Appeal No. EAT/1457/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 14 May 2002

Before
HER HONOUR JUDGE A WAKEFIELD 
LORD  DAVIES OF COITY  CBE

MR J C SHRIGLEY

`

HOLLYGARTH CARE HOMES LTD	APPELLANT

MRS J PEVERLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised 

	APPEARANCES

For the Appellant	Mr A Hughes
Consultant
First Business Support
Hurstwood House
Station Court
Newhallhey Road
Rawtenstall
Rossendale
Lancs BB4 6AJ	

JUDGE A WAKEFIELD

1	This is an ex parte preliminary hearing of an appeal by Hollygarth Care Homes Ltd against a Decision of an Employment Tribunal sitting at Newcastle Upon Tyne by which, following a three day hearing in June and September 2001, it was decided that the present Respondent, Mrs Joyce Peverley, had been unfairly dismissed.  

2	The brief background facts were that the Respondent had been employed at the Pavilion Residential Home from June 1985, latterly at least as Manager.  On 15 February 1999, her contract of employment had been transferred to the Appellant under the provisions of the Transfer of Undertakings (Protection of Employment) Regulations 1981.  

3	Within two weeks of that transfer a Director of the Appellant had raised with the Respondent the matter of her salary which was apparently considerably in excess of what the Appellant had understood at the time of the transfer.  The matter was raised again by the Appellant a few weeks later.  

4	In May 1999, the Appellant received an oral complaint about the Respondent, followed the next day by an anonymous letter, containing a number of complaints against the Respondent regarding her conduct in the course of her work.  An investigation followed, concluding in a disciplinary hearing, on 24 May 1999, the conclusion of which was that the Respondent was dismissed.  

5	She appealed unsuccessfully against that decision.  In paragraphs 6 - 8 of the Employment Tribunal’s Decision, were set out the matters which they took into account and their ultimate conclusion as follows:
“6.     The Tribunal firstly considered the reason for the dismissal and noted the reason given for the dismissal by the respondent was gross misconduct.  At the disciplinary hearing however it was unclear, how the respondent could have found the allegations, particularly concerning invasive procedures and abuse of clients and staff to have been substantiated.  The respondent, had not mentioned the most serious allegations.  The Tribunal found it surprising that although twelve members of staff had been interviewed as part of the investigation, the respondent had made no attempt to determine the precise details of what had happened eg in terms of dates, times and who was present or to consult its records.  Accordingly it would have been unable to present details to the applicant which would have enabled her to defend the allegations.  Further the number of allegations appeared to have increased from the initial complaint.  It appeared to the Tribunal that the respondent had intended to dismiss the applicant from the time of the takeover and was trying to find a way to do so……….  
7.     The Tribunal noted the proximity of the conversations with the applicant about pay, the first being within date 2 weeks of the date of transfer.  Although Mr James McGeorge had indicated that other managers were paid similar amounts, or even higher salaries than the applicant no documentary evidence was produced to the Tribunal so as to substantiate this, for example, from wage records.  In the view of the Tribunal, this would have been a relatively simple matter to verify but the respondent did not do so.  Mr James McGeorge conceded that he had concerns about the level of the salary.
8.     The Tribunal concluded on balance preferring the evidence of the applicant to those of the witnesses for the respondent that the remarks attributed to Mr James McGeorge about the applicant’s salary had been made and that the respondent had considered the matter seriously enough to involve his solicitor.  
9     The Tribunal took the view that the applicant was dismissed in all probability because it did not want to continue to pay the applicant the pay to which she was entitled following the transfer and therefore found that the dismissal was automatically unfair as the dismissal was connected with the transfer.  The application relating to unfair dismissal was accordingly well founded.”

6	These findings are criticised in the Notice of Appeal as being perverse.  What the Notice of Appeal says, in part, is this:
“The grounds upon which this appeal is brought are that the Employment Tribunal misdirected itself in considering the evidence presented to it and that its decision was perverse in that it failed to address clear evidence of Gross Misconduct by the Respondent, in accordance with the principles set out in British Home Stores Ltd -v- Burchell [1978] IRLR 379….”
And then right at the end of the Notice it says this:
“It is the Appellants contention that the Tribunal effectively substituted their own view for that of the Respondents and ignored the overwhelming evidence tendered to the Respondents, which accounted for them forming a reasonable belief.  The Appellant will argue that to do so was perverse and in breach of the precedent of Burchell.”

7	It was initially our understanding of these grounds that the Appellant had misunderstood that the Employment Tribunal had, on its findings as to the dismissal being automatically unfair by reason of being connected with the transfer, not been required to consider the issue of fairness and the Burchell principles.  

8	The representative for the Appellant has however explained that the thrust of the appeal is that the Employment Tribunal were perverse in the light of the evidence before them (and we have also now seen the bundle of documents which were before the Tribunal) not to have found that the reason for the dismissal was conduct, and thereafter to have gone on to consider the question of the fairness of that dismissal.  

9	We have some concerns as to the way in which the Employment Tribunal dealt with the evidence before them, and have concluded that the appeal should go forward to a full hearing for consideration to be given to the sole question whether, in the light of the evidence before the Employment Tribunal, it was perverse for them to find that the Appellant had not shown the reason for the dismissal and that it was a reason within section 98(2) of the Employment Rights Act 1996.  In allowing the appeal to go forward, we are not giving any indication of our view as to the eventual outcome.  

10	We consider that the Chairman’s Notes of evidence are necessary for the hearing of the appeal.   We also order that there be a substitute Notice of Appeal served within fourteen days of today on that one, very limited, ground.  We put the matter into category C, and it is our view that half a day would be sufficient for argument,  Skeleton Arguments are to be exchanged and filed with the Appeal Tribunal not less than fourteen days prior to the hearing.