MR M LOGAN-SALTON v CALDERDALE MBC [2001] UKEAT 429_00_2606

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 429_00_2606Case No Appeal No. PA/429/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR M LOGAN-SALTONAPPELLANTCALDERDALE MBCRESPONDENT
Before
Mr Justice LindsayDate 26 June 2001
[1]APPEARANCES For the Appellant THE APPELLANT IN PERSON For the Respondent MR DANIEL DOVER (of Counsel) Instructed by: Calderdale Metropolitan Borough Council Law & Administration Department Crossley House Halifax HX1 1UG MR JUSTICE LINDSAY (PRESIDENT) I have before me the appeal of Mr M Logan-Salton in the matter Logan-Salton v Calderdale MBC . Today Mr Logan-Salton, the Appellant, has appeared in person and Calderdale, the Respondent, has appeared by Mr Daniel Dover. As I give judgment, I notice that Mr Logan-Salton is no longer in court; I am told he has had to leave to catch a train.[2]Mr Logan-Salton was a Social Care Assessor (Adult Care) employed by Calderdale Council. In 1996 the Child Protection Custodian of Durham Council alerted Calderdale Social Services Department to problems understood to exist in relation to Mr Logan-Salton. On 6 June 1996 he was suspended from duties. Although the criminal charges I later come on to had not then been laid, they were already, as Mr Logan-Salton accepts, round the corner, so to speak.[3]The suspension continued a long time and ultimately there was a disciplinary hearing on 5 December 1997 and no one attended on the Logan-Salton side. Mr Logan-Salton claims that that was unjust as he was at the time, he says, unwell, and that he had substantiated the fact that he was unwell. At all events, the disciplinary hearing proceeded in his absence. On 10 December 1997 he was given the result. He was dismissed for gross misconduct. The misconduct in question was directly or indirectly related to the conduct that, as we shall come on to, led to two convictions for criminal offences.[4]On 3 March 1998 he presented an IT1. It was chiefly a complaint about procedure. He said in paragraph 3 of his IT1 statement:
"3. On 5 th December 1997 the Respondents dismissed the Applicant following a disciplinary hearing which was held in the absence of the Applicant. 4. It is submitted the Respondents unfairly dismissed the Applicant in that they did not follow their own disciplinary procedures (attached). In particular:"
And then he gives particulars, but he does say in paragraph 6:
"6 The Applicant submits that the Respondents did not follow the proper procedures and had the Respondents done so the Respondents could not reasonably have concluded that the Applicant was guilty of the misconduct alleged against him. 7. The Applicant further submits that no reasonable employer would have found dismissal to be a fair sanction for the misconduct alleged."
[5]After amendment to the IT1, the only remedy that he sought was reinstatement. It was a deliberate amendment moving from reinstatement and/or compensation to reinstatement only. The IT1 gave as his address: "c/o 43 Falmouth Road Heaton Newcastle Upon Tyne NE6 5NS" and was completed with the name of a representative - Shirtcliffe & Company, Solicitors of Thirsk.[6]It followed from that that so far as concerned documents required to be served on a party, documents sent to the Newcastle Upon Tyne address, or to Shirtcliffe's would be good service on him, see Employment Tribunal Rule 20(3)(c)(i) and the foot of 20(3) which provides that service on the representative should be deemed service on the party. The party can, of course, change the appropriate address by giving notice to the Secretary of the Employment Tribunal - Rule 20(4) which notice is required to be in writing - Rule 20(1).[7]The course which Logan-Salton's IT1 took was beset by difficulties all or chiefly on his side. He, from time to time, claimed to be or was sick to such an extent as to require adjournment of dates otherwise fixed and he had two sets of criminal proceedings running against him, and the question arose of how far at all the disciplinary side could proceed whilst the criminal side was unheard.[8]On 6 October 1998 he pleaded guilty to detaining a child without lawful authority and was given a two months custodial sentence which was suspended. By April 1999 it looked as if a hearing of the IT1 could shortly be arranged, but on 8 April 1999 Mr Logan-Salton applied for an adjournment on medical grounds, although without providing a doctor's certificate. However the hearing was adjourned and the Employment Tribunal wrote to his Newcastle Upon Tyne address. They said:
"Thank you for the letter dated 8 April 1999 which was referred to a Chairman who has agreed to postpone the hearing listed 13 - 16 April 1999. The Chairman requests that you supply this office with a Doctor's note as quickly as possible."
