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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Nkengfack v Southwark Education Department [2001] EWCA Civ 1769 (13 November 2001) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2001/1769.html Cite as: [2001] EWCA Civ 1769

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
(MR RECORDER LANGSTAFF QC)

		Royal Courts of Justice Strand, London WC2 Tuesday, 13th November 2001

Tuesday, 13th November 2001

1. LORD JUSTICE LAWS: In this renewed application for permission to appeal the first point taken was that the Employment Appeal Tribunal should have remitted the case for a fresh hearing in the light of certain new evidence. I gave judgment on that issue on 8th November 2001 against the applicant. I refer to what I said then for the background to the case, which I will not repeat. That judgment is to be read along with what I have to say today.
2. There was a further issue raised by Mr Panton, and it was the consideration of that issue that caused me to adjourn the matter over to today. The unconnected ground is this. It is said that the Employment Appeal Tribunal were in error in holding that the Employment Tribunal had sufficiently considered the question whether the internal panels had properly or adequately considered the possibility of a sanction less draconian than the sanction of dismissal.
3. The Employment Tribunal identified the issue at paragraph 3(1)(vii) of their determination and later they said:

"We consider that it would have been preferable for the Applicant to have been asked [I interpolate, that is, I think, at the internal appeal hearing] whether she had anything to say in mitigation after the decision of the appeal panel to uphold the finding of gross misconduct but again, we do not feel that it is sufficient to render the dismissal unfair. We accordingly dismiss the Applicant's claim of unfair dismissal on the ground that the tribunal acted fairly in accordance with section 98(4) of the 1996 Act."

4. It is implicit there, indeed obvious from the way it is put by the Tribunal, that the applicant was not asked whether she had anything to say in mitigation after the finding of gross misconduct had been upheld on the merits.
5. Mr Panton submitted to the Employment Appeal Tribunal that it was not inevitable that dismissal would be the sanction imposed for the gross misconduct which had been found. Clearly, if there was no realistic alternative to a sanction of dismissal then any unfairness in the panel's failure to ask whether the applicant wanted to mitigate would be nugatory. The Employment Appeal Tribunal had this to say about Mr Panton's submission, paragraph 56:

"Although we consider there is some force in what he has said to us, and it may be that it is a pity for the Appellant that the Employment Tribunal did not have the advocacy of Mr Panton before them, nonetheless, they were made aware of the issue. The only question, it seems to us, they having indicated a view upon it, is whether they had sufficiently expressed the reason for it. Their statement is terse. However bearing in mind that they had a number of difficult issues of fact to deal with, in relation to discrimination on the grounds of sex and race, and the principal focus of their case, upon the facts which gave rise to the finding of gross misconduct, we do not think that it was required that the Employment Tribunal should go so far as to set out, in detail, the reasons why they came to the conclusion that it was nonetheless fair for the internal appeal hearing to reach the decision it did, notwithstanding their not having asked the Appellant whether she had anything to say in mitigation."

6. Now, Mr Panton submitted, I have to say very late in the day, on 8th November 2001, that there was in fact undisputed evidence to the effect that the applicant had telephoned the school on the Friday morning, as Mr Panton then believed it was, saying that she would return to work on the Monday following: that would be 7th December. There is no reference to any such phone call either in the decision of the Employment Tribunal or the Employment Appeal Tribunal. To my mind, if there were clear evidence that such a call had been made, that might have made a difference to the rights and wrongs of the employer's consideration of sanction. If Miss White went to the salon on the Friday afternoon in the full knowledge that the applicant had said she would be returning on Monday, well then that might be thought to be relevant to the proper consequences of the applicant having been found working at the salon on what would have turned out to be just one working day before she was due to return to the school.
7. On 8th November, however, Mr Panton was not able to produce the evidence to which he referred; all he was armed with was a reference in his own skeleton argument before the Employment Appeal Tribunal. That was enough to cause me to adjourn the matter. Today Mr Panton has produced a copy of Miss White's witness statement in the Employment Tribunal and a copy also of his client's statement. Miss White refers to her first visit to the salon on 3rd December 1998 in paragraph 10. Then in paragraph 11 she says this:

"On our return to school Cecilia Nkengfack phoned to let us know that she would definitely be returning to school on the Monday (December 7). She also asked if there was anything she needed to know concerning her class and Christmas arrangements. As far as I was concerned that was the end of the matter."

8. Clearly, on that evidence the phone call was not in fact on the Friday morning but on the Thursday, and presumably in the afternoon. Nothing, I think, turns on the precise timing. Miss White proceeds to describe her return visit to the salon on the Friday.
9. In those circumstances it seems to me that it is at least arguable that the Employment Tribunal did not deal with this aspect of the case satisfactorily. As the Employment Appeal Tribunal stated, the comment in the Tribunal below was terse. There is no reference to this telephone call which, as I have indicated, some might think could make a material difference to the perception of what should be the correct sanction. One has to have in mind that a failure to ask the employee whether she has anything to say about penalty is, on the face of it, a want of proper standards of fairness.
10. It seems to me that there is room for argument at least to the effect that the Employment Tribunal have not given sufficient reasons for the conclusion they arrived at. With some misgiving, therefore, I propose to give permission to appeal. The permission is limited to this distinct issue relating to the failure of the internal panel to invite mitigation and the Employment Tribunal's treatment of that issue.
11. I make it clear, as I have to Mr Panton in the course of his short submissions this morning, that my judgment on 8th November relating to the fresh evidence matter stands. I give no permission in relation to that.
Order: Permission to appeal granted in relation to the distinct issue above. Costs thrown away by the necessity to adjourn the permission application to be in no event borne by the respondent.