EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
Lord Clarke Lord Hardie Lord Osborne	[2012] CSIH 75 XA113/11 OPINION OF THE COURT delivered by LORD CLARKE in the Appeal to the Court of Session under Section 37(1) of the Employment Tribunals Act 1996 against a decision of the Employment Appeal Tribunal dated 12 July 2011 by ANDREW CUSICK Appellant; against STRATHCLYDE JOINT POLICE BOARD Respondents: _______

Act: O'Neill, QC; Thompsons

Alt: Edward, Solicitor Advocate; Maclay Murray & Spens

27 June 2012

[1] This appeal from the Employment Appeal Tribunal is against a decision of that Tribunal, whereby it allowed an appeal by the respondents from a decision of the Employment Tribunal which had found that the appellant had been unfairly dismissed from the respondents' employment and ordered his reinstatement. It was not disputed that, in reaching that decision, the Employment Appeal Tribunal had allowed the respondents to withdraw a material concession made, on behalf of the respondents, before the Employment Tribunal and had, as a result, proceeded to decide the issues between the parties on a substantially different basis from what had been argued before the Employment Tribunal.

[2] The case is somewhat unusual in its factual background. As summarised in the Employment Appeal Tribunal's decision that background was as follows.

[3] The respondents are a statutory body constituted under the Police (Scotland) Act 1967 and the Strathclyde Combined Police Area Amalgamation Scheme Order 1995. The appellant entered the respondents' employment as a police training officer on 25 October 2005. He had previously served as a police officer with Strathclyde Police Force for 30 years.

[4] In 2005 the appellant's twin brother, Martin Cusick was convicted of serious sex offences as a result of which he became subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 ("the 2003 Act") for an indefinite period. His details were recorded in what is known as the sex offenders' register. In terms of section 86 of the 2003 Act, he was under certain notification obligations to provide details of any intention on his part to leave the United Kingdom, prior to his doing so.

[5] On 18 October 2005 the appellant's brother left the United Kingdom without complying with the requirements of section 86 of the 2003 Act. A warrant was issued for his arrest. The appellant knew of the warrant and that the police were looking for his brother. It appears to have been a matter of agreement before the Employment Tribunal and the Employment Appeal Tribunal that, over a period beginning some six to eight weeks after his brother's departure, until April 2008, the appellant received information about his brother's whereabouts which he withheld from the police, despite specific enquiries being made of him regarding his brother's whereabouts. Eventually at an interview with the appellant held in April 2008 he advised the police that he believed his brother was in Canada. He had available to him an e-mail address for his brother and a Canadian telephone number for him. He informed those interviewing him that he had received information indicating that his brother was working as a taxi driver. Shortly thereafter the appellant's brother was arrested in Canada. The appellant was then suspended from his employment and disciplinary proceedings followed.

[6] At the disciplinary hearing the allegation against him was that he had,

"... repeatedly failed to provide information to Police Officers concerning the whereabouts of his brother ... a registered sex offender who failed to comply with legislation/requirements contained within the Sexual Offences Act 2003".

After a disciplinary hearing held on 27 January 2009, chaired by Detective Chief Superintendent McAllister, the appellant was found to have been guilty of gross misconduct and was summarily dismissed. The appellant appealed unsuccessfully. The appellant then proceeded to make his claim for unfair dismissal before the Employment Tribunal which, as already indicated, ordered his reinstatement.

[7] In paragraph 31 of its decision of 29 July 2010 the Employment Tribunal was recorded as follows:

"What was accepted by all parties however was that the Claimant was under no legal obligation to assist the Police with the provision of this information. Furthermore the Tribunal observe that the Claimant was not employed by Strathclyde Police Force and had no obligations to them under employment law. He was employed by Strathclyde Joint Police Board as a civilian employee. The Tribunal therefore had to consider the fact that the Claimant's lack of co-operation (such as it was) was with Strathclyde Police and was an action which took place outwith the workplace. The Tribunal also considered the fact that both parties had conceded there was no legal obligation on the Claimant to have provided this information and indeed to have co-operated with the Police."

It is clear that the acceptance by both parties that there were no legal obligations of the sort referred to in that passage upon the appellant directly contributed to the Employment Tribunal's decision that the dismissal was unfair.

