Appeal No.	 EAT/257/96

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 February 1997

Before
THE HONOURABLE MR JUSTICE MORISON (P)
MR E HAMMOND OBE
MRS J M MATTHIAS

MR S NDAZI 	APPELLANT

EAST SURREY HOSPITAL NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR I WRIGHT
(of Counsel)
Ormerod Wilkinson
Marshall
Green Dragon House
64-70 High Street
Croydon
CRO 9XN	

	MR JUSTICE MORISON (PRESIDENT):     The purpose of this hearing is to determine whether there is a point of law which is sufficiently arguable to justify a hearing before a full panel of the Employment Appeal Tribunal, arising out of a prospective appeal which the former employee wishes to pursue against his former employers, the East Surrey Hospital National Health Service Trust.

	The complaint, which was adjudicated upon by the Industrial Tribunal, was of discrimination on grounds of race, a complaint which was withdrawn by the employee at the hearing, and secondly, an unfair dismissal complaint and that was dismissed by the Tribunal and it is against that decision that this appeal has been lodged.

	The background facts to the Industrial Tribunal’s decision may be shortly stated.  At the time of his dismissal the employee was a Senior Radiographer.  He had been a radiographer for very many years, about 30 years, and had worked competently and successfully at a number of teaching hospitals.  He was employed by the employers from February 1975 and rose to the position of Senior II Radiographer at the time of his dismissal.

	Until 1989 there appears to have been no problems at all relating to the employee’s work, but from that date the Tribunal found that a number of concerns arose on issues which included the safety of patients, the employee’s knowledge of the machinery which he was using, and of departmental procedures, the quality of his work and radiation protection and his workload.  He was given a final written warning by the then Services Director on 25 August 1992.  He did not appeal that decision which he had the right to do.  In the letter of warning it was suggested that he should avail himself of various training programmes, which had been indicated to him as being available, both in the hospital (I think) and at courses outside.  His progress was reviewed and a number of continuing concerns were expressed to him and, because of the continuing concern, he was warned that further action would be taken if there was no improvement.

	On 1 April 1993 the Respondents, that is the employers, became a National Health Service Trust.  I mention that because it is relevant to a submission which the employee made at the hearing.  The person in charge of the department, Mr Douglas, identified some continuing difficulties but he, himself, was due to leave employment in July 1994, and before leaving prepared a detailed report which he submitted to a Ms Lowes, whose title in the Trust was Diagnostic Imaging Servicing Manager.  Mr Douglas’ view, contained in his report, is set out at paragraph 10 of the Industrial Tribunal Decision.  

	On 18 July 1994, in response to the report, Ms Lowes advised the employee that she had decided to extend his written warning by six months and had also decided that he should be suspended.  On 28 July 1994 the Personnel Department informed the employee that a disciplinary hearing would take place on 9 August, and it did duly take place on that occasion, presided over by Ms Lowes, who had been responsible for taking the decision that his warning should be extended, and who was the person who had instigated the disciplinary proceedings which had led to the final written warning given in 1992.

	At the disciplinary hearing an application was made on behalf of the employee that the hearing should be adjourned because an unfavourable report about him, written by a Mr Maheswaran, was made available to the decision-maker, and the employee took the view that it would be unfair for the hearing to continue unless Mr Maheswaran was available for questioning.

	The decision-taker, Ms Lowes, indicated that, as Mr Maheswaran was not available to attend the hearing, she would place no reliance on the written statement which that gentleman had made.  The hearing continued and she decided to dismiss the employee and wrote to him to that effect on 11 August 1994.  There was an appeal which was subsequently heard on 23 November 1994 which was unsuccessful.  

	The first issue which the Industrial Tribunal had to determine was the reason for the dismissal.  The ostensible reason relied on by the employers was the capability of the employee. He suggested, in the course of the hearing (and this is referred to at paragraph 22 of their Decision) that there may have been ulterior motives for dismissing him, either because the decision-taker, Ms Lowes, did not like him or because she was looking for savings in relation to the new status of the Respondents.

