England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
UKEAT/0479/06/CEA

		Royal Courts of Justice Strand, London, WC2A 2LL
		05/02/2008

Lord Justice Pill :

1. This is an appeal against a decision of the Employment Appeal Tribunal ("EAT") Elias J (President), presiding, given on 21 December 2006 and dismissing an appeal by Dr Zoubida Guernina ("the appellant") against a decision of an Employment Tribunal ("the Tribunal") held at Watford sent to the parties on 18 January 2006. Permission to appeal to this court was given following an oral hearing.
2. The Employment Tribunal dismissed the appellant's claims of unfair dismissal, breach of contract and discrimination on grounds of sex and disability by Thames Valley University ("the University"). The hearing before the Employment Tribunal lasted for several days and oral evidence was given by the appellant and a supporting witness and by several members of the University's staff. The appeal to the EAT was permitted to proceed only on the grounds of wrongful and unfair dismissal. It was, and before this court is, submitted that the University had wrongfully dismissed the appellant, dismissal not being a reasonable sanction in the circumstances, and that the procedure by which dismissal was effected was unfair.
3. In November 1998, the appellant became a full-time senior lecturer in psychology at the University, under a written contract. Prior to her appointment she was employed by the Hull and East Riding Community NHS Trust (the "Trust") as a practitioner on a part-time basis. The main point at issue before this court, as put in the written statement of Mr Chapman, solicitor, on behalf of the appellant is:

"Was the appellant entitled to work (as a clinical psychologist) for a second employer (the NHS) one day a week while employed on a full time contract by the [University]?"

4. Lengthy skeleton arguments were subsequently submitted to the court by Mr Chapman. While Mr Chapman had no right of audience, he was permitted to explain orally the contents of his written statements.
5. I refer to the Tribunal's findings, as stated in their chronology. These followed the general findings, which I will also cite. (I have retained the Tribunal's description of the appellant as claimant):

(a) The appellant was able to fulfil her commitments to the NHS Trust while employed full-time by the University between 1998 and September 2003.

(b) In April 2002, the appellant was injured when a bookshelf fell on her at the University and as a result she was away from work for some months (paragraph 7.14).

(c) The Employment Tribunal found, at paragraph 7.24:

"In January 2004, Professor Cassidy wrote an intemperate internal memo to Dr Jones and Professor Crook about problems with members of the psychology department. In addition to criticising the Claimant, he makes strong criticism of DS and MR. His criticisms of the Claimant include her poor performance and lack of research as well as her lack of flexibility or cooperation with the timetable and her paid work with the Trust. He concludes with a recommendation that she be dismissed forthwith".

(d) It was also alleged before the Tribunal that Professor Cassidy had specifically taken against the appellant. The Tribunal found that while the Professor, who had since left the University, was capable of being blunt to the point of rudeness, he did not single out the appellant and the whole team had been castigated by him (paragraph 7.11 to 7.13). He had upset a number of people in the department.

(e) At paragraph 7.25, the Employment Tribunal found:

"On the 9 February 2004 the Claimant attended a return to work interview with her union representative [following a finding that she was now fit for work]. The Claimant was asked by Professor Cassidy whether she had given up her Trust work and when she said that she had not she was told that she should not return to work. As a result of this the Claimant did not return to work from that time until her dismissal on the 22 February 2005. She was not however formally suspended but was treated as being on sick leave and did not therefore receive full pay during this period. However following her dismissal the Respondent reinstated her full pay for this period".

(f) Following a letter written to the University on behalf of the appellant by her union representative, an "investigatory" meeting was held on 28 April 2004, attended by the appellant and her representative. Suggestions were made by the University as to how issues could be resolved. The appellant did not act on these proposals, although her union representative accepted them as being reasonable (paragraph 7.26).

(g) On 30 April 2004, there was a disciplinary hearing chaired by Professor Crook. The appellant, who was unwell, did not attend but her case was put by her union representative. Professor Crook recommended dismissal, citing poor performance in respect of research and scholarly output and the failure to give up the work for the Trust. In oral evidence accepted by the Tribunal, Professor Crook stated that the principal reason for the recommendation was the work for the Trust (paragraph 7.27).

(h) On 17 June 2004, the appellant wrote to the University setting out a number of grievances based mainly on alleged discrimination against her. A lengthy meeting was held on 12 July 2004, attended by the appellant and her union representative, to see whether resolution could be achieved. Suggestions were made and it was recorded that the appellant's union representative accepted that the request that the appellant resign from the Trust was a reasonable one (paragraph 7.28)).

