MR R BEWRY v CUMBRIA COUNTY COUNCIL [2002] UKEAT 1122_01_1004

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1122_01_1004Case No Appeal No. EAT/1122/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR R BEWRYAPPELLANTCUMBRIA COUNTY COUNCILRESPONDENT
Before
His Honour Judge Peter Clark Mr R SandersonDate 10 April 2002
[1]APPEARANCES For the Appellant MR R BEWRY THE APPELLANT IN PERSON JUDGE PETER CLARK : This is an appeal by Mr Bewry, the applicant before an Employment Tribunal sitting at Carlisle under the chairmanship of Mr N.W. Garside, against that tribunal's decision promulgated with Extended Reasons on 2 August 2001, dismissing his various complaints brought against his former employer, Cumbria County Council.[2]The appellant commenced employment with the respondent Council as Health and Safety Officer in the Social Services Department in September 1992. That employment ended in dismissal on grounds of alleged misconduct involving financial irregularities at a disciplinary hearing held on 28 October 1996 and confirmed by letter dated 29 October 1996, delivered to his home that day. He did not see that letter until 9 November 1996.[3]During the employment he brought six separate complaints alleging that he had been subjected to a detriment on the grounds of his health and safety activities contrary to section 44 of the Employment Rights Act 1996 as it now is; following dismissal he brought separate complaints of unfair dismissal and unlawful deduction from wages.[4]Acting in person he pursued an interim relief application before a differently constituted tribunal over some 20 days between February and July 1997. That application was dismissed with costs. An appeal to the EAT (on which, Mr Bewry reminds me, I sat) was dismissed on 10 December 1997 and an application for leave to appeal to the Court of Appeal was dismissed by that court on 17 November 1998. Mr Bewry expressly takes no objection to my sitting on this appeal.[5]The substantive hearing of the combined complaints appears to have been delayed pending criminal proceedings brought against the appellant and arising out of his employment which initially led to his conviction and imprisonment in January 1999. That conviction was quashed by the Court of Appeal on 20 July 1999.[6]The case was finally listed for a lengthy hearing before the tribunal in January 2001. Various applications for postponement made by the appellant were refused. Eventually the case began before Mr Garside's tribunal on 22 January 2001. The appellant did not attend the hearing. The proceedings continued in his absence and the tribunal heard evidence called on behalf of the respondent over a number of days; precisely how many is a point to which we shall return.[7]Having considered his complaints separately the tribunal dismissed each in turn for the reasons which they gave in their Extended Reasons. We shall not repeat those findings in this judgment, save insofar as it is necessary to adjudicate on the points taken by Mr Bewry in this appeal.[8]He has submitted a closely argued skeleton argument, more in the nature of written submissions, running to 25 typed pages in advance of the preliminary hearing, since slightly amended, together with supporting documents. He there raises four issues, identified as follows:
"(i) Was the appellant deprived of his right to a fair hearing through the unavailability of public funding for his complex tribunal hearing; (ii) Did the ET error in law by failing to properly, if at all, take into consideration serious procedural irregularities; (iii) Did the ET error in law by taking into account matters, which were false, misleading and irrelevant; (iv) Did the appellant receive a fair hearing through the unreasonable delay in the preparation and issue of the decision."
[9]In advancing those grounds in oral submissions before us at this ex parte preliminary hearing it became apparent that certain further material was necessary for us to consider before we could reach our determination as to whether or not any of the grounds of appeal raised arguable points of law which ought to proceed to a full appeal hearing with both parties present. In these circumstances we adjourned the preliminary hearing with a direction that the further material, specifically the appellant's witness statement served in these tribunal proceedings, a car loan agreement, the "pleadings" in his first complaint to the tribunal in 1995; two orders, with reasons, made by Mr Garside's tribunal at directions hearings held on 19 December 2000 and 17 January 2001and a copy transcript of the full Court of Appeal judgment in the case of Sambasivam v Secretary of State for the Home Department (15 October 1999 Unreported), should be lodged with this appeal tribunal. Mr Bewry has complied with that direction, lodging the specified documents and more besides.[10]The hearing was adjourned on the basis that, if necessary, it could be reconvened. Alternatively we would proceed to determine whether or not the appeal should continue or be dismissed on the basis of the submissions, both written and oral, presently before us. Having considered the additional material we have concluded that no further hearing is required and we shall now proceed to rule on the four grounds of appeal raised by Mr Bewry. (1) The right to a fair trial and public funding for the appellant's representation before the Employment Tribunal .