England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
APPLICATION FOR PERMISSION TO APPEAL

		Royal Courts of Justice Strand London, WC2 Friday, 1 November 2002

1. LORD JUSTICE MUMMERY: This is an application for permission to appeal. The application is made by Mr Lincoln Crawford on behalf of the applicant, Miss Patrick. She was employed by the London Borough of Lambeth, the proposed respondent to this appeal, as a social worker from April 1989. She was suspended in June 1999 in circumstances which I shall mention and was dismissed on 3rd February 2000 for alleged gross misconduct. At the relevant time she was the Acting Senior Team Manager in the Children and Families Section and dealt, among other things, with child adoptions, in this case the adoption of two boys.
2. The circumstances of her summary dismissal led her to bring proceedings in the Employment Tribunal for unfair dismissal and breach of contract. The proceedings were started on 27 April 2000; they were heard by the Employment Tribunal at Stratford between 1st and 4th October 2001. At the hearing, at which both parties were represented by counsel, the tribunal heard evidence and made findings of fact set out in detail in the extended reasons sent to the parties on 9 October 2001. The tribunal came to the unanimous decision that Miss Patrick's claims for unfair dismissal and wrongful dismissal failed. They were dismissed.
3. There was then an appeal to the Employment Appeal Tribunal. That appeal was dealt with at a preliminary hearing on 17 June 2002 by a tribunal presided over by the then President of the appeal tribunal, Mr Justice Lindsay. At the preliminary hearing Mr Lincoln Crawford again appeared for Miss Patrick. The appeal tribunal considered the matter at length and concluded that the matter should not proceed to a full hearing since they could find no error of law in the decision of the Employment Tribunal. They thought the decision was a thoughtful and careful one, which contained no arguable error of law.
4. An application was then made for permission to appeal to this court, and I first considered it on paper on 27 September 2002. I regarded it as an unusual case, having regard in particular to the circumstances of Miss Patrick's dismissal and to a number of matters highlighted by Mr Crawford in his detailed and helpful skeleton argument of 3 September. I therefore directed that the matter should be dealt with at an oral hearing before I decided whether or not the grounds of the appeal had a real prospect of success.
5. The oral hearing has taken place this afternoon and Mr Crawford developed and highlighted the crucial aspects of the case. I would first of all say that, as appears to be the view of the Employment Tribunal in the concluding paragraph 7 of their extended reasons, this a very sad case. Miss Patrick was a trusted and experienced social worker, who acted with what they were sure were well intentioned motives aimed at acting permanently in the interests of vulnerable children and a devoted would-be adopter. Mr Crawford has emphasised in his submissions that, viewed from the point of view of adoption law, Miss Patrick's case is that she has done nothing wrong. Mr Lincoln Crawford's submission is that the authorities and the tribunals have failed to appreciate properly what the position was in respect of the proposed adoption of these two boys.
6. As I pointed out to Mr Crawford, this appeal is not really about whether Miss Patrick was right or wrong in the way she dealt with this matter under the law relating to adoption. The issue is whether she was unfairly dismissed or wrongfully dismissed. That turns on the perception of the employer objectively judged by the standards of a reasonable employer. There are cases where employees have been dismissed for misconduct where it may have been the case that they were not actually guilty of misconduct, but there were reasonable grounds for the belief of the employer that they had committed misconduct of a kind to which a reasonable response was dismissal, provided those grounds had been sufficiently investigated and supported the reasonable belief of the employer.
7. In this case the problem has arisen in this way. Miss Patrick, in brief, instructed members of the staff of the voluntary adoption agency, the Thomas Coram Foundation, to remove information from an internal form, which is called Form F. The effect of removing that information is that it would not be known that the prospective adopter had been rejected by another social services authority, in this case Berkshire. What then happened was, as found by the Employment Tribunal, Miss Patrick had not been truthful about the part that she had played in removing that information.
