Appeal No. EAT/1029/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 October 1995

	Before

	HIS HONOUR JUDGE J HULL QC

	MR J H GALBRAITH CB

	MR N D WILLIS

MRS A N DOYLE	APPELLANT

DEPARTMENT OF SOCIAL SECURITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON

For the Respondents	MR A SMAIL 
(of Counsel)
M R Gidden
Regional Solicitor
Dept of Social Security
6th Floor
Five Ways House
Islington Row
Edgbaston
Birmingham
B15 1ST

	JUDGE J HULL QC:    This is an appeal to us by Mrs Doyle against a decision of the Industrial Tribunal sitting at Birmingham under the chairmanship of Mr Tickle, with two industrial members.  They sat at Birmingham on 6, 7 and 8 September 1993.  They dismissed an application by Mrs Doyle complaining of unfair dismissal and asking for reinstatement.  They gave their full reasons in October 1993 and Mrs Doyle appeals to us.

	She is a lady who was first employed by the Department of Social Security on 14 May 1980 and the short history of the matter (I do not need to go into details) is that in July 1989 she took maternity leave and from shortly after that, from about October 1989, she was drawing income supplement.  Her child was born in August 1989 and she did not come back to work in April 1990 as might have been hoped by her employers, that being the end of her maternity leave; she wanted to have a career break (as it was called) and she did not resume work until nearly a year later, on 2 April 1991.  

	She continued to draw income supplement during all or most of this time and at about the time she returned to work it was alleged that she had been living for a substantial part of this period with a man.  Of course, if you are cohabiting, if you are living with somebody as husband and wife, then your entitlement to income supplement normally ends, or at any rate is severely affected, and it is of course the duty of those who apply for income supplement frankly to declare such a matter.  So that was taken seriously by the department.  As has been said, the department was really "wearing two hats" here.  They were Mrs Doyle's employers but they were also, of course, charged with the duty, as a public authority, of administering the system of benefits which we have in this country and they had to enquire into the matter in that capacity too.

	There was an enquiry by an adjudicating officer and it was held by the adjudicating officer that cohabitation had been established and in addition to that, the Applicant Mrs Doyle was seen by a Mrs Butler who interviewed her on these matters.  Mrs Butler apparently conducted an interview in an aggressive way and refused to hear a trade union officer who accompanied Mrs Doyle to that interview.  These matters were all dealt with by the Tribunal.  
	The employers did not conduct any further enquiries of the sort which they might have done; they left this difficult matter, as such an allegation must always be, to an appeal which Mrs Doyle was conducting, to the Social Security Appeal Tribunal.  They thought it right, before taking any action in the matter, to await that.  

	We are told, and of course accept, that whereas Mrs Doyle did not have an opportunity of making full representations and hearing all the evidence in front of the adjudication officer (he does not conduct a judicial proceeding in that sense), the Social Security Appeal Tribunal gives a full opportunity to those involved to make any representations they want to and hear what the case against them is.

	So that was awaited and in due course the Social Security Appeal Tribunal dismissed the appeal.  Then the employers acted.  They said that it was entirely inconsistent with the standing of a Civil Servant in Mrs Doyle's position that she should be guilty of dishonesty like this.  They said that there was only one penalty which could be awarded in the circumstances and that she would be dismissed; and she was dismissed.  She was given notice on 10 February 1992 and her employment came to an end on 21 February 1992.  

	That was the position up to that date.  She then, in good time, by 12 May had presented her IT1, her application to the Industrial Tribunal.  The employers, in their Answer, said that she had been dismissed for misconduct.  (I will come to the Industrial Tribunal's decision in a moment).  But it is right to say that in fact, Mrs Doyle pursued an appeal to the Social Security Commissioner; that appeal was allowed.  

	It was felt apparently, by the Commissioner, that one member at least of the Social Security Appeal Tribunal had declared his view too soon, or something of that sort.  As a result, it went back, on the order of the Commissioner, to another Social Security Tribunal, which re-tried the matter and (comparatively recently) has reached a decision; that in fact the case against Mrs Doyle is not established; they acquit her of what was alleged against her and, in those circumstances, her name is cleared and one must say that all of us are moved by sympathy for Mrs Doyle in those circumstances.  

	The law's processes, unfortunately, wherever the law operates, are never perfect and even with perfect good faith on the part of those who try to administer the law, mistakes will occur.  There are attempts, of course, to put right such mistakes by our appeal system and it appears that on this occasion the system served Mrs Doyle properly eventually because her appeal was allowed.  

	One feels great sympathy for her in that situation, as with any other person who has suffered from a wrong decision, and it is right that we should say that; but what we have to do is nothing to do with that.  I should say in addition that we are glad to hear that there have been approaches between the parties with a view to offering some sort of job to Mrs Doyle.  We know nothing of these matters; they are not relevant but we are glad to hear that there have been attempts in some way or another to put matters right so far as they can be.

	What we have to do is to consider whether there is any error of law in and about the processes of the Industrial Tribunal.  They had to decide a number of things.  They had to decide whether the employers had formed the belief that Mrs Doyle was guilty as charged; whether they had formed a reasonable view of that; whether they had done so after conducting a reasonable and fair enquiry giving Mrs Doyle proper opportunity to be heard and whether the decision which they reached was within the band of reasonable responses which an employer could take properly in such circumstances.

	Those matters were raised before them.  It was suggested, among other things, that the employers should not have relied upon the decision of the Social Security Appeal Tribunal, but should have awaited the appeal to the Commissioner to see what happened and, as it is put in the skeleton argument, should then have waited if necessary for the decision of the Court of Appeal and House of Lords.  