[11]It is relevant to note that within the additional bundle of documents lodged by the appellant, at his pages 201-210, is an Advice dated 12 February 2001 prepared by counsel, Mr Antony White of Matrix Chambers, which the appellant has chosen to place before us. In setting out the background to the point on which his opinion was sought Mr White records that in August 2000 Mr Bewry enquired of the Legal Services Commission (the Commission) whether he could obtain public funding for his representation at the forthcoming tribunal hearing. He was referred to the exceptional funding provision contained in section 6(8)(b) of the Access to Justice Act 1999 . Mr Bewry made an application for such funding, which was refused by the Commission in letters dated 24 November and 13 December 2000. Four reasons for that refusal were given, based on the Lord Chancellor's Guidance; it was unclear whether the claims had a reasonable prospect of success; it was not clear that he required legal representation to pursue his claim before the Employment Tribunal; his case was not one involving "overwhelming importance to the client" within the meaning of the Funding Code; his claim did not engage the "Wider Public Interest".[12]We interpose that on 19 December 2000 a directions hearing took place before Mr Garside's tribunal. At that hearing Mr Bewry, who represented himself, referred to his application to the Commission for legal funding. He said, as was the case, that his application had been initially refused but was being reviewed. He asked for a postponement of the tribunal hearing fixed to commence on 11 January 2001. That application was opposed by the respondent. Witnesses, some of whom had retired from the Council's service, had been warned to attend the hearing. The events, the subject-matter of the appellant's complaints, went back as far as 1993.[13]The tribunal refused the application, confident that the appellant would be able to put forward his case with some eloquence. They were prepared to reconsider the matter if specific information that the Commission would fund the appellant's representation was obtained.[14]The appellant then sought to challenge the Commission's decision by way of judicial review proceedings. Reverting to the narrative in Mr White's opinion, repeated in the appellant's written submissions to us, on 9 January 2001 Ouseley J refused the application for permission to apply for judicial review on paper and at an oral hearing before Scott Baker J on 15 January permission was again refused.[15]Meanwhile, the tribunal hearing commenced on 11 January, when the appellant appeared and again applied for a postponement. That request was refused.[16]On 17 January a further postponement application was considered, this time on medical grounds. The appellant did not attend but his general practitioner, Dr Helliwell, attended under a witness order issued by the tribunal. Having considered that doctor's evidence the tribunal were not persuaded that the interests of justice, taking into account the interests of the respondent as well as the appellant, required a postponement. Thus the substantive hearing commenced on 22 January in the absence of the appellant and continued until its conclusion. The respondent called their witnesses and the tribunal took into account the appellant's witness statement. According to the tribunal's substantive decision the hearing ended on 9 March 2001. Mr Bewry believes that it was earlier. That is probably correct.[17]Mr White was asked for his opinion as to the prospects of successfully appealing the order of Scott Baker J to the Court of Appeal. In short he thought there was no realistic prospect of success since the tribunal had completed the hearing. That proved to be the case. On 11 May 2001 Robert Walker LJ refused the appellant's application for permission to appeal the decision of Scott Baker J to the Court of Appeal.[18]In these circumstances we return to Mr Bewry's complaint under this ground of appeal. The question of public funding was, at the time, exhaustively pursued, first to the Commission and then by way of judicial review proceedings. As a result no funding was available. The Article 6 argument, right to a fair trial, failed before Scott Baker J. We do not consider it appropriate to reopen that issue in this appeal. The fact is that no public funding was available to the appellant. In the absence of such funding the tribunal was perfectly entitled, in the exercise of their discretion, to determine that the interests of justice required that the case be heard. As to the medical ground, they were simply not persuaded by the evidence of Dr Helliwell that the appellant was unable to attend the hearing. They considered that the doctor had been misled by the appellant. That was a judgment for them to make as the tribunal of fact.[19]Accordingly we are not persuaded that the appellant was denied a fair trial before the tribunal. He could have attended and effectively represented himself. He chose not to do so. The first ground of appeal fails.[20]By way of postscript we should add that at this preliminary hearing the appellant had the opportunity of free legal representation by Mr Charles Samek, counsel experienced in the field, under the ELAAS pro bono scheme. The case was put back to the end of our list so that the appellant had time to instruct Mr Samek. In the event the appellant dispensed with counsel's services, preferring to present his case to us in person. He did so with the skill which he had already demonstrated on paper and, if we may say so, courteously. (2) Procedural Unfairness[21]This ground of appeal relates to the tribunal's findings on his principal complaint of unfair dismissal. He submits, correctly that it is a fundamental requirement of a fair disciplinary procedure that an employee accused of misconduct must be allowed to put his case to the employer. The test for determining whether or not a dismissal by reason of misconduct is fair or unfair is that articulated by Arnold J in British Home Stores v Burchell [1980] ICR 303 , 304, affirmed by the Court of Appeal in Foley v The Post Office ; HSBC Bank plc v Madden [2000] ICR 1283 (as this tribunal observed at paragraph 55 of their reasons).