Appeal No.	 EAT/351/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 October 1999

Before
HIS HONOUR JUDGE ALTMAN
MR J A SCOULLER
MR N D WILLIS

MR J M PEREZ-SEBASTIA	APPELLANT

MILBURY CARE SERVICES LTD	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	Mr J M Perez-Sebastia
(In person)	

JUDGE ALTMAN:
1	This is an appeal from the decision of the Employment Tribunal sitting at Reading on 16 December 1998.  It comes before us by way of preliminary hearing to determine if there is a point of law such as to justify this matter being considered in full before the Employment Appeal Tribunal.  

2	Before the Employment Tribunal a number of complaints brought by the Appellant as to claims for non-payment of notice pay and an itemised pay statement were withdrawn.  The complaint that the respondent’s failed to provide a written statement of particulars of employment within two months of the commencement of that employment was sustained and complaints of unlawful race discrimination and unfair dismissal were rejected.

3	In the ordinary course of events claims for unfair dismissal will fail if brought by an employee who has not had two years continuous service.  But in this case the complaint was that the dismissal was on the grounds of matter relating to Health & Safety and was therefore able to be considered by the Employment Tribunal.  

4	The Tribunal had before it a very large body of evidence about matters that happened during the course of the probationary period that the Appellant had with the Respondents.  His employment began on the 17 February 1998 and came to an end some five months later at the end of June.  The reason for dismissal given by the Respondents was that the applicant had failed satisfactorily to complete his probationary period of employment.  However, the Appellant raised matters to do with Health & Safety and in the early part of their decision the Employment Tribunal dealt at some length with those matters.  

5	The first matter of complaint by the Appellant relates to the handling by the Respondents of a complaint by the Appellant.  We are indebted to the Appellant for summarising his complaints within his skeleton argument in some 3 main sections.  

6	In the first section, he deals with the liability of the Respondents for unlawful acts of their staff committed in the course of their employment.  And he relates particularly to two paragraphs of the decision of the Employment Tribunal.  

7	In Paragraph 8 they found that the Appellant complained to his Manager Ms Surrell, and the Deputy, but they took no action in relation to comments made to him, which on the face of it were offensive if true, and referred to his being a foreigner, suggested he was stupid, and referred to him as a “bloody foreigner”.  The complaint is that nothing was done about that claim by the Respondent.  The question of race discrimination was addressed by the Tribunal in Paragraph 22 of their decision essentially and they categorised the matters to which I have referred by recognising, in their words:

“There were personality differences between members of the staff and indeed the applicant had been accused of referring to an agency staff as a ‘black bastard’”.  

8	There was a broad ethnic mix among the staff and no evidence had been adduced that the Respondent treated the Appellant less favourably because of his Spanish origin.  And when the matter was dealt with before the Tribunal, the Appellant said he was not sure whether he had been racially discriminated against and they specifically refer back to the incident to which I have just referred, and they made this finding.  

“We find that Ms Surrell did approach those Managers and told them to stop wrangling, but at the same time did not make too much of it because she was aware of the Appellant’s conduct towards other members of staff and in particular the agency staff”.  

9	They then went on in the next paragraph to find:

 “We are clearly of the view there was no discriminatory treatment by the respondent of the applicant because of his race.  He was dismissed because of their concerns regarding his performance”.

10	Those are quite separate sentences.  It is suggested to us by the Appellant that that incident to which I have referred was an example of racial discrimination and that the Management did not deal with the conduct of their employees and furthermore are liable for the conduct of their employees.  

11	We can recognise the force in that argument and the way that it has been put before us by the Appellant.  In considering whether or not that sort of incident is an example of racial discrimination any Employment Tribunal has to weigh the evidence and look at what is said on both sides.  What has been said to us and what was said to the Employment Tribunal on behalf of the Appellant, as we have already said, constitutes a telling and significant argument.  The Employment Tribunal did not in the event accept those arguments and they made findings to which I have just referred.   

12	We have considered the submissions that in so doing the Employment Tribunal were in error and in effect came to a conclusion on the evidence which no reasonable Tribunal properly directing itself could come.  We can find no support for that proposition.  The Tribunal disagreed with the Appellant.  However, in every decision in an Employment Tribunal one side’s version is preferred against another and the disappointed side will feel perhaps that they have not been given sufficient consideration.  But that is the job of the Employment Tribunal.  We can find no error of law in their approach and there was clear evidence on which they could reach the decision to which we have referred. 

13	The next matter relates to issues of Health & Safety which it is suggested here was the foundation of the complaint of unfair dismissal.  Again, we are referred by the Appellant to Paragraph 8 of the decision of the Employment Tribunal.  Furthermore the Appellant has said he has raised on a number of occasions matters of Health & Safety in particular in relation to an argument as to whether or not the Appellant was prepared to work with a resident who was suffering from Hepatitis B and to his unwillingness to do so for reasons which are set out in Paragraph 15 of the decision, and his allegedly being overridden.  He refused to do that work.  

