Brooksbank v Buckinghamshire County Council [1998] UKEAT 504_97_1205

EAT
Brooksbank v Buckinghamshire County Council
[1998] UKEAT 504_97_1205 · 1998-05-12

JUDGE D M LEVY QC :

Mrs Brooksbank, the Appellant, appeals from a decision of an Industrial Tribunal held at Reading which considered her claim that she had been unfairly dismissed by the Buckinghamshire County Council ("the Council"). The unanimous decision of the Tribunal was that she had been fairly dismissed.The hearing before the Industrial Tribunal took a number of days. It had an unfortunate background because there had been a hearing before a previous Tribunal, which had had to be abandoned because of the illness of the Chairman, and the parties were put to the disadvantage of starting again.The hearing took place on 15, 16 and 17 January 1997. On 20 January 1997 the Members had a reading day when they read many of the voluminous documents in early disciplinary hearings. The hearing continued on 21, and 22 January, 5, 6 and 7 February 1997. The decision of the Tribunal was promulgated to the parties on 26 February 1997.The background to the application is set out in paragraphs 3 and 4 of the Extended Reasons:
"3 Turning to the issues in this case, the evidence before us disclosed that in the latter part of 1993 and early 1994, Buckinghamshire County Council wished to re-organise the delivery of adult education in the various Adult Education Centres that it operated throughout the county of which Wellesbourne was one. After lengthy consultation a development plan was produced and adopted by the County Council. It is not the function of the Tribunal to review that development plan. It was adopted by the County Council as their policy and it is not for us to say that as a policy it was good, bad or indifferent. The most significant impact of the new policy was that at adult education centres were to be grouped together in consortia who would co-operate over matters such as scheduling of teaching periods, co-ordination and organisation of the classes to be offered, timetables, budgets and matters of that nature. The intention was to deliver the service in a more streamlined and cost effective way. To that end, Heads of education centres were required to meet, co-operate with each other and co-ordinate their activities within consortia each consisting of about four education centres. Each consortium had a co-ordinator who seems to have been, in addition to other duties, the Head of one of those centres. One of the features which has emerged from this case is that the applicant applied for the post of co-ordinator of Consortium 4, the consortium in which her centre fell, but was unsuccessful. It is clear that she felt that the appointment had been wrongly made and that the candidate who was successful had less experience than she did. This has not been a feature which has been pursued before this Tribunal since quite plainly it falls totally outside the scope of the matters we do have to consider.
4. Put shortly, the nature of the allegation against the applicant as founding her dismissal was that she failed to co-operate with senior officers of the education authority and her colleagues in the other centres in the consortium over the matters of planning as she was required to do so in accordance with the new policy. That failure occurred in the first few months of its coming into existence at the beginning of April 1994. In due course, those allegations were formalised in a letter dated 7 November 1994 which set out two allegations against her. They are basically that she had failed to comply with County Council policies requiring her participation in the activities of the consortium in five specific areas and that she had refused to accept the outcome of the reorganisation and the changed management structure. It was alleged that she had deliberately refused to carry out reasonable, lawful and safe instructions. Secondly, it was alleged that she had been party to the production and/or distribution of three documents which were attached to the letter and that she had been party to the production and/or distribution of one of them, document A, in breach of an instruction contained in a letter of 22 June 1994. Those were the allegations against the applicant and it was as a result of those, say the respondents, that she was dismissed. The chronology of this matter is that these matters arose as a result of events which occurred during the summer of 1994. The applicant was suspended on 22 July 1994 and was interviewed by an investigating officer of the County Council on 7 and 11 October 1994. As a result of the investigation which took place, disciplinary proceedings were instituted and were heard by a panel of officers of the County Council, commencing on 29 November 1994 and 1, 2 and 9 December 1994. At that disciplinary hearing the applicant was represented by Counsel whom she had instructed. The respondents were also represented by Counsel."We pause there to say that we understand that Counsel was Mr Kerr who has appeared before us and the Industrial Tribunal also.
