Appeal No. EAT/916/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 6 November 1994

	Before

	THE HONOURABLE MR JUSTICE HOLLAND

	MISS J W COLLERSON

	MR E HAMMOND OBE

MRS S COBHAM	APPELLANT

FOREST HEALTHCARE NHS TRUST 	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	IN PERSON

For the Respondents	Mr M Sutton
	(Of Counsel)
	Beachcroft Stanleys
	20 Furnival Street
	London
	EC4A 1BN

	MR JUSTICE HOLLAND:     This is a very sad business and it is one that has caused some concern to all the members of this Tribunal.  We have to deal with two Decisions of the Industrial Tribunal sitting at London North.  

	The essential background is that from 19 September 1977 to 2 September 1993, the Applicant, Mrs Cobham, was employed as a Health Visitor by the Respondents.  On 1 May 1991, she made an application to the Industrial Tribunal alleging unlawful racial discrimination, that allegation being based upon an incident involving a loss of temper by a fellow employee on 6 February 1991.  That application was adjudicated upon by the Industrial Tribunal on 1 September 1993.

	Effectively, the matter was dealt with on the basis of the resolution of a preliminary issue.  That preliminary issue was based upon the terms of Section 32(1) of the Race Relations Act 1976.  That reads:

		"32(1)  Anything done by a person in the course of his employment shall be treated for the purposes of this Act (except as regards offences thereunder) as done by his employer as well as by him, whether or not it was done with the employer's knowledge or approval".

	The Respondent took the point that the conduct complained of was not conduct in the course of employment.  Having considered authority, the Industrial Tribunal found in favour of that submission so that the decision was that the Respondent did not unlawfully discriminate against the Applicant on the grounds of her race.  

	That then leads on to the second Decision we are concerned with and that is a decision arrived at by the same Tribunal on 3 September 1993.  This decision related to an application made by the Appellant alleging unfair dismissal and arose from an application made on 26 November 1992.  That application failed to be considered by reference to Section 57 of the Employment Protection (Consolidation) Act 1978.  

	In the result, the Tribunal found that the terms of subsection (1) were satisfied and yet further, when turning to the terms of subsection (3) they took the view that the dismissal was not unfair in that the reason found was a sufficient reason for that course.

	With respect to the first Decision, that of 1 September 1993, Mrs Cobham argues that the Industrial Tribunal misdirected itself as to law, further or alternatively, it did not appropriately apply the law to the facts.  So far as the facts are concerned, the findings of the Tribunal were as follows:

		"2(a)  The Applicant was employed by the Respondent from 19 September 1977 as a Health Visitor.  She was based at the Respondents' Langthorn Health Centre where she shared a room with another Health Visitor, Mrs S Edwards.

		(b)  Prior to the 6 February 1991 the Applicant had complained to her line management about the conduct of another Health Visitor, Mrs S Lovelock.  Mrs Edwards had strong feelings on the matter.

		(c)  At 9.30 a.m. on 6 February Mrs Edwards approached the Applicant in the room which they shared in an angry and threatening manner.  She stood close to her and pointed her finger in the Applicant's face.  She complained that the Applicant kept reporting junior Health Visitors to management.  Both parties were later interviewed by the Assistant Nursing Director. 

		(d)  Mrs Edwards was not in a position of authority over the Applicant and had no right or authority to behave in this way.  Her acts were such as might have led to disciplinary action under the Respondents' code of conduct.

		(e)  The Respondent elected to treat the matter in a low key manner and in accordance with its previous practice attempting to extract an apology from Mrs Edwards which was eventually given".

	In the course of its approach to the matter the Industrial Tribunal directed itself that guidance as to the meaning of the terms "in the course of his employment" as used in Section 32(1) of the Race Relations Act 1976, could be gained from the decision of the Court of Appeal in Irving  v  The Post Office [1987] IRLR 289.  

