Appeal No. EAT/117/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 November 1996

Before
HIS HONOUR JUDGE H J BYRT QC
LORD GLADWIN OF CLEE CBE JP
MR T C THOMAS CBE

MR D CATANACH	APPELLANT

LONDON BOROUGH OF LAMBETH	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR G MORTON
(Representative)
Brixton Community Law Centre
506 Brixton Road
London SW9 8EN	
For the Respondents	MR R HARRISON
(of Counsel)
Lambeth Legal & Central Support Services
London Borough of Lambeth
Lambeth Town Hall
Brixton Hill
London SW2 1RW	

	JUDGE BYRT QC:  This is an appeal against a decision of an Industrial Tribunal sitting at Whittington House in London over a five-day period in October 1994 when they held unanimously that the Applicant, now the Appellant, had not been unfairly dismissed.

	In order to understand the points arising in this case it is necessary for me to go into the background facts in some detail and I shall rely upon the findings of fact by the Industrial Tribunal.  

	The Appellant was dismissed from employment by the Respondents, the Lambeth Borough Council, on 28 October 1992, having been employed by them since 1974.  At the time of his dismissal the Appellant was a principal officer of the house renovation grants and mortgages section.  In that capacity he met up with a Mrs Muhammad who owned a property at 12 Rydal Road, London SW16.  In 1982, before the Appellant came upon the scene, Mrs Muhammad had obtained planning permission for a conversion of that property into three flats, applied for a grant and was given one in 1985.  Between that date and 1987 some works were undertaken and the Council paid a sum of £17,400 for that work.  Just prior to 1987 the work stopped and, under the terms upon which the grant had been given, if the work is not completed within 12 months, the Council has a discretion to recover the whole amount of the monies paid under the grant.  Attempts were made to recover the money from Mrs Muhammad but they were unsuccessful.  In any event, in 1990 her interest in the property seems to have been awakened again and it is at this stage that the Appellant became involved.

	He visited her in November 1990 and wrote a letter on 9 November to the following effect:

“I note you have now had amendments to your planning permission and your intentions are to convert the property into self-contained flats and the council will consider revising the grant approval to give grant aid for five units but will require to see revised itemised specification and estimates of the cost of the works.”

	On 1 March 1991 the Appellant again wrote to Mrs Muhammad acknowledging receipt of the priced itemised specification, saying that he would be passing it on to a Mr Murphy, who was the officer responsible in the environmental health department, for his consideration and for a further interim payment and a revised report.  The Appellant went on to say that as soon as he had that report he would arrange for the Council’s revised approval letter to be given to her for the amended conversion of the property to five flats.

	The payments of the grant had originally been governed by the Housing Act 1985 but as from 1 July 1990 they were governed by the Local Government and Housing Act of 1989, which altered the rules and regulations relating to the provision of grants.  As from that date where there was a revised proposed scheme, the developer, according to the new rules and regulations, had to re-apply under the terms of the Act for a new grant.  Therefore, it was contended on behalf of the Respondent that it was not possible for the Appellant to arrange a revised letter of approval.

	On that same day, 1 March, the Appellant wrote to Mr Murphy saying that Mrs Muhammad was very unhappy at having to produce receipts for works that had been done some time ago and she no longer had them.  He then said this at the end of that letter:

“... we may have to be lenient in respect of this.  She has financial difficulties and wants to get the job finished as soon as possible.”

	Mrs Muhammad’s case was causing the Housing Department and the Environmental Health Office some considerable concern because it was their view that there was very little work to be seen at the property for the expenditure of the £17,400 grant she had originally been given.   There was no sign that it had been spent on the property.  

