Appeal No. EAT/1035/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 8 November 1996

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR R N STRAKER
MS B SWITZER

KENT COUNTY COUNCIL	APPELLANTS

MR I L EVANS	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR BOWERS
(of Counsel)
The County Solicitor
Kent County Council
County Hall
Maidstone
Kent
ME14 1XO	
For the Respondent	MR FAIRWEATHER
(Solicitor)
Messrs Harman & Harman
10 Station Road West
Canterbury
Kent
CY2 8AN	

	MR JUSTICE MORISON (PRESIDENT):   This is an appeal from a decision of an Industrial Tribunal held at Ashford in Kent. By their decision the tribunal unanimously concluded that the applicant had been unfairly dismissed, but that he had contributed to his dismissal to the extent of 40%. That decision is set out in extended reasons which run to some 30 pages. It was sent to the parties on 14th August 1995.

	The appellants were the employers, the Kent County Council, and the respondent to this appeal, the employee, is Mr Ian Lawrence Evans.

	The background facts may be briefly summarised, since the issue in this appeal is a very short one.

	Mr Evans had been employed by the Kent County Council in their Social Services Department, but specifically as an Area Manager of their Kentskill organisation. Kentskill is an organisation within the Council and within that department of the Council, which offers training to those who are unemployed or otherwise disadvantaged. In his capacity as Area Manager, Mr Evans had access to an imprest account, from which he was able to make payments. He also had access to an ordering system by which items could be ordered at the Council’s expense. 

	In September 1993, there was what the Industrial Tribunal described as a “whistle-blowers meeting”. The whistle was blown on three senior employees of the Council who were engaged in that department and in the Kentskill Organisation, as I understand it. Those three were subsequently dismissed the Council’s employment for cheating on payment and expenses and were prosecuted and pleaded guilty at the Crown Court and were sentenced to periods of Community Service.

	The allegation against Mr Evans was that he had misused both the imprest account and the ordering book procedure in five particular respects which were notified to him by letter dated 18th April following an audit investigation of his books of account. The five allegations are: a failure to follow the Council’s financial procedures in relation to the recording of debits from the imprest account; a failure to account for the whereabouts of some £625.68 from the imprest account; the making of inappropriate payments to Kentskill trainees from the imprest account; using the imprest account to pay for the upkeep, running and insurance of his own vehicle; and using the Kent County Council official order forms to purchase goods for his own personal use and failing to reimburse the Council for some of the items purchased. It will be appreciated that any employee of a local authority in the public service who commits those sorts of offences, if they were committed, is abusing his position as a public officer, and misusing public funds.

	After the investigation was concluded and the matters were put to him, disciplinary proceedings took place. In paragraph 27 of their decision, the Industrial Tribunal find as a fact that Mr Evans’ union representative at the disciplinary hearing started from the proposition that the basic facts were not significantly contested. Rather he chose to raise issues relating to the interpretation of those facts, and the context in which they had occurred, and he made reference to the autocratic management style of one of the people, I think, who was subsequently tried and convicted, and to the culture prevailing within Kentskill. He asked for a consistent treatment of Mr Evans with others, but did not at that time put forward any evidence as to how other staff had been treated. It was emphasised that Mr Evans had apparently made no personal gain from his breaches of financial procedures.

	Following that disciplinary hearing, the employer concluded, having analysed the evidence and arguments, that Mr Evans should be summarily dismissed. The reason why he arrived at that conclusion is succinctly set out at paragraph 29 of the Industrial Tribunal’s decision:

“Mr Evans is an intelligent man. During the hearing he protested his disregard for a corrupt and ruthless management at that time and expressed how much he wanted to see them exposed. Yet time and again he has used them as his justification for breaching the KCC financial regulations. It was Mr Evans that said that he had ‘to adopt his own methods to survive’.
The management of Headstart has been dealt with by KCC and will in time be judged by the Court. I believe Mr Evans knew exactly what he was doing and that, as such, he was guilty of gross misconduct.”

	Employees dismissed by the Council of the standing of Mr Evans have the benefit of a disciplinary procedure which has included within it an appeals procedure. As was his right, he exercised his right of appeal. The Industrial Tribunal were critical of the way the Notice of Appeal had been drafted; they thought that it was very vague and unspecified.

