United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C SHELDON (Of Counsel) Messrs Easton Kinch & Bailey Solicitors 381 Ewell Road Tolworth Surrey KT6 7DF


 


MR JUSTICE LINDSAY: We have before us a Preliminary hearing in the matter of Mr S Perampalam against the Riverside Mental Health Trust. Mr Perampalam appeals against the decision of the Industrial Tribunal sitting at London (South) under the Chairmanship of Mr D N Milton, given on 29 July 1996 after a hearing on 8 and 9 July. The majority decision of the Industrial Tribunal was that Mr Perampalam was fairly dismissed and his claim failed. There was an unusual order specially made in relation to costs which is not part of this appeal.

We need say only a little as to the background. Mr Perampalam was a nursing assistant Grade B, who was employed at the Respondent's Mental Hospital from 1986 until November 1993. He worked in a ward called Addison Ward which had twenty-two patients. The Respondent's case against him was that a Nurse Mayhew - who had only some six days before this event arrived at the Hospital - during evening medication rounds on 15 September claimed to have seen Mr Perampalam hitting a patient on the back of the head or neck. She did not report the matter immediately, not until a little later, and then a Mr Thompson, Investigating Officer on behalf of the Respondent, was brought in to investigate matters and then began what seems to us a very full disciplinary process.

First of all there was a disciplinary hearing that took place on 8 and 9 November. The Applicant was represented there by a Trade Union representative. Oral evidence was heard from a number of people. After an adjournment following that, the person who had conducted it, a Mrs Burgon, was satisfied that Mr Perampalam had committed the conduct alleged and that there was gross misconduct which would result in dismissal. Against that result there was an appeal by Mr Perampalam and he was represented on this occasion again by a Trade Union representative. A first stage was that Ms Burgon was invited to conduct a review rather than an appeal.

There was a reconvened disciplinary hearing in late July. That again heard oral evidence. Then there was a final appeal hearing in November before a three-person appeal panel. That was adjourned until December 1994 and that, in the view of the Industrial Tribunal, amounted to an effective re-hearing of the case for and against. The Industrial Tribunal held at that stage there was a very thorough and cogently argued case on behalf of Mr Perampalam.

That was the procedural background and it led to Mr Perampalam's dismissal. The Industrial Tribunal, having set out that, then turned to the British Home Stores v Burchell test, which it found to be satisfied. It asked the right questions in the right order and came to conclusions on each of them. It first of all held by a majority that there had been an exhaustive investigation. Next it held that the Respondent's believed in the guilt of the Applicant in relation to the misconduct that had been put against him. So far as concerns reasonable grounds for that belief, the Industrial Tribunal accepted that the reasons were detailed and comprehensive and eminently reasonable.

The Industrial Tribunal said at paragraph 17 of their Extended Reasons:

"... The majority of the Tribunal find that the decision of Miss Burgon and the appeal panel was a decision which any reasonable employer was entitled to reach on the evidence at that stage."

The Industrial Tribunal moved on to discuss whether dismissal in the events which had happened was within the range of reasonable responses open to an employer and held that it was and so, on the face of things, they asked the right questions in the right order and came to a conclusion.

What is said on behalf of Mr Perampalam by Mr Sheldon before us this morning is that there were a number of procedural irregularities sufficient to permit or require the matter to go to a full hearing. There was indeed a gap, albeit only a small one, between the events that happened and the very first full investigation of them. But there is nothing to suggest from the way that the matter was presented below that the gap was sufficient or so long such that, even by the time of the first investigation, memories had begun to fade or to be confused. At a relatively early stage Mr Perampalam was told that complaint had been made and it is that event that most fixes the need to remember and to concentrate on events.

We see no suggestion in the papers before us that there was any sufficient procedural irregularity or delay to lead to any doubt as to the Industrial Tribunal's conclusions that there had indeed been an exhaustive investigation.

Next Mr Sheldon moves to a case said to be in "perversity". We have no need to stress what a very severe burden an argument in perversity puts upon a prospective Appellant. But here matters seem to have been gone into both at the disciplinary level and at the Industrial Tribunal level in great detail and if it is said, as it is, that no reasonable Industrial Tribunal could have come to the conclusion it did, that is a very severe burden and not one which, on the material before us, we feel able to describe as satisfied.

Nothing can be clearer than that in this Employment Appeal Tribunal we deal only with errors of law. Perversity is, of course, an error of law when it is sufficiently demonstrated. But here we see no error of law in the result of which the majority arrived and accordingly we dismiss the appeal.