Appeal No.	EAT/1219/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 27 January 1999

Before
THE HONOURABLE MR JUSTICE MORISON (PRESIDENT)
MR R N STRAKER
MR A D TUFFIN CBE

MR S FROGGART	APPELLANT

DR A T GORDON BDS T/A GORDON DENTAL PRACTICE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS J McNEILL
(Of Counsel)
ELAAS	
For the Respondent		

	MR JUSTICE MORISON:	This is the appeal in the case of Froggatt v Dr A T Gordon BDS t/a A T Gordon Dental Practice.   The purpose of this hearing is to determine whether there is an arguable point of law in an appeal which Mr Froggatt wishes to make against the unanimous decision of an Industrial Tribunal held at Leicester on 18 May 1998.   

	Mr Froggatt had brought an application against his former employer, Dr A T Gordon t/a Gordon Dental Practice, alleging that he had been unfairly dismissed and that the employers had broken his contract of service.   There were other claims which do not arise for consideration at this time.

	The decision of the Industrial Tribunal was sent to the parties on 8 September 1998 and we summarise their findings:   

	The Applicant qualified as an anaesthetic technician and was working for the Respondent from 1 July 1997 in that capacity.   He worked at two particular surgeries.   Those qualifications are of significance because they enable him to participate in dental surgery, taking place in the dentist’s premises, where the patient is anaesthetised - that was the essence of the practice being carried on by the Respondent in this case.

	On 30 October 1997, when helping to lift a patient, the Applicant injured his back and took four days off work.   He was critical, and had been critical, of health and safety at work issues.   It is plain from looking at the IT1 in this case that he was alleging he had been dismissed for claiming a statutory right and/or wrongful dismissal and/or breach of contract and/or illegal deduction under the Employment Rights Act 1996.

	In support of his claim ‘unfair dismissal for claiming a statutory right’ he made a number of allegations which are set out in the typescript response to question 11 on the IT1 form referring, in paragraph 3, to the injury to which I have just referred and the allegation he made was that there was no accident book and that there were various other non-compliances with health and safety at work Act obligations and the control of substances hazardous to health regulations.

	Continuing with the story, the Tribunal found that on 12 November 1997 the Applicant was on duty in the surgery.   The dentist on duty was Mr Chandran, a practitioner in Dr Gordon’s practice.   The patient was anaesthetised, the Applicant wanted to question the qualifications of the Respondents’ dental nurses as to whether they were sufficient to enable them to act as anaesthetists assistants.   It was his view that all assistants should have the same qualification as he had in order to entitle them to act as an anaesthetists assistance.   When he raised this point, as the patient was being anaesthetised, the dentist told him to be quiet until the tube required for the anaesthetic machine had been successfully inserted into the patient.   As soon as the anaesthetist has completed the procedure he, the Applicant, walked out and telephoned Dr Gordon to raise his concerns about qualifications and breaches of procedure that he perceived were occurring.

	The guidelines which are designed to protect patients from anaesthetic mishaps occurring in dentist surgeries require that surgery should not continue where a patient is anaesthetised in the absence of an anaesthetic assistant.   Accordingly, when the Applicant left the dentists surgery, there was a dilemma.   The patient was anaesthetised and either the patient had to be resuscitated and the procedure stopped or else the dentist had to continue with the work - which is what happened.

	The Applicant said that he would not return to the surgery which, of course, placed the rest of the list in jeopardy.   However, he was persuaded to stay, he did so and the list was completed.   At the end of the day the employer, Dr Gordon, spoke to Mr Chandran to find out what had happened and then spoke to the Applicant in an attempt to get him to resolve any differences he had with Mr Chandran.   The Applicant was emphatic that he could not work with Mr Chandran and went on to make a number of criticisms of him.   He also criticised a long-standing and experienced recovery nurse who was employed in the practice.

	During the conversation that took place with his employer the Applicant said that he did not want to work in the practice any longer and then he refused to attend for work on the following day at the other surgery.   The Respondent told the Applicant that he would have to make further enquiries, in the light of their conversation, and that he would telephone him the following day concerning his refusal to work.   The Tribunal found that the Applicant was fully aware that his refusal to work could lead to his dismissal.

	The following day the employing dentist spoke to Mr Chadran and to the dental nurse in order to obtain her version of the events of the day before.    She confirmed that the Applicant had walked out before the treatment of the patient had been completed.   The Respondent employer considered what he had been told, was satisfied that the Applicant had left the surgery prior to treatment being completed and concluded that the Applicant had no valid reason for leaving or for refusing to work on 13 November and, as a result, found that he no longer had the required trust and confidence in the Applicant to carry out the duties of an anaesthetists assistant.

	The Tribunal note that the employer was also concerned about the Applicant’s criticism of the professional competence of his staff and he was also concerned that the Applicant had indicated that he no longer wanted to work for the practice.   As he required complete confidence in his staff he decided to dismiss the Applicant and so informed him.   Thereupon the employment terminated.   The effective date of termination being 13 November.

