MR P SCAMMELL v HEALTH & SAFETY EXECUTIVE [2002] UKEAT 1235_01_0105

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1235_01_0105Case No Appeal No. EAT/1235/01 EAT/135/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR P SCAMMELLAPPELLANTHEALTH & SAFETY EXECUTIVERESPONDENT
Before
Mr Justice Wall Mrs A Gallico Mr S M SpringerDate 1 May 2002
[1]APPEARANCES For the Appellant The Appellant in person MR JUSTICE WALL Appeal No. EAT/1235/01 EAT/135/02 EMPLOYMENT APPEAL TRIBUNAL 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS At the Tribunal On 1 May 2002 Before THE HONOURABLE MR JUSTICE WALL MRS A GALLICO MR S M SPRINGER MBE MR P SCAMMELL APPELLANT HEALTH & SAFETY EXECUTIVE RESPONDENT Transcript of Proceedings JUDGMENT PRELIMINARY HEARING Revised APPEARANCES For the Appellant The Appellant in person MR JUSTICE WALL This is the preliminary hearing of an appeal by Mr Scammell against the Decision of the Employment Tribunal held at Bristol on 30 and 31 August 2001, with Extended Reasons provided later. The unanimous Decision of the Tribunal was that Mr. Scammell's application alleging unfair dismissal against his former employers the Health and Safety Executive (HSE) should be dismissed. The Tribunal held that Mr. Scammell's dismissal had not been unfair. Mr Scammell seeks to appeal that Decision to the Employment Appeal Tribunal. There is a subsidiary appeal relating to the Chairman's refusal subsequently to review that Decision with which we shall deal later.[2]As I explained to Mr Scammell at the outset of this hearing, the powers of the Employment Appeal Tribunal on a hearing such as this, where the Employment Tribunal has dismissed a claim for unfair dismissal, are limited. We are a Tribunal exclusively of law. We are not a Tribunal of fact. The facts found by the Employment Tribunal are a matter for that Tribunal, as is the assessment which it makes of witnesses and, in particular, of the credibility of witnesses. This Tribunal can only interfere with the Employment Tribunal's Decision if its findings of fact are perverse, that is to say if there was no material or no proper material upon which the Tribunal could make those findings.[3]Furthermore, in a case of alleged unfair dismissal, the employer does not, of course, have to prove at any stage that the employee has committed the acts alleged. What the employee has to establish is, firstly, that the reason for the dismissal is one which falls within section 98(2) the Employment Rights Act . Where the allegation relates, as here, to the conduct of the employee, the employer must then show that he genuinely believed that the employee had behaved in the manner alleged, and must have reasonable grounds for that belief. Finally, the employer must conduct a fair investigation. The process of dismissal, including any internal appeal, must be procedurally fair. Once the employer has shown that the reason for dismissing the employee falls within section 98(2), the Act (in section 98(4)) provides that: - "….. the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and(b) shall be determined in accordance with equity and the substantial merits of the case"[4]It follows that provided the Employment Tribunal has made findings of fact which support its conclusion that an employee has not been unfairly dismissed, any Appellant who seeks to upset the decision of an Employment Tribunal on this basis has a heavy burden to bear.[5]In this particular case, the Appellant, Mr Scammell, was a Health and Safety/Factory Inspector employed by the HSE. That is clearly a responsible position which he had occupied from 16 February 1987 to the date of his dismissal. The allegations made against him in the grounds of resistance can be summarised, as they are there, under three headings which the HSE alleged amounted to gross misconduct. Firstly, it was alleged that he had falsified the evidence on which a Prohibition Notice had been issued to a demolition contractor. Secondly, that he had acted unprofessionally, and in breach of published procedures, in his dealings with the contractor, and in questioning the contractor's employees, thereby abusing his regulatory powers. Thirdly, that he had lied to the contractor and the contractor's legal representative, and to his own line manager, about the release of information to the Central Office of Information.[6]The HSE's case was that these findings of gross misconduct had been made following a full disciplinary investigation with which the Appellant had refused to co-operate. That refusal, it said, included a refusal to release his official notebooks which would have been relevant to the first two issues we have identified. The HSE alleged that the Appellant had falsely claimed that his notebooks had been lost.[7]HSE's Notice of Response to the Appellant's Form IT1 goes on to state that the charges had been put to the Appellant in a formal disciplinary issue by Mr Ashton, his Director of Personnel, by letter dated 4 July 2000 and that on five separate occasions Mr Ashton had invited the Appellant to see him and attend a disciplinary hearing in order to respond to the charges. The Appellant was not prepared to do. Mr Ashton, having formed the view that the charges against the Applicant were substantiated, reported the matter to Mr Hillier, HSE's Director of Resources and Planning, who recommended the Appellant's dismissal.