Appeal No. EAT/0264/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 July 2001

Before
HIS HONOUR JUDGE PETER CLARK
MR P A L PARKER CBE
MR A D TUFFIN CBE

MR MARK JACKSON	APPELLANT

WIGAN METROPOLITAN BOROUGH COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	
For the Respondent	MISS WEDDERSPOON
(Of Counsel)
And
MR JAMES
(Solicitor)
Messrs Forbers
Solicitors
Rutherford House
4 Wellington Street (St Johns)
Blackburn BB1 8DD	

JUDGE PETER CLARK

1.	This is an appeal by Mr Mark Jackson, the Applicant before an Employment Tribunal sitting at Liverpool (chaired by Mr D Reed) on 5 January 2000, against that Tribunal’s decision, promulgated with extended reasons on 26 January 2000, dismissing his complaint of unfair dismissal brought against his former employer, the Respondent, Wigan Metropolitan Borough Council.

2.	The Appellant was employed by the Respondent as a Social Worker from July 1993 until his dismissal effective on 13 November 1998.

3.	The background to the dismissal was this.  Following the Appellant’s suspension on 1 July 1998, an investigation was carried out by Barbara Hitchins and Helen Connolly, Managers in the Respondent’s Social Services Department; the Appellant was seen on 15 July and 7 August.  He was charged with 7 disciplinary offences and called to a disciplinary hearing before Bernard Walker, Director of Social Services, which took place on 8 September and 8 October 1998.  On the second occasion Mr Walker concluded that the Appellant was guilty of gross misconduct which called for his dismissal.

4.	However, the Appellant raised the contention that at the relevant times he had been suffering from work-related stress, which had contributed to his actions.  In these circumstances Mr Walker postponed his decision in the case until he had medical evidence on the Appellant’s condition.  A report from Dr Kumar, Consultant Occupational Physician, dated 27 October, recorded the Applicant’s account that over the last few years he had been under a degree of stress which he felt had arisen from his work.  He had not sought medical advice about this state of affairs, nor had he any history of psychological problems.
5.	Dr Kumar noted that the Appellant had experienced anxiety since his suspension, understandably, but was unable to confirm, in his professional opinion, whether the Appellant suffered from the effects of stress prior to his suspension.

6.	Mr Walker considered that report and concluded that it did not support the Appellant’s claim that he was suffering from stress at the relevant time, given that he had not taken time off work for that reason, nor sought medical advice about such a condition.

7.	In these circumstances he concluded that there was no mitigation and accordingly dismissed the Appellant on 13 November 1998 without a further hearing.

8.	Following dismissal the Appellant appealed internally to a panel of councillors.  Before that appeal was heard the Appellant’s then solicitors, Russell Jones & Walker, obtained a medical report on the Appellant from a General Practitioner, Dr Gianelli, dated 6 January 1999.  In that report Dr Gianelli records that the Appellant first consulted him on 25 November 1998, following his recent dismissal.

9.	He told the doctor that he had been experiencing symptoms of stress for 1-2 years, leading to poor concentration and consequently mistakes occurring within his work, which led to disciplinary procedure and ultimately his dismissal.

10.	Based on the Appellant’s account that doctor expressed the view that the Appellant was suffering from a depressive illness with anxiety features, which clearly had been present for at least several months, if not longer.

11.	That report was put before the appeal panel, chaired by Councillor Baldwin, which sat on 18 January 1999.  The appeal took the form of a re-hearing.  It was dismissed.

12.	The Employment Tribunal concluded that, in respect of two of the charges, effectively admitted by the Appellant, the Respondent’s decision to dismiss for gross misconduct fell within the range of reasonable responses.  Those offences were:

(a)	Forging the signature of his Manager on his car expenses claim for the period 16 February – 15 March 1998 and;
(b)	Forging the name of a service user, AK on a contract for that person’s care.

13.	The fact that the Appellant had signed those two documents in the names of the Manager and AK respectively was not in dispute.

14.	The Employment Tribunal further found that Mr Walker was entitled to conclude that Dr Kumar’s report did not support the Appellant’s case that his conduct was related to earlier stress, that it was not necessary to show that report to the Appellant and further that it was reasonable not to obtain a second medical opinion.  Indeed, the Tribunal expressed the view that the report from Dr Gianelli, putting forward a diagnosis which relied solely on the word of the patient, who had an axe to grind, seemed to them to be utterly worthless (reasons, paragraph 21).

15.	Finally, the Tribunal rejected the Appellant’s complaint that lack of adequate supervision contributed to his conduct; at least so far as the two forged signatures were concerned.  The Tribunal held that the Respondent was reasonably entitled to take the view that anyone would know that such action was both unacceptable and the most serious misconduct.

16.	In these circumstances the Tribunal summed up their view of the case in this way at paragraph 26:

“It follows that we conclude that Mr Walker acted reasonably in concluding that Mr Jackson had committed gross misconduct.  The mitigation that existed was not such as to render his decision to dismiss unreasonable.  It follows that we consider that the Council acted reasonably in dismissing Mr Jackson and his claim for unfair dismissal therefore fails and is dismissed.”