(i) On 14 December 2004, there was a disciplinary hearing before the Vice- Chancellor, Professor Crispin, attended by the appellant and her representative. The Tribunal found (paragraph 7.29) that it was again made clear to the appellant why she should not continue with the work for the Trust. Professor Crispin offered to assist the appellant to investigate opportunities for practitioner work in London. The Tribunal found (paragraph 7.30) that the disciplinary issue was solely that of the appellant's continued employment with the Trust and her refusal to resign from it. There was no evidence that, during the long period the dispute had lasted, the appellant had taken any steps to investigate opportunities for practitioner work in London or for doing the work in Hull on a different basis.

(j) Paragraph 7.31, the Tribunal found:

"The Claimant made what can only be seen as half-hearted attempts to take up Professor Crispin's offer of assistance, initially providing him with an out of date CV and failing to supply the details of her work for the Trust as requested by him. In addition she did not resign from the Trust, a fact, which, she can have been in no doubt, was jeopardising her continued employment with the Respondent".

(k) The Vice-Chancellor's decision was deferred because the appellant had herself initiated grievance procedures. These were heard by Professor Garrod on 13 January 2005 and were not upheld (paragraph 7.32).

(l) Professor Crispin notified the appellant on 22 February 2005 that her employment was being terminated for gross misconduct with immediate effect. The Tribunal held (paragraph 7.33) that this was a conclusion it was reasonable for him to reach.

(m) The Tribunal found, at paragraph 7.34:

"The Claimant appealed against the disciplinary decision and her appeal was heard on the 7 April 2005. The minutes produced indicate that the panel conducted a thorough review of the disciplinary issues and concluded that the dismissal should be upheld".

6. It needs to be added that on 27 October 2003, the Vice-Chancellor had written to members of staff stating:

"As I am sure colleagues will be aware, full time members of staff have an exclusive contract of employment with TVU and may not work for another employer without prior written authorisation of their Dean (normally by a Subject Head) or Head of Department".

Later in the memorandum it was stated:

"If any full-time member of staff currently working for another employer has not obtained authorisation from the Dean or Head, approval must be sought immediately".

In a letter to the Trust dated 29 November 2000 the appellant had described her work with the University as "secondary employment" and put the average number of hours worked there as: "varies - about 10 hours per week".

Submissions

7. On behalf of the appellant it is submitted that nothing in the contract prohibited the NHS work. Sufficient disclosure was made when the employment began. The point was, in any event, conceded by the University, it is submitted, when suggestions were made during the disciplinary procedure that the work would be approved if not paid or if the University received the NHS pay. The finding that procedural defects did not render the dismissal unfair was, it is submitted, perverse. Professor Cassidy's "intemperate" memorandum was not disclosed to the appellant during the disciplinary process. It tainted that process because it was sent to Professor Crook and to Professor Crispin. Professor Crook was influenced by that memorandum. Professor Crispin did not attend the Tribunal hearing and could not be asked about his motivation. It was unfair not to disclose the memorandum until the Tribunal proceedings.
8. It is submitted that the appellant's work for the Trust benefited the University by giving it contacts with clinical work, helped the appellant with continued professional development and was valuable in itself as help for the mentally ill. Reference is made to Council Directive 97/81/EC of 15 December 1997 and the annex dealing with part-time work, which provides:

"The purpose of this framework agreement is . . . to facilitate the development of part-time work on a voluntary basis and to contribute to the flexible organisation of working time in a manner which takes into account the needs of employers and workers".

Section 1(4) of the Employment Rights Act 1996 requires terms and conditions relating to hours of work to be stated in the written statement of the particulars of employment. The purpose is, it is submitted, to require that restrictions on an employee's right to take part-time work be made plain to the employee at the outset. The staff handbook, having stated that the specific teaching responsibilities of a lecturer and the time to be devoted to other duties is a matter for discussion, requires personal development to be taken into account:

"Personal development needs both as a teacher and as a subject specialist, and in relation to research and other scholarly activity and to overall career development". (Paragraph 1.4.1 of handbook).

