MR B KITCHER v ROCHDALE METROPOLITAN BOROUGH COUNCIL [2001] UKEAT 835_00_2301
[1]APPEARANCES For the Appellant MS STEPHANIE HARRISON (of Counsel) Instructed by: Rochdale Law Centre Smith Street Rochdale OL16 1HE JUDGE PETER CLARK This is an appeal by Mr Kitcher, the Applicant below, against a decision of a two member Employment Tribunal sitting at Manchester on 25 April 2000, dismissing his complaint of unfair dismissal against his former employer, the Respondent, Rochdale Metropolitan Borough Council. No point arises in this appeal on the final constitution of the Tribunal.[2]The Applicant was employed by the Respondent as a temporary advice worker from 19 October 1998 until his summary dismissal on 21 October 1999. He held a senior officer grade.[3]The events leading to his dismissal were that the Respondent received two separate complaints that the Applicant had in one case borrowed money and in another case had attempted to borrow money from vulnerable clients of the Council.[4]He was interviewed twice and suspended on full pay pending a disciplinary investigation. A disciplinary hearing was held on 21 October 1999 before Mrs Done, the Chief Executive. Following that hearing she summarily dismissed him. An appeal against that decision failed.[5]The Tribunal found that the Respondent had made out a potentially fair reason for dismissal, conduct. The question was whether the Respondent had acted reasonably, in treating that as a sufficient reason for dismissal for the purpose of section 98(4) of the Employment Rights Act 1996 .[6]The principal issue between the parties was whether or not the Applicant might reasonably have known that his admitted conduct might lead to his dismissal.[7]The Tribunal found that the Respondent had carried out a reasonable investigation. The primary facts were not in dispute.[8]As to the question of the Appellant's knowledge, Mrs Done noted that he had not acknowledged the seriousness of the matters complained of; she thought that demonstrated his inability to appreciate the professional duties of a Local Government Officer.[9]The Tribunal concluded that since the Applicant was a senior officer of the Council, dealing with vulnerable clients, although we are told, not these two individuals, his borrowing money from these two people, or in one case, attempting to borrow money, meant that dismissal in those circumstances was a reasonable response.[10]In this appeal Ms Harrison has submitted that the Tribunal failed properly to consider the issue as to whether the Appellant was aware that his conduct of borrowing, or attempting to borrow money in these circumstances could amount to a ground for dismissal. Reliance is placed on the EAT decision in W Brooks & Son v Skinner [1984] IRLR 379 , and in the passage from the judgment relied on, this Tribunal made the point that of course there is much conduct which any employee will know merits instant dismissal. It is not necessary to give examples.[11]Reference has been made to the Respondent's Code of Conduct in which the precise circumstances of this matter are not dealt with specifically. However, the real question first for the employer, is whether the Applicant ought to have appreciated that what he did was inconsistent with his position as a council officer.[12]The reaction from the Council is clear from the witness statement made by Mr Kitcher in these proceedings. He there says that at the disciplinary hearing, the Council had not advised him that it would be unacceptable to borrow money from the two people involved, and the action of the Personnel Officer at the hearing, Mr Crighton, was to say that it was unnecessary for the Council to warn him about such behaviour as: "the allegations were of such a fundamental nature that there should have been an awareness of the consequences of taking these actions without the Council informing me".[13]It seems to us that the core question for the Employment Tribunal to answer, was whether the Council's reaction in these circumstances, fell within the range of responses open to a reasonable employer. They found that it did and the question then, on appeal for us, is whether that conclusion can be said to be perverse. That is to say, that no reasonable Employment Tribunal, properly directing itself, could reach that conclusion.[14]We are all of us satisfied that that submission is unarguable, and in those circumstances, we think that the appeal should be dismissed at this preliminary hearing stage.[15]For completeness, we should add that an argument was faintly advanced on the basis of the European Convention of Human Rights, the suggestion being that there was here a breach of Article 8 of the Convention in that the Council's decision interfered with the Appellant's right to private life. We see nothing at all in that argument, and consequently the appeal is dismissed.