MRS M MATTHEWS v BIRMINGHAM INTERNATIONAL AIRPORT LTD [2001] UKEAT 1343_00_2303

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1343_00_2303Case No Appeal No. EAT/1343/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS M MATTHEWSAPPELLANTBIRMINGHAM INTERNATIONAL AIRPORT LTDRESPONDENT
Before
Mr Justice LindsayDate 23 March 2001
[1]APPEARANCES For the Appellant MR GREEN (of Counsel Appearing under the Employment Law Apoeal Advice Scheme MR JUSTICE LINDSAY (PRESIDENT) We have before us the Preliminary Hearing of the appeal of Mrs Miriam Matthews in the matter Matthews v Birmingham International Airport Ltd . Today Mr Green, under the ELAAS scheme, has appeared for Mrs Matthews and we are grateful for the assistance that he has given to Mrs Matthews and, indeed, to us.[2]On 20 September 1999 Mrs Matthews presented an IT1 for unfair dismissal. She claimed to have been employed from May 1989 to August 1999. On 15 October the Respondent, the airport company, lodged its IT3. They said that Mrs Matthews had been a Security Guard at the airport and they said the reasons for the Applicant's dismissal were as follows:
"Admission of not having undertaken the patrol and subsequent falsification of the time sheet. Potentially jeopardising Airport security and safety, for aircraft, operations and passengers Breach of trust and confidence between Ms Matthews and the Company, in the execution of her security duties."
The Applicant appealed; the decision to dismiss was upheld.[3]On 15 and 16 June 2000, there was a hearing at Birmingham. The oral decision must have been announced at the end of that because on 18 July Mrs Matthews put in a request for a review and on 7 August that review was refused. Also on 7 August the Tribunal gave its extended reasons and decision and the unanimous decision of the Tribunal, which was under the Chairmanship of Mr J A Caborn at Birmingham, he sitting with Mr Sorrell and Ms Beards, was that the Applicant was fairly dismissed.[4]On 18 September the Employment Appeal Tribunal received a letter from Mrs Matthews asking for a review of the Employment Tribunal decision. I think 18 September was probably the last day for the lodging of a notice of appeal. She was telephoned and it was established with her that in fact she really wished to appeal against the decision that had been promulgated on 7 August. On 28 September, a more proper notice of appeal was received from her and it was treated as if it was, in effect, an amplification of the earlier request for a review and to that extent treated as a timely notice of appeal. In that notice of appeal (we will have to come on to other grounds) all the grounds that are set out by Mrs Matthews in her handwriting depend, as it would seem, on allegation that witnesses below at the Tribunal had perjured themselves. Mr Green has not amplified this side of things but it exists and so we ought to mention it and it truly represents a misunderstanding, understandably enough by Mrs Matthews, as to the functions of the Employment Appeal Tribunal. We can only deal with errors of law. It is for the Tribunal to decide who to believe when they hear conflicts of evidence.[5]The Tribunal did hear evidence from a number of witnesses and they concluded as follows; they said at paragraph 34:
"The Tribunal has considered the reason for dismissal and is satisfied that on the 8 June 1999 the Applicant falsified a patrol record sheet – Form S/A1 - by completing it to the effect that she had completed a patrol at a time when she had not. By doing so, the Applicant was seeking to convey to the Respondents that she had carried out her duties pursuant to her job description and which was not the case. This reason related to a matter of the Applicant's conduct, with conduct being a fair reason for dismissal as referred to in Section 98(2) of the 1996 Act."
They went on in their paragraphs 36 and 37 to look at the disciplinary procedure which in practice applied and they said:
"In this instance the Respondents applied the procedure. Further the Tribunal is satisfied the procedure followed by the Respondents was fair. With regard to sanction, clearly where employees are engaged in positions of trust and are employed to carry out duties of the nature referred to in this case, the falsification of a patrol record seriously undermines the trust and confidence essential to the employment relationship. In these circumstances, the Tribunal has concluded that the sanction of the dismissal is one that is available to a reasonable employer acting reasonably. A little later they go on: "
In the course of the proceedings it was suggested that Mr Muldowney [ he was a security supervisor ] was someone who might have victimised the applicant and that he might have set her up. The Tribunal does not accept this to be the case." In their concluding paragraph 42, they say:
"Accordingly having established a fair reason for dismissal, having followed a fair procedure and the sanction of dismissal being that of a reasonable employer acting reasonably the unanimous decision of the Tribunal is that the Applicant was fairly dismissed. In these circumstances the Applicant's application fails and is dismissed."
