Appeal No.	 EAT/1482/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 April 1999

Before
 THE HONOURABLE MR JUSTICE LINDSAY
MR D J HODGKINS CB
MS B SWITZER

MR A G COCKLE	APPELLANT

SOUTH GLOUCESTERSHIRE COUNCIL	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS U BURNHAM
(of Counsel)
appearing under the ELAAS	
For the Respondent		

	THE HONOURABLE MR JUSTICE LINDSAY:	We have before us by way of a preliminary hearing the appeal of Mr A G Cockle in the matter AG Cockle against South Gloucestershire Council.  There was a two day hearing before the Employment Tribunal at Bristol under the Chairmanship of Mr M D Ross.  That was on the 28 and 29 September of last year.   The decision was promulgated on 16 October.

	South Gloucestershire Council was the employer.  Mr Cockle’s IT1, his form of complaint, concerned his employment as a week-end Leisure Centre Assistant.  He claimed to have been unfairly constructively dismissed on 1 March 1998.  It is important to keep in mind that his complaint to the Industrial Tribunal was in relation to that particular form of employment - as a week-end Leisure Centre Assistant - because he was also employed by a related body, South Gloucestershire Education Authority, as a Primary School Teacher.

	The Appellant, Mr Cockle, delivered to South Gloucestershire Council a letter of resignation in relation to his Leisure Centre job on 2 February 1998 and he has since claimed, as is required of a constructive dismissal, that he was, in effect, forced into the position of having to resign by reason of the conduct of the Council, and that he was justified in doing so.  What the Tribunal held, unanimously was that the Applicant was not unfairly dismissed.  We need to go a little into the background of the matter.

	A complaint had been made, presumably to the Education Authority, by parents of a pupil at the school at which Mr Cockle worked about his conduct. He was suspended as a teacher on full pay so that an investigation could be carried out.  Then, on 25 July 1996, he was also suspended by the Council in his role as a Leisure Centre Assistant.  The Council formed a committee to look into matters.  What the Tribunal held in that regard was this: 

“(4) Following receipt of the complaints and the applicant’s suspension the respondent set up a Multi-Agency Strategy Committee which then met on a number of occasions.  

(5) The purpose of the committee was to discuss the allegations, make further enquiries and then make recommendations to the various departments of the respondent concerning the future of the applicant.” 

	So it looked as if the enquiry concerned both his role as a teacher and as a Leisure Centre Assistant.  That committee met on five separate occasions - they are all noted in the Tribunal’s findings - and minutes were kept, and, in Mr Cockle’s favour, at the penultimate meeting it was reported by a member of the committee that there was no concern about Mr Cockle’s employment at the Leisure Centre.  However, at the last meeting of the committee on 27 September 1996, so far as the Tribunal found the facts, they said this:

“At the meeting held on 27 September 1996 the committee agreed to write to the applicant informing him that their investigation had been completed and that papers had been referred to the Crown Prosecution Service.  It also recorded that it believed the applicant posed a risk to children and that if he were employed with children and young people it would have grave concerns about their safety.”

	So that notwithstanding that there had seemed to be no concern about his employment at the Leisure Centre, there were, it seems, general concerns about his employment with children and young people.  Thereafter, in October of 1997 quite a long time later therefore - Mr Cockle was found not guilty of the criminal charges that had been laid against him which were or included indecent assault.  He was not guilty, but that was not an end to the matter because the Tribunal, in their findings go on to describe what happened.  They say this:

“Following the applicant’s acquittal of criminal charges, he was informed in a letter dated 7 November 1997 from Frances Doggett, the Personnel Officer with the respondents, that the leisure and community resources department were to investigate whether the disciplinary proceedings against the applicant were still appropriate.  Reference was made to the conclusions reached by the committee in September 1996.  The applicant was also informed that the investigation was underway, that the investigating officer was Harry Smith, a Senior Area Youth Officer, and that the investigation was likely to take 3 weeks.  The applicant was also informed that Mr Smith would be in touch with him shortly.”

	So the position then was that an enquiry was to be made by Mr Smith.  The Employment Tribunal then go on to deal with the correspondence which followed, which included the Council saying :

“The investigation will comprise consideration of the conclusions of the Multi-Agency Strategy Group, consideration of the criminal proceedings with your acquittal under those proceedings, consideration of the views of those involved, including your own.”

and also

“The fact of your acquittal under criminal charges does not necessarily mean that the council is obliged to take no disciplinary action in relation to the events giving rise to those charges.”

	Mr Smith wrote and he said:

“As is the usual practice in a disciplinary investigation, you, as the subject of the investigation, are being provided with an opportunity to answer concerns about your conduct which still exist despite your acquittal of criminal charges.”

	Dealing with the position of the unfolding investigation by Mr Smith, the Tribunal said:

“In his reply of 22 January 1998 (at page 59 of the bundle) Mr Smith sets out the position very clearly and the applicant should have then been in no doubt of the purpose of the investigation, the way in which it was being conducted by Mr Smith and that Mr Smith was seeking views from the applicant.  It should also have been quite clear that Mr Smith did not intend to finalise his investigation and report until he had heard the applicant’s views.  Mr Smith also made it clear that if the applicant did not respond then he would have to complete his report without hearing from the applicant.”

