The claimant had been working in 2 different boroughs, having a day job as a teacher in the London Borough of Brent and a night job in the London Borough of Hammersmith and Fulham. She was found to have fraudulently claimed sick pay from Hammersmith and Fulham on several occasions, reporting sick when she was physically attending work at Brent. She was asked by Hammersmith and Fulham to give up one of her jobs, which she did but resumed the dual employment later. The claimant was dismissed from Hammersmith and Fulham. The Tribunal considered the range of responses of a reasonable employer, including whether a warning would have been sufficient, concluding that, in the light of the earlier conduct of the claimant, a warning would be unlikely to change the situation, and so the dismissal was fair.

At the EAT, the claimant claimed that the ET had substituted its own view of the facts, the very serious allegation of fraud was not investigated to the correct criminal standard and the decision of the Tribunal was perverse. The EAT rejected all these grounds, saying that the Tribunal could not be faulted in acknowledging that the investigation concerning the allegation of fraud was sufficient to meet the high standard required and the perversity challenge failed to reach the high threshold as required in Yeboah.

_______________________

Appeal No. UKEATPA/0528/10/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26 November 2010

Before

HIS HONOUR JUDGE McMULLEN QC

(SITTING ALONE)

MS E F HOWE APPELLANT

LONDON BOROUGH OF HAMMERSMITH AND FULHAM RESPONDENT

Transcript of Proceedings

JUDGMENT

For the Appellant MR J SYKES

(Representative)

UNFAIR DISMISSAL – Reasonableness of dismissal

The Employment Tribunal correctly addressed and applied s 98(4) in finding Hammersmith did not unfairly dismiss the Claimant for fraudulently claiming sick pay from Hammersmith while drawing pay from Brent, after being reasonably instructed to give up one or other job.

1. This case is about unfair dismissal. I will refer to the parties as the Claimant and the Respondent.

1. It is an appeal by the Claimant in those proceedings against the judgment of an Employment Tribunal, Employment Judge Heal, Mr B Ludford-Thomas and Mrs B Fraser, sitting at Watford over two days, registered with Reasons on 4 March 2010. The Claimant was represented by a lay representative and the Respondent by counsel. Today the Claimant is represented by Mr Joe Sykes, a consultant.

1. The Claimant claimed she had been unfairly dismissed by the Respondent which contended it dismissed her fairly for two reasons, having followed a fair procedure. The Tribunal dismissed the claim. There is an outstanding application by the Respondent for its costs which is presently stayed pending this appeal. The Claimant appeals.

1. In Haritaki v South East England Development Agency [2008] IRLR 954 paragraphs 1 to 13 I set out my approach to applications under rule 3. It should be read with this judgment. On the sift of this Notice of Appeal in accordance with the Practice Direction, HHJ Peter Clark formed the view that this case had no prospect of success, and said the following:

"The Employment Tribunal correctly state the law at para 2(2)(b) of their reasons. It is for the employer to show, in a misconduct case, that it genuinely believed the misconduct alleged (the reason for dismissal); the questions of reasonable grounds for that belief based on a reasonable investigation apply to the s98(4) question; since EA 1980 the burden of proof has been neutral (unlike the position in the pre-1980 case of Burchell).

I am of the opinion that the Employment Tribunal permissibly applied that self-direction to the facts as they reasonably appeared to the employer; they did not substitute their own view but correctly applied the range of reasonable responses test, particularly to the sanction imposed."

1. The Claimant was given the opportunity to have the case put before a Judge and I thus hear this matter under rule 3(10) and form my own opinion. It is on the basis of more material than was available to Judge Clark and with the benefit of a written and oral argument from Mr Sykes, together with the adduction of some further documents in relation to the appeal.

1. As Mr Sykes asserts, the legislation and the authorities are clear in this case. They are section 98(1) and (2) of the Employment Rights Act 1996, which requires a reason to be put forward by a Respondent employer which is potentially fair, and fairness is dealt with under section 98(4). The Employment Tribunal addressed those sections.

1. The facts are striking. The Claimant had two jobs in adjacent boroughs; the London Borough of Hammersmith and Fulham and the London Borough of Brent. In 1997 an investigation by the fraud department at Brent found that there was evidence of her claiming sick pay and maternity pay and she was instructed to sever the relationship with either Brent or Hammersmith, and she chose to do the former. A further investigation was conducted because the Claimant had resumed this dual employment. It was put against her, following an investigation by what I am told is a national body called Audit and Investigations Unit, that she was working in two occupations.

1. In due course two charges were weighed against her:

"(a) 'You claimed dual employment with the London Borough of Hammersmith and Fulham and Brent having been expressly forbidden to do so', and

(b) 'You committed fraud by reporting sick with London Borough of Hammersmith and Fulham when you were physically attending work at the London Borough of Brent'."

1. Although the Tribunal did not address itself expressly in accordance with BHS Stores Ltd v Burchell [1980] ICR 303, it had in mind the correct approach. The findings by the Tribunal were prefaced by its appreciation of the competing witnesses. For the Respondent the evidence was clear, scrupulous and careful, but the Claimant herself was evasive. Wherever there was a difference the Tribunal preferred the Respondent. The Tribunal concluded as follows:

"21. We consider that Ms Howe had admitted dual employment and made it plain at her investigation meeting and by her conduct in her applications to her teachers jobs in 2002 that she knew that she was only to have one job. We considered that her 2002 applications show that she was concealing from Brent her employment with Fulham and Hammersmith, because she knew that she had been given a clear instruction to relinquish one job. She disobeyed that instruction and the respondent was reasonable in so finding.

