Appeal No. EAT/0884/00		EAT/0583/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 March 2002

Before
HIS HONOUR JUDGE PETER CLARK
MISS A GALLICO
MR G H WRIGHT MBE

MISS F PANAMA	APPELLANT

LONDON BOROUGH OF HACKNEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MS K MONAGHAN
(of Counsel)	
For the Respondent	MR M SUTTON
(of Counsel)
Instructed By:
Hackney Legal Services
183 - 187 Stoke Newington 
High Street
London
N16 0LH	

JUDGE PETER CLARK:
1.	We have before us for full hearing 2 appeals brought by Miss Panama in proceedings against her former employer, the London Borough of Hackney.  They are;
(1)	EAT 884/00, an appeal against the liability decision of an Employment Tribunal sitting at Stratford under the chairmanship of Mr J N Leonard, promulgated on 2 June 2000 and
(2)	EAT 583/01, an appeal against the remedies decision made by that same Tribunal and promulgated on 2 November 2000.

2.	Background
The Appellant, who is a black woman, commenced her employment with Hackney in November 1991.  She was promoted to the post of re-housing manager, a post which she job-shared with Miss Carol Parker at the relevant time.  She is the mother of 5 children, the youngest having been born on 13 May 1998 during a period of maternity leave which began in March 1998.  She did not return to work until 1 June 1999.  

3.	During her absence on maternity leave Hackney undertook a re-organisation which led to the deletion of the re-housing manager post.  The Appellant was informed of the deletion of her post in July 1998 by the Neighbourhood Services Director, Mr Armand.

4.	A new, higher grade post of voids and re-housing officer was created.  The Appellant and her colleagues thought they should be assimilated into that post, but the Tribunal accepted that it carried additional responsibilities and a higher salary commensurate with the grade (P04) compared with that of re-housing manager (grade S02).  She applied for the higher grade post but was not selected for interview.  The Tribunal found that the selection criteria for the new post were objectively applied without consideration of race, sex or the fact that the Appellant was then on maternity leave.  Instead she was invited to apply for the newly created post of neighbourhood allocator, graded SO2 as was her original re-housing manager job.  The Tribunal found that it had a broadly similar range of duties and responsibilities to her original post and was both suitable in relation to the Appellant and appropriate for her to do in the circumstances.

5.	Whilst on maternity leave the Appellant enlisted the assistance of her trade union
representative, Mr Page.  Mr Armand’s position was that the Appellant must be interviewed for the allocator post.  Mr Page disagreed.  He said that as a maternity returner she should be offered the post.  His argument, having taken it to senior management, prevailed.  As the Tribunal put it, the job was hers if she wanted it.  That was in about November 1998.  In the event, she did not want the allocated job.  Further, she claimed that she was not kept informed of the deal brokered by Mr Page.  The Tribunal did not believe her evidence on that point.

6.	On 15 June 1999 solicitors acting for the Appellant, Messrs Bindmans, wrote to Hackney.  By then the Appellant had been back at work for a fortnight, carrying out temporary duties as a re-housing advisor.  In that letter it was suggested that the Appellant had been subjected to discriminatory treatment on grounds of her race and sex.  It was contended that but for her pregnancy and absence on maternity leave she would have been appointed to the post of voids and re-housing manager.  Substantial compensation was demanded.  That letter, as the Tribunal found, amounted to a protected act for the purposes of the victimisation provisions of both the Sex Discrimination Act 1975 and the Race Relations Act 1976.  On 30 June Mathew Gold, a solicitor then employed in Hackney’s legal department, replied refuting the claims made and asserting that the neighbourhood allocator post represented a suitable alternative position for the Appellant.

7.	On 1 July 1999 the Appellant was suspended pending an investigation into her conduct.  The background was this.  In 1993 she had obtained a law degree.  In December 1994, with the permission of the Respondent, she obtained work with a firm of solicitors, Bhardwaj and Co. of South Molten Street, London W1.  She intended to complete a training contract with that firm.  There was however a condition attached to the Respondent’s permission; she should not place herself in a position of conflict with the interests of Hackney.  

8.	The event leading to her suspension was the receipt by Hackney of two letters from Bhardwaj and Co. dated 28 May 1999, written on behalf of their client, a Mrs D, who was a tenant of the Council.  The first letter, which bore their reference SS/FP/RA as did the second, sought to improve Mrs D’s re-housing categorisation with Hackney from Grade C to Grade A on the basis that her twin sons were severely brain damaged and suffered from significant and severe developmental delay and abnormality.  Their condition, it was said, was exacerbated by their inadequate housing. 