	However Mr Cockle’s attitude in response to that letter was that he wrote a letter which is quoted from by the Tribunal, and in that letter he said to Mr Smith:

“I have absolutely no confidence that any report you make can be even-handed, having regard to any information you have been provided with from a particular source.  I believe I would not be given a fair and impartial hearing at any stage.  Any disciplinary hearing would be no more than a kangaroo court with a pre-determined outcome.”

	Going on with the story, as the Tribunal held it to be:-  

“On 2 February 1998 the applicant attended at the leisure centre and saw Miss Vyner, the Manager, and handed to her a letter giving an immediate 4 week notice of resignation.  The applicant gave two specific reasons for resigning at that stage.  He said that:

“I have been left with no alternative other than to resign my position due to the continuing intransigence and persecution by South Gloucestershire Council on various issues.”

and he also said:

“I have absolutely no confidence that any report he (Mr Smith) makes will be even-handed, having regard to any of the information he will have been provided with from a particular source.”

	An important concession appears to have been made by Mr Cockle at the hearing of the Industrial Tribunal because in their paragraph 4 on page 17 of our bundle, the Tribunal notes that:

“He [that is Mr Cockle] accepted that there was no breach of contract on the part of the respondents by suspending the applicant and by setting up an investigation after the acquittal.”

	But what Mr Cockle argued before the Tribunal was this:-

“he does however submit that the setting up of the investigation is not in accordance with the respondent disciplinary procedure.  He further submits that the conduct of the respondents followed in the acquittal amounted to a course of conduct justifying the applicant’s resignation and claim for constructive dismissal.”

	The Employment Tribunal then turned to the law and they directed themselves by reference to the leading cases of Western Excavating -v- Sharpe (1978) IRLR page 27 and Lewis -v- Motor World Garages Ltd (1995) IRLR 465.  They noted this in their paragraph 7:

“In this connection it is important to note that no decision had at any time been taken by the respondent to discipline the applicant.  We are satisfied that it was perfectly proper following the applicant’s acquittal for the respondents to consider afresh whether there were grounds for taking disciplinary action.  It was perfectly proper for them to arrange for a fresh investigation by Mr Smith.  We are quite satisfied that Mr Smith approached his task properly and was prepared to recommend that there be no disciplinary action against the applicant if that was what he felt was correct.  We are quite satisfied that Mr Smith dealt with the applicant’s legitimate concerns in a proper and responsible way and made every effort to arrange a meeting with the applicant.  Mr Smith’s investigations were not a sham and there was nothing in his conduct towards the applicant to suggest that.”  

Accordingly they concluded:

“There was no justification in our view for the applicant to resign on 2 February 1998 on the ground that Mr Smith’s report would not be even-handed.”

and then in their paragraph 8, they ended:

“In these circumstances it is the unanimous conclusion of the Tribunal that the applicant terminated his contract of employment but not in circumstances in which he was entitled to because of the conduct of the respondents.  He was not therefore unfairly dismissed.”

	Mr Cockle appeals on the basis that the Tribunal failed to take into account earlier breaches by the Council than those to which a reference was made in the course of the Tribunal’s decision to which we have referred.

	The Notice of Appeal has an attachment which sets out some details which are relied on.  We have been assisted by Miss Burnham of ELAAS.  She did not draw attention to those particular features.  We have also been addressed by Mr Cockle’s father, Mr Cockle Senior, and although he did not, in terms, take us through that document’s grounds of appeal, we have understood his argument to incorporate some of the points made in that document and so we shall look to that document as being of points raised on the appeal.

	Even before the four occasions referred to in that attachment, which begin 7 February 1997, there was an occasion to which Mr Cockle Senior draws our attention, a complaint relative to events of 20 August 1996.  There is an obvious difficulty relying upon really quite early events, relative to a complaint of constructive dismissal as at February or March of 1998.  If an employee is to claim that so serious were the breaches of an employer’s contract that he was, in effect, driven to resign, one does not expect a long delay between the events alleged as breaches and the resignation.  At any rate, where there is a long gap it has to be carefully explained.  We do not see that there is anything material in the events of 20 August 1996 that still could have persisted as an active reason to cause Mr Cockle to feel that he had to resign in February 1998.

	Coming on to the four events mentioned in the “grounds of appeal” notice document that I have referred to, the first of them relates to  7 February 1997.  There was a letter written which said:

“and that you may be facing disciplinary proceedings in your capacity as an employee of the Community Leisure Department.”

	That was written to Mr Cockle, as it would seem, not in relation to his employment at the Leisure Centre but as a teacher, and so to that extent it may perhaps be irrelevant to our considerations.  It cannot, in any case, have been wrong to warn Mr Cockle of what might happen.  Indeed, if he had not been warned about what might happen he might have had a complaint that he had never been warned.  We do not see any material breach in relation to 7 February 1997. 

