Appeal No.	 EAT/209/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	                On 21 June 2002
Judgment delivered on 10 October 2002

Before
MS RECORDER COX QC
MS J DRAKE
MR D J HODGKINS CB

MR M J POVEY	APPELLANT

DORSET COUNTY COUNCIL	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	Mr POVEY
The Appellant in person	
For the Respondent	MR DOUGHTY 
(of Counsel)
Instructed by:
Mr D L Menaldino
Principal Solicitor
Dorset County Council
Legal Services Dept
County Hall
Colliton Park
Dorchester DT1 1XJ	

MS RECORDER COX QC

1	By a Decision promulgated on 22 December 2002, an Employment Tribunal sitting at Southampton unanimously dismissed the Appellant’s complaint of unfair dismissal. The Appellant appeals against that decision and contends that the Tribunal erred in law in relation to his complaint that he was dismissed for an inadmissible reason (bringing health and safety issues to his employer’s attention), rendering his dismissal automatically unfair.  In particular he contends that the Tribunal misdirected itself as to the burden of proving an inadmissible reason for dismissal. The Respondents accept that the Tribunal did misdirect itself as to the burden of proof in this case.  They maintain, nevertheless, that the evidence and the findings of fact in the Decision are such that the same conclusion would have been arrived at despite this error.  In those circumstances, it is said, the misdirection was not fatal because the Tribunal would inevitably have come to the same conclusion and the appeal should be dismissed.

2	The issue in this appeal is therefore the extent to which the Tribunal’s misdirection as to the burden of proof renders the Decision unsustainable, having regard to their findings overall.  The Appellant provided us with a skeleton argument and a number of documents, which he wished us to have regard to.  He appeared in person before us, as he had done below, and the Respondents were represented by Peter Doughty of counsel, who also appeared below.  We are grateful to both of them for the assistance they gave us in this appeal.

Background
3	Between September 1984 and 22 October 1999 the Appellant was employed by the Respondents as an Education Welfare Officer.  He reported to Mr. Briden, who managed a team of EWOs covering the west of Dorset.  Mr. Briden’s line manager was Mr. Bowen.  In February 1999 the Appellant was transferred to the Dorchester area.  He pursued a formal grievance in relation to this transfer but the Head of Strategic Services found that there were no grounds to support the grievance.

4	Thereafter problems arose in relation to one of the schools to which the Appellant was assigned in Dorchester, the Thomas Hardye School, about which there was a dispute on the evidence. These problems lay at the heart of this case.  As a result the Appellant was suspended on 27 May 1999, pending further enquiries, and disciplinary proceedings were commenced on 29 July. The charge brought against the Appellant was one of gross misconduct in that, without sufficient cause, he wilfully disobeyed a lawful order.  The initial hearing was postponed because of the Appellant’s ill health.  On 22 October, at the conclusion of the hearing, the charge was upheld.  The Appellant was found guilty of gross misconduct and summarily dismissed.  The Appellant commenced an appeal. 

5	On 23 December 1999, before the internal appeal was heard, the Appellant lodged an Originating Application with the Tribunal, complaining of unfair dismissal.  He subsequently decided not to pursue the internal appeal. Essentially, his complaint alleged, firstly, that he was unfairly dismissed after raising health and safety issues at work, that his dismissal was thus for an inadmissible reason and automatically by virtue of section 100 of the Employment Rights Act 1996.  Alternatively, if his dismissal was for a potentially fair reason, namely misconduct, then it was unfair according to the test of reasonableness under section 98 (4) of that Act.  

6	The Respondents resisted the complaint.  They pleaded that the Appellant was dismissed for gross misconduct, namely his wilful failure to follow clear instructions from his manager, that in the circumstances they were entitled to dismiss him summarily and that the dismissal was fair in all the circumstances.

The Tribunal’s Decision
7	The Tribunal hearing lasted five days.  There was a substantial bundle of documents and the Appellant’s hand-written statement ran to 115 pages.  The Tribunal’s findings of fact are set out at paragraphs 2 – 15 of their Decision.  The material findings were as follows.  On 14 April 1999 Miss Dodman, the Deputy Headteacher at Thomas Hardye School, wrote a letter to Mr. Briden expressing concern at the working relationship which had been established between the Appellant and the School.  At a meeting on 28 April between the Appellant and Mr Briden, after they had discussed the points made by Miss Dodman, the Appellant was expressly instructed not to reply to her himself and told that a meeting between the three of them would be arranged.  Mr. Briden followed this oral instruction up with a written instruction to the same effect.    

