Appeal No. EAT/690/93

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 19 January 1995

	Before

	THE HONOURABLE MRS JUSTICE SMITH

	MRS R CHAPMAN

	MS D WARWICK

CORNWARD LIMITED	APPELLANTS

MRS R WALTON	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR I J KUMI
(Of Counsel)
Messrs Evans Dodd
Solicitors
5 Balfour Place
Mount Street
London
W1Y 5RG

For the Respondent	MR T KIBLING
(Of Counsel)
Bruce Piper
Director of Legal Services
UNISON
Glen House
High Street
Banstead
Surrey
SM7 2LH

	MRS JUSTICE SMITH:   This is an appeal from the decision of an Industrial Tribunal sitting at Lincoln on 6 July 1993, by which they decided that Mrs Walton, the Respondent to this appeal, had been unfairly dismissed by the Appellants, Cornward Limited.  

	From 1988 the Respondent was employed as a enrolled nurse by the Appellants at their nursing home for the elderly at Bassingham, near Lincoln, until she was summarily dismissed on 18 November 1992.

	On 17 November, during her tea break at work, the Respondent was asked by the matron of the nursing home to go to her office.  Although this was, in fact, to be a disciplinary meeting, the Industrial Tribunal accepted the Respondent's evidence that she was not told this and was only asked to go for a chat.  She was asked by the matron if a Mrs Hughes might attend as a witness and colleague to which the Respondent agreed.  The Respondent was not invited, as the Tribunal found, to have present a trade union representative or a friend or colleague of her own choice.

	The Respondent was then told that allegations had been made against her in respect of an incident which was said to have occurred on 1 November.  It is not clear from the decision in what detail the Tribunal found that she was told what was alleged against her.  However, the essence of the allegation which appears from the Respondent's written submissions before the Tribunal, was that she had mistreated an elderly patient who suffered from a heart condition and was unwell, by requiring him to walk with a walking frame and by kicking his feet, to make him continue to walk when he wanted to stop and sit down to rest.

	The Respondent gave her account of this incident to matron.  She asked, but was not told, who had made the allegations.  At the end of the interview matron suggested that she should go home.  She did so.  The events of the following day are described by the Industrial Tribunal thus:

		"2.  ....  She [the Respondent] was expecting to return to work as usual the next afternoon.  She was concerned about the meeting which had come entirely out of the blue to her.  The next morning she rang up the Matron to find out what was happening.  To her surprise she was told that Mr Pradhan, who was in fact the owner of the respondent nursing home, had said that Mrs Walton could either resign, in which case she would get a reference, or she would be fired.  Mrs Walton asked the Matron is she could speak to Mr Pradhan who in fact rang her at home and said to her in effect `you're fired and that is the end of it'." 

	The Industrial Tribunal continued as follows:

		"3.  Mrs Walton never had an opportunity of seeing Mr Pradhan and although there is an appeals procedure laid down in the nursing home rules, it seems that the person to whom an appeal should be made was in fact the person who made the decision to dismiss her".

	On 23 November the dismissal was confirmed in writing.  That letter, signed by Mr Pradhan, describing himself as Director of the nursing home, set out the allegation of misconduct, stressed the seriousness and unacceptability of that kind of conduct and made the point that such conduct was not only gross misconduct, as a member of staff, but also a disgrace to the profession.  It continued as follows:

		"Following your interview by Matron Heather Boothright on 17th November, and after discussions with my co-directors, we decided on 18th November that you should be summarily dismissed from your employment with Cornward Limited with immediate effect and that decision was communicated to you by telephone that same day. ....".

	When the matter came to the Industrial Tribunal the Respondent appeared with her trade union representative and she gave evidence on oath.  The Appellant employer did not appear but sent to the Tribunal written representations prepared by their solicitor, exhibiting a number of documents including witness statements.  

	The submissions of the employer began by stating that the reason for the summary dismissal from their employment was gross misconduct.  It was said that the decision had been communicated to the employee by telephone on 18 November and it was explained to her that a letter confirming the position and the reasons for dismissal would be sent to her within the next few days.  The letter of dismissal was annexed.

	The submissions then recite the circumstances leading to the dismissal.  First, it is said that the matron, Heather Boothright had come to learn from a Mrs Richards, a member of staff, that an incident had occurred on Sunday, 1 November 1992.  Mrs Boothright had found that Mrs Richards and two other members of staff were extremely troubled by what they had witnessed on that occasion, but had been reluctant to report the matter because it concerned the Respondent, a qualified member of staff.  However, they had done so.  

	Mrs Boothright had then contacted Mr Pradhan to seek his instructions.  In accordance with his instructions Mrs Boothright had investigated the complaint and, in view of the seriousness of it, had asked the complainants to place their statements in writing.  There were then attached to the submissions three copy statements, one from Mrs Richards, one from Miss Edmunds and another from Miss Dalzel. 

