Boyo v Lambeth London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE RALPH GIBSON,LORD JUSTICE STAUGHTON,SIR FRANCIS PURCHAS |
| Judgment Date | 08 March 1994 |
| Judgment citation (vLex) | [1994] EWCA Civ J0308-6 |
| Docket Number | CCRTF 93/0545/C |
| Court | Court of Appeal (Civil Division) |
| Date | 08 March 1994 |
[1994] EWCA Civ J0308-6
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(His Honour Judge James)
Before: Lord Justice Ralph Gibson Lord Justice Staughton Sir Francis Purchas
CCRTF 93/0545/C
THE APPELLANT appeared in person.
MISS N. WILLIAMS appeared on behalf of the respondents. (Instructed by D. V. Tatlow, Chief Solicitors, London Borough of Lambeth.)
HANDED DOWN JUDGMENT
This is an appeal by the appellant, Mr Toju Christopher Boyo, the plaintiff in an action in Lambeth County Court, from the decision of His Honour Judge C.P. James of 17th March 1993 whereby he directed that there be judgment for the plaintiff for £8,050, as damages for wrongful dismissal, together with interest and costs against Lambeth Borough Council, ("the Council"). The plaintiff submits that he should have judgment for a much larger sum. The plaintiff is black: A fact which he says is relevant in this case.
The main issue in the appeal is whether the judge was right to hold that the plaintiff's contract of employment was effectively terminated by the Council at the date at which the judge held that to have occurred, and whether the judge correctly assessed damages upon the evidence before him. The Council submits that the judge was right in his approach to the case but, by cross appeal, contends that the judge went wrong in his assessment of damages by ignoring the evidence and by having regard to irrelevant considerations. The Council submits that the award should be much smaller.
Both the history of this dispute, and the way in which it appears to have been handled, give rise to ground for concern. This court does not know why the criminal charges against the plaintiff, to which reference is hereafter made, were handled as they were; and who, if anyone, was to blame for it. Both sides in this case were content for the issues pleaded to be decided in the court below before the end of the criminal proceedings at which time the plaintiff would have known whether he could effectively accuse any person of malice towards him, either in the initiation of the prosecution, if such persons could be held to be the prosecutor, or in passing information to the police which led to the making of charges. I make no complaint that we do not have this information: Such issues were not before the court below and are not before this court. Those in charge of the administration of the affairs of the Council, however, may wish to consider, when the full facts are available to them, the account of this dispute which follows and what steps may be necessary, and within their powers, to see that the story is not repeated.
The original cause of the dispute is that the plaintiff was suspected of fraudulent conduct in his work as a committee accountant in the employment of the Council with reference to housing benefit. He was charged with offences. No criminal charge has yet been brought to trial. The last charges made are still at the stage of committal proceedings. The plaintiff asserts that he is presumed to be innocent and, as to that, there has been no dispute. It is also to be assumed that the Council entertained suspicions about the conduct of the plaintiff, and made such reports as they did to the police, in good faith until the contrary is proved. The plaintiff submits that we should regard the Council, or the officers directly concerned with this dispute, as having set out deliberately to injure the plaintiff and to have been motivated by racial prejudice. The plaintiff made no allegation to that effect in these proceedings and he has no finding of fact by the judge to support his contention. I shall therefore, assume the good faith of the Council and its officers.
The relevant history is as follows.
(i) The plaintiff's employment by the Council began in July 1987. His appointment was subject to the National Scheme of Conditions of Service and to any standing orders and resolutions of the Council that might from time to time apply: See page B.38. The minimum period of notice of termination of service to which the plaintiff was entitled under the contract was, at the material time, one month. By paragraph 13 of the statement of particulars of employment (page 58);
"The disciplinary rules applicable to you will be found in the documents referred to in paragraph three of this statement and in the document entitled Disciplinary Rules which is attached."
The documents include a copy of the outline disciplinary procedure.
