Author: Joe

Appeal No. EAT/9/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 15th July 1993

	Before

	HIS HONOUR JUDGE J HULL QC

	MR E HAMMOND OBE

	MR A D SCOTT

MR H JEETOO	APPELLANT

LIVERPOOL HEALTH AUTHORITY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR R BRADLEY
(Of Counsel)
Messrs Paul Rooney & Co
Solicitors
Stanley Court
19/23 Stanley Street
Liverpool
L1 6AA

For the Respondents	MR D BRUNNEN
(Of Counsel)
Messrs Hill Dickinson
 Davis Campbell
Solicitors
Pearl Assurance House
Derby Square
Liverpool
L2 9XL

	JUDGE J HULL QC:  In this case the Appellant, Mr Jeetoo, who is an experienced nurse and a Divisional Nurse Manager, aged now 50, appeals to this Tribunal against the decision of the Industrial Tribunal sitting at Liverpool on 3rd October 1991 which dismissed his complaint of unfair dismissal by his employers, the Liverpool Health Authority.  

	Mr Jeetoo was first employed by the Health Authority on the 1st October 1985 and he was promoted to the position of Divisional Nurse Manager and therefore enjoyed the trust of his employers and colleagues as a responsible manager in the National Health Service.  He was due to transfer to another hospital, Rathbone, which was also under the Liverpool Health Authority.  According to him, he conceived the idea that he would take the nice furniture from his office at Sefton General Hospital to the new hospital.  Apparently he spoke to the person who would be in the room after him, a Miss Steele, and she did not want this furniture.  There was a mahogany desk, which was an antique, worth something like £1,000, and there was a monk's seat and some chairs.  

	Mr Jeetoo sought, apparently, no further authority for the removal.  He had in mind, he said, the fact that in the course of the "general post", the moving from office to office, somebody else might take the furniture.  He evidently rather prized it and he did not see why somebody else should have it.  According to him, what he did was to take the furniture to a Mrs Power's office.  She was a Night Nursing Administrator.  He said that he locked it up there and whilst it was there it was taken away in some quite unauthorised way.  A few days later it was returned to the hospital, and was left in the grounds outside.  What he was guilty of, on his own account, was not getting the necessary authority to move it;  but he thought it would be alright if he took the furniture to the other hospital, which was nearby.  All he had done, by way of preparation and whilst getting ready to vacate his office, was to take it down to this room and lock it up there.  But of course that had led, indirectly, to the furniture being taken and that caused him some distress.  That was his account of the matter.  

	Unfortunately, from his point of view, the employers took a very different view.  It was suggested that so far from simply removing the furniture to Mrs Power's office, he had indeed removed it from the premises altogether, perhaps to his own home or somewhere like that, without authority.  It was suggested that he had admitted to certain people that he had indeed done that and that later he had told others that he was bringing it back, and that he was responsible for returning the furniture.  It was suggested that he had admitted telling lies to various people.  

	The officer who investigated this matter on behalf of the Health Authority was a Mr Campbell, Director of Operations.  Mr Campbell having looked into it, it was necessary to hold a disciplinary hearing.  The charge was taking hospital property out of the premises without authority.  I should say for completeness that there never was a charge of stealing the property, so far as the hospital was concerned, but nonetheless the Police were called and criminal prosecution was set on foot.  In due course the charge was withdrawn.  There was not at any stage, so far as the disciplinary proceedings were concerned, any charge of theft.  
	There was a panel of three who were empanelled to conduct this disciplinary inquiry.  They included, at first at any rate as their Chairman, the same Mr Campbell, the very senior person who had carried out the enquiries.  Also there was a Miss Rowland, the Unit General Manager, and it was her decision in due course whether to dismiss or whether to take other disciplinary action against Mr Jeetoo, and there was a third person there.  Mr Jeetoo attended with his union representative, Mr Clarke.  Some question arose there and then about Mr Campbell's presence and the union representative said that he had no objection to Mr Campbell remaining.  The panel themselves were conscious that there might be difficulty because of Mr Campbell's presence.  He was, after all, a person who had heard and seen all sorts of things for himself, and now here he was as a member of what some people really might think was a sort of court.

