Appeal No. EAT/0331/03/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 17 July 2003

Before
HIS HONOUR JUDGE PETER CLARK
MR B BEYNON
MR P M SMITH

MRS M BARCELOS	APPELLANT

LONDON BOROUGH OF HAMMERSMITH & FULHAM	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A ELESINNLA
(Of Counsel)
Instructed by:
Messrs J R Jones
Solicitors
56A The Mall
Ealing
London
W5 3TA	
For the Respondent	MR A SHARLAND
(Of Counsel)
London Borough of Hammersmith & Fulham
Legal Services Division & Administration Department
Town Hall, King Street
Hammersmith
London
W6 9JU	

JUDGE PETER CLARK

1.	This is an appeal by Mrs Barcelos, the Applicant before an Employment Tribunal sitting at London Central under the chairmanship of Ms S Leslie, against that Employment Tribunal’s decision, promulgated with Extended Reasons on 21 January 2003, dismissing her complaint of unfair dismissal brought against her former employer, the London Borough of Hammersmith and Fulham (the Council).

Facts
2.	The Appellant commenced her employment with the Council as a home help on 28 October 1976.  On 16 August 2000 she was disciplined for failing to inform and discuss with her manager a relationship she had with a client outside work.  The Appellant’s work for the Council brought her into contact with frail and vulnerable individuals.  Guidance Notes issued by the Council set down standards to be followed by staff working in this area of the Council’s responsibilities.  The Employment Tribunal accepted that the Guidance constituted legitimate and reasonable instructions to staff.

3.	The outcome of the disciplinary, conducted by David Williams, the Divisional Manager, was that the Appellant was found to have breached the code of conduct.  She received a first and final written warning to remain on her file for 3 years.  Following a first unsuccessful internal appeal against that disciplinary award on 10 October 2000 the Appellant appealed to a panel of Councillors and was informed that the warning would remain on her file for 2 years not 3.  In informing her of the final appeal panel’s decision the Appellant was told in terms by a letter dated 23 March 2001:

“The panel wishes to make clear to you that any further misconduct of a similar nature on your part is likely to result in further disciplinary action.  This could result in the termination of your contract with the Council.”

4.	Despite the clear warning given to her as to her future conduct the Appellant soon found herself facing similar disciplinary charges again, this time relating to a client Mrs Marsden.  On 3 April 2001 she was asked to attend a preliminary investigation on 17 April.  The Appellant asked for a postponement on the basis that her Trade Union representative would then be on holiday.  Her manager, Mr Huggins discovered that this was not true.  Then she was asked to attend a meeting with Mr Williams on 2 May to discuss her suspension.  She declined to attend.  She said that she would only have contact with Mr Williams through her solicitors.

5.	It was a term of her suspension that she would have no contact with service users or work colleagues.  Despite that prohibition she visited her line manager, Ms Walser at her home on 31 May, ostensibly to deliver an invitation to her son’s wedding.

6.	On 15 June 2001 she attended a disciplinary hearing before Mr Christie, Assistant Director of the Social Services Department.  She was then represented by her Solicitor.  She faced 3 charges.

(1)	breaching the Guidance Notes by visiting her service user and attending a review meeting at her home when not authorised to do so.

(2)	a further breach, in that she obtained and used a key to gain entry to Mrs Marsden’s home.

(3)	visiting Ms Walser at home in breach of the terms of her suspension.
7.	At the outset of that hearing the Appellant admitted all 3 charges.  She put forward mitigating circumstances but, during the hearing she felt unwell and as a result the hearing was adjourned to 11 July.

8.	The Appellant then requested a further adjournment so that she could discuss the matter with her Trade Union representative.  The hearing was adjourned until 3 August.  The Appellant then asked for that hearing to be adjourned for the same reason but Mr Christie discovered that the Appellant’s Union was not representing her in the disciplinary proceedings.  Accordingly that adjournment request was refused.  