That was sent to the Newcastle Upon Tyne address NE6 5NS, and also, amongst other addressees, to Shirtcliffe & Company. Whether formal notice was given at any stage of a change to the Newcastle Upon Tyne address does not appear. No doctor's certificate, however, was sent, nor was any answer received to that letter. There may very well have been a misunderstanding between Mr Logan-Salton and his doctor, or between him and his solicitors and his doctor, but, so far as the Employment Tribunal would have been able to see things, so far as it was concerned, it had granted an adjournment on medical grounds and had asked for or had had offered to it a prospect of a doctor's certificate but no certificate had been forthcoming, despite its being requested by letter and despite no answer being received to the letter.[9]Accordingly the Tribunal wrote again. On 29 April they wrote to Mr Logan-Salton, this time to :
"19 Palatine Chambers Market Street Halifax"
One can perhaps understand, as the letter of 9 April to the Newcastle address had gone unanswered, that the Employment Tribunal thought it right to try some other address. On 29 th the Employment Tribunal said:
"Please find enclosed a copy of our letter dated 9 April 1999. To date we do not appear to have received a doctor's note as requested in that letter. I would be grateful if you could give this matter your immediate attention. Please could you also confirm whether or not Shirtcliffe & Company continue to represent you or whether you now intend to represent yourself."
A copy of that letter also went, amongst other addressees to Shirtcliffe & Company. No answer was received by the Employment Tribunal to that letter. On 30 April, the very next day, the Tribunal wrote again to the Halifax address. They sent a copy also to Shirtcliffe & Company; they said:
"Please find enclosed a copy of our letter dated 9 April 1999. To date we do not appear ……."
And that seems to follow the form of the earlier letter, in fact it is word for word, following the letter of the preceding day. Again, no answer was received.[10]On 11 May, the Tribunal wrote again. This was to Halifax, and they said:
"Please find enclosed a copy of our letters dated 9 April 1999 and 29 April 1999, to date our records show that we have had no reply. Please could you reply by 18 May 1999."
Another copy was sent to Shirtcliffe & Company. No answer was received. On 14 June the Tribunal wrote again. Again the letter was sent to the Halifax address; this time there was no copy sent to Shirtcliffes. The letter said:
"You have failed to reply to our letter dated 11 May 1999. A Chairman will strike out your originating application for want of prosecution, unless you give reasons in writing within 7 days of the date of this letter as to why it would not be struck out."
That address in Halifax: "19 Palatine Chambers, Market Street, Halifax" is referred to later by Mr Logan-Salton as "my Halifax address" and there was no doubt but that it was a home of his.[11]But about this time, June 1999, a further difficulty arose. On 18 June 1999, he having been charged with a second set of criminal proceedings and having pleaded not guilty, he was nonetheless sentenced for indecent assault on a male. His sentence was not suspended, and he went to prison on 18 June 1999 and the expected date of his release was (as it proved accurately to be) 2 December 1999. On 24 June 1999, the Employment Tribunal, having had no answers to the letters of 9 April, 29 April, 30 April, 11 May and 14 June, struck out the IT1 under Rule 13(2)(f), namely for want of prosecution and promulgated the Decision to the parties. In August 1999, whilst in prison, Mr Logan-Salton got the letter of 14 June, upon its being forwarded to him. That it took so long to reach him could only be his fault in not arranging adequately for the forwarding of mail, notwithstanding that, obviously, important mail was likely to come into existence.[12]Despite his getting the letter of 14 June, no immediate enquiry by him seems to have been made of the Employment Tribunal as to what had happened to his IT1, or pointing out that he had not earlier received the letter of 14 June, and had not received it until August 1999. Mr Logan-Salton explains that by saying that he immediately got in contact with solicitors, as will appear. If the letter of 14 June was forwarded to him in prison, then it is hard to see why the Order of 24 June should not also have been forwarded, at any rate not later than early August 1999. It is not clear when Mr Logan-Salton first got the Order of 24 June, but what is clear is that no Notice of Appeal was presented within forty two days from 24 June, which period expired on 5 August 1999. Mr Logan-Salton says that he went to solicitors in August 1999. On 6 September 1999 those solicitors wrote to the Employment Tribunal to ask whether the Employment Tribunal would reinstate his IT1.