MR PETER ALBERT GUMSLEY v DONCASTER METROPOLITAN BOROUGH COUNCIL [2000] UKEAT 454_00_2510

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 454_00_2510Case No Appeal No. PA/454/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR PETER ALBERT GUMSLEYAPPELLANTDONCASTER METROPOLITAN BOROUGH COUNCILRESPONDENT
Before
Mr Justice LindsayDate 25 October 2000
[1]APPEARANCES For the Appellant MR ELDRED TABACHNIK QC + MR STEPHEN BEDEAU (of Council) Instructed by Messrs Attey Dibb & Glegg Solicitors 31 Regent Street Barnsley South Yorkshire S70 2HJ For the Respondent MR ANDREW PRESTWICH (of Council) Instructed by Miss H M Fullard Doncaster Metropolitan Borough Council Legal Services Department PO Box 71, Copley House Waterdale Doncaster DN1 3EQ DX-12569 MR JUSTICE LINDSAY (PRESIDENT) I have before me the Appeal of Peter Albert Gumsley in the matter Gumsley v The Doncaster Metropolitan Borough Council . Mr Gumsley appeals against the Registrar's Order refusing to extend time within which he might lodge his Notice of Appeal. Before me today Mr Gumsley has been represented by Mr Tabachnik QC leading Mr Bedeau and the Metropolitan Borough Council, which I shall generally just call "Doncaster", by Mr Prestwich.[2]On 7 April 1995 Mr Gumsley lodged an IT1 claiming unfair dismissal, payment in lieu of notice and holiday pay; the dismissal he was complaining of was alleged to be as at 20 January 1995.[3]On 10 May 1995, Doncaster lodged an IT3 alleging that he had been defrauding the Council by recording himself as at work when in fact absent and not on official business.[4]On 4, 5 and 11 October 1995 there was a 3 day hearing at the Employment Tribunal at Sheffield.[5]On 4 December 1995 the decision was sent to the parties. It was the decision of Mr R Lloyd Williams, Chairman, Mr R. Thwaite and Mr M.A. Hussain. The unanimous decision of the Tribunal was that the Applicant was fairly dismissed. I will only read a few passages from the Extended Reasons. Paragraph 15 says:
"For the respondent we heard evidence from Mr Springer, Mr Burns, Mr Hagyard and from Mr Hull from Personnel. The respondent was not going to call Mr Hull but the Tribunal decided that it would like to hear from him. The applicant gave evidence on his own behalf but did not call any witnesses. It is incumbent upon the respondent to establish a reason for dismissal. We have no doubt that it has done so in this instance."
In their paragraph 24 they said this:
"To sum up therefore, there is no doubt that the respondent had reasonable grounds to suspect that Mr Gumsley was not performing his duties as he should have been. An audit team was asked to carry out observations and report back. The report revealed that the applicant was regularly at locations during working hours without justification . His explanations failed to satisfy the respondent. They were disbelieved. The respondent's officers were perfectly entitled to conclude from the evidence that the applicant was not carrying out his duties in the proper manner and that his activities amounted to cheating. He was given every opportunity to present his case. Another employer might have given the applicant a severe reprimand and another chance to redeem himself, perhaps a last chance. This particular employer, a local authority accountable to the public, decided that the applicant's conduct was wholly unacceptable. He was effectively cheating and this amounted to gross misconduct. We, ourselves, might have been one of those employers who might decide to take the first course and give the applicant another chance but that is not to say that the employer in this case, taking as it did the second, much harsher course of dismissal was wrong or unfair. It was a sanction which, in our view, was available to the employer and we cannot say that no reasonable employer would have adopted it in the circumstances of this case."
