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 Maurice Kay)

		Royal Courts of Justice Strand London, WC2
		24th March 2003

Monday, 24th March 2003 J U D G M E N T
1. LORD JUSTICE PETER GIBSON: The appellant, Dr Miguel Angel Meizoso-Gonzalez, appeals against the order made on 3rd July 2002 by the Employment Appeal Tribunal. By that order made on the preliminary hearing of the appellant's appeal against the decision of an Employment Tribunal sitting at Stratford the Appeal Tribunal dismissed the appeal. The appeal is brought with the permission of the single Lord Justice (Sedley LJ).
2. The appellant was employed by the respondent, the South Essex Mental Health & Community Care NHS Trust, from 1st July 1998 until he was dismissed on 13th November 2000. There is some dispute as to the capacity in which he was employed. He says it was as an Adult Psychotherapist. The respondent says, and the Tribunal found, that he was appointed to the post of Clinical Psychologist by the Southend Community Care Services NHS Trust which merged with the respondent on 1st April 2000 when the appellant's employment was transferred to the respondent. Soon after the merger the respondent queried the appellant's qualifications for the post which he held. That generated a sharp dispute between the appellant and the Head of Psychology Services on the one hand and on the other hand other managers of the respondent.
3. The primary cause of the appellant's dismissal was, however, a different matter. A nurse employed by the respondent to care for seriously ill children was the subject of allegations in the tabloid press following the deaths of a number of children. Suggestions were made in the press that the nurse was being investigated for responsibility for those deaths, and an association was made between her case and another case where a nurse who had been called "the Angel of Death" had been found in criminal proceedings to be responsible for a number of deaths. A Mr Harty, the father of another child who had been cared for by the nurse, was among a number of parents who praised the nurse's care. The mention in the press of Mr Harty and what he had said prompted the appellant to write to Mr Harty. He did that on 7th July 2000, his letter taking this form. It was headed "strictly personal and confidential". He said:

"I have read your interview on the Evening Echo, dated of Tuesday the 27th of June, and want to salute your ethical courage to stand for truth on behalf of Ms Elaine Chase. [She was the nurse]

I also believe she has been accused wrongly. Moreover, I believe she has been accused out of lust for power and professional envy.

It happens that I have key evidence of this and, though I risk to lose my job if you were not to keep this confidential, I am professionally and as a Christian committed to truth and care for life.

I could not find other ways but your address (and only yesterday thanks to the milkman) to try to get in contact with Ms Chase or her lawyers (no-one else should be informed, please, until they consider the evidence) and I am putting all hopes in you wondering if you would, providentially, know how to contact Ms Chase or her lawyers.

As you will understand I am putting all my trust on your trustworthy and honest character. I would thus be most grateful to you if you could phone as soon as possible (during this week-end at any time day or night) to let me know.

Thank you very much for a kind response."

4. The appellant's letter came to the attention of the respondent, it says through Mr Harty showing the letter to the police and through the police providing the respondent with a copy. This caused Manfred Hennessy, the Acting Director of Specialist & Sexual Health Services of the respondent, to write to the appellant on 4th August 2000. In that letter Mr Hennessy first raised the issue of the appellant's qualifications on which he sought information. He continued:

"In addition, the Trust has received a copy of the attached letter in your name. I need you to confirm that the letter is from you and provide an explanation of the appropriateness of this letter. Furthermore I require you to provide the Trust immediately with the evidence to which that letter refers.

In view of the serious nature of these two issues I confirm that I am suspending you from duty with immediate effect. Suspension from duty is not in itself a disciplinary action but will apply until the facts of the case have been fully investigated and for you to produce the information as detailed above."

5. There was no response from the appellant, though there was an angry response from the Head of Psychology Services at the suspension of the appellant. On 24th October 2000 Mr Hennessy wrote again, informing the appellant that a disciplinary hearing was convened for 31st October 2000, which the appellant was requested to attend. The appellant was informed that three main allegations would be put. They were described in this form:

"1. That you have been working as a B Grade Psychologist without the required British Psychological Diploma or Statement of Equivalence.

2. That you acted inappropriately as an employee of the Trust by writing to a member of the public about another member of staff that was suspended and under investigation. This constitutes a serious breach of confidentiality.

3. That you have failed to respond to requests for information which you stated you had and reasonable management instructions since your suspension in August 2000."