(ii) On 7th August 1991 the plaintiff was arrested with reference to enquiries by the police into allegations of fraud upon the Council. He was released on police bail to attend the next day. On 8th August 1991 the plaintiff met the Council's chief accountant, Mr Peter Davids, and told him what had happened. After a continuation of the meeting in the presence of an auditor, the plaintiff was told by Mr Davids that the plaintiff was suspended on full pay "until the matter with the police was resolved satisfactorily", upon conditions which included his not entering any Council building, not contacting any employee of the Council except for Mr Davids and the auditor, and upon his being available for work each day except when on leave.
(iii) The plaintiff cleared his possessions from his work place and reported to the police. He was charged with conspiracy to defraud the Council and
conspiracy to defraud the London Borough of Greenwich.
(iv) He was released on unconditional bail to attend court for a committal hearing on 25th September 1991. He was paid his salary by the Council, who knew that he had been charged, for the months of August and September.
(v) On 25th September 1991 the committal proceedings were adjourned. Bail conditions were imposed the plaintiff says "at the behest" of the Council in the terms of the Council's suspension of the plaintiff and thereby as the plaintiff has alleged, those terms were given the force of law. The plaintiff was paid his salary for October 1991. On 18th october 1991 the plaintiff was again arrested regarding an allegation of conspiracy to pervert the course of justice and on 28th October 1991 he was charged with that offence. He informed the Council of the new charges.
(vi) The Council's letter to the plaintiff of 29th October 1991 was of importance and it must be set out in full: It was signed by Mr Gary Moss, Director of Finance Services.
"Re: Suspension from duty
I am writing to advise you that with immediate effect you are no longer suspended from duty with Lambeth Council. However, I understand that a fundamental condition of your bail is that you are not to contact any council officer as a result of which it appears you are by your own actions unable to fulfil your contract of employment.
Further, I am advised by the police that the situation is likely to continue for many months possibly until mid 1992. If this is correct you are effectively absent without permission in which case the Council can not continue to pay you.
Furthermore, as a result of your actions it appears that you have effectively frustrated your contract of employment and I have arranged for your employment records, P.45 etc., to be sent to you as soon as possible.
In view of this if you have any further representations to make with regard to your employment please arrange for your solicitor to discuss the matter with me before the end of the month".
(vii) That letter of 29th October 1991 was written upon advice given and recommendations made by senior officers of the Council set out in a report to the Urgency Committee of the Council. It was not disclosed by the Council but produced at the hearing on subpoena issued by the plaintiff. The plaintiff knew from his experience of working for the Council that such a document must exist. He has attached much importance to it in argument. The contents of it include the following:
"Frustration of contracts of employment:
Mr T Boyo Directorate of Finance Services
Ms C McDonald Directorate of Housing Services
Mr F Smith Directorate of Housing Services
Purposes
This report recommends that Mr Boyo, Ms McDonald and Mr Smith be regarded as being absent without permission in view of their bail conditions and that the Council ceases to pay them following frustration of contract.
Recommendations
(i) That Mr Boyo, Ms McDonald and Mr Smith be regarded as being absent without permission and cease to be paid with immediate effect.
(ii) That on the advice of legal services these staff have frustrated their contracts of employment and as a result have left the Council's service.
For decision
1. Reason for approval being sought under the urgency procedure.
1.1 Mr Boyo and Ms McDonald and Mr Smith are currently on suspension with full pay and this is likely to continue to be so for a considerable length of time, at the Council's cost, unless action is taken.
3. Justification
3.1 The Council faces a difficult employment situation within its existing policies and procedures in (these) cases…who have been charged with conspiracy to defraud Lambeth and are currently on bail pending a further court appearance. In addition Mr Boyo has been charged with conspiracy to defraud Greenwich Council, and all of the charges relate to fraudulent housing benefit payments.
3.2 The prosecution resulted from investigations originally initiated by the D.H.S. Housing Benefit Investigation and Recovery team and the D.O.F. Audit Division, the results of which were passed...
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