MRS KERRY MITCHELL v THE COURT SERVICE [2000] UKEAT 1190_99_2706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] EAT 1190_99_2706Case No Appeal No. EAT/1190/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS KERRY MITCHELLAPPELLANTTHE COURT SERVICERESPONDENT
Before
His Honour Judge David Wilcox Mr I Ezekiel Mrs T A MarslandDate 27 June 2000
[1]APPEARANCES For the Appellant MR JAMES MURPHY (of Counsel) Instructed By: Mrs Sue Wittrick Messrs Huitson & Wittrick Solicitors 3/5 Tammy Hall Street Wakefield West Yorkshire WF1 2SX For the Respondent MR RAYMOND HILL (of Counsel) Instructed By: Employment Litigation Team The Treasury Solicitor Queen Anne's Chambers 28 Broadway London SW1H 9JS JUDGE DAVID WILCOX : This is an appeal against the decision of an Employment Tribunal held at Leeds on 12, 13, 14 and 22 July 1999. The Applicant (the Appellant before us) was an Administrative Officer in the Civil Service in the Lord Chancellor's Department in the Court Services Agency, employed in Wakefield, West Yorkshire. The Employment Tribunal dismissed her complaint that she had been unfairly dismissed under section 94 of the Employment Rights Act 1996.[2]The principal ground of the appeal is that there was an error of law or a perverse finding or that it was perverse of the Employment Tribunal to find and/or conclude that the Respondent had expressed the principal reason for the dismissal. There were in fact 17 complaints made against the Appellant. Those 17 complaints are set out at page 66 of the bundle entitled "Principal Issues and Incidents" there grouped. They are grouped into the complaint in relation to Roger Would, the complaint of Carol Hughes and the complaint of Victoria Fox.[3]The complaints are complaints of conduct against the Equal Opportunities Code of the Lord Chancellor. I will make reference to that at this stage because, on the face of it, as the Tribunal observed below, it seems strange that this is the road down which the employer went because Equal Opportunities normally deals with sexual equality and racial equality but, of course, it does not confine itself to only those matters. As we see when we examine it and as the Tribunal below examined it, it is far wider than that. I demonstrate its scope by making brief references to several paragraphs. Paragraph 1.5.1:
"1.5.1 Without exception every member of the Department has an individual responsibility to ensure equality of opportunity and fair play for all. Details of the Department's policy on the subject of equal opportunities are outlined in the Policy Statement, which can be found at Appendix 1A and has been jointly agreed and endorsed by the Official and Trade Union Sides of the Departmental Whitley Council. All parties have affirmed their full support for the principles of equality of opportunity and are determined to ensure that this policy is effectively implemented. All staff are expected to read and act upon the contents of the statement."
Paragraph 1.1 is in similar wide terms as to achieving fair play and equality as between employees of the Lord Chancellor's Department. "The Department's Commitment 1.1 The Departmental Management Board is fully committed to the principle that staff in the Lord Chancellor's Department will have equality of opportunity for employment and advancement on the basis of their ability to do the job. This is important, not only so that everyone has a fair chance of developing and realising their expectations, but also so that the Department makes effective use of the workforce in meeting its objectives." And then at 4.5, by way of example only:
"4.5 Line managers are expected to be impartial in their dealings with all staff. In other words, they should ensure that they provide a working environment free from harassment and unfair treatment."
