Howe v London Borough of Hammersmith and Fulham

The Court of Appeal refused a renewed application for permission to appeal from an Employment Appeal Tribunal order which had dismissed the appellant's appeal from an employment tribunal. The EAT and the ET had found that the employer had a genuine belief, reasonably based on a thorough investigation, that the employee had engaged in dual employment in breach of an earlier instruction and had fraudulently reported sick to the employer while working elsewhere. The appellate court held there was no error of law in the EAT judge's conclusion under Rule 3(10) that the grounds raised no real prospect of success and that the dismissal was within the employer's range of reasonable responses under sections 98 and 98A of the Employment Rights Act 1996.

Background and parties:

• The appellant, Patricia Howe, had worked for the respondent, London Borough of Hammersmith and Fulham, since 1987 and had been required in 1996 to relinquish one of two concurrent local authority employments. In 2006 it emerged she was again working concurrently as a supply teacher for the London Borough of Brent.
• Hammersmith suspended and investigated her, charged her with holding dual employment contrary to an earlier instruction and with falsely reporting sick to Hammersmith while working for Brent, held disciplinary and appeal hearings, and dismissed her on 14 April 2009. The appellant brought an unfair dismissal claim to the Watford Employment Tribunal, which dismissed it on 10 February 2010.

Procedural history: The appellant appealed to the Employment Appeal Tribunal. His Honour Judge McMullen QC, by order dated 26 November 2010, dismissed the applicant's application under Rule 3(10) of the Employment Appeal Tribunal Rules 1993 and directed no further action on the appeal. Mummery LJ refused permission to appeal on the papers on 12 February 2011. The appellant renewed the application to the Court of Appeal.

Nature of the application: The appellant sought permission to appeal the EAT order and to challenge the ET's findings that the employer had formed a reasonable belief after a proper investigation and that dismissal was a fair sanction under sections 98 and 98A ERA 1996.

Issues framed:

1. Whether the ET had unlawfully substituted its own view of the facts instead of assessing whether the employer had a reasonable belief.
2. Whether the employer's investigation into alleged fraudulent sick leave was sufficient and whether there was evidence to support findings of dishonesty.
3. Newly-raised points: whether the original instruction (circa 1996) was reasonable to impose and whether breach of that instruction constituted gross misconduct.

Court's reasoning and conclusion: The Court of Appeal held that the ET did not substitute its own factual view but properly assessed whether the employer had a reasonable belief based on the evidence. The ET's findings about the rotas, the dates of absence, the opportunity to answer and the lack of cogent explanation from the appellant supported the conclusion that the employer's investigation was reasonable. The new points about the reasonableness of the 1996 instruction and whether breach amounted to gross misconduct were not raised below, were not pure questions of law and lacked merit; they could not be taken for the first time in the Court of Appeal. There was no error of law by Judge McMullen and no real prospect of success on appeal, so permission was refused.

The renewed application for permission to appeal was refused. The court concluded that Judge McMullen had correctly applied Rule 3(10) and that there was no real prospect of success because the employment tribunal had reasonably found that the employer held a genuine and reasonably based belief, arising from a sufficient investigation, that the employee had engaged in dual employment contrary to an instruction and had falsely claimed sick leave. New points raised were out of time, not pure questions of law and had no arguable merit.

Watford Employment Tribunal (Employment Judge Heal, Mr B. Ludford-Thomas and Mrs Fraser) judgment 10 February 2010 dismissing unfair dismissal claim; Employment Appeal Tribunal, His Honour Judge McMullen QC, order 26 November 2010 dismissing the applicant's Rule 3(10) application and dismissing the appeal (UKEATPA/0528/10/CEA); Mummery LJ refused permission to appeal on the papers on 12 February 2011; renewed application to the Court of Appeal refused by Rimer LJ on 27 May 2011 ([2011] EWCA Civ 619).