8	On 6 May Mr. Briden discovered from typing section that the Appellant had written a letter to Miss Dodman.  This letter was returned to the Appellant and Mr. Briden repeated the instruction that he was not to write to her himself.  On 7 May the Appellant wrote directly to Dr. Melvin, the School’s Headteacher and copied it to Mr. Briden.  The Tribunal found (paragraph 5) that:
“Although not directly in contravention of the specific instruction Mr. Briden had given to the applicant, the letter was in breach of its spirit and intent.”  

9	There followed a letter from Dr. Melvin, complaining to Mr. Briden about the Appellant’s performance.  At a meeting with Messrs. Briden and Bowen on 19 May the points raised by Dr. Melvin were discussed.  The Appellant raised concerns about the storage of attendance registers at the school and the Tribunal found that:  
“Mr. Bowen did not consider that the applicant’s concerns amounted to a breach of health and safety for the pupils at the school.”  

On the same day the Appellant wrote to the Chief Fire Officer alleging that the children at the school were being put at risk, allegedly because of the inefficient marking and storage of attendance records.  This letter was copied widely by the Appellant and the recipients included the Chair of Dorset County Council, the Chief Executive, the Director of Education, the Health and Safety Officer, Mr. Born (Mr. Bowen’s line manager), Mr. Bowen and Mr. Briden.  Meanwhile, on 20 May, the meeting took place as arranged between the Appellant, Mr. Briden and Miss Dodman in order to discuss her letter; and a working arrangement was drawn up, which was agreed by all three.

10	Mr. Bowen then received his copy of the letter sent to the Chief Fire Officer.  He wrote to the Appellant instructing him not to write to anyone other than parents for routine appointments without first submitting the letter in draft to Mr. Briden for his approval.  Further, the Tribunal found (paragraph 7) that, after discussing the position with Mr. Born,
“Mr. Bowen wrote to the applicant on 21 May 1999 inviting him to a meeting on 27 May.  He informed him that the meeting would be of a disciplinary nature and the applicant was reminded of his right to bring a friend or Trade Union representative.  He was also informed that he could face suspension from duty.”   

11	At the meeting on 27 May, which Mr. Born chaired, the Tribunal find (paragraph 8) as follows: 

“After outlining his concerns in relation to the applicant’s behaviour, Mr. Bowen was astonished to be handed by the applicant a letter which the applicant had written the previous day to Miss Dodman. It had been written in direct contravention of the instruction that he had been given.  Mr. Born concluded he had no alternative but to suspend the applicant pending further enquiries.  On 28th May, Mr. Born wrote to the applicant confirming his decision to suspend [him]”.

12	After discussing the case with Mr. Briden, Mr. Born decided that the Appellant had a case to answer.  After some procedural issues were raised, which do not concern us, Mr. Born wrote to the Appellant on 23 August informing him that the disciplinary hearing would take place on 20 September and setting out the complaint against him, as follows:
“The complaint against you is one of gross misconduct in that, without sufficient cause, you wilfully disobeyed a lawful order.  The main issue is that you firstly tried to reply to a letter from Miss R. Dodman, Deputy Head Teacher, the Thomas Hardye School, then did reply to her despite being given an instruction not to do so.  Other letters were written which could be seen as an attempt to get round the instruction given and further instructions…..”

13	After a postponement due to the Appellant’s ill health the disciplinary hearing took place on 22 October 1999.  It was conducted by Mr. Ealy, Head of Education.  At paragraphs 11 and 12 the Tribunal find that: 
“….At the conclusion of the management case, the applicant raised a number of procedural issues, but declined to make any response to the allegations made.  He indicated an intention to leave the hearing.  Mr. Ealy explained to the applicant that if he chose to leave, he would be left with no alternative but to make a decision without the benefit of hearing from the applicant.  Mr. Ealy asked the applicant again whether he wished to make any response in his defence and the applicant declined…….
Later that same day, Mr. Ealy wrote to the applicant with his decision following the conclusion of the disciplinary hearing. He reminded the applicant of the allegation against him, namely wilfully disobeying a lawful order without sufficient cause.  His conclusions were as follows:
“I find that you did disobey a lawful order, in that you were instructed by Mr. Briden on 5 May 1999 not to reply to a letter dated 14 April 1999 from Miss R. Dodman, Deputy Head Teacher of the Thomas Hardye School;  you attempted unsuccessfully to reply to the letter in question on 6 May 1999;  you were instructed by Mr. Bowen, your Head of Service on 21 May to send no letters or memoranda to anyone (other than routine letters to parents) until Mr. Briden had approved the text;  and that, without such approval, you nevertheless replied to the original letter from Miss Dodman on 26 May 1999.”