[8]HSE's case was that that recommendation was reasonable in the circumstances; indeed, that is was unavoidable in view of the conclusions which both Mr Ashton and Mr Hillier had reached. It was stated that Mr Hillier, before accepting Mr Ashton's report, gave the Appellant a further opportunity to attend a hearing, which he failed to do. Mr Hillier gave independent consideration to Mr Ashton's report and correspondence, and concluded that the Appellant had been guilty of gross misconduct, wholly unacceptable working practices, and abuse of his regulatory powers. He concluded that the Appellant's misconduct would prevent him from undertaking his official duties with any degree of credibility. He concluded that the recommendation for dismissal was correct, and as a result the Appellant was dismissed by a letter dated 26 October 2000.[9]The Appellant was entitled to, and did, exercise his right of appeal to the Civil Service Appeal Board. A note of the Board's hearing is in our papers. The Board dismissed the appeal. Mr Scammell, of course, maintains his denial of the allegations made against him.[10]How did the Employment Tribunal go about its task? Mr Scammell appeared in person. The HSE was represented by a solicitor. The Tribunal heard evidence from Mr Cosman, the Head of Operations for Wales and the West for the HSE, who had originally recruited and appointed the Appellant to work with him in his region. Mr Cosman produced a detailed statement of evidence and the Tribunal was clearly impressed by him. He had been responsible for the preparation of the notes upon which Mr Hillier, the Director of Resources and Planning, had taken the decision to dismiss on the recommendation of Mr Ashton, from whom the Tribunal also heard.[11]There were also, of course, a number of statements which had been taken from witnesses in the course of the HSE's investigation. The Tribunal heard from the Appellant who had prepared a detailed statement, parts of which had been placed before the Civil Service Appeal Board. We are quite satisfied, from the documentation we have seen, that the Appellant had the opportunity to put before the Tribunal all the material which he thought necessary and appropriate.[12]The Tribunal formed a poor view of Mr Scammell's credibility. It took the view that his answers to questions were seldom straightforward. Indeed, in regard to many of the questions, he avoided the thrust of the question and spoke of related but irrelevant matters. Even when points were put to him again, the Tribunal found he did not answer them in a straightforward way. It gives a number of examples of this. When he was cross-examined, he challenged the good faith of Mr Cosman and Mr Ashton, something he had not done when they gave their evidence, with the result that they had to be recalled.[13]It is clear to us that the Tribunal had before it a substantial volume of documentation as well as hearing the oral evidence which I have just outlined. Having carefully summarised that evidence, it referred to the burden and standard of proof in relation to the question of unfair dismissal, and at a later stage, dealt with the law under section 98 of the Employment Rights Act 1996. It then proceeded to set out its findings of fact.[14]As we indicated in the course of Mr Scammell's address to us, the Tribunal's findings of fact are binding on us, unless they can be said to be irrational or perverse. We do not think it would help in any material respect if we read out in detail the findings of fact which the Tribunal made. It is, we think, sufficient to record that it deals in some detail with the HSE's disciplinary process. It also records that Mr Scammell's response to the allegations against him (which were, on any view, of very considerable seriousness) was a blanket denial and a refusal to discuss the matter with Mr Ashton.[15]As part of its assessment of HSE's behaviour, the Tribunal recorded that despite the Appellant's refusal to engage in the disciplinary process, Mr Ashton arranged for one of the Personnel Division's trained investigators to interview two of the witnesses who had given statements of complaint about Mr Scammell's conduct. Those interviews were carried out and the results given to Mr Ashton. The witnesses in question were thought to be credible and Mr Ashton, who had previously written to the Appellant, pointing out that there was a risk of dismissal for gross misconduct, again wrote, giving copies of the interview notes and inviting the Applicant to respond to the allegations. He did not receive a clear or direct answer. Mr Ashton therefore formed the view that the Appellant had not addressed the substance of the complaint which appeared to be a real one and he referred the papers to Mr Hillier. Mr Hillier considered the papers, and again offered to meet the Appellant. The Appellant rejected that offer, Mr Hillier then wrote again to the Appellant on 26 October saying that he had concluded that the Appellant had been guilty of gross misconduct and that he would be dismissed with immediate effect. He was reminded of his right to appeal.