MRS C NKENGFACK v LONDON BOROUGH OF SOUTHWARK [2001] UKEAT 251_00_2903

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 251_00_2903Case No Appeal No. EAT/251/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS C NKENGFACKAPPELLANTLONDON BOROUGH OF SOUTHWARKRESPONDENT
Before
Mr Recorder LangstaffDate 29 March 2001
[1]APPEARANCES For the Appellant MR W D PANTON (of Counsel) Instructed by: Akainyah & Co Solicitors 308 Seven Sisters Road Finsbury Park London N4 2AG For the Respondents MR S FLETCHER (of Counsel) Instructed by: Legal (Contract) Services London Borough of Southwark South House 30-32 Peckham Road London SE5 8UB MR RECORDER LANGSTAFF QC This is an appeal from a decision of the Employment Tribunal sitting at London South, promulgated, eventually, on 7 December 1999. It raises interesting questions about the admission of fresh evidence justifying remission to a new Employment Tribunal.[2]The Employment Tribunal dismissed the Appellant's complaints that she had been unfairly dismissed and that she had been the victim of both racial and sexual discrimination The discrimination consisted essentially of the act of dismissal.[3]The facts which the Employment Tribunal found and which are the background to this appeal are that the employee was a schoolteacher, who had been employed by Southwark (the Respondents) from December 1989 until January 1999, when she was dismissed for what was said to be gross misconduct.[4]She taught, latterly, at Albion Primary School. She began there in November 1994. That was a failing school when in December 1998, Miss Penny White was appointed the Head Teacher. She had, in the few months preceding December 1998, been acting as Head Teacher.[5]The Appellant not only taught, but owned a hairdressing salon; she worked there at weekends and during holidays. In 1998 she had absences from work. The absences were for different reasons. First, a child had flu and was absent from school at home; secondly, the Appellant had back pain. She was, at that stage, eight months pregnant.[6]The acting head, Miss Penny White, thought that the Appellant might be working as a hairdresser when she ought to have been working as a schoolteacher, and that she was wrongly and dishonestly claiming paid absence from her teaching duties, to the detriment of the children in her care. Accordingly, she said that she went, together with a Ms McKew, on 3 December, to see whether or not the Appellant was in her hairdressing salon cutting hair. She had reason to believe that she might be because her partner had telephoned the salon and was told that the Appellant would, that day, be available to cut his hair. However, it is common ground that she was not in the salon, working as a hairdresser that day.[7]The next day, the Tribunal found as a fact that:
"Miss White went again, accompanied by Mr Bernacki. They both saw the Applicant working. They had previously decided not to go into the shop and confront her because they wanted to avoid embarrassment and a scene. Miss White had no doubt that the person she saw was the Applicant."
What followed were disciplinary proceedings. On 8 January, there was a disciplinary hearing, which having heard from Mr Bernacki as a witness, and having had the case presented to it by Miss White, decided to dismiss the Appellant for gross misconduct. There was an appeal on 24 February 1999.[8]The Appellant then complained to the Employment Tribunal that she had been unfairly dismissed. She denied that she had been working in the salon that afternoon. Her case was that she had been in bed, her back was painful.[9]Accordingly, the question which the employer had to answer was whether they thought that Miss White and Mr Bernacki were accurate in their identification of the Appellant. The question before the Employment Tribunal was, inevitably, slightly different. They had to ask whether the employer had established the reason for the dismissal as misconduct; they had to apply the well known test in British Home Stores v Burchell . That test has three parts to it.[10]The first part invites the Tribunal to consider whether the employer had a genuine and honest belief that the employee had been guilty of the misconduct alleged. Secondly, that that belief was based on reasonable grounds and thirdly, that it had been reached after a reasonable investigation.[11]Before the Employment Tribunal, we are told that there were three days of evidence. The first two days were July 22 - 23 1999, the third was 26 October 1999. It is common ground that it was not until 26 October that Miss White gave evidence. The Respondents' case was heard second. This may have been, we suspect, because the Appellant had been raising issues of discrimination and not simply issues of unfair dismissal.