9.	The Appellant did not attend the hearing on that date.  Mr Christie proceeded to find the 3 charges proved (they were admitted) and having considered the Appellant’s mitigation proceeded to dismiss her on those 3 charges, taking into account the earlier, relevant final written warning.

10.	Against that decision the Appellant appealed.  The appeal hearing, which she attended with her legal representative, lasted for 6 hours on 14 March 2002.  It was, the Employment Tribunal found, in the nature of a rehearing, not a review of Mr Christie’s decision.  At the end of that hearing the Appellant confirmed that the hearing had been fair.  The appeals panel, consisting of Councillors, dismissed the appeal.

The Employment Tribunal Decision
11.	The Employment Tribunal found that the Appellant was dismissed by reason of her conduct.  Applying the Burchell test the Employment Tribunal found that the Council had a reasonable belief in that misconduct, based on reasonable grounds (it was admitted).  The Council carried out a reasonable and adequate investigation.  They also carried out a reasonable and fair procedure; it was reasonable for Mr Christie to hold the hearing on 3 August, in view of the earlier adjournments, however new allegations were raised at that hearing and in the view of the Employment Tribunal an adjournment should then have been granted to allow the Appellant to deal with them.  But, any procedural failings at the first stage disciplinary were cured on appeal by the rehearing before Councillors.  The Employment Tribunal record that Counsel for the Appellant, Mr Elessinnla conceded that the new allegations formed no part of the management’s case on appeal.

12.	Pausing there, it appears on the face of Mr Christie’s dismissal letter dated 6 September 2001 that his decision was based on the 3 original, admitted charges and no others and no reference was made to the new allegations in that letter where he dealt with the mitigating factors advanced by and on behalf of the Appellant.
 
13.	Finally, the Employment Tribunal found that dismissal was a fair sanction given the earlier final warning.  They also accepted that the Appellant was unsuitable for alternative positions within the Council given her persistent refusal to obey instructions which could place service users at risk.

The Appeal
14.	In this appeal Mr Elesinnla advances 3 separate grounds.  A fourth ground, invoking the European Convention on Human Rights, has been formally abandoned.  We shall deal with each ground in turn, reminding ourselves that our jurisdiction is limited to correcting errors of law.  We cannot and will not retry the facts.

(1)	Here the submission is that the finding by the Tribunal that the dismissal, and in particular the sanction of dismissal, was fair was a perverse conclusion in circumstances where the Council, through Mr Huggins, delayed for 1 month between first learning of the Marsden allegations and acting on those allegations.  In this way, submits Mr Elesinnla the Council condoned the Appellant’s activities.

15.	That was the submission made forcefully below, Mr Elesinnla tells us.  It did not find favour with the fact finding Employment Tribunal.  That was entirely within their province.  We see nothing amounting to perversity in the true legal sense.  

(2)	Mr Elesinnla’s principal submission, namely that the Employment Tribunal was wrong in law to conclude, at paragraph 15(v) of their reasons, that the Council adopted a reasonable and fair procedure.  We should set that sub paragraph out in full:

“(v)	We are satisfied that the Respondent adopted a reasonable and fair procedure in this matter.  In particular, we accept that it was reasonable for Andrew Christie to proceed with the hearing on 3 August 2001 in the Applicant’s absence due to ill health.  The Applicant had been granted three adjournments up to that date and had been less than truthful about the reason for wanting a further adjournment.  Moreover, although we consider the hearing on the 3 August 2001 should have been adjourned latterly to give the Applicant the opportunity to respond to the new allegations that arose during the course of the hearing, we consider that any inadequacies at this stage of the proceedings were cured subsequently by the appeal which amounted to a rehearing of the Applicant’s case.  In any event the Applicant’s Counsel conceded in submissions that the new allegations formed no part of the management’s side’s case on appeal.”

