Appeal No. EAT/1166/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 26th July 1995

	Before

	THE HONOURABLE MR JUSTICE TUCKEY

	MR R H PHIPPS

	MRS P TURNER OBE

LONDON BOROUGH OF GREENWICH	APPELLANTS

MR I DELL	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR PATRICK ELIAS
	(Queens Counsel)
	MR PHILIP ENGLEMAN
	(of Counsel)
The Solicitor
London Borough of Greenwich
Town Hall
Wellington Street
London SE18 6PW

For the Respondents	MR MARC WILLERS
(of Counsel)
T.G. Baynes & Co
Solicitors 
303 High Street
Orpington
Kent
BR6 0NJ

	MR JUSTICE TUCKEY:   Following a hearing on 23rd August 1994 the London (South) Industrial Tribunal found unanimously that the applicant Mr Dell had been unfairly dismissed and ordered him to be re-engaged. The employers, London Borough of Greenwich, appeal against that decision.

	Before dealing with the grounds of appeal, we should set out the essential facts.

	They are that from 24th June 1991 to 9th November 1993 Mr Dell was employed as a non-resident caretaker on Greenwich's housing estates. During the period of his employment there is no record of any complaint being made against him in respect of the service he provided to the tenants on these estates. More specifically, there is no record of any complaint that he behaved in any racially offensive way.

	His dismissal arose out of a television news item about events in Brick Lane on Sunday 19th September 1993. Mr Dell was in fact a member of the British National Party and had been for some years. On that Sunday as on previous Sundays he went to Brick Lane to sell the British National Party Newspaper. This was shortly after the success of the British National Party in securing the election of one of their candidates to the Tower Hamlets Council. The Anti-Fascist League mounted a demonstration in Brick Lane against that electoral success. When Mr Dell came to Brick Lane with several of his supporters, he found that he was outnumbered by those attending the demonstration on the side of the Anti-Fascist League. There was an incident in the street which was filmed in which, as the Tribunal said:

		"... the BNP members felt constrained to respond to the demonstration on the other side of the street."

The film showed Mr Dell holding a remnant of the BNP newspaper, the larger part of which had been ripped from his hand by those on the other side, but it also showed him chanting "Rights for Whites", which is apparently the slogan which had been used in the earlier successful electoral campaign.

	The film came to the attention of Mr Dell's superiors at Greenwich, and he was suspended on 23rd October 1993 pending further enquiries. Enquiries were made by a Mr Smith which revealed a good deal of information about Mr Dell's previous activities but that information was not before the disciplinary body who considered his position at the time. This was done by Mr Easton who was director of housing. Mr Dell's position was the subject of a hearing which took place on 9th November 1993. At the end of the hearing Mr Easton concluded that Mr Dell had been guilty of gross-misconduct and also of action which destroyed the necessary trust and confidence between employer and employee and he was summarily dismissed.

	Mr Dell appealed and his appeal was heard by a three man Tribunal consisting of Councillor Duvall - the Chairman of the Housing Committee, and Councillors Challis and Sargeant. They dismissed the charge of gross misconduct, but upheld by a majority to two to one, the finding that he had destroyed trust and confidence and confirmed his dismissal. Mr Dell then applied to the Industrial Tribunal.

	The Industrial Tribunal gave the reasons for their decision over twelve pages of close typescript and we have to say that we have found difficulty in discerning precisely what was the basis of their decision. Their conclusion is clear, but the route by which they reached it is not.

	One of the matters which they investigated, as indeed they were required to investigate by the statute, was what was the reason for the dismissal. What was the real reason? Both at the disciplinary stage and before the Industrial Tribunal, Greenwich made it clear that they did not dismiss Mr Dell by reason only of the fact that he was a member of the BNP. They confined the conduct which they relied on to the political activity which occurred in Brick Lane that Sunday, and that was what the Tribunal investigated.

	On careful reading of their decision we think the Industrial Tribunal decided that that was not the real reason for this dismissal. The real reason for the dismissal was that Mr Dell was a member of the BNP, in other words the real reason was his political beliefs not his political activities.

	It should not be necessary to go through a Tribunal's decision with a fine tooth-comb in order to discover what they have decided on such a crucial issue. But looking at paragraphs 8 and 11 of their decision, we think that they must have decided that the reason for the dismissal was political belief and not simply the political activity manifested by the events of 19th September.

