Appeal No. EAT/40/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 17 July 1995

	Before

	THE HONOURABLE MR JUSTICE TUCKEY

	DR D GRIEVES

	MRS E HART

MRS J MARAGH	APPELLANT

THE ST HELIER NHS TRUST	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR MARK KELLY
(Of Counsel)
Messrs Carmo Yeung
79 St Martins Lane
London
WC2N  4AA

For the Respondents	MR NEIL GARNHAM
(Of Counsel)
Messrs Capsticks
General Accident Building
77/83 Upper Richmond Road
London
SW15  2TT

		MR JUSTICE TUCKEY:   This is an appeal from the decision of the London (South) Industrial Tribunal who, after a four day hearing in July and October 1993, unanimously concluded that the Appellant, Mrs Maragh was not unfairly dismissed by her former employers The St Helier NHS Trust.  She had also made a complaint of racial discrimination.  That complaint was also dismissed and there is no appeal before us today against that part of the decision.  

	Mrs Maragh was employed by the Respondent health trust between 12 April 1970 and 31 January 1992, when she was summarily dismissed.  She was an enrolled nurse and the circumstances of her dismissal arose directly out of her nursing duties in November and December 1991.  The employers found that on the night of 29/30 November 1991, when Mrs Maragh was on nightshift, she contravened the hospital's policy in regard to the administration of drugs by showing that she had administered drugs at 10.00 a.m. on 30 November 1991, when she had not.  They also found that she subsequently falsified the prescription chart by making an entry on the back of it, which purported to show that the entry she had made for 10.00 a.m. was a mistake.  Secondly, they found that on the nightshift of 2 and 3 December 1991, she undertook a nursing care practise on several patients which was not in their best interests, or in accordance with their written care plans.  This involved the misuse of a sheet for geriatric patients.  The third matter they relied on was that on the same nightshift, Mrs Maragh had been responsible for a further drug administration error, in that she had not checked to see that some intravenous fluid had passed the date when it should have been used.

	Most of those matters came to light fairly shortly after they occurred and Mrs Maragh faced a disciplinary and investigatory hearing.  She was given notice of that hearing in a number of letters from the employer's side, which made it clear that at the investigatory disciplinary interview which was the first stage in the process, the allegations would be investigated and the question of disciplinary action against Mrs Maragh as a result of those investigations would be considered.  The Respondents disciplinary code made it clear that deliberate falsification of records and the unauthorised administration of drugs, were regarded as examples of gross misconduct.  Mrs Maragh did not attend the interview which had been adjourned once and finally took place in her absence on 28 January.  

	The Industrial Tribunal investigated the question as to whether it was right for the hearing to proceed in Mrs Maragh's absence, she having claimed that she was unable to attend because she was sick.  They concluded that there was nothing unreasonable or unfair in their proceeding in her absence on that occasion.  The reasons for that conclusion which are set out in the Tribunal's decision, have not featured in this appeal, so we do not need to refer to them.  At the hearing on 28 January the officer investigating the matter and considering disciplinary action, had, for the first time, a statement from Mrs Maragh which said that she had signed the back of the drugs chart to state that the drugs had not been given at 10.00 a.m. at the time.   This was something which had not been said before and specifically had not been said when complaint was first made about what appeared on the card, by the Applicant's hospital manager Mrs Haygarth.   At that time she had not given any explanation and specifically had not given any explanation for the entry.           

	With Mrs Maragh's statement in front of them, understandably at the hearing on 28 January those who came to give oral evidence were asked whether the correction to the record had been made at the time.  The three witnesses who had been involved at the time, each said that they had not seen any such correction at the time.  The interviewing officer concluded that this alteration had been made by Mrs Maragh subsequently, knowing of course of the difficulty she faced by the original entry, which had given rise to the disciplinary process against her.  The officer decided on 28 January that the combination of the three matters to which we have referred justified summary dismissal and this took effect a day or so later.  

	The letter recording the decision included the statement:

	"In addition to maladministration [that is maladministration in reference to the 10.00 a.m. entry on the 	drug chart]  I am of the view that you deliberately falsified a patient's chart" 

Mrs Maragh availed herself of the internal disciplinary appeal procedure, which took place on 27 May, at which hearing she was represented by Counsel and gave evidence herself.  It is clear that there was a full hearing.  Following the hearing, the appeal panel confirmed the summary dismissal.   At the Industrial Tribunal as the Chairman's reasons make clear, the four days were occupied amongst other things with the question of whether or not the Respondents belief in the Applicant's guilt was based on reasonable grounds; whether or not the dismissal was preceded by an investigation which was reasonable in all the circumstances of the case; whether the disciplinary procedure was fair; and whether or not the sanction of summary dismissal was in proportion to the offences of which the Applicant was found guilty.  So they followed the classic route laid down for them by this Tribunal in Burchell.  

