Kilduff v Cumbria County Council [1999] UKEAT 1494_98_1203

EAT
Kilduff v Cumbria County Council
[1999] UKEAT 1494_98_1203 · 1999-03-12
MR JUSTICE HOLLAND : By an IT1 dated 7 April 1998, Mr Stephen Kilduff complained that he had been unfairly dismissed by the Respondents, the Cumbria County Council.The circumstances giving rise to that complaint are in a relatively short compass. He had worked as a social worker since about 1978, and he had entered employment with the Respondents as such on 29 June 1992. His contract included terms which are set out at page 30 of our bundle.

(a) and a part of 70 (b), the passage reads as follows:

"(a) The public is entitled to demand of a local government officer conduct of the highest standard and public confidence in his integrity would be shaken were the least suspicion to arise that he could in any way be influenced by improper motives. (b) An officer's off-duty hours are his personal concern but he should not subordinate his duty to his private interests or put himself in a position where his duty and his private interests conflict."
On 13 December 1996, pursuant to a complaint of sexual abuse, he was arrested by the Lancashire Police and his home was searched. The police found and seized a quantity of explicit sexual material including two pornographic video tapes. The nature of those tapes, as found by the Tribunal, appear from their Extended Reasons:
"3(e) ... The letter set out the contents of the two video tapes in two short paragraphs indicating that one contained graphic scenes of naked adult females engaging in sexual acts, including oral sex and intercourse with a pony, a dog and a pig, and the second entitled 'Little Girls Blue' was set in a girls college showing students in school uniform giving the impression that the girls were about 15 to 17 years old but in actual fact were females in their early 20s. In the police officer's opinion these actresses were selected because they appeared younger from their general physical features and development than their biological age. These girls indulged in various acts of sexual intercourse and oral sex with men including a teacher."
He was thereupon suspended by the Respondents pending the outcome of the investigation. At an early stage a letter was received dated 23 January 1997 from the Lancashire Police. From that letter the Respondents learned first that it was presently impossible, through lack of evidence, to pursue the complaint of sexual abuse. They further learned of the finding of those video tapes.We interpose immediately to record that, ultimately the complaint of sexual abuse was completely abandoned, it having become apparent that it was entirely ill-founded.We turn back to the sequence of events. The Respondents' General Manager, Mrs Sutherland, decided to conduct an internal enquiry into this matter and to that end she appointed Ms Sally Halls, Service Manager and Youth Resources, to conduct such. The terms of the enquiry were:
"The line of enquiry concerns the nature of the videos which were in the applicant's possession."
There then followed a prolonged procedure, which did not culminate until Ms Halls finally reported by way of a report of 4 November 1997. During that intervening period there had been meetings from time to time, which meetings were attended by the Applicant and his Solicitor. It would seem that at no stage was the enquiry categorised as a disciplinary enquiry, rather it was constituted as an investigative procedure. That said, the submissions were received at regular intervals from the Applicant, through his Solicitor, which perhaps were more appropriately directed to a disciplinary hearing and which were, more often than not, legalistic in nature. The flavour of the Applicant's stance appears with respect to a meeting that took place on 15 August 1997. The Tribunal recorded his position as follows:
"3(j) ... Without going into the detail of what happened thereafter the applicant gave an indication at that meeting that he was not happy to continue to deal with the investigation regarding the videos until he had disposed, in so far as he could, with the allegations that he had been a party to abuse. He endeavoured to enrol the respondents' assistance to obtain information from the police to understand what had led to his identification as the alleged abuser. Also at that stage the applicant wrote a lengthy manuscript letter received by the respondents in early September. In the course of doing so the applicant set out his position that questions regarding his private life would be contrary to Equal Opportunities Anti-Oppressive Practice if the same question would be inappropriate when put to a member of a minority group. The applicant also challenged the basis on which the respondents were using privileged information which he contended they had received. He then characterised the videos which had been found which amounted to 50 or so as 'not a collection of an adult video 'devotee' but a couple of stray adult videos'. He noted that only two were the subject to police reservations."
He then gave details of his views as to the nature of the videos, and went on to explain that he had obtained these videos in public houses. Dealing with the video showing bestiality, he said that he had been unable to return it to the person who had lent it to him and he declined to erase it or destroy it, as it was not his property.By way of her report, Ms Hall drew attention to paragraph 70 of the conditions of his employment, already cited in this judgment, and then commented:
"Mr Kilduff's possession of this material may be considered in relation to this statement, and doubts may be cast on his possible actions in some aspects of child protection investigations. For example his response to finding such material in a household where sexual abuse of children is being investigated, or to a woman telling him that she had participated in the making of this type of video, may be questioned."