"As a result of that hearing, the disciplinary panel found that the allegations against the applicant were proved and dismissed her with immediate effect by letter dated 12 December 1994. The applicant appealed against that dismissal and the appeal was heard by a panel of five elected members of the Council on 10, 13, 22, 23 and 29 March, 28 April, 1, 2, 9 and 10 May and 5 and 7 July 1995 with the decision being announced on the final day. The result of the appeal was that although the initial disciplinary panel had found that the applicant was guilty of both the allegations against her and that they amounted to gross misconduct meriting the summary dismissal, the majority of the appeal panel found that the first allegation did not amount to gross misconduct, but merely to misconduct. They confirmed the finding of the disciplinary panel in respect of the second allegation and confirmed the penalty of dismissal. It is as a result of that dismissal that the applicant brings these proceedings."
Having set out in a form which has not been the subject of any criticism, the history the Industrial Tribunal then set out the first question they had to ask themselves which was, whether the Respondents had established that the reason for the dismissal, as required by section 98 of the Employment Rights Act 1996 ("the Act"), and if they had established it, what was it? The Tribunal found that the Respondents had established the reason for the dismissal, namely the Appellant had been dismissed for a reason relating to her conduct and more specifically by reason of the allegation set out in the letter of 7 November 1994 which were found to be proved.Having so found, the Tribunal then had to consider whether the dismissal was fair and, again they reminded themselves of the provisions of the section of the Act. The Tribunal accepted that the Council was a very large organisation, having at its disposal facilities in terms of administrative resources, access to advice on personnel and other matters. In short, they were a very large well-equipped organisation. Perhaps, said the Tribunal, the best way of dealing with this aspect of the matter would be for them to consider detailed criticisms of their conduct which Mr Brooksbank had submitted appeared from the evidence. Mr Brooksbank appeared for his wife at the Industrial Tribunal. Those allegations had been set out by him in a skeleton argument which we have seen and they were four in number which the Industrial Tribunal set out and examined.The first of the four was that the allegations against the Appellant were weak and vague. Those were examined in paragraph 6 of the reasons. The second of the allegations was that the disciplinary procedure was flawed. That was considered in paragraph 7 of the reasons. The third of the allegations was that the investigation and the disciplinary proceedings were improperly conducted. These were considered in paragraph 8. The fourth of the allegations was that the finding of guilt was not supported by the evidence. That was dealt with in paragraph 9 and the submission that the punishment was disproportionate was dealt with in paragraph 10. Each ground of criticism was very fully dealt with by the findings by the Industrial Tribunal before they came to this conclusion in paragraph 11:
"11 Finally it only remains for us to say that having considered the four criticisms that the applicant has made we find that none of them are substantiated and although Mr Brooksbank has put forward the criticisms in a number of detailed grounds, to which we may not have referred individually, we have nevertheless considered them individually and cumulatively, and in our view have set out sufficient of our reasoning to explain the decision that we have reached which is that this was a fair dismissal."
From that decision a Notice of Appeal was given on 31 March 1997. Those grounds were amended by a Notice dated 5 November 1997. Miss White has appeared for the Appellant on this appeal and Mr Kerr, as we said, has appeared for the Council.We pay tribute to both Counsel in this case. Both their skeleton arguments said succinctly what each wished to say and these were augmented in arguments which have lasted just over half a day. This case could not have been dealt with better by Counsel.Miss White in her skeleton argument and in her oral submissions developed the points in the Notice of Appeal. Mr Kerr in his answered Miss White and dealt with seriatim the points made in the Notice of Appeal.If we do not go through the points which are in the written skeletons one by one in this judgment, it is because Counsel very sensibly, having heard that we had all spent several hours reading the papers with which we were provided, did not go through them seriatim in their oral submissions. We have been through them ourselves individually and collectively and, if we deal with them rather briefly in this judgment, it is because each skeleton argument set out what Counsel developed before us and we have considered all the arguments set out therein and by them.The first of the complaints made is about the Tribunal's conduct at the hearing. In particular, there are allegations that the Chairman did not give the Appellant a fair hearing and in that connection we think it useful, because of criticism which has been made of earlier Tribunals, to read from the decision of the House of Lords in Regina v Gough [1993] AC 646 at page 647, the test which Lord Goff said was to be applied in all cases of apparent bias. We take it from the headnote:
"... the test to be applied in all cases of apparent bias was the same, whether concerning justices, members of inferior tribunals, arbitrators or jurors, and, in cases involving jurors, whether being applied by the judge during the trial or by the Court of Appeal when considering the matter on appeal, namely, whether, in all the circumstances of the case, there appeared to be a real danger of bias, concerning the member of the tribunal in question so that justice required that the decision should not stand."
