Appeal No. EAT/717/94
			EAT/716/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18th September 1995

	Before

	HIS HONOUR JUDGE J HICKS Q.C.

	MR J R CROSBY

	MR D A C LAMBERT

MR L WHITE	APPELLANT

WORCESTER ROYAL INFIRMARY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR A BROWN
(Advice Worker)
Worcester Welfare Rights Centre
Angel Centre
Angel Place
Worcester
WR1 3QN

For the Respondents	MR P FARRAR
(Solicitor)
The Lewington Partnership
Midland House
132 Hagley Road
Birmingham
West Midlands
B6 9NN

	JUDGE HICKS Q.C.:   The appellant Mr White was a kitchen superintendent at Ronkswood Hospital, Worcester. He had been employed by the respondents, Worcester Royal Infirmary for just over twenty years when he was dismissed on 18th October 1993.

	His claim for compensation for unfair dismissal was rejected by the Industrial Tribunal and against that decision he appeals to this Tribunal.

	The facts turn on the pattern of staffing and working at weekends at that hospital. On weekdays Mr White worked under Mr Pearson the catering manager at Ronkswood, who was in turn answerable to Mr Thompson the district catering manager for the respondent's three hospitals. Mr Pearson did not work at weekends, so Mr White was then in charge at Ronkswood.

	Until October 1992 the Saturday rota or shift had been from 6a.m. to 2p.m. It was then changed to one from 7.30a.m. to 4p.m. That new rota had been in operation for some ten months by 7th August 1993, which was the date on which the incident occurred which led to Mr White's dismissal.

	What occurred on 7th August 1993 was that Mr Thompson visited the hospital at 2.30p.m. and found that Mr White was not on duty, as he should have been until 4p.m. that day. When the matter was investigated Mr White claimed at first to have worked his full shift as shown on his time sheet, but later said that he had left at 2.45p.m. After further investigation and a disciplinary hearing he was dismissed, and that was confirmed on an internal appeal.

	It was found by the Industrial Tribunal in paragraph 17 of their reasons as follows:

		"... We tend to accept the evidence that there had grown up a practice whereby staff would be allowed by supervisors to go home early or, as had been put by some witnesses and in some letters, "a little early" on Saturdays and Sundays after finishing their duties. This seems to be admitted by one catering manager, although his suggestion was, it only referred to catering staff leaving their work in order to change rather than leaving the building. We find the evidence suggests that there was a practice of leaving early. It meant catering staff might leave some 10 or 15 minutes early. They would complete their time sheets as showing they had worked to the end of their rota."

In dealing with the respondent's investigation, the Tribunal say at paragraph 21 of their reasons:

		"... The respondents investigated his claim that it was a well known practice. They were entitled to conclude there was a practice to finish work a little early but not to leave an hour or more before time and to claim payment for that time which was known and accepted by management."

Going back to paragraph 17 of the reasons at the point which I had reached, the Industrial Tribunal continue:

		"We find this system changed considerably following the introduction of the new rota system at the end of 1992. As a result catering staff were required to work until 4.00 p.m. rather than finish at 2.00 p.m. as they previously did. The evidence of Miss Woodward, in particular, suggests staff now tended to leave earlier from the end of their tour of duty than they had been accustomed to do, and the difference instead of being some 10 or 15 minutes or so now extended to an hour or well over an hour. Despite this significant gap, time sheets were still being filled in to coincide with the rota that catering staff were required to work."

	It was the appellant's case that that state of affairs also was known and accepted by the respondents. The situation as found in the Tribunal's reasons seems to be that so far as the existence of the practice was concerned the Tribunal found as a fact that it existed both before and after the change of rota, with the extension which they mention from the change of rota, but that so far as knowledge and acceptance by management was concerned they made no direct finding of fact for themselves, and refer only to the conclusion by the respondents in the course of their investigation, and presumably the disciplinary hearing, that resulted, that there was knowledge and acceptance only of comparatively minor infringements corresponding to the practice before the change of rota.

	There was apparently no evidence and therefore no finding of fact as to the operational reasons for the change of hours, or of what work there was to be done between 2p.m. and 4p.m. against the background of a situation in which the respondent had already accepted a practice of early leaving to the extent which we have mentioned. There was equally no evidence that the effects of the change of rota were monitored by the respondent, and what the respondents knew or ought to have known therefore had to be assessed against the fact that the new rota had been in force and the extension of early leaving had been occurring or developing for some ten months, coupled with the finding by the Industrial Tribunal that Mr Thompson, as they put it in paragraph 3 of their reasons, on the Saturday in question had been: "visiting all hospitals in accordance with his duties." which certainly on the face of it implies that his duties included regular visits of that kind.

