Appeal No.	 EAT/19/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 May 2001

Before
THE HONOURABLE MR JUSTICE CHARLES
MR A E R MANNERS
MR S M SPRINGER MBE

MISS J A MILLER	APPELLANT

(1)	ESSEX COUNTY COUNCIL 
(2)	MELBOURNE PARK PRIMARY SCHOOL	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR JAMES LADDIE
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

MR JUSTICE CHARLES:	

1	We have before us an appeal by way of preliminary hearing.  Our function is to determine whether or not the appeal raises points of law that are reasonably arguable, it being well known that our jurisdiction is limited to correcting points of law, not issues of fact.

2	The Appellant is a Miss Miller and she appeals against a decision of an Employment Tribunal sitting at Stratford.  The Extended Reasons for that decision were sent to the parties on 15 November 2000.  The decision of the Tribunal was that (1) she was dismissed for a reason relating to her conduct, and (2) the dismissal was fair.

3	That hearing took place over two days.  Both sides were represented before the Employment Tribunal by Counsel.  Miss Miller had the benefit today of representation by different Counsel, through the ELAAS Scheme.  He, on Miss Miller’s behalf, has abandoned the existing grounds of appeal save for the opening phrase that “The Tribunal were wrong in law”.  The reasons he then gives for that assertion are different.  The reasons he gives are put at the beginning of the skeleton argument he helpfully prepared and are as follows:

“(a)		That the Tribunal failed to give proper consideration to whether the Respondents reasonably believed in the Appellant’s misconduct
(b)		That the Tribunal adopted an erroneous approach to the question of whether dismissal was a reasonable sanction.”

4	At this stage and thus on the information before us we have been persuaded that those grounds do raise points that are reasonably arguable.

5	 The starting point for, as we see it, both heads of those arguments is paragraph 2 of the Extended Reasons, which reads as follows:

“The issues for the Tribunal were whether the Respondents had a genuine belief in the conduct, whether they held a reasonable investigation and followed a fair procedure.  The main issue, as was agreed between the parties in this case, was whether the sanction of dismissal was one which was reasonable in all the circumstances.”

6	By reference to British Home Stores v Burchell [1980] ICR 303 and a case called Linford Cash & Carry v Thomson [1989] IRLR 235, it was argued by Counsel for the Appellant that the issue for the Employment Tribunal is not their own views on the fairness of the dismissal based on the evidence before them of the relevant participants but an assessment of the decision-making process and the procedure carried out by the employer.  Therefrom it was argued that : 
(a)	the focus of the Employment Tribunal’s attention in deciding both issues referred to in the new grounds of appeal should have been on the content of the evidence before the two committees (the investigating committee that made the decision to dismiss and then the appeal committee which upheld that decision to dismiss), and
(b)	the Employment Tribunal erred in law by failing to do that and focusing on the evidence as to the events relating to the Applicant’s absence that was before the Employment Tribunal and reaching their own conclusions thereon.
It seems to us that this line of argument gives rise to reasonably arguable points of law on this appeal.  

7	As to the second head of the appeal there were separate arguments put by reference to paragraph 10 of the Extended Reasons which we have to say did not impress us as points on a free-standing basis that were reasonably arguable. However, it seems to us that having identified a line of argument that is reasonably arguable in respect of both the grounds of appeal now advanced we need say no more about those further arguments at this stage.

8	A point that has troubled us is that, although we have accepted on the information before us that the above mentioned line of argument, namely and in short that the Employment Tribunal did not focus their attention on the information that was before the employers, raises points of law that are reasonably arguable, it seems to us that the situation may well arise in this case, in particular when Notes of Evidence of those who sat on the relevant committees is available to this Tribunal when it can be seen that the extent of that information and thus that aspect of the case is entirely obvious.  This flows from the propositions that the Employment Tribunal found that (a) the belief of the employer was a genuine one and (b) the investigating procedure was a fair one.  If one can see from evidence that was before the Employment Tribunal that the overall content of the rival contentions before the investigating bodies of the employer and before the Employment Tribunal had a considerable overlap, it seems to us that there would then be an argument (and to our minds at present a strong argument) that it was clear that the employers had a reasonable basis for the conclusions that they reached.  That would be a matter that Miss Miller, and anyone advising her, would have to consider as and when the relevant notes are obtained in deciding whether or not this appeal should be continued.

9	What we will therefore do is to give permission for leave to amend the Notice of Appeal by striking out the words that exist in it at present beginning with “in allowing the Respondent and not allowing the Applicant to adduce evidence as to matters arising before and after dismissal” and substituting the words 

(a)	the Tribunal failed to give proper consideration to whether the Respondents reasonably believed in the Appellant’s misconduct and 

(b)	the Tribunal adopted an erroneous approach to the question whether dismissal was a reasonable sanction.

10	As the Respondents are not here we will give them express leave to apply to vary or discharge that leave to amend.  If they wish to make any such application they could do so by way of an interlocutory application but we would not encourage them to do so.  It seems to us that the appropriate time for any such application would be as a preliminary point on the full hearing of the appeal.

11	I should make it clear at this stage that, although we have expressed our view as to what we regard as subsidiary arguments in respect of ground (b), we are not making a decision on them today and it is open to the Appellant to advance those arguments (and such others as she is advised are appropriate) in support of the grounds set out in the skeleton argument put in by Counsel today.

12	We direct that the Chairman of the Employment Tribunal be invited to provide her notes of all the evidence of all the witnesses and her notes of the submissions made.  I think that that request should be accompanied by an indication that the issue that is of primary concern to us is the evidence relating to what happened before the two committees and therefore if the Chairman in producing the notes can say that a great tranche of evidence or submission had nothing to do with that, then that tranche can be left out if that would make the provision of the  notes easier.

13	We give this appeal Category C and a time estimate of a day.