14	In the decision the Employment Tribunal addressed that question.  In Paragraph 24 they find that they accepted the evidence of Ms Surrell in relation to the complaint under Section 100 of the Employment Rights Act 1996 and they deal with the question of the refusal to work in Paragraph 26.  There was no evidence that the applicant was dismissed for refusing to work with the patient with Hepatitis B (Mr C.)  

“We find that the principal reason for the applicant’s dismissal to be his poor performance in the job and his difficult relationship with some of the staff”.  

15	It was also recognised that there were difficulties in working with other female residents and they end with these words which seem significant to us.
“The principal reason for dismissal was the Appellant’s performance culminating in the incident in the bungalow when the applicant, in endeavouring to leave the premises, pushed the door against the resident causing her to fall and injure herself”.

16	We point to the fact that the Employment Tribunal referred to the principal reason, they were obviously prepared to accept that there were other matters, problems, possibly in the Appellants favour which were going on at the same time.  They did not say that the only reason was his performance but it was the principal reason. There seems to us to have been a large body of evidence in support of that proposition.  

17	However, there are two particular matters that the Appellant drew to our attention.  The first one is this: In the body of the decision in Paragraph 16 the Employment Tribunal recorded the fact of an incident in which the Appellant had the care of an inmate in the home where he was working described as Miss N.  It appears that it described that the Appellant had stumbled and knocked into her and that she had fallen away.  The conclusion of Ms Surrell was that it was not necessarily the Appellant’s fault because he had been trying to escape the intentions of this rather difficult and aggressive inmate.  He said that he had knocked the lady over by shutting the door and it was found that had caused her to hurt her hand.  It appears that that may be a mistake on the evidence and that in fact it was the Appellant whose hand was hurt.  But they made a finding, which is not denied, that this matter under procedure should have been reported to the police. Whether or not it was an incident in relation to which the Appellant was being blamed is not necessarily the point.  It was an unfortunate incident and in which there had been an injury and clearly there was a question of whether or not to report it to the Police.  Instead of that the conclusion was reached that the Appellant, still a probationer, should have his employment brought to an end as an alternative of going down, what was described, as the official route involving the Police.  There was a dispute as to the words used but that is a matter which the Tribunal appear to have resolved in the Respondent’s favour.  

18	However, when they then came to deal with that they pointed out that first of all Ms Surrell said as they said in Paragraph 25 that that incident was the pivotal matter on the dismissal and furthermore it is pointed out by the Appellant there was no reference to it in the Notice of Appearance.  However, the Notice of Appearance does not allege any of the matters which gave rise to dismissal.  That was simply a rather short document dealing with specific answers to the specific complaints raised in the originating application, so no point really arises on that. But the important finding came after that, it seems to us, which was that the principal reason for dismissal was the apparent performance culminating in the incident in the bungalow and the pushing of the door against a resident causing her to fall and injure herself.  And in the body of the decision there is reference to a number of incidents which form the basis of criticism of the way in which the Appellant performed his work, and we have had an opportunity at looking at some of the papers that were before the Employment Tribunal. We do not need to summarise them or refer to them specifically but there were records of repeated complaints about the behaviour of the Appellant.

19	Accordingly it seems to us that in relation to that matter the Employment Tribunal looked at the facts.  They may, it is true, have made some mistakes about some of the detail but they came to their conclusion on the general thrust of the performance of the Appellant and they came to judge that it was his performance generally that lead to his dismissal.  Probably, it seems, the Respondent’s felt that it was fairer for the Appellant to enable him to leave and start afresh without the risk of an adverse police report, than to go down the road of reporting the matters to the Police when he was still a probationer and his certainty of employment with them in the future was in doubt.  

20	There is then another matter of which the Appellant complains, relating to the question of conduct and that is about taking a resident on a trip outside the home and neglecting her medication, together with a finding that there were considerable implications in not having the medication available because she would not be sedated.  The Appellant drew our attention to the fact that his probationary training recorded the fact that he had not had training in the administration of drugs, but we have also had an opportunity of reading the Respondent’s record at Page 39 of the bundle of the way in which the Appellant responded when criticised for not dealing with the medication.  The incident does not on the face of that record, as indeed the Appellant conceded in argument before us, reflect very well upon him, if it is true.  He says it is not true.  His statement puts a different gloss upon it.  He says the way in which his behaviour and response was described are untrue.  The Tribunal had to decide.  They had to look at one side.  They had to look at another.  They made a finding.  There were considerable implications in not having the medication available and it related to his performance of his work which clearly the Tribunal were referring back to when they made a finding that his dismissal was because of that.  They made a decision which was adverse to the Appellant.  He had a lot to say about that incident in support of his case and they found against him.  But there was evidence which entitled them to so find.  We can find no point of law which could justify this matter being considered by an Appellant body on that matter.  

