MR C E NOEL v EMPLOYMENT TRIBUNAL SERVICE [1999] UKEAT 259_99_0902

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [1999] UKEAT 259_99_0902

Case No Appeal No. EAT/259/99

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR C E NOELAPPELLANT

EMPLOYMENT TRIBUNAL SERVICERESPONDENT

Before

His Honour Judge Peter Clark Mr D Chadwick

Lord Davies of Coity

Date 9 February 1999

[1]APPEARANCES For the Appellant MR D HART (SOLICITOR) SLEE BLACKWELL 10 CROSS STREET BARSTAPLE DEVON EX31 1BA For the Respondent MR S K MORTON (OF COUNSEL) INSTRUCTED BY: THE TREASURY SOLICITOR QUEEN ANNE'S CHAMBERS 28 THE BROADWAY LONDON SW1H 9JS JUDGE CLARK:- This case graphically illustrates the different picture which may emerge at an inter-partes appeal hearing when compared with that at the ex-parte preliminary hearing; that is no criticism of the Appellant in this case, it may owe more to a possibly misguided attempt at the preliminary hearing by this Tribunal to assist an unqualified representative appearing for the Appellant to formulate his case. I may be permitted to say this because I presided over both hearings.

[2]The factual background can be shortly stated. The Appellant was at the relevant time a civil servant with 28 years service. In March 1997 he was employed as a manager at the Cardiff Regional Office of the Employment Tribunal Service, the Respondent.

[3]Complaints had been made to the Regional Secretary, Mr Rees, by a female member of staff that the Appellant had referred to her as "love". On 18 th March, Mr Rees called the Appellant into his office to discuss that matter. A loud altercation ensued during which the Appellant referred to female members of staff in terms such as "these fucking menstruating bitches", "these evil bitches" and "those bitches have finally done it this time". Those words were overheard by at least one female member of staff, Patricia Davies, who was sitting outside Mr Rees' office. The Appellant then left in a temper. He was then off sick, never to return to work before his medical retirement on 27 th July 1999.

[4]Meanwhile, disciplinary procedures were put in place. An investigation was carried out by the Secretary of Tribunal's in Scotland, Mr Easton. He reported to Mr Oates, the Director of Personnel. The upshot was that Mr Oates imposed a number of disciplinary sanctions on the Appellant by letter dated 20 th May 1998. They were; demotion from management grade 5/6 to 3/ 4, no further promotion for 3 years from 20 th May 1998, a transfer involving a one year probationary period; training and a written warning.

[5]The Appellant then brought a complaint of unfair dismissal by an Originating Application presented to the Employment Tribunals on 27 th July 1998. That complaint came before an Employment Tribunal sitting at Bristol under the Chairmanship of Mr Brian Walton on 9 th and 10 th December 1998. By a decision with extended reasons dated 7 th January 1999, the Tribunal dismissed the complaint on the basis that there had been no dismissal.

[6]We go straight to the single ground that was permitted to proceed to a full hearing. In the judgment which I gave on behalf of the Appeal Tribunal at the Preliminary Hearing held on 7 th June 1999, I identified the issue in this way. Did the Tribunal fall into error in its approach to the question of constructive dismissal by failing to consider whether the penalties imposed although provided for in the contact of employment, were wholly disproportionate to the disciplinary offence of which the Appellant had been found guilty? See BBC v Beckett

[1983] IRLR 43

. The remaining grounds of appeal were dismissed. However it was not clear at that ex-parte hearing whether the sole point had in terms been taken below. We specifically left it open to the Respondent to argue, if it was not, that it could not now be taken for the first time on appeal.

[7]That point has been taken at this full hearing by Mr Morton who appeared on behalf of the Respondent below. He tells us that it was not raised, either in evidence or argument by the Appellant's then representative, Mr Griffiths, a retired solicitor. Mr Hart's instructions are that the point was taken in closing. We cannot accept that it was. Had it been taken, we are satisfied that the question of proportionality would have been addressed by the Tribunal and its very experienced Chairman in their reasons.

[8]In fact, the reasons are directed to the question of dismissal raised in Hogg v Dover College

[1990] ICR 39

, the case on which Mr Morton tells us, the Appellant's submissions through Mr Griffiths relied. Hogg was not a case concerned with disciplinary penalties. Beckett was not cited below.

[9]Should we allow the point to be taken now? We think not. There are no exceptional circumstances of the kind envisaged by the Court of Appeal in Jones v Governing Body of Burdett Coutts School

[1998] IRLR 521

which arise here. Were we to allow the point to be taken further findings of fact would be necessary; in particular, whether the penalties were or were not disproportionate to the offence.

[10]Mr Hart has sought to persuade us, applying the approach which we took in Langston v Cranfield University

[1998] IRLR 172

a case concerned with the well established questions arising in cases of alleged unfair redundancy, that in the case of constructive dismissal the principle in Beckett ought to be considered by an Employment Tribunal as a matter of course. We are not prepared to go that far. The principle in Langston may be extended to the well known principles laid down by Lord Denning M.R. in Western Excavating v Shar p

[1978] ICR 221

, but no further in our judgment.

[11]It follows, in these circumstances, that the Appellant not being permitted at this full hearing to take the point identified at the preliminary hearing as the sole remaining ground of appeal, this appeal must be dismissed.