8. It is in these circumstances that the Employment Tribunal came to the conclusions in paragraph 6 of the extended reasons. They first concluded that the reason for the dismissal was the council's belief that Miss Patrick had committed gross misconduct, namely she had requested an employee of Coram to remove relevant information from Form F that was to be put before the council's adoption panel in March 1999. The tribunal found that the council had a genuine belief in that reason. They then considered fairness of the council's conduct and came to the conclusion that the procedure adopted at the disciplinary investigation, the disciplinary hearing and on an internal appeal were fair and proper and that the relevant bodies considered and formed conclusions in respect of the relevance of the material, which Miss Patrick had requested should be excluded from the 1999 Form F. The tribunal pointed out that the disciplinary hearing did not expressly come to a conclusion as to whether or not Miss Patrick acted in order to avoid the truth coming to the adoption panel. But there was no need for it to do this; that was an irrelevant consideration. The tribunal also found, as a matter of substantive fairness, that the council was entitled to conclude that, after the investigation, the disciplinary procedure should be invoked and that after the disciplinary hearing the applicant Miss Patrick was guilty of gross misconduct.
9. The outcome of the investigations was that the council came to the conclusion that the Berkshire rejection information was relevant, that Miss Patrick had requested its removal from Form F, that she had never given an explanation for requesting that removal and that she had lied about her role and continued to do so. The tribunal considered that these were reasonable conclusions in all the circumstances and they accepted that the disciplinary panel reasonably concluded that it could not trust Miss Patrick either generally or in respect of the non-repetition of this particular conduct. The tribunal concluded that dismissal was within the range of reasonable responses and, for similar reasons, they rejected the claim of wrongful dismissal.
10. Mr Crawford submits that there had been no misconduct on the part of Miss Patrick in the course of processing the two boys for adoption. She had told an irrelevant lie, but that had deceived no one and she had done so under pressure of fear. In these circumstances, he submitted, the tribunal had erred in law in holding that it was a reasonable response to dismiss her from her senior position. Mr Crawford explained the essential parts of the adoption procedure relevant in this case. He submitted that, properly understood, the position was that there was no wrongdoing, error or mistake in the adoption process, either on the part of Miss Patrick or Coram and that it was the unfounded allegation by the social services inspector that Miss Patrick was dishonest, which had prompted the investigation and led to her dismissal. He said Form F, in which information is recorded about prospective adopters for the purpose of assessment by Coram as a voluntary agency, is a form produced by the umbrella organisation, British Agencies for Adoption and Fostering. It is not an official form or a legal document, as described by the disciplinary panel. Not all adoption agencies use this form, which is no more than a tool for collecting information.
11. Coram had taken into account the Berkshire rejection before it had given approval to the couple, who were the proposed adopters. This fact was disclosed to the Lambeth adoption panel in the 1999 Form F when the couple were put forward as suitable adopters for the two boys. Coram and Lambeth followed the proper procedure and the two boys were placed with the couple.
12. As Mr Crawford emphasised, placement is one of the biggest steps in the achievement of the adoption process. That had now been achieved. But for the separation of the couple after the boys had been with them for a certain period, they would have gone on to apply for an adoption order. The separation led to the assessment of the female adopter as a single adopter. Coram approved her specifically for the two boys. The information about her assessment was recorded in the new Form F 1997. No reference was made to the Berkshire adoption. The Lambeth adoption panel considered Coram's approval, but decided to wait for three months before endorsing the placement. The delay was no fault of Miss Patrick, but it led to the case not coming back to the Lambeth adoption panel until March 1999 instead of October 1997. Coram created confusion by trying to create another Form F, in that it was mixing in some of the information from the 1995 form with the 1997 form. The concern of the Lambeth adoption panel at this stage was to ensure that the welfare of the two boys was being looked after and to satisfy itself that the adopting female was coping with the situation. Miss Patrick therefore correctly requested, and Coram agreed, to remove the reference to the Berkshire rejection from the 1995 Form F. The focus of interest to the panel was how the placement was working. The removal of the information was correct but, in any event, it was a matter of social worker judgment as to what information stayed in or came out of Form F.