	The disciplinary panel resolved not to consider Mr Campbell's statement, that is a long statement which starts at page 49 of our papers.  They would apparently hear what Mr Campbell had to say as one of their number and for the rest they would hear the witnesses..  Having heard those witnesses it was of course their duty to decide whether the disciplinary offence which was charged had been made out.  At the end of their deliberations they concluded that Mr Jeetoo had taken the property outside, away from the hospital, without authority; that is to say he was guilty of a disciplinary offence.  The decision was taken, in all the circumstances, to dismiss.  The panel had heard evidence of admissions by Mr Jeetoo which were quite inconsistent with his story, admissions that he had not told the truth and admissions that he had returned the furniture himself.  Thereupon Mr Jeetoo, as he was fully entitled to do, made the complaint of unfair dismissal to the Industrial Tribunal and it is from that Tribunal, of course, that this appeal lies.

	The Industrial Tribunal gave a summary decision on the 21st October and their full reasons on the 20th November 1991 and it is to those therefore that we have to look.  I am not going to read the whole of the decision.  The Tribunal started by saying that the Health Authority said that they had reasonable grounds for believing that Mr Jetoo had been guilty of the unauthorised removal of their property and that there had been an irretrievable breakdown of trust.  That was the contention that they had to consider.  They also, of course, had to consider the fairness procedurally of what had happened.  The authorities have been cited to us again today, they are very familiar, British Home Stores Ltd v. Burchell [1978] IRLR 379 in particular.  If an employer is to dismiss for misconduct then of course he must reasonably believe that that misconduct has occurred.  There must be reasonable grounds for his belief and he must have conducted such enquiry as is reasonable in all the circumstances to satisfy himself of those grounds and in conducting that enquiry he must act with reasonable fairness.  No employer is expected to set himself up as a court of law or behave as a court of law would, but fairness is something to which the employee is entitled.  That would normally involve reasonable enquiry by the employer of those who say that some breach of discipline or other misconduct has occurred.  It will involve giving an opportunity to the employee concerned to know what is being said against him and to reply to it.  All those are elementary points and this Tribunal had to consider them.  They found facts as follows, and again I am only going to cite from a few of the facts, they say:
"On 2 October 1990 a disciplinary hearing took place.  The respondent was represented by Gillian Roberson, Mr N Campbell and Miss H Rowland; [the lady who was going to take the responsibility for dealing with Mr Jeetoo]  the applicant [Mr Jeetoo] attended with Mr Clarke and Mr Rowan (his Trade Union representatives).  Mr Clarke agreed [I have mentioned this already] Mr Campbell could be present.

The allegation was put to the applicant . . . He denied he had taken the furniture without authorisation but admitted moving it from his room to an office in a different building. . .

Witnesses were brought in and copies of statements given to the applicant.

Document 6 is the management notes of a disciplinary hearing on 2 October 1990.  [We have been referred to that at some length] Miss Rowland confirms that that is an accurate account of what transpired.  For ease of reference a copy of Document 6 is annexed to this Decision, and the contents are not repeated herein.

On the hearing on 2 October 1990 Mr Campbell gave evidence as a witness as well as being a member of the respondent's panel.  Miss Rowland was aware before the hearing commenced that Mr Campbell had formed a view of the furniture going missing and the absence of any apology or explanation from the applicant.  That was from the evidence.  It was agreed that the Panel would not consider Mr Campbell's statement because he was a member of the Panel and indeed chaired it.  Mr Campbell had spoken to the witnesses who were called before the disciplinary hearing, with one possible exception.  He was, however, only one of a panel of three."

This was a matter that caused the Tribunal, quite rightly, concern.  They referred to British Home Stores v. Burchell and Weddell & Co Ltd v. Tepper [1980] IRLR 96, two important authorities and they had to consider whether the presence of Mr Campbell vitiated the proceedings and made them unfair.  It is for the employer in the first place to decide on the correct and fair way of going about the hearing, it is for the employer, having conducted the hearing, to say what results he arrives at and what action he proposes to take.  It is for the Industrial Tribunal, when a complaint is made to them, to say whether the way in which the inquiry was conducted, the constitution of the panel, all the circumstances, show that the inquiry was or was not fairly conducted and whether the response, the decision of the employer, when the findings are made is or is not within the reasonable range of choices open to the employer as a fair employer.  This Tribunal, having considered all these matters, found that the dismissal was fair. They found that in spite of the presence of Mr Campbell the panel had conducted itself fairly, and that the decision of Miss Rowland was arrived at fairly and rationally and was a reasonable decision.

