Baiyelo v London Borough Of Southwark & Ors (Unfair Dismissal : Reasonableness of dismissal) [2011] UKEAT 1189_10_0504

EAT
Baiyelo v London Borough Of Southwark & Ors (Unfair Dismissal : Reasonableness of dismissal)
[2011] UKEAT 1189_10_0504 · 2011-04-05
[1]This case is about unfair dismissal for gross misconduct. I read the papers. I have also been referred to new papers throughout the course of the hearing. I will refer to the parties as the Claimant and the Respondent. Introduction[2]It is an appeal by the Claimant in those proceedings against the Judgment of an Employment Tribunal chaired by Employment Judge G D Etherington sitting at London (Central). The Judgment was given on 3 December 2009 after some 20 days of hearing and including at least 6 days of deliberation. I have taken time during the course of today’s hearing to read the 63 pages of reasons since these were not produced by the Claimant in her bundle before.[3]The Claimant has been represented today by Ms Helen Wolstenholme who gives her services under the ELAA Scheme, and I am most grateful to her for the submissions she has made. The Claimant herself has addressed me at length on matters which I hoped, by drawing her attention to my legal powers confined to questions of law, she would recognise.[4]The Judgment of the Tribunal was to dismiss all of the Claimant’s claims made under different employment protection and discrimination provisions. The Claimant was dissatisfied and sought to appeal but she was out of time. She applied for a review of the Judgment citing a number of matters including new evidence. The Employment Judge considering the matter under his powers of review rejected the application comprehensively but did allow one matter to go forward to a review and it is against the outcome of that review that the Claimant now appeals.[5]The decision of the Judge on 20 May 2010 is described as Judgment on an application for review and it is said to be preliminary consideration under rule 35(3). The Judge set out the reasons why he considered it had no prospect of success, save for one matter. Otherwise, the Judge considered that the Claimant was attempting to reopen and reargue her case. She seeks to explain her failure to mention what will become known as Scrooby Street, and to rehearse that material.[6]However, one matter was allowed to go to a hearing. On 1 July 2010, a decision was made, sent to parties on 6 July 2010, at which it is said the application for review is rejected. With respect, as I have pointed out on countless occasions (see Secretary of State v Rance [2007] IRLR 665 ), what this three‑person Tribunal decided was, at a review , not to vary the decision which it would make, as it says in the next sentence. Formally, the application for a review has been granted by the Judge but the Judgment has been affirmed. Nevertheless, that technicality does not affect the substance.[7]Additional reasons are produced in response to an order made by Silber J in a letter on behalf of the Tribunal dated 5 November 2010. This material then came before HHJ Peter Clark who said as follows:
“The reasons now produced by the Employment Judge in response to the Order of Silber J dated 11 October 2010 for the Employment Tribunal’s decision to dismiss the Appellant’s review application (Judgment dated 6 July 2010) are compelling. The ‘new evidence’ (a) could have been adduced at the original hearing (b) would not have had a significant effect on the outcome of the original hearing (it supported the successful Respondent’s case) and, (c) was not credible as supporting the Appellant’s contention.”
[8]The Claimant seeks to move the matter forward. In Haritaki v South East England Development Agency [2008] IRLR 945 at paragraphs 1 to 13 I set out my approach to rule 3. It should be read with this Judgment. That approach has been approved by the Court of Appeal in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and Evans v University of Oxford [2010] EWCA Civ 1240 .[9]On the sift of this Notice of Appeal, in accordance with Practice Direction 2008, paragraph 9, Judge Clark exercised his power under rule 3(7), as above, and the Claimant has now applied in open court pursuant to rule 3(10). The question for me is whether there is any legal error. The legislation[10]The relevant provisions of the legislation are not in dispute. Employment Rights Act 1996 sections 98(1) and 98(2) provide for dismissal for conduct and section 98(4) provides for fairness in the following terms:
“(4)…. 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.”
The facts[11]I will state the facts briefly in relation to the sole issue which is now live on appeal. It consists of a challenge to the dismissal of the Claimant for failing to reveal in part of a Right‑To‑Buy application that she owned Scrooby Street. She had not disclosed this when she had presented as homeless to the council, a housing authority, in 1998. On the basis of the material which the employer had before it, it concluded it would not have given her accommodation in 1998 and would not have given her the right to buy her then property at Gatefield Court had she disclosed that she was owner of Scrooby Street or living there. On that basis she was summarily dismissed.[12]The Tribunal made condign findings against the Claimant. She was experienced in accounting. She is a person on her way to qualifying as an accountant. She knows about council procedures, council forms and council finance. She was found to be the least credible of all the witnesses who appeared before this Employment Tribunal, of whom there were at least ten. She was manipulative of the procedures; she did not approach the giving of evidence in an appropriate way; she did not prepare the case correctly; her whole approach was simply to seek ulterior motives in everything that the Respondent did. She exhibited a cavalier attitude throughout her procedural steps in this case and she shifted her ground when giving evidence.[13]On the basis of that, the Tribunal made certain preliminary findings as necessary, for example, to the discrimination claims that she was advancing. There was no material upon which the burden of proof would shift. As far as is relevant to unfair dismissal, the Tribunal held that the Claimant had failed to disclose the material which was available in 1998. The Claimant relied on a form which she produced but the Tribunal decided that that was not in the council’s files at the time and, therefore, it had not been disclosed.[14]The Tribunal also took account of correspondence in 2001 with Mr Peile, where it seems to be accepted that the Claimant did acknowledge that she owned Scrooby Street, but the issue was whether in 2005, when the Right‑To‑Buy application was en train , she should have disclosed Scrooby Street. The Tribunal found that the Respondent had ample evidence upon which to base its decision that she was living at Scrooby Street and owned it and so she had not been explicit.[15]The Tribunal found that had her ownership of Scrooby Street been disclosed, she would have been disqualified as homeless and she was engaged in property speculation. None of the materials exigible in 2005 and 2006 surrounding the Right‑To‑Buy disclosed anything to do with Scrooby Street.[16]The Tribunal held that the Respondent conducted a reasonable investigation into the matters, that there was a genuine belief that the Claimant had not disclosed material which she ought to have disclosed and that she was guilty of gross misconduct. It did so after a reasonable investigation and standing back, on the whole, dismissal was in the band of reasonable responses.[17]The Claimant seeks to raise new evidence at the EAT and at the Employment Tribunal. I will deal first with the former. This is the basis of the appeal. The Claimant contends that on the material which the council officer, Ms Cobb, has produced, the original decision by the Tribunal cannot stand. The letter from

