Appeal No. EAT/634/90

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 30 April 1993

	Before

	THE HONOURABLE MR JUSTICE WOOD MC (P)
	(As in Chambers)

	

MRS SAMSON	APPELLANT

CITY & HACKNEY HEALTH AUTHORITY 	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	MEETING FOR DIRECTIONS

Revised

	APPEARANCES

For the Appellant	MISS HELEN JACKSON
	(OF COUNSEL)
Messrs Ziadies
Solicitors
516 Brixton Road
LONDON SW9 8EN

For the Respondents	MR P CLARK
(OF COUNSEL)
Messrs Capsticks
Solicitors
General Accident Building
77/83 Upper Richmond Road
LONDON SW15 2TT

	MR JUSTICE WOOD (PRESIDENT):  This is an Interlocutory Application before myself, sitting alone, for leave to amend a Notice of Appeal in an appeal by Mrs Samson against a decision of an Industrial Tribunal sitting at London North under the chairmanship of the Mr Robson on 20 March, and 16 and 17 May, and 28 and 29 June 1990.

	The Decision was promulgated on 31 July 1990.  Before the Tribunal Mrs Samson, who was alleging unfair dismissal by her employers the City & Hackney Health Authority, was represented by a Mr Oputu who was employed at the Brixton Law Centre.  The Health Authority were represented by a solicitor, Mrs Middleton.

	A Notice of Appeal was presented to this tribunal dated 16 September 1990.  It was prepared and signed by a Mr Peter Thomson, a solicitor of 203 Coldharbour Lane, London SW9.  He had obviously been instructed after the hearing and continued to act until April 1991, when the applicant's present solicitors were instructed.  The grounds of appeal were solely on the basis of bias and unfairness.  The applicant Mrs Samson, swore an Affidavit on 4 October 1990 in support of the allegation of bias and impropriety.

	The Originating Application alleged: 

"The Respondents had initiated restructuring of its management structure which caused confusing complexities as to chain of command and questions arose as to accountability and performance.  Such matters led to such incidents which eventually resulted in my dismissal.  Given the facts as they are I believe my dismissal amounts to unfair dismissal."

	The Notice of Appearance is also of assistance in seeing the issues that were before the Tribunal.  Again it is in shortish form and merits reading, not in full, but beginning at paragraph (2) reads:

"In July 1989 the Applicant received the final written warning relating to her serious shortcomings in patient care and managerial responsibilities.

Following this warning the standards for the Applicant's future performance in the areas of recruitment, professional and management conduct were set.  Five meetings were to take place to review the Applicant's performance.  Three meetings were arranged and took place and the Applicant's improvement in the required areas was discussed.

A fourth meeting was arranged by the Applicant's immediate manager, Mrs Marshall, Assistant General Manager, but the Applicant refused to attend it.  She wrote to Mrs Marshall stating that she had lost confidence in Mrs Marshall as her superior.

Following the receipt of this letter Mrs Marshall suspended the Applicant and an enquiry into the breakdown of trust and confidence between the management and the Applicant took place at a disciplinary hearing on 7 November 1989."

It then sets out those who heard that matter.  It was Mr Wood, who was the unit general manager, Mrs Ann Bruton, the personnel manager, advising on personnel matters and Miss P Hobbs, the chief nurse, advising on professional issues.

	I turn from that reference to the Notice of Appearance to note that the decision was that of Mr Wood, but he sat there with the two advisors, who were able to help him.  Before me a bundle of correspondence has been produced.  The letter summoning the disciplinary hearing is dated 31 October 1989 and sets out the matters which were to be investigated.  The three main subject headings were Professional Conduct, General Conduct and Recruitment Matters.  After the hearing, in a letter of 14 November, stretching over some three pages, Mr Wood sets out his reasoning and his decision.  Those two letters merit reading together with any consideration there may be of this judgment.

