Appeal No. EAT/368/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 November 2000

Before
HIS HONOUR JUDGE D M LEVY QC
MR B V FITZGERALD MBE
MR R SANDERSON OBE

MRS J M E ELLIOTT	APPELLANT

POCKLINGTON MONTESSORI SCHOOL LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	MS LOUISE McCULLOUGH
(of Counsel)
Instructed by:
Messrs Carrick Carr & Wright
Solicitors
Norwich House
Savile Street
Kingston Upon Hull HU1 3ES	

JUDGE D M LEVY QC

1	By an application sent to an Industrial Tribunal dated 15 April 1999, Mrs J M E Elliott (“the Appellant”) alleged that the Pocklington Montessori School Ltd (“the Respondent”) had unfairly dismissed her.  

2	There was a hearing of her allegation on 17 November 1999 at Hull and the decision of the Tribunal was promulgated on 22 February of this year.  The unanimous decision of the Tribunal was that the Appellant had been unfairly dismissed, that the dismissal was unfair for procedural reasons and the Tribunal found that if a proper procedure had been carried out, the result would have been the same.  The Appellant therefore, received no compensatory award for unfair dismissal.  The Tribunal held that she had contributed by 100% to her dismissal and therefore she would receive no basic award for the unfair dismissal.  

3	From that decision there was an appeal to this Tribunal dated 14 March 2000.  When the matter came before an Employment Tribunal for the first preliminary hearing, a Tribunal headed by Judge Wilkie heard submissions from Mr Grassam, the solicitor appearing on behalf of the Appellant below, and made Orders that the appeal was to be adjourned to be re-listed for a further preliminary hearing ex-parte, after evidence had been lodged.  That Order was dated 10 July 2000.  

4	This morning we have had the benefit of submissions, not by Mr Grassam, but by Ms McCullough of Counsel who had not given us the benefit of a Skeleton Argument in advance as is required by the rules.  However we understood from her submissions that the point which was taken below, before, was still at large.  That point was this: in the original Notices of Dismissal, culpability as well as conduct had been alleged against the Appellant.  The culpability aspects of the claim for dismissal were abandoned well before the hearing.  Mr Grassam was accordingly not allowed to cross-examine on the points arising from capability.  That is the centre of the appeal.  

5	The unfair dismissal issue, which was unfair for procedural reasons, but it was felt to be her fault, arose from the finding of discs, which could only have originated from the Appellant’s computer, on a public tip at Holme on Spalding Moor.  The Tribunal having looked at all the evidence, said this at paragraph 4 of the Extended Reasons:

“The unanimous decision of the Tribunal was that on the balance of probabilities where the evidence of the Applicant and the Applicant’s witnesses conflicted with the evidence of the Respondent’s witnesses, the Tribunal preferred the evidence of the Respondent’s witnesses.  In particular, the unanimous decision of the Tribunal was that there had been no conspiracy by employees of the Respondent to fabricate evidence to justify the dismissal of the Applicant”

6	The burden of the submission made on behalf of the Appellant was that if her representative below had been allowed to cross-examine on the issue of culpability, that finding could not and would not have been made.  We have carefully looked at the affidavit sworn by Mr Grassam and the Chairman’s comments and the Members’ comments in reply.  We have all come to the conclusion that the failure to allow matters, which the Chairman held to be irrelevant, should be introduced, would not have sufficiently damaged the case of the Respondent for this matter to go to a full hearing.  

7	The issue on which she was dismissed was conduct.  There clearly was evidence before the Tribunal as to her conduct, on which cross examination was allowed, and from that evidence, in our judgment, the Tribunal was entitled to come to the decision it did, as recorded in paragraph 4 of the extended reasons.  

8	It follows therefore that we feel that there are no grounds on which this can properly go for a hearing to a full Tribunal; Mrs Elliott has had her day in Court, there was a proper and fair examination of her complaint there, and in those circumstances, she is not entitled to have the matter re-litigated.  We will therefore dismiss the appeal at this stage.