Appeal No.	 EAT/458/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 November 1997

Before
HIS HONOUR JUDGE PETER CLARK
SIR GAVIN LAIRD CBE
PROFESSOR P D WICKENS OBE

MR C STABLES 	APPELLANT

THE EXECUTIVE COMMITTEE OF CROYDON
MENCAP	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR T LINDEN
(of Counsel)
Messrs Streeter Marshall
Solicitors
74 High Street
Croydon
CR9 2UU	

	JUDGE PETER CLARK:     This is an appeal by the Applicant before the London (South) Tribunal, Mr Stables, against that Tribunal’s decision to dismiss his complaints of unfair dismissal and unlawful sex discrimination brought against his former employers, The Executive Committee of Croydon MENCAP.  Extended Reasons for that decision are dated 6 March 1997.

	The Appellant was employed as the director of Croydon MENCAP.  MENCAP is a charity providing services to people with learning difficulties.

	He is bi-sexual.  In about October 1995 a former tenant of his attempted to blackmail him.  The Appellant did not succumb to those threats.  As a result two letters written by the Appellant to young men, one in Ghana and another in Israel, were sent to the former Chairman of the Respondent, Mrs Bossick.  She forwarded them to her acting successor, Mr Beckett.

	The contents of those letters, which we have seen, are described by the Industrial Tribunal thus:

“They are addressed to young men abroad, one in Israel and one in The Gambia [for which read ‘Ghana’] Both used explicit language and discuss sexuality.  The Tribunal notes that the letter to the young man in Ghana gives an impression that the young man might have been under the age of 18 and in addition to sexually explicit questions, seeks to attract the man to life in Britain by exaggerating the Applicant’s income and status.”

	The matter was discussed at a Committee Group meeting held on 31 January 1996.  There was concern that these were private letters, but the decision was reached that the Committee owed a responsibility to the people with learning difficulties and their families and their carers, as well as members of the Society, not to ignore the letters.  The question arose as to whether, in the circumstances, the Appellant was a proper person to be employed as Director.  It was resolved that he be suspended on full pay.

	The Appellant was telephoned, told that the Committee had the letters and suspended.  He said that he was shattered and devastated.

	A disciplinary hearing was held before the Committee on 14 February 1996, when the Appellant was represented by a Solicitor.  A majority of the members of the Committee favoured summary dismissal on the grounds that they were not satisfied that the young man in Ghana was above the age of consent, and that the letters revealed a gross and unacceptable outlook on matters of sexuality which was not appropriate to an officer of the Charity with responsibility for care of the vulnerable.  The Appellant accepted that he had written the letters.  Accordingly, he was dismissed at the end of the meeting and his dismissal was confirmed in a letter dated 20 February 1996, in which Mr Beckett wrote:

“This decision was reached as, specifically, particular paragraphs of the letters are considered to contain gross and unacceptable language and there are clear indications that you were attempting to procure young men for sexual activities.  In view of the key role of the Director, both within Mencap and the Croydon Community, the Committee concluded that it could no longer have trust and confidence in you in a role in which you are able to obtain access to vulnerable people with learning disabilities.”

	We note that one member of the Committee, Miss Cooper, felt that a warning alone was sufficient.  She was herself a person with learning difficulties who, the Industrial Tribunal found, lied in her evidence to the Tribunal in saying that the Appellant had given her no assistance in writing letters protesting on behalf of the Appellant following his dismissal.  This, the Tribunal found, was a form of manipulation by the Appellant which fitted with the view of Miss Kawagama, another Committee member who gave evidence before the Tribunal, that the offending letters were exploitative.

	Thereafter an internal appeal was arranged for 28 May 1996.  That hearing was adjourned, before the appeal was concluded, until 11 July.  However, on 2 July the Appellant’s representative wrote to the Respondent stating that the appeal had been conducted in a grossly unfair manner, and it was decided not to pursue the internal appeal to a conclusion.  The Appellant instead pursued his complaint in the Industrial Tribunal.