9.	The issues raised in that letter fell within the then area of responsibility of the Appellant and Miss Parker.  The latter dealt with the matter by telephoning the solicitors.  She asked to speak to the person dealing with the matter and was told that it was Felicia Panama, who was working at home that day.  That information was passed on by Miss Parker to her manager.  The information was further corroborated, the Tribunal found, by an attendance note prepared by Mr Gold and dated 23 June 1999 following a telephone call which he made to Bhardwaj and Co, which note records that FP = Felicia Panama and adds, “still works for Bhardwaj and Co.”

10.	On 27 August 1999, on the basis of the information then before them, Hackney decided that the offence potentially constituted misconduct only, not gross misconduct, and that in those circumstances the Appellant’s suspension should be lifted.  That decision was not communicated to the Appellant until 15 September 1999.  A disciplinary hearing was fixed for 30 September.  Meanwhile, she had been formally offered and rejected the neighbourhood allocator post.  In these circumstances she was dismissed, ostensibly on grounds of redundancy, by letter dated 24 September 1999.  The dismissal took immediate effect but with 7 weeks pay in lieu of notice.  Accordingly, the disciplinary hearing fixed for 30 September, did not take place.

11.	All this took place against the background of the Appellant’s first Originating Application presented to the Tribunal on 16 August 1999, which alleged sex discrimination, victimisation, deemed unfair dismissal, breach of equal opportunities legislation, breach of maternity rights and race discrimination.

12.	There was one further twist.  On 24 September, the day on which her employment was terminated on grounds of redundancy, a report was completed into the Bhardwaj letters and submitted by a senior investigator, Sylvia Caprice, to the now Neighbourhood Services Director, Brendan Wells.  It seems that Ms Caprice met with Mrs D at her home on 17 September 1999.  Paragraph 2.7 of the report reads as follows:

“Ms D stated that on the advice of her solicitor, Bhardwaj & Co. she changed the details on the health assessment form of her twin boys from common colds and breathing difficulties to severe brain damage.  There are no medical records confirming brain damage suffered by any of her children.  Ms D stated that her twins are not brain damaged, they attend normal school and their development is reported to be slow.”

13.	On 23 December 1999 the Appellant presented a second Originating Application to the Tribunal alleging (1) race discrimination (2) unfair dismissal (3) personal injury (4) psychiatric injury (5) sex discrimination (6) unlawful deduction (7) redundancy.

The Tribunal’s Decisions
14.	By their liability decision the Tribunal rejected the claims of direct sex and race discrimination and victimisation.  They found that she was not dismissed for a reason connected with her right to return to work after maternity leave, as she contended, nor by reason of redundancy as Hackney had principally contended, but rather for some other substantial reason, namely the reorganisation that had resulted in the Appellant’s original post of re-housing manager being deleted.  They went on to find the dismissal for that reason unfair for the procedural reasons set out at paragraph 38 of the liability decision. 

15.	However, the Tribunal concluded that despite her denials, the Appellant had sent the letters dated 28 March 1998 from Bhardwaj & Co. to Hackney.  Those letters not only raised the question of a conflict of interest but represented an attempt to defraud the Council.  Mrs D had said that the claims in respect of her children’s health were fabricated on the advice of her solicitor.  It was designed to gain an improper advantage in her quest for better housing.

16.	The Tribunal found that on that basis, at the disciplinary hearing which was due to take place on 30 September, the Appellant would have been found guilty of gross misconduct not simply misconduct in these circumstances and her employment would have been fairly and summarily terminated.

17.	Since this would have occurred within her notional 7 weeks notice period, for which she received full pay in lieu, she had suffered no loss.  Accordingly, by their remedies decision, the Tribunal awarded her nil compensation.

The Appeal
New Evidence
18.	Ms Monaghan made application for fresh evidence, not before the Employment Tribunal, to be admitted on these appeals.  At first Mr Sutton appeared not to oppose that application but, following the short adjournment, applied to withdraw that concession.  We permitted him to do so, in the absence of prejudice to Ms Monaghan.