The same is true of the second complaint, 25 February 1997, where a complaint is made of a letter that said:

“It is a matter of fact that such disciplinary proceedings are being contemplated, and it is relevant information in the context of the present allegations.”

	Again, it was a matter of fact that the disciplinary proceedings were being contemplated and it can hardly have been unfair to warn Mr Cockle that that was the case.  

	Then, perhaps more significantly (not only because the facts are more significant but because they were especially drawn to our attention this morning) there is reference to the events of 24 or 25 March.  As to those events there was before the Tribunal a sheet of paper signed by Mr Richard Card, Regional Secretary of the National Union of Teachers, in relation to a meeting with Social Services Officers of the Social Services Department of the Council on 25 March 1997.  The last paragraph of Mr Card’s note (which apparently was laid before the Tribunal as evidence although Mr Card was not present and could not, therefore, be cross-examined) read:

“At that point the officers supported each other in saying that irrespective of the decision of the Court they would not change their view that he should not be allowed to teach again, as he posed a risk to children and that this was the advice they would give, not only in regard to any applications for teaching posts, but also to organizations involving responsibility to children.”

	The first part of that plainly relates to Mr Cockle’s employment as a teacher, but it looks as if the advice, if it was called or, would go beyond teaching jobs and into other jobs.  It is difficult to know quite how much weight properly to attach to a signed statement by someone who does not attend to give it in evidence and therefore cannot be cross-examined.  In any event, another difficulty that presents itself is that Mr Card apparently simply describes the views of some officers of the Social Services Department.  There seems to have been no evidence that the advice that they threatened to give was in fact given to anyone and certainly no evidence that it was given to Mr Smith or that he understood that that was the position or  that he would have been infected by the degree of prejudice or bias which might be said to be inherent in the passage we have read out.  Moreover, again one has to remember its date - March 1997 - and we looking to the resignation letter of 2 February 1998.  Quite what witnesses are to be believed and what weight is to be given to particular points of fact is very much within the province of the Industrial Tribunal and we do not see that the mere fact that Mr Card’s witness statement (if that was what it was called) read as it did leads to any error of law in the overall treatment of the matter by the Tribunal.  

	The fourth of the various events asserted as material in the grounds for appeal against the decision of the Employment Tribunal (attachment Form 1) relates to October 1997.  It was then that Mr Cockle obtained minutes of the various meetings held by the Multi-Agency Strategy Group to which we have referred.  Those minutes, of course, were available at the Tribunal and were referred to in the decision which we have read from.  Mr Cockle claims that those minutes represented, as far as he was concerned, the final straw.  If that was the case then he would have had to have explained how it was that, having seen them in October 1997, he did not give his notice until February 1998 to expire in March 1998.  If he is relying upon those events as being a total destruction of the trust and confidence that should exist between employer and employee then he would have needed to explain that gap in time and it seems that he did not.

	We do not see that there has been an error of law in the manner in which the Employment Tribunal dealt with the matters put in front of them.  It is, of course, more material, when judging whether there was a constructive dismissal in February of 1998, to look to the more recent events rather than to the distant ones.  The more recent events were thoroughly in the mind of the Tribunal as they make specific reference to the letter of 7 February, to the 25 February and to the meeting of 25 March.  Miss Burnham - and we are grateful to her for the assistance she has given to us - spoke about an element of prejudice, pre-judgment or bias being quite manifest from the letter or witness statement from Mr Card from which we have read.  The answer to that, as we have mentioned, is, even assuming Mr Card got it right, that that was merely a view taken by the Social Services Department (or at any rate some officers in this Department) of advice that they said they would give but there was no evidence that the advice was given, still less that it was relied on by Mr Smith or would have been relied on by Mr Smith.

	It will be remembered, in point of fact, that the Tribunal concluded that Mr Smith’s disciplinary investigation was regular.  Whatever earlier faults there might have seemed to have been had overtaken by events in the sense that his investigation was not found to be at fault.  It is thus quite impossible to take up another point that Miss Burnham made namely, in relation to Mr Smith’s investigation, that it was in error.  The Tribunal specifically held that his investigations were not a sham and that there was nothing in his conduct towards the Applicant to suggest that it was.  That is essentially a conclusion of fact, not of law.  As we have already mentioned, perhaps more than once, it is peculiarly the province of the Employment Tribunal to determine questions of fact.  We cannot see that perversity can be argued.

	Mr Cockle Senior has also addressed us on behalf of his son.  He is obviously a concerned parent and we have welcomed his assistance on that ground.  Again, the drift of the complaint is that there was such earlier irregularity and bias on behalf of officers of the Council that, in effect, Mr Smith was bound to be infected and that the investigation that he was working on was bound to be unfair.  Whether it would have been is, of course, a matter of fact and we have to leave that to the determination of the Tribunal.  They, as we have already mentioned, found no fault with it. They found that there was nothing to suggest that the investigation was a sham.

	We have done our best to pay attention to the papers put in front of us and to the arguments which have been addressed to us but we find there to be no error of law that has any sufficient chance of success to enable us to represent this as a proper case to go forward to a full hearing.  Accordingly, even at this stage, we must dismiss the appeal.