MR K A MCNALLY v CUMBRIA COUNTY COUNCIL [2002] UKEAT 931_02_1811

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 931_02_1811Case No Appeal No. EAT/931/02Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR K A MCNALLYAPPELLANTCUMBRIA COUNTY COUNCILRESPONDENT
Before
His Honour Judge J Altman Mr D A C Lambert Mrs J M MatthiasDate 18 November 2002
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant HIS HONOUR JUDGE J ALTMAN This is an appeal from the Decision of the Employment Tribunal held at Carlisle on 8 April 2002 when the Appellant/Applicant made application for a review of an earlier Decision of the Employment Tribunal which was refused. This comes to us by way of preliminary hearing to determine if there is any point of law that can properly be argued in full before the Employment Appeal Tribunal.[2]Mr McNally had earlier been found to have been unfairly dismissed from his employment with the Respondents as a social worker. The Employment Tribunal made an Order for re-engagement of the Applicant in any post which did not involve, and the words were "contact with children".[3]The Respondents refused to re-engage the Applicant, and by their Decision of 18 April 2002, the Tribunal found that it in fact was not reasonably practicable to re-engage Mr McNally. The Tribunal accepted the evidence of the Mental Health Team Manager that the post which Mr McNally had sought or another in the Adult Mental Health Team of the Respondent, was such as might well have involved personal contact with children.[4]Mr McNally, who has not appeared here today, but has asked us to consider his written representations, which we have done, applied for a review before the Employment Tribunal which was considered by the Chairman alone. The ground of the application was that the Tribunal, in framing its Order for re-engagement, should have adopted the definition in the Protection of Children Act 1999. This statute created a register of persons whom the Secretary of State finds unsuitable to work with children. In such a case, an employer must not offer a childcare position to someone on the register, and for the purposes of this appeal, we quote that part of the definition as applying for the purposes of the statute to a person who has: "regular contacts with children in the course of his duties".[5]The review was sought on the basis that those words were the appropriate words for the re-engagement Order and therefore that the Order should be reviewed on the basis that the posts that were considered unsuitable for someone who cannot have contact with children, may well have been suitable for someone who could have chance contact with children on the one hand, but whose contact would not be described as "regular contact with children", as indicated by the Protection of Children Act .[6]In his letter which expands upon his Notice of Appeal, Mr McNally said that:
"Using the first definition, the tribunal decided that it was not practicable to make a re-engagement order for any post in the Local Authority. In other words personal contact with children could occur in every post in the Local Authority. If there is no significant difference in the definitions, then in the language of the 1999 Act, this means that all possible posts are 'child care positions'. This cannot be the case, clearly the Act sets out to make a difference between a 'child care position' and other positions."
And as Mr McNally points out, in general terms, if people who are registered under the Act are excluded from any job that involves any sort of contact with children at all, then there will be very very few jobs indeed that someone on that register is eligible for.[7]However, a number of matters appear from the Decision of the Tribunal. The first is that the Employment Tribunal did not find that the Applicant was excluded from every post in the Local Authority, but only those in the Adult Mental Health Team. In this particular case, the Tribunal gave a definition of jobs that had to be excluded as being those where there was contact with children.[8]This was not a case that came under any particular provision of the Protection of Children Act 1999 , it was do with the fact that for particular reasons, which are not apparent on the face of our Reasons, which we do not need to know about, the Applicant was regarded as not being suitable because of events that had no doubt taken place. The highest role that the Protection of Children Act 1999 had, therefore, in these particular proceedings, was as evidence of the sort of restriction that can reasonably be placed on people who have behaved in such a way as to go on to the register established under that Act.[9]The Employment Tribunal did not consider the Act; it was not placed before them. The Employment Tribunal refused the application. They quoted a decided case to give an idea of the sort of area in which an application may be granted; they record that the statutory provision could have been drawn to their attention, but was not.[10]The Chairman says that in any case, knowledge of that Act is unlikely to have influenced the substance of the result. First of all they may have adopted the statutory definition, but on the facts of this particular case, even on the basis of the statutory definition, they would have concluded in effect that the sort of job for which Mr McNally had argued, and any work in the Adult Mental Health Team, was one in which there was a risk of "regular contact with children" and they say they would have come to the same conclusion.[11]Accordingly, the Tribunal therefore rejected the application on two grounds. The first was that the material that was being put before them, under the Protection of Children Act 1999, was available and could have been drawn to their attention at the time of the original hearing, so that it would be unjust to re-open a case which, in all other respects, was finished. Secondly, they properly considered whether, before deciding to grant a review, there was any reasonable prospect of success; and the conclusion was that there was no prospect of success because the conclusion would almost inevitably have been the same.[12]The question of whether or not to grant an application for review is a matter very much that is left to the discretion of the Chairman of the Employment Tribunal in any particular case, and the Employment Appeal Tribunal will only interfere if not only is there a point of law, but there is a point of law that arguably shows that the Chairman was in error.[13]We can understand that a litigant in person may not know of a particular statute at the time of the hearing, but, on the basis of what the Chairman says, there was no prospect of the review succeeding, even if it went ahead.[14]Accordingly, it seems to us that there is no arguable error of law whatsoever, as to the way in which the Chairman exercised his discretion to refuse the review, and so the appeal is dismissed at this preliminary stage.