[16]As I indicated earlier, Mr Scammell did appeal. It is clear from the documentation referred to by the Civil Service Appeal Board that there was a great deal of written material before them. Mr Scammell indicated that he did not wish to attend the appeal hearing and did not do so, with the result that the Civil Service Appeal Board dealt with the matter on the papers and dismissed the appeal. Whilst it was critical of some delays and procedures adopted by the Respondent, the dismissal for gross misconduct was reasonable, it said, and justified.[17]In these circumstances the submissions made to the Employment Tribunal on behalf of the HSE were straightforward. It was a clear case. It was astonishing, and no doubt unfortunate, that the Appellant had failed to address the allegations made against him, but it was argued that Mr Hillier, in particular, had had no other possible option open to him other than to find that the Appellant had been guilty of gross misconduct and had to be dismissed.[18]The Tribunal records that the Appellant referred them to his statement and to a number of authorities, including the propositions that dismissal must be for conduct by the employee that the employee believed had occurred on reasonably held grounds, and that reasonable enquiries to establish them were required. The Appellant argued that dismissal could not be fair if the Respondent had ignored matters about which it ought to have known, and referred to an authority which concluded that the employer should not rely simply on what a complainant had said and that dismissal without a proper investigation would be unfair. The Appellant was critical of Mr Hillier's decision and the way it was expressed. He said the dismissal was not supported by the evidence. There was no record, the Appellant argued, of previous disciplinary action, warning or advice and that a reasonable investigation had not been carried out.[19]Mr Scammell also argued that due weight had not been given to his thirteen plus years of service to the HSE so that on the balance of probabilities the allegations against him should not have been accepted. He was critical of the limited investigation carried out by Mr Ashton and noted that there had been no detailed investigation or assessment of the photographs he had taken and which were the subject of criticism by employers of the company involved. He finally submitted that the decision to dismiss him was not within the band of reasonableness.[20]Having summarise the arguments, the Tribunal then set out the relevant provisions of section 98, which it erroneously refers to as section 86. We do not think that matters. Having set out the law in what seems to us a concise but perfectly acceptable way, it reached it conclusion in these terms which we think I need to read:
"We have given the most careful consideration to the matters in this case. On the one hand the Applicant has held a senior and responsible position within the Respondent organisation for a long time and there has been no criticism of his technical ability to perform the duties that have been assigned to him. He was undoubtedly dedicated to his work. There were certainly complaints about his attitude towards those whom he sought to regulate and there was an inability on his part to understand or appreciate why such complaint should be made. There is no doubt in our judgment that this issue was a serious one which had undermined the Respondent's trust and confidence in the Applicant to act in accordance with their policy of co-operating with the dutyholders by seeking to educate and encourage them, regarding prosecution as a last resort. However, the issue before us does not reflect those matters and is restricted to whether or not the Applicant's conduct complained of amounted to gross misconduct and was so held to be after reasonable investigation and that the decision to dismiss was a reasonable response by a reasonable employer. In considering this aspect of the matter we have been particularly concerned by the Applicant's repeated failure to provide anything more to the Respondent than a blanket denial of the complaints made against him. This of necessity restricted the Respondent's ability to make further investigations as there was no detailed challenge from the Applicant to the evidence that was before them. Mr Cosman's decision to ask Mr Woodward to take statements and Mr Ashton's decision to instruct Mr Tulley to verify and evaluate the statements of complaint amount in our view to a reasonable investigation in the absence of any detailed explanation or challenge from the Applicant. The allegations of misconduct were the harassment of witnesses and the improper production of evidence on which to base a prosecution, both of which must be fairly regarded as gross misconduct in anyone holding the position of an Inspector in the Respondent authority. We are unanimous in our decision that on that basis and on the evidence before the Respondent at the time that the decision to dismiss was taken, it was a reasonable response following an adequate investigation into the matters in issue. Accordingly this application is dismissed."