	The essence of that decision is well set out in the head note where it reads:  

		"The Court of Appeal held:
			The County Court had correctly held that the Post Office was not vicariously liable under the Race Relations Act for racially abusive words written on an envelope by a postman, since the postman was not acting in the course of his employment.

			Where an employee's act was unauthorised by the employer, whether the employer is vicariously liable depends upon whether the act was merely an unauthorised or prohibited mode of doing an authorised act, as distinct from an act which is outside the sphere of employment.The statement of general principle in Salmond on Torts, approved by the Privy Council, applied.  

			In the present case, the postman's act was not authorised by the Post Office.  He was authorised to write certain matters upon letters for the purpose of ensuring that they were properly dealt with, but he was not otherwise allowed to write on mail at all.  His act of writing an offensive message on an envelope out of personal malevolence could not be regarded as merely an unauthorised way of performing the duties for which he was employed, namely to sort and deliver mail.  The act of writing on the envelope did not become part of the manner in which the postman performed his duties merely because he did it quickly while on duty.  His employment provided the opportunity for his misconduct, but the misconduct formed no part of the performance of his duties, was in no way directed towards the performance of those duties, and was not done for the benefit of his employer".

	In an address to us, which was conspicuous for its clarity and moderation, Mrs Cobham drew our attention to a decision of an Employment Appeal Tribunal sitting in Scotland on 15 May 1990, Yaseen  v  (1) Strathclyde Regional Council (2) The General Teaching Council for Scotland.  In particular, she drew attention to a passage in the judgment at page 7 which read as follows:

		"In considering the first point on appeal, namely the vicarious liability of the employer, this Tribunal has particular regard to the provisions of Section 32(1) of the Act, as we have to.  Section 32(1) refers to `Anything done by a person in the course of his employment'.  It further states, `whether or not it was done with the employer's knowledge or approval'.  This Tribunal had a helpful citation of the common law as it related to vicarious liability.  However, Parliament has chosen to express vicarious liability in wide terms.  That must be our principal consideration.  Even so, and putting the matter generally, an employer is liable for an act of an employee which might be said to be reasonably incidental to his employment".

	Her submission is that by way of that passage, Yaseen served to demonstrate that the concept of vicarious liability was wider than it appeared in the judgments in Irving's case.  Thus it was that she submitted that the Industrial Tribunal misdirected itself as to law in that it should have applied a test as supported by Yaseen, that is it should have asked itself whether the conduct of Mrs Edwards might be said to be "reasonably incidental" to her employment with the Respondents.  Her further submission inevitably was that had that wider test, as she would put it, been applied then the answer would have been that the conduct of Mrs Edwards was reasonably incidental to her employment so that the Respondents had a vicarious liability for it.

	Turning to our approach to the matter, we are concerned first, that in arriving at the decision in Yaseen the Employment Appeal Tribunal plainly did not have Irving cited to it.  Thus it was, that in forming a view as to the proper construction of this sub-section, it did not have the very important assistance of the Court of Appeal authority.  The further matter that inevitably weighs with us is that the Court of Appeal Authority of Irving is binding upon us, whereas the decision in Yaseen is not binding albeit that, inevitably and properly, we take careful note of it, and we do not consciously seek any departure between the law of England and the law of Scotland.  

	From that standpoint this Tribunal takes the view that we must be guided by Irving and that if Irving sets out a narrower test than appears in Yaseen then it is the narrower test that we have to follow in these circumstances.  It may well be, we hasten to add, that if the Tribunal in the Yaseen and had Irving cited to it, then the terms in which it analysed the law may have been materially different, so that no significant difference may indeed have emerged.  

	Thus it is we are entirely satisfied that this Tribunal correctly directed itself that the guidance to be given as to the meaning of Section 32(1) came from the Court of Appeal decision in Irving.  

	That was not the end of the submission made by Mrs Cobham.  She made a further submission which essentially is part law and part fact.  Her submission was that the decision in Irving turned, to some extent, upon the facts of that case so that to the extent that those facts could be distinguished from the instant fact, there was room for a different result in this case.  