[8] The respondents' grounds of appeal to the Employment Appeal Tribunal included the following:

"The grounds upon which this appeal is brought are that the Employment Tribunal erred in law that:

(1) It failed (as per paragraph 31 of the Judgment) to correctly state the terms of the Claimant's employment relationship with the Respondent (and Appellant herein). The Claimant was an employee of the Respondents (and Appellant) under, and in terms of, section 9(2) of the Police (Scotland) Act 1967, as amended, and was therefore '... under the direction and control ...' of the chief constable of Strathclyde Police. The Claimant did owe obligations, under employment law, to the chief constable of Strathclyde Police, and to his Officers. Separatim the Employment Tribunal misdirected itself in offering the observation that the claimant was not employed by Strathclyde Police Force. Strathclyde Police is the police force established under and in terms of section 1 of the Police (Scotland) Act 1967, as amended, for the Police Area of Strathclyde Police. A Police Force has no power to employ anyone. Reference is made to the 1967 Act. Persons such as the claimant may only be employed by the Police Authority, under the directions and control of the chief constable, in terms of section 9(2), as already stated, or alternatively, in terms of section 9(3) of the 1967 Act, as amended.

(2) It erred in law in determining that the Claimant's actions (as set out more particularly in its Judgment at sub-paragraphs 3(vii)-(xx) inclusive) did not constitute misconduct on his part - rendering him liable to disciplinary procedures - by reason, inter alia, of the fact that the Claimant was under no legal obligation to provide certain information (as to his knowledge of his brother's whereabouts) to Police Officers. The Employment Tribunal fell into error in conflating the obligations on the part of the Claimant, if any, in terms of the Sexual Offences Act 2003 to provide information to police officers with the obligations to the Respondent (and Appellant) and to the Chief Constable Strathclyde and to his actions might constitute misconduct as a member of Police Staff".

It appears from the Employment Appeal Tribunal's decision that, when the matter came before it, it immediately embarked on a close analysis of the statutory structure in relation to police in Scotland and how the appellant's employment fell to be considered within that structure - see in particular paragraphs 8 and 9 and 17 to 23 of its decision. It allowed the respondents to withdraw the concession made before the Employment Tribunal that the appellant was under no legal obligation to assist the police. In doing so at, paragraph 37. It stated:

"We are readily satisfied that, in the circumstances, we should allow withdrawal of the concession referred to and, also, allow the Respondent to rely on the arguments advanced in support of the first ground of appeal. Insofar as the other grounds of appeal flow from the first one, we also allow them to be advanced. We are satisfied that, given the statutory basis for the Respondent's argument and given that matters can be fully addressed on the facts found without the need for further evidence, there is no prejudice to the Claimant"

The Employment Appeal Tribunal then proceeded, in its judgment, to criticise the Employment Tribunal's approach which it described as "blinkered" and "ill founded" - see para 38 of the decision. It continued:

"They based their conclusions on the fact that the Claimant's employer, the Respondent, was not the police force which had responsibility for locating and securing the arrest of his brother. In so doing, they closed their eyes to the full width of the nature and purpose of the Claimant's employment and concluded that it gave rise to no duties other than any owed directly to the Respondent, notwithstanding that the whole purpose of it was to provide a service to the police force, in circumstances where he was subject to the direction and control of its chief constable. In so doing they failed to have regard to the whole relevant circumstances. Further, they failed to have regard to the relevant statutory structure which is as we have explained it in the "Relevant law" section above. Whilst we fully appreciate that the Tribunal was not referred to that statutory structure, the relevance of the Police (Scotland) Act to police service and associated employment is well known and we would, since they apparently thought it of importance that the Claimant was not employed by the police force, have expected them to ask to be addressed on it if not referred to it by parties' representatives. The implication of their conclusion was that, in discharging the role for which he was employed - providing assistance to police constables - the Claimant owed no duties to anyone and it is unfortunate that that obvious resultant anomaly did not cause them to make further enquiry."

We find it curious at least that while those criticisms are visited upon the Employment Tribunal, by the Employment Appeal Tribunal, not a word of criticism is made of the position adopted by the respondents before the Employment Tribunal, standing the width and implications of the concession made on their behalf when the statutory structure referred to by the Employment Appeal Tribunal, and the nature of the appellant's obligations, if any, under his contract of employment should surely have been something within the respondents' knowledge. It was, in our judgment, unfair for the Employment Appeal Tribunal to criticise the Employment Tribunal for either not being aware of these matters themselves, or not making inquiries about these matters, having regard to the respondents' position before that Tribunal. While an Employment Tribunal will be expected to be aware of the principles and rules of the general law of employment it is not to be expected to know the details of special statutory codes like those relating to the police and the possible inter-play of such matters with the kind of employment the appellant was engaged upon. Nor is it incumbent upon a tribunal in such a situation ex proprio motu to make its own investigations when faced with a respondent who makes a concession of the kind made, in particular, where, as here, the respondent was represented professionally. In that situation it could have been reasonably assumed by the Employment Tribunal that the respondents were placing before the Tribunal all that was considered necessary for the advancing of its case. In that connection we refer to Kumchyk v Derby City Council [1978] ICR 1116 where the Employment Appeal Tribunal itself made the point, at para 1123, that it was not for the Tribunal to suggest to a party a point for consideration, by it, or its advocate, which had been overlooked, or omitted, or, we would suggest, to explore a point expressly disclaimed.