The Industrial Tribunal Decision

	The Tribunal concluded that the dismissal was for some other substantial reason, rather than misconduct, those labels being relied upon in the alternative by the Respondent.  As to reasonableness, they found that the Respondent had done everything in its power to adopt a fair procedure, and that dismissal was a permissible option for a reasonable employer.  It was fair.

	It also dismissed the sex discrimination claim on the basis that there was no evidence that the agreed hypothetical comparator, a lesbian woman writing similarly to a young woman, would have been treated differently.

The Appeal
	Sex Discrimination

	Mr Linden seeks to raise a wholly new point.  He submits that the parties agreed the wrong hypothetical comparator for the purposes of the sex discrimination claim.  The claim ought to have been based on discrimination on the grounds of sexual orientation.  He recognises that this point does not go to the Industrial Tribunal’s jurisdiction; it is an attempt to resile from an agreed basis on which the case was put before the Industrial Tribunal and that if he succeeds in this point on appeal, it will be necessary for the matter to be remitted to an Industrial Tribunal to hear further evidence.  In these circumstances we shall not permit the new point to be taken for the first time before us in accordance with the principle expressed in Kumchyk v Derby City Council [1978] ICR 1116 and later cases.  

	Mr Linden accepts that he cannot challenge the Industrial Tribunal’s finding as to sex discrimination reached on the basis argued below and accordingly this part of the appeal must fail.

Unfair Dismissal

	Mr Linden takes a number of points coming down to this; the Tribunal impermissibly rewrote the Respondent’s reason for dismissal.  It wrongly took into account the fact that Miss Cooper had lied at the Industrial Tribunal in the Appellant’s presence to show that he was manipulative, and also agreed with Miss Kawagama that the Appellant’s letters were exploitative, both being points which were not in the mind of the Committee members who took the decision to dismiss.

	He argues that the Tribunal did not identify the Respondent’s reason for dismissal, and in particular to discern the principal reason, for the purposes of determining the reasonableness or otherwise of the decision to dismiss:  see Smith v City of Glasgow [1987] ICR 796.

	Further, he submits that the approach of the Scottish Employment Appeal Tribunal and the Court of Session in the case of Saunders v Scottish National Camps Association Ltd reported respectively at [1980] IRLR 174 and [1981] IRLR 277, ought not now to be followed, particularly in the light of developments more recently in European Law.  

	We have considered all these arguments and reject them.

	We are not a court of morals, nor a first instance court.  Our jurisdiction is limited to correcting errors of law by Industrial Tribunals.

	Cases arise from time to time involving dismissals where an employee has committed a criminal offence off-duty.  Similarly, the question of an employee’s sexual orientation may arise, as in the case of Saunders.  

	The question for the Industrial Tribunal is broadly the same in each instance.  Did the employer act reasonably in treating its reason for dismissal as a sufficient reason?  Thus, if the employee was dismissed simply because he had committed an offence, unconnected with his work; or simply because the employer disliked his sexual orientation, that may be unreasonable and unfair.  Conversely, if the conviction, or off-duty incident or behaviour, had a material bearing on the employee’s suitability to perform his particular job, that may be held to be a sufficient reason for dismissal.

	On appeal attempts are made to argue that, for example, a man convicted of gross indecency with other men, is not necessarily a greater risk to young boys in his charge during the course of his employment than one who has not:  see Wiseman v Salford City Council [1981] IRLR 202.  That is not the question.  The issue here is whether the Tribunal reached a permissible conclusion that a reasonable employer would dismiss in these circumstances.  Put the other way, can we say that no reasonable Industrial Tribunal, properly directing itself, could come to a conclusion other than that no reasonable employer would dismiss in the circumstances of this case.

	In our judgment we cannot.  The reason for dismissal in this case was the Respondent’s loss of trust and confidence in the Appellant as a result of seeing the two letters.  The Tribunal concluded that a reasonable employer in the position of this Respondent would dismiss in these circumstances.  That is not a decision with which we can, or should, interfere.

	In these circumstances the appeal fails and is dismissed.