14	The letter went on to inform the Appellant that, having considered the evidence, Mr Ealy had concluded that the Appellant’s actions amounted to gross misconduct within the terms of the disciplinary procedure justifying summary dismissal.  The Appellant requested an appeal and the appeal hearing was fixed for 16 December.  On that date the Appellant raised a number of procedural objections and the matter was adjourned.  The Originating Application was then lodged.  In the event the Appellant, in a letter of 4 February 2000, made it clear that he did not wish to proceed with his internal appeal.

15	At paragraphs 16 and 17 the Tribunal considers the applicable law.  They direct themselves correctly that, in determining whether a dismissal is fair or unfair, it is for the employer to show the reason for the dismissal, or if there is more than one reason, the principal reason, which must be one of the potentially valid reasons in section 98 of the 1996 Act.  They acknowledge that it is part of the Appellant’s case that he was dismissed by the Respondents because he raised health and safety concerns.  They correctly direct themselves that section 100 of the 1996 Act applies to all employees, regardless of their length of service, and provides that, where an employer dismisses an employee for a prohibited health and safety reason, the dismissal is automatically unfair and that the reasonableness of the employer’s action in dismissing is not taken into consideration. 

16	The relevant misdirection appears in paragraph 17, where the Tribunal holds that: 
“Under Section 100 (1) (c) an employee is automatically unfairly dismissed if the reason or principal reason for the dismissal is that he brought to the employer’s attention by reasonable means, circumstances connected with his work which he reasonably believed were harmful or potentially harmful to Health and Safety.  The burden is on the applicant to prove on the balance of probabilities that his dismissal was on Health and Safety grounds.”  

In paragraph 18 the Tribunal then identifies four requirements which need to be satisfied in order for a claim under section 100 (1) (c) to succeed.:  
“….It must be established that, firstly, the employee reasonably believes that circumstances connected with his work were potentially harmful to Health and Safety;  secondly, that it is not reasonably practicable for the employee to raise the matter through a representative or Safety Committee; thirdly, that in the circumstances, the employee has raised the matter by reasonable means;  and fourthly, the fact that the employee has raised the question of Health and Safety is the reason or principal reason for dismissal.”

17	The Tribunal records its conclusions at paragraphs 19 onwards, holding, firstly, that: 
“The onus of proving that his dismissal was on Health and Safety grounds is on the applicant.   He has failed to discharge that burden of proof.  We are not persuaded that the reason for the applicant’s dismissal was connected with matters relating to Health and Safety raised by the applicant.  We are unanimously of the view that the principal reason for the dismissal was the applicant’s refusal to obey instructions.   The reason for his dismissal was conduct, which is a potentially fair reason.”  

In paragraph 20 the Tribunal then proceeds to direct itself, correctly, as to the test for determining whether the employer, having shown a potentially fair reason for the dismissal, has acted reasonably or unreasonably in treating it as a sufficient reason for dismissal, having regard to the provisions contained in section 98 (4) of the 1996 Act.

18	In paragraph 21 the Tribunal records the following conclusions:
“When Mr. Briden showed him the letter from Miss Dodman…..which was critical of the applicant, the applicant wanted to respond to it.  This was a natural reaction.  However, the letter was addressed to Mr. Briden and he specifically instructed the applicant not to write to Miss Dodman.  In wilful defiance of that instruction, the applicant drafted a letter to Miss Dodman and sent it for typing. It was intercepted before it could be sent.  Letters the applicant then wrote to the Headmaster of the school and to the Chief Fire Officer were viewed by the respondent as deliberate attempts by the applicant to circumvent the instruction not to write to Miss Dodman at a time when the applicant knew the matter was being investigated by Mr. Briden.  The supreme act of defiance was the applicant’s letter to Miss Dodman written on 26 May, despite clear instructions to the contrary, and on the eve of the applicant’s attendance at an investigatory interview with Mr. Born.”

19	The Tribunal then addresses the procedural fairness issues and makes no criticisms of the Respondents in this respect.  They describe this as a sad case and comment that, although the Appellant denied that he would benefit from medical advice, in the Respondents’ view he behaved in a way which could be described as obsessional. The Tribunal records its unanimous view that the Respondents’ belief was based on reasonable grounds.  They conclude that the Appellant deliberately acted in defiance of his employer’s instructions, that the matter was properly investigated and that there was a fair disciplinary process.  In these circumstances they find themselves unable to say that no reasonable employer would have dismissed in the circumstances and hold that the dismissal was therefore fair.