	The Tribunal gave a careful and reasoned decision on the matters that came before them.  At the very end of their decision and apparently towards the end of the five days of hearing, the questions arose of possible alternative employment within the area.  The Tribunal say this in paragraph 31:

"We have also given consideration to the question whether a reasonable Health Authority would have dismissed the Applicant from its services...  We questioned Mr Wood closely as to whether a lady of the Applicant's qualifications and ability (as shown by her previous posts and experience) could not have been transferred to another post within its employ.  He told us that he had considered offering to transfer  her to a nursing post in a mental ward, for which she had qualifications.  Miss Hibbs, the Chief Nurse, would not, however, agree to have her employed anywhere in the authority.  Mr Oputu submitted that the Respondent had not called Miss Hibbs to state that.  The Applicant, when giving evidence, had acknowledged however, that Miss Hibbs had instituted proceedings against her before the United Kingdom Council for Nursing for professional misconduct.  That made it plain to us what Miss Hibbs would have said on the matter if she had been called, namely, that she would never have agreed to the Applicant being retained in the Respondent's service."

	I read that paragraph for two reasons.  The first is that subsequently proceedings were taken before the United Kingdom Central Council for Nursing Midwifery and Health Visiting.  Those proceedings stretched over four days towards the end of 1992 and Mrs Samson was exonerated.  Arising out of that, application is made now to amend the Notice of Appeal and to substitute wholly new grounds of appeal.  Miss Jackson first of all has made it quite clear, and responsibly and correctly has made it clear, that the whole of the initial Notice of Appeal would be struck out.  That is to go.  It is important perhaps to consider that a little further.

	The Original Notice of Appeal made a substantial number of very serious allegations against the Learned Chairman.  It was a blatant attack upon him.  It required, under our normal procedure, an extensive reply which put him to enormous trouble and which he set out with great clarity.  What is quite apparent is that this hearing from the very beginning had been an extremely stormy one.  The behaviour of Mr Oputu, as evidenced by the comments of the Learned Chairman, left a great deal to be desired; that is a gross understatement.  So that what really is sought now is to bring a wholly new appeal because of what occurred in front of the disciplinary proceeding of the United Kingdom Central Council.

	Miss Jackson submitted to this Tribunal a proposed amended Notice of Appeal stretching over some twelve pages, which in many parts (I say this with no disrespect) was a recital of facts and possible evidence from the Disciplinary Proceedings.  It occurred to me that as it stood it could not possibly be allowed to be an amendment and this morning she has been good enough to narrow down the points which she wishes to raise in her Amended Notice.  On page 1 she sets out three broad allegations (a) that the Industrial Tribunal misdirected itself in law, or misunderstood or misapplied the law (b) that there was no evidence to support particular conclusions of fact (c) that the decision of the Industrial Tribunal was one with which no reasonable tribunal could have reached and was obviously wrong; in other words an allegation of perversity.

	Under her (a) she raises two matters, possibly a third, but first she submits that the Tribunal in considering the decision of Mr Wood the General Manager, erred, because his decision was not the decision of the Health Authority and as an adjunct to that that Mr Wood was not sufficiently qualified in the professional aspects of the issues to have been an appropriate person to reach a decision.

	It seems to me to be abundantly clear that that simply cannot stand in the light of the fact that Miss Hibbs was there, the nursing officer, to advise him, and also to the fact that here was the general manager, the most senior member of the staff, dealing with this whole situation.  As would be appropriate in many other institutions, there is somebody on the staff who makes the decision for the authority.  This was a perfectly proper and understandable situation which often occurs.

	The second point made under (a), that is the misdirection of law, is that the Industrial Tribunal failed to take into account that there was no specific evidence in front of the Health Authority about accepted nursing practices when it reached its conclusion to dismiss.  Again, that, like the first one, must really fail when you see the complement of the panel and the situation which existed.