[12]Miss White had her credibility challenged in cross-examination. The issue was a stark one: had she been concocting the story which she told, of having seen the Appellant in the hairdressing shop? The issue of credibility between her and the Appellant had been central to the hearing before the employer. It was also central to the issues before the Employment Tribunal in this respect, that if the Employment Tribunal had come to the conclusion that Miss White was not mistaken in her observations, but had been malevolent in them, they might have concluded that there had been no genuine belief, and they might have concluded that there had been no reasonable investigation, and the consequence would be that they might have concluded that the British Home Stores v Burchell test had not been satisfied. If so, taking that guidance they might have come to the conclusion that the requirements of section 98 of the Employment Rights Act were such that they could not find the dismissal fair.[13]In her witness statement to the Employment Tribunal, Miss White said "The Deputy Head advised me that in the past, other staff had been suspicious that the Appellant had been working at the salon when she should have been at school." That statement was dated 14 July 1999.[14]The case for the Appellant was that there had been an atmosphere of racism in the school, that there had been hostility toward her from Miss White, because she raised various criticisms of Miss White's approach to discipline, and it was said that Miss White was unhappy that she, the Appellant, was pregnant; her ante-natal appointment card was subject to careful scrutiny, whereas a white man who was absent, had no such scrutiny applied to him.[15]There are two grounds for appeal against the decision to which the Employment Tribunal came. It is unnecessary to recite any of the findings of the Employment Tribunal, nor is it necessary to recite the terms in which they reached those findings, save in one respect. Having decided that the disciplinary panel and the appeal panel had been entitled to come to the conclusions they did and applied the British Homes Stores v Burchell test, they had regard to a failing which they identified in the process of appeal. They said this:
"We consider that it would have been preferable for the Applicant to have been asked whether she had anything to say in mitigation after the decision of the appeal panel to uphold the finding of gross misconduct but again, we do not feel that it is sufficient to render the dismissal unfair. We accordingly dismiss the Applicant's claim of unfair dismissal on the ground that the tribunal acted fairly in accordance with section 98(4) of the 1996 Act."
That finding is subject to a particular challenge, to which we shall come later.[16]The principal challenge, however, on this appeal is not to the reasoning of the Employment Tribunal at all. It is an application that we should exercise our powers to remit the matter to an Employment Tribunal hearing on the ground that there is fresh evidence. That evidence is evidence derived from two telephone calls which the Appellant had with Ms McKew at Christmas and at New Year 1999 - 2000. It is said that had the matters of which Ms McKew speaks, in the course of those telephone calls, been known to the Appellant before the Tribunal sat in July and October 1999, she would have brought that evidence before them, that it would have had a considerable impact upon their deliberations, and that we should therefore admit it.[17]The test for the admission of fresh evidence to be applied, before an appeal to this Tribunal can succeed, is that which applies in the civil courts, under the principles known as the rule in Ladd v Marshall [1954] WLR 1489 . Those rules are applied in this jurisdiction as the case of Wileman v Minilec Engineering Ltd [1998] IRLR 144 makes plain. That requires that three tests are satisfied. If the new evidence sought to be produced fails any one test an appeal cannot succeed.[18]The tests are first: that the evidence could not have been obtained with reasonable diligence for use at the Tribunal hearing; second, that the evidence would probably have an important influence on the result of the case, and third, that the evidence must be apparently credible.[19]We have approached the question of whether we should allow this appeal by looking at each of those three tests in turn. We regard, it should be said, the evidence as essentially being the evidence which Ms McKew could give to an Employment Tribunal if the comments she is said to have made in the telephone call, as recorded in the transcript, carry the inference which the Appellant asks us to make. We shall deal with the first two grounds on that basis. Availability[20]If the Appellant did not know, until late December 1999 that Ms McKew was going to say what she said, in the course of the telephone conversation, then on one view, she could hardly have had the evidence available beforehand. But that ignores the question whether she should, with reasonable diligence, have asked or made enquiries.[21]Here a chronology is relevant. The dismissal, in the sense of the conclusion of the first disciplinary hearing took place at the beginning of 1999. The Employment Tribunal was set for July 22. We were told, without contradiction from the Appellant, by Mr Fletcher who appeared for the Respondent, that on 28 June the parties, both of whom were represented before the Tribunal, agreed that witness statements would be exchanged on 15 July.