And at the foot of their decision they say:
"In this case the sanction was indisputably harsh but we cannot say it went beyond what a reasonable employer might do in the circumstances of the case. The dismissal, though harsh, was fair"
That was sent to the parties, as I mentioned, on 4 December 1995 and therefore the 42 day period during which an Appeal might be lodged expired on 17 January 1996.[6]Nothing, so far as concerned the Employment Appeal Tribunal, happened until 10 April 2000 when a Notice of Appeal was received. Of course, it did itself recognise that it was comprehensively out of time. It said in its paragraph 6:
"The ground upon which this Appeal is brought is that new evidence is now available that could not with reasonable diligence have been obtained for use before the Tribunal and it is submitted that the evidence is relevant and that it would probably have had an important impact on the outcome of the case. Further, the evidence is credible. One member of the Tribunal was a Senior Labour Party Member, with considerable connections with Doncaster Council, and Councillors Stockhill and Welsh in particular. This relationship would have been formed over a long period of time. As there was substantial likelihood of bias in his situation, it was not acceptable that he should have been sitting on the Tribunal, as the rules of natural justice are likely to have been breached. The identity of the person concerned did not emerge until long after the Tribunal had published its findings."
It is rather hard to understand how the identity of the person concerned did not emerge if the person was sitting on the Tribunal.[7]Mr Gumsley said that he had made a number of enquiries and a number of complaints, whilst he was still employed at the Doncaster, particularly as to the propriety of a payment of some £10,149 by way of kennel fees. He adds in his Notice of Appeal or Application, in his paragraph 6.13:
"The Appellant had not appreciated the significance of his enquiries and the possible effect his enquiries was having on those who had "unlawfully" agreed to pay the dog kennel invoice and conceal their actions by losing the expenditure in the accounts; with the knowledge of the audit section. The Appellant was not aware of the significance of his enquiries until he received a copy of the District Auditor's report that revealed widespread corruption in the Respondent's Council."
[8]It is difficult to get to the bottom of this dog kennel fee matter. It seems that a dog, in circumstances not wholly explained in the evidence, was impounded by the police. It was kept for a while and whilst so kept it had puppies and, ultimately, either for the dog or the puppies or both, a bill of £10,149 was required to be paid for the cost of the kennelling. A question arose between the police and Doncaster as to who should bear the sum or perhaps in what proportion between them. It is Mr Gumsley's understanding that a large part of the £10,000 odd, at the very lowest over £8,000, was money that cannot be proved to have necessarily been wrongly paid by the Council (in the sense that it cannot fully be asserted that it was not a debt that the council had to meet) but that the sum was involved in a cover up in the sense that the manner of its paying was concealed and then hidden in the accounts of Doncaster and that at the lowest there was a cover up. He says there was something worse than a cover up in relation to these kennel fees.[9]After he had been dismissed Mr Gumsley continued to make enquiries in relation to the kennel fees subject he made a complaint, in particular on 19 January 1998, to the district auditors who were then understood to be looking into the affairs of Doncaster which were very much under a cloud because it seemed there had been numerous allegations of corruption in relation to the Council and, indeed, general mismanagement in relation to the Council.[10]It was not until 2 May 2000 (the Notice of Appeal, having been received on 10 April 2000) that the Employment Appeal Tribunal pointed out that the Notice of Appeal was 1547 days late in the sense of its being that far outside the 42 day period of which I spoke. The Employment Appeal Tribunal wrote to Mr Gumsley asking whether he intended to make an application for an extension of time.[11]On 31 May 2000 he indicated that, indeed, that was what he wanted to do and he put in a paper that made a number of points to some of which I shall refer. In paragraph 21 his instrument of 31 May says:
"He obtained witness statements from Douglas Wright, a trade union official, Councillor Martin Williams and T Nadolny. These witnesses state that the decision to terminate his employment was taken prior to his eventual dismissal. There is documentary evidence to show that his post was being listed to be removed by the Department at the time he was suspended: the disciplinary hearing and appeal was a sham. Mr Gumsley maintains that the decision to terminate his employment was to do with the fact that he was going to raise the issue generally that the payment of the dog kennel fees was neither authorised by the Council, nor were they the responsibility of the Council and was, therefore, ultra vires. Management ignored both Standing Orders and Financial Regulations of the Council. A little later in his paragraph 23: "
In addition to the above, it was discovered after the Tribunal that one of the members was the former Chairman of the South Yorkshire County Council at the time that Authority was disbanded. As a senior Labour Party Member, and having considerable connections with Doncaster Council members, he would have close association with Councillors Stockhill and Welsh, who were involved with the Environmental Services Directorate and in the decision to terminate Mr Grumsley's employment. Had the Appellant known the identity of this Tribunal member, he would have objected at the time, on the grounds that his close association with those Councillors and their relationship with the Appellant was such that he may well have been biased in his judgment. The member concerned did not declare his political connections with the Council." Then in paragraph 24:
"Notwithstanding the length of the delay, it was not possible to present his Appeal until after the District Auditor's report."
