MR K JOHNSON v NEWCASTLE COLLEGE (THE CORPORATION) [2001] UKEAT 1316_00_0204

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 1316_00_0204

Case No Appeal No. EAT/1316/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR K JOHNSONAPPELLANT

NEWCASTLE COLLEGE (THE CORPORATION)RESPONDENT

Before

Mr Recorder Langstaff

Date 2 April 2001

[1]APPEARANCES For the Appellant MR K JOHNSON (the Appellant in person) MR RECORDER LANGSTAFF QC We have before us a Preliminary Hearing in an appeal from the Employment Tribunal sitting at Newcastle. Extended reasons were given for that decision on 12 September 2000. By that decision the Appellant's claims for unfair dismissal and for compensation for wrongful dismissal were dismissed.

[2]The Employment Tribunal had heard the case over some 5 days in June and July last year. The essential facts which the Employment Tribunal found were that the Appellant had been a main grade lecturer in civil engineering in a further education corporation. He was appointed on 1 January 1994 and his employment was terminated in circumstances which I shall relate on 17 December 1999. In the course of his work the Appellant had to mark an assignment prepared by a student. When he read the assignment he discovered, he told us, that it had been copied. He wrote upon it very terse comments which are set out at paragraph 6 of the Employment Tribunal's reasoning. Amongst them were the words:

"This is rubbish and nothing like a report" "

Balls" "Resubmit the whole assignment" For that, upon a complaint, the Appellant was subject to internal discipline. He was told, it emerged, at a disciplinary hearing on 19 January 1998 (wrongly called 1997 in the Tribunal's reasons) that he should not have written such comments and expressed himself in such a way. This was regarded as unreasonably discouraging to a student. He appealed. That appeal was heard on 9 February 1998 and a further appeal was heard and also dismissed on 28 September 1998.

[3]In the meantime, in April 1998, whilst these procedures were ongoing, the student's mother contacted a senior lecturer in the faculty of engineering and construction. She made a complaint that she had received a telephone call from the Appellant. The subject of that telephone call, it appears, was a matter of dispute before the employer. The Appellant maintained, as he has maintained before us, that it was a perfectly proper telephone call, advising Mrs Turnball, as mother of the student, that the student was at risk of being dismissed from the course and seeking to take steps to ensure that he might remain on it and justify the effort and confidence that had been placed in him as a student. The mother's account of the telephone conversation is, however, that she had been threatened by the Appellant. The Appellant had, she believed, said that he had lost his job because of the complaint which she had earlier made about the marking of her son's assignment. She expressed herself as disturbed and upset by the telephone call. We were shown in the course of argument a copy of the statement which she made and signed in respect of the telephone call and we have no doubt that she was complaining about the content of it.

[4]The Appellant was disciplined for that call too. The consequence was, at the conclusion of the hearing which was before a Mr Lowans, Mr Lowans said:

"In my opinion you should not have made such a telephone call and should not have made it after 9:30pm and without the permission of your line manager. It was bound to be interpreted as threatening. This is not the behaviour which I expect of a teacher who is acting professionally or supportively to the student for whom he is responsible."

Because of the written warning which had been given in respect of the earlier incident in relation to the work of the student and the marking of it, he concluded that the Appellant should be dismissed, under what was termed stage 4 of the disciplinary procedure. He was given 2 months notice and reminded that he had rights of appeal. He did appeal. His first appeal was heard by Mr Settle, who was the principal and chief executive of the college designate. That appeal was rejected. A further appeal took place on 10 August 1999 in front of 3 governors. Those governors had in attendance, a representative of Watson Burton, the solicitors for the Newcastle College. He was there, supposedly, to give advice on legal matters. We understand that he retired with the panel of 3 having himself asked some questions during the course of the hearing. The outcome of that second level appeal was also that the original dismissal stood. It was in respect of that decision and those procedures that the Appellant brought his case before the Employment Tribunal at Newcastle.