	The Tribunal then turned to the question at issue.   They said this:

“4.	On the basis of those facts, we are satisfied that the principal reason for the dismissal was the applicant’s refusal to attend for work on 13 November.   In addition, there was the criticism the applicant made of Mr Chandran and the recovery nurse (which he expressed on 12 November) together with his walking out of the surgery on 12 November in contravention of the guidelines.   These led to a loss of trust and confidence in the applicant who was employed to take a responsible part in the treatment of patients.   Earlier events or the assertion of any statutory right or any matter of health and safety raised by the applicant played no part in the decision.   In those circumstances, as the applicant did not have two years continuous service at the effective date of termination, section 94 of the Employment Rights Act 1996 does not apply to his dismissal.   His claim of unfair dismissal is therefore dismissed.”

	They went on and asked themselves the question what would have been the position had there been the requisite two years service and they concluded that the dismissal would still have been fair.

	The Appellant, by an amended Notice of Appeal, seeks to argue three points.   The first is that the Employment Tribunal erred in law in failing properly to consider the Appellant’s contention that he had been dismissed for asserting breaches of the health & safety regulations and other associated matters.   In particular the Tribunal failed to make any specific findings of fact in relation to the health and safety matters complained of or to consider whether the matters complained of may have caused or contributed to the events on 12 November 1997, that is, him leaving the surgery, or to making any findings of fact why the Applicant was not willing, as the Tribunal found, to work in the practice any longer.

	Secondly - and this follows from the first point - it was argued that the Employment Tribunal failed, contrary to regulation 10(4) of the Employment Tribunal Regulations, to give such reasons as would enable the Applicant to know that his complaint of dismissal, contrary to section 100 of the Employment Rights Act 1996, had been considered and why that complaint was dismissed.

	Thirdly, that there was apparent bias on the part of one of the lay members of the Tribunal who was seen to be discussing the Applicant’s case in a public area with a member of staff during the lunch break whilst the Applicant was giving his evidence in chief.   

	We can deal with each of those matters shortly.   It seems to us unfair to criticise the Industrial Tribunal in this case in the way it set out its decision on the central question before it.   That central question required them to determine whether health and safety matters played any part in the decision to dismiss.   If they did, then the Tribunal would have had jurisdiction to consider the complaint of unfair dismissal because a dismissal of a person who is complaining about these matters and for the reason that he was so complaining would give the Tribunal jurisdiction even though there was less than two years continuous service.   That issue was, as we see it, firmly dealt with by the Industrial Tribunal in paragraph 4 of their decision.

	They rejected the Applicant’s case that the complaints or his doubts which he had been raising with his employer played any part at all in the decision that he should be dismissed.   It is clear from the way they have recounted the facts, that in their view by leaving the surgery whilst a patient was under an anaesthetic the Applicant had acted quite unprofessionally and put the dentist concerned in a major difficulty.   His further statement that he would not continue in the surgery that day was also a serious matter for the employers to deal with.   That being so, it seems to us entirely clear that the Tribunal was entitled to decide that it was for that reason alone that he was dismissed, and justifiably dismissed.   

	The fact that he may have been leaving the premises in order to raise a health and safety issue, or to raise a question as to the qualifications of a dental nurse would not, in our judgment, have affected in any way the essence of the Tribunal’s decision.   They were not concerned with why he left - save in so far as they may have been concerned to make sure there was no particular emergency which required him to leave - it was the leaving that was the difficulty caused in this case.

	Accordingly, it seems to us, quite unfair to suggest that the Industrial Tribunal has erred in law by not dealing with a matter which, on the facts as they found them, did not arise for further determination.   In our judgment, therefore, neither grounds 1 or 2 have any reasonable prospect of success and the appeal in relation to them should be dismissed.

	That leaves only the third question which is, were there grounds for apparent bias as a result of what took place during a break in the proceedings.   The contention in the amended Notice of Appeal was this:

“There was apparent bias on the part of one of the lay members of the Tribunal who was seen to be discussing the applicant’s case in a public area with a member of staff during the lunch break whilst the applicant was giving his evidence in chief.”

	Miss McNeill very helpfully elaborated on that before us.   She said, in essence, the complaint was this:  as the Applicant was going down the hallway during a break in the proceedings he heard one of the two lay members concerned with his case speaking to a member of the Employment Tribunal Service Staff.   He was indicating, in what was described as a ‘jocular’ or ‘disparaging’ manner that more than one day would be required for this case, and he laughed.   It was suggested to us that this gave an indication that the claim was not being approached in a judicial manner but, rather, with levity.

	Normally where allegations of bias of this sort are made and which are significant, we put into effect a procedure, which is well known here, requiring an affidavit and a response from a Tribunal member.   However, having considered the nature of the contention that the Appellant wishes to make in this case we have to say that in our judgment it could not - even if true - possibly lead to any apparent bias on the part of the Tribunal.   

	This was a conversation between the lay member and a member of staff.   The lay members movements are matters of concern to the staff, because questions of arrangements and allowances will arise.   To indicate that a case was going on a bit further or longer than they had thought, even in a jocular manner, could not sensibly lead any rational person to the belief that their case was not being properly dealt with.   There is no suggestion that either of the two lay members or the Chairman did other than give serious consideration to the case whilst it was being heard within the Tribunal room.   What was said and apparently overheard during a break seems to us to be no indication at all that there has been any miscarriage or potential miscarriage of justice in this case and no actual or apparent bias.   If the Applicant heard this conversation then it was regrettable that it should have taken place in his hearing but it does not seem to us to disclose bias in any event.   

	Accordingly, none of the three grounds having been made out, this appeal must be dismissed.