Lowe v. Devon County Council & Anor [1999] UKEAT 155_99_1705

EAT
Lowe v. Devon County Council & Anor
[1999] UKEAT 155_99_1705 · 1999-05-17
MR JUSTICE LINDSAY: We have before us as a preliminary appeal, the appeal of Mr R Lowe in the matter R Lowe against two respondents, Devon County Council (the first respondent) and The governors of Exmouth Community College.There was a three day hearing on 9, 10 and 25 November 1998 at Exeter under the Chairmanship of Mr Parker and the decision was promulgated on 7 December 1998 and it was "The unanimous decision of the Tribunal is that this complaint is dismissed". The complaint by Mr Lowe in his IT1 had been made on 7 April 1998 and was for unfair dismissal. At the hearing below Mr Lowe was represented by Counsel but he has appeared in person today and he has addressed us with skill and moderation and has presented his case in full. He had been employed as a mathematics teacher at the community college. His IT1 said:
"I was summarily dismissed for gross misconduct by the governors of Exmouth community college after a lengthy disciplinary hearing on 14 January 1998. The reasons for the dismissal were set out in a letter to me dated 19 January."
The letter began:
"I write to confirm the outcome of the hearing which took place at Exmouth community college on Wednesday 14 January which was held under the formal disciplinary procedure and at which you were supported by Miss Suzanne Golgun"
and a little later:
"After careful and genuine consideration, the committee came to the view that your attendance had not been satisfactory and they were not convinced that all your absences had been underpinned by genuine circumstances. In particular they believed this to be case with regard to your absences on 27 and 30 June 1997 and from 1 to 5 September 1997. The Committee concluded that this, together with other cases, demonstrated a lack of commitment to the College and is compounded by lack of adequate communication with the College."
The letter continued:
"The committee considered there was clear evidence of major failure on your part to complete the report for year 9 and post 16 students. Your marking performance was totally unacceptable from 20 February 1997 to the end of the summer term 1997 and tutoring was not carried out in accordance with college practice. Records were both inadequate and not securely maintained."
That was the nature of the case that was relied upon by the employer and the Tribunal made a number of findings. They said at paragraph 18:
"Having heard evidence of Mr Garnett, Mrs Bannon and Mrs Lee we are entirely satisfied that in this case the principal reason for the dismissal was misconduct. Whilst issues of capability were undoubtedly raised these were secondary on the respondent's mind at the time the respondent made the decision to dismiss."
A little later in paragraph 20:
"In relation to the applicant's absences from work we take the view that his absences on 27 and 30 June if taken alone might not have justified dismissal. However in relation to that week-end the Governors had reason to believe that the applicant had not been wholly honest with them. The governors were entitled to conclude that despite a medical certificate obtained after the event the applicant had not been truthful as to his reasons for absence at the start of the term and that he had in fact been fit for work."
A little later they say:
"In our view the applicant's absences from work at the end of July and at the start of the Autumn term would have justified the applicant's dismissal. However the matter does not end there."
They go in paragraph 21:
"It was clear from the evidence that the failure of the applicant to produce these reports had serious consequences and potentially disastrous consequences for the students concerned. In our view the matter of the reports was so serious that that too would have justified dismissal had it stood alone."
The Employment Tribunal added in their paragraph 22:
"There is a further matter to which we should refer. In their letter dismissing the applicant the Governors say they no longer have any confidence in the applicant's trust, honesty and integrity. In that respect they accepted the view expressed in Mr Garnett's and Mrs Bannon's investigatory report. In our minds that is an important element to be considered in applying the test of reasonableness."
The Notice of Appeal of 15 January has with it a supplement of 26 February of this year. The two grounds there mentioned are as follows. The first is this; "that the Employment Tribunal erred in law by concluding that it was acceptable to "go behind" a doctor's certificate in the circumstances of my case citing Hutchinson v Enfield Rolling Mills Limited as an appropriate Employment Appeal decision to support this view. I claim that my case is entirely different and that reference to this decision was inappropriate in the circumstances. Medical evidence that I was ill was presented both to the respondents during the disciplinary process and at the Employment Tribunal. It has never been challenged."That is a reference to paragraph 20 of the Tribunal's reasons, part of which we have already read but it would be best to have in mind precisely what the Tribunal say about that:-
"The Governors were entitled to conclude that despite a medical certificate obtained after the event, the applicant had not been truthful as to his reasons for absence at the start of the term and that he had in fact been fit for work. We heard both the applicant and Mr Garnett give evidence and having seen both, we take the view that the Governors were entitled to reject the applicant's statement to them that he had told Mr Garnett on 3 September that he had been suffering from a tummy bug. We record that it took a number of questions from the Chairman of this Tribunal to establish clearly from the applicant that he had known that 1 September was the first working day of term. We have also been assisted by reference to the decision of the Employment Appeal Tribunal in Hutchinson v Enfield Rolling Mills Limited [1981] IRLR 318 which shows that an employer is entitled to go behind a doctor's certificate in appropriate circumstances."