The Appeal
20	The Appellant completed his own Notice of Appeal and raised a large number of issues, including complaints about the conduct of the proceedings before the Employment Tribunal and complaints based upon breaches of the European Convention of Human Rights.  At the Preliminary Hearing before this Appeal Tribunal however, on 16 July 2001, it was held that only one point raised a reasonably arguable point of law such as to permit the appeal to go forward for a full hearing.  This was identified as the misdirection by the Tribunal as to the burden of proving the health and safety reason for his dismissal, raised by the Appellant below.  Consequently it was ordered that the appeal should proceed on that point alone and on no other point.  To that issue we now turn.

The Law
21	In his skeleton argument and at the hearing before us Mr. Doughty conceded, on behalf of the Respondents, that the Tribunal erred in directing themselves that the burden of proving dismissal for a health and safety reason lay upon the Appellant.  He accepts therefore that there is an error of law in paragraph 17 and that the approach adopted in paragraph 19 to the burden of proof is also erroneous.  This concession was properly made.  It is well established that, at the stage of determining the reason for the dismissal, the burden of proof is on the employer.  Section 98 (1) of the Employment Rights Act 1996 provides:
“(1)  In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.”

22	The burden remains on an employer even where the employee alleges that the dismissal was automatically unfair.  The burden is not on an employee to prove such a reason.  In the case of Maund v Penwith District Council [1984] IRLR 24, an employee was dismissed for redundancy but alleged that the real reason for the dismissal was his trade union activities.  The employment tribunal held that it was for the employee to establish this but both the EAT and the Court of Appeal disagreed. The Court of Appeal held that the burden of proof remained at all times on the employer and, if he fails to discharge that burden, the dismissal is inevitably unfair.  Where the employer relies upon a reason for dismissal which is challenged by the employee, it was held (see the judgment of Lord Justice Griffiths (paragraph 11) ) that the position is as follows:

“If an employer produces evidence to the Tribunal that appears to show that the reason for the dismissal is redundancy……then the burden passes to the employee to show that there is a real issue as to whether that was the true reason.  The employee cannot do this by merely asserting in argument that it was not the true reason;  an evidential burden rests upon him to produce some evidence that casts doubt upon the employer’s reason. …..But this burden is a lighter burden than the legal burden placed upon the employer; it is not for the employee to prove the reason for his dismissal, but merely to produce evidence sufficient to raise the issue or, to put it another way, that raises some doubt about the reason for the dismissal.  Once this evidential burden is discharged, the onus remains upon the employer to prove the reason for the dismissal.”

23	The only exception to this, as was recognised in the Maund case, is where the employee does not have sufficient qualifying period to claim unfair dismissal.  In such a case the employee has to establish that the tribunal has jurisdiction to hear his claim.  He can only do that if he can show that the reason for dismissal is an automatically unfair reason where no qualifying period is required.  Thus, where the reason has to be established in order to confer jurisdiction upon the tribunal the burden of proof is on the employee. However, in the present case, the Appellant had many years service and the burden of proof remained on his employers throughout.  The Tribunal therefore misdirected themselves in paragraphs 17 and 19 in holding that the Appellant had the burden of proving that his dismissal was for a health and safety reason.

24	What then is the effect of this misdirection?  Mr. Doughty submits that the Decision should still stand, because the evidence and findings were such that the Tribunal would inevitably have arrived at the same conclusion even if they had directed themselves correctly.  He relies upon dicta in support of such an approach in the Maund case.  At paragraph 27 Lord Justice Griffiths observed as follows:

“We are therefore faced with the fact that the Tribunal misdirected themselves on the burden of proof. This would not necessarily be fatal if the evidence was such that they would inevitably have arrived at the same conclusion even if they had directed themselves correctly.  In such a case it would be a waste of time and money to send the decision back for reconsideration by the Tribunal.  We have been urged by Mr. Buxton that this is such a case.  He points out that the Tribunal found that only two councillors were shown to have had personal antagonism towards Mr. Maund, and that….the Tribunal were entitled to regard such evidence as wholly insufficient to establish the reason in the minds of those two councillors as the principal reason for the dismissal.  
For a time I was much impressed by the argument that it would be a waste of time to send this case back.  But when there is an error of law on the burden of proof it requires a very strong case to say that it can have had no effect on the decision.  There was evidence, albeit apparently not very impressive, from two other councillors of an impression that other councillors voted to get rid of Mr. Maund because of incompetence or his trade union activity.  Furthermore the Tribunal itself said, at paragraph 16:
‘We have found the case one of great difficulty and we are anxious to make clear that we have considered all the evidence which was put before us over two days.’
I have accordingly come to the conclusion that it would not be safe to let this decision stand without reconsideration by the Tribunal and that it must be remitted to the Tribunal for further consideration.”

