England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM AN EMPLOYMENT APPEAL TRIBUNAL
(Mr Justice Lindsay Presiding)

		Royal Courts of Justice Strand London WC2 Monday, 29th July 2002

Monday, 29th July 2002

1. LORD JUSTICE PETER GIBSON: This is a renewed application by Margaret McNiffe for permission to appeal out of time from an order of the Employment Appeal Tribunal, permission having been refused by myself on paper. The EAT's order is dated 23rd January 2002. Mrs McNiffe had 14 days from 29th April 2002, the date when the revised judgment of the EAT was sent to the parties, in which to put in her Appellant's Notice. She in fact applied one day late. I would not hold that short delay against her if there were substance in the proposed appeal.
2. The facts in summary are these. Mrs McNiffe was employed by Redcar and Cleveland Borough Council ("Redcar") in its Social Services Department from 10th January 1994 to 15th February 1999 as a social worker. One of the requirements of her job was casework recording, that is recording all contact with service users and ensuring that records are kept up-to-date. From early on in her employment there were concerns about Mrs McNiffe's casework recording, as she was made aware. A formal written warning (to remain on her file for six months) was given to her on 17th June 1996 after a disciplinary meeting. But in early 1998 her team manager found that she had failed to complete work which had been agreed with her. It was agreed that she should move to another office at St Margaret's Way where she had spent a period earlier without any complaints. But she was slow in completing her work to clear the past cases. A disciplinary investigation followed and a disciplinary hearing took place on 15th December 1998. She was represented by her union representative. The Employment Tribunal in its decision records that he wished to put her case on the basis of her health, but that she herself rejected that approach and presented her own case. The nominated officer, Miss Shaw, who held the disciplinary hearing, considered that management had done all that could be done to assist Mrs McNiffe, but to no avail, and that Mrs McNiffe showed herself to be consistently unable or unwilling to meet the required standards. Miss Shaw decided that Mrs McNiffe's continued failure to comply with recording obligations and instructions from managers could not be tolerated. Mrs McNiffe was notified at the end of the hearing that she was to be dismissed. She exercised her right of appeal, but the appeal was dismissed.
3. She applied to an Employment Tribunal, complaining of unfair dismissal and disability discrimination. The latter complaint was later withdrawn. At a hearing before the Tribunal sitting in Thornaby Mrs McNiffe represented herself. In its Extended Reasons sent to the parties on 17th August the Tribunal found that Redcar had established, as it was required to do, the reason for her dismissal and that that reason was the capability of Mrs McNiffe. The Tribunal then turned to the question whether the dismissal was fair and asked itself three questions:

"(a) Did the employer make the employee aware of what was required of her, did it give her a reasonable opportunity to improve and did it warn her adequately of the consequences of her failure to improve?

(b) Did the employer adopt a reasonable procedure?

(c) Was the sanction of dismissal a reasonable one in all the circumstances?"

4. In paragraph 10 of the Extended Reasons it dealt with question (a). It found that she had had difficulty in reporting casework adequately, although she had been supported and given every assistance. It found that she was given every opportunity to improve. It continued:

"In terms of warning, only one formal warning appears on the applicant's record and that was expunged after a period of six months. Nevertheless we are left in absolutely no doubt that it was spelt out to the applicant in no uncertain way that reporting was a fundamental part of the job and that she was failing to achieve it. She held a professional role and was sufficiently intelligent to realise the implications of her failure to do so. It may well be that her identification of her medical condition which has led to difficulty was indeed the reason why she had a problem, but the respondent did what it could in investigating the medical situation and was not made aware of this problem at the time that it reached its decision. We do not consider that a reasonable employer, acting reasonably would have gone further than this respondent went in seeking to identify the problem, in seeking to warn and assist the employee and in giving her opportunities to improve."

5. It then found that Redcar followed a proper procedure. In relation to the third question it found that the sanction of dismissal was a reasonable one in all the circumstances, and it had no hesitation in concluding that Redcar had acted reasonably.
6. Mrs McNiffe sought a review of the Tribunal's decision but that was refused. She appealed to the EAT. At the preliminary hearing Mrs McNiffe's appeal was allowed to proceed on the basis of grounds of appeal settled by counsel. In those grounds of appeal no mention is made of any point on Mrs McNiffe's state of health; instead the grounds of appeal refer to matters such as:

"(6)It is a necessary implication of paragraph 10 of the tribunal's decision that the Appellant was not warned of the risk of dismissal if she failed to improve her performance. The tribunal should have found that the dismissal was, for that reason unfair."

