Appeal No.	 EAT/264/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 December 2000

Before
THE HONOURABLE MR JUSTICE BELL
MRS T A MARSLAND
MR B M WARMAN

MR MARK JACKSON	APPELLANT

WIGAN METROPOLITAN BOROUGH COUNCIL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR P DOUGHTY
(of Counsel)
Appearing under the Employment Law Appeal Advice Scheme	

	MR JUSTICE BELL:	This is Mr Jackson’s appeal against the decision of the Employment Tribunal held at Liverpool on 5th January 2000. We note that at page 7 of our bundle, where the decision with reasons in extended form starts, it is stated that the tribunal took place on 5th, 6th and 7th January 2000. In fact the hearing was completed in one day (we are told by Mr Jackson), although it had been set down for three days in case so much time was required. This is the preliminary hearing of the appeal by Mr Jackson against the decision made the tribunal which rejected his claim for unfair dismissal. 

1.	Mr Jackson had himself prepared a Notice of Appeal and put in a helpful skeleton argument with chronology attached, but he has had the additional and considerable advantage this morning of the assistance of Mr Doughty, to whom we are very grateful, who appears under the auspices of ELAAS.

2.	In the light of the course we propose to take there is no need to go into the background in any great detail. The position essentially is that the respondent Local Authority employed Mr Jackson as a social worker from 1993. A service user made complaint about him in June 1998. He was suspended on 1st July 1998. There was an investigation and meetings with Mr Jackson and he was dismissed for alleged gross misconduct at a meeting on 13th November 1998. His appeal against that decision was unsuccessful.

3.	The Authority made a number of allegations against Mr Jackson. Mr Walker, the Director of Social Services, who made the decision to dismiss Mr Jackson, regarded three of those as particularly serious. The tribunal did not consider the first of those to be particularly serious, but that left the second which was that Mr Jackson had forged a signature of his manager on a car mileage form and the third which was that he had forged the name of a service user on a contract for the provision of a car. In its decision the tribunal recorded that Mr Jackson effectively acknowledged those actions. 

4.	On the face of the extended reasons for the decision, save in one respect to which we will come towards the end of this judgment, it is difficult to see that there might be a point of law of challenge to the conclusion to which the tribunal came. But we have had a greater explanation of what happened at the tribunal and Mr Jackson’s complaint about it this morning.

5.	It appears that the Authority’s legal representatives had served three witness statements on Mr Jackson. One was the statement of Mr Walker who, as we have said made the decision to dismiss. Another was a statement from Mrs Barbara Hitchen, who had been the investigating officer, so far as disciplinary action was concerned, and the third was a statement of Mr Brian Baldwin, who heard Mr Jackson’s unsuccessful internal appeal against his dismissal.

6.	Mr Walker was called, gave evidence and was cross-examined by Mr Jackson. The Authority’s solicitor did not call Mrs Hitchen and Mr Baldwin, although it is Mr Jackson’s case that he was told by the solicitor before the hearing began that they would be called. 

7.	During the hearing, Mr Jackson says, he asked the Chairman of the tribunal for the facility to question Mrs Hitchen and Mr Baldwin. Of course it was up to the Authority and its legal representative just what evidence it would call, but it would not be at all unusual if the investigating officer and the person who carried out the appeal in circumstances like this, were called on behalf of an employer Authority. In any event, since the witnesses were presumably there already available, there should be no reason why Mr Jackson if he wished could not call them. In any event, it is Mr Jackson’s case that he raised the matter of questioning Mrs Hitchen and Mr Baldwin with the Chairman, who said something to the effect that he was only interested in the thought processes of the person who made the decision. We have a letter from the Chairman making some comment on that suggestion and of course he was particularly interested in the thought processes of Mr Walker, in the sense of his approach to the material which was before him and what he made of it in coming to the decision to dismiss Mr Jackson. 

8.	However, having heard what Mr Doughty has had to say, we do consider that there is a point which is arguable, we say no more, and merits argument on a full inter partes hearing before the Appeal Tribunal on the basis that it can be alleged that in being deterred to the extent of being deprived of the opportunity to call and therefore question Mrs Hitchen and Mr Baldwin, Mr Jackson was deprived of the trial which he wanted. 

9.	Mr Doughty has suggested that the ground of appeal in that respect can be phrased in words as follows, or somewhat as follows: “that the tribunal made an error in law in failing to permit Mr Jackson to put forward evidence by Mrs Hitchen and Mr Baldwin in respect of alleged failings in the investigatory process and in the appeal process”. To that Mr Doughty would, if given time, add particulars of the areas where he and Mr Jackson suggests Mr Jackson was prevented was putting his case over.

10.	In addition there is a further matter which has caused us some concern. Mr Walker, having decided that Mr Jackson was guilty of gross misconduct in the two respects to which we have referred earlier, was however concerned that Mr Jackson may have done what he did do because he was suffering particularly severe stress at the time. He obtained a report of a Occupational Health Adviser. That officer, in Mr Walker’s view, did not support stress at the relevant time. Mr Jackson obtained a report from his own doctor which appears to have reported that he believed Mr Jackson when he said that he was suffering the same stress which the doctor found him to be suffering, at the relevant time sometime before the doctor actually saw him. Having set out that history, at paragraph 21 of its decision, the tribunal said:

“A diagnosis that relies solely on the word of the patient, where the patient clearly had an axe to grind, seems to us to be utterly worthless. Mr Walker acted perfectly reasonably in our view, in concluding that a second report would be of no assistance.”

	It seems to us that it is arguable, and again we say no more, that in saying that the tribunal was starting from the premise that a diagnosis which relied solely on history given by the patient was utterly worthless, rather than considering the terms of the report and all relevant circumstances before deciding whether to come to the conclusion that it was utterly worthless in fact. 

11.	The sum of all this is that we propose to allow this matter to go ahead to a full hearing on the ground which Mr Doughty has outlined and on the second ground, which we have described in respect of the tribunal’s approach to the report from Mr Jackson’s doctor.

12.	We propose to give leave to Mr Jackson to amend his Notice of Appeal to set out those two grounds with particulars of the first ground, provided that that is done and the amended Notice of Appeal filed with this tribunal within seven days. We are grateful to Mr Doughty for his indication that he will help with the drafting.

13.	We give leave to either side to file evidence in relation to the matters raised in this judgment. We would be grateful if the Chairman could send any further comments on the matters raised in this judgment and the Notice of Appeal to the Employment Appeal Tribunal together with any of his manuscript notes which record any matters relating to any application or discussion in respect of evidence from Mrs Hitchen or Mr Baldwin.

14.	The case is to be listed for half a day, Category B.