They conclude this paragraph as follows:-

"In our view the applicant's absences from work at the end of July and at the start of the autumn term would have justified the applicant's dismissal. However the matter does not end there."
We have to bear in mind what our role is in relation to appeals. We can deal only with errors of law and Mr Lowe knows that, he is aware of it. The question that was before the Employment Tribunal was not whether the Employment Tribunal would have decided that Mr Lowe was ill at the end of term, July 1997 or at the beginning of the next term, September 1997, but rather whether the employer believed that he was absent without good reason and whether that belief existed after the employer had made reasonable enquiries into the question and is sustained by the outcome of those enquiries.As to the events of September 1997, the Tribunal said this in their paragraph 6:
"On 23 July Mr Garnett wrote to Mr Lowe in relation to the monitoring of his performance and fixed a meeting to discuss matters for 3 September. Term was due to start on 1 September and the applicant should have attended school on that day. He did not do so and made no contact with the school regarding absence. On 1 September Mr Garnett wrote to the applicant that he had submitted no medical certificate for the last week of the previous term or in respect of his current absence."
A little later they say:

"The applicant told Mr Garnett that he was fit to return to work."

and then in paragraph 7 they say:
"Mr Garnett pointed out that the applicant had still not provided the medical certificates which had been requested in relation to the first week of term. In this respect medical evidence was subsequently provided in the form of a doctor's letter dated 30 December which records that the applicant went to see his doctor on 5 September. The doctor's letter confirms that the applicant had been fit since 30 July. On 5 September the applicant had told his doctor that he had suffered from gastro-enteritis during the first week of term and a retrospective certificate was provided to that effect. There was a conflict of evidence between the applicant and Mr Garnett as to whether the applicant had said on 3 September that he had had "a bit of a tummy bug". What was undisputed was that on 3 September the applicant said that he was then fit for work."
It cannot be said that there was no material on which the Employment Tribunal could have concluded that "the Governors were entitled to conclude that despite a medical certificate obtained after the event the applicant had not been truthful to his reasons for absence at the start of the term and that he had in fact been fit for work".It was not as if the Hutchinson case was referred to as being conclusive or even as binding on the Employment Tribunal. It was merely that they said they were assisted by it. It is not helpful for Mr Lowe to show that the Hutchinson case, in point of fact, was distinguishable from his case. The Tribunal was referring to it simply to establish that an employer is entitled to go behind a doctor's certificate in appropriate circumstances. That cannot be said to be wrong as a principle and the Employment Tribunal does no more that recognise the existence of that principle.Mr Lowe complains that the Employment Tribunal's treatment of the period from 27 to 30 June did not take into account sufficiently the doctor's advice which had been given. That period was dealt with in the conclusion of paragraph 2 and the beginning of paragraph 3 of the Employment Tribunal extended reasons. They set out that a further certificate was obtained on 4 July, a certificate for a further week on 21 July that the applicant was seen by his doctor on 30 July after the end of term and that he was told that he was fit to return to work. Accordingly the applicant was away from work from 27 June until the end of the academic term.

The Tribunal continued:-

"Friday 27 June was the deadline for the submission of year 9 and year 12 reports. On the week-end of 28 and 29 June the applicant went to Yorkshire to attend celebrations for his parents' Golden wedding. He did so without having submitted the report. The applicant's evidence in relation to this week-end was inconsistent in a number of respects. For example as to whether or not some completed journeys were taken to Yorkshire and as to how the applicant made the journey. We heard conflicting evidence……".The events of 27 to 30 June were held not alone to justify dismissal but in the Employment Tribunal's view they did justify the Governors in feeling that Mr Lowe had not been wholly honest with them and it cannot be said that there was no evidence upon which the Employment Tribunal could have regarded that as a view that was open for the Employer reasonably to take. The Tribunal plainly preferred the employer's evidence to Mr Lowe's on a number of points and they saw and heard the witnesses. As we have told Mr Lowe, and as is inescapably to be recognised, the facts are the province of the Employment Tribunal. If there was some evidence on which they could have concluded as they did then that suffices and that in our view is the case here. There was some evidence on which they could have concluded as they did. Whether or not we would have concluded as they did is wholly immaterial. We see no error of law on this first point in the annex to the appellant's PHD form.

The second point was:-

"That the Tribunal's findings of fact concerning whether or not I had been honest or given different versions of various events were so unreasonable as to be perverse."
Mr Lowe's complaint here is that he had been honest and consistent in the giving of evidence and yet had been held to have been neither. Again, Mr Lowe is up against the difficulty that the Tribunal saw and heard the witnesses including, of course, his own testimony and they received written statements and written documents and they explained their conclusions.We cannot assume that they paid no attention, for example, to the minutes of the disciplinary hearing, just because they are not specifically mentioned. Indeed, in argument Mr Lowe has acknowledged that it would be unprofessional of them not to have had those papers in mind and he does not submit that they cannot have had them in mind. They did receive letters from a womanex-partner of Mr Lowe, which material, he said, was stimulated by a bad relationship between him and his ex-partner which existed at the time. It was for the Tribunal to evaluate such material. One cannot, of course, exclude material simply because it is hostile and it was for the Tribunal to assess whether it had any evidential weight. They do not in terms seem to have attached any probative weight to it and we cannot say that they erred in receiving the material or in treating it as they did.Mr Lowe complains that a doctor's letter was not given sufficient weight and he has read us the letter but it is quite plain that the Tribunal had it in front of them and had in mind quite full detail of when the doctor was seen, what the doctor had said, what he certificated on which occasion and so on. It is not for us to re-open the case on the facts. Indeed, we would have to re-open the whole case to see whether a re-opening on the facts was appropriate. Looking instead to find points of law in Mr Lowe's address to us we are unable to find points of law and so even at this stage we must dismiss the appeal.