	The particular point that she took was that the victims in the Irving case, namely the recipients of the mail were, in a sense, strangers to the Post Office whereas in this case both she and Mrs Edwards were fellow-employees in the same grade and sharing the same room.  Thus it was that she sought to argue that she was in a different position from the recipients of the mail and she sought further to argue that once there was a fresh view of the facts, that it could, and should have been found, that Mrs Edwards was doing wrongfully that which she was employed to do.

	For our part, we have to say that the key question for the Industrial Tribunal and for this Tribunal is not the status of the victim, but the scope of the employment.  The essential question that has to be answered is a question that can be posed without any reference to the victim at all.  The question is "did the impugned act amount to a wrongful performance of duties for which the employee was employed, or did the employment merely provide the opportunity to do the act?".

	Having thus posed the question for the Tribunal, we then turn back to the findings of this Tribunal to note that by the facts, as they found them to be, essentially they answered the question in favour of the Respondents.  They specifically found that Mrs Edwards was not in a position of authority over the Applicant, that she had no right or authority to behave in the way described at all.  Indeed, they make the point that her acts were such as to lead to disciplinary action under the Respondent's code.  Thus it is they find that what Mrs Edwards did was in no way a wrongful performance of duties for which she was employed.  They further find that the employment merely provided Mrs Edwards with the opportunity to do the act that was complained of.

	The weakness of the position of the Applicant on this particular part of her case is graphically demonstrated by the argument that was advanced on her behalf to the Tribunal as set out in paragraph 3 of their Reasons.  The Tribunal noted that: 

		"3 ....  For the Applicant Mr Narayan maintained that Mrs Edwards had said that the Applicant was always bullying newly qualified Health Visitors and that she was going to bring an end to it.  This was not a frolic of her own.  What Mrs Edwards was saying was that `I am going to stand up for my colleagues as management will not do it'.  She was acting well within her employment". 

	It is plain that the facts have to be distorted, and distorted in a way contrary to the interests and standing of the Applicant herself, before one can mount an argument to the effect that what Mrs Edwards was doing was a wrongful performance of duties for which she was employed.  

	The factual basis thus contended for was understandably ruled out by the Tribunal; on the factual basis as found by the Tribunal and on as we find a proper direction as to law, the result that is appealed from was, we are sorry to say, inevitable.  Thus it is that the first part of the appeal has to be dismissed.

	We then come to the Decision of 3 September 1993, and so much of the appeal as relates to that.  This part of this appeal has understandably caused concern to this Tribunal because it is impossible to listen to Mrs Cobham, or indeed to read the facts without having a great sense of dismay at the way in which events developed from the Spring of 1991 until today's date.  It seems that events proceeded with an almost inexorable approach so that what started off as a bad job became steadily worse and resulted in her finally being out of work and in an impossible position.  All three of us, sat and pondered long about this state of affairs and all three of us have inevitably felt concerned about it.  That said, we are a Tribunal that has its approach governed by Section 136 of the Employment Protection (Consolidation) Act 1978 which reads as follows:

		"An appeal shall lie to the Appeal Tribunal on a question of law arising from any decision of or arising in any proceedings before an Industrial Tribunal".

	And the problem here is to discern any question of law that could found an appeal.  The facts have to be set out in order to understand the problem that has arisen and inevitably, even as succinctly expressed by the Industrial Tribunal, they occupy some length.  

	The facts start with the incident already referred to, that is, the incident of 6 February and the complaint made on the following day, or perhaps the day itself, as to the conduct of Mrs Edwards.  We then read on from paragraph 2 of the Reasons:

		"2(c)  On the 8 March the Waltham Forest Race Equality Council wrote on behalf of the Applicant to the Respondent's Director of Personnel with a series of complaints of racial discrimination and harassment and asked for an investigation.  The Health Visitors' Association also became interested on behalf of the Applicant.  The Respondent appointed its Assistant Director of Personnel Mrs S Rayner to conduct an investigation into the complaints during which she was assisted by a Mrs A Lewis who was a black external adviser approved by the Commission for racial Equality, the Health Visitors' Association and the Waltham Forest Race Equality Council.

