Appeal No. UKEATPA/1189/10/DM
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At
the Tribunal
On
5 April 2011
Before
HIS
HONOUR JUDGE McMULLEN QC
(SITTING ALONE)
MISS
O BAIYELO APPELLANT
LONDON BOROUGH OF SOUTHWARK & OTHERS RESPONDENTS
Transcript of Proceedings
JUDGMENT
RULE 3(10) APPLICATION - APPELLANT ONLY
SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
PRACTICE AND PROCEDURE – New evidence on appeal
The Claimant was an employee of the council, experienced in
accounts and housing matters. The Employment Tribunal decided that her failure
when presenting as homeless, to disclose that she owned a house, justified her
dismissal. The contention that the council failed adequately to investigate
the situation was rejected, as were allegations of bias against a Tribunal member.
Application to adduce new evidence refused: Francis v Castle Rock
Properties Ltd applied.
HIS HONOUR JUDGE McMULLEN QC
1.
This case is about unfair dismissal for gross misconduct. I read the
papers. I have also been referred to new papers throughout the course of the
hearing. I will refer to the parties as the Claimant and the Respondent.
Introduction
2.
It is an appeal by the Claimant in those proceedings against the
Judgment of an Employment Tribunal chaired by Employment Judge G D Etherington
sitting at London (Central). The Judgment was given on
3 December 2009 after some 20 days of hearing and including at
least 6 days of deliberation. I have taken time during the course of
today’s hearing to read the 63 pages of reasons since these were not
produced by the Claimant in her bundle before.
3.
The Claimant has been represented today by Ms Helen Wolstenholme
who gives her services under the ELAA Scheme, and I am most grateful to her for
the submissions she has made. The Claimant herself has addressed me at length
on matters which I hoped, by drawing her attention to my legal powers confined to
questions of law, she would recognise.
4.
The Judgment of the Tribunal was to dismiss all of the Claimant’s claims
made under different employment protection and discrimination provisions. The
Claimant was dissatisfied and sought to appeal but she was out of time. She
applied for a review of the Judgment citing a number of matters including new
evidence. The Employment Judge considering the matter under his powers of
review rejected the application comprehensively but did allow one matter to go
forward to a review and it is against the outcome of that review that the
Claimant now appeals.
5.
The decision of the Judge on 20 May 2010 is described as Judgment
on an application for review and it is said to be preliminary consideration
under rule 35(3). The Judge set out the reasons why he considered it had
no prospect of success, save for one matter. Otherwise, the Judge considered
that the Claimant was attempting to reopen and reargue her case. She seeks to
explain her failure to mention what will become known as Scrooby Street,
and to rehearse that material.
6.
However, one matter was allowed to go to a hearing. On
1 July 2010, a decision was made, sent to parties on
6 July 2010, at which it is said the application for review is
rejected. With respect, as I have pointed out on countless occasions (see Secretary of State v Rance
[2007] IRLR 665), what this three‑person Tribunal decided was, at a
review, not to vary the decision which it would make, as it says in the
next sentence. Formally, the application for a review has been granted by the
Judge but the Judgment has been affirmed. Nevertheless, that technicality does
not affect the substance.
7.
Additional reasons are produced in response to an order made by
Silber J in a letter on behalf of the Tribunal dated
5 November 2010. This material then came before HHJ Peter Clark who
said as follows:
“The reasons now produced by the Employment Judge in response to
the Order of Silber J dated 11 October 2010 for the Employment
Tribunal’s decision to dismiss the Appellant’s review application (Judgment
dated 6 July 2010) are compelling.
The ‘new evidence’ (a) could have been adduced at the original
hearing (b) would not have had a significant effect on the outcome of the
original hearing (it supported the successful Respondent’s case) and, (c) was
not credible as supporting the Appellant’s contention.”
8.
The Claimant seeks to move the matter forward. In Haritaki v
South East England Development Agency [2008] IRLR 945 at
paragraphs 1 to 13 I set out my approach to rule 3. It should be
read with this Judgment. That approach has been approved by the Court of Appeal
in, for example, Hooper v Sherborne School [2010] EWCA Civ 1266 and
Evans v University of Oxford [2010] EWCA Civ 1240.
9.
