Appeal No. UKEAT/0883/04/DM

 
EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 28 June 2005

 
Before
HIS HONOUR JUDGE REID QC
MR B BEYNON
MR P A L PARKER CBE

 
 
MR D KAWOL	APPELLANT

 
CARING HOMES LTD	RESPONDENT

 
Transcript of Proceedings
 
JUDGMENT

 

	APPEARANCES

 

 

 
 
For the Appellant 

 

 
 	MR ADAM TOLLEY
(of Counsel)
Appearing Under the Bar Pro Bono Unit
 	
For the Respondent 	MR TOBY KEMPSTER
(of Counsel)
Messrs Quantrills 
Solicitors
The Peninsula Business Centre
Wherstead
Ipswich IP9 2BB	

SUMMARY
 
Unfair Dismissal - Reason for Dismissal
 
Appellant failed to disclose a conviction which he should have disclosed on applying for a job as a nurse.  When the fact of the conviction was discovered, he was dismissed.  Argued before Employment Tribunal that dismissal was unfair.  Question: did the employer dismiss because of (a) his failure to disclose (undermining trust and confidence) or (b) mistaken belief that a person with such a conviction could be not be employed as a nurse.  Employment Tribunal’s decision said to be muddled and to have confused (a) and (b).  Held: ET held, correctly, that dismissal was for (a) and was entitled to make 100% deduction even though the dismissal was conceded to be procedurally fair. Appeal dismissed.  

HIS HONOUR JUDGE REID QC
 
1.                  This is an appeal from a Decision of an Employment Tribunal held at Southampton on 1 and 2 April last year.  By their Decision, the Tribunal refused leave to amend the application to add a claim under the Race Discrimination Act 1976, held that the Applicant, Mr Kawol, who is the Appellant here, was unfairly dismissed as was conceded by the Respondent whose name is Caring Homes Limited but then went on to find that Mr Kawol had contributed 100% to his dismissal and on that basis, no compensatory award should be made.  They then went on to deal with certain other contractual payments to which Mr Kawol was entitled.  
 
2.                  This appeal centres on the 100% deduction.  What is said, put in very short form, is that the Tribunal misdirected itself because the Tribunal took the view or may have taken the view that the result of Mr Kawol’s having a conviction for assault meant that it was inevitable that he would be dismissed and that therefore there was no basis on which his employment would be retained.  It was said that the Tribunal went off after a red herring because it took the inevitable dismissal as justifying the 100% deduction, when what it should have been looking at was the separate question whether it was inevitable he had been dismissed for his failure to disclose the conviction and should then have gone on to consider whether there was, in the circumstances, a likelihood that he would be dismissed or not employed because of the conviction itself.  
 
3.                  The factual background can be taken in very short terms.  Mr Kawol was employed as a nurse.  He was therefore employed in a profession which is exempt from the provisions of the Rehabilitation of Offenders Act.  He was asked, in the form that he had to fill in, whether he had any convictions.  He did not disclose the conviction that he had for assault occasioning actual bodily harm.  The employer did not initially take up a criminal record search, but when a new manager was appointed, she went through the files and made good the deficiencies of her predecessor by taking up a variety of references and criminal record searches which, she discovered from the file, appeared not to have been done in respect of the employees.  One such reference she took up was in respect of Mr Kawol.  She conducted a criminal record search and the conviction came to light.  Mr Kawol was then subject to disciplinary proceedings which, it accepted, were unfair because of the lack of preliminary investigation.  It is no concern of ours as to whether or not that concession was right or wrong.  Following that hearing, he was dismissed.  That dismissal was upheld by an appeal hearing conducted by Ms Fish.  
 
4.                  The grounds on which it was asserted by the Respondents that Mr Kawol was dismissed were non-disclosure as opposed to the act of the conviction.  When the matter came before Mr Justice Rimer on a preliminary hearing (at which a very substantial number of points made by Mr Kawol were knocked out) Mr Justice Rimer thought there was one point which deserved further hearing as a result of which, via a further preliminary hearing, the case has come to us.  The essence of what he thought was the arguable point is expressed in paragraphs 22 and 23 of his judgment.  He says at page 12(A) of the judgment:
 “What concerns me is that, so far as appears from the tribunal's somewhat superficial reasons, the reason that CHL dismissed Mr Kawol is because they considered that:
"The regulations are so framed that persons who have such a conviction could not be employed and would not be expected to be given employment by an employer."
(see paragraph 39 of the reasons and paragraph 5 of the Chairman’s reasons for refusing a review).”
 
A little further down, he went on:
“I can of course readily understand that the disclosure of certain types of offence will make the job applicant unsuitable for the job in question and also that the belated discovery by the employer of a prior conviction may similarly cause the employer to conclude (and quite properly) that he has no choice but to dismiss the employee. But it seems to me that in both situations what the employer has to do is to assess the particular offence and its circumstances and consider whether, despite it, he can safely give the applicant a job; or whether, despite its non-disclosure, he can safely in all the circumstances retain the applicant in the job!”
 
Then at the end of paragraph 23, page 13(B) of his judgment:
 
“What, however, concerns me about the decision in the present case is that it looks from the tribunal’s reasons, in particular the two paragraphs to which I have just referred, that CHL’s reason for dismissing Mr Kawol was in effect because “the regulations” required it to do so, i.e. that once the prior conviction had become known CHL had no choice in the matter”.
 