[22]The tribunal first had to decide what was the respondent's reason or principal reason for dismissal in this case; the appellant contended that it was by reason of his health and safety activities, an inadmissible reason. The tribunal rejected that contention. They found, on the evidence, that it was by reason of the appellant's conduct, a potentially fair reason, as the respondent asserted.[23]The relevant findings by the tribunal for this part of the appeal are as follows. The appellant was suspended on 17 June 1996. There then followed both a police investigation, leading to his eventual prosecution, conviction and subsequent successful appeal against conviction. It is axiomatic that the issues raised in the criminal proceedings differed from those in the tribunal proceedings, even although the factual background was similar. The question in a criminal prosecution is whether the case is made out to meet the criminal standard of proof. The question for the tribunal was whether the employer held a genuine belief that the employee had committed the acts of misconduct alleged, such belief being based on reasonable grounds following a reasonable investigation. Quite simply, the criminal proceedings are irrelevant to the issues raised before the Employment Tribunal.[24]An internal investigation was carried out by Mrs Don, Head of Departmental Services Unit. On 13 September 1996 twelve allegations of misconduct were put to the appellant in writing. A disciplinary hearing before Mrs Whittle, Director of Social Services, was initially fixed for 26 September. The appellant sought various postponements, he then being represented by his trade union. He was supplied with some documents; he wanted more from the respondent. Finally a hearing was fixed for 28 October 1996.[25]On 24 October solicitors then acting for the appellant wrote to the respondent seeking a further postponement on the grounds that the appellant had just learned that his brother, living in Jamaica, had been shot and he had to fly there at short notice.[26]Mrs Whittle frankly did not believe his latest reason for a postponement. The hearing had already been postponed twice. She decided to proceed. The tribunal did not find fault with that decision.[27]She went on to find ten of the twelve disciplinary charges proved. She dismissed him summarily for misconduct, in part gross and in part serious. Examples of gross misconduct included authorising Council funds to be used for his personal car hire costs during his earlier suspensions in 1995 and whilst on annual leave; self-certifying hotel expenses whilst he was suspended in 1995 and purchasing items for his own use at the Council's expense. That small selection of the charges found proved by Mrs Whittle illustrate, it seems to us as it did to the tribunal, serious breaches of trust for which dismissal was the inevitable penalty, let alone being a response properly open to a reasonable employer.[28]Against that decision the appellant exercised his right of appeal to a panel of four Councillors. The appeal hearing lasted over five days during a period between December 1996 and January 1997. It was, the tribunal found, in the nature of a re-hearing. Witnesses were called and cross examined by the appellant who attended throughout. The panel upheld the decision to dismiss.[29]Mr Bewry submits that the tribunal was wrong to find that the original dismissal was procedurally fair. He was not present due to a family crisis.[30]We do not accept that submission in the light of the particular facts of this case, but even if it were right we should have held that, on the tribunal's findings, the appeal by way of rehearing cured any procedural defect at the dismissal stage. Whitbread v Mills [1988] ICR 776. Clark v Civil Aviation Authority [1991] IRLR 412. That is quite different from a case in which the only redress open to the employee is under a grievance procedure. See Clarke v Trimoco Ltd [1993] IRLR 148, to which Mr Bewry has referred us within his bundle of eighteen authorities.[31]In reaching that conclusion we have not overlooked a submission by Mr Bewry, at paragraph 60 of his skeleton argument, that the appeal panel was tainted by the appearance of bias in that the Chairman, Councillor Heaslip, failed to disclose that his daughter, Mary Tuffin was employed by the respondent as a Senior Finance Officer and was involved in the investigation leading to his dismissal.[32]The difficulty with that submission is that, having searched the appellant's witness statement dated 30 December 2000, there is no mention of that suggestion. We are not prepared to allow such a point to be taken, requiring as it does the hearing of further evidence, for the first time on appeal. Kumchyk v Derby City Council [1978] ICR 1116 , Jones v Governing Body of Burdett Coutts School [1998] IRLR 521 , Glennie v Independent Magazines UK Ltd [1999] IRLR 719 .[33]It follows that we reject the second ground of appeal. (3) "False Misleading and Irrelevant Matters " Unlawful deductions from wages[34]The letter of dismissal was delivered to the appellant's home on 29 October 1996. His salary payment of £936.61 for the month of October was initially credited to his bank account on 31 October and then recalled by the respondent that same day. The appellant complained of unlawful deduction from wages.[35]The respondent's answer was that at that date there was outstanding some £4,000 on a car loan agreement entered into between the parties in 1994. We have now been provided with a copy of that Agreement.

