United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 1005_95_2604

Appeal No. EAT/1005/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 26th April 1996

THE HONOURABLE MR JUSTICE MUMMERY (P)

MS S R CORBY

MISS C HOLROYD

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MR J JAGANNATH          APPELLANT

EPSOM HEALTHCARE NHS TRUST          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised


 


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APPEARANCES

For the Appellant MRS HENDY

(E.L.A.A.S.)


 


MR JUSTICE MUMMERY (PRESIDENT): This the preliminary hearing of the appeal by Mr Jagannath against the decision of the Industrial Tribunal held at London (South) on 24th May 1995.

The tribunal heard a claim of unfair dismissal brought by Mr Jagannath, who had been employed by the Epsom Healthcare Trust as a charge nurse.

In the extended reasons sent to the parties on 8th September 1995, the tribunal explained their unanimous decision that Mr Jagannath was not unfairly dismissed. Mr Jagannath had been represented at that hearing by Mr Scivier, his UNISON representative. Mr Jagannath appealed by a Notice of Appeal dated 7th August 1995. It had been served by him after he had received the summary reasons for dismissal of his claim. We now have the extended reasons.

On the preliminary hearing we have to decide whether the Notice of Appeal, which states two grounds, reveals an arguable question of law. If it does not, then there is no point in the appeal proceeding, because this tribunal in jurisdiction is limited to appeals on questions of law. There is no appeal on questions of fact.

On the preliminary hearing, Mrs Hendy, of the ELAAS scheme, presented Mr Jagannath's points. We are indebted to her for her help in highlighting the aspects of the case with which Mr Jagannath is dissatisfied.

The tribunal found that the reason for Mr Jagannath's dismissal was the belief, on the part of the management of the Epsom Healthcare Trust, that Mr Jagannath had abused his responsibility as a charge nurse, in allowing a secondary employment of his to conflict with his employee responsibilities with them. That that was a reason within Section 57(2) of the Employment Protection (Consolidation) Act 1978. They went on, correctly in our view, to consider the criteria in Section 57(3) of the same Act, to determine whether the Healthcare Trust had acted reasonably in all the circumstances in treating Mr Jagannath's conduct as sufficient reason for the dismissal. The tribunal's conclusion was that the Healthcare Trust had made all the appropriate enquiries about the allegations against Mr Jagannath, and reached a set of facts which it reasonably believed it could properly rely on. They found nothing in the evidence before them, which led them to the view that the Healthcare Trust had acted unreasonably. It was for those reasons that the claim was dismissed.

Two main points have been raised on the appeal. The first point was that the disciplinary process was flawed. Mrs Hendy has referred us to the provisions of the disciplinary procedure. That contains two matters relevant to the first ground of appeal. The first is paragraph 8, heading "Consultation", that provides:

"The Manager will, if a final warning or dismissal is contemplated, consult both his/her own superior and the Director of Personnel before taking action."

Paragraph 11.2.8 deals with the composition of the appeals panel that hears appeals against final warnings and dismissals. That provides:

"No person shall serve on an appeals panel who has been personally involved in the events leading up to the disciplinary action which is the subject of the appeal."

The relevance of those provisions is that there was a disciplinary hearing. That took place on 26th July and resulted in Mr Jagannath's dismissal. Mr Jagannath appealed. There was an appeal hearing on 12th September and a reconvened meeting on 4th November. The point made by Mrs Hendy is that one of the members of the appeal panel was the Director of Nursing Services, Mrs M Soo. She was one of the persons consulted by the manager before the decision to dismiss was made under the consultation procedure in paragraph 8. It was submitted, there had been a breach of the disciplinary code, because Mrs Soo had been personally involved in the events leading up to the dismissal, which was the subject of the appeal. Yet she served on the appeals panel.