[21]We have deliberately read out substantial parts of the Tribunal's Decision because in our view they demonstrate the insuperable difficulty which Mr Scammell has in seeking to appeal the Decision. The Employment Tribunal was plainly entitled to find the facts that it did. It was plainly entitled to make the assessment of the witnesses that it did. It was plainly entitled to find that the allegations made against Mr Scammell amounted to gross misconduct and it was in our view, therefore, manifestly entitled to find that the dismissal of the Appellant was within the band of reasonable decisions for an employer to make. In no sense can that Decision be considered in any way perverse, and in our judgment any appeal against the Tribunal's decision is simply unarguable.[22]Mr Scammell has put in a very substantial Notice of Appeal and a Skeleton Argument which, with citations from authority, runs to some forty seven pages. We heard him this morning in argument for the period of approximately an hour. His recurring theme was that of perversity and the failure of the Tribunal to reject the investigation which had been made by the HSE on the basis of its alleged deficiencies. In our judgment there is nothing in this point. The Tribunal found that the investigation was adequate. Nothing in Mr. Scammell's address to us or in the voluminous documentation persuaded us that the Tribunal's assessment of the investigation was wrong.[23]Mr. Scammell also criticised the Tribunal for apparently relying simply on the material that was available to the HSE at the time the decision to dismiss was made. But even if that criticism has any force, which we do not think it does, it remains the position, in our view, that there was nothing about the process of investigation and the decision to dismiss, which in any way vitiates the dismissal. Thus despite the very substantial degree of detail contained both in the Notice of Appeal and the Skeleton Argument, we can find nothing in either document which addresses the fundamental basis upon which the Tribunal reached a decision and the proposition that the Tribunal, properly directing itself, was entitled to reach the conclusion which it did on the evidence available to it.[24]Despite the large amount of paper, this as a very simple and very straightforward case. Serious allegations were made against Mr Scammell, sufficient to warrant his dismissal. Those allegations were investigated by his employer who genuinely believed, on reasonable grounds, that they were substantiated. Mr Scammell was then invited to take part in a process of disciplinary investigation which was entirely fair and which resulted in an appeal to a highly responsible body which had before it all available information.[25]Against that background it seems to us that the Tribunal was plainly entitled to reach the conclusion that it did, and however many grounds of appeal there are, and however often Mr Scammell repeats the allegation of perversity, all the grounds of appeal shatter against the same simple rock - that the Tribunal has made findings of fact and rejected Mr. Scammell's evidence. Both are part of the Tribunal's function and the findings were open to the Tribunal to make. Of course, we accept that Mr Scammell does not agree with them, but in our judgment, that is neither here nor there. We are, as I say, a Tribunal of law. It is not for us to re-open the facts found by the Employment Tribunal and in those circumstances we do not see any purpose in allowing this appeal to proceed to a full hearing since the inevitable result, if it did, would be that it would be dismissed. We therefore we propose to dismiss it at this stage. Mr Scammell we did say earlier that the second appeal really does follows the same way - is there any point in the second appeal at all? Mr. Scammell A great deal of point - I would actually like at this point to apply for a review Mr. Justice Wall Well, just tell me quickly why you think the second appeal stands any prospect of success. I am going to have to restrict you, I am afraid, to five minutes on this because it is a very short point. Mr. Scammell Well, it is a complete separate issue and the second appeal is, if you like, concerned with procedural issues by the Employment Tribunal. To some extent it is absolutely nothing to do with the actions of the HSE. It is concerned entirely with the actions of the Employment Tribunal. The second appeal, if it had been heard, would have altered the observations that you have just made. The whole purpose of asking for the review was to give the Tribunal an opportunity to alter its findings of fact and also some of its other observations before matters came before you, indeed, it is my belief that if the review had been heard, this first appeal would not have been necessary. The review application would have been an opportunity for the Employment Tribunal quite properly to deal with issues of fact. There are some issues of law that the Employment Tribunal is