Appeal No.	EAT/1137/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 10 December 1999

Before
THE HONOURABLE MR JUSTICE CHARLES
MR P R A JACQUES CBE
MR R N STRAKER

MRS R E BRANDY	APPELLANT

LONDON BOROUGH OF ISLINGTON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR A GEORGE
(of Counsel)
Appearing under the 
Employment Law Appeal
Advice Scheme	

	MR JUSTICE CHARLES:	The parties to this appeal are a Mrs Brandy and the London Borough of Islington.  It comes before us by way of Preliminary Hearing.

1	The appeal is against the decision of an Employment Tribunal sitting at London (North), the Extended Reasons for which were sent to the parties on 13 July 1999.  The decision was that the Appellant, Mrs Brandy, was fairly dismissed.

2	Mrs Brandy sought a review of that decision based upon a statement of evidence she enclosed in her letter seeking a review.  That statement related to an allegation that she had had to endure racism for a considerable period of time.

3	The basis of the appeal as presently drafted is the same as that allegation concerning the consideration of that statement of evidence.  The Chairman refused to review on the basis that the matters that Mrs Brandy sought to put before the Employment Tribunal had not been put before it at the hearing and could not be introduced and considered later.

4	Today, Mrs Brandy has had the benefit of representation by Mr George under the ELAAS scheme.  We are grateful to him and Mrs Brandy should be grateful to him.  Firstly because, in our judgment, the basis upon which Mrs Brandy sought to bring this appeal raises no reasonably arguable point of law.  There was, in our judgment, nothing wrong with the Chairman’s refusal to review on the basis sought by Mrs Brandy and those matters would not give rise to a reasonably arguable point of law on appeal.

5	Mr George puts the case very differently.  He invites our attention to the Extended Reasons and, in particular, firstly to paragraph 2 thereof and then to the conclusions therein.  The relevant paragraphs of the Extended Reasons are as follows:

“2	The Respondent claims that the matters on which they dismissed Mrs Brandy are as follows:
(a)	failure to adhere to the Departmental policy and procedure on admission of children and assessment of parental income, in relation to the admission and assessment of Jonathan (aka) Nathan Craig, admitted to Willow Under Fives Education Centre on 12 September 1995, resulting in a potential loss of income to the Council from charges of up to £10,095;
(b)	abusing her position as Senior Officer at Willow, with delegated responsibility for admission of children under three by providing a place to a relative not eligible under the Council’s Admissions Policy, thereby depriving eligible applicants of consideration;
(c)	failure to honestly provide relevant information to (i) the Senior Management Team at Willow regarding her relationship with Susan Craig, mother of Nathan Craig, when dealing with her application (ii) to audit in the course of their enquiries of 22 May 1998 at Willow Under Fives Education Centre; and (iii) to Head of Under Fives in the course of the management investigation on 2 September 1998 at the Education Department, Laycock Street.
3	The facts found by the Tribunal are as follows:
(i)	Mrs Brandy worked at the Willow Under Fives Education Centre and was responsible, amongst other things, for the admission of under threes.
(ii)	In September 1995 she admitted Nathan Craig.  Prior to admitting him she had completed his application form, although it is unclear whether she signed it.
(iii)	The information given by the child’s mother at the time of admission included a temporary address which was within a priority area.  A future address, with the child’s father, would not have given the child priority.  The Respondent claims that Mrs Brandy should not have used the temporary address to give the child priority, although there was no stated policy that temporary addresses should not be used.
(iv)	The information given by the child’s mother about her employment did not disclose that it was part-time, although the child had been admitted with an extended full-time place.  Subsequent information provided by the child’s mother about her full-time job gave an employer who had gone out of business in 1991.
(v)	There was then an internal audit enquiry during which it was revealed that Mrs Brandy was related by marriage to Miss Craig and that Jonathan was her great-nephew.
4	We are prepared to accept that when the application for a place was first processed Mrs Brandy might not have known about the family relationship, but she has admitted that she knew that she was related to Susan Craig and to Jonathan Craig by the time of the internal audit in May 1998.  At no time did she voluntarily disclose this relationship to her employers, and although there is nothing to prevent children being admitted to the nursery who are related to staff, the basis of the employer’s case is that Mrs Brandy continued to conceal this information, and that by doing so she was being devious, and that they lost all trust and confidence in her.
5	Mrs Brandy has maintained that there were no written procedures in respect of admissions procedures and none has been produced by the Respondent.  Their position is that it was self-evident that the signature on an application form should be that of the parent/carer, and that in the case of Jonathan Craig there is an ambiguity about the signature.  They also maintained that at the time of admission, having been informed that Jonathan’s father lived at the address that Miss Craig and Jonathan were proposing to move to, no responsible enquiries were made about his means and the contribution he might make to the appropriate fees.
6	On the basis of the evidence the Tribunal is satisfied that the criteria in British Home Stores v Burchell have been satisfied.  We find that the employer had reasonable grounds for believing misconduct to have occurred, that they subsequently carried out a proper investigation which was followed by a disciplinary hearing and an appeal, and that those procedures were properly carried out.
7	We have then had to consider whether in all the circumstances it was fair or unfair for the employers to use the reason as a reason to dismiss.  We have taken into account the fact that Mrs Brandy had been an employee of the Respondent for 24½ years and had had no previous disciplinary record, and also that the dismissal did not take place until three years after the event to which it relates.  Nevertheless, given that the employers clearly believed that Mrs Brandy had abused her position to ensure that her great-nephew was given a place at the nursery in the face of strong competition from other possible eligible applicants, we regard that misconduct in local authority education terms to be a very serious matter and that it comes within the band of reasonable responses open to an employer who chooses in those circumstances to use the disciplinary action of dismissal.”

