Appeal No. UKEAT/0514/05/RN

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 20 October 2005

Before
THE HONOURABLE MR JUSTICE ELIAS
MR I EZEKIEL
MS P TATLOW

THE BRIDGEWOOD TRUST 	APPELLANT

MRS L OWEN 	RESPONDENT

Transcript of Proceedings

JUDGMENT

Preliminary Hearing – Ex Parte

Revised 

	APPEARANCES

For the Appellant	MR RICHARD POWELL
(of Counsel)
Instructed by:
Messrs DLA Piper Rudnick Gray Cary UK LLP
Solicitors
Victoria Square House
Victoria Square
Birmingham B2 4DL	

SUMMARY

Unfair Dismissal:  Reason for Dismissal & Reasonableness of Dismissal; Practice & Procedure: Bias, Misconduct, & Procedural Irregularity

Challenge to finding of finding of unfair dismissal - over 50 grounds lacking virtually every conceivable error. Include bias. Found that there were some defects in the decision.

THE HONOURABLE MR JUSTICE ELIAS

1.	This is a preliminary hearing on appeal against the Decision given on 20 June 2005 by the Employment Tribunal at Leeds in which it held that the Claimant had been unfairly dismissed.  The Claimant’s claim that her dismissal was automatically unfair because of a protected disclosure was, however, rejected.  

2.	The circumstances giving rise to this case were briefly as follows.  The Claimant worked for a voluntary organisation which operated as a non-profit making organisation.  It provided services to people with learning disabilities.  The Respondent is a registered provider of services for the purpose of the Care Standards Act 2000.  On 3 August 2004 the Claimant was suspended from her employment and she was dismissed one month later for gross misconduct.  That followed a disciplinary hearing on 30 August.  

3.	The Tribunal set out the background as to how the organisation was administered and it is not necessary to deal with that.  Then it dealt with the particular incident which gave rise to the dismissal.  This was a complaint from a Mrs B who alleged that her daughter was not receiving the level of care that she ought and more specifically, complained that she had visited a doctor on a fixed appointment but it had proved to be a waste of time because the doctor had earlier revised and increased medication for her daughter, but that had not been implemented by the Respondents.  There had apparently been a delay which, it appears, was in the region of two months before the higher medication specified by the doctor had been provided to this young woman.  The effect of the drug was that it was supposed to have a calming effect on the daughter’s behaviour.  

4.	The Claimant was suspended with immediate effect.  It was apparently thought that she might tamper with the records.  In fact, that did not occur.  The employers had made some play in this tribunal of the fact that the view was taken that the records might be tampered with rather than that she would tamper with them, but it is not really suggested that anyone else would have had any reason to do so.  

5.	There is a conflict of evidence from the Respondent’s witnesses as to who was responsible for the suspension.  The Tribunal note, in terms, at paragraph 10.14 of its Decision that 
“It was clear to the Tribunal that the primary concern of the Respondent at this point was to obtain evidence which would have the effect of implicating the Claimant in order to show that they had taken steps to deal with the notifiable event and to distance themselves from any blame which might attach in connection with this matter.  It was clear to the Tribunal that this motive permeated throughout their subsequent treatment of the Claimant and was fundamental in their decision to dismiss her.”  

6.	Once the Claimant was suspended, the Respondent carried out an investigation.  That was conducted by a Miss Edwards.  The Tribunal commented that Miss Edwards was not really experienced in carrying out a task of that nature.  They say that her evidence was that she did not ask questions of certain other staff at the care home where the Claimant was operating about the medication.  Nor did she interview the Claimant prior to reaching her views as a result of the investigation which were that the Claimant was responsible for the delay in providing the drugs and that this constituted gross misconduct.  The Tribunal noted, and we think they were entitled to do so, that this was a surprising conclusion for somebody to reach, not having interviewed the alleged wrong doer.  

7.	The Respondent then wrote to the Claimant on 18 August alleging certain failings by her to administer the prescribed medication and accusing her of failing to follow correct procedures or to maintain proper records.  No specific reference was made in that letter to the failure to provide medication for the particular client concerned.  The disciplinary hearing then took place on 30 August.  The Tribunal set out in its Decision the information which the Claimant provided about her explanation of the events and it accepted her account of the disciplinary hearing.  This was that the Respondent had bombarded her with questions and challenges and it sought to obtain admissions from her.  She had said in evidence that there was no structure to the meeting and plainly she was unhappy about it.  

