Appeal No. EAT/169/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 8 October 1992

	Before

	HIS HONOUR JUDGE J HULL QC

	MISS C HOLROYD

	MISS A MADDOCKS OBE

MRS A WRIGHT	APPELLANT

WEST CUMBERLAND HEALTH AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	IN PERSON

For the Respondents	MR KW HUTCHINSON
	(Director of Personnel)
West Cumberland Hospital
	Whitehaven
	Cumbria CA28 8JG

	JUDGE HULL QC:  This is an Appeal to us by Mrs Wright from the decision of the Industrial Tribunal held at Carlisle as long ago as 28/29/30 November 1989.  That Tribunal heard a complaint by Mrs Wright of unfair dismissal and after the 3 day hearing their decision, giving reasons of course, dismissed the complaint and it is from that dismissal that Mrs Wright appeals now.

	Her grounds of Appeal are set out in the Notice of Appeal which was amended.  The amendments were settled by Counsel.  They do in fact amount to a complete rewriting of her complaints.  The only ground upon which Mrs Wright was allowed by this Tribunal to proceed unequivocally without any conditions was that the Industrial Tribunal erred in law, or came to an unreasonable decision, in failing to have any sufficient regard to the Appellant's complaint that she never received a copy of the relevant disciplinary procedure during the period in which it operated in her case and that this omission was procedurally unfair and that she did not know that she had a right of appeal to the Regional Health Authority.

	Mrs Wright was also given conditional leave to appeal on paragraph (a) of her Grounds of Appeal, also settled of course by Counsel.  That was on the basis that Counsel who then appeared for her, Mr Oppenheim, undertook to show that there was some point of law involved.  The way in which Mr Oppenheim put it in his Notice of Appeal which he and no doubt his instructing solicitors were responsible for was this:

"(a)  The Tribunal on the final day of the hearing on 30 November 1989 wrongly admitted exhibits R7, R8 and R9[and Mrs Wright added before us today also an exhibit R6] purporting to be notes of officers of the Respondent of disciplinary hearings held on 25th August 1988 and 16th September 1988 and an appeal held on 18th November 1988 after the Respondent had closed its case:

(i) The Appellant [that is Mrs Wright] denied that any notes were taken at the above hearings;

(ii)At a pre-hearing assessment Mr Norris the representative for the Respondent ....stated that no notes had been taken at any of the above hearings.

(iii) When the question of notes arose during the course of the tribunal hearing Mr Hutchinson of the Respondent informed the tribunal that there were notes of the relevant hearing

(iv) The notes were relevant to "[various questions]"" 

So she says that she was in that way, too, treated in an unlawful manner by the way that the case was conducted in front of the Tribunal.

	I will just start by outlining the facts stated by the Tribunal very shortly so that anybody who is interested in this case can see what it is about.

	Mrs Wright was a nurse, of long experience, in the employment of the Respondent West Cumbria Health Authority, and she was employed in work with elderly patients, geriatric patients, at Workington Infirmary which was one of a group of four hospitals which are under the same authority.  The patient with whom these proceedings were concerned was a lady of 83, greatly physically handicapped and she was virtually unable to use her arms and could only walk with assistance.  On the occasion in question, which was in August 1988, this lady was to be bathed and Mrs Wright with another nurse took her to the bath and got her into the bath, a warm bath of course and she was there in the hot bath.  Unhappily both the ladies Mrs Wright and her colleague then left the patient in the bath for 6 or 7 minutes apparently -it was at least that and it may have been more, nobody had a stop-watch out.  They were not alerted to any trouble but when they returned, the patient was in grave trouble.  Apparently hot water had been flowing into the bath and she was badly burned.  We are very pleased to hear that the lady recovered, but it was a serious matter.  That is the outline of the facts.

	As a result of that there was an investigation, a disciplinary enquiry, an enquiry at which it was decided that Mrs Wright had been guilty of gross professional misconduct, and that this was a very serious matter.  The essence of it was so far as her employers were concerned, that she should not have left the patient, a woman of 83 with these grave disabilities, by herself in the bath.  