[13]On 9 September 1999 the Employment Tribunal sent to those solicitors a duplicate copy of the Order of 24 June 1999. There is no explanation why a Notice of Appeal was not then presented if, by then, the solicitors had been given instructions to appeal. The Order of 24 June was forwarded by those solicitors direct to Mr Logan-Salton by or on 3 November 1999; they had had a copy of the 14 June letter since 22 August 1999. Neither his solicitors nor Mr Logan-Salton lodged any Notice of Appeal or any application for leave to present one out of time. On 2 December 1999, as I mentioned earlier, Mr Logan-Salton was released from prison. He went to fresh solicitors; still no Notice of Appeal or application for an extension of time was made. He went to a third firm, and still none such was made.[14]On 5 April 2000, the Employment Appeal Tribunal received a Notice of Appeal dated 4 April 2000. Mr Logan-Salton says that it was only very shortly after he had been to the third firm of solicitors that the Notice of Appeal was prepared and lodged. On 9 May 2000, the Registrar by Order declined to extend time for the lodging of the Notice of Appeal out of time. Mr Logan-Salton appealed against that Order. On 16 January of this year, I heard the appeal and I adjourned it for further evidence and for enquiries to be made by the parties so that a more fully informed decision could ultimately be made.[15]So the position was that on or about 10 September 1999 Mr Logan-Salton's solicitors had a copy of the Order of 24 June; on or about 3 November 1999 Mr Logan-Salton himself had a copy of the Order of 24 June and yet there is no Notice of Appeal until 5 April 2000. The firm of solicitors, first consulted, are prepared to take the blame. They say:
"We would therefore state on behalf of our client that the fault for the further delay from 22 August 1999 in applying for the extension of time lies wholly with ourselves and we would submit on behalf of our client that his case should not be prejudiced as a result of our inaction."
Mr Logan-Salton relies on Corbin v Penfold Metallising Co Ltd in the Court of Appeal, reported in The Times on 2 May 2000. It was a limitation case in which all blame for delay was passed to the solicitors in the case. In that case Mr Corbin was described as a passive observer of what was going on. The delay was held to be all his solicitor's - he had not contributed to it at all. Here Mr Logan-Salton, who is well able to take an active part in litigation and is not wholly unfamiliar with Employment Tribunal procedure, because he has been engaged in the Employment Tribunal in earlier litigation, made inadequate arrangements for the forwarding of his mail. Both the letter of 14 June and the Order of 24 June were delayed before his receipt of them. There may also have been an unexplained gap between his ultimate receipt of the letter of 14 June in August 1999 and his going to a solicitor's on, it seems, 22 August 1999. One cannot be sure, although Mr Logan-Salton says that the interval was only very brief, but the evidence itself, the evidence properly so-called, does not speak to that gap.[16]I do not know either from the evidence (again, evidence properly so-called, rather than remarks made in the course of the hearing) when Mr Logan-Salton instructed solicitors to appeal the Order of 24 June, or first asked whether he could appeal. Again, Mr Logan-Salton says that there was no delay there. I do not know whether any process was delayed by Mr Logan-Salton being told that he was already too late with any appeal; I have not seen the solicitor-and-own-client correspondence. Oversight by solicitors generally is not usually a recognised ground for an extension of time, see the Abdelghafar case which gives guidance in this type of area, at IRLR 28. Of course if Mr Logan-Salton was badly advised by his solicitors he may have a remedy directly against them, but even assuming, and it is a generous assumption in Mr Logan-Salton's favour, that he was merely a wholly innocent and passive observer, having left all to his solicitors, I need to look at things also through Calderdale's eyes. They could properly have thought, come 5 August 1999, that the case was over and the reflection that the case was over could well, as it seems to me, affect memory. Indeed, the evidence adduced by Calderdale suggests that that is the case, and a number of witnesses come forward to give evidence to some such effect. Thus Mr Stuart Green of the Social Services Department says:
"5. My last active involvement with this was in April 1999 when the matter was scheduled to be heard by an Industrial Tribunal. The actual events in this matter go back to the Summer of 1996 and my recollection is now very much dependent on notes contained within the file that I took at the time. Due to the passage of time I would not now feel confident in dealing with detailed questioning with regard to the facts of the matter."