The Contract

9. Clause 2.1 of the contract provides:

"This is a full time post and its nature is such that you are expected to work such hours as are reasonably necessary in order to fulfil your duties and responsibilities. Those duties include teaching and tutorial guidance, research and other forms of scholarly activity, examining, curriculum development, administration and related activities. You are expected to work flexibly and efficiently, and to maintain the highest professional standards in discharging your responsibilities, and in promoting and implementing the corporate policies of TVU [the University]. In relation to the performance of your duties you will be required to participate in an appraisal scheme approved by the Board of Governors".

10. Clause 10 provides for circumstances in which, notwithstanding the full-time obligation, some external work is permitted. Clause 10.2 requires an employee to inform the subject head before entering into an obligation to undertake external work. By way of exception, this requirement does not apply to the following:

(a) external examining;

(b) acting as an assessor or moderator;

(c) the production of scholarly work such as books, articles and papers;

(d) any other activity specified in the Staff Handbook as not coming within this requirement.

11. Clause 10.3 provides:

"Your Subject Head will then decide (within 5 working days or whatever other period may be agreed or being responsible in all the circumstances) if that work will:

(a) interfere with the performance of your professional responsibilities: or

(b) compete or conflict with the interests of TVU, in which case TVU may at its sole discretion require you not to undertake the work; such a requirement will not be made unreasonably, will be subject to full consideration with yourself and, if made, will be accompanied by full written reasons for it".

The decision of the Tribunal

12. The Tribunal summarised the submissions of the parties and made their findings as follows:

"7.2 It was the Claimant's evidence that at her interview for the post with the Respondent she informed her interviewers, Keith Grant and Dr Peter McCaffery, of her employment with the NHS Trust and that they approved of her continuing with that work since it enhanced the reputation of the University to have clinical practitioners and would assist in the development of a course in counselling psychology which was to be introduced. The Claimant refers to her CV provided to the respondent at that time, which includes a reference to her work for the NHS Trust, and to letters and documents all of which she claims demonstrate that the University was fully aware of the nature of her work for the Trust both at the time of her appointment and subsequently.

7.3 It was the respondent's evidence that although it was aware that the Claimant was involved as a practitioner with the Hull and East Riding Community NHS Trust, it was not aware until September 2003 that the Claimant was in paid employment with the Trust under a contract of employment which required her to work for it on one day per week.

7.4 The Claimant's conditions of employment with the Respondent, to which she signed her acceptance on the 5 November 1998, provided that her post was 'a full-time post and its nature is that you are expected to work such hours as are reasonably necessary in order to fulfil your duties and responsibilities'. Her contracted teaching commitment was a maximum of 18 hours per week, and in addition her other duties included tutorial guidance, research and scholarly activity, examining, curriculum development, administration work and faculty and other meetings. The Claimant who had been living in Hull at the time of her appointment did not relocate to the South and for the first few years of her appointment with the Respondent her timetable was arranged so that her teaching commitments were on consecutive days and she was only on campus for around three days per week. This arrangement was not exceptional to her since it was accepted that lecturers carried out research and scholarly activity off campus and there was, between 1998 and 2002 at least, a fairly relaxed approach within the faculty to the working arrangements of senior lecturers.

7.5 The Claimant's conditions of employment provided in respect of external work that 'external work which is supportive of your professional responsibilities is encouraged by TVU'. However employees were required (save in some circumstances which we find did not apply to the work carried out by the Claimant) to inform the subject head who would decide whether it would 'interfere with the performance of your professional responsibilities or compete or conflict with the interests of TVU, in which case TVU may at its sole discretion require you not to undertake the work; such a requirement will not be made unreasonably, will be subject to full consultation with yourself and, if made will be accompanied by full written reasons for it'.

7.6 We find as a fact that the Claimant's work for the Hull and East Riding Community NHS Trust was covered by the contractual requirement for notification and approval by the subject head. We further find that the Claimant did not make clear to the Respondent prior to September 2003 the fact that she was employed under a part-time contract of employment with the Hull and East Riding Community NHS Trust, such that she had a permanent and ongoing commitment to that organisation for one day per week. We do not accept that approval was given at the time of her interview based on full disclosure of the nature of the commitment. Keith Grant is no longer employed by the Respondent, but the Respondent contacted Peter McCaffery, a former line manager of the Claimant, whom the Claimant had said had approved the continuation of the NHS Trust work and he confirmed in a letter dated 30 October 2003 to the Respondent that he had not given his approval.

