United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR TUDOR WILLIAMS Solicitor Messrs Tudor Williams & Co Solicitors 27 Chester Street Wrexham LL13 8 BE
For the Respondents	MISS AMANDA EILLEDGE (of Counsel) Messrs Allington Hughes Solicitors 10 Grosvenor Road Wrexham LL11 1SD


 


JUDGE C SMITH QC: This is an interlocutory appeal by the Appellant, Mrs Williams, who was dismissed on 26 January 1996 from her employment as a radiographer at the Respondents' hospital in Wrexham, arising out of an alleged breach by her of the disciplinary code regarding patient confidentiality, which the Respondents decided amounted to gross misconduct.

The Appellant complains that she has been unfairly dismissed and she claims compensation accordingly. Whilst she may admit that there was a breach of the rules relating to confidentiality, she strongly denies gross misconduct and says that the sanction of dismissal was wholly unreasonable.

We should say straight away that we are in no way whatsoever concerned with the merits or otherwise of the Respondents' decision to dismiss the Appellant and nothing we say in regard in regard to this appeal should be regarded as relevant in any way to that issue, which will have to be decided by the Industrial Tribunal in due course.

We are exclusively concerned with the issues arising out of a ruling by the Chairman of the Industrial Tribunal sitting at Shrewsbury on 23 August 1996 whereby he ruled that discovery of the Respondents' file and other documents relating to the steps taken by the Respondents arising from an allegation that in April 1996 (i.e., after the incident involving the Appellant) a nursing officer was inebriated whilst on duty in the hospital should not be disclosed to the Appellant. By his ruling, the Chairman decided that the documents relating to the nursing officer's case would and could not assist the Appellant to establish her case in any way and, additionally, that publicity in regard to that matter could adversely affect the nursing officer. Accordingly, he concluded that discovery of such documents was not necessary for the fair disposal of the issues between the Appellant and the Respondent Trust. In so doing he set aside the previous order of the Industrial Tribunal made on 11 July 1996, having heard argument on both sides by solicitors representing both sides.

In reaching his decision the Chairman took into account the fact that the allegations of alleged misconduct against the two employees were quite dissimilar from one another, one involving an allegation of drunkenness, the other a breach of confidentiality. He also took into account, as was the position before him, of the fact that at that time no disciplinary investigation, let alone any disciplinary action, had yet taken place in regard to the nursing officer because she was absent from work on medical grounds whilst suspended from duty and not fit to undergo the disciplinary procedure at that time.

In fact, we are told - we have been properly told by the solicitor and Counsel appearing before us today - that the position now is that the nursing officer was ultimately given a final warning in November 1996 arising out of the allegation of misconduct in April 1996 but that, unhappily, the conduct of inebriation was repeated with the result that this nursing officer has, we are told, been dismissed in December 1996.

We have to consider whether the Chairman's decision was correct and we consider it right that we should take into account the additional facts that I have just mentioned in reviewing his discretion as a matter of commonsense.

In our judgment, having heard the helpful submissions on each side, the crucial enquiry here is whether, on consideration of the authorities relating to disparity of treatment or inconsistency, there is any way in which the documents relating to the nursing officer could or might advance the case of the Appellant on the issues in her case or damage that of the Respondent Trust. If so, discovery should be ordered; if not, it should not be ordered, in our judgment. It would have to be ordered irrespective of the point that the documents were confidential if it were truly a case where it might assist the Appellant's case or damage that of the Respondent Trust.

Accordingly, we have carefully considered those authorities. In the case of the Post Office v Fennell [1981] IRLR 221, the Applicant for unfair dismissal succeeded in his complaint when he had been summarily dismissed for assaulting another employee in the canteen. The Industrial Tribunal held that the employers had not acted consistently in respect of similar acts of assaults by employees in the past and that decision was upheld by the Employment Appeal Tribunal.

In the case of Hadjioannou v Coral Casinos Limited [1981] IRLR 352, a decision of an Industrial Tribunal was upheld by the Employment Appeal Tribunal in respect of inconsistency of treatment by the employers relating to employees who had broken rule 13 of the code of conduct applying to the Casino in socializing with customers of the Casino.

There was a similar decision in Eagle Star Insurance Co Ltd v Hayward [1981] ICR 860 in the case of misuse of computer facilities where there had been similar occurrences in the past which had been differently treated.

However, in the Hadjioannou case, there is a very helpful dictum from Mr Justice Waterhouse, which we have found assists us in arriving at our decision here. In that judgment at page 355, the learned Judge, sitting of course as a Member of the Employment Appeal Tribunal with Mr Sunderland and Mr Thomas, first of all analysed in paragraph 24 the sets of circumstances in which an argument relating to disparity or inconsistency can be made and went on to issue a warning to Industrial Tribunals in paragraphs 25:

"Firstly, it may be relevant if there is evidence that employees have been led by an employer to believe that certain categories of conduct will be either overlooked, or at least will be not dealt with by the sanction of dismissal. Secondly, there may be cases in which evidence about decisions made in relation to other cases supports an inference that the purported reason stated by the employers is not the real or genuine reason for a dismissal. ... Thirdly, Mr Tabachnik concedes that evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the particular employee's conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.

25. We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that Industrial Tribunals would be wise to scrutinize arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a Tribunal may be led away from a proper consideration of the issued raised by s.57(3) of the Act of 1978. The emphasis in that section is upon the particular circumstances of the individual employee's case. It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation."

That decision and the warning given in that decision by Mr Justice Waterhouse and by the Employment Appeal Tribunal has recently been reiterated and re-emphasized by the Court of Appeal in the case of Paul v East Surrey District Health Authority [1995] IRLR 305 at page 309 where Beldam LJ said:

"I consider that all industrial tribunals would be wise to heed the warning of Waterhouse J, giving the judgment of the Employment Appeal Tribunal in Hadjioannou v Coral Casinos Ltd"

and then he cited the passage which I have just cited fro m paragraph 25.

In our judgment, the allegation here against the Appellant and the allegation against the nursing officer, are quite dissimilar types of allegation. They are in no way broadly similar and they are in no way truly parallel. They arise from quite different circumstances and they give rise to quite different considerations. Indeed, in our judgment, the only connection that they have is that it is alleged that they are both capable of amounting to gross misconduct. They have nothing else whatsoever in common. In our judgment, it really is quite clear that nothing relating to the nursing officer's case could possibly advance the case for the Appellant or damage the case of the Trust. They are wholly dissimilar allegations. They do not fall within any of the three categories referred to by Waterhouse J in paragraph 24 of the Hadjioannou decision.

With respect, in our judgment, the argument of Mr Williams, who represented the Appellant would, if it were successful, or might have the result that the Industrial Tribunal might be tempted towards a tariff approach to allegations of gross misconduct, which is wholly inappropriate in the field of employment law. The principle in employment law is nearly always that the individual circumstances of the individual allegation must be looked at and it is only in the exceptional case that questions of inconsistency or disparity arise in the light of the authorities to which we have referred above.

Accordingly, for those reasons we consider that the Chairman's decision was entirely right in relation to this interlocutory ruling, and it is only that ruling with which we are concerned, and, accordingly, this appeal on this interlocutory decision must be dismissed.