United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR G ARMSTRONG (of Counsel) J Mundy & Co Solicitors Spicers House Croydon Surrey CR9 1AN
For the Respondents	MR T KEMPSTER (of Counsel) Easton Kinch & Bailey Solicitors 381 Ewell Road Tolworth Surrey KY6 7DF


 


JUDGE COLIN SMITH QC: This is an appeal by Mr Kreshnaden Ramanah against a decision of an Industrial Tribunal held at London (South) over a number of days in February and March 1996 when the Industrial Tribunal held that the appellant's complaints of unfair dismissal and racial discrimination against his employers should be dismissed. Extended reasons for the decision were sent to the parties on or about 29th March 1996. No appeal is made before us against the finding of dismissal of the complaint of racial discrimination.

As appears from the findings of the Industrial Tribunal, the appellant's employment as a lecturer and nursing tutor at the Wealden College with the respondent Health Authority was summarily terminated on 30th June 1993 by the Principal of the College, Mr Rowan, in consequence of findings which he made after conducting an investigation and holding a disciplinary hearing for three days during June 1993, that the appellant had been guilty of professional misconduct and sexual harassment in dealings with female student nurses in the March 1990 class at the College. Thereafter the appellant exercised his right of appeal against that decision, and a hearing of the appeal ultimately took place in March 1994, before an appeal committee consisting of three members of the East Surrey Health Authority, under the Chairmanship of Mrs Horsfall, which in its turn unanimously concluded that the appellant had been guilty of gross misconduct under the respondent's disciplinary procedure, and accordingly the Committee dismissed his appeal.

It is apparent from the decision of the Industrial Tribunal, taking the matter generally, that the burden of the appellant's case before the Industrial Tribunal was that there were substantial defects in the disciplinary procedure relating to the investigation and hearing at first instance before Mr Rowan, and also in relation to the appeal hearing. With regards to the hearing before Mr Rowan, as appears from the decision of the Industrial Tribunal, it was submitted that Mr Rowan had not looked sufficiently carefully into the question whether there might be some kind of conspiracy against the appellant; that he had not sufficiently taken into account the delay in the preferment of the complaints against the appellant; that he had insufficiently investigated the matter; that he had talked to certain management witnesses before the hearing before him; and that witnesses had been allowed to speak to one another outside the room where the hearing took place. In addition it appears that criticism was made of the fact that the personnel files (or course notes) relating to the students who had made complaints, were not either considered by Mr Rowan during the investigation or the hearing, or sufficiently disclosed to the appellant or his representatives.

Looking at the totality of the Industrial Tribunal decision, in our judgment, all these criticisms were dealt with and rejected by the Industrial Tribunal. The Industrial Tribunal expressly found, looking at the totality of its decision, that Mr Rowan had conducted a fair hearing; that he had acted fairly and thoroughly throughout, and "with great judicial clarity" as the Industrial Tribunal put it. The Industrial Tribunal accepted that he had properly considered and reasonably rejected both the possibility of a conspiracy against the appellant, and the argument that the delay in complaining in any way undermined the veracity of the complaints made. At paragraph 24 of its decision the Industrial Tribunal specifically rejected the criticisms made of Mr Rowan with regard to his having talked to witnesses and with regard to the witnesses talking amongst themselves. Thus in paragraph 36 of this decision the Industrial Tribunal held that the investigation before Mr Rowan was thorough and sufficient for the purposes at hand, and that the hearing before him was fair. They held that Mr Rowan had carried out his duties with diligence, insight and good judgment. With regard to the submission that there had been non-disclosure of course notes, the Industrial Tribunal found as a fact that this was no more than peripheral to the hearing and by inference that it was productive of no prejudice to the appellant. By its reasoning in the remainder of that paragraph, the Industrial Tribunal considered and rejected a number of other criticisms levelled at the fairness of the hearing before Mr Rowan.

We consider it important to note that in paragraph 21 of its decision, the Industrial Tribunal took care to rehearse the evidence given by Mr Rowan, expanding upon his finding of professional misconduct, and the distinction which he made between relationships outside work on the one hand, and the effect of those personal relationships on the professional relationship between nursing tutor and student nurse on the other. Mr Rowan particularised particular actions on the part of the appellant which judged by those standards he regarded as gross misconduct. Mr Rowan took the view that those actions on the part of the appellant amounted to gross misconduct since they compromised the appellant's relationship with his pupils and the confidence of the College to hold itself out as an objective examining body. It is plain both from paragraph 21 and their findings of fact in paragraph 11 of the decision, that the Industrial Tribunal found that Mr Rowan had concluded that the most serious aspect of the allegations against the appellant with regard to professional misconduct was the charge that he would change his professional stance towards a student, adversely, if his sexual or personal advances were rejected by that student. We have already observed that the Industrial Tribunal found Mr Rowan to be, in every respect, an impressive and totally reliable witness.