		(d)  On 12 April 1991 there was a 5 hour meeting to discuss the details of the Applicant's complaints and this meeting was attended by the Applicant, her  representative from the Health Visitors' Association, Mrs Rayner and the Respondent's Service Manager Mrs M Holden.  On 17 April the Respondent sent notes of the meeting to the Applicant and the Health Visitors' Association for approval.  On 3 May the Applicant presented an Originating Application to the Industrial Tribunal alleging unlawful discrimination on the grounds of race and on 21 May sent to the Respondent 43 pages of amendments and additions to the notes of the earlier meeting.  In June the Applicant commenced a period of special leave with pay pending the outcome of the investigation.  While the internal enquiry report was completed in November that year the period of special leave was to last for over a year.

		(e)  On 19 March 1992 the Respondent's Personnel Director Mrs D M Johnson sent out a copy of the report to the Applicant and her advisers.  The report ran to some 200 pages and had taken 7 months to prepare in view of the large number of individuals at all levels in the Respondent's organisation against whom the Applicant had complained.  The Applicant was invited to discuss the report with Mrs Johnson and Mrs Lance.  On 27 March the Applicant returned the report to Mrs Johnson unread.  The Respondent attempted to set up meetings with the Applicant for 2 dates in April but the Applicant failed to attend.  On 16 June the Applicant's Solicitor wrote to say that he could not understand what purpose a meeting would serve and that the Applicant had rejected the report in its entirety.

		(f)  On 22 July a meeting was convened which was attended by the Applicant and her Solicitor and for the Respondent by Mrs Lance, Mrs B Mitchell a Personnel Manager and a Solicitor appointed to act on behalf of the Respondent.  For the Respondent Mrs Lance indicated that she believed that there were 3 options as to how the Applicant's employment with the Respondent could be treated.  The first involved her returning to work with her special leave now coming to an end.  The second involved remaining on special leave for some length of time to come and the third involved terminating the relationship of employer and employee.  For the Applicant it was suggested that it was impracticable for her to return to work and that special leave should be continued until the outcome of the tribunal proceedings was known.  At that time no hearing date had been fixed.  The meeting ended on the basis that the Applicant was not prepared to return to work in the foreseeable future and her Solicitor indicated that they would consider the position and let the Respondent have a response by the 29 July.  Full notes were taken of the meeting by the Respondent and typed up and a copy was sent to the Applicant's Solicitor.

		(g)  On 21 August the Respondent by Mrs Lance wrote to the Applicant with a copy to her Solicitor inviting to attend a further meeting on 2 September.  On 27 August the Applicant's Solicitor replied to say that the Applicant had gone abroad notwithstanding that it was a term of her special leave that she would make herself available for the Respondent unless special authorisation was obtained.

		(h)  On 2 September the Respondent by Mrs Lane wrote to the Applicant to terminate her employment with immediate effect giving 12 weeks pay in lieu of notice.  The letter was lengthy and covered all that had passed between the parties in some detail.  Mrs Lance concluded that the employer/employee relationship had broken down irretrievably.

		(i)  The Applicant appealed against her dismissal and the hearing took place on 18 March 1993 before a panel that comprised the Deputy Chairman, the Chief Executive, an independent Director and a senior Personnel Manager.  The Management case was presented by Mrs Lance and the Applicant was represented by her Solicitor.  After hearing both sides the panel upheld the dismissal.

		(j)  The Applicant was dismissed not because she had made complaints against  management which they considered were unjustified but because her conduct between the publication of the report and the date of her dismissal was such as to justify the Respondent in coming to the reasonable conclusion that the employer/employee relationship had broken down irretrievably".

