Appeal No. EAT/502/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 22 April 1994

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MS S C CORBY

	MR J H GALBRAITH CB

MR K V HALAI	APPELLANT

LONDON BOROUGH OF HARINGEY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR J CHHOTU
(OF COUNSEL)
Messrs Samuels
Solicitors
19b Alexandra Road
Barnstaple
Devon EX32 8BA

	

	JUDGE PEPPITT QC:	This is the preliminary hearing of an appeal from a decision of the London North Industrial Tribunal sent to the parties on the 13 May 1993.  After a hearing extending over some five days the Tribunal found that the Appellant, Mr Halai had been fairly dismissed.  

	The Appellant was employed by the Respondents as a carpenter.  He had been so employed since 1986.  He was dismissed for gross misconduct on the 26 September 1991.  The Appellant worked in the Respondents' Construction Services Department, which was treated as an arms-length contractor for the execution of maintenance and other works.  The Appellant was paid on an incentive basis for the work which he actually did.  He would receive at the beginning of the day orders for the execution of works at various properties, and at the end of the day he would submit those orders, endorsed on the reverse with details of the work which he had done.  

	The Tribunal found that the Appellant was a man of low intelligence but spoke sufficient English to get by in his day-to-day employment.  He did not write English.  His level of reading ability would only be sufficient for coping with the simplest of English texts such as might be found in children's story books or the most elementary examples of the tabloid press.  For those reasons the Appellant adopted the practice of having the reverse of his orders completed at the end of each day, either by his apprentice or by his supervisor, Mr Blower. 

	At the end of the year 1991, complaints were made about over-charging by the Respondents' Construction Services Department and as a result independent surveyors were instructed to carry out an audit of that Department's work.  The independent surveyors found evidence of a number of instances of over charging.  In the Appellant's case they found that he had over-booked 53 hours in relation to work which he had either done only in part, or had not done at all.  When this discovery was made Mr Blower, the Appellant's supervisor, advised him to make contact with those tenants of the Respondents whose work was shown to be outstanding, complete the work and obtain their signatures that there was no longer any outstanding work.  The Appellant obtained some ten signatures to documents to this effect.

	The matter was first considered by the Respondents, at a disciplinary hearing held on the 26 September 1991.  The Appellant was represented by his Trade Union representative.  The hearing was conducted by Mr Kahn who was the overall superior of the Department.  There was an interpreter available but he was not required to take any part in the hearing.  At that disciplinary hearing the Appellant was dismissed for gross misconduct.  

	He had a right of appeal which he exercised.  The appeal was heard on the 19 November 1991.  He was then represented by Counsel.  He had, as the Tribunal found, a full opportunity then to state his case.  Nevertheless, the decision to dismiss him was upheld.  An important fact found by the Tribunal was that at both hearings the Appellant admitted many of the allegations made against him.  

	In his appeal against the Industrial Tribunal's decision Mr Chhotu, on behalf of the Appellant, raises a number of points and argues specifically three of them.  The first is this.  In the course of the hearing it emerged that the ten statements signed by the tenants that the work had now been satisfactorily completed, which had been submitted by the Appellant to Mr Khan at the first hearing, were not available to the Tribunal.  An application was made for an adjournment for those documents to be obtained and it was refused.  Secondly, in the course of that application it emerged that Mr Khan himself had been dismissed.  Mr Chhotu asked the Tribunal to adjourn the hearing on that ground too, to enable further enquiries to be made about the reasons for, and the circumstances in which the dismissal took place.  That application was also dismissed.  Thirdly, Mr Chhotu argued that the Tribunal was perverse in accepting at their face value the admissions which the Appellant was found to have made, having regard to a fifteen page report by a clinical psychologist, which was submitted to the Tribunal on the Appellant's behalf.

	Mr Chhotu submitted to us that in the light of that report no reasonable Tribunal could have attached weight to those admissions and accordingly the fact that the Tribunal did so was indicative of perversity on its part.  Similarly, Mr Chhotu submitted that no reasonable Tribunal could have refused his applications for an adjournment of the hearing for the purposes which we have indicated and that too was indicative of perversity on its part.

	It seems to us that the key to all three matters lay in the Appellant's admissions, because if the Tribunal was entitled to accept them, that would have made it understandable why the applications for adjournment of the hearing were rejected.  We must therefore consider with some care exactly how the Tribunal treated the question of the Appellant's admissions and the weight to be attached to them.  

