MR K WADDINGTON v SHEFFIELD CITY COUNCIL [2002] UKEAT 1409_00_2005

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1409_00_2005

Case No Appeal No. EAT/1409/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MR K WADDINGTONAPPELLANT

SHEFFIELD CITY COUNCILRESPONDENT

Before

His Honour Judge D M Levy

Date 20 May 2002

[1]APPEARANCES For the Appellant MR NIRAN DE SILVA (of Counsel) Appearing under the Employment Law Appeal Advice Scheme JUDGE D M LEVY QC This is the preliminary hearing of an appeal by Mr Keith Waddington ("the Appellant") from a Decision of an Employment Tribunal sitting in Sheffield on 4 May 2000. The Decision was promulgated on 22 May 2002. He had claimed that the Respondent to the appeal, Sheffield City Council, by whom he was employed had wrongly dismissed him. The ground on which he was dismissed was gross misconduct. This dismissal followed an investigation into allegations of misconduct of which the Appellant said:

"the investigation was flawed, and evidence produced by myself to disprove the allegations made was ignored."

That is found in his IT1, dated 14 June 1999.

[2]The Council's IT3, having set out some material dates said this about the disciplinary hearings:

"The disciplinary hearing concluded that the Applicant had been guilty of 4 separate activities which amounted to gross misconduct. These were as follows: 1. Engaging in activities within work which conflicted with the proper fulfilment of the Applicant's duties. 2. Engaging in other employment activities outside work which conflicted with the proper fulfilment of the Applicant's duties. 3. Deliberately falsifying claims, including time sheets and sick absence claims with the intention of obtaining payment or other benefits from the Respondent to which the Applicant was not entitled. 4. Improperly using the Respondent's property and equipment for the Applicant's own business and activities and hence benefit. Each activities constituted gross misconduct and the Applicant's actions resulted in a breakdown of the Respondent's trust and confidence in the Applicant. The disciplinary hearing was fair and thorough and considered all relevant evidence. The findings that the Applicant had been guilty of gross misconduct were fair and the decision to dismiss the Applicant was fair and appropriate in all the circumstances of the case. The Applicant was given an opportunity to appeal against the decision and he did so. Once again he was able to present a case to the appeal hearing. The appeal process now concluded and the decision to dismiss was upheld."

Unhappily representation at the Employment Tribunal is not shown on the first page of the Extended Reasons. The Applicant appeared in person and the Council was represented by Mr Hughes, of Counsel.

[3]The submission made by Mr De Silva, who appears under the ELAAS scheme today, on behalf of the Appellant, is that the Decision is flawed because insufficient reasons are given by the Tribunal.

[4]By way of background, it is necessary to say that this is not the first time that this appeal has come up for a preliminary hearing. On 5 December 2001, the matter came before Recorder Slade QC and a panel, when the Appellant was not present. In those circumstances, the Tribunal dismissed the appeal but gave an opportunity for the Appellant to show why he could not attend. He showed such why he had not attended and the preliminary appeal was reinstated.

[5]In his Notice of Appeal, among other matters of which the Appellant made complaint was the conduct of the Tribunal. He was asked to produce an affidavit, setting out matters of which he complained, which he has not done. Mr De Silva told us on instruction that those parts of the appeal are not being pursued.

[6]Mr De Silva wished to pursue the point we have identified as to the Disciplinary Hearing and two other points. They were that the Decision was perverse and that there was not evidence at the hearing to support it. Those last two points are not within the Notice of Appeal filed by the Appellant, albeit that he was in person, and if we were to allow those two grounds to be added, it would be subject to the Council being given the opportunity to say what they wish about them. But at this stage we will confine ourselves to the first ground of appeal which is really that insufficient reasons are given. In that context, we referred Mr De Silva to the recent Decision of the Court of Appeal in English & Another -v- Emery Reimbold & Strick Limited reported on 30 April 2002 where the joint judgment of a Court of Appeal headed by the Master of the Rolls restated the position where it was suggested that insufficient reasons will be given.

[7]The relevant paragraphs of that decision, for these purposes, start at paragraph 16 which reads:

"We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost."

Further down, at paragraph 26, the Court says:

"26 where permission is granted to appeal on the grounds that the judgment does not contain adequate reasons, the appellate court should first review the judgment in the context of the material evidence and submissions of the trial, in order to determine whether, when all these are considered, it is apparent why the Judge reached the decision that he did. If satisfied that the reason is apparent and that it is a valid basis for the judgment, the appeal will be dismissed. This was the approach adopted by this Court, in the light of Flannery in Ludlow -v-National Power PLC 17 November 2000 (unreported). If despite this exercise the reason for the decision is not apparent, then the appeal court would have to decide whether itself to proceed to a rehearing, or to direct a new trial."