7. There is no ground of appeal alleging the perversity of the Tribunal's decision, and no doubt counsel who drafted the amended grounds of appeal recognised how difficult it is to succeed on such a ground.
8. At the full hearing of her appeal Mr Justice Lindsay, giving the judgment of the EAT, went through the grounds and found that none of them was sufficient to allow the appeal. It found no error of law and so dismissed Mrs McNiffe's appeal. For the application to this court Mrs McNiffe went to counsel, who drafted the application for permission to appeal and the notice of appeal. In that document again only matters which relate to points of law are taken. In particular, objection is taken to the finding of the Tribunal that, despite the absence of a warning before the dismissal, Redcar acted properly.
9. Mrs McNiffe appears before me today in person. She tells me that she has not been able to afford counsel for this hearing. She has expressed to me very clearly, as well as courteously, her strong objection to the findings made by the Tribunal. She submits that the Tribunal went wrong in relation to the evidence. She says there were numerous misunderstandings and that the Tribunal's conclusions were perverse. The point which she has emphasised to me is that Redcar, as her employer, gave her an excessive amount of work. She says that as employer it had an obligation to ensure that its employee had sufficient time in which to do the allotted work. She has referred to her medical condition. She has referred to the letters which were written. One was a letter from her GP to the occupational health physician whom Redcar had asked to investigate Mrs McNiffe's health. The letter from the GP, which is dated 1st July 1998, refers to Mrs McNiffe having been to see the GP on many occasions suffering with stress; but the point that the GP makes is that Mrs McNiffe seemed to take on too much in her life frequently and found it hard to say no to anything requested of her.
10. As I attempted explain to Mrs McNiffe, she can only appeal on a question of law and she is confined by the manner in which she has had her case put in the lower tribunals. In particular, she is confined to the eight grounds of appeal for which she was given permission by the EAT to have her appeal go to a full hearing. Many of the points, therefore, which she now wishes to take are simply not open to her to take. In any event, as again I have tried to explain, Parliament has entrusted the Tribunal with findings of fact. It is not for an appellate body to make such findings. The Tribunal is the sole arbiter of fact and, provided there is some evidence on which it could properly reach those findings, it is not for the Appeal Tribunal to interfere.
11. Mrs McNiffe has told me that in presenting her own case there were two large bundles of documents, and, in addition, she had her own statement in which she makes a lot of allegations. I have not been provided with the bundles. There are no Chairman's notes of evidence and, even if it had been a permissible ground of appeal, which it is not, it is quite impossible for Mrs McNiffe to succeed on some ground of perversity in the absence of such material. She has not abandoned the points taken by the counsel who prepared the notice of appeal and the skeleton argument in support.
12. It would appear that her counsel was contending that in the absence of an express warning, a capability ground cannot be relied on by an employer. The EAT said that there was no authority for any such proposition and doubted whether any such proposition could be right. I agree. The Council had referred to the decision of the House of Lords in Polkey v Dayton Services Ltd [1988] AC 344. In that case there is a remark made by Lord Bridge which supports the proposition that normally an employer will not act reasonably in treating incapacity as a sufficient reason for dismissal, unless he gives the employee a fair warning and an opportunity to mend his ways and show that he can do the job. But I would stress the word "normally". That implies that there will be cases, no doubt a minority, where a warning is not necessary, and, in my judgment, it was for the Tribunal to determine whether it was necessary. Given its finding that Mrs McNiffe realised the implications of her failure, notwithstanding her protestations, to contend that a warning was necessary is simply not correct. In my judgment it is plain that the Tribunal found this was a case where no warning was necessary. There are indeed many cases which discuss the question whether in particular circumstances a warning is required. It cannot be right that a warning is required if an employee knows, as a result of what the employer has said, what are the consequences for not performing satisfactorily. I can see no error of law in the Tribunal's finding.
13. As for the point on Mrs McNiffe's health, there are at least three difficulties in Mrs McNiffe's ways. Firstly, it was not a ground of appeal for which permission was given by the EAT at the preliminary hearing. Second, as Lindsay J pointed out, once Mrs McNiffe chose not to take any medical point at the disciplinary stage, it made it difficult for anything to be made of the point at a later stage. Mrs McNiffe has told me that that does not represent the actual facts; but it was a specific finding of the Tribunal that the reason why she had taken over from her union representative was because of his desire to take a medical point and her insistence that he should not do so. I have no material on which I can say that that was an incorrect finding by the Tribunal. Further, no medical evidence was put before the Tribunal that supports Mrs McNiffe's case.
14. As I have already noted, the Tribunal did find that Redcar obtained medical advice from the occupational health physician who had written to, and obtained an answer from, Mrs McNiffe's GP. Mrs McNiffe has told me that at the hearing she was feeling so unwell that she had to ask for her sister, who attended the hearing with her, to conduct her case on the second day. Of course the Tribunal was aware of that, but again I can only say that this point was before the Tribunal and, nevertheless, it was able to reach the conclusion which it did, well aware of that fact.
15. It is apparent now from evidence that came to light in February 2000 that Mrs McNiffe was suffering from a hypothyroidal condition. But, of course, that was not in evidence at the time of dismissal and, in my judgment, that cannot provide a basis for an appeal.
16. I am afraid that, despite all that Mrs McNiffe has said to me, there is no point of law that emerges from this application. An appeal would have no real prospect of success. There is no other compelling ground for allowing the appeal to go ahead. I must therefore dismiss this application.
Order: Application dismissed.