[4]Thus, it is wide, and was considered appropriate by the Appellant and the Respondents. When considered by the Employment Tribunal at paragraph 11 of its findings they comment:
"11. … We looked at that Policy. It appears largely to deal with issues as to race discrimination and sex discrimination, but all parties accepted that it also covered issues of harassment. That harassment included the general approach of one member of staff to another and was not limited to discrimination as understood by these Tribunals in claims under the race and sex discrimination legislation. The Policy is extremely detailed and lengthy and again need not be set out here. …"
[5]The Tribunal also referred to the comprehensive Code of the Respondent relating to disciplinary proceedings under the general heading "Formal Disciplinary Procedures" which includes as an example of gross misconduct "Wilful Breach of Department's Equal Opportunities Policies".[6]That is the background against which the 17 complaints, which I have already made reference to, were framed. I go back to them briefly and deal with one of the groupings to illustrate how all of the groups in fact are set out. Because it is a short one I will deal with the one relating to Carol Hughes:
"3. That you refused to sign for sick absence warning letter on 3 April 1997. 4. That you tried to coerce Mrs Hughes into saying that she had been 'put up to it and that Roger was out to get her' (Kerry Mitchell). 5. That you behaved in an aggressive and intimidating manner at an interview on 19 March 1997. 6. That, despite Carol Hughes' express wish that you should not do so, you secretly tape recorded meetings held by her on 19 March 1997, 1 April 1997 and 3 April 1997."
They are all instances of the principal allegation that there was a breach in relation to Ms Hughes of the obligations of Miss Mitchell under the Equal Opportunities Policy. The allegation is the breach or offence. Those four matters I have just referred to are instances or particulars of the main allegation that was made.[7]The error of law alleged it is that the principal reason of dismissal is not shown and that the finding was a perverse finding.[8]That error of law or perversity of finding is predicated in the careful submissions of Mr Murphy.[9]We were referred to the letter of 23 June 1999 at page 20. This is a letter is in fact a letter sent on 23 June 1998, on behalf of Mr Farmer by Ms Armstrong, the Personnel Operations Manager of the Lord Chancellor's Department of the North Eastern Circuit Administrator's Office.

(a) , (b) and (c) are:

"(a) That you harassed and intimidated Roger Would … (b) That you bullied, harassed and intimidated Carol Hughes … (c) That you bullied, harassed, intimidated and threatened Victor Fox …"
It is submitted that an analysis of the letter indicates that the emphasis is being placed upon harassment, intimidation and threatening. That paragraph is preceded by this statement of fact:
" … and all the facts of the case, the Circuit Administrator has found against you on all seventeen allegations which made up the charges against you."
Therefore, (a), (b) and (c) all depend upon particulars contained in the 17 charges. It goes on to say:
"… that, as an employee of the Court Services, you breached the Lord Chancellor's Department Equal Opportunities Policy, and that in doing so you fundamentally breached the trust placed in you and brought discredit on the Court Service, an executive agency of the Lord Chancellor's Department."
That is developed in the second paragraph, on the second page "He believes that your behaviour represents ..". I will not set out that paragraph in detail.[10]It is submitted by Mr Murphy that the basis of the disciplinary finding is harassment as opposed to the other complaints such as the taping of the conversations.[11]We were then taken to the findings of the pinnacle of the disciplinary appeal procedure, the Civil Service Appeal Board. They heard this matter at Leeds Combined Court Centre on 1 February 1999. I make reference to their final paragraphs (i) and (j). I take up (i) half-way through, the Board refers to the investigation of allegations:
"(i) … They had been impressed by Ms Armstrong's analysis of and conclusions on the 17 allegations by Mr Would, Miss Fox and Mrs Hughes against Ms Mitchell. Ms Armstrong had presented these in four groups: admitted, proven, not proven and conflicts of evidence, and had suggested that a Board of Inquiry, as provided in the Court Service's rules, should be considered in an attempt to resolve the conflicts of evidence. This seemed to the Board to be an eminently sensible proposal since it appeared clear that there must have been witnesses to a number of the allegations who had not been interviewed. The Board considered that it had been a mistake not to interview the other staff in the Wakefield office particularly since the Board were told it was a quite small office where everybody was likely to know what was going on. While the balance of evidence might point in favour of Miss Fox's account, her evidence could have been tested, but the Court Service had failed to do so. (j) The procedural failings and the inadequate investigation might in other circumstances have rendered the dismissal unfair, but in this case by far the most serious allegations, in the Board's view, had been admitted by Ms Mitchell. Ms Mitchell had admitted first tape-recording interviews without disclosing this to the individuals concerned, which in the Board's view constituted an infringement of their civil liberties, and secondly that she had persisted in these activities after being told by Mr Would in his letter of 30 January 1997 that tape-recording was 'not appropriate and will not be permitted'. The Board agreed with the Court Service that these actions by Ms Mitchell constituted gross misconduct for which a penalty of dismissal was available."