	The Appellant’s approach was that if Mrs Muhammad was given more money under a revised scheme the property would be finished and then the Council could recover 90 percent of the monies they provided Mrs Muhammad under the grants from central Government.  However, there were further problems. Mrs Muhammad was still not producing acceptable plans for Mr Murphy to pass.  In mid-March the Appellant put extra pressure on Mr Murphy.  He asked him to revisit the property, to assess any further works that had been done and thereafter to make a payment subject to later approval without reports and without waiting for a complete breakdown of the costings.  On 29 April the Appellant again applied pressure on Mr Murphy, saying that Mrs Muhammad was of the view that he, Mr Murphy and his colleagues, were being deliberately obstructive and difficult.  He again stressed that the Council could not recover 90 percent of the costs that they had expended on this property since 1985 until the works had been completed.  He further said that he, the Appellant, and Mr Murphy’s predecessor had given an undertaking to give revised approval if a revised specification was received and, in fact, such a specification had been received.  The letter finished in this way:

“I would welcome you putting your energies and talents to assist this scheme to progress and trust ‘you will hold the hands of the Applicant’ whenever possible.”

That is the last communication from the Appellant exhibited in which he had something to say about this property.

	On 9 May of that year the Appellant wrote to the Director of Housing requesting premature or early retirement, notwithstanding the fact that at the time he was only aged 40.  The application was refused and as a result some six days later the Appellant went sick with some stress related illness.  Unaware of the fact that the Appellant had gone on sick leave, Mr Murphy wrote to him on 13 June saying, in effect, that he could not do what the Appellant asked him and his letter ended in this way:

“No doubt you are aware of the role of the district auditor in examining grant files and the action which can be taken against officers who do not properly account for tax/rate payers money.  Given the past history of this property [that is referring to 12 Rydal Road] I would contend that proper scrutiny is essential.”

	In the meantime, a Miss Helen Burge had taken over in the Appellant’s absence as an acting grants manager and she met Mr Muhammad, who complained that he had been promised  the revised grant approval for five units by the Appellant in letters in November 1990 and March 1991.  He contended that, as a result, the Council was under a legal obligation to pay over the additional sums.  The advice of the Respondents’ chief solicitor, Mr Tatlow, was sought and he advised that the Council was under no legal obligation to the Muhammads.  He made plain that he considered the Appellant had no delegated authority to determine grants and if he had made such promises, he was clearly acting outside his authority.

	In the meantime, other grounds of suspicion were developing.  The Respondents had employed a commercial business adviser, a Mr McArthur and he, in turn, had become friendly with an outside accountant, Mr Khan.  In mid-1990 both became the subject of police investigation.  In the case of Mr Khan it was alleged that he was referring clients to the grants section of the Council and obtaining a percentage of the grant obtained for himself.  The Appellant’s diaries showed that on various occasions in March and May 1989 and again in February 1990, he had met Mr McArthur in various places around the Borough but not at the Council offices, usually in public houses at lunch time and on one occasion, one such meeting on 16 March 1989 took place when he was supposed to be on  sick leave with ‘flu.  He had also had meetings with Mr Khan on a couple of occasions in May 1989.  It was the evidence of Mr Duffield, head of the Town Planning department, that the Appellant had no cause to meet up with Mr McArthur, since the latter was concerned solely with commercial or industrial enterprise applications.

	On 8 August 1991 the Council invited the Appellant to a meeting to discuss with him how the internal audit investigation of his department could best be carried forward.  It appears that the Appellant was unwilling to co-operate and there was an exchange of correspondence between the Appellant and the Respondents’ representative at the time.  The result was that there was no such meeting but on 24 March 1992 the Director of Housing preferred certain charges against the Appellant arising out of the audit investigation.  The charge with which we are principally concerned today is that which alleges the Appellant had acted against the interests of the Council in attempting to procure additional grants for Mrs Muhammad in respect of 12 Rydal Road.  

	A disciplinary hearing was fixed for 29 April 1992 but the Appellant was unable to attend by reason of ill health.  On 4 May the Appellant wrote to the Council indicating he required a number of witnesses to be called and documents to be produced at the hearing.  Thereafter, there was further correspondence between the Appellant’s representative, Mr Sherwood, a trade union official, and it would seem that during the course of that summer there were two pre-hearing reviews.  As a result, on 3 August the Council withdrew two of the charges they had preferred in the March but those remaining related to 12 Rydal Road and, indeed, to another property the address of which is not relevant in this appeal.  There was a third charge relating to the breach of section 7, paragraph 70A of the National Joint Council Scheme of Conditions of Service, which states that:

“the public is entitled to demand of a local government officer conduct of the highest standard...”