	From the reasons it is clear that they addressed each of those questions.  They concluded that if there had been anything procedurally unfair about going ahead in the Appellant's absence on 28 January, that had been fully cured by the subsequent appeal, which amounted to a re-hearing of the case.  They concluded that the Respondent did take the Applicant's record into account and were entitled to find on the balance of probabilities, that the offence was indeed committed.  They concluded that it was impossible to say that summary dismissal was outside the range of reasonable responses open to the Respondents.  In short their finding  was, as we have already said, that this dismissal was not unfair.

	The Notice of Appeal supplemented by further and better particulars, complained that the decision was perverse because there was no evidence to support a material finding of fact.  The material finding of fact identified was that the Appellant had falsified the record subsequently and not at the time as she contended.   Both before the internal appeal hearing and before the Industrial Tribunal that issue was ventilated at length.  Mr Kelly who appears for the Appellant today did not spend much time on that point but we are quite satisfied that there was evidence which justified the Tribunal's conclusion that the Respondent had reasonable grounds for believing that this is what had happened.

	We turn to the points that have been argued on this appeal summarised in the clear and helpful Skeleton Argument produced by Mr Kelly.  What he says firstly is that the point about the record being falsified, was not put forward as a basis for dismissing Mrs Maragh until it emerged at the hearing (at which she was not present).  By then, it was too late to investigate it properly.  In any event, once it had emerged at that time as a new ground for dismissal, the hearing should have been adjourned.   He argues that the subsequent appeal procedure did not cure those defects in procedure and was in itself flawed because it does not appear to have investigated whether or not the allegations were true.  It did not give the Appellant the benefit of the doubt which must have existed.  It failed altogether in considering whether summary dismissal was justified to have regard to the fact that the Appellant had worked for more than twenty years in an entirely satisfactory way.  So, Mr Kelly argues, as the Industrial Tribunal did not consider these procedural flaws its decision is flawed and amenable to be interfered with by us.

	A further point is made that the Industrial Tribunal and the Appeal Tribunal failed to take account of the fact that Mrs Maragh had made allegations of racial discrimination.  The fact that she had made those allegations might have affected the credibility of the witnesses who gave evidence against her. 

	The Respondents object to all those points being taken before us because they say this was not the way in which the case has been put at any stage before.  Before the Industrial Tribunal the Appellant was represented by two Counsel on the appeal procedure, she was represented by Counsel and at no time were those sort of points taken.  We are referred to well known principles laid down by this appeal Tribunal.  New points are generally not allowed.  Certainly new points which require additional findings of fact in order to resolve them, can never be raised here. 

	We would have dismissed this appeal on this basis alone.  However as we have considered the new points raised and the Respondents answers to them, we think in fairness to everyone, it would be right to say that we do not think that there is any substance in them.  So even if we permit them to be argued, they would not carry the day for the Appellant.

	The points which arise out of what happened on 28 January, good, bad or indifferent though they may be, must, it seems to us have been cured by the appeal hearing.  We have notes of what happened on that occasion.  It is quite clear that the Appeal Panel in the presence of the Appellant with legal representation, reinvestigated the matters which were alleged against her.  The witnesses were called against her.  She was allowed to give her own account.  The witnesses were cross-examined.  The appeal panel decided to confirm the dismissal.  There was ample material upon which they could have reached that decision.  Mr Kelly's points about the letter they wrote to Mrs Maragh after the appeal have to be considered with this in mind.  If they were not concerned to investigate whether the allegations made were true, why did they hear all this evidence which is only relevant to whether this was the case?   As to giving Mrs Maragh the benefit of the doubt, we are in no doubt that they did take account of her long record: this was one of the points that was made and is recorded as having been made on her behalf. 

	We can see nothing in the criticisms which are made of the appeal.  There can be no doubt either that this Appeal Panel, whose task it was to consider whether the summary dismissal of the Appellant should stand, must have considered the Appellant's long service record with the hospital.  The point about the credibility of witnesses being affected by the fact that a complaint of racial discrimination was being made, was specifically set on one side before the Appeal Panel as their notes record and we do not think this point carries the argument any further forward.  The Industrial Tribunal as we have already noted, dealt specifically with the question of whether or not this was too severe a penalty for this Appellant in all the circumstances.  Their finding of fact was that this was within the range of reasonable responses open to the Respondents and that accordingly the dismissal was not unfair.  

	However skilfully Mr Kelly has packaged his points, we are quite satisfied that there is no point of law which would enable this Tribunal to interfere with the decision of the Industrial Tribunal, either on the basis that it was perverse, or on any of the other grounds advanced by Mr Kelly.

	Accordingly this appeal must be dismissed.