A1/2001/1616

Neutral Citation Number: [2001] EWCA Civ 1760
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

                                  Royal Courts of Justice
                                  Strand
                                  London WC2
 
                             Thursday, 8th November 2001

B e f o r e :

LORD JUSTICE LAWS

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CECILIA NKENGFACK
Claimant

‑ v ‑

LONDON BOROUGH OF SOUTHWARK
Defendant

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(Computer Aided Transcript of the Stenograph Notes of
Smith Bernal Reporting Limited
190 Fleet Street, London EC4A 2AG
Telephone No: 020 7421 4040
Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

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MR W D Panton (instructed by Messrs Akainyah & Co, London N4 2AG) appeared on behalf of the Appellant
The Defendant did not attend and was unrepresented

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J U D G M E N T
Thursday, 8th November 2001
1.	LORD JUSTICE LAWS: This is a renewed application for permission to appeal against a decision of the Employment Appeal Tribunal made on 29th March 2001 when it dismissed the applicant's appeal against the determination of the Employment Tribunal of 7th December 1999, when that tribunal dismissed the applicant's complaints of unfair dismissal and racial and sexual discrimination. The EAT refused permission to appeal to this court. I also refused permission to appeal having considered the matter on the papers only, on 21st September 2001.
2.	The applicant was a schoolteacher employed by the London Borough of Southwark by whom she was dismissed in January 1999 for gross misconduct. The EAT described the genesis of the proceedings as follows:
“5. The Appellant not only taught, but owned a hairdressing salon: she worked there at weekends and during holidays. In 1998 she had absences from work. The absences were for different reasons. First, a child had flu and was absent from school at home; secondly, the Appellant had back pain. She was, at that stage, eight months pregnant.
6. The acting head, Miss Penny White, thought that the appellant might be working as a hairdresser when she ought to have been working as a schoolteacher, and that she was wrongly and dishonestly claiming paid absence from her teaching duties, to the detriment of the children in her care. Accordingly, she said that she went, together with a Ms McKew, of 3 December, to see whether or not the Appellant was in her hairdressing salon cutting hair. She had reason to believe that she might be because her partner had telephoned the salon and was told that the Appellant would, that day, be available to cut his hair. However, it is common ground that she was not in the salon, working as a hairdresser that day.
7. The next day the Tribunal [the Employment Tribunal] found as a fact that:
'Miss White went again, accompanied by Mr Bernacki. They both saw the applicant working. They had previously decided not to go into the shop and confront her because they wanted to avoid embarrassment and a scene. Miss White had no doubt that the person she saw was the Applicant.'
What followed were disciplinary proceedings. On 8 January, there was a disciplinary hearing, which having heard from Mr Bernacki as a witness, and having had the case presented to it by Miss White, decided to dismiss the Appellant for gross misconduct. There was an appeal on 24th February 1999.”
3.	I should mention some of the dates. 3rd December, when on Miss White's evidence she went to the hairdressing salon with McKew, was a Thursday; so obviously the next day, when it was said that Miss White saw the applicant at the salon, was the Friday. It is common ground that the applicant returned to work the following Monday, the 7th.
4.	The Employment Tribunal decided that the disciplinary panel and the appeal panel were entitled to conclude as they did against the applicant and so her applications were dismissed.
5.	The principal basis of her appeal to the EAT consisted in her application to remit the matter for a fresh Employment Tribunal hearing on the ground that fresh evidence had come to light which might promote a different result in the case. The fresh evidence put forward consisted of tape recordings of two telephone conversations which took place between the applicant and Ms McKew, on 28th December 1999 and 3rd January 2000. Ms McKew had been with Miss White to the hairdressing salon on the first occasion, Thursday 3rd December 1998. She was the acting deputy headteacher of the school. The transcripts are before me and I have looked at them. Mr Panton for the applicant in his skeleton argument asserts that the terms of the conversations suggest as follows. (I take the points from Mr Panton's skeleton argument):
“5. The new evidence from Ms McKew suggests that:
(a) the Appellant's dismissal was for reasons other than that stated by the respondent;
(b) the headteacher was a bully;
(c) she never told the headteacher, Ms White, that there had been suspicions in the past that the Appellant worked at the salon while on sick leave;
(d) she regarded the headteacher as manipulative and devious;
(e) she refused to attend the tribunal hearing;
(f) she felt guilty about getting involved... and what she did was wrong; she said that when she visited the salon on 3 December 1998 and the Appellant was not there the headteacher 'was sort of... flabergasted';
(g) following the Appellant's dismissal both she and Mr Bernacki were given favourable severance terms and approved references to leave Albion school;
(h) the staff were all conned into assisting in the dismissal of the Appellant;
(i) the Appellant's dismissal 'was a put up job.'“ 
6.	It was part of Miss White's evidence that Ms McKew had told her that there had been previous suspicions of the applicant malingering. The EAT said.
“25. Those set out in Mr Panton's Skeleton Argument [the points I have just recited] all save one, seem to us to be matters which are either unspecific or which were matters which could easily have been explored and which were plainly an issue before the Tribunal sat.
26. The one exception, possibly, is that it is said that Ms McKew denied ever having told Miss White that there had been suspicions in the past that the Appellant had worked at the salon whilst on sick leave. That is contained at page 41 of the bundle, in the transcript of the telephone conversation in these terms:
'CN 	[the applicant]
	You know what she because I think it's because she re'um 	because you've left she then erm said that you told her that 	there has been suspicion in the past that I've been 