Mr Yates, now the Principal Personnel Adviser for Calderdale, says:
"6. As Personnel Adviser such matters as disciplinary hearings and employment tribunals with regard to employees of the Authority are a significant part of my workload. Mr Logan-Salton's case is now one among many that I have dealt with. My direct recollection of events is now not very good; for my purposes this matter had come to a conclusion over 18 months ago when Mr Logan-Salton's application was struck out. If asked to deal with this matter today I would have to rely upon the contents of the file to answer any questions relating to this matter."
Mr Hartley, Senior Personnel Adviser, says:
"5. It is over three years since I attended the original disciplinary hearing. Mrs Janet Bowyer who chaired the original hearing, has since left the Council's employment. My memory and recollection of events is poor to say the least. I thought this matter had been concluded when Mr Logan-Saltan's application was struck out in July 1999."
Mr Mark Astbury, solicitor, Senior Assistant Solicitor with Calderdale, has a number of passages I need to quote, he says:
"4. The Disciplinary Hearing was heard on 5 th December 1997 and there was no attendance either by Mr Logan-Salton or by his Trades Union representatives. The officer hearing the matter, Mrs Bowyer decided that Mr Logan-Salton's conduct had seriously damaged the confidence and trust of his employers and that he should be dismissed for gross misconduct. That decision was communicated by a letter of the 10 th December 1998 which is found at page 40 of the Employment Tribunal bundle."
A little later he says:
"21. Of the witnesses the original conducting solicitor had intended to call before the Employment Tribunal, Mrs Bowyer who heard the internal disciplinary hearing has retired due to her own ill-health. The extent that Mr Yates, Mr Hartley and Mr Green who presented the Authority's case recall matters is set out in their witness statements filed on behalf of the Authority. The fourth witness was Sergeant Garland of Durham Constabulary who had been the officer investigating Mr Logan-Salton. The Authority had no cause to remain in contact with her after the application was dismissed. I therefore could not guarantee that her whereabouts could readily be discovered by the Authority and in any event it was known that she had left the Child and Family Protection Unit of Durham Constabulary before April 1998. 22. Neither the Chief Officer who suspended Mr Logan-Salton nor the Chief Officer who confirmed his dismissal are now employed by the Authority and as can be seen by Mr Russell's statement, he only had minimal involvement and that only for the purposes of his role of caretaker Director following the retirement of Mrs Denton."
A little later:
"Time has moved on. The Authority no longer has a principal witness who has retired through ill health, the passage of time and the fact that for all intents and purposes this case was concluded some 18 months ago means that other witnesses' direct recollection has now faded. The passage of time has also revealed the facts of the case and I would submit that it would be wholly artificial for a Tribunal to consider the events of December 1997, when the appellant vehemently denied any wrong doing in the knowledge that some 10 months later he entered a plea of guilty to the offences of which he was charged and which formed the substantive reason for his suspension and dismissal."
Of course Mr Logan-Salton pleaded guilty only to the first of the charges; the second of the charges, as I have given details of earlier, the indecent assault of the male, was a case in which he had pleaded not guilty but had nonetheless been convicted.[17]On the basis of that evidence, I am entitled to entertain at least some minor doubts as to whether a fair trial of the issues would now be possible, although as the complaints in the IT1 are largely as to procedure, it would be easy to over-emphasise the likely importance of oral evidence especially as the majority, by far, of the persons likely to be wished to be called by Calderdale, still work for Calderdale and will, in any event, be able to consult their notes and the records made at the time and possibly any witness statements earlier taken. I cannot altogether discount the possibility of prejudice by the passage of time and its effect on witnesses, but I cannot, as it seems to me, regard it as on its own decisive.[18]I therefore turn to the merits not of the Notice of Appeal but of Mr Logan Salton's basic case which stands behind everything. Normally where there has been a merits hearing and a finding on the merits, a consideration of the merits of the appeal plays only a relatively small part - see Abdelghafar supra. Otherwise one would get into a position in which one had to hear the appeal in order to determine whether it should be heard. But here there has, of course, been no hearing on the merits. I assume in Mr Logan Salton's favour that the council had no good ground for not adjourning on 5 December 1997 and for going ahead with the disciplinary hearing in his absence; let that be assumed in his favour.