21	We have considered all the very full arguments that the Appellant has presented to us on this Appeal and subject to one matter to which I shall come in a moment we have come to the conclusion at this stage that there is simply no arguable point of law, We have no doubt that the Appellant was working in an extraordinarily difficult environment.  Those who have the care of people who through no fault of their own have the most awful mental afflictions and who therefore behave sometimes in an anti-social and aggressive way, have the most draining and emotionally demanding work.  We are sure the Appellant was in a difficult situation.  But our task is much simpler.  Our task is to identify any point of law in relation to which the Employment Tribunal erred in order to decide if there is a proper appeal and we have come to the conclusion on those matters that there is not.  

22	Now finally it has been said by the Appellant that the Chairman was biased against him.  This is a complaint which from time to time is made in the course of Appeals to the Employment Tribunal and the common procedure is followed in that the Appellant is asked to file an affidavit on the matter and in due course the chairman and members provide their response to it.  It is always difficult to determine how to approach this sort of contest.  After all the Appellant is here but the Chairman and members are not.  We have therefore looked first of all simply at the allegations that have been made without at this stage considering any answer to them.  

23	The first complaint is that the Chairman failed to comply with orders and producing documentation at the hearing, which took the Appellant by surprise.  We have considered that argument but we have come to the conclusion that those are matters which are within the ordinary discretion of a chairman and frequently a chairman will refuse to strike out a Notice of Appearance and will want to get on with a hearing even though things have been produced late knowing that during the course of the hearing the party will have an opportunity to deal with them.  

24	We have had an opportunity to read the very helpful notes prepared by Mr Maskell the representative of the Appellant and he dealt with it in this way.  “At the commencement of the Tribunal I raised with the Chairman that the respondents have not provided various copy documentation which was crucial to support the Applicant’s case.  The Chairman however ruled that there was sufficient information already”.  On the face of it that is perhaps a disappointment to a party but that is the sort of exercise of discretion which is carried out every day of the week by Chairmen up and down the country in order to get on with a case and come to a reasonable and rapid conclusion that is fair to the parties.  We can find no evidence of bias within that allegation.  

25	Secondly, the Appellant complains that the communication book of Flat 1 was not produced because the Respondent said it did not exist.  The Appellant was perplexed and the Chairman’s response was simply to say the case should carry on.  Mr Maskell said the Chairman did not seem to register the lack of this book and just asked the Appellant to continue with his statement.  That again seems to us on the face of it a decision by the Chairman not to be diverted from essentials and there is no evidence before us that he was biased in any way simply because he did not pause to investigate that particular matter which was apparently not dealt with further.  

26	Thirdly, there was then some language difficulty in which the word ‘support’ and ‘senior support worker’ were simply words which the Chairman found difficulty in understanding when spoken.  It made the Appellant rather tense and intimidated, he said.  We can well understand that it is difficult enough for someone to appear in an Employment Tribunal and when the way they speak gives rise to that apparent difficulty we can understand the problem.  Mr Maskell points out that the Chairman did not appear to understand and the word had to be repeated several times.  That is not bias.  It is a most unfortunate incident for which we have sympathy for the Appellant.  But it does not reflect on the attitude of the Chairman, it is just that he had an unfortunate difficulty at that time which was regrettable.  Perhaps it would have been courteous if he did not do so, to have explained to the appellant why he was having difficulty at that moment.  It is not an allegation of bias.

27	The fourth matter is that Ms Surrell was warned to vacate the court at the beginning because she misbehaved and made some remarks at the back of the Appellant and we can well understand, if that is what happened, that the Chairman warned her that she would have to leave Court.  It is said that it was bias by the Chairman and Members then to go on and accept her as an honest witness.  A distinction is to be drawn.  The Chairman has to ensure that people conduct themselves in the Tribunal in a way that enables them to properly hear the case and sometimes people do behave badly.  Sometimes people, because they are tense or feel very emotionally involved in something, say and do things they should not say or do.  But that does not mean to say, one way or the other, whether or not they are going to be truthful witnesses. There is nothing inconsistent, it seems to us, in reprimanding someone for their behaviour in the Tribunal but believing in the evidence they give.  There is certainly nothing within that which demonstrates bias.  Accordingly, without it being necessary to adjudicate as between what the Chairman says on the one hand and the Appellant says on the other, we have come to the conclusion that the Appellant himself does not raise grounds which can be described as bias in the Chairman.  We understand he is disappointed with the decision of the Employment Tribunal.  However, he has not raised any point of law which could justify this matter going forward to a full hearing of the Employment Appeal Tribunal and therefore his appeal is dismissed at this stage.