	At paragraph 4 of its decision, the Tribunal found as follows:

		"The Applicant had maintained that his admissions were unreliable because of his learning difficulties.  However, the perceptions of the Respondent's representative at the hearings were that the Applicant had understood what was going on and had contributed substantially to what had passed.  Mr Blower had confirmed that he had no difficulty in reading or communicating at the workplace.  The Respondent did not then have the benefit of a 15 page expert's report on the Applicant's learning difficulties but the final comments of the expert were to the effect that if the Applicant's claims of innocence were correct such mistakes would not be found to be in in the consistent direction of overcharging as discovered by the Respondent on its audit so far".

	It is fair to say that Mr Chhotu told us that that expression of view by the clinical psychologist is said to have referred to a period other than that which the Tribunal were considering.  The Tribunal went on:

		"The Respondent had relied on the Applicant's admissions, the surveyor's report and matters evident to the eye.  At the first hearing there were no objections to the surveyor's report and no request for the surveyors to be present.  It was only at the close of the appeal hearing that this point was taken.  The decision was made on the balance of probabilities on the Applicant's admissions, the report and the documents submitted by the Applicant, all documents being unsupported by the presence of witnesses.  The Applicant had blamed his apprentice, Mr O'Neil, for inaccuracies but Mr Blower had written up some of his reports.  He now blamed Mr Blower but Mr Blower was the better witness.  Mr Blower had stated that he had only noted what he was told".

	Then a little later on paragraph 9 of the bundle at page 6 of the report under the heading "Disabilities" the Tribunal found:

		"We believe that the claims of the Applicant's Counsel as to the effect of his disabilities were exaggerated.  We find that the Applicant was capable of reading the elementary instructions on the work orders and the information which was written in simple terms on the reverse".

and under the heading "Investigation" on the same page:

		"The Respondent relied upon its independent surveyors and supplied full details of the matters in respect of which the allegations arose to the Applicant prior to the disciplinary hearing.  This first hearing was called a disciplinary hearing but was in fact a combined investigatory and disciplinary hearing.  The Applicant had visited the properties in question prior to the hearing and had had an opportunity to refresh his memory.  Any criticisms of the investigation must be balanced against the admissions of the Applicant, admissions which we find the Applicant was competent to make".

	Then finally, summarising its reasons for arriving at the conclusion which it did, the Tribunal stated on page 7:

		"We find that the Respondent held a genuine belief in the guilt of the Applicant and that belief was reasonably held in view of the admissions of the Applicant and the investigation which was reasonable in the circumstances.  We find that the dismissal was fair and that whatever shortcomings there may have been in the procedure or overall fairness in the eyes of the Applicant's Counsel were more than counter-balanced by his client's admissions which we find he was competent to give at the time.  We find that in all the circumstances the Respondent acted fairly in treating conduct as a sufficient reason for dismissal".

	Mr Chhotu's substantial point is that the Tribunal was perverse in preferring the evidence of the Respondents' witnesses, and in particular Mr Blower, as to the capacity of the Appellant to make proper admissions.  We have read this decision with some care and we have borne in mind the fact that issues of fact are peculiarly within the ambit of the Tribunal and it is not open to us to interfere with them.  There was in our judgement no reason why the Tribunal should not have rejected the evidence of the clinical psychologist, if it did, in favour of the evidence of Mr Blower, who clearly impressed the Tribunal as a honest and careful witness.

	The Tribunal also had the advantage of hearing the Respondent himself and thus had that additional material in which to form the view of his capacity to make admissions which could be relied upon.  We see nothing perverse in that finding by the Tribunal.  In our judgment the Tribunal were entitled to rely upon the admissions which the Appellant made.  That reliance entitled them to arrive at its decision.  Notwithstanding that the first stage of the Respondents' disciplinary process involved an investigation and an adjudication by a man who they subsequently dismissed.  

	Accordingly, we do not find that there is anything in Mr Chhotu's submissions which entitle us to interfere with this decision.  We should add that a number of other matters were raised in the Appellant's Notice of Appeal; but we have come to the conclusion that all of them considered analytically amount to no more than arguments that the Tribunal, for one or other reason, was wrong in the facts which it found.  They do not amount to errors of law. They do not in our judgment constitute perversity.  In those circumstances this appeal must be dismissed.