[22]On 15 July the Respondents' representative sought exchange and the Appellant said, in writing, that she was not then able to give exchange of the full witness statements. After a further chasing letter, on 19 July the Appellant said that she would serve the witness statements, on her part, on the day of the hearing. It was Mr Fletcher's best recollection that the witness statements were exchanged on 22 July. That would have been, therefore, the first date, according to the Appellant, that she knew that Miss White was alleging that Ms McKew was the source of the information about the suspicions that it is said that she had.[23]When this matter came for preliminary hearing before a Tribunal chaired by His Honour Judge Wilkie, some five months ago, that Tribunal was told by Mr Panton on instructions, as he understood his instructions, that the witness statement of Miss White had been made available on the morning of the hearing. He indicated to us, in the course of his submissions, exactly the same.[24]After the chronology had been described by Mr Fletcher in response, Mr Panton was told by the Appellant, and duly informed us, that it was the morning of the hearing of 26 October, not the morning of 22 July. There is a difference of recollection as to this. I interpose to say that there are various matters, in respect of which, the telephone conversation reveals that Ms McKew might have usefully contributed her evidence before the Tribunal.[25]Those set out in Mr Panton's Skeleton Argument, all save one, seem to us to be matters which are either unspecific or which were matters which could easily have been explored and which were plainly an issue before the Tribunal sat.[26]The one exception, possibly, is that it is said that Ms McKew denied ever having told Miss White that there had been suspicions in the past that the Appellant had worked at the salon whilst on sick leave. That is contained at page 41 of the bundle, in the transcript of the telephone conversation in these terms:
"CN You know what she because I think it's because she re'um because you you've left she then erm said that you told her that there there has been suspicion in the past that I've been B I never said that …..I saw that and I never said that - CN You know B and I asked her to change that and she never did CN You know B I never said that I never I don't know CN You know B anything about any of this stuff she always that's one of the reasons why she doesn't want"
And it goes on. B is Ms McKew, CN is the Appellant.[27]It is said to us by Mr Panton that that exchange relates to the allegation by Miss White, in her witness statement, that Ms McKew had said to her (Miss White) that there had been suspicions voiced by staff that the Appellant was spending time at the salon, when she ought to have been in front of her class.[28]It suggests that Ms McKew saw a draft of the statement, it suggests that Ms McKew asked Miss White to change the statement, it suggests that Miss White refused, or failed to change the statement. It suggests that Miss White may have been dishonest, at worst, in saying that it was Ms McKew who began the train of enquiry which led her to inspect the hairdressing salon on 4 December.[29]Could that evidence, if that is what it amounts to, have been secured with reasonable diligence before the Employment Tribunal concluded its hearing? That is something which, being one of the tests for admission of fresh evidence, is for Mr Panton to satisfy us about. We regret that he has not been able, in the event, to satisfy us of it. We particularly regret that we lack, perhaps from him, some information that would have been of assistance to us. For reasons which will become apparent in the rest of this judgment, we do not think that it would affect the outcome and, having considered of our own motion, whether we might adjourn the hearing to receive fresh information, we have neither been invited by Counsel to do so, nor would we think it appropriate, in the event, that we should.[30]We take into account these matters. First, the question "What made you go outside the shop?" seems to us to be an obvious one to address to Miss White if her credibility was in issue, as we think it must have been, before the internal hearing. It does not seem that the question of the original allegation having come from Ms McKew was either then elicited; indeed, it is not clear that the question was asked. Be that as it may, the question of whether the information was accurate, if it was going to be of importance, certainly arose when the witness statement was received. We bear in mind that the Appellant was legally represented.[31]We think that it would be reasonable to allow the Appellant time for her and her advisers to digest the implications of a statement to see whether further enquires might properly be made. If, however, the witness statement was provided on 22 July, then there was ample time for the appropriate enquires to be made, for evidence to be put before the Tribunal on 26 October.