	The Tribunal was invited to read those detailed statements, but it was said that the essential feature of them was that Rita Walton (that is the Respondent) had mistreated a patient in an exceedingly cruel and possibly life-threatening manner.  The submission went on to explain that in accordance with the established disciplinary procedure, as annexed, Mrs Boothright had conducted a disciplinary interview on 17 November with Miss Hughes in attendance with the consent of the Respondent.

	It was said that the nature of the complaint was explained to the Respondent and that she was told that if true, it had constituted gross misconduct and was a dismissible offence.  It is then claimed that the Respondent admitted the facts as alleged and acknowledged that she had gone too far on the day in question.  It is said that she expressed deep regret about her actions.  It is then said that Mrs Boothright ended the interview by saying that she had to report the outcome to the directors of the company, who would take a decision on her future with the company.  A copy of some typewritten notes and a handwritten set of notes were annexed as demonstrating that which had occurred at the disciplinary interview. 

	The submission went on to say that the directors had concluded that the conduct of the Respondent was utterly unacceptable and contrary to the basic requirements of the nursing profession.  The decision was taken that she should be dismissed.  This was communicated to her and it was said that she exercised her right, under the disciplinary procedure, to appeal verbally directly to the directors, one of whom discussed the matter with her over the telephone but the decision stood unchanged. 

	There then followed several submissions, which it is not necessary for the purpose of this judgment to set out, in which the version of events given in the Respondent's Originating Application was challenged.  These matters referred mainly to procedural matters rather than to the events of 1 November.  

	The employers concluded with three legal submissions.  It was said, first of all, that the incident of 1 November justified summary dismissal by the employer, and that any claim of unfair dismissal was misguided.  Second, if contrary to that submission, the Tribunal were to decide that the dismissal was unfair, the employer submitted that there was no dispute that the conduct actually took place, and that the Respondent was wholly or principally to blame for her own dismissal and any award of compensation should reflect that fact.  Third, the employers stated that if the application were to succeed there were no circumstances in which they would take the employee back.  

	At paragraph 4 of their reasons, the Tribunal say this:

		"We have not had the opportunity of seeing the witnesses, who made statements in support of the respondent.  We do not know when the statements which we have seen were made except for that contained in A4 which was dated 19 November, which was two days after the meeting with the Matron".

	We interpose to say that Miss Dalzel's statement was dated 19 November.  The other two statements were undated although one of them, that of Mrs Richards, appears from its context to have been written some considerable time after Monday, 16 November 1992.  We say that because the final sentence says this:

		"As far as I can recall this is an accurate written statement of a verbal conversation I had with Mr Arif Pradhan on Monday 16th November 1992".

	At paragraph 5 of their Reasons the Industrial Tribunal give their decision in very brief terms.  They say this:

		"We have listened to Mrs Walton's explanation of the events on 1 November and we accept her version of them.  We find that on the procedural aspect of her dismissal that she was unfairly dismissed ....".

	They then reject a second point which she had made, namely her suspicion that she may have been dismissed on account of trade union activities.  No more need be said of that as the matter was rejected by the Tribunal.  The Tribunal then went on to assess compensation in the sum of £2,544.81.  They said nothing about any deduction for contributory fault.  

	In this appeal two main grounds appeared in the Appellants' Notice.  The first ground alleged that the Tribunal had erred in not accepting the Appellants' submission below, that the Respondent's conduct had been so gross and serious that it merited instant dismissal.  
	
	Very shortly into his submissions on this point Mr Kumi, counsel for the Appellants, was obliged to accept that, as drafted, this point did not raise any point of law.  If it raised any point it must be an allegation that the decision of the Industrial Tribunal was perverse.  However, we are not in a position to consider any question of perversity.  The matter was not properly raised in the Notice of Appeal.  The Appellants did not request the notes of evidence.  The Appellants' solicitors did, in fact, write to the Employment Appeal Tribunal requesting a summary of the Respondent's evidence given below.  No such summary exists and that was explained to the Appellants' solicitors.

	That ground of appeal having failed at the outset, Mr Kumi was allowed a good deal of latitude in pursuing other ways of putting his case.  In particular, he argued that the Industrial Tribunal had misdirected itself in law in jumping to the conclusion, as he submitted it did, that because there had been procedural defects, as the Industrial Tribunal had found, the dismissal was necessarily unfair.  He relied on the speech of the Lord Chancellor, Lord Mackay in the well known case of Polkey  v  A E Dayton Services Ltd [1988] 
ICR 142.  In particular, he relied upon the passage at page 153 F, where the Lord Chancellor said this:

		"If the employer could reasonably have concluded in the light of the circumstances known to him at the time of dismissal that consultation or warning would be utterly useless he might well act reasonably even if he did not observe the provisions of the code.  Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair.  Whether in any particular case it did so is a matter for the industrial tribunal to consider in the light of the circumstances known to the employer at the time he dismissed the employee".