8.	On 3 September, the Respondents wrote to her to inform her that they had decided to dismiss her for gross misconduct.  They had concluded that the effort she had made to secure the medication had been no more than token efforts and that she had neglected a vulnerable person.  Apparently, no minutes were kept of this disciplinary hearing. 

9.	There were two further meetings which were appeals.  The result of those appeals was that the original decision was confirmed.  The Tribunal say that the evidence was not provided to the Claimant in relation to those appeals.  A consequence of this dismissal is that the Claimant has been put on a register which means that she will not be allowed to work in this field again.  That, of course, has absolutely devastating consequences for somebody who has apparently worked in that area for some time and the result, as one might anticipate, is that she suffered very low self-confidence and depression.  

10.	The Tribunal, having set out the facts, then set out the material law at paragraphs 11 to 13 of its Decision.  They recite the well known case of British Home Stores Ltd v Burchell [1978] IRLR 379 but, as Mr Powell points out, they do not qualify that by noting that the burden of proof is no longer on the employer in relation to what is now Section 98(4) dealing with the question of fairness.  Then the Tribunal set out its conclusion at paragraphs 14 to 18.  They can perhaps be considered in two parts.  Firstly, they held that the Respondent had failed to show the reason for dismissal in this case.  They point out certain inconsistencies between what was said by Mr Greenwood and by Miss Edwards and they concluded that Mr Greenwood who had, in fact, initiated the dismissal at the first stage
“seemed to be saying the decision to dismiss the Claimant was largely in order to avoid any adverse findings of the Respondent itself as a result of a notifiable event in the form of a letter of 3 August to Mrs B”.
They also commented at paragraph 15 that Mr Greenwood was unable to say what the procedure was for dealing with medication and they noted that the procedure was contained in a memo which had been sent to staff.  

11.	As the Tribunal noted, having concluded that the Respondents had failed to show the reason for the dismissal, that was really the end of the case, and the burden there is on the Respondents.  Strictly they need not have gone any further but, in paragraph 16, they did, and they dealt with the Section 98(4) criteria.  They concluded that the Respondents had not shown that they had a reasonable suspicion amounting to a belief in the guilt of the Claimant and they commented that Mr Greenwood simply wanted to scape-goat the Claimant.  Nor were they satisfied that there were reasonable grounds for sustaining the belief.  They said that the evidence on which the company relied did not show that the Claimant had committed the misconduct of which she was accused.  Finally, they were also critical of the investigation and said that it fell far below the standards of a reasonable employer.  They commented in that context about the failure to interview her as part of the investigation, and the fact that her colleagues had not been asked about medication.  

12.	The grounds of appeal are very extensive.  In fact, they are almost as long as the Decision itself.  They cover 11 main heads and there must be somewhere in excess of 60 separate items if all the sub-heads are also taken into consideration.  Some of these grounds, we have to say, are either very marginal or hopeless and it makes it far more difficult for us to focus on what grounds may have real merit when any such grounds are concealed within a thicket of other unpersuasive matters.  We are not going to go through each and every one of the matters that are raised in this Notice of Appeal, but we will briefly try and deal with the principal matters.  

13.	The first criticism is directed to the conclusion of the Tribunal that the employers had failed to show that there was a potentially fair reason for dismissal.  Mr Powell submits that there was such a reason, namely that relating to conduct.  He says if one looks at the well-known authority of Cairns LJ in Abernethy v Mott Hay & Anderson [1974] IRLR 213, that the reason for dismissal, as identified by His Lordship in that case, was a set of facts known to the employer which lead to this dismissal.  Mr Powell says here that the set of facts were the matters relating to Mrs B’s complaint and, in particular, the failure to provide medication speedily.  He therefore says that the employers have established the reason which relates to conduct.  

14.	We do not agree.  What the employer has to show is the reason why he dismissed.  What the Tribunal suspected here was that the cause of the dismissal was not the failure to provide the medication, rather the motivating force was the company’s desire to distance themselves from the complaint and to lay blame elsewhere.  It was for the employer to show that the reason fell within one of the reasons specified in the statute and the Tribunal were not satisfied that this had been demonstrated to its satisfaction.  The conduct, in other words the alleged inadequate dealing with the question of medication, may have been the trigger which gave rise to the investigation but it was not itself the cause of the dismissal as found by the Tribunal.  That is not the reason why the employers actually dismissed.  That, it seems to us, was the conclusion that the Tribunal were entitled to reach and we have to say that, apart from the question of bias to which we return, it is fundamentally the end of this case because the other aspects of the appeal all relate to the second part of the decision, namely the complaints about the application of Section 98(4).  But we will carry on and deal with these other grounds.

