Appeal No.	EAT/1380/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 February 1998

Before
HIS HONOUR JUDGE C SMITH QC
MRS E HART
MR R N STRAKER

MRS S PALMER	APPELLANT

CHESTNUTS RESIDENTIAL HOME FOR THE ELDERLY	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR C TABIRI
(of Counsel)
Messrs Ralph Haeems & Co
Solicitors
9 Blenheim Grove
London SE15 4QL	

	JUDGE C SMITH QC:     This is an application by Mrs Palmer for leave to proceed to a full hearing of her appeal against the decision of an Industrial Tribunal held at Stratford in July 1997 over two days, of which Extended Reasons were sent to the parties on 19 September 1997, that Mrs Palmer had been fairly dismissed by the Respondents, the Chestnuts Residential Home for the Elderly, on the grounds of gross misconduct.

	A complaint of race discrimination was also dismissed, but we need say no more about that since there is no appeal against that.  The appeal is against the finding of the decision of the Industrial Tribunal that Mrs Palmer had been fairly dismissed.

	We have had the benefit of a well argued submission by Mr Tabiri and we have read his skeleton argument and the Notice of Appeal.  We have reminded ourselves that the Applicant at this stage has to show no more than that there is an arguable ground of appeal, in order to obtain leave to proceed to a full hearing.

	The point taken on appeal, putting the matter shortly, is that the disciplinary procedure, which was implemented by the Respondents was unfair and defective, since both the initial disciplinary hearing, to the extent that there was one, and the internal appeal, were conducted by Mrs Stein, whom the Industrial Tribunal found to be the owner and Manager of the Respondent home and the submission is made that the Industrial Tribunal really reached a wrong and impermissible finding in concluding that the appeal process had cured the initial procedural defects.

	It was submitted to us that that could not be so, because there was an irremediable breach of the principles of natural justice arising from the fact that Mrs Stein had been involved at the time of the dismissal and had also conducted the appeal hearing and our reference was drawn to the decision of Byrne v BOC Ltd [1992] IRLR 505.  We will have more to say about that case later.

	So that is a summary of the way in which the matter was put and, of course, that has been amplified carefully in the skeleton argument.

	The Industrial Tribunal found that the Applicant had been employed since October 1991, and that at the time of her dismissal she was employed as a care assistant.  The Respondents cater for the care of the old and infirm.  The Industrial Tribunal found at paragraph 5 of its decision that the management and workforce look after 44 residents and the Industrial Tribunal then went on to set out the structure of those who were employed at the establishment in these terms:

“The owner is also the manager, Mrs Stein.  The next layer of management was Mrs Dillnutt, the matron, and Mrs Labronne, the housekeeper.  Below those two employees are the senior carers who are six to eight in number, one of whom was Mrs Collins, a lady of Nigerian extraction.  The rest of the workforce, some 32 to 34 in total, consists of carers, domestics, auxiliary and maintenance staff.  The only person who has the authority to engage and terminate staff is the owner/manager Mrs Stein.”

	So there was an important finding by the Industrial Tribunal that this was a relatively small Company and that the only person who had the authority to engage and terminate staff was the owner/manager Mrs Stein.

	The Industrial Tribunal found, as part of the background to the matter, that on some four occasions the Applicant had received verbal warnings for arguing with other staff.  They also recorded, as part of the chronology that they set out at paragraph 8, that in August 1993, after a finding of guilt of assault on an elderly resident, the Applicant had been suspended and given a final written warning that any repetition would result in dismissal.  In March 1994 she was verbally warned again for her attitude to other staff.

	The Industrial Tribunal reached the conclusion that Mrs Palmer was not an accurate or reliable witness.  They put the matter this way at the end of paragraph 8:

“As far as the truth of these allegations which were made by Mrs Palmer is concerned, as I will indicate later, the Tribunal is perfectly satisfied that Mrs Palmer is not an accurate or reliable witness.”

	The Industrial Tribunal then went on, in paragraph 9, to deal in detail and make findings of fact in relation to the incident which led up to Mrs Palmer’s dismissal.  We do no more than summarise their careful and detailed findings of fact in that paragraph, to which reference should be made if necessary.

	Putting it shortly, it is clear that there followed a serious incident on 1 July 1995, which led to Mrs Palmer’s dismissal.  The Industrial Tribunal found that the Applicant had been responsible for a major disturbance when she got into a rage and abused and obstructed Mrs Oludaiye, another care assistant, and Mrs Collins, a senior carer, in front of prospective clients who were distressed by her behaviour.  Mrs Dillnutt, the matron, reported the incident to the owner/manager, Mrs Stein, and provided her with a written report of the incident.

	The Industrial Tribunal found at paragraph 10(ii) that Mrs Stein, having consulted the Applicant’s record, concluded that Mrs Palmer would have to be dismissed because:

“(a)  The nature of the incident of 1 July 1995 constituted [in Mrs Stein’s view] gross misconduct and
(b)  Her conduct record included the aforementioned long-standing and extant final written warning.”

	So that it was in those circumstances that on 5 July 1995, Mrs Stein called the Applicant to her office and, in the presence of the matron, she was summarily dismissed.  By this time Mrs Stein had learned that the clients, in front of whom the incident had taken place leading to Mrs Palmer’s dismissal, did not want to live at the Chestnuts due to the incident.

	The Applicant was notified of and exercised her right of appeal.  She had a right to appeal under the terms of her contract.  This was lodged on 11 July 1995 and was heard on 26 July 1995, when the Industrial Tribunal noted that the Applicant was represented by her Trade Union representative from UNISON, Mr Martin.

