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Case No: A2/2010/1190

Neutral Citation Number: [2010] EWCA Civ 1239

IN THE COURT OF APPEAL ( CIVIL DIVISION )

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

(HIS HONOUR JUDGE MANN QC)

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Wednesday 13th October 2010

Before:

LORD JUSTICE ELIAS

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Between:

CHEESEBROUGH (Applicant)

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MINISTRY OF JUSTICE (Respondent)

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The Applicant appeared in person.

The Respondent did not appear and was not represented.

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Judgment(As Approved )

Crown Copyright ©

**Lord Justice Elias:
**1. This is an application for permission to appeal the order of the Employment Appeal Tribunal before HHJ Hand QC in which at a preliminary hearing he held that there was no realistic prospect of success in this appeal.

1. The application concerns the dismissal of Mr Cheesebrough from his position as court enforcement officer and as a warrant officer with the Ministry of Justice. He was found to have committed serious misconduct in neglecting his duties, for which he was given a final warning, and falsifying court warrants, which constituted gross misconduct and for which he was dismissed.

1. The circumstances briefly were that an anonymous letter initially alleged that certain warrant officers, and Mr Cheesebrough was apparently identified, had been misusing working hours and the company hours. There was an investigation but there was insufficient evidence to pursue the matter further.

1. On 30 April 2007 an anonymous phone call was made to a Mr McGuire, the court enforcement officer manager, who was told that a car had been parked at a particular place off the Crossfell Road since 9.15 am. Mr McGuire and Mr Featherstone went to the address and their evidence was that they arrived at 10.35 and they found Mr Cheesebrough's car. They phoned him some 20 minutes later to ask where he was, having checked with another manager, Ms Smith, that they should do so.. He replied that he was just leaving Hemlington, which was an estate some four miles away. They asked him to return to his car but when he did so he said he had been having coffee nearby with his sister in law and he said, as the tribunal found, that he had been confused when he said he was leaving Hedlington.

1. There was then an investigation of the warrant sheets and Mr McGuire concluded in accordance with those sheets that Mr Cheesbrough had alleged that he had visited two addresses, three miles apart, within one minute. That led to the falsification charges.

1. It is not necessary to go into the details of what happened thereafter. There was an investigation to determine whether there was a case to answer. There was a disciplinary hearing before a Mr Jones. There was an appeal from that to a Mr Keane, and subsequently the case came before the employment tribunal. The tribunal noted that Mr Cheesebrough had for some time been seeking to obtain telephone records. This had originally been refused. The tribunal explored the matter more fully when the application was renewed before them by Mr Cheesebrough and they sought to persuade the respondents to try and obtain the telephone evidence. There was some uncertainty as to whether it could have been obtained or not, but in any event the employers said they were not going to pursue the matter any further.

1. They had made inquiries and found that the records of incoming calls would not have been kept for longer than 12 months, although Mr Cheesbrough disputed that fact.

1. A relevant part of this case, it seems to me, is that Mr Cheesebrough submitted before the tribunal that there had effectively been a conspiracy directed against him by Mr McGuire and Mr Featherstone and that they were effectively looking for a reason to try and get rid of him. He did, however, accept before the tribunal that that was not a matter which had really been pursued before Mr Jones.at the disciplinary hearing. It had been raised with Mr Jones but there was no real evidence to support a conspiracy other than it being something which Mr Cheesebrough happened to believe.

1. The relevance of that is, it seems to me, that Mr Jones, when carrying out the disciplinary hearing, had on the face of it no reason to believe that the managers appearing before him would deliberately try and misrepresent the true position. They may be wrong in their evidence, they may be mistaken in certain respects but there was no reason to believe that they were being deliberately dishonest.

1. The tribunal concluded that the employers were entitled to reach the conclusion both that there had been the serious misconduct stemming from the neglecting of duties by parking the car for 20 minutes during working hours and that there had been a falsification of the warrants. As part of the evidence of the serious misconduct, they did put some emphasis on the fact that the employers were entitled to conclude that the claimant had been asked where he was rather than where he had been and when he replied "Hemlington" that was not a true answer and that that went to his credibility.

1. His case really rests on what he submits is now plain evidence that the information given to the employers was false and that the telephone records would have made that plain. He says that there was one telephone call from Mr Featherstone to a Ms Smith at around 10.43. He says that was the only telephone call that was made to Ms Smith. That would have been, on all the evidence, before Mr Featherstone and Mr McGuire found his car and found that he was not there. Accordingly they could not have got to the car until close on 10.55 and it was wrong for them to state that they saw the car there without him in it at 10.43.

1. The relevance of that to the alleged false court warrants is that they are timed 10.43 and 10.42 on that morning. On the face of it those warrants suggest that Mr Cheesebrough was representing that he had been to two addresses some distance apart and had got there within one minute. He submits that that was not so, that he had already stated that there must be some administrative error and it became clear to him when he saw the actual warrants that one was a visit and one was a telephone call, but the visit could not have occurred, it seems, at the relevant time if his car had been found where it was at 10.43. He says, as I have indicated, that Mr McGuire and Mr Featherstone could not have got to his car much before 10.54/10.55. So he says there was no proper evidence to support the case against him.

1. Mr Keane, hearing the appeal, appears to have had before him evidence from Ms Smith. She confirmed that she had received two telephone calls from Mr Featherstone, one before the two men left the office in response to the anonymous telephone call and later when they were at the parked car and when they agreed that Mr Cheesebrough should be contacted on his mobile. That evidence therefore supported what Mr McGuire and Mr Featherstone were saying.

1. On that basis it seems to me clear that there was a proper evidential basis for the employers to accept the evidence they heard from Mr McGuire and Mr Featherstone and to conclude that there had been a falsification of the records as well as the neglect of duties.

1. I am conscious that Mr Cheesebrough feels deeply aggrieved about this. He thinks the records are clear and cast doubt on the validity of the email provided by Ms Smith to Mr Keane. He submits that that was not evidence that should have been considered by Mr Keane or by the tribunal, but that is with respect a misconception. This was not a criminal trial, and the email from Ms Smith was evidence the tribunal could consider.

1. There are, it has to be said, unsatisfactory features of the case. It would have been desirable if telephone records had been obtained. Burton J expressed concerns about certain aspect of the original tribunal decision when considering the application for permission to appeal to the Employment Appeal Tribunal and indeed he issued a Burns/Barke letter, which led to the tribunal giving a fuller explanation of the way in which they had come to their decision. They pointed out that in fact they had heard evidence that there were two calls to Ms Smith and that that was confirmed by Ms Smith herself. To that extent they took into account the telephone records available to them and they considered that the evidence before the respondent was such as to justify the conclusion reached.

1. HHJ Hand QC in the EAT, when at the preliminary hearing it refused permission to take the matter further, also accepted that there were some fuzzy aspects, if I can put it that way, with respect to the telephone evidence. Nonetheless the EAT concluded that they were satisfied that there was a proper basis for the conclusion of the employment tribunal that the investigation in all the circumstances had been reasonable, that the employers were entitled to accept the evidence available from Mr Featherstone and Mr McGuire, but there were certain features of Mr Cheesebrough's response which cast doubt on his credibility, and in those circumstances he would not have a realistic prospect of appealing successfully.

1. I agree with that. I tried to explain to Mr Cheesebrough that if he were to appeal it would be an extremely expensive exercise for him. He feels, as I say, deeply aggrieved, but I am satisfied that there is no realistic possibility of his establishing an error of law. So the application fails.

Order: Application refused