6. There was then correspondence between the appellant and the respondent, as a result of which the disciplinary hearing was postponed more than once in an attempt to accommodate the appellant. In the course of the correspondence the appellant expressed concern as to whether the respondent would act fairly at the hearing. The correspondence also included a letter of 2nd November 2000 from solicitors for the appellant requesting certain information from the respondent and making representations on the three allegations. On the second allegation, under the heading "breach of confidence", they said that the appellant's letter to Mr Harty amounted to an expression of opinion regarding the accusations made against the nurse. They asked for particulars of the confidence alleged to have been broken and said that whilst subjectively the sending of the letter might be viewed as inappropriate, it was not capable of amounting to a breach of confidence. Mr Hennessy did not respond to the solicitors' letter, saying by letter dated 2nd November 2000 to the appellant that the respondent did not recognise solicitors in a legal capacity through its internal procedures.
7. The disciplinary hearing took place on 7th November 2000 before the respondent's Deputy Chief Executive, Nikki Richardson, with the Acting Director of Human Resources attending as Human Resources support. The appellant did not attend. His subsequent evidence to the Tribunal was that he did not believe he would receive a fair hearing. Mr Hennessy presented the case against the appellant. On 10th November 2000 Ms Richardson wrote to the appellant informing him of the outcome of the hearing. She said:

"I concluded that there were a number of reasons why your employment with the Trust could not continue, and that your behaviour in the context of Allegation 2 amounted to gross misconduct. My decision was therefore that your employment should be terminated with immediate effect on the grounds of misconduct. A detailed note of my reasons will follow.

This letter is therefore formal notification of the termination of your employment which will end on 13 November 2000."

8. On 24th November 2000 she wrote again to the appellant, sending him what she called "the outcome statement" from the hearing. She said of the first allegation that she considered that the appellant did not have the necessary qualifications to carry out the duties of the job he was employed to do. On Allegation 2 she said:

"In my view it was inappropriate for Dr Gonzalez to write an unsolicited letter to a member of the public in relation to another member of staff regarding Trust business, particularly in the context of both the criminal and internal investigations, and the considerable media coverage and public interest. I believe that by sending this letter, Dr Gonzalez is in breach of his duty of confidentiality to the Trust and to his colleagues. The Trust Whistleblowers Charter clearly states the process staff should follow in relation to concerns they have within the Trust, and he has given no explanation as to why he could not use this Whistleblowing Charter with the new Management.

The Trust's disciplinary procedure states that breach of confidentiality can amount to gross misconduct, and I concluded that in all the circumstances Dr Gonzalez' behaviour was gross misconduct which could give rise to summary dismissal."

On Allegation 3 she concluded that the appellant had failed to respond to reasonable requests for information. She said that whilst it would not have been a sufficient basis for dismissal, his behaviour and the tone of his correspondence with Mr Hennessy was totally inappropriate behaviour. She ended by saying:

"On the basis of all the information available to me, I formed the view that the essential relationship of trust and confidence between Dr Gonzalez and the Trust has broken down irretrievably making it impossible for his employment to continue. In addition, Dr Gonzalez's letter to Mr Harty amounts to gross misconduct and therefore I summarily dismiss Dr Gonzalez with effect from 13th November 2000."

9. The appellant appealed, but the appeal was dismissed. In the meantime, the appellant's solicitors had presented his originating application to the Tribunal in which he complained of unfair dismissal and breach of contract. The claim for breach of contract was not pursued, and I need say no more about it. The respondent resisted the claims. In the respondent's notice of appearance reference is made in paragraph 7.5 to the three allegations detailed in the letter of 24th October 2000, and in paragraph 7.7 it was stated:

"The Disciplinary Manager found all three allegations proven, and concluded that the Applicant's actions in relation to the letter written to a member of the public amounted to gross misconduct."

10. At the hearing before the Tribunal, the appellant was represented by counsel, Mr Martin Spencer, who appears for him today. For the appellant it was argued that there was no breach of confidentiality by him in writing the letter to Mr Harty. The nurse had already been named in the press and was known to Mr Harty because his son had been cared for by her, and he wanted to assist the nurse, who was the subject of a potential murder inquiry. For the respondent it was argued that the sending of the letter to a member of the public was a breach of an express term of the appellant's contract of employment. It was also submitted that it was a breach of confidentiality to mention the name of the nurse to Mr Harty. It was further submitted that the breach of confidentiality consisted of the letter taken as a whole, that is the use of the name of the nurse, comments made that the nurse had been accused wrongly and further that she was accused out of "lust for power and professional envy", and the implication that another member of staff was also involved.
11. The Tribunal in their Extended Reasons directed themselves by reference to section 98 of the Employment Rights Act 1996, recognising that they had to decide the reason, or principal reason, for the dismissal as shown by the employer. They said (in paragraph 19) that the respondent relied on four reasons for dismissing the appellant:

(a) writing the letter to Mr Harty;

(b) not having the necessary qualifications for carrying out the job he was employed to do;

(c) failing to respond to reasonable requests for information prior to suspension and in response to the disciplinary process, these relating to the first two matters; and

(d) a breakdown of trust and confidence between the employer and employee.