restrained in dealing with though, as I understand, but there are also some procedural matters which would have been open to the Employment Tribunal to deal with. There are a number of issues relating to procedural matters. Firstly, very briefly, the Tribunal Chairman had no grounds in law for refusing an application for review without previously having written to establish certain matters. He should have invited further observations from [me] ? before refusing the review, and secondly, he erred in law in finding that the application for a review should be turned down on the basis that an application had already been made for an appeal. There are also some issues relating to those of procedure in which do actually relate to the papers I have given you, in that the Tribunal placed the Chairman in the position of being a judge in his own cause. There was a previous application for a review which if I could just hand this in (you do not actually have this before you) the ET is actually aware of this decision. There was a previous decision, basically the background is that I made an application for a review. Mr. Justice Wall Forgive me Mr Scammell, the matter you have got to address you mind to is this: we have decided that your appeal against the Tribunal's Decision stands no reasonable prospect of success; does not raise an arguable point of law and therefore is dismissed. Now, of course, you may apply to us for permission to appeal that Decision to the Court of Appeal or to review it if you wish, I am not stopping you from making that application, but since we have decided that there is no purpose in the appeal proceeding, what on earth can be the purpose of a procedural appeal for a failure to review a Decision which we have found to be correct? Mr. Scammell A fundamental issue of justice Sir. Mr. Justice Wall What is it? Mr. Scammell That the Tribunal was unjust in its proceedings, that the Tribunal should have written and clarified issues with me before deciding that the application for review had no grounds of success and also that the Tribunal erred in deciding that the review could not be dealt with because an appeal had been made to this Tribunal. Mr. Justice Wall I see. Mr. Scammell There is also the issue which you have set out before you that the Chairman was effectively acting as a judge in his own court, which is an issue arising under the procedure rules and these are not actually issues arising specifically from matters relating to the previous appeal - these are matters relating to the second appeal, relating to conduct of the Tribunal in dealing with the application for review, and one of the reasons that I find for the review is that it can alter findings of fact which would affect the decision of this Tribunal. In actual fact, the application for a review would have dealt with the issues on which you have turned down the first appeal. Sir, realistically, coming before you as a mere layman, the basic point I am making to you is the fundamental issue of justice. The rules of procedure are there, the Chairman has indicated that there was one of the points of appeal he was not even bound by, or he did not consider the rules of procedure in making his decision. So there are a number of very fundamental issues of justice and that is the basis of the appeal. There are issues of justice arising from the procedure of the Tribunal in dealing with the application for review and they do not actually relate to the matters of the HSE. Mr. Justice Wall I see. Well thank you very much Mr Scammell.[26]There is, as I indicated in the earlier judgment, a second appeal before us. This is the appeal by Mr Scammell against the refusal of the Chairman of the Tribunal who heard the matter and gave judgment on 12 September to review that Decision. By Extended Reasons dated 11 December of last year, the Chairman refused that application on the grounds that it stood no reasonable prospect of success. The Chairman said in his Reasons that he had carefully considered the Applicant's request for Extended Reasons and his application to review, the application was made on the basis of Rule 13(1)(e) of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001, in the interests of justice. Mr Scammell has repeated this morning that in his submission it is necessary in the interests of justice, as a basic matter of justice, that the original Decision should have been reviewed by the Chairman.[27]The Chairman records his understanding of the Rule is that it operates where "…. the interests of justice require a review where there has been some procedural error at the hearing or that outside circumstances such as an applicant finding new employment when he was not expected to do so demand a review" The Chairman recorded that he had looked carefully at the detailed reasons which Mr Scammell had given in support of the application. He found:
" no grounds within such reasons that appear to me to fall within my understanding of the scope of Rule 13(1)(e)."