16.	First, Mr Elesinnla disputes the concession attributed to him by the Employment Tribunal in the last sentence of paragraph 15(v).  That places us in a difficulty.  Mr Sharland, who also appeared below, recalls that such a concession was made.  It would be strange for the Employment Tribunal, in an otherwise careful decision, to mistake Counsel’s position.  However, if that is the contention our procedure requires affidavit evidence on behalf of the Appellant; comments from the Employment Tribunal Chairman and if necessary members and affidavit evidence in reply from the Respondent.  That procedure has not been followed and accordingly we shall accept the finding of the Employment Tribunal.

17.	However, even without that concession it appears to be the fact that management did not include the new allegations put before Mr Christie in the absence of the Appellant on 3 August 2001 in their case before the appeal panel.  In these circumstances there was nothing to put to the Appellant on that occasion.  Those allegations do not appear in Mr Christie’s detailed dismissal letter dated 6 September 2001.

18.	The Employment Tribunal were entitled to find, in our judgment that the 6 hours appeal hearing, at which witnesses on both sides were called, directed solely to the question of sanction, the disciplinary charges having been admitted, was a rehearing and not simply a review of Mr Christie’s earlier decision.  In these circumstances we can see no grounds in law for interfering with this part of the Employment Tribunal’s findings.  It is therefore unnecessary for us to consider an alternative argument advanced by Mr Sharland that the Christie hearing was fairly conducted.  Any procedural defect at the first stage was properly cured on appeal.

(3)	Finally it is said that the Employment Tribunal’s finding at paragraph 15(vi), that the Council was entitled to conclude to the Appellant was unsuitable for alternative employment in view of her persistent refusal to obey instructions, is wrong in law.
 
19.	Mr Elesinnla referred us to observations made by Balcombe LJ in P v Nottinghamshire County Council [1992] IRLR 362, paragraph 20, where His Lordship said this:

“However, on consideration I have come to the conclusion that that is to give the words of s.57(3) [now s.98(4) ERA], quoted above, too narrow and technical a construction.  Even though the nature of the employment is to be changed, that could be achieved by a variation of the terms of the original employment.  Further, there are dicta in certain of the cases which suggest that the possibility of alternative employment must be a relevant factor for an employer to take into account before dismissing an employee from the particular employment for which he has become unsuitable.  See Dobie v Burns International Security Services Ltd [1984] IRLR 329; Henderson -v- Masson Scott Thrisell Engineering [1974] IRLR 98 at 99, 18; cf Garricks (Caterers) Ltd -v – Nolan [1980] IRLR 259.  Accordingly I am satisfied that, in an appropriate case and where the size and administrative resources of the employer’s undertaking permit, it may be unfair to dismiss an employee without the employer first considering whether the employee can be offered some other job, notwithstanding that it may be clear that he cannot be allowed to continue in his original job.”

20.	However those remarks must be viewed in the context of that case on its facts.  P was dismissed following his conviction for an offence of indecent assault on his daughter.  By a majority decision the Industrial Tribunal found his subsequent dismissal by the Respondent employer to be unfair.  One finding by that majority was that the Respondent had failed to investigate sufficiently the possibility of alternative employment if P could not continue in his original job which brought him into contact with young children.  Both the Employment Appeal Tribunal and the Court of Appeal held that that finding could not stand.

21.	All that Balcombe LJ was saying in the passage relied on by Mr Elesinnla is that in an appropriate case it may be unfair if the Respondent does not consider the possibility of finding the employee alternative employment.  In our judgment this Employment Tribunal was entitled to find that on the facts of this particular case the Council reasonably concluded that alternative employment was not an option where the Appellant had shown herself to be someone who would not follow necessary instructions.  We infer that was a matter which went to the Council’s trust and confidence in the employee necessary for a continuing employment relationship.

22.	In these circumstances, having carefully considered each of the ways in which this appeal has been attractively advanced by Mr Elesinnla we find ourselves unable to discern any error of law in the Tribunal’s approach.  Consequently the appeal must be dismissed.