	The appeal lies from a dismissal to a panel of elected members. Accordingly, such a panel was convened. At the first hearing the employee’s representative indicated that he believed that a Mr Lawrence, who was an Area Manager at Ashford, had evidence on three matters which would be of assistance to the appellate tribunal. First, that Mr Evans had made inappropriate payments out of the imprest account; second, the allegation concerning the misuse of the County Council funds for personal gain, but, as the tribunal note that evidence was not specific; and thirdly, that Mr Lawrence would address the management style prevailing within Kentskill as a matter of mitigation for any offence which Mr Evans had committed. It is, we think, significant, and is referred to by the Industrial Tribunal subsequently, that there was not suggestion at this stage that Mr Evans wanted the evidence from another officer of the Council, to whom  he said when giving evidence at the Industrial Tribunal, he had given the £600 odd pounds for her to distribute in an appropriate way. It is to be noted that until the Industrial Tribunal hearing itself, there was no suggestion by Mr Evans that he had any explanation to offer to explain the shortfall of the £600. That was a matter which was only raised, as I say, before the Industrial Tribunal.

	The hearing was adjourned at the request of the representative, and the appeal panel reconvened on 14th February, which was the date next available to the panel and the parties. Very sensibly, the panel members themselves had procured, as we understand it, the attendance of Mr Lawrence at the hearing. He was a witness who was fully bound over to give evidence at the Crown Court trial, which at that stage was being listed for a contested hearing due to take place on 19th June 1994.

	Mr Lawrence, when he attended on 14th February, that is about four months before the trial was due to take place, made it plain that he was in difficulties, in his judgment, in giving evidence. Whilst previously he had indicated that he did not think he could help, that position was no longer maintained as I understand it. But he was saying that he could only give evidence, having regard to the fact that he was due to be a witness at the Crown Court, if undertakings as to confidentiality could be offered to him and other comfort given. 

	Mr Buss, Mr Evans’ representative, suggested that the appeal hearing should be further adjourned until after the trial at the Crown Court had taken place, so as to unlock Mr Lawrence’s reserve about assisting the appellate panel.

	Having retired and considered the matter, the panel concluded that they should not grant the adjournment which had been requested, so Mr Lawrence left the hearing without giving any evidence, and subsequently and immediately thereafter, I think, Mr Evans and his representative took no further part themselves in the appellate hearing.

	The Industrial Tribunal concluded, as we read their decision, that the decision taken following the first disciplinary hearing that Mr Evans should be summarily dismissed, was a decision which was fair and appropriate for an employer to take having regard to the material which was reasonably before them. I obtain this conclusion from paragraph 49, where the Industrial Tribunal indicate that the Council’s representative “submitted, correctly as we think, that no serious issues had been raised as to whether or not the Council had passed the Burchell tests.” Then subsequently at paragraph 60(22) where the tribunal say:

“(22)	That evidence (insofar as it did not come from Mr Evans himself) was gathered after proper investigation by the Audit Department, and the preparation of a detailed report.”

	Having heard the evidence in relation to the appellate procedure and the reason why the Council did not adjourn, the Industrial Tribunal concluded as follows:

“62	On the above facts, we have concluded that the dismissal by Mr Davis was not unfair, since his decision that Mr Evans had committed misconduct was one that he was entitled to reach, and his decision that the appropriate sanction was one of summary dismissal was, in our view, within the reasonable range of responses. The question of fairness or otherwise depends, it seems to us, on the conduct of the appeal, and, in particular, whether the Respondents acted fairly in refusing to adjourn the hearing of Mr Evans’s appeal until after the disposal of the Crown Court proceedings, so that Mr Lawrence’s evidence would then be available. We have carefully taken into account Mr Shulman’s thorough arguments, and, while we can understand why the Appeal Committee reached the decision to refuse an adjournment, we have to say that we think that they were wrong to do so.”

On that basis, and on that basis alone, they concluded that the dismissal of Mr Evans was unfair, but that he was guilty of contributory fault which they put at 40%.

	By their appeal to us, Mr Bowers on behalf of the Kent County Council, has submitted two things. First, he submits that the Industrial Tribunal have applied the wrong test. They have asked themselves the question whether they thought that the employers should or should not have adjourned the appeal, and concluded that in their judgment they disagreed with the decision that was taken by the panel. That is the force of the words “they were wrong to do so.” Secondly, he says in any event, that their decision that the employers’ failure to adjourn the appeal rendered the dismissal unfair, was perverse.