	Now that is not a matter on which this Tribunal or the Industrial Tribunal is entitled to have any opinion at all.  It is a matter for the employers properly advised and with proper representatives sitting on any body which is to decide this, to decide on these facts what is and is not professional misconduct and they may have to be guided by experts but at any rate concerning those matters the decision was first of all that Mrs Wright had been guilty of very serious, if I can put it like that, professional misconduct, a very serious error of judgment. Having thus been convicted, if I may use that phrase, of that in the view of her employers, the decision was to offer her downgrading to the post of Assistant Nurse so that she would not have direct and sole responsibility but would act under supervision.  She declined that and the alternative was to dismiss her and so her dismissal took place.  

	She appealed to the District Authority.  Her Appeal was rejected.  At all stages, both at the Preliminary Enquiry, and the Disciplinary Inquiry by her employers and the Appeal, she was represented by a Mr O'Neill who was the Trade Union representative of The Royal College of Nursing, evidently a knowledgeable man, and he has written a letter which has been shown to this Tribunal in which he says that he invariably advises people whom he is assisting in disciplinary matters of the procedures and codes which apply.  It has not been suggested at all by anyone that Mr O'Neill was in any way incompetent.  Indeed he has been actively engaged in the deliberations in bringing up-to-date the disciplinary procedure and rules and he represented Mrs Wright.

	Mrs Wright then applied to the Industrial Tribunal saying that her dismissal had been unfair.  Of course she is entitled to do that.  The Tribunal is not entitled to set itself up as some sort of further Health Authority but it is charged to enquire in to whether the Applicant has been fairly dealt with.  It is first of all for the employers to show what is the reason for the dismissal and here the employers said it was gross professional misconduct.  Of course the Industrial Tribunal again was not in a position to form a separate view about that, nor was it entitled to.  It had to consider whether the employers had proceeded in a reasonable way in forming that conclusion and then it had to decide whether they had acted reasonably in treating that as a reason for dismissal.  
	The Tribunal heard a number of matters and a number of complaints by Mrs Wright.  Amongst other things Mrs Wright mentioned such matters as difficulty with the plumbing which might have led to some malfunctioning of the plumbing to the bath.   There were other matters such as the proximity of the bell which the patient might have used if her arms had been useable but she, poor woman was not in a position to use her arms actively and it was said that she had not cried out or anything of that sort - various matters were canvassed in front of the Tribunal.  The Tribunal considered them all and having heard the witnesses, which we of course have not (this is very important), having heard all the witnesses including witnesses called by Mrs Wright and Mrs Wright herself, the Tribunal reached the decision which it did and the two grounds on which it is criticised before us are the ones which I have already read out.  It is to be remembered that we in this Tribunal are charged by Parliament only to try questions of law, we cannot go into the facts again.  We are to try matters of law.

	Dealing first of all with the first matter - (a) the wrong admission of various notes which were taken.  Now it is said by Mr Hutchinson that these notes were only produced as a result of Mrs Wright asking for them and mentioning the matter and they were produced on the second day of the hearing.  Mrs Wright makes various criticisms.  She says that the Tribunal had been told that there were no notes, or she had been told that there were no notes and she says this was after she herself had given evidence and she complains about the admission of these notes.  However, it was not at the close of the hearing; the Tribunal having been given these notes Mrs Wright had every opportunity as it appears to us to address the Tribunal.  She could have said - and it is probably unlikely that she would have been successful - but she could have said "You must not look at these notes, these notes have not been strictly proved and if they are not they are not evidence as a matter of law".  I think the Tribunal would have said "Well, Mrs Wright we are not confined to strict rules of law and if you take points as strongly as that there may have to be an adjournment so that further witnesses can be called".  That might have been the answer.  At the same time Mrs Wright could have said "Well, if you do look at these notes the comments I make are as follows" and then made her comments and I think she did do something like that.  She could have gone through them line by line.  They were before the Tribunal and it was a matter on which she had an opportunity to address the Tribunal.  If she felt that these notes showed something which required further evidence she could have asked the Tribunal for an opportunity to call further evidence and the Tribunal itself of course would be vigilant in her interest.  I have not the slightest doubt that any Chairman of Tribunals would be vigilant to see that Mrs Wright was not prejudiced by the late production of these documents and Mrs Wright has not been able to indicate to us anything that she would have done or wished to do which she was prevented from doing, any way in which she was in fact prejudiced by the production of these notes.