19.	The evidence consisted of written statements by two solicitors, Mr Bhardwaj himself, who now lives in India and, we are told, is no longer in practice as a solicitor and Miss Gita Vagjiani, a former trainee solicitor with Bhardwaj & Co.  The effect of their evidence was that the Appellant did not return to Bhardwaj & Co. or their offices after April 1997.

20.	We have considered the three-fold test in Ladd v. Marshall [1954] 1WLR 1489, adopted in this jurisdiction by Mr Justice Popplewell in Wileman v. Minilec Engineering Ltd [1988] ICR 318.

21.	Having heard the rival submissions of counsel we concluded;
	(a) that the new evidence could, with reasonable diligence, have been obtained for use 	at the trial.  Similar evidence was obtained from a Ms Shah, a legal secretary with 	Bhardwaj & Co, in the form of a letter dated 23 March 2000 which was put before the 	Tribunal and 
	(b) that this additional evidence was unlikely to have had a significant influence on the 	outcome of the quantum issue to which it related.  The Tribunal preferred the live 	evidence of Miss Parker to that of the Appellant on the question as to whether the 	Appellant wrote the letters of 28 March 1998 on behalf of Mrs D.  In these 	circumstances we decline to admit the fresh evidence.  

Live Grounds of Appeal
22.	The appeal focused on the following points:
(1)	Deemed dismissal under section 96 ERA.  Ms Monagham submitted that on the Tribunals findings of fact no offer of suitable alternative employment was made by Hackney to the Appellant before she returned to work on 1 June 1999, her original post having been deleted.  Consequently there was a “deemed dismissal” under section 96(1) ERA.  We accept Mr Sutton’s submission that there are three answers to that contention.  First, on the Tribunals findings, the allocator job was offered to the Appellant through her trade union representative, Mr Page in October or November 1998, that is before her return to work.  The Appellants evidence that she was not made aware of the outcome of those negotiations was rejected by the Tribunal.  Secondly, even if that is incorrect, section 96 does not require that alternative employment must be available to the Appellant as soon as she returns, it may come later.  Thirdly, a deemed dismissal is akin to a repudiatory breach of contract, it is a thing writ in water, as Asquith LJ observed in relation to unaccepted repudiatory breaches of contract.  Howard v. Pickford Tool Co. Ltd [1951] 1KB 417.  In this case the Appellant did not leave the employment claiming that she had been dismissed under section 96(1).  She remained until after the formal offer of the allocated post following a meeting held between Miss Pratt of Personnel and the Appellant on 19 July, by letter dated 24 August 1999, an offer which the Appellant refused by her communication dated 10 September.  In these circumstances we reject Ms Monaghan’s first submission.

(2)	It is said that the Tribunal failed to adjudicate on the Appellant’s complaint that her treatment in the manner of her dismissal, characterised as unfair by the Tribunal at paragraph 38 of their reasons, amounted to unlawful direct race and/or sex discrimination.  It is correct that this question is not specifically addressed by the Tribunal.  We think that is because, as Mr Sutton, who appeared below submits, it was not a live issue before the Tribunal.  It is not for the Tribunal to consider and rule upon acts of unlawful discrimination not included in the complaints in the Originating Application Chapman v Simon [1994] IRLR 124.

(3)	The remedies finding
The Appellant received a statutory redundancy payment which extinguished any basic award entitlement (none being found by the Tribunal).  As to the compensatory award, the Tribunal accepted the Respondent’s case that on the basis of Mrs D’s statement to the investigator Sylvia Caprice, the Appellant could have been fairly and summarily dismissed without notice or pay in lieu for gross misconduct within the notional notice period commencing on 24 September 1999.  She was therefore entitled to no compensation.  Having rejected the Appellant’s evidence, preferring that of Miss Parker and Mr Gold, and found that the Appellant wrote the letter of 28 March 1998, and given the evidence from Mr Armand that such conduct would have led to summary dismissal, it being a matter of fraud rather than a mere conflict of interest, it seems to us that on the material before them the Tribunal were entitled to reach the conclusion which they did on this necessarily hypothetical question.

(4)	Adequacy of Reasons
We are satisfied that the Tribunal’s reasons as a whole do adequately tell the parties why they have won or lost Meek v. City of Birmingham District Council [1987] IRLR 250.  In these circumstances we are unable to discern any error of law in the decisions of the Tribunal and accordingly these appeals must be dismissed.

Permission to Appeal
For the reasons given we are not persuaded this is a proper case in which to grant permission to appeal to the Court of Appeal and consequently that application is also dismissed.