Appeal No. UKEAT/0461/08/JOJ

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 April 2009

Before
HIS HONOUR JUDGE SEROTA QC
MRS D M PALMER
MS P TATLOW

WANSBECK DISTRICT COUNCIL	APPELLANT

MR N L FISHER	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MS JANE CALLAN
(of Counsel)
Instructed by:
Northumberland District Council
Legal Services
County Hall
Morpeth
Northumberland NE61 2EF
	
For the Respondent	MR N FISHER
(The Respondent in Person)	

SUMMARY
PRACTICE AND PROCEDURE:  Perversity
The decision of the Employment Tribunal was based on a clear failure to understand undisputed facts that were central to its decision.  The failure was so clear and fundamental as to give rise to an error of law.  British Telecommunications v Sheridan [1990] IRLR 27 (CA) applied.

HIS HONOUR JUDGE SEROTA QC
1.	This is an appeal by the Respondent from a decision of the Employment Tribunal at Newcastle, the Employment Judge being Mr Garside.  The Decision was sent to the parties on 1 May 2008 and the Employment Tribunal found the Claimant to have been unfairly dismissed.

2.	Both parties were unrepresented before the Employment Tribunal; the Claimant was in person, the Respondent was represented by Mr Smith, the Head of the Human Resources Department, who also was a witness.  We note that the Claimant made no submissions.

3.	The Employment Tribunal as is apparent from paragraph 35 of its Decision had some difficulties in understanding the case.  It describes the presentation of the evidence by the Respondent as being confusing and disjointed and allegations made against the Claimant were conflated.  The Employment Tribunal says it took the members some time to unravel some of the facts from the evidence to enable them to consider whether the dismissal was fair.  It may well be that the matters which I have just mentioned have given rise to the difficulties that one has when considering the Decision, to which I shall refer shortly.

4.	  The matter came before HHJ McMullen QC on the sift, and he directed that the matter should be disposed of under Rule 3 on 16 July 2008.  However, a further application before Wilkie J, under Rule 3(10), led to certain grounds of appeal being referred to a full hearing.  

5.	A cross‑appeal by the Claimant was disposed of under rule 3 by HHJ Birtles QC on 18 December 2009.  Unusually this appeal is simply based on questions of fact.  The Employment Tribunal is said to have misstated the Respondent’s case in disciplinary proceedings and to have misunderstood the basis of the disciplinary charge against the Claimant and the reason for his dismissal.

6.	We turn briefly to the factual background.  The Claimant, Mr Fisher, joined the Respondent in November of 1998 as a Community Services Manager.  Part of his duties involved the overseeing of a Healthy Living Centre, of which a Mrs Lisa Nevens was Project Manager.  She was one of some five employees at the Healthy Living Centre supervised by the Claimant.

7.	In September 2006 Mrs Nevens put in hand the process for an evaluation of the Healthy Living Centre to be carried out.  It would seem that the manner in which the order for services of the Consultant, costing some £15,000, was placed was in breach of the Respondent’s procurement procedures.  This was of some significance because the evaluation which cost, as I have said, £15,000, was considered to be of little value.

8.	Questions of financial impropriety were investigated, and in October and possibly November of 2006 it would seem that a decision was taken that no proceedings would be taken against Mrs Nevens.  However, when it became apparent at a subsequent date that the report was of little value, that no specification had been given and, according to Mr Fisher, Mrs Nevens had not provided adequate explanations when questioned by him, Mr Fisher in effect resurrected the issue and wished to have the matter investigated.

9.	I would also note that at some point in time in March 2007 the Claimant learned that Mrs Nevens had been disparaging other members of the team.  He did not raise this matter with her; it is said that he raised it with Ms Green, an administrative assistant.

10.	In March of 2007, certain emails were sent by Mr Fisher, and there is no doubt that in those emails Mr Fisher was telling Mrs Nevens that as a result of the breaches of procurement procedures in relation to the evaluation she might be at risk of dismissal.  Mr Fisher maintains that these emails were sent in the context of an ongoing situation in which it had been discovered that the evaluation was of no value and the Council did not wish to pay for it.  The Council had some difficulty in substantiating a case that it was excused from making payment because, contrary to what he had been told by Mrs Nevens, there had been no specification provided to the consultant.  

11.	Also in March the funding for the Healthy Living Centre was coming to an end.  It was in fact secured but the Claimant, it is said, wished to reorganise the Centre, and he is said to have informed Mrs Nevens that her role of Project Manager was no longer required but he could offer her another post, albeit at a significant reduction in salary.  Mrs Nevens complained about this;  she found the manner in which the Claimant communicated with her to be threatening and inappropriate.