	The sentence upon which Mr Kumi particularly relies is:  "Failure to observe the requirement of the code relating to consultation or warning will not necessarily render a dismissal unfair".  Substituting for "consultation or warning" the words "procedural requirements" in that passage, Mr Kumi submits, as is plainly right, that the existence of a number of procedural defects in the disciplinary process does not necessarily render a dismissal unfair.  He took us to a number of authorities illustrating the point that a dismissal may yet be held to be fair, even though there have been a number of irregularities.  That of course, is so and we accept it, but as Lord Mackay pointed out in the passage to which we have already referred, it is essentially a question of fact for the Tribunal in each case whether that is so.

	As Mr Kibling pointed out in argument, the Appellants' written submissions to the Industrial Tribunal did not invite them to consider this point.  They were not invited to say that even though there might have been some procedural irregularities, the employer had still acted reasonably in treating the Respondent's conduct as a sufficient reason for summary dismissal.

	It seems to us that it is incumbent upon an Industrial Tribunal to consider this issue whether invited to or not, but there is no obligation upon them to set out every step of their reasoning in their written reasons, particularly when they have considered a point only to dismiss it.  There is no reason to suppose, in this case, that this Industrial Tribunal did not consider the importance of the procedural defects and the possible effect they may have had upon the employer's decision to dismiss.  We reject the argument on this point raised by Mr Kumi.

	Mr Kumi then argued that the Industrial Tribunal did not appear to have addressed the substantive issues of the Appellants' belief in the employee's serious misconduct.  He submitted that they did not apply the test set out in British Home Stores Limited   v  Burchell [1980] ICR 303.  The test is well known.  Has the employer formed an honest belief in this misconduct based on reasonable grounds following an adequate investigation?

	Mr Kumi submitted that no such considerations appeared in the Decision.  As we understand this decision, the Industrial Tribunal in effect rejected virtually the whole of the Appellants' case.  They heard the Respondent, believed her on all issues and accepted her evidence.  

	It is, we accept, unfortunate that they have not set out in more detail the findings of fact which they made.  However, there are enough indications, in our view, to enable us to see what their attitude was to the employers' case.  First, they remarked upon the lack of any live evidence from the employers.  Second, they were manifestly sceptical of the witness statements which had been submitted.  We can see why they were.  We have already referred to the undated statements of two witnesses and one statement dated 19 November.  We bear in mind that the written submissions prepared by the employers' solicitor claimed that all of those statements had been prepared in advance of the disciplinary hearing on 17 November.  We repeat, we can understand why the Tribunal were sceptical of the authenticity of those statements.  Third, in paragraph 1 of their decision, at a time when they had heard all the evidence and considered all the issues in the case, the Tribunal refer to the incident of 1 November, at which the misconduct was supposed to have taken place, as an "alleged incident".  Fourth, as we have indicated, they accepted the Respondent's version of that incident although, regrettably, not setting out in their Reasons what that version was.  It is adequately clear to us that the Industrial Tribunal did not accept that the Appellants had the statements they claim to have had at the time of dismissal.  By implication, they have applied the Burchell test.  They found also that the dismissal was procedurally unfair.  Therefore, it appears to us that they did not consider that the Appellants had acted reasonably in treating the Respondent's conduct as sufficient ground for dismissal.

	Those were the only arguments which Mr Kumi raised in his attack on the finding of unfairness.  

	The second ground of appeal complained that there was no finding, one way or the other, as to contributory fault.  This was an issue raised by the Appellants in the written submissions to the Industrial Tribunal.  However, before us the ground was virtually abandoned, as Mr Kumi accepted that it was not incumbent upon the Industrial Tribunal specifically to state that they had considered contributory fault and rejected it.

	In the particular circumstances of this case, it would have been helpful to the parties and to us if the Industrial Tribunal had summarised the Respondent's account of the incident of 1 November before saying that they accepted it.  However, it is a clear inference to be drawn, in our view, from their acceptance of her account, that her account differed from that advanced by the Appellants and that they did not consider that it amounted to contributory fault.

	For those reasons this appeal must be dismissed.

	______________________________

	We have come to the conclusion that there should be an order for costs in this case;  that the Appellants will pay the Respondent's costs to be taxed, if not agreed.  Our reasons for so saying are that we consider that this was, from the outset, a hopeless case and the Appellants' conduct in bringing the appeal was unreasonable.  

	As we have indicated in the course of the judgment, the ground of appeal advanced on the substantive issue of unfairness was really an attempt to argue perversity without pleading it and without obtaining the necessary materials.  This was pointed out to the Appellants in the Respondent's answer to the appeal in 1993.  The second point was virtually abandoned at the appropriate stage of this appeal.

	We take the view that this case was indeed, a non-starter, to use the expression used by Mr Justice Bristow in the case of Redland Roof Tiles Ltd  v  Eveleigh  [1979] IRLR page 11.  No point of law could be raised which had the remotest chance of success.  For those reasons there will be an order for costs.