[5]Before turning to the substance of the points which he has made to us, we should remind ourselves of what it was that the Employment Tribunal had to do. It was not for them to decide for themselves whether they would or would not have dismissed the Appellant. They had to satisfy themselves of the matters identified in Section 98 of The Employment Rights Act 1996 . The employer had to show the reason for the dismissal and that it was a reason falling within Section 98(2). We do not see that there could be any doubt that the reason for the dismissal of the Appellant was his conduct and that thus it was a reason which fell within Section 98(2)(b). The question then was whether or not, on balance, the requirements of Section 98(4) had been fulfilled. That asks the question whether the dismissal is fair or unfair, and that question is to be determined in the circumstances by asking whether the employer acted reasonably or unreasonably in treating the reason as a sufficient reason for dismissing the employee. It is a question to be determined in accordance with equity and the substantial merits of the case. Accordingly, what the Tribunal had to ask itself was whether or not, taken as a whole, in all the circumstances, it was fair or unfair for the employer to treat conduct as a reason justifying dismissal. They had to ask whether that reason fell within the band of reasonable responses open to an employer in respect of conduct of such kind, and as the Appellant himself demonstrated to us, to be satisfied not only that their response was reasonable in relation to the substance of the case, but also that it fell within the band of reasonable responses so far as the procedure was concerned. For that he drew our attention to a report in 'The Times' of the case of Whitbread plc v Whitbread Medway Inns reported in 'The Times' for 15 March 2001, having been determined by the Court of Appeal.

[6]The Appellant has taken 6 points. We hope that we do him no discourtesy by taking the points shortly, because they were before the Employment Tribunal, having been set out in extensive pleadings, which he had used, no doubt in imitation of the pleadings which are familiar before the civil courts. We have had the benefit of an extensive written skeleton extending to 23 pages. It is both helpful and comprehensive in setting out the grounds which he himself, appearing before us in person, has argued both with courtesy and moderation.

[7]The first ground is that the Tribunal failed to find that the College had a statutory duty to have in place rules relating to the conduct of staff which guaranteed the rights and freedoms set down in Articles of Government. This was in effect asking us to determine that the Employment Tribunal were in error because they failed to realise that the procedures did not sufficiently guarantee academic freedom to the academic staff. The matter was dealt with by the Employment Tribunal at paragraph 5, in which they summarised the requirements of the statutes as obliging the Corporation to:

"…… have regard to the need to ensure that academic staff of the institution had freedom within the law to question and test received wisdom and to put forward new ideas and controversial or unpopular opinions, without placing themselves of losing their jobs or any privileges they may have at the institution."

[8]Given the nature of the questions the Employment Tribunal was asking itself, we had to determine whether there was here, any adverse effect of this failure, if it could be established, upon the Appellant' s own personal case. The Appellant accepted that there is a distinction to be drawn between the manner of the expression of views and the way in which they are held. He was inclined to accept that views which may be controversial, or may be uncontroversial, may be expressed properly in one way but improperly in another. He maintained before us that the use of the word, 'balls', had been misunderstood. He had used that word to express his irritation and annoyance at plagiarism by a student. Be that as it may, this example showed that in reality he was complaining upon an issue of fact, whether or not the Employment Tribunal were entitled to take the view that the employer in turn was entitled to regard the words which he had written upon the essay of the student, as being an impermissible, rude and vulgar way of expressing opinions, even though he was fully entitled to hold those opinions come what may. We think that the Employment Tribunal had that distinction well in mind and were therefore entitled to come to the conclusion that they did, notwithstanding the fact that other Tribunals might well have come to a different conclusion when looking at those particular words. We cannot say that the conclusion to which they came was one which was not open to them, on the facts.