	B [Miss McKew] I never said that... I saw that and I never said 	that 

CN	You know 

B 	and I asked her to change that and she never did 

CN	You know

B 	I never said that I never I don't know
CN	You know
B 	anything about any of this stuff shealways that's one of the 	reasons why she doesn't want...” 
7.	Ms McKew did not, as Mr Panton has confirmed this morning, give any evidence before the Employment Tribunal. It was submitted to the EAT that this exchange on the tape refers to Miss White's allegation in her witness statement that Ms McKew told her of suspicions voiced by staff; and in effect what Ms McKew was saying was that she disagreed she had said that, and asked Miss White to change the statement.
8.	The EAT held that it was likely that Miss White's witness statement had been made available to the applicant in time for her to investigate the contents and in particular to make inquires of Ms McKew. At paragraph 35 they said:
“35. Note also that this was a small school with nine staff. The relationship between the Appellant and Ms McKew was plainly a close one. The transcript of the telephone conversation reveals an ability to telephone at Christmas and New Year, with no particular object in mind, save having a chat, and the nature of the chat is plainly friendly, and close. We think it reasonable to infer that the Appellant knew pretty well what Ms McKew's likely views would have been, and that she would have been readily and easily approachable. We think that if the Appellant had thought it of significance, she could have checked the facts alleged with Ms McKew, on the day of the hearing, if indeed the witness statement was so late in coming. It was not like dealing with somebody who was distant, frosty and removed.” 
9.	That is of course a judgment as to the first of the three tests in Ladd v Marshall in relation to the admissibility of fresh evidence at an appeal. Mr Panton criticises the approach taken by the Tribunal there. He says there was no particular reason on all the facts and in all the circumstances why the applicant should be expected as it were to check out Miss White's statement in the manner suggested. However it seems to me that the EAT were perfectly entitled to arrive at the conclusion they did in relation to that part of the case.
10.	The EAT proceeded to consider the other two limbs of Ladd v Marshall for the admission of fresh evidence. They are (2) whether the fresh evidence might have had an important influence on the result below; and (3) whether the evidence is seemingly credible. With some qualifications the EAT accepted that the evidence if accepted by a tribunal of fact might have had an important effect on the results (see paragraphs 39 and 41 to 45 of the EAT's decision). So to that extent they were in Mr Panton's favour.
11.	As regards the last limb of the test, whether the evidence is apparently credible, the EAT found against the applicant. Mr Panton submitted in his skeleton (he has made further brief reference to it today) that this is inconsistent with their answer to the second question as regards the impact that the evidence might have on the tribunal of fact. However the second test, relating to the influence of the evidence on the tribunal, assumes that the evidence is to be believed; whereas that is the very question under the third test. The two are entirely separate one from the other.
12.	In relation to the last test, the credibility of the evidence, the EAT held that the transcript itself would not be direct evidence from Ms McKew (paragraph 47). That is plainly right. They then said this:
“49. Secondly, we have had no answer, in the course of this hearing, to the central questions as to why it was that the conversation was taped; social conversation would not normally be taped. The fact that it is taped cannot be so that the Appellant would have known what was being said to her, which was the only response Mr Panton, in reply, could give. It, we think, must imply that the Appellant, who knew the person to whom she was talking, must have suspected that without there being some tape recording, the other conversant would not have been prepared to come forward and say publicly that which she might be prepared to say, after some leading, in the course of a telephone conversation.
50. Next, again, we have had no sufficient answer, we think, to the question of why, given that the preliminary hearing was now some five months ago, and there has been ample opportunity for it, the evidence is only as strong as a tape transcript. There is no written statement from Ms McKew; we would have expected to see it.” 
13.	In my judgment that last sentence reflects the real difficulty that faces Mr Panton in this case. There is today still no witness statement from Ms McKew. Mr Panton says (and of course his own good faith is entirely without question) that the proposal is to take a statement before a fresh hearing in the Employment Tribunal if this appeal succeeds. But that is a hopeless position. If the appeal on this ground is to get off the ground, plainly the court would have to be satisfied that Ms McKew was a willing witness prepared to sign up to what she seems to have said on the telephone. It seems to me that that cannot sensibly be done without there being a statement. The inference from the statement's absence would appear to be, on the face of it at least, that Ms McKew is not willing to give one and thus perhaps unwilling to give evidence at a fresh hearing. While there is only the tape transcript, in my judgment there is no arguably sufficient basis for having the case re‑opened. Had I been sitting in the EAT I might have put the matter under Head 2 rather than Head 3 of Ladd v Marshall; but it seems to me that that matters not for present purposes.
14.	Mr Panton submits this morning that even without the evidence of Ms McKew at a fresh hearing Miss White could be cross‑examined on the contents of the tape transcript. It could be put to her that Ms McKew had asked her to change her statement because she disagreed with it. It is of course right that were such a hearing to take place that cross‑examination could be advanced. But without Ms McKew as a witness the applicant would be bound by Miss White's answers. The possibility of such cross‑examination alone is far too flimsy a basis upon which to allow this application. In the circumstances it seems to me the EAT were right not to accede to the new evidence application.