	We not need, I think, read further as to the facts.  As to the Tribunal's approach to this issue, in paragraph 3 of the Reasons they set out, at length, the submissions made to them on behalf of the Applicant.  In paragraph 4 they set out at similar length the submissions made on behalf of the Respondents.  In paragraph 5, again at some length, they come to their conclusions in the matter.  At an early stage in the paragraph they find that the Applicant had been dismissed and that the category of reason within Section 57 of the Act was "some other substantial reason, namely the breaking down of trust and confidence between the parties".  
	They then go on to find that the dismissal was fair within the meaning of Section 57(3).  The justification for that finding is long and sustained and we do not, in any way, begrudge or complain about the length and care that the Tribunal applied to this critical issue.  Essentially, they find that having regard, in particular, to what happened after the report was made available to the Applicant, there was a breakdown of the necessary trust and confidence that had to lie in between an employer and an employee and they find, on the facts before them, that the responsibility for that lay with the Applicant.  

	Thus it is that in the event they were satisfied that the dismissal could not be categorised as unfair and they dismissed the complaint.

	So much then for the way in which the Industrial Tribunal approached this matter.  Turning back to this particular appeal the two points were taken in essence by Mrs Cobham in the course of her submissions to us.  We have to say straight away that neither of those points could be categorised as raising a question of law, and to that extent we are immediately in a position of being unable to find a basis to sustain this part of the appeal.  That said, because of our concern about this matter, we listened very carefully to the points that were made and we make no apology at all for rehearsing the point and our response to it.  

	The first point amounted to this.  That at all material times, after May 1991, she had pending between herself and the Respondents, the application that she had made to the Industrial Tribunal based upon racial discrimination, that is, the application reflecting the events of 6 February 1991.  Her case is that as at the meeting of 22 July it seemed apparent that the Respondents were making it a condition for her return to work that she should withdraw that complaint.  Her further case is that very properly she refused to withdraw the complaint and it was because of that refusal that she was dismissed.  Her further argument would be that given the failure of the Industrial Tribunal to take heed upon this point, then to that extent the decision was perverse.  

	For this Tribunal the fallacy in this argument is factual.  First, we have to look very carefully at the Reasons of the Tribunal.  We have looked at the recital of the submissions made on behalf of the Applicant to the Tribunal and we can discern no evidence at all to support the contention that the Respondents were making withdrawal of the complaint to the Industrial Tribunal as a condition for a return to work.  There is of course reference to the fact of the pending proceedings, but that is based upon the case that was then being presented by the Applicant's Solicitor to the Respondents, namely that until those proceedings were resolved, it was impracticable for her to return to work so that the special leave with its pay should be continued until the outcome of the Tribunal's proceedings was known.

	For its part, the Industrial Tribunal did carefully consider that particular argument and dealt with it in this way.  That:

		"Having completed the report the Applicant and her adviser refused to discuss it and maintained their position of confrontation throughout.  They sought to justify that attitude on the basis that it was for the Tribunal to decide upon the matter and the Applicant should be allowed to continue her paid leave until the Tribunal proceedings have been completed.  The Tribunal was only being asked to adjudicate on the one incident which lay within its jurisdiction".

	The first concern of this Tribunal is as to whether this point raised by Mrs Cobham can be founded upon any of the facts as found by the Tribunal, which facts founded the submissions to the Tribunal made on her behalf by her counsel.  We have to say that looking at the Tribunal's findings we can find no evidence at all about this point.

	The other aspect which has weighed with us is a perusal of the letter of 2 September from Mrs Lance, on behalf of the Respondents, which informed Mrs Cobham that she was being dismissed and we have read that letter very carefully to see whether it provides any basis for the submission by Mrs Cobham.  

	In the event, we cannot find any support for her submission, but there is a passage which has perhaps more importance and that is in the one that reads as follows:

		"It is accepted that you had the right to make your complaints.  Equally, it was our responsibility to investigate them.  The time lapse between many of the events you describe and the lodging of your complaints did not make that process easy.  Nevertheless, they were investigated very thoroughly as demonstrated by the report your allegations were not substantiated.