13. Mr Crawford also dealt with the untruthfulness of the explanations given by Miss Patrick about what she had done. He accepted that she had not been truthful about her requesting Coram to remove the reference to the Berkshire rejection, but submitted that it was an irrelevant untruth, told out of fear and deceiving no one. The fear was that the Social Services Inspectorate inspector had reported her to the chief executive, falsely accusing her of trying to hide the truth about the Berkshire rejection. She had done no such thing and no such thing had occurred. What had happened was that she had panicked and told a lie, and, as it turned out, that had made things worse but it had not deceived any one. The removal of information had not deceived the Lambeth adoption panel or any one else, because it had already been disclosed.
14. Those are the main points made by Mr Crawford. He also emphasised in his submissions what he described as a lack of expertise in adoption law and procedures among those who were responsible for looking at the matter at different stages in the investigation. He emphasised again, and finally, that Miss Patrick had done no wrong. A wrong had been done to her in dismissing her in these circumstances.
15. I fully understand the basis of those submissions. I have considerable sympathy for Miss Patrick in the circumstances of this case. This is not an instance, as is only too apparent, of a person being accused of acting dishonestly in their own interest. It is not a question of seeking to get some financial or other advantage for herself in the course of her employment. That is one of the reasons why the tribunal went out of its way to say why this was regarded by them, when they dismissed the claims, as being a very sad case. I agree. But I am unable to agree with Mr Crawford that this is a case where the appeal has a real prospect of success. I can only grant permission to appeal if I am satisfied about two things. The first is that there is an error of law in the way the Employment Tribunal made its decision rejecting the claims of unfair and wrongful dismissal and, secondly, if I am satisfied that the appeal has a real prospect of success. I do not think this appeal has a real prospect of success, because I can find no error of law in the relevant part of the Employment Tribunal's decision. Mr Crawford highlighted at an early stage what he said was an erroneous understanding of the factual position stated at paragraph 5 (x) of the extended reasons where they stated and I quote:

"The normal procedure would have been that an adoption panel of the Respondent subsequently endorsed the adoption and [the adopting couple] would have gone to court for the legal part of the process. However [the male adopter] left the marital home in late 1996 and this change in circumstances interfered with the normal procedure."

16. Whether or not that is a correct statement of the factual position it does not, in my view, affect the determination of the question of unfair and wrongful dismissal. In my view, the tribunal stated in paragraph 6 of their extended reasons clear findings of fact overall, to which they were entitled to come about the circumstances of the dismissal. As I have said earlier in this judgment, the position is not really one of deciding whether Miss Patrick was acting correctly in accordance with adoption law or not. The question was what was the council's belief about her conduct when they came to a decision to discipline her and ultimately to dismiss her, and were there reasonable grounds for that belief. Was a reasonable investigation made as to the grounds for that belief and, in the light of the investigations taken, was dismissal a reasonable response? In my view, the findings of the tribunal are clear and justified. There was a belief of misconduct in relation to the removal of information. If the information was truly irrelevant, one is puzzled to understand why it should be removed and one is even more puzzled to understand, if it is irrelevant but has been removed, why Miss Patrick should not have been truthful about the matter and explained it, rather than trying to conceal it. As this was a reasonable belief of the employer supported by reasonable grounds, I do not have to consider the investigation. The matter was investigated at levels preceding the disciplinary hearing, then on the disciplinary hearing and, finally, on an internal appeal. There may have been some grounds for criticising the way in which the hearings were conducted, but the tribunal was satisfied they were fair and proper. They do not have to be perfect.
17. Having come to the conclusion that there had been a fair and proper investigation it is impossible, in my view, to say the tribunal were not entitled to conclude that a reasonable response to the belief of the council, as substantiated in the investigations, was a dismissal. It may seem harsh. I know that Miss Patrick feels aggrieved at the way she has been treated in this matter. The matter is decided by law and the law is clear. What has to be applied are objective standards of a reasonable employer. I do not think there is any prospect of satisfying a full court that there was perversity or any misdirection of law by the tribunal in coming to the conclusion that this was a fair dismissal. For those reasons, I would refuse the application for permission. I am sorry, Mr Crawford and Miss Patrick, but that is my view of the legal position.
Order: Application refused