Lord Justice Purchas and Lord Justice Stephenson agreed that the case should be remitted to the Tribunal for further consideration

25	We considered most carefully the submissions on this issue.  We accept Mr. Doughty’s submission that the findings of fact set out at paragraphs 2 – 15 by this Tribunal are directed almost entirely towards the Appellant’s disobedience of his employer’s express instructions; and that there are very limited findings that the matter had anything to do with the Appellant raising health and safety issues.  This is supported by the Tribunal’s clear and unanimous finding in paragraph 19 that the principal reason for the dismissal was the appellant’s refusal to obey instructions, which was a matter of conduct and therefore a potentially fair reason.

26	However, the key findings in our view are those contained in paragraph 21 of the Decision.  They there set out the findings which they regard as supporting the decision that the reason for dismissal was conduct.  All of them relate to the letters sent by the Appellant to Miss Dodman, Dr. Melvin and others in wilful defiance of the employer’s instruction that he was not to write such letters. The Tribunal identified the “….supreme act of defiance” as the Appellant’s letter to Miss Dodman written on 26 May 1999, the day before the investigatory meeting with Mr. Born, and despite clear instructions to the contrary.  Mr. Doughty submits, and we accept, that on the evidence, it was that letter which ultimately led to the Appellant’s dismissal.  The Appellant provided us with a bundle of documents for the appeal, which we had regard to and which contained that letter.  It is a lengthy letter, running to some six pages.  It deals with many different issues concerning Miss Dodson and her working relationship with the Appellant and only on page 5 does he make any reference to his concerns about the inaccuracies in school attendance registers and the health and safety issues arising from the lack of accurate information.

27	We are all of the view that the members of this Tribunal were in no doubt as to the reason for the appellant’s dismissal, that their findings were clear and unequivocal and that this case falls within the category of the “very strong case”, referred to in the Maund case.  There is no doubt that the Appellant did raise some health and safety concerns, as appears from paragraph 6 of the Tribunal’s Decision.  However, no such matters were raised at the disciplinary hearing, when the Appellant chose not to respond to the charges before the decision-maker.  Nor did he pursue the internal appeal.  He was therefore trying to contest a decision he had played little or no part in.  The Tribunal, having heard all the evidence, was in no doubt that the principal reason for the dismissal was his refusal to obey his employer’s instructions.  This was not a case where they observed that they had found it a difficult decision to make or gave any indication that they entertained any doubts about the reason or about conflicting evidence adduced before them.  

28	We did spend some time considering paragraph 18 of the Decision and the failure of the Tribunal to consider, in turn, the four requirements they referred to as needing to be satisfied in order for a claim under section 100 (1) (c) to succeed.  However it appeared to us, reading the Decision as a whole, that the Tribunal in fact went straight to the fourth requirement and answered it comprehensively against the Appellant, namely that the reason or principal reason for dismissal was not the fact that the Appellant had raised the question of health and safety.  Having found the principal reason to be conduct there was then no necessity for them to give further consideration to the other requirements under section 100.      

29	The Appellant spent some time before us dealing with the health and safety issues, which he maintains he attempted to raise with his employers and led to his dismissal.  He complains that the Tribunal did not listen to him and that they simply repeat the Respondents’ reasons in their Decision.   We recognise that he considers their decision to be an erroneous one and disagrees fundamentally with it.  We bear in mind however that this was a five day hearing, during which the Tribunal heard a great deal of evidence and were in a better position than we are to decide which evidence they accepted and which they did not.  We consider that they were in no doubt in this case as to the principal reason for the Appellant’s dismissal.

30	Despite the misdirection as to the burden of proof in this case we therefore conclude that it had no effect on the decision and that this is one of those truly exceptional cases when we can find that it made no difference to the outcome.  We are unanimously of the view that the Tribunal would inevitably have arrived at the same decision, even if they had directed themselves correctly.  The decision should therefore stand and this appeal must be dismissed.