15.	We will look at Grounds 2 and 3 together.  Ground 2 says that the conclusion reached by the Tribunal concerning the reason for dismissal was perverse because there were not sufficient findings to support the view expressed by the Tribunal that the witnesses lacked credibility.  Ground 3, which is merely a related ground, was that the Tribunal did not, in any event, spell out why it was that they chose not to accept the evidence of Mr Greenwood and found that the Respondents’ witnesses were lacking credibility.  

16.	We do not accept these criticisms.  The Tribunal has made it clear why it reached that conclusion as a result of hearing the evidence of Mr Greenwood.  Emphasis is placed on the fact that the Tribunal said that Mr Greenwood “seemed to be saying” that the decision to dismiss was to avoid blame being cast on the Respondents.  That, it seems to us, is saying that was their clear impression from the evidence he gave in the Tribunal, having been subject to cross-examination.  We think that is an adequate statement of reasons.  It is also against the context where the Tribunal has identified certain conflicts of evidence between the Respondents’ witnesses and has been critical of the failure to provide documentation until the last minute.  We do not think it can be said that this was a perverse finding; it was simply a conclusion which the Tribunal reached as to the factor which, in fact, motivated the Respondent when it dismissed Mrs Owen in this case.  If one asks, in accordance with the criteria in Meek v City of Birmingham District Council [1987] IRLR 250, does the employer know why it lost this case, then it seems to us that it is clear why it lost the case.  It lost the case because the Tribunal believed that the dismissal was for the purpose of protecting the back of the Respondent rather than because of a genuine belief that the Complainant had committed the misconduct alleged.  

17.	Then Ground 4 concerns an alleged failure to have regard to the two appeals which upheld the dismissal.  It is true that the Tribunal did not seem to be particularly enamoured with that process and it made some criticism of the way in which the procedure was adopted.  Mr Powell has put some emphasis on this feature.  Indeed, it is reiterated in a slightly different context in relation to Ground 10 where it said that the Tribunal failed to take into account the appeal processes.  He notes that there was a statement from the Chief Executive which was admitted late in the day - in fact, during the course of the hearing – which dealt with the appeal process.  He says that the Tribunal therefore ought to have had regard to that when considering the reason for the dismissal but he is not able to say how having regard to that might have affected the Tribunal’s conclusions as to the reasons for the dismissal.  It is, of course, true and well established law following such cases as West Midlands Co-Op v Tipton [1986] a decision of the House of Lords that were there are appeals, then matters which emerge during the appeal process must be taken in to consideration by a tribunal. That does not mean that the Tribunal must seek to examine to see whether there are matters which might modify or qualify the evidence given by the witness who was put forward by the Respondent as the person to deal with the dismissal.  That was Mr Greenwood.  No witness was proffered who was going to say, for example, that there were fresh and additional matters that had emerged on appeal and that there had been an independent decision taken on the assessment of all the evidence that this dismissal was justified for gross misconduct.  

18.	That was not how the case was put before the Tribunal and the Tribunal deals with the points of substance which are raised by the parties.  So we do not accept that there was improper failure to take into account the appeal processes.  The way it was put to the Tribunal apparently is that they confirmed the dismissal and, as we say, the reason being put forward by the company was the reason which Mr Greenwood had for effecting the dismissals. 

19.	It appears, although it is true that we are, to some extent, speculating that the appeals were effectively confirming that there was no reason to shift from management’s initial view.  In any event, the Respondents did not, it seems to us, focus upon these appeals either in the evidence or, as far as we know, in the arguments addressed to the Tribunal.  

20.	We then consider Ground 5.  This identifies what seems to us to be an error by the Tribunal in the erroneous application of the Burchell test.  As we have said, it recited British Home Stores Ltd v Burchell [1978] IRLR 379 but did not say that there no longer is an onus upon the employer to show that Section 98(4) is satisfied.  It is a matter which is left to the Tribunal to determine without any specific onus placed one way or the other.  That was an error and we accept that but it is an error in relation to the second aspect of the Judgment which is not, in any event, central to its decision; moreover, we do not think this could be a case where it could conceivably be said in the light of the Tribunal’s conclusion that its determination rested on its analysis of the burden of proof.  It is plain from its Decision that it considered that there were certain fundamental errors by the employers here and there can be no doubt that even if it had directed itself in the right way in relation to Section 98(4), it would have found against the Respondent in any event.  

