Tantony v Prospect Care Services Ltd [1998] UKEAT 228_98_2206

EAT
Tantony v Prospect Care Services Ltd
[1998] UKEAT 228_98_2206 · 1998-06-22
MR JUSTICE KIRKWOOD : This is a preliminary hearing in an appeal by Mr Tantony from the decision of an Industrial Tribunal sitting at Exeter on 30th October 1997 dismissing his application before it. His application was essentially in respect of wrongful dismissal and breach of contract. The tribunal gave its extended reasons on 3rd November 1997.Mr Tantony was employed by the respondent, Prospect Care Services Ltd, on 10th March 1997 as a care worker, working with children. He was dismissed for gross misconduct on 19th June 1997. His employment was thus for just over three months and the unfair dismissal provision of the Employment Rights Act 1996 do not apply to his case.What had happened was, so the Industrial Tribunal found, that on 14th June 1997 Mr Tantony had falsified entries in the log which was one of the documents the respondents had to keep in relation to its duties towards children in its care. Those entries related to his time of arrival for a shift. The employer thought that to be gross misconduct and dismissed Mr Tantony for it on 19th June 1997. The Industrial Tribunal found on the balance of probabilities that Mr Tantony did commit gross misconduct in dishonestly completing those important documents of record and that the respondents were entitled to dismiss him summarily. Mr Tantony's first complaint does not go in any specific way towards that finding, though I am in no doubt that he is unhappy with it.The first point he makes to us, which he says is a point of law by reference to the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 , was that Mr Hyland, the Managing Director of the respondent company, made remarks in his representations to the tribunal in addition to the question of gross misconduct relating to the falsification in the log. It was the falsification in the log that was identified in the form IT1 and IT3 as the ground for dismissal for gross misconduct and nothing else. However, the further remarks Mr Hyland made were to the effect that he or the Company had received complaints from children, and perhaps complaints from children and staff. When it came to Mr Tantony's time to ask questions of Mr Hyland he was, he told us, prevented by the Chairman from questioning Mr Hyland about the question of complaints from children on the ground, no doubt, that that was of no relevance whatever to the matter in issue before the Industrial Tribunal. Were he prevented from asking questions for the reason of irrelevance, there could be possible challenge to that decision.The Chairman of the Industrial Tribunal has been asked for his comments, in particular, a comment on the assertion that Mr Tantony was prevented from putting questions to Mr Hyland or from challenging that witness, and the Chairman's response to this was:
"This is completely untrue. He had every opportunity of questioning Mr Hyland and did so during a two hour hearing."
However that may be, the question of cross-examining Mr Hyland on the assertion as to complaints from children does not go to the matter in issue before the Industrial Tribunal at all, nor to the reasons it gave for its decision.We fully understand how Mr Tantony may feel profoundly uncomfortable if not aggrieved that allegations were made or hinted at in the face of the tribunal that were not in the written document that preceded the hearing; and that that has left him with a sense of powerlessness in responding to what was said or suggested. But the absence of a chance to deal with it before the tribunal, if there was such absence, is not a defect in law in the process of the tribunal's hearing for the reasons of lack of relevance to which I have referred.The second matter which Mr Tantony raises before us is that there were a number of documents to which he thought he would have the right to make reference, but which he tells us he was not allowed to refer to at the hearing. The Chairman in his comments on the Notice of Appeal says:
"On reviewing my notes of evidence I find that Mr Tantony did not complain that the discovery was insufficient. We (the Tribunal) had enough evidence before us to make a decision and we did so unanimously."
Looking at the documents to which Mr Tantony referred, it seems to us that they were all documents of a procedural nature, and all documents passing either from or to the Industrial Tribunal which would therefore have been on the Industrial Tribunal file. They do not seem to us to add any additional information over and above that which is referred to in the extended reasons; additional information, that is, which is relevant to the issue of the reason for dismissal which was before the tribunal.Thirdly, Mr Tantony says that during the hearing Mr Hyland promised in the presence of the members of the tribunal that he would let Mr Tantony have a copy of the reference that he, Mr Hyland, had sent to Bristol City Council, which again referred to complaints from children and staff. He says that Mr Hyland failed to let him have the reference. Mr Tantony had to get UNISON on to Mr Hyland before he got a copy. Mr Tantony's attempts to seek clarification about those complaints since the tribunal hearing have met with no success at all, because Mr Hyland has not elaborated. That is a matter which arose essentially after the Industrial Tribunal hearing and was not a matter nor could have been a matter before the Industrial Tribunal for their adjudication.Thus, whilst we understand the sense of unease that Mr Tantony has at the overall outcome of his employment with the respondents, we have to focus upon the matter in issue before the tribunal and the reasons given by the tribunal for the decision it reached. Focusing our concentration on that and that alone, we are driven to the conclusion that Mr Tantony raises no arguable point of law to go to a full hearing of an appeal against the decision. Therefore, this appeal must be dismissed at this stage.