	It is a very common thing, not only in front of Tribunals but in front of courts of every sort that documents are mentioned, the court or somebody else says "well if there are some documents let's look at them" and documents are then produced late.  There may be quite a lot of fuss at that stage as one knows, people may say "well they weren't disclosed at the discovery stage".  People may say "well we want these notes tested for authenticity" or "we want such and such a witness called to prove them" and so on.  This is an every day incident and we are not satisfied in any way, we do not think there are any grounds for saying that the admission of these documents was an error of law on the part of the Tribunal or that there was any miscarriage of justice as a result which would entitle us to interfere.  We do not think any point of law arises at all here so the condition on which this Tribunal said that Mrs Wright could appeal has not been fulfilled.  There is no point of law here in our view.

	Now we turn to the other ground, on which Mrs Wright was undoubtedly allowed to proceed, and that is (d) The Tribunal erred in law because it failed to pay any sufficient regard to Mrs Wright's complaint that she had not received a copy of the relevant disciplinary procedures.

	The Tribunal said, and made the point forcefully, that Mrs Wright had been represented by Mr O'Neill.  Mrs Wright has told us that Mr O'Neill failed to advise her of these matters or at any rate was unable to give her full advice on them.  Anybody who is concerned with advocacy - Mr O'Neill in one of his many roles no doubt is - knows that one does not go through with one's client every possible rule.  If one was practising in the High Court one would need to go through about 3,000 pages of rules to tell one's client all about them.  One tells one's client about those matters which appear to be in his or her interest and important to his or her case so far as is necessary to explain matters but most advocates, whether they are solicitors or barristers and I have no doubt trade union officers, are more worried about the merits of the case than the rules of procedure and we have no doubt that Mr O'Neill was well aware of the relevant rules.

	Now the position has been explained to us.  The rules which do of course provide for summary dismissal in the event of gross misconduct, quite different from something trivial which may justify a warning or a final warning or a reprimand or something like that, these rules were the old rules and the new rules which were to come in had not come in.  There was a new procedure, at any rate, being worked out but that had not come in.  Now, we are quite satisfied that Mr O'Neill must have known which rules applied.  We regret it if Mrs Wright herself was left in any confusion.  It is not a source of satisfaction to an employer if any employee does not know his rights in a matter like this.  

	We are quite unable to see that any prejudice resulted to Mrs Wright from this situation.  If Mr O'Neill had thought that a further appeal to the Region was the proper course rather than an application to an Industrial Tribunal we have no doubt whatever that he would have advised that course.  Every barrister, to take an example, knows perfectly well that there are rights of appeal to the Court of Appeal for his client and possibly a right of appeal to the House of Lords; there are many rights of appeal in our legal system.  The fact is that one only advises one's client about these matters if one thinks it may be useful to do so.  If there is a better course, as for example by asking for a review or something of that sort, or taking the matter to some quite different tribunal, then one advises that, and very frequently, of course, the client's best interest lies in accepting what has been done and taking the matter no further because it does not look as if there are any reasonable grounds at all for appealing.  These are all matters which we have no doubt Mr O'Neill must have had in mind as an experienced trade union officer.  We have asked Mrs Wright today whether if she had received copies of the procedure, as indeed we think she had, but had appreciated that it was the old rules that applied, whether there was anything different that she would have done - whether she would have taken a different course of any sort as by calling witnesses or whatever.  She tells us that she would have known of her rights to call for certain documents and the way in which certain witnesses could be produced.  Those of course were matters for her advocate Mr O'Neill and we do not think that even if she was in some confusion about the rules, that shows any prejudice or anything of that sort to her.  

	If one turns to page 77 of the bundle there are the old rules - the Disciplinary Rules - and there they are set out and Mr Hutchinson has told us that they are the rules which have applied throughout.  New procedures have been worked out since and there are new procedures which are now shown to us.  They were only sent to Mrs Wright (and appear to have caused further confusion) because apparently they were asked for by solicitors then acting for her.

	As I say we have all, having considered this as carefully as we can, come to the conclusion that there is no point of law here.  We are not entitled to interfere in any questions of fact or evidence and the question whether our view of the evidence is the same as that of any of the bodies or tribunals which have considered this matter is not a question for us at all.  We are obliged to dismiss this Appeal for the short and simple reason that we can find no point of law and certainly no point of law of which Mrs Wright is entitled to complain.  That is the order of us all.