21.	Ground 6 concerns the fairness of the investigation.  It is said that the Tribunal were not justified in criticising the Respondent for not interviewing the Claimant as part of the investigative process.  It is pointed out that that is not a requirement in the ACAS Code of Practice which does not require an interview prior to a disciplinary hearing.  That is true, but it depends upon the nature of the investigative process.  In this case, Miss Edwards, who carried out that investigation concluded by stating her view that there had been gross misconduct by the Claimant.  That, as we have said and as the Tribunal noted, was a very surprising conclusion because the Claimant had not even had an opportunity to deal with the matter.  Mr Powell may be perfectly right in saying that it is possible that her recommendation or her opinion was not taken into consideration by Mr Greenwood at a later stage but the Tribunal were surely justified in criticising the disciplinary processes including the investigation for reaching such a conclusion in the absence of even hearing from the Claimant.  That was an unsatisfactory feature of these procedures.

22.	Ground 7 and Ground 8 are interrelated grounds.  Ground 7 is the assertion that the Tribunal did not apply the range of reasonable responses test with regard to the fairness of the investigation.  Ground 8 says that the Tribunal substituted its view for that of the employer in looking at the merits of the dismissal.  The material which is provided in support of these contentions is that there are certain findings which, it is said, are either wrong in the sense that they are inconsistent with the evidence; or alternatively misdescribe what occurred for example, the description of the investigation of as a “so-called investigation”.  We do not think that either of the matters demonstrate that there was a failure to apply the correct test.  If these specific matters identified in Grounds 7 and 8 have any significance, it seems to us that it is in the context of supporting, to a greater or less extent, an allegation of bias.  In other words, it might be said “well the Chairman descended into the arena, became too involved in the dispute”, and some of the findings lend some support to that conclusion.  But we do not think that either Ground 7 or 8 are substantiated.  Indeed, we have the Chairman’s comments in response to a request from this Tribunal to give her observations on the allegations of bias, she in terms states that the tribunal had been referred not only to British Home Stores Ltd v Burchell [1978] IRLR 379 but also to Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 / EWCA Civ 1588.  

23.	Paragraphs 9 and 10 then seek to identify what is called perversity in the Tribunal’s conclusions.  Again, in substance, these grounds interrelate with Grounds 7 and 8.  They are not so much, it seems to us, allegations of perversity but rather that they were findings which are not supported by the evidence or are, in fact, inconsistent with the evidence.  It has to be said that most of the matters which are identified could not, on any view, be said to be matters of significance.  That is not true of all those matters, however.  We think there are two which we would just pick out which, in other circumstances, we might have been minded to take further.  The first concerns paragraph 9.11.  That is a complaint that the Tribunal has given inadequate reasons for its conclusion that 
“the evidence on which they (the respondent) relied in making the decision to dismiss does not tend to show that the claimant had committed the misconduct of which they accused her”.
It is said that it is not possible to glean from the Tribunal’s decision in which way the evidence did not support that finding of misconduct.  We think that is a fair criticism but, as we have said, at the end of the day it does not assist the Respondents even if they were to make good this matter because the decision stands in any event, on its principal ground.  The Tribunal had concluded that the employers did not have a genuine belief that the reason was the reason they ostensibly gave.  Furthermore and in any event, we would not have found against the Tribunal on this basis but would have sought additional reasons from them to explain why they reached that conclusion.  

24.	The second point raised in Ground 9 was a finding that the colleagues of the Claimant were not asked about medication.  Mr Powell submits that that is simply wrong and he points us to the statement of Miss Edwards who said in her evidence-in-chief that she did ask about medication and also a statement of one of the colleagues concerned who accepted that she was asked about that.  This is slightly curious because the Tribunal say in terms at paragraph 10.17:
“Mrs Edwards was adamant in her evidence to the ET that she did not ask Ms Bancroft or Simpson about medication.  This also puzzled the tribunal as this was the subject of the complaint”.
Mr Powell says that that seems an odd conclusion, given the evidence.  We agree that it does, as it stands, but it may well be that Miss Edwards did not confirm what was in her witness statement, but in fact contradicted it when she finally gave evidence to the Tribunal on this matter.  Certainly, the Tribunal seems to have been struck by this comment by Miss Edwards because they refer to her being so adamant about it.  Again, had we been minded to send this further, we would have sought to have the evidence, if necessary because it could not be agreed between the parties, as to what exactly Miss Edwards said in her evidence to the Tribunal itself about this aspect of the case.  But again, for reasons we have indicated, it seems to us that does not impinge upon the initial finding of the Tribunal that the employers had not established that the genuine concern was the alleged misconduct.  It was, as it were, an additional supplementary ground reinforcing that initial decision so that again, even if the employers were to succeed on that ground, it would not affect the overall conclusion of the Tribunal.  