22. We consider that the investigation was thorough and fell within the range of reasonable responses. The investigators discovered the primary evidence and showed it to the decision makers. The primary evidence showed that Ms Howe had not only held dual employment but that there were occasions when she had worked for Brent during the day and had been off sick for Hammersmith and Fulham. Although we fully accept that there maybe occasions when an illness can come on during the day so that one is well enough to work during the day but ill at night or vise [sic] versa, we do not see how this could possibly happen for two consecutive days. Therefore, we considered that the belief held by the respondent was reasonably based upon the investigation."

1. The Claimant was working as a teacher for Brent during the day and as night care staff for Hammersmith at night. The Tribunal addressed a schedule of absences in relation to the claim of fraud. Over a period of less than three years six occasions it is said the Claimant worked for Brent and claimed sick pay from Hammersmith. The Tribunal was alert to the possibility that a person could be well during the day but sick at night, but the Tribunal found it impossible that that could have occurred on two separate occasions on consecutive days. In his argument to me, Mr Sykes came up with an example of a person who has diabetes and is hypoglycaemic temporarily during a part of the day.

1. The Employment Tribunal accepted that kind of example, although it was not put to it. Indeed, Mr Sykes would have been on firmer ground, because he tells me Ms Howe has type 2 diabetes, but that appears not to have been relied on by the Claimant. There is no indication that she told the Tribunal that, on the six occasions when it said she fraudulently claimed sick pay, she was indeed sick during part of the day and well during another part, by reason of diabetes or otherwise.

1. The Tribunal considered the range of responses of a reasonable employer to this matter, including whether a warning would have been sufficient. It concluded that in the light of the earlier conduct of the Claimant, a warning would be unlikely to change the situation, and so the dismissal claim was rejected.

1. I will deal with the arguments Mr Sykes puts forward and give my view on each. His arguments too include very strong criticisms of this Employment Tribunal; that it has been rubber-stamping an inadequate investigation by Hammersmith; that this very serious allegation was not investigated to the correct criminal standard; and that the decision of the Tribunal is driven by prejudice by the Tribunal against the Claimant. Its reasons are perverse and fallacious.

1. The first ground is that the Employment Tribunal substituted its own view of the facts and a number of illustrations are given. In my judgment there is no trace of that. True it is that in a number of passages the Tribunal prefaces its finding with the words, "We consider", but this is an adjudicative tool. The Employment Tribunal expressly directed itself that it was not to do the substitution and I see no difficulty in the way in which it presents the evidence. As Mr Sykes makes clear by citing Mummery LJ in Sainsbury's Supermarket Ltd v Hitt [2003] ICR 111, the function of the Tribunal is to decide whether that investigation was reasonable in the circumstances and whether the decision to dismiss in the light of that investigation is a reasonable response.

1. The Tribunal in my judgment does not indicate in its Reasons substitution of its view for that of management. Mr Sykes does not cite to me the leading case on this subject, which is London Ambulance Service v Small [2009] IRLR 563, from which it will be recalled the direction of the Court of Appeal correcting my error is to look at how this material strikes the employer, and then to consider whether a reasonable employer would have adopted the stance this one did. Application of London Ambulance v Small indicates that this was a correct approach by the Employment Tribunal.

1. The second ground of appeal relates to the investigation and highly speculative arguments were addressed by Mr Sykes about this. What more would the Respondent be required to do? It had an admission that the Claimant was told to forsake one or other jobs on the first investigation and yet she appears to have slipped back into two jobs. That is the first part of the allegation; having two jobs. It was not put that the instruction was unreasonable or a breach of contract, and Mr Sykes makes no application before me for this new point to be adduced as a ground of appeal. I assume therefore that the Respondent was reasonable in seeking for the Claimant to disengage from either Hammersmith or Brent and not to hold two positions.

1. However, the allegation of fraud is serious and Mr Sykes is right to draw my attention to the seriousness of the allegation. In Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522 Elias LJ, drew upon what he had said when President of this court in A v B** [2003] IRLR 405. I accept that for a professional carer and teacher an allegation of fraud is serious; the stakes are high, and the standard of investigation has to be high as well. The Employment Tribunal cannot be faulted in acknowledging that the investigation here was sufficient to meet that high standard; it was a reasonable decision by management. The material here indicates fraud, and as Mr Sykes engagingly accepts, it does not matter whether it was on one or ten occasions, sick pay was fraudulently claimed when the Claimant was not sick. So in my judgment this criticism has no substance. I specifically reject the contention that this Tribunal rubber-stamped what the employer was doing and the other points boldly put in para 13 above.

1. The third ground of appeal is that this decision is perverse, see Yeboah v Crofton [2002] IRLR 634, or is Wednesbury unreasonable, [1948] I KB 233. As is well known, the standard is high; a very high threshold is placed across the path of a complainant alleging perversity. In my judgment, the reasons of this Tribunal are pellucid. This was a very experienced three-person Tribunal and it has set out its reasons without contradiction. This irrationality and perversity argument fails to reach the overwhelming case required in Yeboah. For those reasons, all these grounds are dismissed. In my opinion there is no reasonable prospect of success and this appeal will be taken no further.