15.	There is an unconnected ground of appeal which was added by amendment at Mr Panton's behest before the EAT. The new ground simply asserted:
“Both panels [the internal panels of the employers] had given inadequate consideration to an alternative sanction.” 
16.	The way it was put before the EAT was that the Employment Tribunal for its part had not sufficiently considered the question whether the internal panels had properly or adequately considered the possibility of some sanction other than dismissal. The matter is referred to in the determination of the Employment Tribunal. The issue is identified at paragraph 3(1)(vii) where, in setting out the issues in the case, these words are included:
“Both panels had given inadequate consideration to an alternative sanction.” 
17.	Later in its determination the Employment Tribunal said of their determination and their conclusions upon the issue of unfair dismissal:
“We consider that it would have been preferable for the Applicant to have been asked whether she had anything to say in mitigation after the decision of the appeal panel to uphold the finding of gross misconduct but again, we do not feel that it is sufficient to render the dismissal unfair. We accordingly dismiss the Applicant's claim of unfair dismissal on the ground that the tribunal acted fairly in accordance with section 98(4) of the 1996 Act.” 
18.	Mr Panton submitted to the EAT that it was not inevitable that dismissal should be imposed as the sanction for gross misconduct. The EAT said.
“56. Although we consider there is some force in what he has said to us, and it may be that it is a pity for the Appellant that the Employment Tribunal did not have the advocacy of Mr Panton before them, nonetheless, they were made aware of the issue. The only question, it seems to us, they having indicated a view upon it, is whether they had sufficiently expressed the reason for it. Their statement is terse. However bearing in mind they had a number of difficult issues of fact to deal with, in relation to discrimination on the grounds of sex and race, and the principal focus of their case, upon the facts which gave rise to the finding of gross misconduct, we do not think that it was required that the Employment Tribunal should go so far as to set out, in detail, the reasons why they came to the conclusion that it was nonetheless fair for the internal appeal hearing to reach the decision it did, notwithstanding their not having asked the Appellant whether she had anything to say in mitigation.” 
19.	This morning Mr Panton has submitted to me that there was material which he desired to deploy before the EAT showing that on Friday, 4th December, the applicant had telephoned the school to indicate that she would be returning to work the following Monday. It is common ground she did return to work on Monday, the 7th. That might have been important evidence if the position was that Miss White was making this visit to the salon knowing that the applicant had only a little earlier that day phoned and said she was returning to work on the Monday. However, it does not seem to me that I can take any account of this aspect of Mr Panton's submissions. I repeat ‑ his own good faith is not in the least in question. But the fact is that there is no reference to any such telephone conversation in the decision of the Employment Tribunal, the decision of the Employment Appeal Tribunal or any of the other papers that I have seen in the case including the grounds of appeal, the amended grounds of appeal and Mr Panton's skeleton argument.
	(Mr Panton produced a skeleton argument  dealing with alternatives to dismissal)
20.	I was, as will be evident, nearly at the end of the judgment that I was in the course of giving. Mr Panton has now at the 59th minute of the 11th hour produced to me the skeleton argument that he placed before the Employment Appeal Tribunal which, in dealing with the heading “Alternatives to Dismissal”, contains in paragraph 14 the statement:
“The undisputed evidence was that on 3rd December 1998 the appellant had telephoned the respondent to say that she would definitely be returning to work on Monday, 7th December 1998.” 
21.	The undisputed evidence referred to is however not in court. Mr Panton says, and I certainly accept, that he would not have put that in a skeleton argument without there being some material to support it. But I am not prepared (as I have indicated to him) to act on it without seeing what this undisputed evidence was and indeed why it is said to have been undisputed.
22.	In these circumstances I propose to adjourn this application. It should not be adjourned for any great length of time because it is undesirable that these matters should hang over. It can be restored in front of me sometime within the next fortnight when I will be sitting in the Divisional Court. We can deal with it at 10.00 one morning. I will not give a date now. Mr Panton will have to deal with it through the usual channels. I will reconsider this aspect of the case only on production of any material that Mr Panton is able to put forward.
23.	I have given my judgment in relation to the fresh evidence aspect which is not affected by this aspect. That judgment stands. There remains only this point as to alternatives to dismissal, which I will reconsider at a short hearing within the next fortnight when Mr Panton can produce such material as is available.
24.	I will direct that in the event that I were to grant permission to appeal, any costs incurred by the applicant today are in no event to be borne by the other side.
(Application in relation to new evidence refused; matter of alternatives to dismissal adjourned; in the event of application for permission to appeal being granted costs of today's hearing not to be borne by the other side).