In affidavits which she swore, the Appellant made criticisms of the Chairman which the Chairman and the lay members answered. The first complaint alleged was prevention of cross-examination as to the genuine belief in the misconduct alleged, reason for that belief and disciplinary treatment of other employees guilty of similar misconduct. In his skeleton argument at paragraph 2.3 Mr Kerr submitted that the complaint was unfounded and he gave references to the Chairman's comments and the evidence on that. Without going through this in detail, we accept that what Mr Kerr said is right. We found that the complaint made cannot be substantiated.The next complaint alleged prevention of the Appellant from adducing evidence on several allegedly material points. For the reasons which Mr Kerr gave in his skeleton argument and having looked at the evidence to which he introduced us, again we do not think that the Appellant substantiated the matters about which she complained.The next complaint, which was a Notice of Appeal paragraph 2.3, alleged misdirection arising from Burchell . At page 102 of our bundle of papers in the comments he made the learned Chairman said this about Burchell :
"I certainly did indicate, in accordance with the principles in the Burchell case, that the tribunal must be satisfied that the respondents had a genuine belief in the applicant's misconduct and provided it is satisfied on that point, it is not for the Tribunal to 're-try that issue'. ..."
We think that the Chairman's position was one that the Tribunal took and was justified in taking.The next complaint in the Notice of Appeal, paragraphs 2.4 - 2.7, was the alleged prevention of cross-examination or adducing evidence on points covered by the Council's witnesses, alleged unfairness as to oral evidence due to substitution of words and interruptions. Mr Kerr replied on the Chairman's comments. Miss White took us through certain parts of the Extended Reasons to suggest that there had been unfairness and to refer to some parts of the affidavit. There are always difficulties for a Chairman to keep control of proceedings where a litigant appears by an untrained advocate, and especially so when the litigant is herself articulate and believes passionately in the rightness of her case.We have also had the opportunity of seeing the Chairman's notes. We are satisfied, having looked at those carefully and having listened to all that Miss White has said, that there was, indeed, no bias by the Chairman, in accordance with the test which we have to apply per Gough . This Tribunal is always very anxious to look at the allegations which are made and the response of the Tribunal to them before reaching the conclusions that they are unfounded or not substantiated, because it is very important that justice must be done, not only be done but seen to be done. This we have all done here.We are sorry that the Appellant felt that the hearing she had before the Industrial Tribunal was not a fair one, but given all the documents which we have read we cannot find that any of her complaints of bias are well-founded.The second alleged error of law is said to be contained in considering the alleged fairness of the internal appeal.There was a transcript taken of the internal appeal held by the Council; we have been taken to certain passages from that transcript. It is apparent from most of these passages that the appeal was heard by a forceful Chairman who had a legal adviser at his hand to keep him in check. It is apparent from the passages that the Chairman may well not have formed a view favourable to the Applicant, but we are satisfied that with the legal representative whom he had to assist him that there was, in the words of Lord Goff, "no real danger of bias concerning the member of the tribunal in question". We know that a majority only favoured the decision on the internal appeal. We do not know, but we can make a guess as to the way the Chairman voted. It is apparent from the way that the Tribunal considered the appeal decision that they did so with meticulous detail. They spent a day reading the transcripts of the internal hearing and made a comment on the evidence of one of the witnesses called by the Respondent, Mr Jones who had been at the internal appeal. He had said that he too was concerned at the atmosphere at the appeal hearing but added one thing which in their view was significant:
"He said that all the evidence came out despite, rather than because of the attitude of the Chairman, and the atmosphere. It does seem to us that it is an important piece of evidence from an experienced individual who was present throughout and we have had to ask ourselves whether, overall, the evidence that we have had persuades us so that we should find as a matter of fact that the conduct of the appeal hearing was flawed in the way that the applicant says. We are not so persuaded."
