Appeal No. EAT/0605/02 DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 March 2003

Before
THE HONOURABLE MR JUSTICE KEITH
MR P A L PARKER CBE
MR P M SMITH

MRS M GAD-BRIGGS	APPELLANT

HESLEY CARE SERVICES LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR PAUL TODD
(Solicitor)
Instructed by:
Messrs Hopkins Solicitors
Waverley House
37 West Gate
Mansfield
Nottinghamshire NG18 1SH	
For the Respondent	MS LORNA BORTHWICK
(of Counsel)
Instructed by:
Messrs Lyons Davidson Solicitors
Bridge House
48-52 Baldwin Street
Bristol BS1 1QD	

THE HONOURABLE MR JUSTICE KEITH

1	The Applicant, Matilda Gad-Briggs, was employed by Hesley Care Services Ltd (“the Company”).  She presented a complaint that she had been unfairly dismissed and discriminated on racial grounds.  An Employment Tribunal held at Nottingham dismissed her complaints, and she now appeals against the finding that her dismissal was not unfair.

2	Mrs Gad-Briggs and her husband are West African.  They came to the United Kingdom from Nigeria and settled here with their family.  Her husband is a doctor, and Mrs Gad-Briggs found work as a residential care worker at Broughton House College, which is one of a number of residential schools and colleges for children and young people with special needs, owned and operated by the Hesley group of companies, of which the Company is a member.  Her employment began on 28 September 1999.  She was the only black person working at the College.  She did not think that her colleagues at work accepted her and she put that down to her race.  She thought that she was being treated less favourably than some of her colleagues and again she put that down to her race.  The Tribunal found that she had not been treated less favourably on racial grounds, and there is no appeal from that finding.

3	The incident which was to give rise to Mrs Gad-Briggs’s dismissal occurred on 19 September 2000.  Mrs Gad-Briggs’s duties included looking after a young woman in her early 20s (“Melissa”) who was very disturbed and whose mental functions were limited.  Melissa required constant care.  Some time that afternoon Melissa put out a distress call.  Mrs Gad-Briggs went to Melissa’s room.  Melissa was misbehaving and Mrs Gad-Briggs put on some music to help calm her down.  She also called for assistance.  The other residential careworker on duty that afternoon was Christine Merchant.  Mrs Merchant was slightly delayed in coming to Mrs Gad-Briggs’s assistance, but Mrs Merchant was afterwards to claim that when she got to Melissa’s room she looked into it through the spy-hole, which she was able to do although she was only 5’2”.  She was to claim that she saw Melissa sitting on the bed, and Mrs Gad-Briggs standing sideways to the door with her left hand slapping the right side of Melissa’s face.  Mrs Merchant went into the room and confronted Mrs Gad-Briggs who was clearly distressed.  Although her hair was not in a mess she complained of having had her hair pulled.  Mrs Merchant took the view that what she had seen was something which she had to report, and that was the version of the events which she was to maintain throughout.

4	Mrs Merchant’s decision to report what she had seen was the subject of specific comment by the Tribunal:

“This was a matter which bothered this Tribunal.  Whilst some of us would in normal business when coming across another colleague’s mistakes is to behave like one of the three wise monkeys.  In nursing and caring we are told and accept keeping quiet is not something you can do.  It is as simple as that.  You must complain, to not to is both to put yourself in peril but much more importantly to put the patient in peril.”

5	For her part, Mrs Gad-Briggs was subsequently to say that what had happened was that when she had called for assistance Melissa had become violent.  Melissa had got hold of her head, pulled her hair and thumped her head against the wall.  However, Mrs Gad-Briggs claimed that at no stage had she ever slapped Melissa.  On the contrary, Mrs Gad-Briggs said that it was she who had been assaulted, and that she had had to go to hospital that evening to be treated for a sore neck.  Mrs Merchant would not have been able to see into that part of Melissa’s room where the two of them had been.  But whether she could have seen into that part of the room or not, Mrs Gad-Briggs was saying that Mrs Merchant had made it up, either because she had had it in for Mrs Gad-Briggs or because she had been put up to make an untruthful complaint about Mrs Gad-Briggs by Mrs Gad-Briggs’s line manager, who had it in for her because she was black.
6	Mrs Gad-Briggs was suspended on full pay pending an investigation into Mrs Merchant’s allegation.  Eventually, on 5 December 2000, a disciplinary hearing took place under the group’s disciplinary procedure.  The disciplinary panel consisted of the head of the College, and the head of another college in the group.  The panel heard from Mrs Merchant and Mrs Gad-Briggs.  Its members believed Mrs Merchant.  It concluded that slapping a patient, however much the careworker was being provoked, was unacceptable and that Mrs Gad-Briggs had to be dismissed.