It is to be borne in mind that the District Auditor's report was published before January 1998; it would seem to have been published in December 1997. Mr Gumsley had complained in writing to the District Auditor on 19 January 1998.[12]On 29 June 2000 Doncaster responded, opposing any extension of time and the Council pointed out that Mr Gumsley had on 4 December 1995 already appealed to the Employment Appeal Tribunal in this very matter but had withdrawn his Appeal on 14 April 1997. On 12 July Mr Gumsley's final submissions were received by the Employment Appeal Tribunal on this point and then on 13 July there was made the Registrar's Order, part of which reads as follows: "UPON DUE CONSIDERATION of the fact that an appeal against the same decision of the Employment Tribunal sitting in Sheffield and entered in the Register on the 4th day of December 1995 was submitted and later withdrawn and thereby dismissed by consent. AND UPON CONSIDERATION of the judgment given in UNITED ARAB EMIRATES AND(1) MR ABDELGHAFAR(2) DR A K ABBAS AND UPON FURTHER CONSIDERATION of all submissions IT IS CONSIDERED that there has been shown no reasonable or acceptable reason why an extension of time should be allowed for submission of a second notice of appeal AND IT IS ORDERED that the application for an extension of time in which to present the notice of appeal is refused. It is notable that that earlier Notice of Appeal was withdrawn and dismissed by consent.[13]On 17 July Mr Gumsley's solicitors indicated a wish to appeal against the Registrar's Order and on 18 July sent in the Grounds of that Appeal.[14]On 20 October an Affidavit of Mr Gumsley was sworn directed to the period January 1999 to April 2000. So much for the background to the matter. It goes without saying that if leave to appeal against the decision of December 1995 were to be given in October 2000, an extremely compelling case would need to have been shown and the fact that Mr Gumsley had previously appealed in 1995 and had then by consent withdrawn the Appeal can only make the burden upon him even heavier. Whilst, if everything that is laid before me by way of complaint against the officers or the general conduct of Doncaster some years ago were all to be true, it would be plain that Doncaster had been peppered with corruption or inefficiency, what is alleged here on this application seems to be chiefly not primary fact but rather suspicion heaped upon innuendo[15]Thus, an initially unidentified member of the Tribunal itself, since identified, is said to have been a former Chairman of the South Yorkshire County Council when that authority was disbanded. It is said, therefore, he 'would' have had close association with Councillors Stockhill and Welsh. Quite what that association and its nature and its materiality was or would have been is completely unproven in evidence.[16]Then it is said that those 2 Councillors were 'involved' in the Environmental Services Directorate. But, how involved they were and how their involvement might be material is not spoken to in evidence either. Then it is said that those Councillors were involved in the decision to terminate Mr Gumsley's employment, but that involvement and its nature is also unproven in the evidence. That evidence properly-so-called is really quite limited. Speculative assertions are made as to forms of misgiving or unease but they really come down to nothing greater than a sort of alleged guilt by association.[17]The disciplinary appeal panel was said to have been chaired by a Mr Tom Roebuck. He had, I am told, been sentenced some 20 years before in the Poulson affair, but I cannot assume that that sentence, if it was the case, made him unfit to act as he did in 1994. Nor do I have any explanation of why, if he was so obviously unfit, had Mr Gumsley not objected at the time to his presence on the panel. Then I am told Mr Beard travelled with Mr Stockhill and was somehow involved in allegations as to the fiddling of travel expenses and that he accordingly resigned in January 1998. But no evidence is given to show me why he resigned nor can I assume simply from the fact he had cheated on expenses at some time that that had unfitted him to be a member of the disciplinary appeal panel in 1994.