	It seems to us, if we may respectfully say so, that the points which are taken on this appeal are points, many of them if not all of them, which could properly have been put to the panel itself.  Many of them could certainly have been put and I think probably were put to the Industrial Tribunal.  One might say in parenthesis, though nothing turns on this, that many of them were put to the appeal from the disciplinary panel which finally sat and decided against Mr Jeetoo on the 26th June 1991.

	The Notice of Appeal says first:
"that the Industrial Tribunal erred in law in that:

(1)The Tribunal failed to properly consider whether the Respondent followed a fair procedure . . . in that the person who chaired the disciplinary hearing of 2nd October 1991 (Mr N Campbell) .  . . also gave evidence which the Appellant contested."

It is said that the Industrial Tribunal was perverse in finding that the disciplinary panel did not consider Mr Campbell's statement:
"the Respondent's notes of the hearing show that:-

(i)Mr Campbell's statement was considered;

(ii)Mr Campbell gave evidence further to his statement;

(iii)The actual decision of the disciplinary panel refers to Mr Campbell's evidence.

As I have said, Mr Campbell was there with the consent of Mr Jeetoo's representative.  A good deal has been said to us concerning the extent to which Mr Campbell's evidence was considered.  Was it merely a decision by the panel not to consider his written statement, but to hear Mr Campbell's evidence in person so that they should not be swayed by what he had written down formally but should hear him viva voce? - that may be.  Or was it in fact, that they said:  since Mr Campbell is one of our number what we are going to rely on is not what he tells us about his enquiries and so forth;  we are going to rely on what the other witnesses tell us.  It may be.  All these were matters which the Industrial Tribunal had to think about carefully.  They heard the evidence and we do not find that their decision on this matter was in any way perverse.  On the contrary, they did exactly what they are required to do by statute, and according to the precedents;  they anxiously considered the fairness of what the employer had done and reached the conclusion that it was fair.  They might have come to a different decision, and it might very well be that had they reached a different decision their decision would be unassailable;  that is in the nature of the findings of a tribunal of fact. But they did make the enquiry which they were required to do and they came to the conclusion that all had been done fairly.

	Then there are other points taken in the appeal.  The second ground is that the Tribunal failed to properly consider whether the disciplinary panel or Mr Campbell had carried out a  sufficient investigation.  There is a complaint of a failure to call porters, a domestic supervisor, and failing to accept a demonstration of carrying the furniture which apparently, Mr Jeetoo offered.  We think, with great respect, there is nothing in that.

	Then, thirdly:
"The Tribunal erred in law in indicating to the Appellant and his representatives that the evidence of two witnesses the Appellant wished to call were not relevant.  In reliance upon that indication the Appellant did not call relevant witnesses as follows:-

first, Mr Clarke, to whom I have already referred and second, the Applicant's wife;  but that is not persisted in.

	There are a number of answers to that but the one which appeals to us is that Mr Jeetoo  was represented before the Tribunal by experienced Counsel, Mr Lamb.  If Mr Lamb had wished to call a witness and the Chairman told him that he did not think that that witness could give relevant evidence, Mr Lamb would, if he thought that was important, have insisted on being heard and explained to the Chairman why the witness's evidence was material. If Counsel is there and that is not done then the Chairman is quite entitled to say what we are enquiring into is not this or that, we are enquiring into the fairness of this dismissal and first and foremost I want to hear the person give evidence who took the responsibility for the dismissal and that is the most important evidence.  We do not think that ground three shows any grounds for complaint.

	Then it is said in ground four that there is a disparity between the decision to dismiss in this case and the decision which was taken in the case of another man, a senior porter, who had made an improper and dishonest claim for something like £50 and who was merely disciplined rather than dismissed.  That man was apparently demoted, suffered other financial penalties and was posted, sent to another job;  there were various sanctions against him.  It is pointed out that he was a porter not a nurse in a senior position and that he admitted his offence and asked to be forgiven.