She noted that his response to the issues was essentially legalistic, and she concluded that the question of suitability for continued employment could only be approached in the standpoint of the Respondents' expectation of their employees.When Mrs Sutherland received a copy of this report, she provided it to the Applicant and she convened a meeting for 27 November 1997. That meeting was preceded by a letter from her, indicating that it was not a disciplinary hearing under the Council's disciplinary procedure, but since the information had come to light and had been investigated, it raised concerns about his continued suitability for employment in his present position. Thus it was, she intimated that the Applicant was to be given an opportunity to put his case on the issue of his continued suitability.This gave rise to a further meeting attended by the Applicant with his Solicitor on 8 January 1998. That meeting having been inconclusive, there was a further meeting convened for 15 January, but the Applicant's Solicitor was unable to attend on this occasion. Meetings having been convened for successively 6 February and 26 February, on neither occasion did the Applicant attend.Finally, by way of a letter dated 4 March 1998, Mrs Sutherland intimated a decision "that the Applicant's actions resulted in a loss of trust and confidence going to the root of the employment relationship and that the position was untenable". She further intimated that, having regard to his long period of service and other factors, he would be placed on redeployment on the basis that he could not be expected to work with vulnerable groups. In the event, efforts to redeploy him failed and thus it was that on 22 May 1998 he was dismissed. He availed himself of his right to appeal to the Personnel Cases Panel. That Panel held an appeal on 9 June 1998. In the words of the Tribunal:
"3(q) ... It amounted to a rehearing of the case. Detective Sergeant Davis and other witnesses attended. The applicant was represented by counsel and the conclusion was that the dismissal decision should be upheld. The appeal panel, a body of councillors chaired by Mr J. Wooley involved a consideration of documents. Witnesses were cross-examined and the applicant knew his job was in jeopardy."
Turning then in order to complete the chronology, to the steps that followed the making of the complaint, there was a prolonged hearing before the Employment Tribunal sitting at Carlisle, which occupied some four days. That hearing produced extensive Extended Reasons dated 26 October 1998. That concluded:"The unanimous decision of the Tribunal is that the applicant was fairly dismissed and his claim accordingly fails".He sought a review of that decision on 11 December 1998. That decision was confirmed by the Tribunal. He had already, by way of the Notice of Appeal of 2 December 1998, intimated an appeal to this Tribunal.This morning this comes before us by way of a preliminary hearing. It is our task to seek to discern, if such there be, a point of law that would merit an inter partes hearing, that is, a hearing at which the Respondent Council would be represented. It is our further duty, if we cannot find any such point of law, to dismiss this appeal.Before turning to the way the appeal is put, we draw attention to the Extended Reasons. They are long (we interpose: that is no point of criticism) and the length serves to reflect the plainly detailed, conscientious care exercised by the Tribunal in arriving at its decision in this matter. The Tribunal's approach was to set out the facts in very careful detail, tracing through the chronology from December 1996 to the conclusion of the appeal process in June 1998. It then notes the submissions made by the Applicant, which occupied no less than 11 pages of typescript. It summarised those submissions and it is germane to read part of such:
"4. ... Paragraph 70 of the conditions of service did not cover the situation identified. In the absence of any forewarning of the consequences of possession of this material there was a failure to comply with the ACAS Code of Practice on discipline at work. The applicant complained that the respondents failed to take account of his length of service and drew attention to other tribunal proceedings which had taken place about the correct length of service which was to be attributed to him. In view of the respondents' resources the applicant argued that it was appropriate that they should comply with the higher standards in connection with procedure and adherence to the ACAS guidelines."
Additionally, he drew attention to the European Convention on Human Rights.The Tribunal then turned to give similarly detailed consideration to the Respondents' submission which they noted occupied 24 pages. They acknowledged the help that had been given to them by an unreported decision of this Tribunal: Mrs C.A. Abiaefo v Enfield Community Care NHS Trust dated 2 May 1996. They further acknowledged assistance from the case of Saunders v Scottish National Camps Association Ltd [1980] IRLR 174. They then, in the latter paragraphs, went on in considerable detail to make their own analysis and achieve the findings that were required of them. They neatly concluded all such in a short final paragraph:
"19. The Tribunal therefore concluded that in this case the respondents imposed a sanction within the range of reasonable responses. The applicant was dismissed for possession of pornographic video material. This amounted to some other substantial reason justifying dismissal as it amounted to an act by the applicant putting himself in a position where his duty and his private interests conflicted. The sanction imposed by the respondents was within the range of reasonable responses and the dismissal was therefore fair. The applicant's claim accordingly fails."
It is plain that a party seeking to impugn these Extended Reasons, on the basis that they reflect one or more errors of law, has a hard task to undertake. However, in advancing his case, the Appellant has the considerable advantage of assistance from Ms Hill. Not only has she prepared a very careful and detailed skeleton argument, which has usefully appended to it the cases relied upon by the Tribunal, additionally she has, with considerable firmness and tenacity, pursued those arguments before us this morning, seeking to persuade us that that point of law demanding the inter partes hearing is there for the finding. She puts her argument under three essential heads.The first head relates to the selection of the appropriate category of dismissal for the purposes of Section 98 Employment Rights Act 1996. That reads:
"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show - (a) the reason (or, if more than one, the principal reason) for the dismissal,

and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it -

(a) ... (b) relates to the conduct of the employee."