the Judge sets out the competing situations:

“When deposing to these facts Mr J Jacob - being closely cross‑examined by counsel for the Claimant - volunteered in an aside that the form produced by the Claimant purporting to be a copy of the document - an application for homeless person’s accommodation allegedly submitted by her at the time and which she asserted bore the address of the property she owned - was the format in use at the time. The Tribunal rejected her claim. Approximately 12 months after that evidence was given the Claimant wrote to an officer of the council asking for a copy of “my HR1 or a sample of the HR1 used in 1998”
. This was sent to her by the official writing in these terms “I hope this is of some assistance”. No such enquiry was made during the hearing, although it quite clearly could have been. Beyond producing the letter from the official quoted above the Claimant advanced nothing more. Even had Mr Jacob been mistaken as to the format of the application form the fact remained that no such application was found on the Claimant’s file and she was seen to frequent the property in question when the Respondents investigated. Thus even were the material she put forward correct the likely impact on the Tribunal’s decision, having regard to all the other relevant material we received, would have been slight if it carried weight at all.”[18]On that basis, the material which the Claimant seeks to adduce will carry the matter no further forward. It is acknowledged that the reference to Mr Jacob is to Mr Joseph, but nothing turns upon that. The real issue is whether the Tribunal had sufficient material for it to conclude that there was not on the council file in 1998 a form which disclosed the existence of Scrooby Street.[19]The form produced by Ms Cobb may well not be the form which was in place in 1998. The Tribunal makes clear that whether or not Mr Joseph is mistaken, the council’s decision, having regard to other relevant material, was reasonable. In addition, the Judge says that there is a highly damaging circumstance; the document disclosed is different. I will leave that aside because at this stage it is not particularly relevant. The point is that the material was not new - it could have been adduced during the course of the hearing - and the Tribunal, on review, was entitled to take the view that it would not vary its decision in the light of this so called new material.[20]In my judgment the matter was one of discretion and case management and the interests of justice. The Tribunal was entitled to form the view it did about the Cobb evidence and, as it said, there was ample other material upon which the Tribunal had already based its decision with no necessity for the Cobb material.[21]It even acknowledged that Mr Joseph might be wrong about this material but, insofar as it stands, the issue as to the correct format for a homelessness application form in 1998 is resolved by reference to the other material around the date.[22]The correct focus in this case was the 2005 Right‑To‑Buy application which, it is common ground, did not include any reference to Scrooby Street, and on the finding by the Tribunal that the Claimant would not have been entitled had she owned Scrooby Street or been living there, the decision would be the same. The new submissions of the Claimant[23]Two other matters arise today. The first is an allegation of actual bias against one of the lay members of the Employment Tribunal. It is said in an address by the Claimant to me herself, that this consists of actual bias. It is said that a Tribunal member, said in the review hearing that a person who owns a home and who applies for homelessness benefit, or applies to be housed, or Right‑To‑Buy of another home, is doing wrong.[24]In my judgment, nothing improper arises out of that remark, even if it were said, as to which at the moment I am not prepared to cause an investigation under the powers under the Practice Direction. This three‑person Tribunal had already decided in the light of what the Respondent told it about its approach to people who own houses (knowing that in certain circumstances you can own a home and still get homelessness benefit, for example, if you are a victim of domestic violence), that the remark was entirely in keeping. In any event, the issue is not one so as to cause any impression of unfairness, either of actual bias, which of course does not exist in this case in its proper sense, nor, as I think the Claimant intends it to mean, apparent bias, applying, as I do, the test in Porter v Magill [2001] UKHL 67 of an impartial observer to these proceedings.[25]The second matter is an application to adduce new evidence before the EAT - rarely will this be done: see Adegbuji v Meteor Parking Ltd UKEATPA/1570/09/LA and applied in Francis v Castle Rock Properties Ltd UKEAT/0260/10/SM. Two pieces of new evidence are said to be relevant. The first is an exchange of email in which the Claimant asserts that Ms Cobb had said that her original forms had been destroyed long ago.[26]In my judgment this is not direct evidence of Caroline Cobb. An opportunity was given to adduce evidence from Caroline Cobb before the Employment Tribunal. I do not consider that it meets any of the tests in the EAT for adduction of new material, because it could have been adduced at an earlier stage had Caroline Cobb been called, or indeed had the matters been put before the Employment Tribunal when it conducted its review.[27]Insofar as it is suggested that the Tribunal ignored the evidence relating to the 2001 exchange with Mr Peile, that is incorrect. The Tribunal made an express finding about it.[28]There is no basis upon which the EAT should intervene. I am conscious of course of how limited my remit is following Fuller v The London Borough of Brent [2011] EWCA Civ 267 . There is no error in the decision by the Employment Tribunal on review not to change its original judgment and there is no basis on appeal here for the introduction of the new evidence the Claimant seeks.