[32]We have sought assistance from Counsel as to whether it can definitively be said that the witness statement was provided on 22 July. Unfortunately Mr Panton was not present before the Employment Tribunal, another Counsel was, and he is presently unavailable. So too it seems is the solicitor who then dealt with the case.[33]We therefore approach it on this basis: that it is for him to satisfy us that, with reasonable diligence, the evidence might have been obtained beforehand, and that involves, in this context, satisfying us that there was some good reason why the Appellant was not aware of the point, or its possible significance beforehand. The likelihood seems to us to be that, given the fact that the Respondents had their witness statements ready, and were saying so in July, that the witness statement would have been available for exchange on the first day of the hearing. That is what the Appellant had said, in clear terms, would happen.[34]It seems to us likely that an exchange would have taken place, rather than what is now suggested to us, that Miss White gave evidence immediately after having handed over her witness statement in the morning that she did so. We are fortified in that by the fact that that is Mr Fletcher's best recollection. There is no other recollection, apart from that of the Appellant.[35]Note also that this was a small school with nine staff. The relationship between the Appellant and Ms McKew was plainly a close one. The transcript of the telephone conversation reveals an ability to telephone at Christmas and New Year, with no particular object in mind, save having a chat, and the nature of the chat is plainly friendly, and close. We think it reasonable to infer that the Appellant knew pretty well what Ms McKew's likely views would have been, and that she would have been readily and easily approachable. We think that if the Appellant had thought it of significance, she could have checked the facts alleged with Ms McKew, on the day of the hearing, if indeed the witness statement was so late in coming. It was not like dealing with somebody who was distant, frosty and removed.[36]We next have to consider whether the second criterion set out in the Wileman case is satisfied. That is whether or not the evidence, if received, might have had an important influence. We have already indicated our view about the other contents of the telephone conversations, save this one passage. It is the case for the Appellant that everything here depended upon credibility. If Miss White was lying about the identity of the person whom she clearly stated, had told her of the suspicions, then she might well be lying about other matters.[37]Secondly, Miss White is attributing the start of her investigation to a particular conversation. If that conversation with her deputy did not take place, there must have been some other inspiration for the investigation, and that at least raises the question, even though it may not answer it, as to whether those other reasons may have been personal pique, or reasons relating to race or sex.[38]Thirdly, and we think perhaps most significant of all, the way in which the passage is worded suggests that Ms McKew asked the Head Teacher to change her statement so that it did not misrepresent the truth, and the Head Teacher refused. This is capable of showing that the Head Teacher was determined to pursue a course against the Appellant, rather than acting reasonably, in the light of the circumstances that were revealed.[39]One has to ask if the evidence had that effect, and this is taking it at its highest, whether it would have had an influence upon the Employment Tribunal. We think, on balance, that it would have had, but we must observe that that must not be overstated. We think it would have had, and could only have had, if the submission of Mr Panton is right to this effect. He submits that the Employment Tribunal could take a view of Miss White which would enable them to say that she was the investigating officer, she was the prosecuting officer, she was the line manager for the London Borough of Southwark. If she concocted a story against the Appellant, then the London Borough of Southwark could not have had a genuine and honest belief, nor would they have conducted a reasonable investigation, because the belief that they had at the end of the disciplinary process, was intimately bound up with the belief that she, as a Head Teacher and line manager and investigating officer had, and reasonable investigation included the investigation which she did.[40]The response that Mr Fletcher has to that submission is that it is the London Borough of Southwark who are the Respondents. The decision maker who decided to dismiss the Appellant was not Miss White. There is no basis for suggesting that the decision maker was dishonest, merely reacting to the evidence in front of him. If that evidence was dishonest or flawed, then that does not vitiate the decision of the internal tribunal, which nonetheless came to an honest belief, on reasonable grounds, (that is on the evidence put forward before the disciplinary panel, and the appeal hearing) following an investigation of which they were part, which thus makes it a reasonable investigation.