Appeal No. UKEAT/0351/07/ZT

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 December 2007

Before
HIS HONOUR JUDGE PETER CLARK
MRS D EVANS CBE
MRS M McARTHUR BA FCIPD

PETER ADELUSI	APPELLANT

H M PRISON SERVICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	Mr Paul Onifade
(Solicitor)
Crowther Solicitors
42 Greville Street
London  EC1N 8SB	
For the Respondent	Miss D Rhee
(of Counsel)
Instructed by the Treasury Solicitors
One Kemble Street
London WC2B 4TS	

SUMMARY
Unfair dismissal – Reasonableness of dismissal
Practice and Procedure – Perversity
Alleged assault by prison officer on prisoner.  Dismissal for misconduct.  Fairness under Burchell.  Whether ET decision perverse.  Held: It was not.

HIS HONOUR JUDGE PETER CLARK 

1.	This is an Appeal by Mr Adelusi the Claimant before the London Central Employment Review against the Judgement of a Tribunal chaired by Mr G Solomons promulgated with reasons on 2 April 2007 dismissing his complaints of unfair dismissal and direct race discrimination brought against his former employer, the respondent H M Prison Service.  Although the appeal is directed to both complaints the grounds of appeal and Skeleton arguments lodged on behalf of the Claimant take no point on the discrimination claim.  Mr Onifade confirmed this to us this morning.  Accordingly our focus is on the Tribunal’s finding that the Claimant’s dismissal was fair.

Background
2.	The facts relating to the claim of unfair dismissal as found by the Tribunal may be summarised as follows.

3.	The Claimant commenced employment with the Respondent as a prison officer in 1994.  In February 2004 he was promoted to senior officer.  On 19 May 2004 he was working on C Wing at HM Prison Pentonville when an incident occurred between the Claimant and a prisoner whom we shall call M.  Following that incident a prison officer, Mr Millard, reported that he had witnessed the Claimant assaulting a prisoner.  As a result a preliminary fact-finding investigation was carried out.  Following that investigation’s report the Claimant was suspended on full pay on 28 May 2004 and a formal investigation then commenced.   That led to a report which concluded that the Claimant had assaulted a prisoner and recommended that disciplinary charges be brought.  The Claimant throughout denied any wrongdoing on his part.  A disciplinary hearing before Governor Davies on the 14 December 2004 resulted in a finding by Mr Davies that the Claimant had assaulted M by punching and kicking him.  The penalty imposed for that act of gross misconduct was summary dismissal.  The dismissal was suspended pending appeal to Mr Munns, the London Area Manager.  That appeal was heard and dismissed on 21 June 2005 which, it was common ground, was the effective date of termination of the Claimant’s contract of employment.  

The Tribunal Decision
4.	It was common ground that the respondent’s reason for dismissal related to the Claimant’s conduct, a potentially fair reason.  

5.	As to the fairness of the dismissal under Section 98(4) of the Employment Rights Act 1996 the Tribunal applied the well known Burchell test.  They found that Mr Davies believed that the Claimant had committed a serious assault on M and that he had reasonable grounds for that belief.  In particular there was evidence from two prison officers in close proximity at the time, Mr Millard and a Mr Mansfield, that they saw the Claimant punch and kick M in the course of restraining him.

6.	The Respondent carried out a reasonable investigation which included interviewing 16 out of the 18 Prison Officers on duty on the Wing at that time.

7.	The suggestion that the Claimant was treated more harshly than other disciplined officers was rejected; they were not truly comparable cases.  

8.	Dismissal of a prisoner officer for assaulting a prisoner fell within the range of reasonable responses.  In these circumstances the dismissal was fair.  

The Appeal
9.	In advancing the appeal solely on the basis of perversity Mr Onifade places considerable reliance on the EAT decision in A & B [2003] IRLR 405 (Elias J presiding).  In that case the local authority employer received information that the Claimant, a social worker in a residential children’s home, may have had an inappropriate relationship with a 14 year old girl at the home.  Their investigation took a total of two and a half years.  The Claimant was not given site of all witness statements obtained.  Potentially material witnesses were not interviewed due to the passage of time.  The Claimant was dismissed on grounds of gross misconduct, thus preventing him from working in his chosen calling.  An Employment  Tribunal found his dismissal fair.  On appeal that decision was reversed; the EAT observing that serious allegations of criminal misbehaviour when disputed must always be the subject of the most careful and conscientious investigation, particularly where dismissal will seriously damage the prospects for future employment.  Exculpatory, not just incriminatory, evidence must be obtained and considered.  In that case the EAT concluded that it was not permissibly open to the Employment Tribunal to find on all the facts that a reasonable investigation had been carried out.  Particular reference was made to the collection and disclosure of witness evidence and the unjustifiable delay of two and a half years in completing the process.  The Tribunal’s conclusion was legally perverse.  

10.	With that approach in mind we turn to the submissions made on behalf of the appellant in the present case.  We note that A & B was cited to Mr Solomons’ Tribunal.  First it is said that the Tribunal failed to explore the absence of medical evidence that may point to the Claimant’s innocence.  The Tribunal did consider this aspect at paragraph 25 of their Reasons.  They observed that such examination of M as did take place immediately after the event, by an HCO Mr Larner, may have been too early to identify bruising to M; the case which was advanced on behalf of the respondent.  Secondly, so far as investigation is concerned, Mr Onifade refers to four inmates acting as cleaners who the Claimant said might be able to give material evidence.  That point was considered by the Tribunal at para 24.  Thirdly Mr Onifade submits that the delay, seven months in this case, worked injustice to the claimant as was a high turnover of prisoners on the wing.  The Tribunal considered that submission below, again at para 24.

Conclusion
11.	We bear in mind the high hurdle raised in appeals based purely on perversity see Yeboah v Crofton [2002] IRLR 634  A & B was an exceptional case on its facts that passed that threshold.  This case is not in our view and contrary to Mr Onifade’s submission ‘on all fours’ with A&B.  We cannot say that the present appeal passes the perversity test.  Accordingly the appeal fails and is dismissed.