17.	The appeal came before a division of the Employment Appeal Tribunal presided over by Bell J for preliminary hearing on 1 December 2000.  The Appellant was represented by Counsel under the ELAAS pro bono scheme.  In a judgment delivered on that day, Bell J identified two points which ought to go forward to this full hearing for argument with both parties present.  They were:

(1)	The Appellant’s complaint that he was deterred by the Chairman from calling and questioning Mrs Hitchins and Mr Baldwin, both of whom were present at the Employment Tribunal but in the event not called by the Respondent; only Mr Walker gave evidence on the Respondent’s behalf and;

(2)	By reference to the Employment Tribunal’s comment at paragraph 21 of the reasons, whether 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 concluding that it was utterly worthless in fact.

18.	Those two points have been set out in the amended grounds of appeal dated 1 December 2000 and further in an 18-point skeleton argument submitted by Mr Jackson well in advance of this hearing.  Before considering those two points, as developed before us this morning, we should first remind ourselves as to the Employment Tribunal’s task in this case.

19.	The Appellant brought a complaint of unfair dismissal.  The dismissal was admitted.  The Respondent established a potentially fair reason for dismissal, conduct.  Thus, the question for the Employment Tribunal, under Section 98(4) of the Employment Rights Act 1996, was whether dismissal for that reason was fair in all the circumstances.

20.	In answering that question, in this conduct case, the Court of Appeal has affirmed, in Foley v Post Office and Madden v HSBC Bank [2000] IRLR 827, that the well-established Burchell test is to be applied.  Did the employer have an honest belief, based on reasonable grounds, following a reasonable investigation, that the employee was guilty of the misconduct alleged?  If so, did dismissal for that misconduct fall within the range of reasonable responses open to the employer?

21.	As to the first question, there was no doubt that the Appellant was guilty of the two particular acts of misconduct alleged and earlier referred to; he admitted writing the signatures.  The Respondent’s belief was honest; the grounds reasonable and no further investigation, so far as that matter was concerned, was necessary.

22.	The second question is whether dismissal fell within the range of reasonable responses or whether it is an excessive penalty in all the circumstances.  As to this, the Appellant raised, by way of mitigation, two matters; first, his work-related stress at the relevant time; secondly a lack of adequate supervision of his work.  He accepted, so the Tribunal record at paragraph 15 of their reasons, that but for that mitigation his actions amounted to gross misconduct.

23.	This brings us to the points in this appeal.

Calling Witnesses

24.	The question for us on appeal is whether the Appellant’s lack of opportunity to question Mrs Hitchins and Mr Baldwin before the Tribunal deprived the Appellant of a fair trial.  Plainly, had the Respondent been dissuaded by the Chairman from calling those witnesses and then had lost on the basis that there was no evidence to contradict evidence given by the Appellant, that would give rise to a complaint by the Respondent of unfairness.

25.	However, we are quite unable to see how the Chairman’s indication, resulting in witnesses not being called by the Respondent, worked any unfairness so far as the Appellant was concerned.

26.	If those witnesses had been called by the Respondent and had agreed with what he put in cross-examination, then his own case would not be advanced; if, as in some respects was likely, they disagreed, then their evidence might potentially damage his case.

27.	We do not accept that he was prevented by the Chairman from calling those witnesses himself, but had he done so he would not have been permitted to cross-examine them.  He would have been bound by their answers which, in so far as they disagreed with him, would have positively harmed his case.

28.	In these circumstances we can see no grounds here for interfering with the Employment Tribunal’s decision on this procedural point.

Medical Evidence

29.	We think that the Tribunal’s comment about Dr Gianelli’s report at paragraph 21 of the reasons was robust, but it must be viewed in context.  The particular, relevant question, which was being addressed by the Tribunal, was whether Mr Walker failed to carry out a reasonable investigation in this case because he did not commission a second opinion, having received an inconclusive report from Dr Kumar; nor show a copy of Dr Kumar’s report to the Appellant before deciding to dismiss him.

30.	They rejected that contention.  In explaining that finding they observed, tangentially, that the reasonableness of Mr Walker’s approach was borne out by the report subsequently obtained by or on behalf of the Appellant from his General Practitioner, whom he first consulted after his dismissal. 

31.	In our judgment that observation, however outspoken, does not undermine their finding as to the reasonableness of the investigation carried out by Mr Walker.  It was a permissible finding.

Conclusion

32.	It follows that we are not persuaded that either point on which this appeal comes before us discloses, on analysis following argument from both sides, any error of law in the Employment Tribunal’s approach.  In reaching that conclusion we have taken full account of the detailed submissions made by Mr Jackson, many of which go to the underlying factual issues rather more than to the questions of law, on which, given the limits of our jurisdiction, we are required to focus.

33.	Accordingly, this appeal must be dismissed.