	On behalf of Mr Evans, it is submitted that the Industrial Tribunal have applied the right test. It was submitted to us in support of that contention. Firstly, it is said that as a submission had been expressly made by Counsel that the tribunal should not substitute their own judgment for that of the employer, it was unlikely that having reminded themselves of that submission, they went ahead and did what they were asked not to do. Secondly, the proper test was so well-known that it was unlikely that a tribunal would fail to apply the correct test. Thirdly, we should not construe the Industrial Tribunal decision too precisely. And finally, the tribunal indicated in their decision that they had applied themselves to the criteria in section 57(3).

	In our judgment, it seems very clear, that however it has come about, the Industrial Tribunal have not applied themselves to the correct test when looking at the appellate process. They were, in our judgment, wrongly persuaded that the decision in  The Post Office v Marney could be so distinguished that there was no principle to be derived from it. It seems to us that the Industrial Tribunal misdirected themselves on that issue. The dicta of the Employment Appeal Tribunal in The Post Office v Marney which is set out at page 30, paragraph 55, does set out a principle which is applicable to Industrial Tribunals whether or not the facts with which they are concerned are different. It is important, in our respectful submission, for Industrial Tribunals to recognise a principle when one is advanced before them. The principle is as set out in that decision at paragraph 55. They did not know, and we cannot criticise them for this, that in fact that principle has been expressly approved in a decision of the Court of Appeal in a case called Cabaj. Had they known that, no doubt they would have unquestionably accepted the principle as the Court of Appeal have identified it.

	It really amounts to no more than this. That where there has been a breach of procedure in relation to an appeal, that may or may not render an otherwise fair dismissal unfair. It will simply depend upon the overall fairness of the decision, taking into account both stages of the procedure.

	In those circumstances, it seems to us that what the tribunal should have asked themselves was whether it was within the band of reasonable conduct of an employer to refuse the application for a further adjournment of the appellate process having regard to all the matters before them. It is obvious that in questions of adjournment, a wide margin on appreciation must be accorded to those who have to take the decision in the first place. A decision as to whether an adjournment should be granted or not, is essentially a matter very much falling within the discretion of the body concerned. In this case, the tribunal should have set out with care the relevant factors which weighed on either side of the balance. That is, to look at the damage that could be done to the employers if they granted the adjournment on the one hand; and the damage that might be done to the employee if they did not grant it on the other. Included within those factors which should have been properly set out, would have been the fact that the case was now very stale, because of delay. Secondly, the nature of the allegation which was made, that is the misuse of public funds, which in at least three respects, at any rate, was not in dispute. Thirdly, that Mr Evans was on full pay, and that any adjournment therefore would simply mean further expenditure in relation to him, despite the fact that factually it had been proved to their reasonable satisfaction that he had been guilty of misappropriation of public moneys. They would also have wished to take into account what help they thought could be obtained from Mr Lawrence, having regard to the matters to which I have referred. They would also have wished to consider the fact that the adjournment being sought was not just for a period of four months for certain. They did not know that there was going to be a guilty plea, that the trial would be concluded on the date fixed for the hearing. They did not know, for example, whether there was going to be a retrial following an original trial, or possibly even an appeal. 

	It was open to Mr Evans himself to give evidence before the appellate body. And during the course of that evidence to indicate to them why it was at any point he thought that Mr Lawrence could add to what he himself was saying.

	In those circumstances, it seems to us, that it is manifestly obvious that within the margin of appreciation or within the band of reasonableness, any appellate panel faced with the material which I have indicated, could have reached the conclusion that an adjournment was not an appropriate application to accede to. 

	That being so, it appears to us, that not only have the tribunal overtly misdirected themselves in law, but that the decision which they have arrived at was one which no reasonable Industrial Tribunal could have arrived at had they correctly addressed themselves to the issues which were before them.

	Accordingly, it seems to us that the right order to make is to allow the appeal and to substitute for the finding by the Industrial Tribunal, a finding that the applicant had been fairly dismissed.

[Submissions on behalf of the respondent for leave to appeal to the Court of Appeal.]

	We have to say that we are quite clearly of the view that this application must be refused, there is no point of principle of any importance raised by this appeal of wider significance than to parties themselves. We understand Mr Evan’s concern about the case, but we do not think that there is any question of law fit to be raised before the Court of Appeal. The law is clear. There is a wide ambit of discretion given to Industrial Tribunals. Occasionally, Homer nods. This is one such occasion. We have no doubt at all that this is not an appropriate case for the Court of Appeal.

	If you make an application to the Court of Appeal you will be required to inform them of our judgment on that issue.