Appeal No.	 EAT/878/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 January 2001

Before
HIS HONOUR JUDGE PETER CLARK
MRS J M MATTHIAS
MR N D WILLIS

KEITH LANAHAN	APPELLANT

CARDIFF COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS M TETHER 
(Of Counsel)
Instructed by
Messrs Leo Abse & Cohen
Solicitors
40 Cardiff Way
Cardiff
CF10 2SS	

JUDGE PETER CLARK

1.	The Appellant Mr Keith Lanahan was employed by the Respondent as a day service worker in their Social Services Department from August 1991 until his summary dismissal in March 1999.  His work involved delivering support to people with learning difficulties.

2.	In January 1998 the Appellant was arrested on charges relating to sexual abuse of a very young blood relative, L, then aged 5 years.  The resulting prosecution was abandoned, following a hearing as to the admissibility of certain medical evidence held at the Cardiff Crown Court on 7 September 1998.  The Appellant was discharged.

3.	On the same day he was interviewed by Mr Kevin Barker, Principal Social Services Officer and Pam Brice from Personnel.  Having made further enquiries Mr Barker produced a report dated 19 October 1998 in which he concluded that he was strongly of the opinion that it was reasonable to suspect that the Appellant had abused L.

4.	Thereafter a disciplinary hearing was convened before Jo Vidion, then Assistant Director of Social Services.  The hearing took place on 11 February and 4 March 1999.  The Appellant was represented by Mr Faber of his trade union, Unison.  For the reasons particularly set out by Ms Vidion at paragraph 24 of her witness statement, accepted by the Cardiff Employment Tribunal which subsequently heard his complaint of Unfair Dismissal on 1 March 2000, Ms Vidion recommended the Appellant’s dismissal.  That recommendation was accepted by the Director of Social Services, who summarily dismissed the Appellant by a letter dated 12 March 1999.  A subsequent internal appeal against that decision was rejected by the Disciplinary Appeals Committee on 3 September 1999.

5.	In a reserved decision promulgated with extended reasons on 2 June 2000 the Cardiff Employment Tribunal found that the reason for the Appellant’s dismissal was some other substantial reason, namely that the Respondent Council felt that he had probably abused a member of his family and that accordingly the necessary trust and confidence previously existing between employer and employee had been destroyed.  The Employment Tribunal went on to find that the Respondent had acted reasonably in treating that reason as a sufficient reason for dismissal.  In particular they found:

	(a)	that the Respondent carried out a reasonable investigation

(b)	that the Respondent acted reasonably in refusing to allow the Appellant’s representative a general trawl through confidential family files

(c)	that Ms Vidion, for the reasons which she gave in evidence, had reasonable grounds for the belief that the Appellant had abused L

	(d)	that the internal disciplinary proceedings were properly conducted

(e)	that although the Respondent considered the possibility of the Appellant’s redeployment to other duties, for example working in the Cleansing department, they were entitled to conclude that it would not be appropriate to employ the Appellant in any capacity since it could not be guaranteed that in any alternative work he would not have access to vulnerable people.

6.	Accordingly his complaint was dismissed.

7.	Against that decision the Appellant now appeals.  In support of the appeal Ms Tether takes essentially 2 points, set out in an Amended Notice of Appeal.  We having given permission to amend in those terms.  The first point relates to the procedural fairness or otherwise adopted by the Council at the end of their internal disciplinary investigation and proceedings.

8.	Ms Tether makes the point that information contained in the confidential family files was not made available not simply to the Appellant but also to Ms Vidion who was charged with making a decision as to his continued employment.  She submits that no reasonable Employment Tribunal could have concluded that the level of access to documents for both employer and employee in this case was such as to allow of a finding that the employer carried out a reasonable investigation.

9.	She also draws attention to the fact that during the course of the disciplinary hearing before Ms Vidion the Appellant and his representative were excluded from certain closed sessions when witnesses called before Ms Vidion declined to answer certain questions in their presence.

10.	This is a particularly difficult and sensitive case for an employer to deal with.  We remind ourselves, as did this employer, that the question is not whether the employee’s guilt, in this case abuse of a child, is made out.  That is a matter for the criminal courts.  Secondly, although it is the Council itself whose Social Services Department hold the files, we fully understand the sensitivity of those documents that is exemplified by the procedure used in the criminal proceedings.  We see from the transcript of the hearing before the Judge at the Cardiff Crown Court that he had had access to those files in order to rule, if it arose, on the defendant’s application for access to those documents.  In the event it did not arise but at the hearing at the end of which the Appellant was discharged we see that prosecuting Counsel had not had access to those files only, the Crown Court Judge.

11.	In these circumstance we think that it was open to the Respondent to decline to go further into the files but more to the point it was open to the Employment Tribunal to conclude that the employer acted reasonably in the investigation which was carried out into this matter by particular reference to access to the documentation.

12.	We remind ourselves also that the question in this appeal is not whether we would have taken the same view as the Employment Tribunal but whether their view can be properly characterised as perverse in the legal sense.  In short we have concluded that it cannot.

13.	The second principal ground of appeal relates to the Tribunal’s finding expressed at paragraph 27 of their extended reasons in relation to the question of redeployment.  We have carefully considered the way in which the matter was put first by Ms Vidion in evidence to the Tribunal and secondly the Tribunal’s acceptance that the employer had reasonable grounds for not redeploying the Appellant to other duties within the Council.

14.	Again, the submission is made that the Tribunal’s finding is one that can be properly described as perverse.  We have considered that submission carefully but our view is that the Tribunal was entitled to reach the view that it did express in paragraph 27 of its reasons.

15.	It follows in these circumstances that we can see no arguable ground of appeal to proceed to a full appeal hearing and consequently the appeal must be dismissed at this preliminary hearing stage.