[18]Mr Stockhill, I am told, had made a point of not being on the disciplinary appeal panel but, says Mr Tabachnik, he could have influenced it. I cannot assume that he did influence it or that, if he did, he was in way malign. A member of the Employment Tribunal was Mr Thwaithes and there was, says Mr Tabachnik, a real danger that he had had words with Mr Mr Stockhill or members of the panel but there is no evidence at all to substantiate any such danger.[19]There is a whole area where one can see that what is being relied upon is really no better than innuendo. It is said that Mr Gumsley had statements from witnesses which disclose a conspiracy to terminate his employment. I have seen those statements. They are 3 in number. At their strongest they consist almost entirely hearsay. But, importantly for present purposes, it is hearsay as to events in 1994 or 1997. But the relevant delay that needs to be explained is right down to April 2000. No explanation is given to me as to when it was that the events spoken to in those 3 statements first came to Mr Gumsley's notice.[20]Mr Gumsley complains as to the membership of the disciplinary appeal panel, as I have mentioned. It seems it was a 4 person panel. One of the 4, a Mr Collins, had, it seems, years later been convicted of embezzlement and of a wrongful misapplication of public money, perhaps by way of fiddling of travelling and other expenses. Precise details of the charge do not greatly matter. But there is no evidence impugning the conduct of the other three and in any event one cannot simply assume the presence of dishonesty in a man in one regard and at one time by showing that he had been dishonest in a quite different regard at some quite different time.[21]Then Mr Gumsley alleges that there is documentary evidence to show that his post was being listed to be removed at the time that he was suspended. Not only is that not, of itself, suspicious, as the Council might genuinely have thought for good reason that the post was redundant or heading that way, but, more significantly for immediate purposes, the documentary evidence is not put before me. Indeed, so far as concerns his possible redundancy, the decision of the Tribunal itself says this:
"The applicant also suggested that the respondent "got rid" of him as it did because it was seeking to avoid having to make substantial redundancy payments. Quite frankly, on the evidence we have heard there is just no merit whatsoever in this contention. There was in our view simply no basis for such a contention."
[22]But, if redundancy had truly been in mind, then that would in any event have undone whatever sinister significance that might otherwise have been in his post being considered and being listed as possibly to be removed even before he was suspended, unless, of course, the putative redundancy was also said to be a product of the conspiracy which I have not understood to have been alleged of the case.[23]Then the Appellant, Mr Gumsley, says that the credibility of Councillors Ray Stockhill, Peter Welsh and Derek Beard has been rendered questionable by subsequent events. But, leaving aside whether in any event it would suffice merely to say that their evidence had become questionable, none of them gave evidence to the Employment Tribunal and an assessment of the respective credibilities of those three played no part, so far as one can tell, in the Tribunal's decision.[24]Then the Appellant says this:
"The man who dismissed the Appellant, Mr Sprenger, wrote out questions for the panel members to ask at the Appeal hearing. This was a breach of the principles of natural justice."