7	Mrs Gad-Briggs appealed against the dismissal under the disciplinary procedure.  Her appeal was heard on 6 February 2001.  The appeal panel consisted of the group’s legal and personnel director, a senior consultant of the group and the head of one of the group’s schools.  The panel heard from Mrs Merchant and Mrs Gad-Briggs, and it also went to Melissa’s room to see the view which Mrs Merchant would have had into the room through the spy-hole.  The panel concluded that Mrs Merchant could have seen through the spy-hole what she claimed to have seen, and it too believed her version of events.  It also concluded that slapping a patient, however much the careworker was being provoked, was unacceptable, and it therefore confirmed the decision to dismiss Mrs Gad-Briggs.

8	It was argued in the Tribunal that two features of the disciplinary process had rendered Mrs Gad-Briggs’s dismissal unfair.  First, although statements from the relevant witnesses had been sent to the disciplinary panel before the disciplinary hearing on 5 December 2000, the panel had not had a statement from Mrs Gad-Briggs before the hearing.  Secondly, Mrs Gad-Briggs had not been permitted to be represented by her husband at the appeal hearing on 6 February 2001.  The Tribunal concluded that these features of the disciplinary process did not render Mrs Gad-Briggs’s dismissal unfair and those findings are not challenged on this appeal.  Nor is there any challenge to the Tribunal’s implicit finding that once the appeal panel had concluded that Mrs Gad-Briggs had indeed slapped Melissa, the dismissal of Mrs Gad-Briggs was within the range of reasonable responses open to the appeal panel.  The critical question which the appeal raises is whether the Tribunal erred in law in concluding that it had been reasonably open to the appeal panel to conclude that Mrs Gad-Briggs had indeed slapped Melissa on the day in question.

9	The Tribunal’s process of reasoning is set out in paragraph 18 of its extended reasons.  That paragraph reads as follows:

“We look first of all at that dismissal on the face of it.  We [say] that as far as we are concerned in hindsight there was an error of judgement in not allowing [Mrs Gad-Briggs’s] husband to attend.  That is not, in our view, a fatal flaw to the procedure.  The contractual procedure makes it quite clear about who can represent so to that [extent] we cannot say that it is such a fatal flaw as to make the overall dismissal process wrong.  What we do say is it was unfortunate.  We then went on to ask ourselves, even if her husband did attend would it have made any difference?  We want to make this quite clear, at this hearing [Mrs Gad-Briggs] has put forward the same explanation as she did to the Appeal Panel but this time with her husband present and with the substantial advantage of Mr Todd [her solicitor].  She has put forward the same explanation – it has been consistent.  We have also had the same chance of listening to Mrs Merchant.  The more we listened to [Mrs Gad-Briggs] we can understand why both the Appeal Body and the original disciplinary hearing believed Mrs Merchant.  Similarly, we listened to [Mrs Gad-Briggs].  We make this observation – she is clearly very distressed and we can understand why but wonder whether she is not in ‘denial’ about this.  We wonder whether this is one of those unfortunate occasions when a person just lost their temper.  Sad but nevertheless it happens.  We have looked at it very carefully but the Appeal Body and the disciplinary hearing cannot be criticised for the decision they made.”
(Emphasis Supplied)

10	The Tribunal is criticised by Mr Paul Todd for Mrs Gad-Briggs for deciding the fairness or otherwise of the Company’s decision to dismiss Mrs Gad-Briggs on the basis of its own opinion as to the relative credibility of Mrs Gad-Briggs and Mrs Merchant, rather than on the basis of the appeal panel’s assessment of their relative credibility.  We do not think that that is what the Tribunal did.  The closest that it could be said that the Tribunal came to doing that was in the sentence which we have emphasised.  But what the Tribunal was doing there was assuming, not unfairly, that how Mrs Gad-Briggs and Mrs Merchant had given their evidence to the Tribunal, and no doubt what they had said as well, was the same as how they had given their evidence and what they had said before the appeal panel.  On that assumption the Tribunal could fairly assess the impression which they would each have made on the appeal panel.  So when the Tribunal said that it could understand why the appeal panel believed Mrs Merchant, the Tribunal was in effect saying that it had been reasonably open to the appeal panel to believe her.