12.	I have already mentioned the Claimant’s continuing concern about the evaluation and on 21 March 2007 he reported Mrs Nevens for non-compliance with financial regulations.  There were two other examples of cases where Mrs Nevens had apparently procured the supply of goods or services to the Council which might have been non-compliant with procurement regulations.  

13.	On 30 March the Claimant was told that disciplinary action against Mrs Nevens would not be relevant.  On 12 April 2007 the Branch Secretary of Unison contacted Mr Smith, who, as I have said, was the Head of the Respondent’s Human Relations Department, to say that Mrs Nevens felt bullied by the Claimant.  Mr Smith went immediately to see Mrs Nevens and found her to be distressed and complaining of bullying by the Claimant.  The Claimant was therefore suspended on full pay pending an investigation, and the investigation was undertaken by Karen Turner of the Respondent’s Human Relations Department.

14.	An investigatory meeting took place on 15 May which led to a decision to call a disciplinary meeting.  At the meeting it was said that the Claimant had accused Mrs Nevens of verbally abusing other staff and having maliciously libelled them. 

15.	On 18 May the Claimant was asked to attend a disciplinary meeting to deal with four issues and he was provided with the relevant documents.  The letter inviting him to the meeting is at page 41.  It was sent by Peter Smith and it related to four separate allegations.  Let me make clear that the first one is headed up “Financial Investigation by Internal Audit”.  It is not as clear as it might be, but it is clear from reading that letter that the complaint that was being made against Mr Fisher was not of any financial impropriety but that he had attempted to bully and harass Mrs Nevens about the evaluation report and reference is made to a number of emails and a statement made to Heather Proudlock.  

16.	The second allegation is that he had been guilty of bullying by attempting to downgrade her post.  Thirdly, it is said that he had sent her some bullying emails and, fourthly, that at the investigatory meeting he had accused her of verbally abusing other staff and maliciously libelled them.  I think there is a reference to the fact that no evidence could be found to support his allegations.

17.	The Employment Tribunal when it came to summarise the disciplinary charges, as it did at paragraph 12, put the concern to be and I quote:

“About an internal audit report relating to the awarding of a contract for the preparation of an evaluation report.”

That is manifestly inaccurate and clearly reflects a possible lack of understanding as to what it was that the Respondent complained about in Mr Fisher’s behaviour.  

18.	The disciplinary meeting took place over two days.  The Claimant was represented by his trade union.  The disciplinary hearing was conducted by Ms Forster, the Respondent’s solicitor.  The Employment Tribunal noted that a number of witnesses called were very critical of Mrs Nevens and supportive of the Claimant.  

19.	The Employment Tribunal in paragraph 15, when considering Mrs Nevens’ evidence, noted that she had not been asked about entering into a contract without proper authorisation.  The Employment Tribunal goes on to say that this was one of number of matters, the others of which are unclear to us, that had been found against Mr Fisher. 

20.	When the Employment Tribunal, at paragraph 16, came to consider Ms Forster’s findings, because she had concluded he had been guilty of gross misconduct and should be dismissed, it characterised her finding as being one that “Concerned financial irregularities”.  When one in fact goes to the dismissal letter, which we find at page 44, which is again sent by the Chief Personnel Officer, Mr Smith, one sees no reference to the Claimant having been dismissed for financial irregularities.  The reason given was and we quote:

“on balance of probabilities the allegations that you had bullied, harassed and victimised a member of staff were founded.  Ms Forster considered that as such this amounted to gross misconduct and further that the employer/employee relationship of trust and confidence had been significantly damaged.”

21.	The letter does, however, tend to muddy the waters by referring to the conclusions of an audit report into the irregularities and it refers to the financial investigation by Internal Audit which concluded that Mrs Nevens should not be blamed.  

22.	The paragraph dealing with the basis for the complaint is not altogether clear; see paragraph 1 at page 44.  It is clear, however, when one studies everything that there was no complaint as to financial irregularity against Mr Fisher.  The complaint was that against the background of a possible financial irregularity he had been putting improper pressure or bullying or harassing Mrs Nevens.

23.	The letter also referred to a scathing attack on senior management of the Council, which Ms Forster considered had significantly damaged the employer/employee relationship of trust and confidence.

24.	There was an unsuccessful appeal by Mr Fisher against this decision.  The Employment Tribunal directed itself as to the law.  There is no issue that we can see that it correctly directed itself as to the effects of section 95 and 98 of the Employment Rights Act 1996 and of the principles to be applied in cases of unfair dismissal, as set out in the well‑known case of British Homes Stores Ltd v Burchell [1978] IRLR 379.