There was also an additional charge to the effect that he had failed to provide the appropriate management leadership.  

	The disciplinary hearing began on 15 September.  On 7 September, before the hearing, there had been a change in the membership of the panel.  That in itself was not of any particular significance but there was also a change in the presenting officer.  Instead of the Appellant’s line manager being the presenter, a Mr Brown was nominated and he was the head of personnel project.  The significance of his appointment was that Mr Beattie, who was one of the disciplinary panel members, was Mr Browne’s subordinate.  In any event, on 15 September the hearing began and continued over several sessions, the Appellant being represented by Mr Sherwood.  On 16 October, a month later, the panel made known its decision and they indicated that the charges had been proved in relation to 12 Rydal Road and the breach of the National Joint Council Conditions of Service.  On 28 October the Appellant was sent a letter in which he was summarily dismissed.  He then appealed and that appeal hearing began on 28 January 1993.

	Initially, the appeal panel consisted of four Council members but eventually one of them dropped out so only three heard the substantive part of the appeal.  The same witnesses were called before the appeal panel, together with some four additional witnesses.  The same documentation was before it, as well.

	It would seem that, due to the unavailability of Councillors, the appeal was not finally concluded until the panel’s decision was made known on 26 January 1994, one year later, though the evidence had been completed, I am told, by October 1993.  The decision of the appeal panel was that the appeal be dismissed.  Already, by that stage, the Appellant had submitted his originating application to the Industrial Tribunal.  He had done that on 11 January 1993, alleging unfair dismissal/

	The Industrial Tribunal found that the reason for dismissal was misconduct and when it came to consider the question of fairness, they directed themselves in accordance with the authority of British Homes Stores Ltd v Burchell [1978] IRLR 379.  They found that the disciplinary panel believed the Appellant had behaved improperly over Rydal Road and that his integrity was in question over the mortgages and discussions with Mr McArthur and Mr Khan.  They were also satisfied before coming to this conclusion that the employers had carried out a detailed investigation.

	There are a number of points the Industrial Tribunal considered in the course of its decision.  They first of all concerned themselves about the delay in bringing on the disciplinary hearing, that is, between March, when first the charges were preferred and 15 September when the proceedings were begun.  They came to the conclusion that they had been bogged down in part because of the Appellant’s requirements, relating to witnesses and documentation and they referred to the fact that there had been two previous prehearing reviews on the way.  In the circumstances, they came to the conclusion that the time delay, was not unreasonable.  They also found as a fact that the Appellant’s absence on sick leave had caused extra difficulties.

	Secondly, they expressed the view that it had been unwise for Mr Beattie to have remained on the panel of the disciplinary hearing once it became clear that Mr Brown was presenting the case for the Respondents.  However, they took the view that that in itself was not a fatal flaw, as the overall conduct of the panel during the hearing and the hearing itself was fair.  They then went on to conclude that, in any event, any defects there were in the procedures of the disciplinary panel had been put right on appeal and cured by the appeal process.

	They again expressed concern about the length of time it had taken to hear the appeal and in that respect they were referring to the nine months between the commencement of the hearing of the evidence and its conclusion but they said that there was no evidence that that brought about any fundamental unfairness in the procedures.  They came to the conclusion that the Appellant had not been disadvantaged by certain of the witnesses he required to be called not being called.  There was Mr Tatlow, who was the chief solicitor, who had given an opinion about the validity of revised approvals being given under the new legislation of 1989 and they noted that, in fact, there had been no contrary legal opinion proffered in evidence in support of the Appellant’s case.  Accordingly, they did not think his not being called to support his opinion, of any particular significance.  There were the witnesses Mr Ruck and Mr Rutter whom the Appellant had asked to be called.  Both these witnesses came from the environmental health office and the Tribunal took the view that the evidence of Mr Murphy and Mr Mersh from the same department was sufficient and obviated any prejudice being caused the Appellant.  As it happened, Mr Ruck did give evidence before the Industrial Tribunal and they noted that his evidence certainly did not assist the Appellant in that he testified that there was no such thing as a revised scheme of the sort that the Appellant had claimed there was.