[41]Although it is not necessary for us, as we see it, to reach a conclusion upon this submission, because of the way in which we have answered the first of the questions posted under Wileman , and the way in which we shall continue to answer the third question, we think that there is greater force in the submission which is put before us by Mr Panton.[42]We cannot think that, in every circumstance where a decision maker is corporate, or a public authority, it can claim a reasonable and honest belief because parts of its hierarchy and organising mind have come to one conclusion, based upon the dishonest and flawed evidence of another part of its hierarchy and management. If that were correct, it would mean that injustices could not be remedied by an Employment Tribunal, even when they were flagrant and obvious, such that where it was plain that an employee had borne false witness against other, an Employment Tribunal, in asking the questions posed by British Homes Stores v Burchell merely had to accept that since that was the evidence with no basis for querying it at the time, the decision would have to stand.[43]But we must emphasise that all must depend upon the particular circumstances, and that we do not propose to set down a general proposition. Suffice to say that in this particular case, in the circumstances of it, we think that had the Employment Tribunal come to an adverse view in respect of Miss White, it might have had an influence upon their reasoning and the result, and that influence, we think, might have been important.[44]We have indicated that that should not be overstated for two reasons: one is Mr Fletcher's submission, not controverted, that there was no challenge before the Employment Tribunal to the fact that there had been suspicion that the Appellant had spent some time, when not at school, working at her salon.[45]Secondly, we think it would be outside our experience of ordinary life, if that were not so, in a small school, where the staff would have known that the Appellant had a hairdressing salon. If she was absent, and any member of staff was invited to cover her class, we can very easily see the suggestion being made, even though entirely without foundation, that she might be working in her hairdressing salon. Accordingly, we do not see anything surprising in the nature of the allegation, even though it may be entirely false.[46]So much for the second ground. As for the third ground, the question of whether or not the evidence is apparently credible. Here, we have to take a rather different approach to that we have taken to the first two parts. We have to look at what evidence there actually is available, to put before the Employment Tribunal.[47]That evidence is the evidence of the transcript. Mr Panton accepts, frankly, that if it were before the Employment Tribunal, he would not see that it would be enough for them to make a significant difference in the case. He is plainly right about that, because if that were before the Employment Tribunal, there would be no evidence from Ms McKew; there would be no opportunity to cross-examine the other party to the telephone conversation. As Mr Fletcher points out, a telephone conversation between two former members of staff which criticises, in passing, a number of members of staff, and people who are known to them, may not be carefully considered and objective in the views that it expresses. In the relevant respect, it may well be that Ms McKew would say, in the course of the conversation to the Appellant, that she had not blown the whistle on the Appellant, when the truth might have been the contrary. Mr Fletcher suggests that she would hardly admit it, if she had done so in the course of such a conversation, and the denial must, to an extent, be suspect.[48]It is of less significance than would be a statement, admitted as hearsay, when the maker was not called to give evidence in support of it. Where the issue was whether or not another witness was lying this would be unlikely to weigh sufficiently in the balance to be, of itself, credible.[49]Secondly, we have had no answer, in the course of this hearing, to the central questions as to why it was that the conversation was taped social conversation would not normally be taped. The fact that it is taped cannot be so that the Appellant would have known what was being said to her, which was the only response Mr Panton, in reply, could give. It, we think, must imply that the Appellant, who knew the person to whom she was talking, must have suspected that without there being some tape recording, the other conversant would not have been prepared to come forward and say publicly that which she might be prepared to say, after some leading, in the course of a telephone conversation.