11	That is borne out by what the Tribunal said in its summary reasons given at the review hearing for confirming that the dismissal of Mrs Gad-Briggs had not been unfair.  The Tribunal said in paragraph 4 of it summary reasons:

“[Mrs Gad-Briggs’s solicitor] says that in our conclusion and we stress it was our conclusion, expressed a view at the end as to what we thought was the truth of the matter.  We stress, as we stressed at the hearing, that our conclusion first was the issue of reasonable conduct by the employer but because the issue had also involved one of race discrimination we were to deal with our comments at the end as to where the truth lay.”

We take the Tribunal to have meant by that that although the issue on the complaint of unfair dismissal was whether it had been reasonably open to the appeal panel to conclude that Mrs Merchant had been telling the truth, the issue on the complaint of race discrimination was whether in the view of the Tribunal Mrs Gad-Briggs had been treated less favourably than other employees on racial grounds.  It is true that a little later in that paragraph in its summary reasons the Tribunal said that it had reached a very firm conclusion where the truth lay.  But in the light of the earlier passage which we have read from that paragraph, the Tribunal was referring in that sentence to its finding on race discrimination.

12	But if the Tribunal was going to conclude that it had been reasonably open to the appeal panel to believe Mrs Merchant in the light of how she and Mrs Gad-Briggs had given their evidence in the Tribunal and what they had said, it would have been necessary for the Tribunal to hear what Mr Todd had to say about Mrs Merchant’s evidence.  Thus, the more substantial criticism of the Tribunal is that it did not permit Mr Todd, who represented Mrs Gad-Briggs in the Tribunal as well as on this appeal, to develop his arguments that the Tribunal should not believe Mrs Merchant.  He has sworn an affidavit which sets out his recollection of what happened, and what follows is a summary of his version of events.

13	At the conclusion of the evidence he began his closing submissions on behalf of Mrs Gad-Briggs.  He started off by dealing with each of the pre-dismissal acts of racial discrimination which Mrs Gad-Briggs had complained of.  Before he had completed those submissions the Chairman of the Tribunal asked him to deal with the question whether the dismissal of Mrs Gad-Briggs had been unfair.  He therefore began to address that issue, intending in the course of doing so to advance a number of points as to why the Tribunal should not believe Mrs Merchant.  However, before he had got to that part of his submissions, the Chairman said that there would be a short adjournment.  After the adjournment Mr Todd told the Tribunal that he wanted to finish his submissions on the pre-dismissal acts of racial discrimination.  He did so and when he finished he intended to complete his submissions on the unfairness of the dismissal, including advancing those points as to why the Tribunal should not believe Mrs Merchant.  However, before he did so, the Chairman asked the Company’s counsel to address the Tribunal on whether the dismissal was fair, as the Tribunal would be dealing first with whether the dismissal was fair, and then consider contributory fault if it became necessary to do so.

14	Mr Todd therefore thought that that meant that, subject to what the Company’s counsel had to say, the Tribunal was going to find Mrs Gad-Briggs’s dismissal to have been procedurally unfair, in which case whether Mrs Gad-Briggs had actually slapped Melissa would only have been relevant to the issue of contributory fault.  Indeed, the Chairman had made the point earlier in the case that any success for Mrs Gad-Briggs might be a pyrrhic victory, because even if her dismissal was found to be unfair on procedural grounds, she might be found to have contributed to her dismissal by 100%.  Since the Tribunal did not ask Mr Todd to address it again, Mr Todd assumed that the Company’s counsel had not persuaded the Tribunal that the procedural defects had not undermined the fairness of the decision to dismiss Mrs Gad-Briggs.  The Tribunal does not accept that it gave Mr Todd an indication that it was going to find, subject to what the Company’s Counsel had to say, that Mrs Gad-Briggs’s dismissal had been procedurally unfair.  In its summary reasons given at the review hearing it said in paragraph 6:

“The issue of stopping Mr Todd was not actually an issue of stopping him.  It was an indication to him that Mrs Merchant, on the issue of unfair dismissal, would become relevant if we were to deal with contributory conduct not an indication to him that that is the way we were thinking of doing i.e. making a finding of unfair dismissal and then consider contributory conduct.”

