Title: Appeal No.
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Appeal No.	 EAT/88/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 April 1999

Before
HIS HONOUR JUDGE H J BYRT QC
MR P DAWSON OBE
PROFESSOR P D WICKENS OBE

BERYL M CHAPMAN	APPELLANT

LINCOLN & LOUTH NHS TRUST	RESPONDENT

Transcript of Proceedings

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant

MS B M CHAPMAN
The Appellant in person

	
	HIS HONOUR JUDGE BYRT QC:	This is a preliminary hearing in an appeal against a decision promulgated on 1 December 1998 of an Employment Tribunal sitting in Lincoln.  By their decision, they held that the employee had not been dismissed and therefore an application for unfair dismissal failed.  The employee, Ms Chapman, appeals that decision.

	The facts are that Ms Chapman joined the National Health Service as a qualified radiographer in February of 1964 and by 1983 she had been promoted to a senior radiographer, class 1, in that position she had a supervisory role.  That was the position she held at the material times in Lincoln County Hospital. Apart from being a senior radiographer in her own right, she also had responsibilities in relation to junior staff to ensure that they complied with procedures and rules of the department.  There is evidence referred to in the reasons of the Tribunal to the effect that she was highly regarded.

	In the Lincoln and Louth National Health Service Trust, there was a Control of Infection policy.   That policy prescribed the details of the procedures which were to be followed in relation to what was known as barrier-nursed patients.  The procedures involved people who had serious infections which were likely to be transferred.  Once such a person had been brought down from the wards for x-ray or for whatever sort of treatment that was appropriate in this department, all surfaces with which the patient had come into contact had to be cleaned down.  It was quite plain that the hospital regarded this policy as vitally important to stemming infection inside hospitals and required it to be enforced strictly.  Part of the policy was that if  there was any untoward incident, or what the staff call near misses, they too also had to be reported, presumably with the view to checking out the systems in place to ensure that they could not be improved.

	In the August of 1997, there were a number of complaints by staff against Ms Chapman, with the result that on 17 December of that year the first stage of the hospital’s disciplinary procedures were set in motion.   This consisted of an investigatory interview.  The second stage, if the interviewing body thought there was a case to answer, was a disciplinary interview, and again if the person being investigated was subjected to discipline, there was a right of appeal.  On 17 December the investigatory procedure took place.  This investigated four specific complaints: On 30 January 1998, as a result of what was reported from that interview process, a disciplinary interview was set up, and when they investigated the four substantive matters, they decided to take no action on two of them.  One of the other two incidents they looked into in greater detail consisted of an alleged breach of the Control of Infection policy. It was said that Ms Chapman had ignored the request of a junior member of her team to complete an incident form relating to a particular instance; and that and another incident constituted a serious breach of discipline.  

The decision was that she should be given a final written warning which was to remain on the file for 2 years and that she would suffer demotion to a senior radiographer, class 2.  This meant that she would suffer a reduction in pay.  She appealed.  The appeal hearing was on 22 April of that year and on 23 April she was notified by the chairman of the board that the appeal would be dismissed.   It was indicated to her that the appeal board took the view that the breach of the Control of Infection policy for which Ms Chapman was responsible merited dismissal, but it took into account mitigating factors consisting of the long service she had given the Health Service, combined with the fact that above her there was a manager who was responsible for various lax breaches of disciplinary procedures.  He in due course was also demoted.  The appeal board decision meant that her demotion remained confirmed.  The Employment Tribunal who later heard the compaint against that decision came to the conclusion that by the end of the internal appeal hearing, any possible defects arising in this procedure of the disciplinary interview had  been cured.

	In July of 1998, Ms Chapman was sent a statement of the terms and conditions between herself and the Trust incorporating her new position as a class 2 senior radiographer.  The Employment Tribunal came to the conclusion that this was not a new contract being offered to her but a statement of changed terms reflecting the decision to demote her.  They applied the authority of Western Excavating EEC Limited -v- Sharpe reported in [1987] IRLR, page 27 and asked whether the employer’s conduct amounted to a significant breach going to the root of the contract, or showing an intention no longer to be bound.  If the answer to those questions was yes, well then the employee had the right to leave without notice and thereafter claim unfair dismissal under section 95 of the Employment Rights Act.

	The Employment Tribunal directed itself further that it was not for them to decide whether a breach of the Infection policy had been committed by Ms Chapman.  It was not for them to decide whether that was proved. They applied by way of analogy the guidance offered in the authority of  British Home Stores  and Burchell, with which we are all familiar.  They asked themselves whether the employer had a genuine belief reasonably held after adequate investigation that the misconduct relied upon had taken place.  If the Employment Tribunal was satisfied that the employers did have such a reasonable belief, it then had to consider the questions whether the sentence which was imposed for this offence was in itself reasonable, having regard to their findings.  At this stage they applied another authority, that of the BBC -v- Beckett (1983) IRLR, page 43.  From that authority they extracted the quotation to the effect that the imposition of a punishment which is grossly out of proportion to the offence can amount to a repudiation of the contract of service.  They asked themselves whether the punishment imposed in this case of demotion was proportionate.  Their finding were that the employers did have a genuine belief  after reasonable investigation, on the facts and the evidence they had heard that the offence had been committed.  They noted that the employers had the contractual right in certain situations to order a demotion.  They held that the demotion itself was not a significant breach of any term of contract nor was it grossly disproportionate to the offence which had been committed by Ms Chapman.  They too came to the conclusion that, had the matter been in issue they would have found dismissal for this alleged breach of policy was within a broad bracket of what they would regard as reasonable for the reasonable employer to impose.  They accordingly dismissed the application.  

	The grounds of appeal advanced by Ms Chapman before us are broadly speaking to the effect that she was deprived of an opportunity before the disciplinary hearing of knowing precisely what it was that was alleged against her in relation to this breach of the Infection policy.  It was only during the course of that hearing that she learned what the gravamen of the charges against her was.  In that regard, the finding of the Employment Tribunal is important that whatever defects there were at the disciplinary procedures, they had been cured by the appeal.  The bulk of the other allegations Ms Chapman makes is that the Employment Tribunal did not really understand the facts of her case. They came to erroneous findings in respect of various of the allegations made, and in all as a result their factual findings were wrong.

	Ms Chapman has addressed us, if I may say so, with courtesy and moderation.  But in effect she is asking us to order a full hearing of this Tribunal, so that she might have a further rehearing of the questions of fact.  It is our judgment that the Employment Tribunal cannot be faulted in the way that they applied the law. They understood it and applied it correctly.  So far as their findings of fact are concerned, we are not in a position to countenance any challenge to those findings because we have not heard the evidence or seen the witnesses.  Quite plainly a number of their findings are based upon a preference for the evidence given by one side rather than the other.  This is a typical  situation where there is a conflict of evidence and a Tribunal has to state its preference and come to a finding.  It is difficult and sometimes invidious to do that.  Once an Employment Tribunal has done so, it is not appropriate nor is it our role that we should question their conclusions unless manifestly the Tribunal came to the wrong decision.

	We have considered the Tribunal’s reasons in this case and with respect, feel they considered this matter conscientiously and came to a decision which was well within their powers to do.  That being so, we do not see there is any arguable point of law arising from their judgment which would merit a full hearing and accordingly we dismiss this appeal at this stage.

© Copyright 1999

EAT/88/99

EAT/88/99
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