We have examined this point in the light of the tribunal's views in their decision. This same point was taken by the UNISON representative at the hearing, and is dealt with in paragraph 11 as follows:

"11. The second category of submission for the Applicant related to the management personnel who were involved in the disciplinary process, and to the alleged intimidation of the applicant's witnesses. The actual dismissal had been by Mrs Everett; she had failed to consult "both her own superior and the Director of Personnel" before taking "the dismissal action", in breach of the Respondent's Disciplinary Procedures. She had thus failed to follow the Respondent's own procedures. At the appeal hearing, a Mrs Soo had been on the panel; she had been consulted during the earlier disciplinary process, and should not have been there as this was contrary to the disciplinary rule that no person on the appeal panel should have been personally involved in the events leading up to the disciplinary action."

They dealt with the matter of intimidation (which we shall return to). They referred to a further submission about the procedures in paragraph 13. They say this:

"13. As to procedures it has been submitted that the Respondent had complied with its own rules in a common sense way, and that the management has acted fully and reasonably in all the circumstances. Mr Scivier's specific complaints had been dealt with at the time; the consultation was a guide within the framework of the procedures, and did not relate to the hearing itself; and the fact that Mrs Soo had been informed and even consulted did not amount to `involvement' in any common sense meaning of the rule."

The tribunal finally said in paragraph 20 that they were satisfied that the procedures at the disciplinary and appeal hearings had been adequately followed, and that the evidence and submissions of the applicant had not revealed any material failure or any denial to the applicant properly to present his case.

In our view, there was no error of law in the tribunal's conclusion. It was open to them on the evidence and on the proper interpretation of 11.2.8 to conclude that Mrs Soo had not been personally involved. We emphasise `personally' involved in the events leading up to the dismissal which was the subject of the appeal. The tribunal were entitled to conclude that there had been an adequate adherence to the disciplinary and appeal hearings, and that the dismissal was not unfair on procedural grounds. We appreciate Mrs Hendy's argument about the mandatory nature of the provisions, but, for the reasons given by the tribunal, there has been no breach of them such as to make the dismissal procedurally unfair.

The other point in the Notice of Appeal is shorter. The tribunal denied Mr Jagannath's request for a witness order. It was submitted that he was consequently denied the opportunity for witnesses to be questioned and to give evidence of their knowledge of the facts.

On this aspect of the case, we have been shown some correspondence. We have been shown a letter written on 2nd November 1994 from the Carshalton Branch of GMB to Mr Scivier, the union representative for Mr Jagannath at the Industrial Tribunal. That referred to the fact that members of GMB had been handed redundancy notices. They were obviously concerned about that. It was alleged that they had been told that, if they came as witnesses for Mr Jagannath, they would be in a big problem. That is the point on intimidation raised before the tribunal. The tribunal said in paragraph 11 that Mr Scivier had referred the tribunal to evidence given by Mr Damree. He gave evidence for Mr Jagannath. That evidence was that he had heard concern expressed by his colleagues about the position they found themselves in with possible impending redundancies, if there was to be a ward closure. The tribunal came to the conclusion in paragraph 20:

"In our view the suggestion of witness intimidation has not been borne out in the evidence."

There can be no question of law on that conclusion. That is a conclusion of fact on the evidence that the tribunal heard about that allegation. This is connected with complaint of a refusal of witness orders. On this we have been shown the decision letter of the Chairman of the tribunal, dated 26th April 1995, which gave the reasons for refusing to make the witness orders.

We are unable to find any arguable question of law on that point. Witness orders can only be made in respect of named persons. This is clear from Rule 4(2) of the Industrial Tribunal Rules of Procedure. It is a matter of discretion in the particular case whether the tribunal should make a witness order or not. We are unable to find any legal error in the reasoning of the Chairman in the decision letter of 26th April 1995. In those circumstances, we refuse to allow the appeal to proceed on that ground.

For all those reasons we have reached the conclusion that, although Mr Jagannath is obviously disappointed by the decision of the Industrial Tribunal, there is no reasonable arguable question of law raised on the appeal which would justify this matter proceeding to a full hearing. The appeal is dismissed.