But, there is no proof of that in evidence properly-so-called. Nor is a date put to the time at which Mr Gumsley first learned of that fact, if such it be, a consideration which obviously would be material where an extension of time is being sought.[25]It appears, and this is a reference back to the witness statements of which I have already spoken in part that even when a colleague gave him what surely should have appeared to him to be real grist to his mill Mr Gumsley still delayed. On 24 March 1999, a colleague of his, Mr Williams, made a statement, one of the three to which I have referred, that said, inter alia, this:
"About two years ago, and whilst investigating matters relating to the dismissal of myself and Mr Peter Gumsley from the employment of the Doncaster Metropolitan Borough Council, my wife and I attended a social function in the village of Old Brodsworth where I had lived for some years. At that function I saw Mr David Telford, a Principal Environmental Health Officer employed by the Council"
And a little later he indicated of Mr Telford:
"He indicated that my case had been compared with that of Mr Peter Gumsley and that it is why the decision to dismiss me had been made. He then told me that Peter had to be got rid of, because 'he knew too much and was making too many waves.' This suggested to me that Mr Gumsley was dismissed, not for the alleged timekeeping charges made against him, but because he had discovered something which other members of staff did not want to be exposed. Mr Gumsley had always claimed that he was the victim of a deliberate plot to get rid of him, and Mr Telfords's remarks confirmed to me that Mr Gumsley was got rid of, the allegations against him having been contrived and deliberately misrepresented at the appeal Hearing and the Tribunal, as he had claimed."
And a little later still:
"Mr Gumsley was about to disclose important information to the chief Executive of the Council, supported by his Trade union, Unison, but he was prevented from doing by a rapidly organised plot which stopped him from doing so. Mr Telford was one of the Officers involved in activities which were to be brought to the attention of the chief Executive, and so he had a personal interest in ensuring Mr Gumsley's dismissal. The other members of staff involved were those who made the allegations against Mr Gumsley and myself, and then sat in judgement on both our cases."
Signed Martin Williams, 29 March 1999[26]Despite receiving that, Mr Gumsley did not lodge his Notice of Appeal until more than a year had passed and his explanation for the passage of that further time is to my mind unconvincing. It is said that he was actively involved in other litigation with the Council. It was litigation in which he was represented throughout by the same solicitors as represent him in this case. It is literally incredible that time could not have been afforded to draw up a Notice of Appeal before April 2000. Even on the best possible interpretation of events from Mr Grumley's point of view, the jigsaw was complete or the penny had dropped (to use alternative expression which Mr Tabachnik has used) on 4 October 1999, and yet no Notice of Appeal was lodged until 10 April 2000.[27]I should add that some private investigators enquiries that I will refer to were completed in January 2000. The notion that Mr Gumsley was fired in order to hush him up and to avoid public discussion over the dog kennel fees (which he says, with some reason, would have been an embarrassing subject for the Environmental Services Committee) seems, in my judgment, ludicrous. Not only might one think that the surest way of exciting an employee into giving publicity about a matter of complaint against his council employer that was embarrassing to his employer there would be for the employer to dismiss him but also, once he was dismissed, he plainly could (as in fact he did) continue to complain. Moreover, once he was dismissed, of course, he was even less under Doncaster's control and influence than he would have been as a continuing employee.[28]Mr Tabachnik asserts – and it is at the very heart of his case - that the whole disciplinary process here that led to Mr Gumsley's dismissal was spurious and was done with 2 aims. Firstly, to stop him meeting and speaking to the Chief Executive, especially about the kennel fee story, and, secondly, to stop him giving publicity to that story. But it is literally incredible that that should be so. There is no evidence that suggests that the Chief Executive was accessible only to existing employees. How could dismissing Mr Gumsley stop him meeting the Chief Executive or writing or telephoning the Chief Executive? No-one could reasonably think that it would. How could dismissing him stop him giving publicity to his views on the kennel fee story? No-one could reasonably think it would. That he did, in fact, give publicity to the story is shown from his own evidence of newspaper clippings.[29]What seems likely most to have told against the Appellant at the Disciplinary Appeal and at the Employment Tribunal was Mr Gumsley's inability effectively to counter the Council's report that had shown him not to have been at work when it was thought that he should have been and hence which proved absenteeism of a kind. The Tribunal said:
"Observations carried out during the week 8 – 12 August revealed that the applicant had been out on 5 consecutive days at two places, Hexthorpe Park and Sandall Beat, adjacent to Doncaster race course. These visits had not been diarised. Further, he was logged as having been on duty during the periods in question. There was, said the respondent, no justification for his presence at these places despite the applicant maintaining that at all times he was working and carrying out his duties. The applicant "rambled" when confronted with the allegations at his meeting with Mr Burns and refused to specify what he was doing at the various times."
