Appeal No.	 EAT/322/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 July 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR R N STRAKER
MS B SWITZER

MR J R CAHILL	APPELLANT

HM PRISON SERVICE	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON
	
For the Respondents	MR I ASHFORD-THOM
(of Counsel)
The Treasury Solicitor
Queen Anne's Chambers
28 Broadway
London SW1H 9JS	

	JUDGE PETER CLARK:     This is an appeal by Mr Cahill, the Applicant before the London (North) Industrial Tribunal sitting on 24 January 1996, against that Tribunal’s decision to dismiss his complaint of unfair dismissal against his former employer, HM Prison Service.

Background

	We take the history of the matter from the chronology prepared by Mr Ashford-Thom, insofar as it is non-controversial, and from the Industrial Tribunal’s finding of fact.  The Applicant commenced employment with the Respondent as a civilian painting instructor at Holloway Prison on 11 September 1989.  At all relevant times the Governor of the Prison was Mr O’Sullivan and the Chairman of Works was Mr Oliver.

	On 31 March 1992 two prison officers made an allegation of improper conduct against the Appellant involving a prisoner, NG.  An investigation was carried out by Mr Oliver, who found the allegation to be unsubstantiated.  Nevertheless, so the Tribunal found, although this is disputed by Mr Cahill, in May 1992 he was advised by Mr Oliver that he should refrain from having any physical contact with the inmates and the rules regarding that matter were pointed out to him.

	On 4 August 1992 NG wrote to the Governor complaining of over-familiarity by the Appellant towards her, causing her to leave her painting course.  That complaint was again investigated by Mr Oliver.  On 15 August Mr Oliver reported to the Governor that in his view the allegation of improper conduct (not amounting to sexual impropriety in any way) was made out and concluding that there had been gross over-involvement by the Appellant with NG which had gone beyond the boundaries of a caring professional relationship between staff and inmate.  On 19 August the Appellant was suspended.

	On 9 October 1992 four disciplinary charges were formulated and put to the Appellant as follows:

(1)  On 19 June 1992 he had associated improperly with NG by travelling with her in a car to Guildford, her home town, whilst she was on temporary release.

(2)  On that day associating improperly with NG by visiting her home.

(3)  On the same day associating improperly with her by accompanying her to a local public house and buying her alcoholic drinks.

(4)  On more than one occasion knowingly showing favour to NG by bringing into the prison items for her use, namely toiletries and stamps.

	The Tribunal noted a conflict of evidence regarding the prison rules.  The Appellant contended that he had not received the rule book and disciplinary code when he was first employed whilst the Respondent claim that the code books were available to all employees.  The Tribunal found that the Appellant was aware of the rules that there should be no contact with the prisoners without authority and that it was forbidden to give presents of any sort to inmates without the Governor’s position.

	On 12 November 1992 the Governor conducted a disciplinary hearing, following which he referred the matter to the Secretary of State with a recommendation that the Appellant be dismissed.

	On 24 February 1993 the Secretary of State appointed Mr Jenkins to conduct an inquiry.  He considered witness statements and transcripts already obtained and interviewed the Appellant who was represented by a Trade Union representative.  On 14 July 1993 he endorsed the Governor’s recommendation that the Appellant be dismissed.

	At this point we should observe that from 1 July 1993 the provisions of the Respondent’s Disciplinary Code changed.  However, the disciplinary process in the Appellant’s case having commenced before that date, he was dealt with throughout under the former Code.

	On 9 August 1993 the Secretary of State wrote to the Appellant notifying him that the charges against him had been found proved, and that it was intended that he be dismissed, and informing him of his right to make further representations orally or in writing against the decision under the provisions of the former Code.  The Appellant asked for a personal hearing which was arranged before a Grade 4 officer elsewhere in the prison system, Mr Hickson.  It was the Appellant’s case that although he admitted the facts alleged against him, the penalty of dismissal was too severe.  Mr Hickson accepted that the penalty was a stiff response and stated his own view that a written reprimand, including a final warning, and a transfer to an all-male establishment, would suffice.

	On 6 October 1993 the Secretary of State decided that the Appellant should be dismissed with pay in lieu of notice.  The employment terminated on 18 October 1993.

	The Appellant appealed to the Civil Service Appeal Board, which finally dismissed his appeal on 24 June 1994.

The Industrial Tribunal Decision

	The Tribunal found that the Respondent carried out its procedures properly; they criticised the fact that the view of the independent person, here Mr Hickson, could be disregarded in reaching the final decision.  For themselves, they would not have dismissed the Appellant.  However, they plainly bore in mind that it was not for them to substitute their own view for that of the employer; the question was whether dismissal fell within the range of reasonable responses.  They found that it did.  Accordingly the complaint was dismissed.

The Appeal

	Mr Cahill’s principal challenge is to the Industrial Tribunal’s findings at paragraph 9 of their reasons where they say this:

“9.  We heard evidence from Mr Oliver and from Mr O’Sullivan regarding the procedures that were followed and we are satisfied that the procedures were carried out properly, and in accordance with the rules and at all times the Respondent was represented by his Union member.”

	Mr Cahill has drawn our attention to various provisions of the new Code, not in force for the purposes of his disciplinary hearings, and submits that the Respondent was in breach of those provisions.  The difficulty with that submission is two-fold; first, the new Code was not applied in his case; secondly, and more substantially, the disciplinary procedure applied in his case, consisting of the rules relating to prison officers, imported by paragraph 358 of the staff handbook to apply so far as was material to civilian employees such as the Appellant, was before the Industrial Tribunal, and it was at that hearing that the Appellant had the opportunity to make any procedural challenges.  Insofar as he did so, they were rejected by the Tribunal of fact.  We cannot interfere with those findings of fact, there having plainly been evidence to support such findings.  It is not for us to determine the credibility of witnesses who gave evidence below.

	Turning to the substance of the decision to dismiss, Mr Cahill accepts that he overstepped the mark, that he was guilty of improper conduct, but says that no damage was done to the prison service or anyone.  His motives were not questioned.  He was not guilty of gross misconduct; the penalty was excessive in all the circumstances.

	We have some sympathy with that plea, as did Mr Hickson and the members of the Industrial Tribunal before us.  However, we are reminded of the limits both of the Industrial Tribunal’s jurisdiction and our own.  The Industrial Tribunal were bound to ask themselves whether dismissal fell within the range of reasonable responses:  see Iceland Frozen Foods v Jones [1983] ICR 17.  They found that it did in this case.  We can only interfere with that conclusion if it is perverse.  We cannot characterise it as such, in the sense that the Industrial Tribunal’s finding was an impermissible option on the facts of this case.

	It follows in these circumstances that we are unable to discern any error of law in the Industrial Tribunal’s approach and consequently this appeal must be dismissed.