[50]Next, again, we have had no sufficient answer, we think, to the question of why, given that the preliminary hearing was now some five months ago, and there has been ample opportunity for it, the evidence is only as strong as a tape transcript. There is no written statement from Ms McKew; we would have expected to see it.[51]The criteria in Wileman are well known. The burden is a high one because, in general, where a party has his or her case heard and determined and there is no flaw in the judgment, or reasoning of the Tribunal, they are entitled to come to the conclusion, as they do, on the evidence before them. There must be an acceptance of the result. There is no right to a second bite at the cherry. To have the case re-opened and re-heard is to put any respondent to considerable potential injustice, unless there is a cogent or compelling reason to do so. That is, as we see it, the basis for the third proposition in Wileman v Minilec .[52]Moreover, we have further hesitation because, in the course of the telephone transcript, a reference is made to the view expressed by Mr Bernacki to the Appellant that he would be prepared to come forward and say that he had lied in giving the evidence that he did about seeing the Appellant in the hairdressing salon. Although we think the words are capable, on the face of the transcript, of two interpretations, that one was the one which, on instructions from his client, Mr Panton assured us was the proper interpretation of the conversation which had occurred. That evidence would, again potentially, fall within the rule that we are looking at. We have had none of that evidence put forward. That causes us to doubt the force and credibility of comments within the telephone transcript, and, we think, emphasises the caution that there must necessarily be in looking at such a document.[53]In summary, having taken into account all the submissions which have been advanced to us by Mr Panton, with care and skill, we think that we cannot here find that the third ground is made out; we have very considerable doubts as to the first ground, such that we do not find it to be made out. However, had matters been otherwise, we would have found the second ground just made out. We are left with a sense of unease, but that is not a sufficient basis for acceding to the application to remit, and for the fresh evidence to be heard.[54]The second issue which was addressed in the appeal was a very different one: whether or not there had been a sufficient consideration by the Employment Tribunal of an issue which was clearly raised before them. At paragraph 3, one of the seven issues that the Tribunal had to consider was whether both panels, disciplinary and appeal, had given adequate consideration to an alternative sanction.[55]The Tribunal were reminded of this issue in submissions which they record in the course of paragraph 9, and then came to the passage which I have cited. What Mr Panton says is that a greater examination of the issues was called for by the Employment Tribunal. He emphasised that a decision could have been made by the employer, in a situation where an employee was returning to work on Monday. There might very well have been excusable reasons why she might have been doing some work on a Friday afternoon, and that in the light of that, without there having been any final warning, and without the mistrust and suspicion having been raised with her beforehand, dismissal was not an inevitable penalty.[56]Although we consider there is some force in what he has said to us, and it may be that it is a pity for the Appellant that the Employment Tribunal did not have the advocacy of Mr Panton before them, nonetheless, they were made aware of the issue. The only question, it seems to us, they having indicated a view upon it, is whether they had sufficiently expressed the reason for it. Their statement is terse. However bearing in mind that they had a number of difficult issues of fact to deal with, in relation to discrimination on the grounds of sex and race, and the principal focus of their case, upon the facts which gave rise to the finding of gross misconduct, we do not think that it was required that the Employment Tribunal should go so far as to set out, in detail, the reasons why they came to the conclusion that it was nonetheless fair for the internal appeal hearing to reach the decision it did, notwithstanding their not having asked the Appellant whether she had anything to say in mitigation.[57]It is a matter which they might well, and any other Tribunal might well, expand upon, but we think there is just sufficient for the parties to know why they won and why they lost.[58]It follows that we have no alternative but to dismiss this appeal in its entirety. May we though, before concluding, say one thing. Inevitably, the arguments have focused, in part, upon the position and conduct of Miss White. The views that have been reflected in this judgment are not views which are, in any sense, concluded views upon her conduct. The only view that any Tribunal has taken is that of the Tribunal below, which we think it was entitled to take, that they accepted her evidence, and nothing that we have said should be read as a criticism of her.