7.7 The documents to which the Claimant points as including a reference to her work in Hull, simply mention the work and in none of them is the full commitment clearly set out. The Claimant included in the bundle a copy of a letter, which she claims to have written to Mr Grant, in which she mentions that she intends to continue doing two sessions at the East Yorkshire Health Authority. The Respondent claims not to have received this letter and we find that it was not sent. The copy letter is signed by the Claimant, does not look the same as her other contemporaneous correspondence and the Claimant is unable to produce the response to it that she claims to have received. Further evidence of the Claimant's lack of frankness in relation to her situation is her notification to the Trust that the Respondent only employed her for 10 hours. This suggests that the Claimant was aware of the need for caution if she was to continue with an employment situation that was unlikely to meet with the approval of either employer.

7.8 We find that although the Claimant mentioned her work for the Trust at the time of her appointment she did not fully disclose it. The references she makes to it are to the CPD and research aspects of it but not to the true nature of the contractual commitment. There is no document that shows that the Respondent expressly approved the Claimant being employed for one day per week by the Hull and East Riding Community NHS. There is evidence of tacit approval by the Respondent to the Claimant carrying out sessions for the NHS as part of her CPD requirement since these were mentioned and no objection was made. However tacit approval to a partially disclosed commitment does not accord with the requirement in the contract of employment and we consequently find as a fact that the Claimant did not have the requisite consent of the Respondent to work for the Hull and East Riding Community NHS Trust on one day per week whilst employed under a full-time contract with the Respondent. As a consequence we find that in fulfilling the contract with the Trust, the Claimant was acting in breach of her contract with the Respondent".

13. The Tribunal stated its conclusions under the heading 'Unfair dismissal and breach of contract':

"8.2 We find that the reason for the dismissal was the Claimant's breach of contract in continuing her concurrent paid employment with the Hull and East Riding Community NHS Trust despite the fact that it had not been approved in accordance with the conditions relating to external work and her subsequent refusal to resign from it despite the fact that it was made clear to the Claimant that she was required to resign from it in September 2003. This amounts to misconduct and is a potentially fair reason for dismissal under s98(2) Employment Rights Act 1996.

8.3 We went on to consider whether the dismissal was unfair under Section 98(4) ERA. We concluded that it was not. In reaching that conclusion we reminded ourselves of the provisions of that section and in applying it we directed ourselves that it was not for us to stand in the shoes of the employer and decide what we would have done. Rather we asked ourselves whether the decision to dismiss the Claimant for the reasons found fell within the range of response of a reasonable employer. We found that it did.

8.4 Although there were aspects of the disciplinary procedure that the Respondent could have handled better, namely: the failure to formally suspend the Claimant from her work between February 2004 and her dismissal in February 2005; the inclusion by Professor Crook of performance issues in the conclusion of the disciplinary hearing on the 30 April 2004 and the delay in reaching a conclusion on the disciplinary issues which was not finally determined until February 2004, we do not find that these aspects, when considered as part of the overall procedure, render the dismissal unfair. In respect of the Claimant's exclusion from work, we are satisfied that she was throughout this period in fundamental breach of contract justifying summary dismissal. She was in a position to rectify this and did not do so, despite efforts made by the Respondent to suggest ways in which this could be done. Had she done so we are satisfied that her return to work would have been agreed. We do not find that the performance issues played any part in the decision to dismiss. We reiterate our conclusion that had the Claimant resigned from her employment with the Trust, we are satisfied that her employment would have continued. In view of our finding that the Claimant's conduct justified a summary dismissal, the delay in the procedures operated to her ultimate advantage particularly as she was eventually paid in full for that period. In addition it is clear that the delay was not caused entirely by the respondent and that it was to some extent due to the availability of the Claimant's representatives.

8.5 We conclude that the summary dismissal of the Claimant was within the range of responses open to a reasonable employer in the light of the Claimant's continued refusal to abide by the terms of her contract and to comply with the reasonable instruction of the Respondent that she resign from her employment with the Trust. The Respondent did not act in breach of contract in dismissing the Claimant without notice since the Claimant's conduct amounted to a fundamental breach of contract justifying summary dismissal".

The decision of the EAT

The EAT upheld the finding of the Tribunal. The EAT held:

"19. The terms of the agreement make it plain that it is obligatory for the employee to seek to obtain permission prior to undertaking the work. If that is not done then there can be no obligation on the employer to go through clause 10.3. That is what the Tribunal say in the supplementary letter, was its conclusion on this matter. If that is right then the criticisms about failing to comply with the appropriate procedures all fall by the wayside.

