager; another one related to what was said to be unauthorised personal use of a Council telephone chargecard; and the third related to an allegation of being verbally abusive towards a female colleague.The tribunal found that a disciplinary hearing was held on 29th August 1996 and that it was attended both by Mr Jessop and his UNISON representative and others.Following the hearing, Mr Hood, the Service Manager who conducted it, made a decision which was sent to Mr Jessop by a letter of 5th September. Mr Hood found the allegations substantially established and in deciding what to do about it he took account of Mr Jessop's previous disciplinary record. In the result, Mr Hood decided not to deal with the matter by the issue of another warning, nor did he find the matters warranted summary dismissal. His decision was that Mr Jessop should be dismissed but with a payment in lieu of notice.It was against that dismissal that Mr Jessop went to the Industrial Tribunal.The task of the Industrial Tribunal was to decide whether Mr Jessop had been unfairly dismissed.There is no doubt in our minds that Mr Jessop felt and felt strongly that he had a range of complaints against his employer which covered a number of aspects of his employment relationship with them.The Industrial Tribunal's remit was not to resolve such matters on a broad front, but to focus on the dismissal itself. The way in which the Industrial Tribunal had to do that was by reference to the statutory provisions of the Employment Rights Act 1996 . S. 98 of that Act says:
"(1) In determining whether ... the dismissal of an employee is fair or unfair, it is for the employer to show- (a) the reason for the dismissal, and (b) that ... a reason falling within subsection (2) ..."
and one of those reasons falling within subsection (2) is that it:

"relates to the conduct of the employee."

The Industrial Tribunal found that the reason that the employer dismissed Mr Jessop, the reason that is to say in the employer' mind, was a reason relating to conduct.That having been established to the satisfaction of the Industrial Tribunal, the tribunal's next task was the task imposed by s. 98(4) of the Act, which says:
"... the determination of the question whether the dismissal is fair or unfair- (a) depends on whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case."
There is a very well-known decision on that section which is called British Home Stores Ltd v Burchell [1990] ICR 303 and it is a decision of the Employment Appeal Tribunal. The question is first of all whether the employer believed there had been misconduct. Secondly, whether that belief was based upon reasonable grounds, and as part of that, whether the employer had conducted a reasonable enquiry into matters to provide the foundation for its belief. The tribunal then considers whether the procedure undertaken by the employer was a fair and reasonable one.The tribunal considered all those matters. They found that the respondent had reached a conclusion that was based on reasonable grounds. They found that there had been a fair and reasonable procedure and they found that the decision to dismiss was one of the possible decisions open to a reasonable employer.It seems to us that the Industrial Tribunal did what it was required by statute and the decided case, to which I have referred, to do. In that regard, there is no room for a challenge to its decision.Mr Jessop's Notice of Appeal really goes to the point that he did not have a fair trial because the hearing was conducted improperly in a sense that he was not afforded the opportunity to state his case and cross-reference the body of evidence that he had prepared for the hearing. It is his submission, that the Industrial Tribunal did not get the full picture.What seems to have happened is that Mr Jessop had prepared with great care considerable documentation including a skeleton statement of his case and that had all gone to the Industrial Tribunal in advance of the hearing. When the opportunities in the hearing arose for Mr Jessop to speak, rather than feeling able to read that material, from which he would have brought the case together, he was discouraged from reading through all the material that the tribunal had had in advance and really he lost his thread and, quite understandably, got in a muddle. That is the more understandable because he had a mishap with his car in Leicester the night before and this hearing was at Leeds, and he had had very little sleep or chance to, if I may say, collect himself, in advance of the hearing. He really feels that it all went wrong because he could not say, as it happened, all that he wanted to say; and he feels particularly aggrieved that whilst some hurtful things were said about him in the course of the hearing which went to the reasons for dismissal and the consideration of previous disciplinary matters, he was not able to put forward a wealth of worries and anxieties he had about a number of aspects of Kirklees Metropolitan Council's operations.The thrust of the Notice of Appeal went to the improper prevention of Mr Jessop from developing his case; and I think, although to a lesser extent, his feeling that where there was a decision to be made one way or the other, the tribunal invariably and in a biased way came down on the side of the Council. Because of those matters, Mr Jessop was called upon to make an affidavit setting out his case on those aspects in accordance with the practice set out in the Employment Appeal Tribunal Practice Direction (para. 9).Mr Jessop was really very pre-occupied with the enormous stress this case had caused him and its impact upon his domestic life. He did not make the affidavit.On 6th April 1998 the President made an Order that:
"... unless the Employment Appeal Tribunal receives a sworn affidavit within 10 days of the date of this Order any allegations of bias or improper conduct of the Industrial Tribunal contained in the Notice of Appeal will be struck out."