	Those contentions were rejected by the Tribunal and they held that the reason for the dismissal was capability falling within Section 57(1) and 57(2)(a) of The Employment Protection (Consolidation) Act 1978.  They then had to apply their minds to the question of the fairness of the decision to dismiss, having regard to the matters set out in Section 57(3) of that Act.  They considered a number of specific complaints which they felt the need to deal with in their decision.  The first one was that he should not have been dismissed by Ms Lowes, who should not have chaired the disciplinary hearing in 1994, because she had instigated the original disciplinary procedure in 1992 and had extended the period of the warning in 1994, and took the decision to suspend him.

	In relation to that complaint the Tribunal said this:

“23.  ...  When considering this argument, the Tribunal had regard to the disciplinary procedure which the Tribunal was understood had been agreed between the Respondents and staff representatives.  That being the case, the Tribunal noted that Ms Lowes was the only appropriate person to have dealt with matters of final warnings and dismissal.  Accordingly, the Tribunal did not accept that the Respondents acted unfairly because Ms Lowes presided over the 1994 disciplinary procedure.”

	In an able argument presented to us this morning, Mr Wright, of Counsel, on behalf of the former employee, sets out the involvement of Ms Lowes and invites us to conclude that the Industrial Tribunal failed to give appropriate weight to the need for an employer to respect procedural safeguards so as to ensure that the concept of fair play was given effect to.  

	In relation to the involvement of Ms Lowes, we consider that the Industrial Tribunal were manifestly entitled to conclude, as they did on this issue.  It is not uncommon for a employer, faced with the person who has most involvement with criticisms of an employee’s conduct, or behaviour, having to take a decision ultimately to dismiss.  Indeed, there are sometimes good reasons for the person who is most closely involved taking the decision in the first instance, rather than it being delegated to a third party who has no such knowledge.  This is perhaps particularly so in the case of a person who is being considered for dismissal by reason of capability, where intimate knowledge of the performance of the employee’s work will be of assistance, rather than a detriment to the fair disposal of the allegations.

	The second point which the Tribunal was concerned with was the question of warnings and they had regard to the fact that he had been issued with a final warning in 1992.  The employee concerned suggested to the Industrial Tribunal that that decision was wrong and that a lesser sanction should have been imposed, which if that had happened, would not have led to his dismissal.  They rejected that and no point is raised on this appeal.

	The third point that they had to deal with was, whether or not the employee had been given a proper opportunity to improve after the employers had pointed out their misgivings.  Again, no point is taken in relation to the Tribunal’s conclusion that he had been given a proper and reasonable opportunity.

	The fourth point, which was dealt with was whether or not Ms Lowes could reasonably have believed the allegations which were being made about his competence and the Tribunal concluded that she was entitled to rely particularly on what Mr Douglas, who had been the former head of the department, had said.  He presented the management case at the disciplinary hearing and again, that was entirely appropriate, albeit that he was then not an employee of the Trust.

	The final point that they had to consider was whether or not the dismissal was within the so-called range of reasonable responses and the Tribunal concluded as follows:

“28.  ... The Tribunal noted that, so far as the Respondents were concerned, the welfare of patients was at stake.  The Tribunal accepted that position.  Accordingly, the Tribunal was satisfied that the decision to dismiss was within the range of reasonable responses.”

	I turn therefore to the second ground of appeal which was relied upon.  That is, that the Tribunal failed to give proper weight to the complaint that the disciplinary hearing should have been adjourned.  That is a point which, it seems to us, has no merit.  It is to be noted that the reason why the employee had wanted Mr Maheswaran to be available at the disciplinary hearing was so that the report which he was making could be challenged.  Once the decision maker had taken the decision that she would not take into account what was said by Mr Maheswaran in that report, she was fully justified, in our judgment, in continuing with the hearing rather than granting an adjournment for a purpose which no longer applied.

	Accordingly, we are not persuaded, despite the submissions which we have looked at with care, that there is an arguable point of law and accordingly, we are of the view that this appeal must be dismissed.