	The appellant's first ground of appeal is that: 

		"... the Tribunal failed to make a sufficient primary finding of fact on which to base their assessment of the Respondents actions in selecting dismissal as a penalty."

That is developed in the particulars of appeal in particular in relation to the Tribunal's failure to decide whether the appellant's conduct was gross misconduct, with the emphasis on the adjective "gross", to which we return. But a necessary first step towards that was to find how far the respondent knew and accepted the practice of early leaving and in particular the extension of that practice after October 1992.

	As to the characterisation of the appellant's conduct, the Industrial Tribunal said this in paragraphs 20 and 21 of their reasons:

		"... Having considered the evidence we find the respondents have satisfied us that they were entitled to conclude there has been misconduct on the part of the applicant. The term used is gross misconduct, [and that is clearly a reference to the term used by the respondents in reaching and justifying their decision] and this we find from the evidence of Mr Edlin this is due to the suggestion there was an element of fraud. Fraud is known to have a particular connotation, suggesting deceit or dishonesty. We would have felt that was a somewhat strong term to use in relation to what had transpired. The respondents were entitled to conclude that the practice of leaving early, certainly to the extent of an hour or so on weekends, on a fairly regular basis, and completing time sheets to show the rota had been concluded did amount to misconduct of a serious kind. Whether is revealed gross misconduct because of there being a suggestion of fraud could be debatable. However, it meant persons were being paid for up to an hour or more when they were not at work."

		21.	We are satisfied the respondents were entitled to conclude the applicant (and indeed others) was guilty of misconduct of a serious nature, whether or not it amounted to gross misconduct within their terms."

We have come to the conclusion that this ground of appeal is made out and that the Industrial Tribunal erred in law in failing to make findings of fact on matters crucial to their assessment of whether the response of the respondent in dismissing the appellant was within the range of responses open to reasonable employers acting reasonably. In the absence of findings that the respondent did not know of or accept the practice which had arisen since October 1992, or that the finding of gross misconduct relied upon by the employers was open to them, we do not consider that the Industrial Tribunal was in a position to conclude that the response was within the permitted range. It was in our view, to say the least, arguable that to dismiss an employee with an unblemished record of twenty years' service and without warning for anything less than gross misconduct was outside the permitted range.

	There is another ground of appeal of a quite different kind. During the course of the hearing, at the close of the appellant's re-examination, his representative Mr Brown sought and obtained permission to leave the hearing briefly to go to the toilet. He did not expressly seek an adjournment of the hearing while he was absent, but in our view, such a request was plainly implicit in the one he did make, particularly, if we may say so without disrespect to him, since although he may have had some experience of such matters he was not a legally qualified advocate.

	During his absence Mr White was questioned by the Tribunal. The Chairman's note, which appears to be in the usual abbreviated form reads as follows for that episode:

		"Questions by Tribunal

		No clocking in system. Each individual filled in his timesheets. I was not responsible for checking them. I send them but my signature had no relevance. I accept that I panicked at first due to the tone in which I was asked. I felt perhaps there was something wrong. I accept I tried to cover up. Pearson was contacted - he was still in charge. Harlow - I worked under him. He knew of practice. He became manager. No annual report system. Appeal hearing was a re-hearing taken by three members of the District Health Authority. Thompson and Edlin were called by Mr Morris. I called Mr Pearson and Mr Shane. I was not represented."

That clearly represents a significant amount of evidence of which the appellant's representative was ignorant and about which he could therefore not address the Tribunal, whether to rely on parts which supported the submissions he wished to make or to deal with any parts which might have been thought to be adverse to his client's interests, and in our view that was a material irregularity.

	On those two grounds, therefore, we allow this appeal, and in the circumstances we need not express a reasoned conclusion about the other grounds which were contained in the grounds of appeal and to a greater or lesser extent argued before us.

	We have come to the conclusion that having allowed the appeal the appropriate course is to remit the application to a differently constituted tribunal and that is our order, unless either party has any submissions to make against that course, because we have not been addressed on that point hitherto.

	There was also an appeal against the Tribunal's refusal to review their decision, but in the circumstances, again, subject to anything that either party may wish to say, we do not find it necessary to make any order on that appeal.