[12]The Tribunal appeared to draw, we find, some spurious distinction between the allegation of tape-recording and the breaches of the Equal Opportunities Code, as constituting harassment. They express procedural objections impugning the findings as to matters other than tape-recording. On the basis of that (and if that analysis is correct) then Mr Murphy goes on to consider, in paragraph 23 of the Employment Tribunal's finding:
"23. The first point the Applicant makes is that she might not have been dismissed for taping alone. Mr Farmer's oral evidence was that he would probably not have dismissed the Applicant for that reason alone, especially if he believed that there were mitigating reasons for the taping. He might have enquired more into the reasons. That evidence does not, however, appear to this Tribunal to assist the Applicant. Firstly, there are other allegations which the Respondent found proved. Those were part of the circumstances. Secondly, the fact that Mr Farmer might not have dismissed for taping alone does not mean that it was unreasonable to do so. He could not, and did not, say that he would not have dismissed for taping alone; he could not do so because he never had to consider that situation."
[13]He submits that what the Tribunal are doing here is making a finding relying upon the tape-recording. As to breaches of the Civil Service Code, one can conveniently describe as the charges of harassment, they are in error because they were found to be in error by the Civil Service Appeal Board because the evidence on which they are based was impugned because it is tainted by the procedural flaws. He submits that the Employment Tribunal's findings are perverse. He says that harassment is the principal reason given for dismissal whereas they found at paragraph 23 that it was the tape-recording. On Mr Murphy's analysis harassment cannot be the proper reason because of the Civil Service Appeal Board's criticism, and he submits the tape recording reason was ruled out by Mr Farmer. Hence the decision of the Tribunal as to the reason for dismissal is perverse.[14]The approach that was taken by Mr Farmer and those investigating and adjudicating under the agreed procedure is shown as page 56 in the grouped charges. I have already made reference to the scheme of charging. The charges are breaches of the Equal Opportunities Code, the individual allegations under each name and in relation to each of the named co-employees are the particulars on which the charges are based. The way in which Mr Farmer dealt with this matter as the determining authority is exemplified in his findings that were before the Employment Tribunal at page 58. There, he goes through each allegation very thoroughly, he sets out the pros and the cons and his findings and at paragraphs 47 to 53 he sets out very fully his conclusions. I will go to those conclusions. It is headed "Conclusions on the Charges":
"47. I have found allegations 1 – 17 proved. I find that Ms Mitchell harassed and intimidated Mr Would, that she bullied, harassed and intimidated Mrs Hughes, and that she bullied, harassed, intimidated and threatened Miss Fox. These findings substantiate a charge that: 'being an employee of the Court Service she breached the Lord Chancellor's Department Equal Opportunities Policy, and that in doing so she fundamentally breached the trust placed in her and brought discredit on the Court Service, an executive agency of the Lord Chancellor's Department'."