15	In our judgment, it is unprofitable to consider whether it was reasonable for Mr Todd to believe that he had been given an indication by the Tribunal.  Even if we thought it desirable to address that question, we doubt whether we could do so in an informed way without further enquiries of the Tribunal.  The fact remains, though, that Mr Todd did not address the Tribunal on a relevant issue, because rightly or wrongly he believed that he had been given an indication which made it unnecessary for him to do so at that stage.  It was that which prompted Mr Todd to request the Tribunal to review its decision.  It did so a few months later.  By then the Tribunal had read Mr Todd’s affidavit and it knew what he was alleging.  Since his affidavit also set out the points which Mr Todd had wanted to make about why Mrs Merchant should not have been believed, the Tribunal then knew what Mr Todd would have said at the original hearing had he been given the opportunity to say it.  Indeed, at the review hearing, Mr Todd took the opportunity to develop the points which he would have made at the original hearing on why Mrs Merchant should not have been believed.

16	The Tribunal considered those points and concluded that had Mr Todd made them at the original hearing its conclusion would have been the same.  What the Tribunal said in paragraph 6 of its summary reasons on the hearing of the review was:

“Did our stopping Mr Todd make any difference?  We have heard what Mr Todd would have liked to have said.  We have, we hope, honestly considered that which he said to see whether we either vary our decision, revoke it or keep it together as it was.  We have no doubt, having considered the points raised by Mr Todd, that our decision was the right one.”

In our judgment, this reconsideration by the Tribunal of its previous decision cured any unfairness which there might have been in the original hearing as a result of Mr Todd believing, rightly or wrongly, that he had been given an indication which had made it unnecessary for him at that stage to address the Tribunal as to whether or not Mrs Merchant should be believed.

17	We have taken on board the point that the Tribunal might unconsciously have wanted at the review hearing to come to the same conclusion on the facts as it had reached at the original hearing.  But the Tribunal was aware of that possibility and that is shown by its reference to its hope that it had honestly reconsidered the question.  We also note Mr Todd’s point that a review hearing would not have been the appropriate occasion for the Tribunal to reconsider its original findings in the light of what Mr Todd would have said then had he not thought that he was not being called upon to address the issue.  But it was he who had asked for a review hearing for that purpose, and the Tribunal had used the review hearing as an opportunity to reconsider the issue.  Finally, we also noted Mr Todd’s point that three and a half months had elapsed between the date of the Tribunal’s original decision and the review hearing.  But Tribunals regularly have to return to cases some months after a previous hearing and Tribunals are well used to having to get up cases after some time has elapsed since an earlier hearing.

18	The other substantial criticism of the Tribunal relates to how it dealt with Mrs Merchant’s ability to see what was happening between Mrs Gad-Briggs and Melissa in Melissa’s room.  Mrs Merchant’s evidence in the Tribunal has been agreed between the parties as having been that during the reconstruction in Melissa’s room Mrs Merchant had said that Mrs Gad-Briggs was then standing in a different position in the room from where Mrs Gad-Briggs had been standing when the incident had taken place.  In his report on the hearing before the appeal panel, Roderick Lloyd, the Chairman of the appeal panel, wrote:

“With the co-operation of both Mrs Gad-Briggs and Mrs Merchant the Panel were able to test Mrs Merchant’s ability to see through the spy hole as well as see for themselves the view of the room it afforded.
The Panel are entirely satisfied that Mrs Merchant could have seen through the spy hole the actions of Mrs Gad-Briggs which she reported.
The Panel noted that in the course of demonstrating her position in the bedroom at the time of the incident, Mrs Gad-Briggs initially sought to place Melissa’s position as being on the side of the bed with her right side at the foot of the bed and with Mrs Gad-Briggs herself standing at the corner of the foot of the bed which would have restricted the view of her from the spy hole.
In later evidence Mrs Gad-Briggs indicated that she herself had sat on the bed next to Melissa on the latter’s right side.  This would have placed Melissa nearer the middle of the bed.  After Melissa had pulled her hair, Mrs Gad-Briggs had, on her own evidence, released herself and stood up in front of and facing Melissa.  In that position both she and Melissa would have clearly been visible through the spy hole.”

Mr Lloyd later characterised this in his report as an apparent attempt on Mrs Gad-Briggs’s part to misrepresent her position in the bedroom.  When he gave evidence in the Tribunal Mr Lloyd accepted that Mrs Gad-Briggs’s attempt to misrepresent her position in the bedroom had never been put to her at the appeal hearing.