[19]However in the light of the conduct which his subsequent two convictions made plain, it is impossible to escape the conclusion that even had the disciplinary hearing of 5 December 1997 been adjourned, and even had Mr Logan-Salton's argument shortly thereafter at fresh disciplinary hearings been fully presented as fully as it could possibly be, that no result would have been arrived at other than that he would have been dismissed. It might have been another month or more after 5 December 1997 that he would have been dismissed had proceedings, which I am assuming were flawed, been without flaw, but, as it seems to me, the outcome would very very probably have been exactly the same. I appreciate that the council's actions as they were in December 1997 or would have been in early 1998 would more probably be tested by reference to what, if any, reasonable grounds the council then had for acting as it did, rather than with the question of whether those grounds later turned out to be well founded and substantiated, but even so, some factors need to be borne in mind.[20]First of all, there is no suggestion in Mr Logan-Salton's IT1 that the council did not genuinely believe in the existence and seriousness of the misconduct with which it charged him. Secondly, there is no suggestion in the IT1 that the council which had suspended him from June 1996 had not adequately investigated or enquired by itself, or by reference to the enquiries and investigations of others, as to whether there were, indeed, reasonable grounds for believing Mr Logan-Salton to be guilty of misconduct. After all, enquiries had been made by the police which had led to the laying of significant criminal charges of a kind which, surely, would be likely to endanger his continuing employment by Calderdale.[21]Thirdly, given that Mr Logan-Salton pleaded guilty to the first set of criminal proceedings, and was convicted on the second set notwithstanding that he had pleaded not guilty, this is not a case where the Applicant could say, with any likelihood of success, that had only better enquiries or better investigations been made, his innocence of misconduct would have become plain.[22]Accordingly, the outstanding probability as it seems to me, was that even if the IT1 succeeded on procedural grounds, it would not have led to reinstatement which was, at the time, upon his deliberate amendment, the only relief which Mr Logan-Salton sought. Even if he had changed later and had asked for compensation, either in addition or in the alternative to reinstatement, it is hard to see the IT1 leading other than to a recognition by the Employment Tribunal that if the disciplinary hearing of 5 December 1997 had been adjourned and had fresh arrangements then been made for hearings at which Mr Logan-Salton could attend or be represented, the only consequence would have been a dismissal, a little later than the one which actually took place. Mr Logan-Salton would have been suspended a little longer, receiving £256 a week in the meantime, but then would have been dismissed, as he was.[23]It is not a case, it seems to me, where some reputation is likely to be vindicated or some personal slight undone, and it is against that thought that I need to take proportionality into account. To allow Mr Logan-Salton's appeal to be heard would permit him a hearing to challenge the striking out. That would not be an easy case because it would not suffice for the Employment Appeal Tribunal to say that they would not have acted as the Employment Tribunal would have done; they could only upset it if error of law were to be found, and it is not at all improbable that half a day would be spent looking into that matter. Even if it was successful, that would lead to a second hearing of the IT1 itself; perhaps a day or more, but the ultimate outcome, notwithstanding the cost and delays inherent in such two hearings, would in all probability, as I say, at best looking at the matter through Mr Logan-Salton's eyes, be a confirmation that there could properly have been a dismissal, but that a month or more would have passed between the dismissal that actually took place and the putative dismissal that would have followed on due disciplinary proceedings. Moreover, the likelihood is that Mr Logan-Salton would be held to have contributed substantially, if not totally, to such dismissal. Compensation, if there was to be any, would be assessed, perhaps, on a Polkey percentage basis: see Polkey v Dayton Ltd [1988] ICR 142 - 163 and the Employment Rights Act 1996 Section 122(2) and 123(6) would undoubtedly come into play.[24]When I take proportionality into account, together with the slight but not negligible risk on the council's side that they would be prejudiced in terms of evidence after so long a delay, and the fact also that if Mr Logan-Salton was consistently badly advised by solicitors, he may have relief against them, the proper course, as I see it, is not to grant this present appeal and to leave the Notice of Appeal of 4 April 2000 as defunct. In other words, I am not extending time, leaving the Registrar's refusal of the extension of time as it stands.[25]Mr Logan-Salton was also refused by the Registrar an Order for discovery, relative to his Notice of Appeal of 5 April 2000 and a letter of his to the Employment Appeal Tribunal has been treated as a Notice of Appeal against the Registrar's Order. But as the main Notice of Appeal remains defunct, this satellite appeal is also dismissed.