	It seems, to us that there is no point in comparing unlike with unlike and that these were unlike cases.  It is for the employer to decide how he deals with matters of discipline and as has been pointed out in argument, there is all the difference in the world from an employer's point of view between an employee who admits that he has done something wrong and asks to be taken back on the basis that he apologises and will not do it again and an employee in a position of trust who persists, in the face of very plain evidence, in denials, denials which inevitably in the case of removal of property will cast suspicion on other people in the organisation, who persists in those matters and forces his employers to hold an inquiry which itself is reluctantly forced to conclude that he is not telling the truth.  It is like comparing chalk with cheese.  A person like that has forfeited the trust of his employer not only by his original offence but by the attitude he adopts, which means that his employer must necessarily have the feeling thereafter "I cannot trust this fellow".  That is a very sad state of affairs and by itself, in our view, would justify distinction between the two cases.

	Fifthly, it is said that the Tribunal's finding that the decision of the disciplinary panel was in the range of reasonable responses was perverse and/or made without proper consideration of the following facts.  The first matter is that Mr Jeetoo had obtained the consent of his successor, Miss Steele, to remove the furniture.  It does seem to us, with great respect, that that is little to the point.  Then there are a number of matters in regard to openness or otherwise on the part of Mr Jeetoo in what he was doing.  As is pointed out by Mr Brunnen, it does not appear that any of those affected the decision to dismiss, and in any event they are matters which could well have been put to the disciplinary panel, or indeed to the Industrial Tribunal, but they are not matters for us at all.  They do not show unfairness or perversity of any sort in the Industrial Tribunal's decision.

	Then, there is the fact that the furniture was returned to the hospital after Mr Jeetoo had been arrested;  this is a matter which it is said the panel should have taken into consideration.
"The furniture was returned to the hospital after the Appellant had been arrested by the police and his home and the shop owned by his wife had been searched by the police and no furniture found."

If, as apparently happened, the panel accepted the evidence that this was indeed the act of Mr Jeetoo himself, which he had spoken of in his telephone conversation with Mrs Carr and was the subject of lies which he admitted telling, how this could mitigate the offence it is hard to see;  but in any event it seems to us to carry the matter no further.

	There were one or two other matters raised for Mr Jeetoo.  It was said that there was defective reasoning by the Tribunal or by the panel but we do not think there is anything in that. Lastly, it is argued that the Tribunal failed to consider if dismissal could be fair, on the grounds of denied misconduct, following a promise that if the misconduct were admitted the Appellant would not be dismissed.  Mr Bradley seeks to draw some sort of analogy with the situation of a criminal court saying to the defendant, "if you plead guilty I will treat you leniently, if you contest the matter then you will be treated more harshly".  That may be a system which is allowed in foreign courts, though it is certainly not allowed in the courts of this country.  

	We think that that is not, with great respect, an analogy at all.  It cannot be unreasonable for an employer to say to a trusted and experienced employee, "look, be sensible, if you have done something wrong you tell me about and we will see if we can treat you leniently, you won't be sacked if you admit it, we may have to deal with it in some other way, but we cannot proceed at all until you admit it";  indeed a better analogy might be a parent with a child or perhaps a college with a student, in whom they have to put some trust.  No such admission was forthcoming.  That was a matter that Mr Clarke had well in mind at the hearing by the panel.  

	We understand perfectly well that Mr Jeetoo is not satisfied with the disciplinary panel, with the appeal which followed, with the application to the Industrial Tribunal and the way any of these matters were conducted.  Nonetheless we cannot say with too much emphasis that appeal to this Employment Appeal Tribunal lies only on questions of law and not on questions of fact.  If we start considering questions of evidence and fact we shall be defying the provisions of the statute which gives us our jurisdiction, which is to hear appeals on points of law.  Suffice it to say that we can find no point of law here and certainly no way in which this Industrial Tribunal made perverse findings of fact or conducted itself in any way improperly, nor do we think there is any other ground on which the Tribunal's decision can be attacked.  We are therefore obliged to dismiss the appeal.

© Copyright 1993

EAT/9/92

EAT/9/92

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