On the sift of this Notice of Appeal, in accordance with Practice Direction 2008,
paragraph 9, Judge Clark exercised his power under rule 3(7), as
above, and the Claimant has now applied in open court pursuant to rule 3(10).
The question for me is whether there is any legal error.
The legislation
10.
The relevant provisions of the legislation are not in dispute. Employment
Rights Act 1996 sections 98(1) and 98(2) provide for dismissal for
conduct and section 98(4) provides for fairness in the following terms:
“(4)…. the determination of the question whether the dismissal
is fair or unfair (having regard to the reason shown by the employer) ‑
(a) depends on whether in the
circumstances (including the size and administrative resources of the
employer’s undertaking) the employer acted reasonably or unreasonably in
treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance
with equity and the substantial merits of the case.”
The facts
11.
I will state the facts briefly in relation to the sole issue which is
now live on appeal. It consists of a challenge to the dismissal of the
Claimant for failing to reveal in part of a Right‑To‑Buy
application that she owned Scrooby Street. She had not disclosed this when she
had presented as homeless to the council, a housing authority, in 1998. On the
basis of the material which the employer had before it, it concluded it would
not have given her accommodation in 1998 and would not have given her the right
to buy her then property at Gatefield Court had she disclosed that she was
owner of Scrooby Street or living there. On that basis she was summarily
dismissed.
12.
The Tribunal made condign findings against the Claimant. She was experienced
in accounting. She is a person on her way to qualifying as an accountant. She
knows about council procedures, council forms and council finance. She was
found to be the least credible of all the witnesses who appeared before this
Employment Tribunal, of whom there were at least ten. She was manipulative of
the procedures; she did not approach the giving of evidence in an appropriate
way; she did not prepare the case correctly; her whole approach was simply to
seek ulterior motives in everything that the Respondent did. She exhibited a
cavalier attitude throughout her procedural steps in this case and she shifted
her ground when giving evidence.
13.
On the basis of that, the Tribunal made certain preliminary findings as
necessary, for example, to the discrimination claims that she was advancing.
There was no material upon which the burden of proof would shift. As far as is
relevant to unfair dismissal, the Tribunal held that the Claimant had failed to
disclose the material which was available in 1998. The Claimant relied on a
form which she produced but the Tribunal decided that that was not in the
council’s files at the time and, therefore, it had not been disclosed.
14.
The Tribunal also took account of correspondence in 2001 with Mr Peile,
where it seems to be accepted that the Claimant did acknowledge that she owned Scrooby Street, but the issue was whether in 2005, when the Right‑To‑Buy
application was en train, she should have disclosed Scrooby Street.
The Tribunal found that the Respondent had ample evidence upon which to base
its decision that she was living at Scrooby Street and owned it and so she had
not been explicit.
15.
The Tribunal found that had her ownership of Scrooby Street been
disclosed, she would have been disqualified as homeless and she was engaged in
property speculation. None of the materials exigible in 2005 and 2006
surrounding the Right‑To‑Buy disclosed anything to do with Scrooby Street.
16.
The Tribunal held that the Respondent conducted a reasonable
investigation into the matters, that there was a genuine belief that the
Claimant had not disclosed material which she ought to have disclosed and that
she was guilty of gross misconduct. It did so after a reasonable investigation
and standing back, on the whole, dismissal was in the band of reasonable
responses.
17.
The Claimant seeks to raise new evidence at the EAT and at the
Employment Tribunal. I will deal first with the former. This is the basis of
the appeal. The Claimant contends that on the material which the council officer,
Ms Cobb, has produced, the original decision by the Tribunal cannot
stand. The letter from the Judge sets out the competing situations:
“When deposing to these facts Mr J Jacob - being
closely cross‑examined by counsel for the Claimant - volunteered in an
aside that the form produced by the Claimant purporting to be a copy of the
document - an application for homeless person’s accommodation allegedly
submitted by her at the time and which she asserted bore the address of the
property she owned - was the format in use at the time. The Tribunal rejected
her claim.
Approximately 12 months after that evidence was given the
Claimant wrote to an officer of the council asking for a copy of “my HR1 or a
sample of the HR1 used in 1998”. This was sent to her by the official writing
in these terms “I hope this is of some assistance”. No such enquiry was made
during the hearing, although it quite clearly could have been. Beyond
producing the letter from the official quoted above the Claimant advanced nothing
more.