Now in coming to those conclusion the Tribunal doubtless heard conflicting passages of evidence but it chose to believe the evidence from the Operations Director, Mr Hilliard, and from Mr Vella, both of whom gave oral evidence. It is for the Employment Tribunal to assess credibility and we are quite unable to find an error of law - in other words something that falls within our purview - in the conclusions that we have summarised, subject to some further points we shall come on to and which Mr Green touched upon.[6]Another point that was raised in writing by Mrs Matthews but has not further been explored but which we deal with because it was not formally abandoned is that it seems to have been suggested in one or two passages that Mrs Matthews has new evidence available to her that might or would have greatly affected the outcome of the case. We cannot receive new evidence unless quite a stern test is satisfied. First of all there has to be a clear application for its reception. Secondly, a case has to be made out that the evidence could not, even if due diligence had been applied, have been put before the Employment Tribunal at the time of the hearing and it has also to be shown that the proposed new evidence has the appearance of credibility and, further, that it would be likely substantially to have affected the outcome of the case. There has, in fact, been no application for the reception of new evidence and we have no reason to think in any event that those further requirements would or could be satisfied. As I say, Mr Green has not actually amplified that side of things but we dealt with it just in case it had not been abandoned.[7]Mr Green does, though, raise a number of points that were not adumbrated in the notice of appeal and, of course, we allow him to do so because one of the points of the ELAAS scheme is that, with the advice that it offers, Appellants do have points drawn to their attention which might not have occurred to them themselves. One point that he raises is that there was confusion about whether what had happened amounted to gross misconduct or not, and that the response of the employing company was a response as if appropriate to gross misconduct and yet they had not themselves characterised the matter as gross misconduct and that it was not gross misconduct. This is to pay far to much attention to the word "gross". It does not appear in Section 98 of the 1996 Act. What is required under that Act is that one looks to see what the reason for the dismissal is and where it is a "conduct" reason (and this was found to be a "conduct" reason) one then goes on to examine within the provisions of Section 98(4) whether dismissal was a reasonable response to such particular misconduct as had been found by the Tribunal to have been properly relied on by the employer. It matters not whether it was gross or not for those purposes. In fact, as it seems to us, the reasoning which Mr Green seeks to impress upon us does not stand up in any case. He, in effect, reasons backwards by saying that because she was dismissed with immediate effect it must have been that her offence was regarded as gross misconduct because it is only gross misconduct that is met with immediate and summary dismissal. But there is a fallacy there because it is quite plain from paragraph 32 of the Tribunal's finding that although she was dismissed with immediate effect she nonetheless was paid payment equivalent to her notice period. So that here one is dealing with a sort of hybrid situation in which although the dismissal was immediate nonetheless there was a payment associated with it and, it seems to us, that the Tribunal was entitled to look at the nature of the conduct as it appeared to the employer, as they did, and then to ask, as they did, whether dismissal was a reasonable response to that form of conduct. They had no need to apply to it the epithet "gross" or indeed to hold that the epithet "gross" did not apply; it was not a question that needed to be dealt with and there was no error in failing to deal with it.[8]A second point that Mr Green takes is that in the passage that we read from paragraph 34 where it was held that the Applicant had indeed falsified a patrol record sheet, the Tribunal went, as Mr Green put it, a step too far. Whether that is so or not, the decision was that the disciplinary procedure was fair and, as we indicated in the other passages that we cited, that the sanction of dismissal was one that was available to a reasonable employer acting reasonably. It matters not whether the finding that the Applicant falsified a patrol record sheet was justified or not. There is, as it seems to us, a perfectly proper approach to the conclusion that the Tribunal came to, namely that the company looked into the nature of the offence, its disciplinary procedure was adequate. The Tribunal expressly found that there had been a fair procedure. A fair procedure includes an adequate investigation and, so as long as the company was satisfied upon an adequate enquiry that the offence had taken place, it matters not whether the Tribunal itself later was also convinced that it taken place. In that sense we would be prepared to accept that whether the Tribunal itself thought the Applicant had falsified a record sheet was no necessary part of the overall reasoning; this argument does not identify an error of law in the conclusion to which it came, for the reasons that we have given.[9]Then Mr Green says that the Tribunal failed adequately to take into account length of service in this case. There is a well known dictum by Lord Russell in the case of The Retarded Childrens Aid Society v Day that one cannot jump from an observation that a certain point is not expressly mentioned to the conclusion that that certain point was not in mind. Here length of service is in fact expressly described by the Tribunal although not specifically mentioned as a feature that they had taken into account at the later stage when they concluded whether or not the response was reasonable. They had earlier mentioned length of service and, to go back to that important sentence where they say: "In these circumstances the Tribunal has concluded that the sanction of dismissal is one that is available to a reasonable employer acting reasonably" it cannot be thought that they did not have in mind the length of service to which they had themselves referred.[10]Next Mr Green says that there was inconsistency on the employer's part in the sense that a Miss Brierley was treated differently than was Mrs Matthews. It is never an easy argument to cope with, inconsistency, because unless the Tribunal is given really full details of the other case it is hard for them to attach much weight to an inconsistency between the treatment of A and the treatment of B. However, here in the correspondence which we have seen that relates to Miss Brierley's case there is express mention of mitigating circumstances that were there found to exist and they do not seem to have an exact correspondence in the case of Mrs Matthews. So inconsistency is not an argument that seems to us to have any great weight. The great difficulty that Mr Green suffers here is that the Tribunal heard the evidence and they did conclude that the disciplinary procedure and policy was fair and that the sanction of dismissal was within the band of reasonable responses. Criticism only becomes an error of law if one can amplify the criticisms of those conclusions to a level at which one can say that no reasonable Employment Tribunal properly directing itself on the law could have concluded as this one did, and that is an extremely difficult task where no clear misdirection on the law can be established. As it seems to us, doing the best we can with the argument that has been presented to us, both in the papers and in oral argument, we have been able to detect no arguable error of law and accordingly we must dismiss the appeal even at this preliminary stage.