United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0172/15/MC

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

                                                                                                             At the Tribunal

                                                                                                             On 6 October 2015

 

 

 

Before

HIS HONOUR JUDGE PETER CLARK

(SITTING ALONE)

 

 

 

 

 

 

MRS E M McCOLLUM                                                                                           APPELLANT

 

 

 

 

 

NEWPORT CITY COUNCIL                                                                              RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR PAUL HAINSWORTH (Representative) Free Representation Unit Ground Floor 60 Grays Inn Road London WC1X 8LU
For the Respondent	MR ANGUS HALDEN (of Counsel) Instructed by: Newport City Council Civic Centre Godfrey Road Newport South Wales NP2 4UR

 

 

SUMMARY

PRACTICE AND PROCEDURE - Appellate jurisdiction/reasons/Burns-Barke

 

Whether the Employment Tribunal’s reasons for dismissing a conduct unfair dismissal claim were adequate (Meek-compliant; Employment Tribunal Rules, Rule 62(5)).

 

Held; they were.  Appeal dismissed.

 

HIS HONOUR JUDGE PETER CLARK

 

Introduction

1.                  This is an appeal by Mrs McCollum, the Claimant before the Employment Tribunal, Employment Judge Thomas sitting alone at Port Talbot, against that Tribunal’s Judgment with Reasons promulgated on 1 August 2014 dismissing her complaint of unfair dismissal brought against her former employer, the Respondent, Newport City Council.  The appeal has been permitted to proceed to this Full Hearing on the paper sift by HHJ David Richardson on the single ground that the Judge’s Reasons were not, to adopt the expression coined by Sedley LJ in Tran v Greenwich Vietnam Community Project [2002] ICR 1101, “Meek-compliant”, a reference to the classic formulation by Bingham LJ, as he then was, as to a Tribunal’s duty to give Reasons in Meek v City of Birmingham District Council [1987] IRLR 250, 251.  The parties are entitled to be told why they have won or lost.

 

2.                  A formal requirement as to the structure and content of Tribunal Reasons first appeared in the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, Rule 30(6); now to be found in Rule 62(5) of the 2013 Rules.  The history of the Reasons jurisprudence was exhaustively recounted by HHJ Hand QC in Greenwood v NWF Retail Ltd [2011] ICR 896; it is well trodden ground in this jurisdiction.  I bear in mind what is now Rule 62(5) is intended to be a guide and not a straitjacket, as Buxton LJ pointed out in Balfour Beatty Power Networks Ltd & Anor v Wilcox & Ors [2007] IRLR 63, paragraph 25.

 

Factual Background

3.                  The Claimant, now aged 54 years, qualified as a social worker in March 2003.  On 1 August 2011 she commenced employment with the Respondent in the sensitive area of child protection.  Starting on 27 October 2011 various allegations were raised concerning what may broadly be described as the Claimant’s professional standards.  By the time of her suspension on full pay on 12 April 2012 some eight separate allegations had been raised.  An investigation was carried out by Mrs Boyce, during the course of which she interviewed the Claimant on some three occasions, together with eight witnesses.  In September 2013 Mrs Boyce presented her report.  It ran to some 64 pages, which, with appendices, totalled 244 pages in all.  She concluded that disciplinary proceedings should follow in respect of seven of the eight allegations.

 

4.                  A disciplinary hearing took place before Mrs Jenkins.  She upheld all seven of the disciplinary charges and summarily dismissed the Claimant for misconduct by letter dated 8 October 2013.  Against that decision the Claimant appealed to a panel of councillors, who upheld the decision to dismiss having found three out of the seven allegations only to be proven.  They are referred to throughout the Judge’s Reasons as allegations 1, 4 and 6.

 

5.                  I pause to observe that the nature of those allegations was well known to the parties before the Tribunal proceedings commenced.  For my part, on the recommendation of HHJ David Richardson and by agreement between counsel, I have read those parts of Mrs Boyce’s report, she having given evidence below, relating to those three allegations.

 

6.                  Allegation 1 was that the Claimant failed to carry out a reasonable instruction given by the team manager, Mrs Smith, on 5 April 2012; allegation 4, compendiously, that she failed to take on board concerns raised by other professionals in respect of a particular child protection issue; and allegation 6 was the use of inappropriate and potentially offensive language to a service user on the telephone on 24 February 2012 showing a lack of respect for vulnerable service users.