Still no affidavit was produced. On 11th May 1998 the President made a further Order that:
"... any allegations of bias or improper conduct of the Industrial Tribunal contained in the Notice of Appeal be struck out."
That Order really went to the root of the Notice of Appeal itself.Mr Jessop came before us today with the case in that state, and with a task of seeking to persuade us, nevertheless, that there was an arguable point of law (which, if successful, invalidated the decision of the Industrial Tribunal) to go to a full hearing.Mr Jessop came equipped with an affidavit sworn on 23rd July 1998 which we have looked at.Again, Mr Jessop says that the tribunal did not look hard enough at the evidence. They did not give him a chance to develop his case and he lost the thread. He says that a witness whom he would have wanted to call on the subject of his good performance at work had written in to him saying that she really could not come because neither personnel nor the union would guarantee that there would be no repercussions through speaking out against the Council.We have considered this affidavit. We are aware that the Industrial Tribunal knew about the letter from that colleague, indeed, had it before them, together with a form of petition (if I can call it that) which was a document prepared earlier giving support to Mr Jessop and expressing concern that things had begun to go wrong at work because of certain intolerance by the manager. That was signed by 11 members of staff. That too was before the Industrial Tribunal.Because Mr Jessop had not sworn an affidavit in accordance with the directions of the tribunal, no opportunity arose for the Chairman of the tribunal to make any comment, but in the extended reasons themselves the tribunal say this:
"2. ... The applicant provided the Tribunal with an extremely long statement of his case. He was at all times given the opportunity to ask questions of the respondent witnesses in cross-examination, given every opportunity to present his case and allowed to sum up at the end of evidence being presented at the hearing."
I am not sure that Mr Jessop complains so much of lack of opportunity as that on the day his wits left him and he got in a muddle about it. I recognise that part of his postulated appeal is his point that he was told that he would be able to read his material after the lunchtime adjournment, but when the afternoon came he did not have that opportunity.Another matter which very much concerns Mr Jessop is that between his dismissal and the date of the Industrial Tribunal hearing, he was engaged on another job by Kirklees Metropolitan Council, not in the estate work he had been doing, but in road-sweeping. That was expressed to be a temporary contract. He tells us he did it well to the satisfaction and to the express satisfaction of a large number of people on his beat, but despite that, his employment was not continued. The letters of support went missing from the Council and he sees that as all because his Industrial Tribunal case was coming up and there was a sense of embarrassment at the Council that they had given employment in one department to somebody who had been dismissed from another.Those matters, which we have listened to with sympathy, were not matters however before the Industrial Tribunal whose task was limited in the way that I have indicated.Just as the task of the Industrial Tribunal was limited in the way I have indicated, so our task is limited in another way. As Mr Jessop is aware an appeal to the Employment Appeal Tribunal lies only on a point of law. His appeal, to the extent that it is based on allegations of bias and improper conduct, has already been struck out. We have to look to see whether there is a point of law on which the Industrial Tribunal made a mistake; and so by applying wrong law they came to the wrong conclusion. Or, whether they proceeded on the basis of a finding of fact which was unsupported by any evidence, or a finding of fact which though supported by a piece of evidence was so outweighed by evidence the other way, that no tribunal could reasonably have reached the decision that it did. That is the limit of our role. There is nothing we can do to help Mr Jessop about the great anxieties he has as to the course of his employment or injustices he perceives in the course of his employment. We must look solely for a point of law. There is no arguable point of law in this case. The inevitable consequence is that the appeal has to be dismissed at this preliminary stage.