	This judgment will be prolonged if we have to cite at length from the reasons, to explain why we think this is what the Tribunal decided but we refer briefly to the sentences in paragraph 8 of the reason which says:

		"... We think that Mr Easton recognised the difficulty inherent in a dismissal by reason of political belief alone and sought, instead, to explain the decision on the ground of political activity. If we are wrong in this and Mr Easton did genuinely believe [and so on]..."

	In paragraph 11 they say:

		"If that had been our view then our conclusion that that, indeed, was probably the real reason why the Applicant was dismissed would have led us to formulate our opinion on a different basis. "

	Here they appear to be saying that they had decided as a matter of probability that the real reason for this dismissal was Mr Dell's political belief. Further on in that paragraph they say:

		"Now, had the Respondent consciously, or as we believe, in reality, dismissed by reason of the Applicant's membership of a racist organisation, because of the effect that racist views might be thought to have on those the Applicant served, fairness would have demanded that the Applicant be given that opportunity [and so on] ..."

	Those passages and others which we need not refer to in this judgment persuade us that that the first of the Tribunal's conclusions, was this dismissal was not for the reasons stated by the employers, but was in reality for Mr Dell's political beliefs.

	In the "if we are wrong" passage and in other parts of the decision they go on to deal with the position if in fact the dismissal had been for political activity alone, and conclude that if that was the reason for the dismissal then in terms of Section 57(3) the employer had acted unreasonably in treating that as a sufficient reason for dismissing Mr Dell. They give a  number of reasons for this conclusion. Firstly, because they could not reasonably have believed that Mr Dell's political activity alone justified dismissal. Secondly, because there was procedural unfairness, notably a failure by Mr Easton to give the applicant the opportunity to explain himself, a failure by Greenwich to produce evidence to support their assertion that this conduct was likely to make it difficult for Mr Dell to discharge his duties as a caretaker and the Chairman of the Appeal Tribunal was biased.

	How do Greenwich say the Tribunal erred in law? Essentially Mr Elias who put their case with extreme clarity and skill, says that the whole of their decision on the reason for dismissal and the reasonableness of the dismissal was flawed because they proceeded on an assumption that political activity added nothing to political belief. One of a number of passages relied on by Mr Elias appears in paragraph 8 where they say:

		"As we have already indicated, the mere sight of the Applicant engaged in a racial demonstration and shouting the election slogan of a racist party adds nothing to the fact that the Applicant was a member of that party, nor can it reasonably be supposed to do so."

	So, Mr Elias argues, the Tribunal are not looking at the matter through the eyes of a reasonable employer, but substituting their own view that this political activity added nothing to the political belief of Mr Dell. This then leads them to conclude that political activity alone was not the reason for dismissal and that no reasonable employer could have treated such activity alone as a reason for dismissing.

	We think it comes down to, when one looking at the whole of the decision we think that the Tribunal are saying is, well we know about the British National Party from the evidence which has been put before us; we know about the political beliefs of its members; if one takes that and then looks at the political activity, that is to say, Mr Dell in the street doing what he had been doing for many years, trying to sell his newspaper and chanting the party slogan, that really adds nothing to the fact of political belief, the political affiliation to this particular party.

	We, of course accept that if the Tribunal had said, no political activity on the part of an organisation such as the British National Party could be regarded as being offensive in itself, that would be illogical and unsupportable. But we do not think that is what they were saying here. They are simply saying that this conduct added nothing, or next to nothing to the fact of membership of and political belief in this party. 

	Although the way the Tribunal approached the matter is susceptible to semantic criticism, and although another Tribunal might have reached a different conclusion, we do not see this as an error of principle or an error, which one could characterise as being perverse or a failure to understand the evidence. In other words it does not, we think, enable Greenwich to say that the Tribunal erred in law. At the end of the day the question, what was the reason for the dismissal, was a question of fact, and we cannot go behind the conclusion which the Tribunal reached on that point.

	As to the "if we are wrong" point, the question for the Tribunal was (as Mr Elias's helpfully reminded us by reference to Saunders v Scottish National Camps Association Ltd [1981] IRLR 277.) Could any reasonable employer have concluded that the conduct alone, the political activity alone was sufficient to justify dismissal? It ought to be possible to see from the decision. The Tribunal asking itself this question and answering it. We are bound to say that we do not see this, but, we do not accept that they substituted their own view for that of the reasonable employer. We think if one looks at the decision as a whole they did answer this question from the perspective of the reasonable employer, and as they did so their conclusion that Greenwich acted unreasonably is one of fact which it is not open to us to interfere with.