She submits, by reference to various passages in these Extended Reasons, that there was, or may well have been, an unresolved confusion as to whether the reason relied upon for the dismissal was one relating to conduct or whether it was, as the Tribunal finally found, "some other substantial reason of a kind such as to justify the dismissal of an employee". She submits that this confusion has bedevilled this matter right from the outset, and she draws attention forcefully to the early failure to institute any disciplinary procedure, putting in its place the investigative procedure. She submits that, if there is any question here of this being a matter relating to conduct, then that nettle should have been grasped at an early stage, so that the Applicant would have been properly confronted by a disciplinary procedure from the outset and the matter would not have proceeded, as it did, in the somewhat tortuous fashion already described in the body of this judgment.For our part, the essential reason had to reflect some very short facts which were not in dispute, or were not substantially in dispute. First, there was his possession of these video tapes. Second, there was the actual or potential loss of confidence in him as a fellow employee and above all, as a social worker, a person pre-eminently required to be a man of integrity.The final element in the matter was the absence of any real effort on the part of the Applicant from December 1996 onwards, to seek to restore such confidence reflected his repeated preference for tackling the issues in what was described as "a legalistic fashion" and in his repeated failure to evince the candour and contrition, which might have gone some way to restoring that confidence. If all that was essentially the reason (and there can really be no dispute about it) from that point onwards it becomes a matter of labelling and, as this Tribunal pointed out in the case of Abiaefo , that in its turn is a question of fact.For our part we have no doubt at all that this was ultimately correctly labelled by the Tribunal itself as "some other substantial reason". Plainly, there were elements in the matter relating to conduct, but equally there were these serious matters relating to confidence and to the continuing approach of the Applicant to these issues.We agree with Ms Hill that it may well have been better had the matter been properly analysed by the Council at an early stage and had there been an early appreciation that conduct could play a part in this, so that from the outset the matter could, and should, have proceeded as a disciplinary matter with, inevitably, an investigative element. However the force of this criticism is, as the Tribunal found, dissipated by the appeal of June 1998, as to which the Tribunal held:
"In the circumstances the Tribunal formed the decision that the appeal procedure was a valid appeal and it fully considered the issues in connection with the applicant's dismissal and reached a conclusion that this dismissal should be upheld. There was therefore nothing in the appeal procedure itself that the Tribunal could regard as unfair. The Tribunal therefore found a situation whether totality of the procedure was fair."
Thus dealing with Ms Hill's first point, we are satisfied that in the end the Tribunal put the correct label on the underlying reason. Further, insofar as there was any earlier failure to put the right label on it, we do not think that that went in the end to the fairness of the dismissal, having regard to the way in which the matter had finally the benefit of the appeal in June 1998.Miss Hill's second point relates to that submission raised by the Applicant himself in the course of the investigative procedure, namely the significance of the ACAS Code. She submits, by reference to Lock v Cardiff Railways Co Ltd [1998] IRLR 358 that the Tribunal should have considered the provisions of the Code, even if they were not raised by the parties. Given that they were raised here by the Applicant, then that obligation was the stronger and she submits further, that looking at the Extended Reasons there is no clear indication that the Tribunal did give adequate consideration to them.We have listened carefully to her submissions. We have done so by reference to the background and the Extended Reasons. We note that the Tribunal appreciated that the ACAS point was being raised. We can find no indication that it did not give some consideration to it, or more importantly, that it would have dealt with the matter any differently had it done so.A final interesting argument relates to the other point raised by her client, in his submissions to the Tribunal, and that is the potential impact of Article 8 of the European Convention on Human Rights. We learn from her that Article provides as follows:
"(1) Everyone shall have the right to respect for his private and family life, his home and his correspondence.
(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."She concedes that there is currently no legal obligation on a Tribunal to heed those particular terms, but she points out that the obligation is coming over the horizon and that in the interim it is good practice to be concerned about these terms. In the words of Lord Woolf MR in R v Chief Constable of the North Wales Police and others [1998] 3 All ER 310 , Article 8 is:
"A useful benchmark"
. Her submission is this, that had the Tribunal used it as such, it would have heeded the potential for the police being in breach of its terms, either by seizing these videos or, more importantly, by disclosing to the Respondents the fact of such finding. Her submission is that with that Article and its implications to mind, then the balancing exercise demanded by Section 98 (4) might have been influenced.For our part, we are not immediately persuaded to the view that the police conduct was even in prima facie breach of Article 8, but let it be supposed that it was, we turn to the Extended Reasons and it is apparent that consistently throughout this matter, first the Respondents and then the Tribunal respectively had attention drawn to the circumstances in which these videos were taken. This was indeed one consequence of the whole approach of the Applicant to this matter, that is, to pray in aid his perception of his legal rights and we are quite satisfied that the particular reference to the Article could not have added any weight at all to the balancing exercise, first as exercised by the Respondents but latterly and, more importantly as exercised by the Tribunal and summarised in the last paragraph of their Extended Reasons.The argument has been engaging, but in the event it has failed finally to engage us. It follows that, notwithstanding the admirable efforts of Ms Hill, we are quite unable to discern any point of law in this matter that would merit an inter partes hearing. Thus it is, in accordance with our duty, we dismiss this appeal.