In our judgment, having looked at the whole of the transcript carefully as they did and having considered all the submissions made, this was a finding of fact which the Industrial Tribunal was entitled to reach.A number of points were raised to support a perversity argument which was put to us to show the behaviour of the Chairman. There was a short reference by him to "our QC" and reference to "our" cases - as if to suggest the learned Chairman considered the case of the employer was "his" case. These were isolated references, not more than half a dozen in all, over a period of a large number of days. We do not find them significant in this context.We conclude similarly on the other short passages in the transcript on which the Appellant claims bias. Viewed in the whole of the context in which they appear, we are satisfied that nothing sinister or unfair can properly be inferred from them.The third of the grounds of appeal was alleged inconsistency in that, it was suggested that the treatment of the Appellant, the penalty of dismissal, was unfair because others who had been disciplined by the Council did not so suffer.Paragraph 5 of the Notice of Appeal suggested that the Tribunal failed to have regard or adequate regard to treatment of other employees who had behaved in a similar way to the Appellant. It is apparent to us from the parts of the evidence through which Mr Kerr took us and the decision itself that no others were in the same position as was the Appellant, particularly Rita Brigdan, to whom reference was made. This appellant was accused, in terms, of embarking on a campaign of deliberate disobedience and insubordination which was the essence of the complaint made by the Council. Mrs Brigdan was not in such a position. The Tribunal below cannot be criticised for accepting a contention that each disciplinary case turns on its own facts. No other employer other than Mrs Brigdan is relied on by name as having allegedly behaved similarly to the Appellant.The Notice of Appeal in paragraphs 7 - 9 suggest that the Tribunal below did not give sufficient reasons for the conclusions, first that the disciplinary panel was entitled to find that each of the two charges amounted to gross misconduct and secondly, that the appeal panel was entitled to find that the second, but not the first of the two charges which the Appellant faced, amounted to gross misconduct.As to the charges made against the Appellant, broadly the first charge was that she had deliberately refused to co-operate with the newly introduced consortium mechanism for continuation of the education service. The second was that, in breach of specific instructions, she had been responsible for creating three documents, subsequently quoted in the local press as part of a campaign against the Council's policy, which it was part of her contractual duty to implement. These are dealt with in paragraph 4 of the Extended Reasons. In our judgment the Tribunal did comply with its obligation to give sufficient reasons. It is clear from reading those reasons that the Council submitted that the relevant conclusion was that dismissal was fair within the provisions of section 98 (4) of the Act and that the reason for that conclusion was that a reasonable employer could regard the Appellant's conduct as serious enough to justify dismissal.Given the context of all that was set out there, it is in our judgment quite clear that the Tribunal properly addressed itself and that, although other tribunals might have made further findings, this judgment is quite full enough.It is quite clear from reading the decision itself that the question (whether a reasonable employer could find that the conduct of the Appellant as found amounted to gross misconduct) was one which the Tribunal asked and answered in the affirmative.One of the submissions which Miss White made was that when one looked at the decision of the Tribunal as a whole, it was not clear to the Appellant why she was dismissed in the first place and why her case failed. In our judgment, anyone reading carefully the Decision of the Industrial Tribunals knows that the Appellant failed there because her employer found that she was guilty of gross misconduct, and the Industrial Tribunal found that the appeals procedure at which the decision was confirmed was satisfactory in the circumstances. It concluded that the decisions both on guilt and penalty were ones which a reasonable employer was entitled to reach. That is found within the four corners of the judgment. Mr Kerr is right, in our judgment, when he commends the judgment for its elegant structure and for dealing succinctly with the many questions which must have been raised over a hearing, which cannot have been an easy one for any of those involved.In the circumstances no points of law have arisen on which the Appellant has succeeded in the appeal and in the circumstances we dismiss it.