Appeal No. EAT/868/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 17 March 1995

	Before

	THE HONOURABLE MR JUSTICE BUCKLEY

	 MS S R CORBY

	MR J H GALBRAITH CB

MR D A WATLING	APPELLANT

GLOUCESTERSHIRE COUNTY COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	REVIEW OF PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MRS K WATLING
(Representative)

	MR JUSTICE BUCKLEY:   The Appellant Mr Watling was employed as an Occupational Therapist in the Social Services Department of the Respondent authority, that is the Gloucestershire County Council.  He was dismissed on the grounds of conduct and  appealed to an Industrial Tribunal in May and July 1994 sitting at Bristol, which found that the dismissal was not unfair and they dismissed his application.

	Mr Watling put in detailed grounds of appeal and appealed to this Tribunal.  In accordance with the practice direction there was a preliminary hearing to see whether there was any arguable point of law to justify the matter going forward to a full hearing.  That came on (I think) in November of last year and the decision of the Tribunal on that occasion was that the appeal should be dismissed, essentially because having looked at the detailed grounds put in by Mr Watling, it was decided that they did not raise any arguable point of law.

	It was unfortunate because on that occasion neither Mr Watling nor Mrs Watling who has appeared before us today was present.  We do not need to go into the details of the matter, save only to say this: the case was listed apparently not before 11.30. Mrs  Watling who was to attend on behalf of her husband could not be here before or much before 11.30.  It appears that matters went forward quicker than expected and the case was heard in her absence.  It was unfortunate, obviously not deliberate, but Mrs Watling should have had an opportunity of arguing on behalf of her husband.  She therefore applies to this Tribunal to review the earlier finding.  On those short facts we indicated to Mrs Watling that we would grant a review.  We ascertained that she was both willing and able to proceed with that review this morning and she assured us that she was keen to deal with the matter and so we proceeded to hear it.

	We have had the advantage of reading not only the Tribunal's original reasons but the judgment of His Honour Judge Hull QC who dealt with the first appeal to this Tribunal, the grounds that were put in by Mr Watling or on his behalf, we have further documents, an outline of case and also some correspondence from Mr Watling.  We have heard Mrs Watling this morning.  What Mrs Watling has urged upon us is first the nature of her husband's employment, that is that he was employed or engaged for some 37 hours per week and that those were flexible hours and that within what might be regarded by others as a standard working day, not only was there flexibility but there was time off, notably at least 1/2 hour, probably more, for lunch.  She has urged on us that really all this case is about is the odd 
1/2 hour or so a week or even a fortnight during which it appears that Mr Watling saw private clients.

	The finding of the original Tribunal on that aspect of the matter, and it is a finding of clear fact which binds us, was that Mr Watling was obliged under the terms of his contract, the Respondents hand booklet, to obtain permission to engage in any outside work, that he had asked for permission, a fact which in itself supports that proposition, but he had been given permission only to see and treat private clients in the evenings and at the weekends.

	The dispute in this case was because it came to the attention of the Respondents that he had been seeing a private client during the day time.  The matter was investigated, a disciplinary hearing took place and he was dismissed.  Mrs Watling has challenged the investigation by Mr Burns and the disciplinary hearing.  She sought to persuade us that there was no proper investigation, there was no proper evidence tendered, that her husband's evidence before that hearing was disregarded and so forth and that in any event they misunderstood as did the Industrial Tribunal the nature of Mr Watling's employment.

	These are matters which were to a large extent covered by the judgment of this Tribunal given by Judge Hull at the end of last year and we do not propose to repeat what was said in that judgment.  Rather we have tried to focus on Mrs Watling's submissions to us to see whether she has been able to raise any point of law that escaped Judge Hull and the other members of the Tribunal on that occasion.  Having listened very carefully to Mrs Watling who has very helpfully and cogently made submissions to us, I am afraid we are unable to find that there is any further or any point of law that would merit this matter going forward to a full appeal.  

	On the last occasion the Tribunal's reasons were cited in some detail, paragraphs 14-17, pointing out that they evidenced a correct approach to the matter and that the grounds of complaint were really challenges to evidence and fact and I am afraid that that is a conclusion with which we agree.  The finding of the Tribunal was set out in those paragraphs and it was to the affect that the Respondents had a reasonable belief after proper investigation that the Applicant had been guilty of misconduct and that they did not act unreasonably in treating that as grounds to dismiss.  They deal with the disciplinary hearing before Mr Burns and they considered the evidence relating to it, the notes of that hearing, they were all before the Tribunal and it really is not open to us to go behind those findings.  So, although we considered the papers carefully and indeed Mrs Watling's very helpful submissions, I regret that we have been unable to see any point of law that would form a basis for argument before this Tribunal.  Consequently the judgment of His Honour Judge Hull must stand and we do not see any sufficient reason to alter that position.