Appeal No. EAT/0209/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 July 2001

Before
HIS HONOUR JUDGE PETER CLARK
MRS A GALLICO
MR B GIBBS

MR M J POVEY	APPELLANT

DORSET COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised 

	APPEARANCES

For the Appellant	THE APPELLANT IN PERSON	

JUDGE PETER CLARK

1.	This is an appeal by Mr Povey against a decision of the Southampton Employment Tribunal, chaired by Mr D N Cowling, promulgated with extended reasons on 22 December 2000, dismissing his complaint of unfair dismissal and wrongful dismissal brought against the Respondent, his former employer, Dorset County Council.

2.	The facts, briefly, are these.  The Appellant was employed by the Respondent from September 1984 until his dismissal for alleged gross misconduct on 22 October 1999, as an Education Welfare Officer.

3.	The event which the Respondent contended led to his dismissal was his deliberate disobedience of an express instruction from Mr Briden, Assistant Principal Education Welfare Officer, not to write to Miss Rebecca Dodman, the Deputy Head Teacher of a school in Dorchester to which the Appellant had been assigned as Education Welfare Officer.  The background to that instruction and its breach by the Appellant is fully set out in the Employment Tribunal’s reasons.

4.	Disciplinary proceedings ensued, leading to the Appellant’s dismissal for gross misconduct on 22 October 1999.  Subsequently, an internal appeal was lodged by the Appellant but withdrawn by him on 4 February 2000.  He preferred to proceed by way of a complaint to the Employment Tribunal.

5.	The Appellant put his case on unfair dismissal in two ways.  First, he complained that his dismissal was for an inadmissible reason under Section 100 of the Employment Rights Act 1996, a Health & Safety reason; and was therefore automatically unfair.  Alternatively, if his dismissal was for a potentially fair reason, the Respondent contended that the reason related to his conduct, then it was unfair under the reasonableness principle contained in Section 98 (4) of the Act.

6.	The Employment Tribunal found, in terms (reasons, paragraphs 17 and 19) that the burden lay on the Appellant to prove on the balance of probabilities that his dismissal was on Health & Safety grounds and that he had failed to discharge that burden of proof.

7.	They went on to find that the principal reason for dismissal was the Appellant’s refusal to obey instructions.  That was a potentially fair reason for dismissal, relating to his conduct.

8.	They further found that the Respondent’s belief in his misconduct was based on reasonable grounds.  The matter had been properly investigated.  There was a fair disciplinary process.  Dismissal fell within the band of reasonable responses open to the employer.  The dismissal was fair.  Further, the Appellant’s wilful refusal to obey the Respondent’s reasonable instruction constituted gross misconduct justifying summary dismissal without pay in lieu of notice at Common Law.

9.	In these circumstances the complaint was dismissed.

10.	In this appeal the Appellant has raised a number of matters in relation to the conduct of the proceedings by the Chairman and further complaints based on the European Convention on Human Rights, which is now Schedule 1 to the Human Rights Act 1998.
11.	So far as the complaints about the conduct of the proceedings before the Employment Tribunal are concerned, set out in the Appellant’s affidavit sworn on 9 March 2001, we can see nothing of substance in those complaints.  For example, the suggestion that because the Respondent’s party was ushered into the Tribunal room before the Applicant, is hardly a ground for complaint before this Appeal Tribunal.

12.	Similarly we are unimpressed by the arguments raised under the Human Rights Act 1998, with one exception.  Under Article 6 the Appellant is entitled to a fair trial and that necessarily includes a determination of his case according to domestic law.

13.	It seems to us clear from the Court of Appeal judgments in Maund v Penwith District Council [1984] ICR 143, explaining the majority judgments of the Court in the earlier case of Smith v Hayle Town Council [1978] ICR 996, that whereas the onus of proof lies on an Appellant to show an inadmissible reason for dismissal where he does not have the necessary qualifying period of service for unfair dismissal protection, in this case he has completed the qualifying period, thus the onus lies on the employer to show the reason/principal reason for dismissal in the ordinary way.

14.	To this extent it is arguable that the Tribunal misdirected themselves as to the burden of proving the Health & Safety reason raised by the Appellant below in the course of their determination.  On this point alone we shall allow the matter to proceed to a full hearing with both parties present.  We emphasise that it is solely on this point; no other grounds will be permitted to be argued on the next occasion.

15.	For that purpose we shall list the case for two hours, Category C.  There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing.  Copies of those skeleton arguments to be lodged with this Tribunal at the same time.