[30]A little later in their paragraph 13 the Tribunal, speaking of Mr Gumsley say:
"He quite accepts that he did not adhere to the "clocking" rules and the rules relating to diary entries but he maintains that he was at all times working."
The Tribunal held on the facts:
"Procedures were followed and whilst they could perhaps have been more perfectly carried out they were, in our view, carried out in a sufficiently fair and proper manner. No serious complaint or criticism was made about them either by the applicant or his representative (the trade union) at any stage prior to this Tribunal hearing."
And then they said in paragraph 24: "To sum up therefore, there is no doubt that the respondent had reasonable grounds to suspect that Mr Gumsley was not performing his duties as he should have been. An audit team was asked to carry out observations and report back. The report revealed that the applicant was regularly at locations during working hours without justification . His explanations failed to satisfy the respondent. They were disbelieved. The respondent's officers were perfectly entitled to conclude from the evidence that the applicant was not carrying out his duties in the proper manner and that his activities amounted to cheating.[31]One cannot embark, in an application such as this, on a full appraisal of the prospect of the merits of an appeal, but the decision against Mr Gumsley appears to have been a straightforward decision on facts found against his interest on the evidence led at the time. It is not, on that account, an appeal with any very obvious prospect of success as, of course, the Employment Appeal Tribunal hears appeals only on points of law.[32]On the argument as presented to me, it is not possible, given the huge lapse of time, to see that I have been given any adequate explanation for the immense delay. Nor, although the case is plainly exceptional in some respects, is it exceptional in the material respect of showing an exceptional case for an extension of time. The explanation for delay is at points unsubstantiated, incomplete or unconvincing.[33]Further as to the merits of Mr Gumsley's appeal, as I mentioned the Employment Tribunal heard evidence as to the reasons for the dismissal and gave its conclusion on the material it had before it. It is not displaced or even to any degree shown to be likely to be displaced by any evidence that has been produced to me today or which has otherwise been shown to be available to Mr Gumsley. The appeal would thus be in the highest degree speculative. Moreover, although this is always difficult to measure, I cannot be sure that there is no likely prejudice to Doncaster were the events of 1994 and thereabouts to be re-opened, which re-opening, of course, is the ultimate aim which Mr Gumsley seeks.[34]Indeed, at a very stage in the argument Mr Prestwich was provided with material showing that such prejudice was likely. I had enquired of Mr Tabachnik whether the private investigators enquiries to which Mr Tabachnik had referred had included enquiries of Messrs Searle, Wingate and Whitehead, persons to whom Mr Gumsley had said he had given details of the dog kennel complaint before July 1994 and whom he said he believed had passed that information on, which had led (he said) to a conclusion by Doncaster that in order to avoid embarrassing complaints steps should be taken to get rid of Mr Gumsley. That intent, he said, then led to the collection of evidence against him, evidence of a failure to attend at work when he should have attended. Thus, he said, the whole spurious machinery was brought into operation.[35]Mr Tabachnik handed the private investigators report to Mr Prestwich and it has since been shown to me. It shows a good number of the interviewees, presumably persons thought by Mr Gumsley to be possibly material to his case, saying that they could not now help or could not now shed any light on affairs so long ago or could not now remember much about the events of those earlier years. In the light of that late indication I certainly cannot assume that there would be no prejudice flowing to the Metropolitan Borough Council were matters to be re-opened in the way that Mr Gumsley seeks.[36]All in all, I hold the Registrar's Order to have been correctly made and, after hearing the parties at some length and considering the further papers, I, too, would not and do not extend time and accordingly I must dismiss the Appeal.