United Kingdom Employment Appeal Tribunal

BAILII case number: [1993] UKEAT 591_93_2012

Appeal No. EAT/591/93

I N T E R N A L

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 20th December 1993

Before

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS P TURNER OBE

MISS D WHITTINGHAM

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MR N P REID          APPELLANT

NEW POSSIBILITIES - NHS TRUST          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR P B ALIKER

(Of Counsel)

Messrs Paul Van Schaik & Co

59 North Hill

Colchester

Essex

CO1 1QF


 


MR JUSTICE MUMMERY (PRESIDENT): This is an appeal against a decision of the Industrial Tribunal held at Bury St Edmunds on the 2nd March 1993. The majority decision of the Tribunal was that the complaint made by Mr Reid of unfair dismissal by his employers, New Possibilities NHS Trust, should be dismissed.

The proceedings before the Tribunal were initiated by an application presented on the 2nd September 1992. Mr Reid, who had been employed by the Respondents since October 1964 complained that he had been unfairly dismissed on the 5th June 1992 following a disciplinary hearing. He made complaints about the irregularity of the disciplinary hearing. He complained that the rules and procedure were not followed, that the only evidence presented against him was from two members of the staff who had had allegations made against them, that the allegations against him were not adequately investigated and that he was not given an opportunity to discuss the allegations before he was suspended. He was not allowed, in particular, to call witnesses to support his case either at the initial hearing or on the hearing of the appeal. He also made complaints that two people involved in personnel were not impartial.

The employers put in a Notice of Appearance accepting that Mr Reid had been employed since 1964 and that in recent times he had been employed as a charge-nurse at Villa 10 at Turner Village, a National Health Service residence for people with learning difficulties. The case summarised by the employers was that Mr Reid had been dismissed following a hearing held in accordance with the Trust's disciplinary procedure. At the hearing the reasonable belief had been formed, that Mr Reid had stolen alcohol by consuming what was intended for the clients and had committed acts of cruelty to clients. The decision to dismiss Mr Reid was based on the conclusion that there had been gross misconduct on his part.

The disciplinary hearing took place on the 3rd, 4th and 5th June 1992. The decision to dismiss was made on the 5th June. That was subject to an unsuccessful appeal on the 25th August 1992.

At the hearing before the Industrial Tribunal on the 2nd March 1993 Mr Reid was represented by Counsel. The main basis on which it was alleged that he had been unfairly dismissed was that there had not been a reasonable investigation of all the facts by the disciplinary panel and therefore the legal requirements for fair dismissal in cases of suspected misconduct, as laid down in British Home Stores v. Burchell [1978] IRLR 379, had not been complied with. The particular complaint made was that Mr Reid had a number of witnesses who were ready to give evidence on his behalf, but they were not allowed to give evidence and therefore he had not had a proper opportunity to be heard or to state his case. There were a number of other allegations relating to the bona fides of the complainants, Mr Ewan Bain and a Miss Karen Spinner, and about the merits of the complaints.

The Tribunal were split. The view of the majority, against which the appeal is brought, was summarised in paragraph 9 of the decision. After noting that there were disturbing aspects of the case of public concern, that Villa 10 had been closed and that Turner Village was being run down, the majority stated:

"At the end of the day the majority is satisfied that Mrs Gerrie and her panel genuinely and reasonably believed after such inquiry as was proper and reasonable in the circumstances that the applicant was guilty of the alleged misconduct. That is why by a majority we dismiss the application."

Mr Aliker, who has presented the appeal ably on Mr Reid's behalf, rightly accepted that earlier in the decision (paragraph 6) there had been a correct statement of the legal test in British Home Stores v. Burchell. The question to be investigated was whether the employers had a reasonable belief, on reasonable grounds, after reasonable investigation, that the Applicant was guilty of the charges levelled against him. On that test it is not the duty of the disciplinary panel or of the Industrial Tribunal to decide whether Mr Reid was or was not guilty. The question is into the genuineness of the employers' belief: are there reasonable grounds for believing suspected misconduct on the part of the employee?