25.	We have already noted that the Employment Tribunal considered that the way in which the case had been presented by the Respondent was confusing and disjointed.  At paragraph 36, the Employment Tribunal was concerned about the finding that the trust and confidence between employer and employee had broken down because of the scathing comments made by Mr Fisher in his defence.  As the Employment Tribunal noted, this was not an allegation in the disciplinary proceedings; it was not something with which Mr Fisher had been charged.  Further, the Employment Tribunal did not consider there was substance in that particular complaint.

26.	At paragraph 37 one comes to the matter giving rise to the nub of this appeal:

“Ms Forster found that one of the reasons for the dismissal was the financial irregularities.  We found some difficulty in understanding why Mr Fisher was dismissed for financial irregularities when those were Mrs Nevens’ financial irregularities.  It appears that she had committed the council to orders of printing, DVDs and in particular, a report without going through the proper procedures.  There was an investigation by an internal audit into these matters. We who found the conclusions inconclusive.  It appears to us that this was not a proper investigation.  As far as we can gather from the information that has been provided to us, Mrs Nevens was never interviewed about the procedure and what she had actually done.  It was not Mr Fisher who ordered an evaluation report at a cost of £15,000, it was Mrs Nevens.”

27.	The Employment Tribunal did not consider that the Claimant could be criticised in relation to informing Mrs Nevens of the possibility of her losing her post as a Project Manager (see paragraph 38).  At paragraph 39 the Employment Tribunal considered the three emails in which the Claimant had made that clear to Mrs Nevens, I think in March, that the irregularities, of which mention has already been made, in the ordering of goods and services was such that her job was at risk.  

28.	The Employment Tribunal had no difficulty in accepting the Claimant’s evidence that he was unaware she had not followed the procedures and that the internal audit were not aware she had not followed the procedures until after the report was produced.  

29.	Mr Fisher, say the Tribunal, was warning Mrs Nevens that these were serious matters, which they were; it was a warning that disciplinary action could lead to her being dismissed; it was not bullying, victimisation or harassment.  The Employment Tribunal then went on to consider the other allegations raised against Mr Fisher and considered that there was no justification for a reasonable employer in accepting them or as regarding them as grounds for dismissal.

30.	The principal ground of appeal can be very shortly stated.  It is, as put to us by Ms Callan, that it is crystal clear from paragraph 37 of its Decision and also from the earlier passages to which we have referred at paragraphs 12, 15 and 16, that the Employment Tribunal simply misunderstood the nature of the complaints, misconstrued the disciplinary charge and substituted its own views for the Respondent in determining whether the decision to dismiss was within a reasonable range of responses.  It misstated the allegations against the Claimant and found that the dismissing officer had made allegations she had not.

31.	Mr Fisher accepts that the Employment Tribunal has made errors in relation to explaining the nature of the disciplinary proceedings against him and the nature of the findings but points to paragraph 39 of the Employment Tribunal’s Decision in relation to the emails and says that that decision can stand alone.

32.	Our conclusions are as follows.  We greatly regret that the Employment Tribunal has so totally misunderstood the Respondent’s case, probably because of the Respondent’s muddled presentation and a degree of lack of clarity in the letters at pages 41 and 44 in relation to financial irregularities.  The Employment Tribunal clearly believed the Claimant was being disciplined for financial irregularities when that was only the context in which he is said to have bullied Mrs Nevens.

33.	In our opinion it is impossible thereafter to separate out other findings because all these findings have been made looking at matters through the prism of misunderstanding the nature of the charge against him.

34.	We are at pains to point out that we are making no findings as to the merits of the Claimant’s case that he was not responsible for any conduct that could properly be characterised as bullying or harassment.  It may well be that further investigation will reveal that the Claimant is correct.  It may well be that an Employment Tribunal that correctly understands the nature of the disciplinary procedures will nonetheless conclude that Mr Fisher’s dismissal was unfair.  However, for the reasons that we have given, we cannot be confident that this Employment Tribunal had properly understood the case and that had it properly understood the case that it would have come to the conclusion that it did.  The Employment Tribunal’s misunderstanding of the facts is so clear and fundamental to its decision, that this is one of those very rare cases in which failure to understand the facts amounts to an error of law;  see British Telecommunications v Sheridan [1990] IRLR 27 at paragraphs 34-35 (Lord Donaldson MR).

35.	In those circumstances and with considerable regret we therefore feel obliged to remit this case for rehearing before a different Employment Tribunal.