5.                  The passages to which the learned judge referred were at paragraph 39, page 6 of the Decision where the Tribunal recorded as follows:
 “Mrs Dixon” [that is the manageress who made the dismissal decision] “made it quite clear and especially under cross-examination by the Applicant that the reason she had dismissed the Applicant was because of his non-disclosure of this criminal offence.  She was asked what would have happened if the Applicant had in fact told her before the disciplinary hearing was convened that he had failed to disclose the conviction because he had forgotten int.  She informed the Tribunal that she did not think it would have necessarily made any difference at all to his dismissal on the basis that the regulations are so framed that persons who have such a conviction could not be employed and would not be expected to be given employment by an employer”.  
 
The sentence in paragraph 5 of the review decision is this:  
“The Tribunal found the Respondents were bound to comply with the statutory requirements”.  
 
Quite what the statutory requirements were that they were bound to comply with does not seem to be clear.  That sentence comes at the end of a paragraph which refers to a passage in the letter requesting the review.
“The Applicant suggests the reason for summary dismissal was because “I have a past conviction””
 
and then continues:
“Paragraph 46 of the Extended Reasons sets out that the Respondents had no alternative but to dismiss the Applicant for non-disclosure and further that non-disclosure, in any event, had created a breach of implied trust and confidence.  It was the not past conviction that the Applicant was dismissed for, but his failure to set out, in the Extended Reasons, for not disclosing that conviction.  
“Paragraph 43 sets out that under the statutory provision in respect of the Rehabilitation of the Offenders Act 1974 (Exemptions) Order 1975, Schedule 1, the Applicant fell within the list of persons who had a conviction who would be unable to show that those convictions were spent”.  
 
6.                  Those passages to which the leaned judge referred are only a small part of the overall picture.  Mrs Dixon’s evidence to the Tribunal was as follows:
“In my mind, we were dismissing the Applicant as he had failed to disclose the previous criminal conviction of assault occasioning actual bodily harm.  In effect, I felt he had lied to us, both on his original application form and on the CRB application form.  Had he voluntarily disclosed the conviction, his employment may have continued but the mere fact that he had not disclosed his conviction was interpreted by me as a serious omission which justified his dismissal.  How could I trust him to run the night shift as unit manager knowing he had lied on his application form?  I was concerned that he had not been honest”.
 
On the appeal, Mrs Fish’s evidence was:
 
“8.	The Applicant was dismissed because he had failed to disclose a previous criminal conviction when he was under an obligation to do so.  He was not dismissed because of his previous convictions.  It is possible that had he not tried to hide his conviction, his employment may well have continued.  The important aspect of this case, from my perspective, was that he failed to voluntarily disclose his conviction.  It is this fact which destroyed the trust and confidence in him.  He was after all a unit manager working largely unsupervised at night and with responsibility for junior staff working under him”.  
 
7.                  It is to be noted that the latter part of paragraph 39 to which I have referred is put in hypothetical terms and has, we think, to be read in the light of what was also said in the evidence in chief.  What the Tribunal said in its conclusion is further grist to the Respondent’s mill.  At paragraph 52, the Tribunal said this:
 
“52.	However, the Tribunal had unanimously come to the conclusion that in this particular case, bearing in mind Statutory Regulations moreover under the Rehabilitation of Offenders Act, the way in which the application was completed by the Applicant when he joined the original owners of the business and the bold writing which would draw to his attention and he agreed he had read was a clear indication that the Applicant had failed to make any disclosure whatsoever.
53.                 In those circumstances we can understand the Respondents’ submissions that they would have no alternative but to dismiss in the circumstances and further we accept the evidence of Mrs Dixon that even had the Applicant come to see her before the actual disciplinary hearing and confessed and held his hands up to not having disclosed his conviction it would have made no difference in this case.
54.                 The Respondents had to consider the situation they were in as owners and operators of such a business, the care that is required in the staff they choose, and existing staff.
55.                 In those circumstances, we do not consider that Polkey would have made any difference to this case. We have further considered the question of the Applicant's conduct in regard to the lead up to the dismissal and what happened at the disciplinary hearing. We accept the submission of the Respondents solicitor that in this case the Applicant was the master of his own destiny and in those circumstances we unanimously find that there was 100% contribution by the Applicant and in those circumstances he should receive no basic award and no compensatory award”.
 
8.                  It seems to us that when one looks at the findings in the light of the totality of the evidence which was before the Tribunal, what they were doing was not making a finding as might appear from the unfortunate last sentence in paragraph 5 in the review letter that there was any requirement that Mr Kawol had to be dismissed because he had a conviction, but they were accepting that he was dismissed, not for the conviction, but because of the breach of trust and confidence.  That is the evidence of Mrs Dixon which was accepted and it is evident from what is said in paragraph 53 that the Tribunal held that the result of the non-disclosure entitled Mrs Dixon and, on appeal, Mrs Fish, to take the view that the breach of trust and confidence was such that they could no longer keep Mr Kawol in their employment.  This was the decision which was not based on any error of law nor based on any misinterpretation of the Rehabilitation of Offenders Act.  
 
9.                  It is unfortunate that the Chairman, in what appears to be an unguarded moment in dealing with the review, put in the sentence at the end of paragraph 5 of the review decision, to which I have referred.  That cannot, it seems to us, affect the clear and proper interpretation of the decision taken as a whole in the light of the evidence to part of which I have referred.  
 
10.              I should add, since we were referred to it, there was considerable reference in the hearing before us to a page from the notes of the disciplinary hearing which, had the point been accepted by the Tribunal, might have been of some assistance to Mr Kawol.  It is not clear what, if any, part those notes played before the Employment Tribunal and it is now too late to try and re-run this case on fresh evidence or a fresh interpretation of matters which evidently form no part of the consideration to the Employment Tribunal.  
 
11.              In these circumstances, well though Mr Tolley has made the points that could be made on behalf of Mr Kawol, we take the view that the decision of the Tribunal does not display any error of law and the appeal should therefore be dismissed.