21. Of course we recognise here that she had already undertaken this job prior to getting an appointment, but that, it seems to us, cannot assist her. It simply means that she should have made that disclosure at an earlier stage. It may well be that she would never have got the employment had the University known of the nature of her obligation".

I do not propose to set out the EAT's detailed reasoning at greater length save to refer to their acceptance of the Tribunal's finding, in a supplementary letter:

"The terms of the agreement make it plain that it is obligatory for the employee to seek to obtain permission prior to undertaking the work. If that is not done then there can be no obligation on the employer to go through clause 10.3"

14. The EAT also dealt with the procedural complaints. They accepted that the Tribunal were entitled to find that the University's principal concern was with the work being carried out for the Trust. "It would have been inconsistent with a finding of dismissal for incompetence to have given her the opportunity to give up the potentially competing or conflicting work in that way" (paragraph 32). The Tribunal had been entitled to find that Professor Cassidy's "intemperate" memorandum had not influenced the decision to dismiss. Professor Crook had been entitled to conduct the disciplinary hearing. The EAT concluded:

"There was a further disciplinary hearing before the Vice Chancellor made his decision and, even at the last moment, the whole question of dismissal could have been avoided had the Appellant been willing to give up her employment with the Trust. The key complaint she had was that the employers ought not to have considered that it was a conflict appearing within the terms of rule 3.10 so as to justify preventing her from undertaking this work. It does not seem to us that the decision of Ms Crook, subject as it was to the further consideration of the Vice Chancellor after a disciplinary hearing and then yet further appeal with another right to make representations, is such as to render the procedures here unfair".

Conclusions

15. I have set out the Tribunal's findings at length so that their findings and reasoning can emerge. The appellant's complaints have been carefully considered by the Tribunal and, upon allegations of error of law, by the EAT. I agree with the EAT's reasoning. I agree with the EAT that no error of law by the Tribunal has been established. The court has been referred to the documents before the Tribunal and I agree with the EAT that the Tribunal were entitled to make the findings of fact they did. Both Tribunals have been entitled to construe the contract of employment as they did. The work for the Trust did not come within the Clause 10.2 exceptions. The Tribunals were entitled to conclude that the dismissal was not wrongful or unfair, and for the reasons they give. The appellant's lack of frankness about her other employment and her continued insistence on proceeding with it deprive her case of merit.
16. As to the procedural complaints, the Tribunals have been entitled to place emphasis on the appellant's continuing refusal to adapt or to modify her external work, in spite of suggestions made and assistance offered. The complaints, including the late disclosure of the "intemperate" memorandum, do not invalidate the decision to dismiss which is soundly based on the terms of the contract and the findings of fact. The appellant's breach of contract, as found, and her insistence throughout a prolonged disciplinary procedure, with several stages, upon an alleged right to continue with the external employment as before, precludes success on the basis of such procedural failures as occurred.
17. I would dismiss the appeal.

Lord Justice Sedley :
 


18. Dr Guernina entered into a contract of employment with Thames Valley University which she was unable to fulfil because she had a conflicting contractual obligation on one day of her working week. When she declined to resolve this conflict in favour of the University she put herself, if she was not already, in fundamental breach of her contract with them. This much seems to me, as it does to Lord Justice Pill, to be plain.
19. What I have found more troubling is the employment tribunal's holding that Dr Guernina's dismissal was not only lawful but fair. The receipt by the three principal actors in her dismissal – Professors Crispin, Crooke and Garrod – of a very damaging memorandum detailing a series of alleged deficiencies in Dr Guernina's teaching performance (a document of which she had no knowledge until the tribunal proceedings) might have been considered sufficiently prejudicial to render the disciplinary hearing unfair.
20. This issue, moreover, is not directly addressed by the employment tribunal. They do not even list it among the possible criticisms of the disciplinary process. But I think there is a reason for this. At the end of §7.25 the tribunal find that Professor Cassidy's memorandum "was not influential on the outcome of the [disciplinary] proceedings", and in §8.4 they give the reason: "We do not find that the performance issues played any part in the decision to dismiss." By way of corroboration they go on to find that if Dr Guernina had resigned from her conflicting appointment she would not have lost her job with the University.
21. I therefore agree that this appeal fails. The University would nevertheless be wise to take note of the potentially corrosive effect of a memorandum such as that of Professor Cassidy on a disciplinary process which needs to be free of extraneous influence.

Lord Justice Lawrence Collins :

22. I agree with both judgments.