Mr Aliker's submission was that the employers could not, in this case, have had reasonable grounds for their belief, because the investigation had not been conducted in a reasonable and fair manner. He summarises the point in his skeleton argument as follows: that the complaints which were made about Mr Reid's conduct came from Mr Ewan Bain, who had himself been reprimanded by Mr Reid and colleagues for reporting to work apparently under the influence of drink. Mr Bain's complaints were corroborated, or purported to be corroborated, by his woman friend Miss Karen Spinner. Mr Reid had complained to Miss Jiggens, the Assistant Service Manager, about Miss Spinner's poor attitude to work. It was argued that these complaints came from people whose good faith was suspect and whose reliability was suspect. This should have been borne in mind by the disciplinary panel when deciding how to conduct the investigation.

The complaint extends to the conduct of the investigation between the 3rd and 5th June 1992. It is alleged by Mr Reid that he was refused a right to call witnesses at the disciplinary hearing. His Union representative, Mr Eaglestone, requested an adjournment, which was refused.

In those circumstances it is argued that the investigation should not be regarded in law as reasonable and proper. We were referred to two cases on this matter Whitbread & Co plc v. Mills [1988] ICR 776 and Khanum v. Mid-Glamorgan Area Health Authority [1979] ICR 40. It appears from those cases that the Industrial Tribunal, in deciding whether an investigation is reasonable and proper, should have regard to the rules of natural justice. The point is made most clear in the Khanum v. Mid-Glamorgan case at page 45 where the question is posed in a question form cited case:

"What then are the requirements of natural justice in a case of this kind? First, I think that the person accused should know the nature of the accusation made; secondly, that he should be given an opportunity to state his case; and, thirdly, of course, that the tribunal should act in good faith. I do not myself think there is anything more."

Mr Aliker submitted that in this instance Mr Reid had not been given an opportunity to state his case, because the statement of his case involved not only him giving evidence and his representative cross-examining Mr Bain when he gave evidence; it also included bringing forward his witnesses to give their evidence. Our view is that there is no rule of law on what constitutes to an opportunity to state a case. It is for the Industrial Tribunal in each case to decide as a matter of fact whether there has been a reasonable and proper investigation. The difficulty that Mr Reid has on this appeal is that the majority came to a conclusion that there had been a reasonable and proper investigation. That is stated in paragraph 9 of its decision. That is a question of fact, not law. There is no appeal against questions of fact. Mr Aliker can only elevate it into a question of law if he is able to convince us that, as a matter of law, an investigation cannot be proper or reasonable, unless there is an opportunity given to allow the person disciplined an opportunity to bring forward all the witnesses that he wishes to call relevant to the complaint against him. The law does not lay down any such requirement as to what is a reasonable and proper investigation. It is a matter of fact depending on all the circumstances of each case.

That reason alone is sufficient to dispose of this appeal. We are unable to detect a point of law on which there has been an error. This Tribunal has no jurisdiction to entertain the appeal. We also note several other points. We agree with the Tribunal that there are unsatisfactory features about this case. In particular, we are concerned to see that the disciplinary panel did not keep written records of its proceedings. This gave rise to difficulties before the Industrial Tribunal because there was, for example, a conflict of evidence about whether Mr Eaglestone, as Mr Reid's representative, asked for an adjournment for calling witnesses, or said that he was calling no evidence. The Tribunal said in paragraph 7 of their decision that they accepted the evidence of Sue Jiggens and Mrs Gerrie and that contained in certain exhibits that as a fact Mr Eaglestone said he was calling no evidence. They came to that conclusion contrary to Mr Reid's own evidence. This kind of difficulty should not have occurred. It could have been avoided if a record of the proceedings had been kept. We agree with the Tribunal's comment that the absence of such records was unsatisfactory. Nevertheless, that unsatisfactory element does not create a point of law on which there is an appeal. As we have said, in agreement with the view of the majority, this is a question of fact. It is a question on which evidence was given to the Tribunal. In particular, they noted at paragraph 8 of the decision that Mr Ewan Bain gave evidence to the Tribunal and that he was cross-examined by Counsel. The Tribunal expressed the view that they were not surprised at the view formed by Mrs Gerrie and her panel as to the grounds for believing that there had been misconduct on the part of Mr Reid, assuming that his evidence to the disciplinary panel was similar to that given to the Tribunal. That factor reinforces our view that what is really sought in this case is an appeal against fact, not from an error of law.

For those reasons the appeal will be dismissed.