	We think in fairness to Greenwich, we should deal with the procedural points, although of course the conclusions which we have reached so far in this judgment are fatal to their appeal against the finding of unfair dismissal. We do not see having been taken to the passages where these points are dealt with, any substance whatsoever for the criticism of Mr Easton's conduct of the initial enquiry. Moreover, if there is any substance in the point that is taken by the Tribunal, that we think must have been cured by the appeal which was a re-hearing and it is right to record that Mr Willers, Counsel for Mr Dell, said that he could not support this part of the finding of procedural unfairness. We also think that to say that Greenwich should have tested opinion among their tenants in order to substantiate their position, is unsustainable. The question is, was it reasonable for Greenwich to think that the conduct, whatever it may be, might effect the ability of Mr Dell to perform his duties satisfactorily. Procedural fairness did not require Greenwich to carry out some poll or survey of the kind that the Tribunal apparently thought. 

	As to the question of bias, the facts are that Councillor Duval had in his official capacity been involved in making representations to the neighbouring Borough of Bexley, to the effect that they should do something about the presence on Bexley territory of the headquarters of the BNP. He had done that in response to the notorious murder of Steven Lawrence. It was this which led the Tribunal to reach the following conclusion:

		"9.	We also have considerable doubts about the fairness of the appeal hearing. We have every reason to suppose that the three members of the appeal body carefully considered the evidence and, as we have already said, came to a proper decision on the first charge."

It is to be noted that they do not actually say in terms that the appeal hearing was unfair or that Councillor Duval was biased.

	Mr Elias has shown us a number of authorities in which it is made clear that it is not enough to show general partiality to establish bias. People, particularly local politicians, are entitled to have strong views, and are entitled to express them in the general political arena, but it does not follow, and it should not be assumed to follow, that they are incapable of acting fairly and impartially when they are concerned as Councillor Duval was here, in a domestic disciplinary appeal involving the position of an individual employee of the Council. The point is illustrated by Ex Parte Wilder [1982] 66 JP 761, and also in R v Reading Borough Council Ex Parte Quiet Lynn Limited [1986] 85 LGR 387. He has reminded us of the latest pronouncement from "on high" on this subject in R v Gough [1993] AC 646, where Lord Goff at page 670 restated the test to be applied in bias cases.

	It appears to us from the reasoning of the Tribunal that they leapt from the general to the particular without considering whether, in the particular Councillor Duval was in fact biassed, or appeared to be biased. In fact the Tribunal held that they had every reason to suppose that the appeal body carefully considered the evidence. We believe that if they decided there was bias the Tribunal did so as a result of an error of approach and therefore an error of law. They not in fact referred to any of the cases and therefore they may be forgiven for the conclusion which they reached. Nevertheless it is one which we think should not be allowed to stand since it is obviously of some general importance to Greenwich to know who they can and who they cannot have on their disciplinary hearings and it is obviously of particular importance to Councillor Duvall whose impartiality was called into question by this decision.

	So that deals with the question of liability: the finding of unfair dismissal. Our conclusion shortly is that the appeal against that part the Industrial Tribunal's decision should be dismissed. 

	We turn then to deal with the order for re-engagement. That again we are bound to say is not expressed in a particularly helpful or clear way. It is all to be found in paragraph 12 of the reasons which starts by considering the question of reinstatement, which was the first claim made on behalf of Mr Dell. The Tribunal set out as submissions, but they were undisputed facts, the fact that Mr Dell had criminal convictions, that he was far more than a "rank and file" member of the BNP, and that the evidence indicated that he was somewhat prone to participate in violent conflicts. One of his criminal convictions, was for threatening behaviour in relation to a racial incident; the other relevant conviction, for criminal damage is referred by the Tribunal. Mr Dell was involved with others in smashing the bust of Nelson Mandela which had been erected on the South Bank. He had described Mr Mandela as "a terrorist guilty of murder". Having referred to this evidence, and the fact that Greenwich contended that they could not or should not be forced to reinstate or re-engage Mr Dell, the Tribunal conclude:

		"... it would not be reasonably practicable to reinstate the Applicant in his former post ... So much publicity has now been attracted to the possibility of a conflict between the views of the Applicant and those of ethnic minorities on housing estates that the Tribunal thinks it would be reasonable to assume that a significant proportion of such ethnic minorities would feel insecure if the Applicant was their caretaker. ..."

