MR M AMAECHI v LIVERPOOL CITY COUNCIL [2000] UKEAT 488_00_1910

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 488_00_1910Case No Appeal No. EAT/488/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M AMAECHIAPPELLANTLIVERPOOL CITY COUNCILRESPONDENT
Before
Sir Christopher BellamyDate 19 October 2000
[1]APPEARANCES For the Appellant MISS ANNE WHYTE (of Counsel) Instructed by: Jackson Canter & Co Solicitors Merseyside House 9 South John Street Liverpool L1 8BN For the Respondent SIR CHRISTOPHER BELLAMY QC This appeal comes before us by way of a preliminary hearing to determine whether the Appellant can demonstrate a reasonably arguable error of law in the decision of the Employment Tribunal held at Liverpool on 30 November 1999 and 10 and 11 February 2000 which resulted in the decision sent to the parties on 21 February 2000. By that decision the Tribunal dismissed the Appellant's complaints of unfair dismissal and racial discrimination.[2]The general background to the matters before the Tribunal is that the Applicant was employed by the Respondent from 1991 to 1999, first as a trainee accountant and later as an auditor. There were, at a later stage, certain concerns about the Applicant's council tax and a renovation grant he had received, and the Respondents, who are Liverpool City Council, his employers, carried out an investigation. To put it very shortly, that investigation led to a disciplinary hearing which took place in April, May and June 1999 in which there were complaints against the Applicant in relation to three elements: certain irregularities with regard to a renovation grant, the Applicant's conduct of his council tax responsibilities, and his general conduct during the investigation.[3]The Tribunal found that Mr Callaghan, who was the relevant officer of the Council, was satisfied that there was substance in the allegations made, and that he, Mr Callaghan, considered that the Applicant had undermined the trust placed in him as an auditor, and that what had occurred amounted to gross misconduct. The Applicant was therefore dismissed by Mr Callaghan and an appeal against that decision was rejected in November 1999.[4]In its judgment the Tribunal sets out at paragraphs 4 - 6 what it considers to be the correct approach of law and refers in particular to the well known test in British Home Stores -v- Burchell [1978 ] IRLR 379. According to that test, the Tribunal has to ask itself a series of questions in dealing with a case of unfair dismissal: ) Did the employer believe, as distinct from merely suspecting, that misconduct had occurred? ) Was that a reasonable belief, in the light of what was known to the employer at the time? ) Was it a belief arrived at after as much investigation as was reasonable in the circumstances? ) Was it reasonable to dismiss, having regard to the gravity of the misconduct which the employer believed had occurred? "7 The applicant's submission was helpfully summarised in a typed summary, which it is not necessary to set out in this Decision and to which reference can be made if and as necessary." The Tribunal then also refers to what the Respondent, the Liverpool City Council are relying on principally, the auditor's report and investigating officer's report and the dismissing officer's letter. What paragraph 7 of this decision does not do, however, is to set out exactly what the Applicant's submissions were. We have been told by Miss Whyte on the behalf of the Applicant that an important part of his submission on the unfair dismissal claim was that the Respondent council did not in fact, or could not reasonably have had, a reasonable belief that misconduct had occurred, in the light of what was known to them at the time, which is in effect the second limb of the test in British Home Stores -v- Burchell . "Mr Callaghan undoubtedly believed that there were reasonable grounds on which to believe the Applicant was guilty of misconduct in the respects referred to, that there were reasonable grounds on which to sustain that belief and at the stage at which Mr Callaghan formed that belief the respondent had carried out as much investigation as was reasonable in the circumstances of the case." As we read that paragraph, the Tribunal is there finding what Mr Callaghan's belief was: it is not finding that there were in fact reasonable grounds for Mr Callaghan to hold that belief, and once again the Tribunal does not set out any factors capable of supporting the conclusion that the Respondent's belief as to the Applicant's misconduct was reasonable. "The details of those complaints were only provided to the Tribunal and the respondent as a result of certain Directions." The Tribunal then goes on at paragraph 13, having made passing reference to certain of the arguments, as follows:
"13. The Tribunal are unanimous in deciding the applicant has failed to satisfy the Tribunal that he had been discriminated against on the ground of his race. Unfortunately the applicant (somewhat belatedly) attributed particularly the respondent's investigation and his ultimate dismissal to supposed racial dislike on the ground only of his race. In the view of the Tribunal that was totally unjustified having regard to the totality of the circumstances and the facts set out above. Moreover the Tribunal must have regard to its own finding that the applicant was dismissed fairly."