[9] The Employment Appeal Tribunal apparently considered that, without there being the need for any further findings in fact than those which had been found by the Employment Tribunal, in relation to the case brought on a quite different footing, it could, with confidence, assert inter alia at para 39 of its decision:

"As we explain above, the Claimant's employment circumstances plainly involved him owing duties to Strathclyde Police for whose benefit he was employed, for whose benefit he worked and in whose chief constable was vested the power to direct and control him."

The Employment Appeal Tribunal then proceeded to reach the conclusion that there had been gross misconduct on the part of the appellant.

[10] We are entirely satisfied that, in doing so, the Employment Appeal Tribunal clearly stepped outside its jurisdiction and approached the case as if it were a tribunal of first instance. Faced with the respondents' grounds of appeal, as set out above, and having decided that the respondents should be allowed to withdraw the very material concession made before the Employment Tribunal, the Employment Appeal Tribunal clearly, in our judgment, should have remitted the matter to the Employment Tribunal to consider the matter afresh. Once the concession was allowed to be withdrawn, and having regard to the respondents' grounds of appeal, the case took on a quite different character, involving new issues of both fact and law which were for the tribunal of first instance to resolve. The distinction between the jurisdiction of the Employment Appeal Tribunal and the Employment Tribunal in that respect is well established by authority to the effect that the Employment Appeal Tribunal must resist the temptation to decide appeals on the basis of its own assessment of the facts, or what it considers to be the facts, or what it considers to be appropriate inferences to be drawn from the evidence. What the Employment Appeal Tribunal proceeded to do in the present case was to fail to recognise the foregoing distinction.

[11] Senior Counsel for the appellant submitted that, in any event, the Employment Appeal Tribunal had been wrong to allow the concession made by the respondents before the Employment Tribunal to be withdrawn. He made this submission under reference to the case of Kumchyk cited above and the general rule referred to in that case that a party should not, generally speaking, be allowed to resile from what their representative had sought to and did argue before the Employment Tribunal. We consider there was some force in that submission, having regard to the position of the respondents in this case and dicta in the authority just referred to and other authorities. The present case, however, is clearly somewhat special on its facts and might be said to raise some important considerations of public interest. It certainly cannot be seen as simply a typical or common unfair dismissal case. It would be inappropriate for us to say anything more at this stage in that respect. Suffice it to say that senior counsel for the appellant accepted in discussion before the court that the issues raised in the present case might be characterised in the way we have just done. It is clear to us that the case has never been properly dealt with either before the Employment Tribunal or the Employment Appeal Tribunal. Having regard to the very special circumstances of the case, it is important the issues are fully and properly ventilated. For that reason we have reached the conclusion that the concession, originally made by the respondents before the Employment Tribunal, should not be a barrier to a re‑hearing of all points by the Employment Tribunal. We, accordingly, allow the appeal from the decision of the Employment Appeal Tribunal and remit the case back to the Employment Tribunal to consider the whole case of new. We should add that this disposal of matters was ultimately agreed by both sides to be appropriate having regard to the history of the case.

[12] There was some discussion about the composition of the Employment Tribunal which will now require to determine the application afresh. The appellant submitted that case should simply be remitted to the original tribunal. We have reached the conclusion that the case should now be dealt with by a differently constituted Tribunal. It is to be assumed that the case will now take a quite different course from how it proceeded previously before the Employment Tribunal. There would therefore be no great advantage in having the members of the original tribunal dealing with it. Moreover, by having the matter determined by a freshly constituted tribunal, any suggestion that the tribunal had a preconceived view of matters would be avoided.

[13] The appellant moved for the expenses of the whole procedure to date. This was opposed by the respondents. We granted the appellant's motion for expenses of the whole proceedings to date. We were entirely satisfied that the respondents were largely responsible for all that has ensued, to date, in the way their representative had presented matters before the Employment Tribunal. It is difficult, having regard, in particular, to their statutory position, to see how it came to pass that they made the concession which they did make and then sought to withdraw it when they did. The matters which they now seek to rely upon to resist the appellant's claim were all, it seems to us, matters which clearly should have been within their knowledge from the very outset.