19	The argument advanced by Mr Todd on this part of the case goes like this.  When the appeal panel thought that Mrs Gad-Briggs had changed her story as to where she and Melissa had been in the bedroom the appeal panel had been wrong.  Mrs Gad-Briggs had not changed her story at all.  However, Mrs Gad-Briggs had not been aware at the time that the appeal panel thought that she had changed her story.  That is why it was important for her change of story to have been put to her by the appeal panel.  If it had been put to her she could then have explained that she had not changed her story at all.  In those circumstances, the criticism of the Tribunal is that it failed to consider whether the failure by the appeal panel to put to Mrs Gad-Briggs that she had changed her story undermined the fairness of her dismissal.

20	There may have been some substance in this point if the evidential foundation for the point had been laid in the Tribunal.  That evidential foundation would have consisted in Mrs Gad-Briggs giving evidence on the following four topics: (i) what she had in fact demonstrated to the appeal panel during the reconstruction had been her position and that of Melissa during the incident, (ii) what she had in fact told the appeal panel in her evidence to it after the reconstruction about her position and that of Melissa during the incident, (iii) that there had been no significant difference between what she had demonstrated in the reconstruction and what she had subsequently told the appeal panel, and (iv) what she would have told the panel had it been pointed out to her then by the panel that it thought that there had been a contradiction between what she had originally demonstrated in the reconstruction and what she had subsequently told the panel.  The evidential foundation would also have to have consisted of Mr Lloyd, who gave evidence in the Tribunal, being cross-examined on the basis that there had not been a material difference in the version of events which Mrs Gad-Briggs had given in the reconstruction and that which she had later given when giving evidence to the appeal panel.

21	The Employment Appeal Tribunal was never asked to direct the Chairman of the Tribunal to produce his notes of the evidence of Mrs Gad-Briggs and that of Mr Lloyd, and we therefore asked Mr Todd what his recollection of the evidence had been to see whether that could amount to a sufficient evidential foundation for the argument.  Mr Todd’s recollection, understandably, was not good after this length of time.  As for Mrs Gad-Briggs’s evidence, although he thought that her evidence in the Tribunal had been that she had not known that the appeal panel had thought that she changed her story, he was unable to recall whether she had been asked what she had demonstrated to the appeal panel during the reconstruction or what she had subsequently said to the appeal panel or whether she had in fact changed her story.  Mr Todd was sure that he had put to Mr Lloyd in cross-examination that Mr Lloyd had not put to Mrs Gad-Briggs that she had attempted to misrepresent her position in the bedroom, and the fact that that had been put to Mr Lloyd and that Mr Lloyd had agreed that he had not is agreed between the parties.  But we make two points about that agreed evidence.  First, Mr Todd accepted that he did not think that he had put to Mr Lloyd that Mrs Gad-Briggs had not changed her story.  Secondly, and more importantly, neither Mr Lloyd nor the Tribunal could have known at that stage that Mrs Gad-Briggs was saying that she had not changed her story.  

22	In those circumstances, the question which Mr Lloyd was asked by Mr Todd would have been regarded by the Tribunal as relating only to whether Mr Lloyd had put to Mrs Gad-Briggs any motive for her changing her story.  Mr Lloyd’s acceptance that he had not put to Mrs Gad-Briggs that she had misrepresented her position in the bedroom could not therefore have alerted the Tribunal to the possibility that the appeal panel had been mistaken when it had concluded that Mrs Gad-Briggs had changed her story.  We do not think that the mere fact that Mrs Gad-Briggs may have said to the Tribunal that she had not known that the appeal panel had thought that she had changed her story should have caused the Tribunal to realise that Mrs Gad-Briggs was in fact disputing the finding of the appeal panel that she had changed her version of events of where she and Melissa had been in the room when they were allegedly observed by Mrs Merchant.  Therefore, the evidential foundation for an attack on the Tribunal’s failure to consider the appeal panel’s failure to put to Mrs Gad-Briggs that she had changed her story had simply not been laid.  We have not overlooked the reference which the Tribunal made in paragraph 16 of its extended reasons to the fact that there was some dispute about positioning within the room.  But whether that was a reference to a dispute between Mrs Merchant and Mrs Gad-Briggs, or simply to Mrs Gad-Briggs’s change of story, does not matter.  The Tribunal had no reason to suppose that the appeal panel’s finding that Mrs Gad-Briggs and Melissa could have been seen by Mrs Merchant, if Mrs Gad-Briggs had been where she, Mrs Gad-Briggs, eventually said she had been, was being challenged.

23	For these reasons, therefore, this appeal must be dismissed.