	The Industrial Tribunal made important findings of fact at paragraph 11 in relation to the appeal hearing.  They noted that the appeal was heard by Mrs Stein and was a complete re-hearing of the allegation at which the matron and the two carers involved gave evidence and were cross-examined by Mr Martin.  The Industrial Tribunal found, as a fact, that there was no other management figure who could hear the appeal.

	The Industrial Tribunal found that Mrs Stein gave the matter much thought and looked at the whole matter afresh before confirming her decision to dismiss.  She reiterated in her letter of dismissal that the reason for the dismissal was the Applicant’s disruptive behaviour on 1July 1995, together with her poor disciplinary record.

	It was against those findings of fact that the Industrial Tribunal came to consider the law in paragraph 13 of their decision.  They set out, correctly, the important authority of British Home Stores Limited v Burchell [1980] ICR 303 and cited a passage from Arnold J and they also bore in mind and cited the recent authority of Boys & Girls Welfare Society v McDonald [1996] IRLR 129.

	The Industrial Tribunal in particular directed themselves to consider whether, even if the initial disciplinary procedure was unfair, the unfairness was effectively cured by the appeal procedure. 

	Having cited Section 98(4), not by reference directly to the statute, but by using the words of the statute, that is to say Section 98(4) of the Employment Rights Act 1996, which of course is the crucial subsection which the Industrial Tribunal had to consider in order to decide whether the dismissal was fair, they put the matter in this way, at the conclusion of paragraph 13:

“Furthermore, we are also constrained to consider that even if, procedurally, the initial decision to dismiss by Mrs Stein was flawed because the proceedings were unfair, we have to go on to ask ourselves whether or not that unfairness was effectively cured by the appeal which constituted a complete rehearing of the case.”

	The Industrial Tribunal found that, although the Applicant’s position was untenable, as they put it, by reason of the matron’s report to the owner, the disciplinary hearing was procedurally flawed.  They made that finding at paragraph 14 (vii) of their decision.  They put it in this way:

“The Applicant’s position was untenable on the basis of the information which was supplied by Mrs Dillnutt to Mrs Stein on 2 July 1995.  However, the disciplinary meeting on 5 July 1995 was procedurally flawed as no attempt was made by Mrs Stein to carry out an inquiry in accordance with her own disciplinary procedures.  Mrs Palmer had no or little chance to argue her case or protect her position, no matter how fragile it actually was.”

	So it is apparent there that this Industrial Tribunal took fully into account the procedural defects in relation to the initial hearing and had them clearly in their minds.

	They then went on to find, however, that in all the circumstances the dismissal was fair because there was, in their judgment, cogent evidence justifying dismissal and because the appeal hearing had cured the defects in the original disciplinary procedure.  The Industrial Tribunal found that Mrs Stein kept an open mind at the appeal hearing, when the Applicant was given a full and fair opportunity to present her case with the benefit of the representation afforded to her by Mr Martin from UNISON.  They made what we regard as their crucial findings in this regard in sub-paragraphs (viii) and (ix) of paragraph 14:

“(viii)  However, the appeal was a fresh hearing and Mrs Palmer was represented by Mr Martin who cross-examined the witnesses and made comprehensive submissions on her behalf.  Every opportunity was afforded to Mrs Palmer to present and argue her case anew.
(ix)  This was a hearing that, given the size and resources of the Respondent’s concern, had to be conducted by Mrs Stein despite the fact that she had been the original dismissing officer.  There was no breach of natural justice as Mrs Stein kept an open mind at the rehearing of the case when the procedural flaws which were evidence at the disciplinary hearing were remedied in our judgment and therefore no procedural taint can effect the fairness of the decision to dismiss.”

	In our judgment, despite the submissions made to us today by Mr Tabiri, it is unarguably clear that the Industrial Tribunal, in this particular case, applied the correct legal principles and reached conclusions of fact which are unassailable.  In our judgment the Industrial Tribunal, following the approach laid down in Byrne v BOC Ltd [1992] IRLR 505, which is correctly summarised in the headnote referring to the guidelines there set out by the Employment Appeal Tribunal in these terms (reading from the headnote):

“Accordingly, it is desirable that Industrial Tribunals which have to deal with the question of whether an internal appellate process cures defects in an earlier disciplinary hearing, should in terms deal with the issue of whether or not the appellate process is sufficiently comprehensive adequately to cure the deprivation of rights suffered at the disciplinary hearing.”

	And there is reference in the judgment of Knox J, at paragraph 19 of the judgment, where there is a citation from the case of Whitbread & Co plc v Mills in these term:

“That in our judgment [ie whether an internal appellate process amounts to a re-hearing] is substantially a question of fact.  This experienced Industrial Tribunal clearly had in mind the problems raised by the situation and clearly had in mind that it needed to satisfy itself that no injustice had in the end been perpetrated on Mrs Clark and that there had been a proper and sufficient hearing and investigation, and that she had every opportunity of presenting her case and making her points.  She was in fact accompanied by a friend at that appeal.”

	So in our judgment that is the correct approach and that is the one that was followed by the Industrial Tribunal in this case.  Of course it is an important factor, which the Industrial Tribunal must weigh up, that an employee has not been afforded natural justice at the initial hearing and it is also an important factor for the Industrial Tribunal to take into account that, because this was a small Company Mrs Stein was necessarily involved in the initial hearing and also in the appeal hearing.  

	In our judgment, it is clear that the Industrial Tribunal did take those matter fully into account and reached a conclusion they were entitled to reach on what was, at the end of the day, a question of fact for them to determine, having posed themselves the correct test and the correct principle of law by reference, implicitly at any rate, to the decisions to which we have referred and in those circumstances this application must be dismissed.