[15]The construction that the Employment Tribunal put upon it, the letter of 23 June we endorse. The harassment or breaches of the Code are exemplified in the 17 counts. Our view is that the Civil Service Appeal Board was in error in its analysis in identifying taping in contra-distinction to other breaches of the Equal Opportunities Code. It is not something different in nature and kind, it is merely another example or incidence of a breach of that Code towards a fellow employee.[16]We find that the Employment Tribunal set out the law correctly. We find that they applied the law accurately to their found facts. In the Extended Reasons that they carefully found they give a history of this very long (and it may be said, somewhat cumbersome) disciplinary procedure at paragraphs 5 to 16, setting out the investigation and the history and then at paragraph 17. "17. The Applicant was entitled to, and did, appeal to the Civil Service Appeal Board. We have not considered in any detail the decision of the Board. We were asked by the Applicant to note various findings that the Board had made, particularly as to the alleged inexcusable delay and as to whether the hearing before the Board constituted a review or a re-hearing. That could, of course, be important [and here are crucial words] if we found that there were substantial procedural flaws in the original disciplinary process. …" It is clear that by necessary implication they found that there were no such flaws. They go on to say:
"In the event, we have not found it necessary to consider any of the material that was before us as to the appeal. [They note]. The Applicant did not allege that there was anything inherently unfair about the procedure adopted on the appeal, so that it falls to be considered as any part of the alleged unfairness of the dismissal process. It seems to us, therefore, that we can, and should, consider this matter in the light of the information and procedure adopted up to, and including, the decision made by Mr Farmer and conveyed in Ms Armstrong's letter of 23 June 1998. …"
[17]At paragraph 18, they make a caveat as to how they have approached this matter, an understandable one in view of the bulk of documentary evidence and the extensive oral evidence they heard. They say:
"18. We are extremely conscious that the factual matrix set out above represents only a very brief summary of an extremely detailed and complex matter. We are conscious that we have not set out the substance of any of the charges that were brought by Mr Farmer, save those relating to taping of interviews. We have not even attempted to summarise the issues raised at length by the complainants and by the Applicant on the numerous investigative interviews. Both parties should, however, be aware that we have taken account of those elements of the factual matrix which seem to us to be important in reaching our decision and the subsequent paragraphs of these Reasons contain references to other material facts as and when that is appropriate."
[18]I go now to paragraph 20 of the findings, to which a great deal of criticism of the Appellant is attached:
"20. … This is clearly a case where there was more than one reason for dismissal. To put it bluntly, Mr Farmer found that the Applicant was guilty of 17 separate disciplinary offences, some of which were clearly more serious than others. Further, those disciplinary offences fall into groups. It was quite clear to us from the whole of the evidence of Mr Farmer (by which phrase we mean his written and oral evidence before us as well as the contemporary documents that he produced) that the principal factor leading to the dismissal was the Applicant having secretly taped interviews with her various managers over a considerable period of time and, in particular, having deliberately flouted the clear instruction from Mr Would that the interview with him (and by implication all subsequent interviews with other staff) must not be taped. Accordingly, we accept Mr Hill's submission that the principal reason for the dismissal was that the Applicant had directly disobeyed orders by secretly tape recording those interviews, despite the order not to do so. In so far as harassment and intimidation of other staff was also found proved by Mr Farmer against the Applicant and was also a serious matter, we have no difficulty in concluding that that was not the principal reason for the dismissal, albeit it was also important in the mind of Mr Farmer in reaching his decision…."
[19]I pause there. It is evident to us, having considered the reasons given by the Employment Tribunal and having considered Mr Farmer's letters and his reasoning, that this matter was divided up into various instances of breaches of the Equal Opportunities Code. It is right that the focus was upon tape-recordings. It should be. The use of the tape-recordings, in view of the reasons found by Mr Farmer is corrosive as to personal relations within an office. It is an incident of harassment too. The fact that it can also be harassment does not derogate from the fact and the finding that this was also a breach of the Equal Opportunities Code as so found. The tape-recording in the circumstances, as we have already indicated properly, was the principal offensive behaviour found. It breaches the Equal Opportunities Code. It is also a species of harassment and threatening conduct to a fellow employee.[20]We think that in the reasoning put forward by the Tribunal that they have properly in factual terms identified the principal offensive complaints that they found. It cannot be said that there is either an error of law or a perversity of finding of fact. They gave due consideration to the fact that Mr Farmer made the concession referred to at paragraph 23. He was entitled, and the Tribunal was entitled, to find that the other facts and matters properly enquired into and so found on adequate evidence in our judgment were corroborative or confirmatory as to the principal finding. We dismiss this appeal.