	Lastly, it is suggested that there were no written recruitment procedures in being at the time when the complaint is ultimately made and the matter considered further, because they were brought into being in writing after any relevant dates.  I have been referred to a passage in the part of the evidence before the Disciplinary Procedures of the United Kingdom Central Council.  I do not think I ought to refer to those, though we were referred to that, but it is abundantly clear even when one sees the correspondence to which I have referred, that the question of recruitment did not necessarily mean that it had to be in writing.  It is also apparent from the Notice of Appearance that there was a gradual crystallising of the problems involved and that the various meetings were to take place in order to monitor the Applicant's activities.  So on those points it seems to me that there is no justifiable allegation there of a misdirection which would be appropriate before this Court on the face of the submissions which have been made to me this morning.

	The second heading is as I have already indicated, that there was no evidence to support various particular conclusions of fact.  There is no evidence before me of what was before the Industrial Tribunal.  It is suggested that this Tribunal should now ask the Learned Chairman to produce his Notes of Evidence from June 1990.  It is an impossibly lengthy period of time.  It would be quite unfair to ask for that to happen and indeed in cases such as this, if that is going to be said, then I see no reason why that sort of allegation could not properly have been made when a solicitor was advising on the Notice of Appeal in September 1990.  It is just the sort of question that he would have asked and would have looked in to.  It is said now that there is no evidence to support the various conclusions of fact because it is suggested if one reads the transcript of the Disciplinary Hearing before the United Kingdom Central Council, that some of the evidence seems to indicate a situation contrary to some of the findings of the Industrial Tribunal.  That is very different from saying that there was no evidence before the Industrial Tribunal upon which it could find those facts.

	As a sub-heading under this second major approach it is suggested that Mrs Marshall was not being entirely frank with the Industrial Tribunal.  The Industrial Tribunal saw and heard her and in fact remarked in their decision that they found her an impressive witness.  That was entirely a matter for them at the time.  I can find no valid ground for saying that there was no evidence to support various conclusions of fact, which are not at this juncture set out in the greatest detail, but Miss Jackson has been kind enough to indicate to me what it is that she criticises.

	Thirdly, it is suggested that this was a perverse decision.  I read the decision; it is a clear decision; the reasoning is there.  It is not suggesting that the reasoning is flawed and it seems to me that the Learned Chairman is setting out the full reasons as indicated - the findings of fact, what the Tribunal accepted.  He has considered the relevant matters that the Health Authority should have considered and that the Tribunal should have considered.  There was in fact a right of appeal at the time to the Director of Personnel at St Bartholomew's Hospital; that was not exercised by Mrs Samson.  In my judgment it could not, on the face of this document and on the findings be said to be a perverse decision.  I am sitting alone, but I am confident that that plea would not succeed on the face of the documentation before me.

	There is a last point, namely that the Tribunal should not have relied upon hearsay evidence in deciding that Miss Hibbs would not employ the Applicant within the relevant area as indicated in paragraph (31) to which I have already referred.  So the second purpose of referring to that paragraph was to indicate there that reliance was not placed solely on the statement of Mr Wood that Miss Hibbs would not agree to employ anywhere in the Authority.  There were indications that as a result of those proceedings to be heard, it was reasonable in those circumstances in the opinion that Miss Hibbs held, for that view to be acceptable to the Industrial Tribunal.  

	This matter really must come to an end.  The next application would have been to admit the whole of the four days transcript from the Disciplinary Proceedings in front of the United Kingdom Central Council.  That would be tantamount to a total re-hearing of the case on completely new grounds after some three years.  Miss Jackson makes the point that she and those instructing her cannot know what happened in front of the Tribunal, they were not there.  She was before the Disciplinary Proceedings for those four days.  She has therefore obviously had ample time to discuss this matter with her client Mrs Samson.  The various matters which are now sought to be raised could have been raised at an earlier stage quickly and succinctly if there had been any validity to them.  

	This application has come about because of the result of subsequent disciplinary proceedings.  In the exercise of my discretion for the various reasons I have given, and indeed on reading all the documentation before me, I refuse this application for leave to amend the Notice of Appeal. 

	Leave to appeal refused.