We have not yet reached the stage where permission is granted to appeal on the grounds that the judgment does not obtain adequate reason; that is the matter which is before us.

[8]Now, the Extended Reasons give something of the background to the case and having set out the background, in paragraph 8, the Extended Reasons set out the witnesses who gave evidence to the Tribunal was the Tribunal's assessment of the witnesses and their evidence. Paragraph 9 says this:

"Mr Waddington's case is put in this way. He says that Mr Hardy "had it in for him"

. He says that he believes that Mr Hardy was himself responsible for obtaining the "anonymous" documents." [The " anonymous documents" were a number of documents which were put on Mr Hardy's desk on 17 December 1998] "He says that he thinks Mr Hardy probably took them from his (Mr Waddington's) briefcase and he alleges that because he Mr Waddington had been party to the lodging of a grievance against Mr Hardy's appointment that Mr Hardy was out to get his own back. Mr Waddington also says as part of his case that although he did not actually involve himself in his own electrical business during his office hours he had mentioned some 4 years before to his then supervisor Mr Allen that he had such an interest and that he declared it according to the rules. Once again we have to say that that rather lame excuse for not telling the respondents formally what he was doing could have been well substantiated by the evidence of Mr Allen himself but for whatever reason Mr Waddington, although he knew that he was able to apply for a witness summons did not do so." Then the paragraph goes on to deal with other matters about which there was evidence. It next deals with one part of the Appellant's complaint, namely that the Council said that he attended auctions regularly during office hours. He said, of that, this:

"…The other part of the applicant's case is that although it is alleged that he attended auctions regularly during office hours in fact he did not do so except occasionally for ten minutes at lunch time. He says that the respondents have improperly obtained evidence from the auctioneers. It does seem rather remarkable to us that Mr Waddington himself has produced a document from those auctioneers which clearly confirms the respondent's suggestion that the applicant was a frequent attender at the auctions."

[9]Mr De Silva was presented by his client with a 225 page bundle this morning which he, fortunately for us, had time to read, because the Applicant's attendance was delayed by late arrival of his train. Mr De Silva identified pages 55 and 56 in those bundles, on which he made submissions that that holding by the Tribunal was wrong. That, with great respect to Mr De Silva seems to us to be nit-picking and we, of course, could not have the advantage of seeing all the evidence or the statement of the case to which the Tribunal referred in the next paragraph of its Extended Reasons which provides:

"We have to consider all the evidence and in particular the evidence contained in the statement of case. We think that that statement of case is virtually unanswerable. It has not in any way been undermined by the evidence produced by the applicant. The documentation which is all in the bundles before us really speaks for itself. We think that the statement of case can be fairly described as a summary of those documents and it does not depend in any event on the opinion of Mr Hardy. We have come to the conclusion that the statement of case is a fair reflection of the situation. We think that Mr Brookfield, when confronted with that and having heard the fact that the applicant had 15 years of unblemished service with the respondent was entitled to come to the conclusion that the applicant should be dismissed." [We add, in parenthesis that Mr Brookfield was the person who took the initial disciplinary hearing which made that decision] "

It seems to us that 4 separate headings for which the Applicant was dismissed were all offences for which dismissal could have been imposed. We accept of course that if any one of those had stood on its own the story might have been different but the overwhelming evidence was that the 4 separate offences had been committed and we think that in those circumstances Mr Brookfield was entitled to reach the decision he did." We note that there was an appeal against Mr Brookfield's decision which, as we understand it, was likely to have been conducted by three councillors of the Respondents who upheld that decision.

[10]In the circumstances of this case, we admire and praise the advocacy displayed by Mr De Silva in trying to persuade us that the matter should go forward to a full hearing. However we are satisfied that this appeal has no chance of success. It may be that more reasons could have been given, but we have no doubt at all, reading the Extended Reasons that the Appellant well knows why he has lost. He was not believed. There was a disciplinary hearing and an appeal from its Decision. Those conducting the hearings concluded that the Appellant should be dismissed for gross misconduct. If the employer's response was one which could be made by a reasonable employer, the Employment Tribunal is not entitled to interfere. Similarly, we are not entitled to interfere with the Decision of the Employment Tribunal. In our judgment this appeal has no chance of success. In those circumstances, we dismiss it today.