[9]The second ground in the skeleton argument was one which the Appellant argued first. It is that the College did not properly put in place procedures for the suspension and dismissal of staff. Because those procedures were not properly in place, they should not have been applied to him. This submission taken to its logical conclusion meant that whatever the offence that any employee might be said to have committed, or indeed had committed, the argument would be that that employee could not properly be dismissed for that offence. There was no proper procedure by which to do so. That, we think, demonstrates the falsity of the proposition. Whether or not the employer had a proper procedure is beside the point. The point is whether or not the employer was entitled to treat the reason, that is conduct, as sufficient reason to dismiss the employee, taking into account all the circumstances and what was fair and reasonable. Amongst those circumstances will no doubt be the present status of any disciplinary procedure. The absence of a disciplinary procedure, where there should be one, might, and often does, make a dismissal unfair. It does not necessarily do so. The matter is one for the Tribunal itself to judge. Where there is a procedure, which has been in application to most of the employees in the College, and has ceased, it is said, to be applicable because of the change in status of the College from a further education college under the control of local education authority, to one which has become further education corporation, it seems to us, that the antithesis of having a disciplinary procedure which was the one which pre-existed is to have none at all. That, we think, would undoubtedly be less fair. We do not think that the fact that a new disciplinary procedure does not appear to have been fully and finally agreed until 2000, directly affects the question whether or not the Appellant's dismissal was or was not fair. We do not therefore see any arguable ground here.

[10]The third ground was that the Tribunal had erred in finding that the Appellant's failure to obtain his line manager's approval before he made telephone calls from the privacy of his family home was a reasonable response falling within Section 98 of the 1996 Act. This is we think to mis-describe what the Tribunal found. The Tribunal had merely to ask whether the employer was entitled to take the view that the 'phone call should not have been made. In argument the Appellant was happy to accept that there might be 'phone calls made in an employee's own time and from an employee's own home and own 'phone, which were inappropriate. Equally there could be, and in this College often were, 'phone calls which were entirely appropriate. He agreed that what mattered essentially was the content of the 'phone call. If the Appellant's submissions had found favour with the Employment Tribunal, they would have concluded, and indeed if they had found favour with the employer, the employer would have concluded, that the telephone call was entirely proper. It appears to us that what the employer found to have been the case was that the telephone call was very much as Mrs Turnball has described and about which she had complained. Essentially the difference of approach between the Appellant and the College in relation to this part of his case, is that his evidence, as to the content of the 'phone call, was not accepted by them. However harsh that may be, the Employment Tribunal could not, in the circumstances, have been bound to conclude that his employer must have accepted his account of what had been said in the course of the 'phone call. If the employer was entitled to accept Mrs Turnball's account, despite the criticisms made of it, before us, by the Appellant, then so was the Employment Tribunal and there is, on analysis, no strength in this ground either.

[11]The fourth ground is related also to the telephone call. It is that the Tribunal failed to find that the student had committed an examination offence and the Appellant was under a duty to resolve the matter with his mother before the Respondent expelled her son. This seeks to argue that the telephone call was as the Appellant has described it and not as the employer regarded it. That is a matter of fact, it is not a matter of law and this Tribunal could not interfere with it.

[12]The fifth ground is that the Tribunal failed to find that the Respondent had not given the Appellant full particulars of the allegations and complaints against him and had, in breach of the rules of natural justice, dismissed him. Here, it was part and parcel of his submission to us, that he had not received written notice of the complaint against him. The way he characterised the notice, which should have been given, is at paragraph 5.7 of his skeleton. It is that he should have been given written notice that he required the permission of his line manager before he made telephone calls from the privacy of his family home. In failing to do that, there was, he says, breach of the rule that "a man must have written notice of what he is accused". We think, as we have indicated in respect of the third ground already, that this is a failure properly to characterise the nature of the complaint against him. The Appellant accepted before us that he had been given, prior to the disciplinary hearing before his line manager, Mr Lowans, a copy of the letter/statement of Mrs Turnball. He showed us that statement at our invitation. It complains about the 'phone call he made. He had that in advance. He knew that the meeting was to discuss with him the making of that 'phone call. It does not seem to us that he is being accused of breaching a procedure which was set in stone and for which there was, as he pointed out, no written policy or procedure. What was alleged against him was that he should not have made that 'phone call. We do not see that there was anything in the procedures that failed to give him due notice of that which he was to face.