	In conclusion, the Industrial Tribunal again came to the finding that no unfairness had been wrought as a result of the Respondent’s failure or unwillingness to produce these witnesses for the hearing.  At the end of their reasons, the Industrial Tribunal came to the conclusion that the Council was reasonable in the conclusions they had come to when they dismissed the Appellant and they considered that he had not worked impartially but was attempting to force grants through and they agreed that that was a suspicious factor.

	So far as the procedure is concerned, they appreciated that the disciplinary hearing had taken seven days but they came to the conclusion that it was fair.  They accepted that the length of time it took to process the disciplinary process and the presence of Mr Beattie on the panel, were imperfections but did not amount to unfairness under section 57(3) of the Act.  In any event, they took the view that any defects there had been were cured by the process of appeal which they found was a hearing de novo.

	The arguments in support of the Appellant in this matter had been advanced by Mr Morton and we are grateful to him for his assistance.  He essentially criticised the disciplinary hearing in a number of ways.  He made the point that it was wrong for Mr Beattie to remain a member of the disciplinary panel after it became plain that Mr Brown was going to be the presenting officer.  He also stressed that it was unfair of the Respondents not to have produced all the witnesses the Appellant had asked for and, furthermore, he said that it was in breach of the Appellant’s contractual rights in that the Respondents’ own code of disciplinary procedure made provision for the calling of witnesses.

	The Appellant said that these defects were not corrected at the appeal hearing and in that the Industrial Tribunal found that they were, that finding was perverse.  Furthermore, he said that it was wrong of the Industrial Tribunal to have come to the conclusion that the appeal hearing had been fair when it had to be accepted that that process had taken some nine months to complete.

	We, as the Employment Appeal Tribunal, have had to enquire as to whether the procedure, either at the disciplinary hearing or at the appeal stage was fundamentally flawed in any way and we have come to the conclusion, based on the case of Sartor v P & O Ferries [1992] IRLR 271 that the question of the fairness of the procedures and the hearings at either stage of the disciplinary hearing or the appeal process, were fair or fundamentally flawed, is a question of fact for the Industrial Tribunal.  The Industrial Tribunal has said that the proceedings were fair and, accordingly, we have to accept their judgment of that matter unless there is grave reason why we should not do so.

	The appeal:  the Industrial Tribunal came to the conclusion that it was a hearing de novo.  There is evidence to support that conclusion.  The evidence given to the Industrial Tribunal by the Appellant himself and, indeed, by his representative, Mr Sherwood, makes that plain.  So far as the problems relating to Mr Beattie are concerned, he, of course, was not a member of the appeal panel and, indeed, the appeal panel which heard this matter was fresh and untainted with any of the problems that had affected the panel of the earlier hearing.

	Before the appeal hearing, Mr Murphy and Mr Mersh were called as witnesses.  Mr Duffield was also called on that occasion.  Those were three witnesses the Appellant had wanted called.  Mr Ruck, another witness he wanted, gave evidence before the Industrial Tribunal as I have already indicated.  Further, the Industrial Tribunal came to the conclusion that the evidence of Mr Tatlow would not have helped the Appellant.

	The Industrial Tribunal came to the conclusion that the hearing of the appeal was a fair hearing.  We are of the view that any defects at the disciplinary stage, would have been cured by a fair hearing on appeal.  Mr Morton argues that the finding by the Industrial Tribunal that the appeal hearing had cured any defects in the earlier disciplinary hearing was perverse. Mr Harrison has replied that to find perversity this Tribunal has to be satisfied that there was no evidence upon which the Industrial Tribunal could have come to its finding.  He immediately pointed to the evidence of Mr Sherwood, the Panel’s representative, who said that the hearing was fair.