	Now what is not clear from the reasoning is whether publicity is the only reason for this conclusion. However, as we read the decision this conclusion is based on all that precedes it including the convictions and so on. 

	On the question of re-engagement, the Tribunal say:

		"The Tribunal, however, sees no reason to think that it would not be reasonably practicable to reinstate the Applicant in some other equivalent post elsewhere in the service of Greenwich Borough Council. There must be a wide range of equivalent posts which will not bring the Applicant into any sort of contact direct or indirect, with racial minorities as such. That there will be some response by the applicants political opponents to such re-engagement the Tribunal has no doubt. The Tribunal sees no reason, however, to suppose that it is impracticable for the Respondent to handle this situation. We take little pleasure in making a relatively rare order in circumstances when carrying it cut will be highly inconvenient but we consider we have no option upon a proper construction of the test of reasonable practicability."

	Now the relevant statutory provisions are contained in Sections 69 and 71. Section 69(4) says:

		"An order for re-engagement is an order that the complainant be engaged by the employer, ... in employment comparable to that from which he was dismissed or other suitable employment, and on making such an order the tribunal shall specify the terms on which re-engagement is to take place including -

		[a number of things, but notably:]

		(b)	the nature of the employment."

Section 69(6) says:

		"If the tribunal decides not to make an order for reinstatement it shall then consider whether to make an order for re-engagement and if so on what terms; and in so doing the tribunal shall take into account the following considerations, that is to say -

		(a)	any wish expressed by the complainant as to the nature of the order to be made;
		(b)	whether it is practicable for the employer ... to comply with an order for re-engagement;
		(c)	where the complainant caused or contributed to some extent to the dismissal, whether it would be just to order his re-engagement and if so on what terms; ..."

	So, there is nothing in the legislation which drives a Tribunal to say that it has no option but to order re-engagement. The matter is one for its discretion, one in which it asks positively, not in the form of some double double negative, but positively the question broadly, is it reasonably practicable for this employer to re-engage this employee. 

	Section 71 deals with enforcement of an order for re-engagement. It says, that if the complainant is not re-engaged the Tribunal may or shall make an additional award of compensation to be paid by the employer, but in considering whether that should be done, the Tribunal is required to consider whether in fact was reasonably practicable for the employer to re-engage, and if it decides that it was not, it is not required to make an additional award of compensation. 

	So there is a two stage process, as Mr Willers explained, and at both stages the Tribunal is required, if there is no re-engagement, to consider the question of whether it is reasonably practicable. Because there is a two stage process. However, it does not mean that at the first stage the Tribunal is not required to follow the provisions of Section 69. They require the Tribunal among other things to identify the nature of the employment in which the applicant is to be re-engaged. 

	We believe that the Tribunal misdirected themselves when they came to consider the question of re-engagement. The use of double negatives, which drove them to a position where they considered they had no option to make the order, demonstrates that point we think. The test for reinstatement is precisely the same as the test for re-engagement, and it is very difficult to understand why the same reasons which drove them to conclude that reinstatement was not reasonably practicable should not have driven them to conclude that re-engagement also was not reasonably practicable. The notion that the re-engagement should be to a post which would not bring the applicant into any sort of contact, direct or indirect with racial minorities, is, as we readily understand, offensive to Greenwich who practice racial equality. How are they to create some specially segregated job which ensures that no such contact occurs? How are they to comply with an order of that kind? Subjected to this kind of analysis, we believe that if it were necessary to do so, this part of the Tribunal's decision could be characterised as perverse, but we would prefer to base our decision simply on the basis that they must have misdirected themselves in law in reaching this decision. 

	Whilst we do not, in any way, wish to be drawn into a debate upon what is apparently a relatively uncharted area of the law, that is to say, how far does the Tribunal have to go in order to comply with the requirement to specify the nature of the employment, we can say that what the Tribunal said in this case did not go far enough, and so this decision is flawed in that respect also.

	For those reasons we think that the appeal should be allowed to the extent that the order for re-engagement should be set aside.