	Two matters in particular are raised before us today.  It is suggested that by keeping Mrs Doyle on, after the adjudicating officer had reached his decision, the department were in effect condoning her offence and saying, "well we know that you committed this offence, but we are keeping you on"; to use more modern language than the word "condoning", that they were affirming the Contract of Employment notwithstanding that there had been a breach which might have entitled them to dismiss her.

	The other matter which was put was (as I say) that the employers should have waited to see the result of the appeals.  Really as an alternative to that, and inconsistent with that, it was suggested that the employers, the DSS, should have conducted their own enquiries; should not have relied upon the statutory functions of the adjudication officer and Social Security Appeal Tribunal.

	We have looked to see how the Industrial Tribunal dealt with this.  They undoubtedly conducted a long and thorough enquiry into the matter; they seem, so far as their decision is concerned, to have considered all aspects of it.  They say, among other things, that they were invited to consider the condonation argument in the light of a letter which was written which had led (it was said) Mrs Doyle to think that the matter was closed and that no further disciplinary proceedings would be taken against her.  Quite clearly, if such a letter was written seriously and acted on, it would not, on the face of it, be fair for the employer to proceed any further and he would indeed, as a matter of law, have affirmed the contract of employment.  

	The Tribunal said that that was not a correct reading of the letter.  They said that Mrs Doyle was aware that the proceedings were continuing; they reached a quite straightforward finding of fact after hearing Mrs Doyle.  They say this in paragraph 7:

		"7  ...  Mr Jones, the district manager, states that the applicant `was informed on 25 April 1991 by Mrs Butler that action under Code 2608 would be held in abeyance pending the result of any appeal hearing'.  The applicant denies she was ever seen by Mrs Butler, or was ever told that.  However, it transpired in evidence that she did receive a copy of this letter, stating that action under the code, - that is disciplinary action - was held in abeyance pending the result of any appeal hearing.  Consequently, we do not believe that the applicant thought that disciplinary matters were concluded as she says."

	That is a straightforward finding of fact that they did not think, having heard the evidence, that Mrs Doyle thought the disciplinary matters were concluded.  Unless there is something wrong with the decision, we cannot interfere with a finding of fact like that.

	Then they record the history which I have set out about the Social Security Appeal Tribunal and they deal with various other matters.  They had to come to their decision and they had to direct themselves on the matters of law.  Did the Respondents believe in the alleged misconduct?  Was that belief based upon reasonable grounds?  Had the Respondents reasonably investigated the matter?  Had the procedures by which the Respondents dealt with the matter been fair and fairly applied?  Was dismissal a sanction open to a reasonable employer?  They deal with those serially in the following paragraphs.  

	In paragraphs 17, 18, 19 and 20 they answer (as their duty required them to) each and every one of those questions in a sense favourable to the employers.  They could, as a hypothetical matter, of course, have answered them, or some of them, differently.  They could have said "fairness required the employers not to rely on the decision of the Appeal Tribunal but to conduct their own enquiry".  They could have said, and this would have been a very strong finding and perhaps not supportable, but they could have said "we think the employers should have waited further.  They did not say that.  They were entitled to take the view which they did; in our view they directed themselves correctly in law and the questions of fact were for them as the industrial jury.  

	We cannot possibly interfere with findings of fact reached on the evidence after a hearing as careful as this.  No error of law can be found by us there.

	With regard to the averment of condonation, it seems to us that that is conclusively met by the finding, on the evidence, which the Tribunal reached, namely that Mrs Doyle did not believe that the matter was at end.  As has been said in a number of cases, the law with regard to breaches which go to the root of a contract and the question of the need to affirm the contract or accept the repudiation of it by the party in breach, in the context of Employment Law, has to be subject to a rather special approach.  

	If the employer is to make reasonable and proper enquiries and if the employer is to await the result of those enquiries, in this case, as the Tribunal found, relying upon the enquiries of the Social Services Appeal Tribunal, then necessarily the employer cannot elect to affirm the contract or to accept the repudiation by the wrong-doer until those enquiries are concluded.  In the nature of things, the employer does not, until that point, have such knowledge of the situation as enables him to be fair.  Of course, if he catches a person red-handed, it might be possible to dispense with all enquiries and the dictum which was quoted to us from Halsbury's Laws, in a nineteenth century decision of Mr Justice Blackburn, would then apply in all its force.  The employer may then be able to say straight away "It is quite clear to me that you are misbehaving.  I have seen you trying to set fire to the factory or the office.  I have seen you stealing from the safe or whatever it may be.  I have seen all I need to do and my duty now is to make up my mind and you are dismissed".  And that may, in those very exceptional circumstances, be the proper and right thing to do, but here the employer had to await the result of the hearing by the Appeal Tribunal.   

	The Industrial Tribunal said that was a fair and reasonable thing to do and therefore there could be, on the face of it, no question of affirmation unless, contrary to what was said to the Tribunal, the employer had indeed determined that he would keep Mrs Doyle on whatever the Appeal Tribunal said.  

	That was not the finding of the Tribunal.  If this Tribunal had not accepted the evidence which was laid before it by the representatives of the Department of Social Security, that would have been the end of the employer's case.  They could not then have found that the matter was fairly dealt with.  But they heard that evidence and they accepted it and they held that the conduct of the department was reasonable.  In those circumstances, the rest of the matters raised by Mrs Doyle appear to us to be essentially requests to us to take a different view of the facts from that taken by the Industrial Tribunal, and we are quite unable to do so.  

	In our view, however unfortunate it was, this was a fair and proper decision in accordance with law by the Industrial Tribunal.  No point of law arises and in spite of Mrs Doyle's very courteous attempts to persuade us to the contrary we have to dismiss the appeal.