Even had Mr Jacob been mistaken as to the format of the
application form the fact remained that no such application was found on the
Claimant’s file and she was seen to frequent the property in question when the
Respondents investigated. Thus even were the material she put forward correct
the likely impact on the Tribunal’s decision, having regard to all the other
relevant material we received, would have been slight if it carried weight at
all.”
18.
On that basis, the material which the Claimant seeks to adduce will
carry the matter no further forward. It is acknowledged that the reference to
Mr Jacob is to Mr Joseph, but nothing turns upon that. The real
issue is whether the Tribunal had sufficient material for it to conclude that there
was not on the council file in 1998 a form which disclosed the existence of Scrooby Street.
19.
The form produced by Ms Cobb may well not be the form which was in
place in 1998. The Tribunal makes clear that whether or not Mr Joseph is
mistaken, the council’s decision, having regard to other relevant material, was
reasonable. In addition, the Judge says that there is a highly damaging
circumstance; the document disclosed is different. I will leave that aside
because at this stage it is not particularly relevant. The point is that the
material was not new - it could have been adduced during the course of the
hearing - and the Tribunal, on review, was entitled to take the view that it
would not vary its decision in the light of this so called new material.
20.
In my judgment the matter was one of discretion and case management and
the interests of justice. The Tribunal was entitled to form the view it did
about the Cobb evidence and, as it said, there was ample other material upon
which the Tribunal had already based its decision with no necessity for the
Cobb material.
21.
It even acknowledged that Mr Joseph might be wrong about this
material but, insofar as it stands, the issue as to the correct format for a
homelessness application form in 1998 is resolved by reference to the other
material around the date.
22.
The correct focus in this case was the 2005 Right‑To‑Buy
application which, it is common ground, did not include any reference to
Scrooby Street, and on the finding by the Tribunal that the Claimant would
not have been entitled had she owned Scrooby Street or been living there,
the decision would be the same.
The new submissions of the Claimant
23.
Two other matters arise today. The first is an allegation of actual
bias against one of the lay members of the Employment Tribunal. It is said in
an address by the Claimant to me herself, that this consists of actual bias.
It is said that a Tribunal member, said in the review hearing that a person who
owns a home and who applies for homelessness benefit, or applies to be housed,
or Right‑To‑Buy of another home, is doing wrong.
24.
In my judgment, nothing improper arises out of that remark, even if it
were said, as to which at the moment I am not prepared to cause an
investigation under the powers under the Practice Direction. This three‑person
Tribunal had already decided in the light of what the Respondent told it about
its approach to people who own houses (knowing that in certain circumstances
you can own a home and still get homelessness benefit, for example, if you are
a victim of domestic violence), that the remark was entirely in keeping. In
any event, the issue is not one so as to cause any impression of unfairness,
either of actual bias, which of course does not exist in this case in its
proper sense, nor, as I think the Claimant intends it to mean, apparent bias, applying,
as I do, the test in Porter v Magill [2001] UKHL 67 of
an impartial observer to these proceedings.
25.
The second matter is an application to adduce new evidence before the
EAT - rarely will this be done: see Adegbuji v Meteor Parking Ltd
UKEATPA/1570/09/LA and applied in Francis v Castle Rock Properties Ltd
UKEAT/0260/10/SM. Two pieces of new evidence are said to be relevant. The
first is an exchange of email in which the Claimant asserts that Ms Cobb had
said that her original forms had been destroyed long ago.
26.
In my judgment this is not direct evidence of Caroline Cobb. An
opportunity was given to adduce evidence from Caroline Cobb before the
Employment Tribunal. I do not consider that it meets any of the tests in the
EAT for adduction of new material, because it could have been adduced at an
earlier stage had Caroline Cobb been called, or indeed had the matters
been put before the Employment Tribunal when it conducted its review.
27.
Insofar as it is suggested that the Tribunal ignored the evidence
relating to the 2001 exchange with Mr Peile, that is incorrect. The
Tribunal made an express finding about it.
28.
There is no basis upon which the EAT should intervene. I am conscious
of course of how limited my remit is following Fuller v The London Borough of Brent [2011] EWCA Civ 267. There is no error in
the decision by the Employment Tribunal on review not to change its original
judgment and there is no basis on appeal here for the introduction of the new
evidence the Claimant seeks.