Indeed, he said that Mr Scammell had expressed in detail his dissatisfaction with the Reserved Decision in terms that are in the grounds of appeal. Mr. Scammell was, of course, pursuing an appeal. The Chairman therefore thought that the application for a review stood no prospect of success and refused it.[28]We have today dismissed Mr Scammell's substantive appeal against the Decision of the Tribunal in September and, in our judgment, no purpose of any kind would be served by a further wholly academic appeal in relation to a decision which has now been dealt with. We have decided that the Tribunal in this case was acting within the ambit of its discretion, and appropriately, in dismissing Mr Scammell's application for unfair dismissal, and in those circumstances, in our view, any appeal against an application to review that decision would not only be academic, but for the reasons I have just given, stand no prospect of success.[29]In those circumstances, in our view, there cannot be any question of justice that makes the second appeal necessary, and therefore we refuse the application and dismiss the second appeal. Both appeals will therefore stand dismissed.[30]Now Mr Scammell, if you want to appeal to the Court of Appeal, you have a right to apply to ask for permission to appeal to the Court of Appeal - do you want to do that or not? Mr. Scammell I would like to apply for a review …. Mrs Gallico – I do not think he can ….. Mr. Justice Wall I do not quite understand that Mr Scammell, we have just given judgment which will be reduced to writing, that you will have - it seems to me that there would be little point in inviting the Tribunal to review its Decision within days of giving it and I would have thought your proper course, if you want to pursue the matter further, is to apply permission to go to the Court of Appeal. Mr. Scammell I have not ……..am actually entitled to apply for a review even during the course of proceedings.[not clear] Mr. Justice Wall Well, are you are making an application for a review? Mr. Scammell Yes Sir. May I just set out briefly why? Which will be exceptionally briefly. Mr. Justice Wall Well, I think it will have to be because we have just given another Decision which indicates why we think the Tribunal was right. So give us one moment ……… Yes, my colleagues remind me of the appropriate procedure Mr Scammell which is that the judgment we have given will be transcribed and you will be given a copy of it. What you should then do is put your reasons for asking for a review, in writing, to the Registrar, when you have seen the transcript of the judgment, and then it will be dealt with. That is the proper way to do it, I think that is sensible as well - is it not? Mr. Scammell Sir, may I record at this point that you did not actually all that I had to say …I am really Mr. Justice Wall Well you have made that assertion on the record, Mr Scammell, but the answer to it is that we have read all the documents and any exercise of judicial discretion by a Tribunal or an Appeal Tribunal must be a selective process. If there is nothing in the documentation which the Tribunal thinks will assist it to reach its conclusion, it does not have the obligation to look at every paragraph and read every line into the judgment. If you do not like our judgment, you have the right to apply for permission to go to the Court of Appeal. I have said that to you now twice, if not three times. You have not made that application, and so if you want a review, what you must do, please, is to get the transcript and having got the transcript, read it, think about it and ask for a review in writing. I think we must draw a line to the time we can give you. Mr. Scammell But also, just for the record, Sir, the issue particularly in respect of section 100 where some argument relating to the merits of the case rather than the existence of a ground of appeal, I think it would have been fair if you were going to hear arguments on the merits of the case that I should have been allowed to finish Mr. Justice Wall Well if that is a complaint you have Mr Scammell, your remedy, as I have now told you for the fourth time is to apply for permission to go to the Court of Appeal. There is no point, when a Tribunal has given a judgment, to start picking it over again. We have other cases to hear, we have given you well over an hour and a half of time, if not more. That is quite exceptional for an application for permission to appeal and you have failed to satisfy us that you have any point of law, and as I say, if you want to take it further, you have to ask for permission to go to the Court of Appeal. Now could you please withdraw because we have another case to deal with.