(b) It says:

"if during the continuance of this Agreement the Borrower [Mr Bewry] – (iii) leaves the Council's service …the amount of any loan then outstanding (together with interest) shall … be paid forthwith to the Council by the Borrower … but in default of payment the Council are hereby authorised to deduct any such sums and interest from any moneys or sums due from the Council to the Borrower … ."
[36]Mr Bewry's point on appeal is this. In the interim relief application an issue arose as to the effective date of termination (EDT) for the purpose of the relevant time limit. A tribunal sitting at Newcastle under the chairmanship of Mr D. Reed held that because the appellant was out of the country until 9 November 1996 he was not aware of the dismissal until that date. Consequently that was the EDT. Thus, he argues, he had not "left" the respondent's employment when the deduction was made on 31 October. The claim must succeed.[37]This point is not taken, either in the relevant Originating Application to the tribunal (2500409/97) nor in his witness statement. We repeat the observations made earlier in relation to the complaint about Councillor Heaslip. In any event we think it is a bad point. The appellant "left the Council's service" on 28 October, when Mrs Whittle decided to summarily dismiss him. He did not then pay the outstanding debt on the Loan Agreement; nor is it said that he did so thereafter. In these circumstances we are satisfied that the deduction was lawful under section 13(1)(b) Employment Rights Act 1996 , as the tribunal found (reasons paragraphs 44, 67).[38]The remaining complaints under this third ground of appeal relate to various findings of fact by the tribunal which Mr Bewry seeks to challenge in this appeal. He may not do so. Our jurisdiction is limited to correcting errors of law. No such errors are identified in this part of the appeal.[39]It follows that we reject this third ground of appeal also. (4) Unreasonable Delay in Promulgating the Employment Tribunal Decision[40]We suspect that the appellant is right in saying that the tribunal hearing did not occupy the time originally allocated; particularly since he played no part in the proceedings. I have noticed in the past that hearing dates are inaccurately recorded on the face of tribunal decisions. This may be done administratively. If so, I regard it as part of the Chairman's obligation to produce the written reasons to ensure that accuracy is observed.[41]In these circumstances we shall assume, in the appellant's favour, that the tribunal's decision was not promulgated for up to six months after the last day of hearing. If there was a meeting in Chambers for deliberation by the tribunal members that is not recorded on the face of the decision.[42]Mr Bewry submits, by reference to the practice in the Immigration Appeal Tribunal (IAT), that a delay in excess of three months means that the decision should be set aside and the case heard de novo . He relies particularly on the Court of Appeal decision in Sambasivam . At the preliminary hearing he produced the short judgment by Buxton LJ granting the appellant permission to appeal in that case. We asked for and have been supplied with a transcript of the full court's judgments in that case.[43]As appears from the leading judgment given by Potter LJ, with which Roch LJ and Wilson J agreed, in the immigration jurisdiction the relevant rules of procedure provide that the special adjudicator should wherever practicable pronounce his decision at the conclusion of the hearing and send written notice of his determination not less than ten days later. In Waigango , to which Mr Bewry refers, the IAT observed that a memorandum had been distributed to all Tribunal Chairmen stating that subject to the particular circumstance of the case any period in excess of three months between the date of hearing and the date of promulgation would be unacceptable. In the case of Mario (1998) Imm AR 281, 287, the IAT indicated that in an area such as asylum such a delay would usually lead to the case being remitted to another adjudicator for rehearing.[44]The rationale, explained in the IAT cases and by Potter LJ, is that where the credibility of the applicant was vital substantial delay in preparing the decision rendered the assessment of credibility issues unsafe.[45]In the event, on the facts of that case where the delay was four months, the Court of Appeal dismissed Mr Sambasivam's appeal.[46]We have two observations on this part of Mr Bewry's appeal.[47]The first is that the Employment Tribunals Rules of Procedure do not, like the Immigration Rules, set down a time-table for the promulgation of decisions.[48]However, the substantive point is this. The Immigration cases stress that where the issue of the appellant's credibility is central to the adjudication, excessive delay in promulgation of the first instance decision undermines the validity of the assessment of credibility. We immediately see the force of that principle.[49]The present case is quite different for the simple reason that Mr Bewry did not attend the hearing. Thus the tribunal was not required to make its assessment of live witnesses who gave conflicting accounts in order to determine those factual issues. They were required to set the appellant's written statements against the witnesses called by the respondent, who produced their witness statements without undergoing cross examination.[50]In these circumstances we regard the analogy sought to be drawn with the principle emerging from the immigration cases to be a false one in the particular context of this tribunal hearing.[51]It follows that, having considered Mr Bewry's detailed submissions and the material before us, we have reached the firm conclusion that this appeal raises no arguable point of law. It must be dismissed.