They then asked themselves what was the reason or principal reason. They dismissed paragraph (c) because Ms Richardson had not relied on it for the dismissal, but found that reasons (a), (b) and (d) were relied on by her. They found that the principal reason was that of writing the letter.

12. Ms Richardson had given evidence for the respondent that it was a very serious matter justifying summary dismissal. The Tribunal recorded in paragraph 22 of the Extended Reasons:

"She stated that she considered dismissal was the only appropriate action in response to this letter and that the Applicant could not continue in his appointment having written it. She said this because she felt that the letter gave the impression that another member of staff might be named and that name released to the third party, Mr Harty."

13. The Tribunal then held that the writing of the letter was a reason relating to conduct, and so within section 98(2) of the Act.
14. They next considered whether the respondent acted reasonably in treating the reason as a sufficient reason for dismissing the appellant. They guided themselves by reference to British Home Stores v Burchell [1978] IRLR 3790 and found that the appellant had sent the letter, as the respondent reasonably believed, that the respondent had attempted to investigate why the appellant had written the letter and what evidence he had; but the appellant had not responded to the questions asked of him in correspondence and had not attended the disciplinary hearing, and they found that the respondent had carried out such investigation as was reasonable in the circumstances. The Tribunal concluded that the respondent was entitled to regard sending the letter to Mr Harty as a serious matter and one which, in the absence of any explanation from the appellant, justified summary dismissal.
15. The Tribunal continued:

"29 In reaching this conclusion the Tribunal find that writing the letter did not amount to a breach of the term of the Applicant's contract of employment regarding confidentiality. That term reads as follows:

`All matters relating to patients' diagnoses and treatment are strictly confidential and under no circumstances is such information to be divulged or passed on to any unauthorised persons under penalty of instant dismissal.'

30 The Applicant's letter did not involve divulging anything about patients' diagnoses or treatment. However the letter implies allegations against others of the Respondent's employees as the Applicant states that E [that is the nurse] had been accused out of lust for power and professional envy. The letter states that the Applicant has evidence to support these allegations and that he himself is at risk of losing his job if the evidence is not kept confidential. The Tribunal considers that the content of the letter suggests serious wrongdoing on the part of the Respondent's employees and therefore sending it amounted to serious misconduct in the absence of any proper explanation for it."

16. The Tribunal were satisfied that the respondent acted reasonably in dismissing the appellant summarily for sending the letter to Mr Harty, given the material before Ms Richardson. They therefore dismissed the claim for unfair dismissal.
17. On Allegation 1 the Tribunal were satisfied that Ms Richardson was entitled to conclude that the appellant did not have the qualifications necessary to carry out the job he was employed to do. They accepted that there were no vacancies available for which the appellant was qualified, and so dismissal was within the range of reasonable responses. But they said that had that reason for dismissal stood alone, dismissal on notice and not summarily would have been appropriate.
18. The Tribunal again said that the failure to respond to the respondent's request for further information could not have justified the decision to dismiss and, in reality, that it arose from the writing of the letter and the lack of qualifications. They said in paragraph 40 of the Extended Reasons that the breakdown of trust and confidence between the parties did not stand alone as a separate reason for dismissal, and only arose from the two substantive grounds and was not an independent reason for dismissal as such.
19. On the appellant's appeal to the Appeal Tribunal the appellant appeared in person. The Appeal Tribunal said that the issue about qualifications did not go to the heart of the Tribunal's decision. They confined themselves to the letter sent to Mr Harty. They found no basis for an argument, which had been advanced by the appellant, that the Tribunal substituted their own reasons justifying the dismissal. The Appeal Tribunal held that the Tribunal directed themselves correctly as to the law and correctly applied the legal principles.
20. The appellant himself prepared his grounds of appeal, but he has had the good sense to go back to Mr Spencer for help in presenting his case both to Sedley LJ and now to this court. Mr Spencer submits that the real reason for the dismissal was that the respondent considered that the writing of the letter amounted to a serious breach of confidentiality. That, he submits, is not the reason for the dismissal as relied on by the Tribunal. He points to the fact that the Tribunal in paragraph 30 of the Extended Reasons, which I have cited, found that the writing of the letter did not breach the contractual term of confidentiality. Mr Spencer submits that the reason for dismissal which Ms Richardson gave was not same as the reason for dismissal given by the Tribunal because the suggestion of serious wrongdoing on the part of the respondent's employees, which the Tribunal considered was the content of the letter, was not to be found in the reasons expressed by Ms Richardson for dismissing the appellant.
21. For the respondent Mr Timothy Sheppard submitted that the respondent has throughout argued that sending the letter constituted gross misconduct, not that it solely amounted to a breach of the express term relating to the disclosure of patients' diagnoses and treatment. He says that the rejection by the Tribunal of a breach of the express term did not mean that there was no consideration by the Tribunal of what it was about the letter which was objectionable. He says it is apparent from paragraph 30 of the Extended Reasons that the Tribunal did consider that point, and he suggests that that is entirely consistent with the reason given by Ms Richardson. He argues that the Tribunal properly found serious wrongdoing for the reason given by them.
22. The starting point, as the Tribunal rightly recognised, is section 98 of the Act. It provides, so far as relevant:

"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show-

(a) the reason (or, if more than one, the principal reason) for the dismissal, and

(b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2) A reason falls within this subsection if it-

...

(b) relates to the conduct of the employee.

...

(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reasons shown by the employer)-

(a) depends on whether in the circumstances (including the size of administrative resources of employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case."

23. Thus it is clear that the burden is on the employer to show the reason, or principal reason, for the dismissal and that it is one which falls within subsection (2) or there is otherwise some other substantial reason justifying dismissal. One does not get to subsection (4) if the employer has not fulfilled the requirements of subsection (1). If the Tribunal finds that the reason or the principal reason for dismissal is other than that shown by the employer, it matters not that the reasons found by the Tribunal would justify dismissal.
24. In the present case it would have been uninformative and insufficient for the Tribunal only to find that the sending of the letter was the reason, or principal reason, without going on to identify what it was about the sending of the letter that constituted the justification for dismissal. This the Tribunal attempted to do in the final three sentences, as I read them, of paragraph 30 of the Extended Reasons. The fact that the Tribunal considered that the content of the letter suggested serious wrongdoing is irrelevant, unless that was the respondent's reason for the dismissal. The question is whether what the Tribunal said reflects what the employer thought when dismissing the appeal.
25. If one looks only at the documentary evidence, I can see that it is arguable that Ms Richardson was simply accepting the correctness of Allegation 2 put forward by Mr Hennessy in the letter of 24th October 2000, that is that the writing to a member of the public about another member of staff under suspension and investigation was a serious breach of confidentiality. In the outcome letter Ms Richardson expressed the view it was inappropriate to write an unsolicited letter to a member of the public in relation to a another member of the staff regarding Trust business and that letter was a breach of confidentiality. Further, the respondent's IT3 expressly states that she had found Allegation 2 proved. On the basis of that evidence alone, it was properly arguable by Mr Spencer that what the Tribunal said in paragraph 30 about the letter to Mr Harty diverged from the respondent's reasons.
26. But doubt is cast on that argument by other parts of what Ms Richardson said both in the outcome letter and in her oral evidence to the Tribunal. In the outcome letter she refers to the appellant as being in breach of his duty of confidentiality to the Trust and to the appellant's colleagues; and she also refers to the Whistleblowers' Charter, which could only be relevant if the appellant had information about the wrongdoing of some employee or employees of the respondent. That shows that she was thinking that to disclose information of wrongdoing by a colleague otherwise than in accordance with the Charter fell within what she called breach of confidentiality. That, in turn, suggests to me that confidentiality was something of a misnomer, and that a breach of the duty of loyalty was what she had in mind.
27. The evidence of what Ms Richardson said to the Tribunal comes in several places. The only evidence expressly referred to by the Tribunal as given by her are the two sentences from paragraph 22 to which I have referred. But that evidence itself is unsatisfactory because, of course, it was not to Mr Harty that the appellant wished to provide information but to the nurse and her solicitors. There was also confusion owing to two matters. One was that at one stage Ms Richardson appears to have relied on the contractual term of confidentiality in relation to patients' diagnoses and treatment, but that was plainly irrelevant. The other was that Ms Richardson also appears to have relied on the appellant mentioning the nurse's name to Mr Harty as a breach of confidentiality. Again, that was not something of which complaint could be made when the nurse's name had already been blazoned forth in the press, including in the very article which prompted the appellant to write to Mr Harty, and he, of course, was plainly well aware of the name of the nurse who had treated his son.
28. To my mind, the decisive matter is the evidence which Mr Spencer accepts was given by Ms Richardson to the Tribunal and which is referred to by the solicitor advocate then appearing for the respondent in Schedule 2 to the respondent's written submissions provided for the Tribunal. In Schedule 2 paragraph 1.2.2 this was said:

"It was said in evidence by Ms Richardson that she considered the letter to be in breach of confidentiality ... She looked at the letter as a whole and not each particular element of it. She said that she believed at the relevant time that he had breached the duty of confidentiality he owed to the Trust and to a fellow staff member. She explained that her concern was based not just on the naming of the paediatric nurse but, in addition, on the implication that the Trust had made false allegations and, that he had implicated another member of staff as well (although unnamed)."

That, as it seems to me, is entirely consistent with what the Tribunal were saying in paragraph 30 of the Extended Reasons. The Tribunal was there repeating that evidence, perhaps spelling it out with greater clarity, if I might say so, than had appeared in Ms Richardson's evidence, but plainly following the line which she was adopting. The matters which had been raised in the letter were very serious indeed: grave accusations against some person or persons in the respondent were being made by the appellant to someone outside the respondent. Although the label used by the respondent -- "breach of confidentiality" -- was an unfortunate and inappropriate one, and although hopeless points had been taken by the respondent at the hearing before the Tribunal relating to the contractual term and to revealing the name of the nurse to Mr Harty, what the Tribunal were saying, echoing Ms Richardson, was that it was a very serious matter for an employee of the respondent to be making such accusations about a colleague or colleagues, employees of the respondent, in a letter to Mr Harty. That, Ms Richardson was saying, was a matter of sufficient gravity so as to leave it quite impossible for the appellant to continue in his appointment having written the letter, and the Tribunal were saying that that was such serious misconduct as to justify summary dismissal. Accordingly, I would find that there is no divergence between the reason for the dismissal as given by the respondent and the reason given by the Tribunal in their decision.

29. Mr Spencer sought to raise other matters: for example, that the disclosure to Mr Harty in the letter to him brought into play the amendments to the 1996 Act made by the Public Interest Disclosure Act 1998. He said that it would have been entirely proper for the appellant to reveal the wrongdoing by employees of the Trust to an outside person and that he would be protected under the Act.
30. The Tribunal heard a similar submission, but what they said about it was this:

"32 ... The Tribunal considers that this is not directly relevant as the Applicant's position is that he never made a disclosure and the Tribunal find that that is, strictly speaking, correct. It was submitted on the Applicant's behalf that arguably this would have been a qualifying disclosure under the Act if it had been made and that the Tribunal should therefore find that the dismissal was unfair so as to adhere to the spirit of the 1998 Act.

33 This would be an entirely theoretical exercise. The parties did not analyse the evidence with reference to the provisions of the 1998 Act. The particular difficulty for the Tribunal in relation to this submission is that the Applicant did not reveal to the Tribunal what his evidence was and therefore the Tribunal could not form a view about the merits of his opinions on the strength of that evidence. The Tribunal did not in the event rely on this aspect of the matter in reaching its decision."

31. In my judgment that was an entirely correct approach by the Tribunal. I cannot see that it was necessary to investigate that matter further.
32. Mr Spencer sought to raise the question whether it was within the band of reasonable responses for the respondent to do as it did in this case, relying on the reason given. Having regard to the skeleton argument on the basis of which Sedley LJ gave permission to appeal, I am doubtful whether that is a matter which is open to the appellant to raise on this appeal, and, in any event, it seems to me that he cannot possibly succeed on it in view of the findings of fact made by the Tribunal.
33. For these reasons, I have reached the conclusion that the submissions on behalf of the appellant do not succeed. Accordingly, for my part I would dismiss this appeal.
34. LORD JUSTICE WALLER: I agree.
35. LORD JUSTICE JONATHAN PARKER: I also agree.
Order: Appeal dismissed with costs subject to a detailed assessment.