[13]The sixth and final ground which he argued before us was that the Tribunal failed to find that the Respondent had denied the Appellant an adversarial hearing and had, in breach of the rules of natural justice, dismissed him. His essential complaint here was two fold. First, that so far as Mr Lowans was concerned, he had been both prosecutor and judge. In effect, the procedure he adopted had more of the inquisitorial than the accusatorial about it. Is this arguably a breach of natural justice? We do not think it is. The essential rules of natural justice are first, that a person must know the case against him so that he may answer it and secondly, that the decision maker must act without bias in the sense of having no interest of his own in the outcome. It is possible, we think, for an inquisition to be every bit as fair as an accusation. Indeed it is equally possible for either to be unfair. We asked whether there was any case which demanded an accusatorial process as an essential part of natural justice. In response the Appellant referred us to the Crown v Secretary of State for Education and Employment ex parte McNally, a decision of the Court of Appeal reported in 'The Times' for the 12 March 2001. Lord Justice Kennedy there dealt with a case in which it was suggested that a governing body of a school had been wrong to exclude the chief education officer, who had sought to exercise his entitlement to attend their deliberations. They had sought to exclude him because they considered that he might reasonably be regarded as part of the prosecution against the teacher concerned. Lord Justice Kennedy giving the judgment of the court, with which Lord Justice Dyson and the Master of the Rolls concurred, pointed out, that: "Where a relatively formal procedure was established to consider serious allegations, it was incompatible with the principles of natural justice for a local government official who the employee could reasonably regard as a member of the prosecution team to be with the disciplinary panel when its members withdrew to discuss among themselves whether the misconduct alleged had been proved." and accordingly determined that the school panel had been within its rights to exclude the chief education officer.

[14]What is said here is that the solicitor from Watson Burton was, in effect, a prosecutor and should, by parity of reasoning. not have retired with the members of the panel. The earlier involvement in the course of the proceedings against the Appellant by the solicitor concerned was two fold. First, he had drafted the final written warning which had been given at the end of the proceedings in respect of the discipline over the inappropriate words written on the essay of the student. Secondly, on 4 October 1999, he had threatened to sue the Appellant if the Appellant had, I quote from the chronology which he has supplied:

"…. made it known that Roger Lowans had lied when he told Tony Settle on 15 February 1999 that he was a Stipendiary Magistrate and had relevant training in disciplinary matters."

It was plainly not a threat by Christopher Welch, the employee concerned, in his personal capacity. He was plainly writing a letter on behalf of the College.

[15]We do not think that either of those episodes indicates that there would be any particular concern, from the natural justice viewpoint, in such a solicitor providing the function, which he was technically there to provide, of providing legal advice and guidance to the panel. However, this is not a decision for us. We have to ask whether the Employment Tribunal sufficiently took the matter into account. We therefore return, at the end, as we did at the beginning of this judgment, to that which the Tribunal itself said. The matter is dealt with comprehensively, though tersely, at paragraph 29 of its decision. It provides:

"Mr Johnson had made a lot about the articles of government and procedures for disciplinary matters. We can find nothing wrong with the procedure. The only matter which is not included in the procedure is the right for an employee to appeal against his suspension. We do note, however, that the articles of government were available to Mr Johnson. He could quite easily have seen a copy of the articles of government, as he has subsequently done. The right to appeal against a suspension is contained in a statutory instrument. He says that there should have been consultation. We accept that there was consultation with the trade unions who represented the employees." and it goes on. They have said in the preceding paragraph, in case that paragraph was not clear enough, that there was no fault in the process used in respect of the disciplinary hearing before Mr Lowans. They continued: "

That Mr Johnson had the right to and did appeal. Those appeals were thorough and considered all matters which had previously been dealt with at the disciplinary hearing. Mr Johnson had the opportunity to put forward anything he wished in his defence. Those conducting the appeals came to the same conclusion as Mr Lowans in that there had been further misconduct by Mr Johnson, he was on a final written warning and that the decision to dismiss was the appropriate action. The Tribunal cannot disagree with those decisions."

[16]It is not for us to say what decision we would have made. The function of this Tribunal is, on a Preliminary Hearing, to give leave to continue to a Full Hearing only if it seems to us that there is a properly arguable point of law. Disappointing as it will be to the Appellant, we can see no properly arguable point of law in the grounds which he has given, nor in the submission which he has made before us today. It follows that his appeal must be dismissed.