		You have rejected this report in its entirety.  You have not made any detailed response to it and you have refused to discuss it.  Any question of your return to work would have depended on some modification of your position on this issue.  Your representative has suggested on your behalf that I should await the outcome of the Industrial Tribunal with whom you have lodged an application.  I do not accept this.  A majority of the issues arising from the report are not the key issues on which the Tribunal application is based.  Therefore, any discussion of these issues, any resolutions of them or decisions which depend on them do not have to await the outcome of the Tribunal hearing.

		At the heart of any contract of employment lies a need for trust and confidence between employer and employee.  Many of your complaints were grave in nature with serious consequences for individual members of staff within the Trust had they been substantiated.  The fact that they have not been either because there was no evidence to support them or the available evidence demonstrated them to be false raises questions about the degree of trust and confidence which we as your employer can have in you, particularly as you refuse to discuss the issues at all".

	That then leads on to Mrs Cobham's second essential argument and it is that the Industrial Tribunal failed to accord proper weight to her concerns naturally flowing from the preparation and the release of that report.  She draws attention pertinently to the delay in releasing the report to her, which delay occupied an undoubtedly long period, namely that between November 1991 and March 1992.  She tells us further and we readily accept, that even at the latter date there were restrictions sought to be placed upon its circulation.  Yet further she points out, that although the making of the report started with a long interview with her, supported by the written submissions, nonetheless nobody had been back to her during the currency of the investigation into her allegations, and seemingly the report had been prepared without inviting her to make any further contribution to it.  

	Thus it is, she submits, that it was appropriate and certainly within the bracket of her reasonable responses, for her to be cautious in her approach to this report and that caution was endorsed and supported by her legal advisers and thus it is that she would submit the situation was as reflected in the letter of 2 September, that is that at that date there still had not been any discussion about the report and its significance.  Her complaint is that the Industrial Tribunal failed to give proper weight to her circumstances at that time and to the understandable difficulty in arriving at a considered response and in fairness, it would be right to say that submission, although separated from her first, has to be considered in conjunction with the fact of a continuing and unresolved application to an Industrial Tribunal.  

	For this Tribunal there has been anxious consideration about this point.  Without having our own ability to make a careful investigation into the facts, we have been concerned about certain aspects of this matter factually, and in particular the delay between November and March, and the extent to which a report was prepared without coming back to her.  But all that said, when we come to look at the sequence of events in and after March 1992, leading up to 3 September, it becomes increasingly difficult for us to understand how this ongoing problem could remain unresolved and how it came about that there was not greater movement on her part to discuss and consider the report with the Respondents.  

	One can put the matter this way.  This is a complaint about being unfairly dismissed as at 2 September.  But as at that date, having regard to the history it is plain, as the Industrial Tribunal found, that the Respondents had to have as employers, a deep concern about the impact of the report on the Applicant and on fellow-employees and its potential influence on the prospects for further employment.  They had not got any co-operation over this particular aspect as the letter demonstrates and as the facts found by the Industrial Tribunal demonstrate.  
	Thus it was that it was with all that in mind that the Industrial Tribunal approached the difficult issue that was raised pursuant to Section 57(3), namely as to whether this dismissal was, in all these rather distressing circumstances, fair or unfair. 

	The Tribunal found that the range of responses open to the Respondents as reasonable employers, as at 2 September 1993 included dismissal.  For our part we cannot fault that finding.  Even in reviewing that finding we have had grave difficulty because as we have already pointed out we have been unable to find any question of law that would sustain our jurisdiction, but departing in the circumstances of this case from consideration of strict law to what we can discern as the facts on the material put before us, we still cannot find, concerned though we are, any fault in the approach of the Industrial Tribunal to this particular problem and thus it is, at the end of an anxious day we have to dismiss this appeal.