25.	Finally, we look at the question of bias.  That is alleged, and there is a witness statement from Mrs Lee, the Human Resources Adviser, who conducted the hearing before the Tribunal on behalf of the Respondents.  She makes a number of allegations against the Chairman of taking over the cross-examination of witnesses, of being aggressive and intimidating, of refusing to allow her to assist witnesses to find documents in the bundle, of cutting short her cross-examination and unfairly limiting the time given to the Respondent.  We were concerned at one point where it is said in the witness statement that the cross-examination of the Respondents’ witnesses conducted by the Chairman lasted for the first three days of the hearing.  That, as Mr Powell recognises, cannot be right.  It must have been the cross-examination that lasted that long.  We have had statements from each of the members of the Tribunal.  

26.	The Chairman, in fact, sets out in some detail the timing of the examination and cross-examination.  It is noted that there was cross-examination by the panel: for example between 2 and 3.15 on day 2 of Miss Edwards, though that included also the re-examination by the Respondent’s representative.  There was questioning by the ET panel on day 3 for, according to her detailed notes, 35 minutes.  The other statements from the other members confirm that there had been questioning.  They do not accept it was aggressive; they think it was searching.  They accepted that the Chairman was irritated from time to time.  They commented that the standard of representation had not been at its highest and that the Chairman was trying to speed up the process and identify clearly the matters in issue.  

27.	We mean no disrespect to Mrs Lee who, no doubt, feels aggrieved by the way in which the hearing was conducted, but that is a frequent complaint from those who represent losing clients before tribunals, particularly if they are not experienced in the matter.  It is well established that tribunals can quite properly, as part of case management, ask questions and seek to assist in identifying issues, preventing unnecessary cross-examination and so forth.  We have to say that although there are some particulars provided in Mrs Lee’s Affidavit, much of it is assertion rather than identifying specific examples.  Given the clear response from all members of the Tribunal, we do not see that matters could be taken really much further if this were allowed to be sent to a full hearing.  The members and Chairman have given their views, as we say, in some detail, particularly from the Chairman and they could not now be cross-examined on this material.  

28.	There is one matter on which we think the Tribunal did err.  It seems that some questions were posed to Miss Edwards about the nature of the medication and the significance of failing to provide the increased medication.  According to the Chairman, Miss Edwards was not able to clarify this matter and so she asked the Clerk of the Tribunal to obtain the information from the Internet and that was done.  There is a reference to that information in the body of the Tribunal’s Decision itself at paragraph 10.12.  Mr Powell submits that it was wrong for the Tribunal to take this course.  On the assumption, as he understands the position to be, (and we should say that he did not appear below), that having required this information, it was not put to the representatives, then we agree that it was an error by the Tribunal and they ought not to have done that.  It would perhaps have been preferable first of all for them to have asked the representatives to find information about the drug if they thought that was helpful by way of background information, and perhaps to agree that evidence, if possible. But, in any event, having acquired the information on the Net, they ought to have informed the parties that they had taken that step and what they had found so that the representatives could have had an opportunity to deal with the matter.  But, again, it is plain that this really is rather peripheral to the whole case.  It is identified, and the information is referred to, as we said, in the Tribunal Decision but at the end of the day, it has not figured in any significant way in the conclusions of the Tribunal and it seems to us that it is not, on its own, sufficient to warrant this matter being sent to a full hearing.  

29.	Accordingly, it comes down to this, we accept that there can be some legitimate criticisms of this decision.  The direction on the burden of proof in relation to Section 98(4) was erroneous.  In one or two areas, criticisms can be made that the factual basis of the decision is not sufficiently complete and there may, we say “may” – we do not know because we have not seen the notes of evidence – be a finding in relation to questions on medication which could be of some significance and which may be wrong.  As we say, there is also the criticism we have made of the way in which the Tribunal dealt with the information it had itself acquired on the Internet.

30.	We have borne these matters in mind but for the reasons we have given, they do not seem to us to touch the principal conclusion reached by the Tribunal.  So notwithstanding Mr Powell’s persuasive efforts to seek to contend that this decision was so flawed that it really has to go to a full hearing, we have concluded that it ought not.  So, for those, I am afraid, rather lengthy reasons for a preliminary hearing, and dealing with a lengthy Notice of Appeal, we think this case should go no further.