6	Paragraph 2 identifies three matters that the employers relied on as the basis for their dismissal of Mrs Brandy.  Simply reading that paragraph sub-paragraphs (a), (b) and (c)(i) are the more serious of the allegations.

7	When one goes through the Extended Reasons, one can see from paragraph 4, albeit perhaps in unfortunate terms, that the Employment Tribunal do not proceed on the basis that subparagraphs (b) and (c)(i) were established.  It seems to us from that paragraph that for present purposes we should proceed on the basis that it is arguable that the Employment Tribunal reached, or should be treated as having reached, their decision on the basis that subparagraphs (b) and (c)(i) were not established.

8	Turning to paragraph 5 we have concluded that for present purposes we should proceed on the basis that it is arguable that it is unclear what the Employment Tribunal thought as to the allegation in subparagraph 2(a), and again that it is arguable that they proceeded, or should be treated as having proceeded, on the basis that the allegation in paragraph 2(a) was not established.

9	That therefore leaves subparagraph (c)(ii) and (iii), the seriousness of which, in part, depends upon the establishment of the other allegations.  

10	One then turns to paragraph 6 of the Extended Reasons where the Tribunal refer to the decision in British Home Stores Limited v Burchell [1980] ICR 303, and then find that the employer had reasonable grounds for believing misconduct to have occurred.  

11	One asks, what misconduct are the Tribunal referring to in paragraph 6?  It is at least arguable that the Extended Reasons simply do not provide an answer.  If one assumes that the only misconduct they are referring to there is that in paragraph 2 (c)(ii) and (iii)  rather than paragraph 2 (a), (b) and (c)(i) it is arguable that there is no reasoning to show why the Tribunal regarded that misconduct as sufficiently serious misconduct to warrant dismissal.  If one assumes that the Tribunal is referring to all the misconduct in listed in paragraph 2 (a), (b) and (c)  it is arguable that there is no reasoning to show why in the light of paragraphs 4 and 5 of the Extended Reasons the Tribunal found that the employer had reasonable grounds for believing that misconduct to have occurred.  Equivalent points can be made in respect of the finding that the employers carried out a fair and proper investigation particularly when it is arguable having regard to paragraphs 4 and 5 of the Extended Reasons that they did not find allegations 2(a), (b) and (c)(i) to be established?

12	We therefore consider that there are reasonably arguable points of law on the application of the test as stated in British Home Stores Limited v Burchell.  They are firstly that the decision of the Employment Tribunal can be categorised as perverse and therefore as being outside the wide range set in that case.  Alternatively, and perhaps more compellingly, that these Extended Reasons fail to adequately explain to the parties why one has won and the other has lost.

13	We will give leave to amend the Notice of Appeal to raise those two points.  That leave is given in accordance with our Practice Direction and Guidance Notes relating to preliminary hearings, so that the Respondents have an opportunity to challenge it in accordance therewith.

14	Mr George raises a further point and that is that Mrs Brandy would wish to argue that the Employment Tribunal in fact applied the wrong test, having regard to the recent decision of this Tribunal in Haddon v Vandenbergh Foods Ltd [1999] IRLR 672.  

15	This is an argument which requires Mrs Brandy to invite this Tribunal to consider a new point of law concerning  the correct application of the statute.  As to this point issues arise whether or not it would be right to introduce that point at this stage out of time because, of course, it is not possible to say that the Tribunal below erred in law in not applying the Haddon approach because that decision had not been made when the Tribunal reached its decision. (see also and by way of example Biggs v Somerset County Council [1996] ICR 365 at 374 D/E).

16	It seems to us (and we have done this already today) that the correct course in respect of this point is to provide that what can be described as the Haddon point should be dealt with by this Tribunal on the full hearing and that Mrs Brandy should prepare and serve a draft Notice of Appeal setting out the Haddon point and her application to add it as a ground of appeal should be dealt with on the basis that the application to amend was made today.

17	A problem with serving both amended Notices of Appeal is that Mrs Brandy is a litigant in person and may not have the assistance of Counsel or other lawyers in the drafting of the Notices of Appeal.  I will hear Mr George as to the practicality of that before deciding what to do.

(Mr George indicated that he would be prepared to draft the two notices)

18	We direct that within 21 days from her receipt of the transcript of this judgment Mrs Brandy do serve the two amended notices of appeal referred to above (one being in draft). This will give her slightly longer than the 31 days discussed and if Mr George is unable to do the drafting she will have to do the best she can from the judgment.

19	We will give this case Category A, but direct that it can be listed Category B if the Haddon point has already been decided by this Tribunal.  We give it a time estimate of a day.