 

The ET Decision

7.                  Following the checklist in ET Rule 62(5), the structure of these Reasons is as follows.  Having noted in paragraph 1 that this was essentially a case about standards, the Judge directed himself as to the law of conduct unfair dismissal at paragraph 2 to 3; it is now well settled.  It was not disputed that the reason for dismissal was conduct, a potentially fair reason; the question was whether dismissal for that reason was fair under section 98(4) in the particular circumstances of the case.

 

8.                  In answering that question the Judge reminded himself of the three stage British Home Stores Ltd v Burchell [1978] IRLR 379 test: did the dismissing officer Mrs Jenkins and later the appeal panel have a genuine belief in the conduct alleged to have taken place, were there reasonable grounds for that belief based on a reasonable investigation (further, he reminded himself that it was not for him to substitute his view for that of the Respondent employer); next, was a fair procedure followed; and finally, did dismissal fall within the range of reasonable responses?

 

9.                  The Judge recognised that dismissal in this case was a potentially career ending event (see paragraph 21), and the principle in A v B [2003] IRLR 405, Elias J, as he then was, presiding, to which Mr Hainsworth referred me and on which Elias LJ expanded in the later Court of Appeal case of Roldan v Salford NHS Trust [2010] ICR 1457.  No point is taken in this appeal as to the appropriateness of the Judge’s self-direction in law.

 

10.              In answering the reasonableness question the Judge expressed his view in favourable terms of the very full investigation carried out by Mrs Boyce and Mrs Jenkins’ approach to her task at the disciplinary stage.  He considered the delay in the process from the start of the investigation in April 2012 until dismissal in October 2013 (see paragraphs 21 to 22).  He concluded that a fair process was followed, including the councillors’ appeal, and that dismissal fell within the range of reasonable responses (see paragraph 40).  There was credible evidence before the appeal panel to uphold allegations 1, 4 and 6 (see paragraph 41).  He was unimpressed by the Claimant’s evidence before him, which he characterised as evasive and partial (see paragraph 43).  I note Mrs Jenkins’ reason for dismissal (see paragraph 38) was the Claimant’s behaviour severely breaching professional standards and as such a penalty short of dismissal, in particular demotion, was not appropriate.  The Judge earlier observed (see paragraph 25) that allegation 4, upheld on appeal, was the most important allegation in this case.

 

The Appeal

11.              In his conspicuously well ordered submissions Mr Hainsworth first complains that the Judge’s Reasons lack structure; there are no headings to introduce a staged approach to the Reasons.  That said, the structure now fashionable is not mandatory under the Rules.  The question for me is, whether or not, as Mr Halden put it, “it is all there”.  In my judgment, it is.  The law is properly covered at paragraphs 2 and 3.  True it is, as Mr Hainsworth points out, that the Reasons devote considerable attention to the disciplinary process, beginning with Mrs Boyce’s detailed investigation through Mrs Jenkins’ disciplinary to the appeal panel’s adjudication, but that does form an important part of the fairness investigation.

 

12.              As to the application of the Burchell test, the finding at paragraph 41 answers the question as to whether the Respondent had reasonable grounds for its belief in the misconduct finally found by the appeal panel following a reasonable investigation.  The Respondent properly considered the Claimant’s case, as did the Employment Judge in the Tribunal setting (see, for example, paragraph 29).  He found the Claimant was listened to during the disciplinary process and rejected any suggestion of bias.  He considered the question of delay (see paragraphs 21 and 22) but did not find that it rendered the dismissal procedurally unfair.  He recognised that allegation 4 was the most important (see paragraph 25).  As Mr Hainsworth helpfully pointed out in his submissions, it involved concerns raised by some seven different professionals about the Claimant’s standards.

 

Conclusion

13.              In summary, in my judgment, the Judge identified the issues, directed himself correctly as to the law (which was not controversial), he applied the law to the facts found having preferred the evidence of the Respondent’s witnesses to that of the Claimant, he found that the process undertaken by the Respondent was fair notwithstanding the delay and, noting that not all allegations were upheld on appeal (see paragraph 31), concluded that dismissal fell within the range of reasonable responses.  In these circumstances, this appeal fails and is dismissed.