	So far as delay is concerned, there naturally has to be concern about that but it was accepted by Mr Morton - in fact, it was Mr Morton who told us - that there were minutes taken throughout the appeal hearing by a clerk.  Any anxiety we might have had about the panel’s ability to retain the evidence in mind over the nine-month period of the hearing is assuaged by the knowledge that there were transcriptions of such notes.

	In all the circumstances we do not think that it is possible to sustain an argument of perversity in relation to the findings of the Industrial Tribunal about the nature of the appeal process, and we accept the findings of the Industrial Tribunal that that appeal process cured any defects that there had been in relation to the procedures before the Industrial Tribunal.

	There are a couple of matters though that we would like to express concern about.  It is the experience of this Tribunal that, not infrequently local authorities, who are large organisations, do select a presenting officer who, as it happens, is the superior of somebody sitting on the disciplinary panel.  When this happens, it necessarily causes questions to be asked about the possible undue influence the presenting officer might exert upon his subordinate.  Such a person should not be selected as the presenting officer where there is the possibility that such a criticism might reasonably be made

	It is, however, right to observe that though, in this particular case, the members of the panel and the presenting officer would have been known to the Appellant, no objection was taken to the make-up of the panel before the commencement of the disciplinary proceedings on 15 September.  Secondly, as I have already indicated, the problem this factor might have created would have been corrected by the appeal process.

	The second point we wish to express concern about is the right of an employee to have witnesses called to support the statements tendered in evidence before a disciplinary hearing.  We are of the view, that if an employer refuses to produce a witness or to secure the attendance of a witness the employee has asked for, the employer must have good reasons for doing so.  It is not always an answer for them to say that they do not see the relevance of having the witness present at the hearing.  It may well be the case that the employee wishes legitimately to make use of that witness to adduce extra evidence which is over and above that which is contained in his statement, and he is deprived of that opportunity if the witness is not produced to give evidence.

	It might be a good reason for not producing a witness that the employer believes the employee intends to cause embarrassment by questioning him or her, or that he is seeking to cause delay in the disciplinary hearing or an appeal by that request.  Another good reason might be that the witness could not conceivably be relevant or it might be that he is just not available.  On all occasions when the matter has to be considered, the yardstick which has to be applied is whether the refusal to produce a witness is likely to cause unfairness in the proceedings.

	In this particular case, the Industrial Tribunal came to the conclusion that the failure to produce those witnesses sought by the Respondent was not a fundamental flaw and, in any event, it was corrected by the appeal process.  Those are conclusions that this Tribunal has no good reason to disturb.

	There is one last ground upon which Mr Morton relied.  He said that the Industrial Tribunal misdirected themselves when they held, in the penultimate paragraph of their reasons, that the dismissal was a reasonable outcome.  He said this phrase indicated that the Tribunal was substituting its own conclusions for that of the employers.  The correct question to ask should have been whether they found that the dismissal was a response within the broad band of responses of a reasonable employer.  This is a point which was not raised in the Appellant’s Notice of Appeal, but in any event we do not consider it a good point.  In paragraph 4 and paragraph 6 of the Industrial Tribunal’s decision they set out the requirements of the Burchell test with accuracy and completeness and demonstrated that they had in mind, at all times, the need to be satisfied that the employers had a genuine belief in the misconduct of the Appellant, and that they had come to such a conclusion after a reasonable investigation.  The Industrial Tribunal concluded by saying it had to decide whether the Appellant received fair treatment in the manner in which the charges were determined and that dismissal was a decision a reasonable employer could have reached.  They then went on to say that they were satisfied that it was.  In so stating their function, we see no error of law.  We have to be careful when pursuing an analytical approach to the reasons of an Industrial Tribunal that we do not reach for the proverbial “fine tooth comb” for the purposes of discovering some error of law which might be argued.

	Taking the decision as a whole, we are satisfied that the Industrial Tribunal applied the correct test and that they made plain it was the employer’s decision which had to be considered and not their own.

	In all the circumstances we dismiss this appeal on that ground as well.