Further criticisms were made before the Industrial Tribunal as to the fairness of the internal appeal hearing. Thus complaint was made that it was unfair that the appeal committee had seen the management statement of the case before the hearing of the appeal, including summaries of the evidence which ten witnesses called by management had given before Mr Rowan, despite the fact that management were only intending to call three live witnesses on the appeal. Next, a complaint was made that the appeal committee acted unfairly on 30th March 1994 in, in effect, refusing an adjournment to the appellant in order that he could call witnesses who were not then available. The submission was made that the effect of the appeal committee's decision to allow management to limit the calling of witnesses to three, was to render the appeal hearing unsatisfactory and unfair, because it became a hybrid form of hearing comprising partly a review and partly a rehearing.

The Industrial Tribunal accepted in paragraph 25 of its decision that the fact that the appeal hearing was partial rehearing and partial review was an unsatisfactory compromise, but they held that it was not fatal to the overall fairness of the hearing on appeal. By paragraph 37 of the decision the Industrial Tribunal specifically decided that the appeal met the standards which the Industrial Tribunal required of an employer, and concluded that it was the appellant's fault that he had not got his case in order by a date nine months after the dismissal.

It was in those circumstances that the Industrial Tribunal concluded by reference to the statutory test in section 57(3) that the dismissal of the appellant was for misconduct and was fair in all the circumstances.

We have felt it right to set out the above in some little detail because we consider it important that the specific issues raised on the appeal before us by way of criticism of the Industrial Tribunal's decision should be seen in the context of the overall effect of the decision of the Industrial Tribunal. Further we consider it appropriate and necessary as a matter of law that we should confine our decision to consideration of the particular respects in which it is alleged that the Industrial Tribunal erred in law. In particular, while we have of course considered the very voluminous documentation placed in front of us relating to this appeal, we have only given detailed consideration of this documentation to the extent that it bears upon the particular issues raised by this appeal. Counsel on both sides have greatly helped us in the way they have presented their arguments on each side.

In essence the appellant relied upon the following grounds of appeal:

1. (a) That the Industrial Tribunal erred in holding that there was no duty of disclosure of student course notes in relation to those who gave evidence complaining of the appellant's conduct; and/or

(b) that the Industrial Tribunal erred in holding that there was no obligation on the principal Mr Rowan to consider such notes before deciding to dismiss the appellant and/or

(c) that the Industrial Tribunal erred in holding the hearing to be fair despite the appellant's lack of opportunity to cross-examine on such notes.

2. (a) That the Industrial Tribunal erred in holding the appeal hearing to be fair, despite the fact that the appeal committee had been given a summary of the statements of ten witnesses when only three were called; and

(b) that the Industrial Tribunal erred in holding that the appeal hearing to be fair, when the appeal committee refused an adjournment to allow the appellant to call witnesses, so that, it was submitted, the appellant was precluded from calling witness, and thus the appeal committee failed to hear relevant testimony.

3. That the Industrial Tribunal erred in holding the appeal hearing to fair, despite the fact that the appeal committee failed to consider the material in the students notes; and failed to consider the background material to the allegations in order to seek whether there were reasons why they might not be true.

4. That the Industrial Tribunal erred in holding that the dismissal was a fair sanction, where the complaints were made two years after the acts complained of and did not relate to the appellant's abilities as a teacher.

That is a summary of the submissions made.

Those submissions were developed at length by the Counsel for the appellant, Mr Armstrong, before us, as they were before the Industrial Tribunal in many pages of written submissions.

Before looking rather more closely at these specific submissions, which were made to us, we consider it important to remind ourselves that we are only concerned with whether there is any error of law on the part of the Industrial Tribunal. We were rightly reminded by Counsel for the respondents of the passage in the House of Lords decision in Melon and Others v Hector Power Ltd [1981] ICR 43 at page 48:

" It is common ground that the appeal from the industrial tribunal to the Employment Appeal Tribunal and thence to the courts is open only on a question of law. The appellate tribunals are therefore only entitled to interfere with the decision of the industrial tribunal if the appellants can succeed in showing, as they seek to do, that it has either misdirected itself in law or reached a decision which no reasonable tribunal, directing itself properly on the law, could have reached (or that it has gone fundamentally wrong in certain other respects none of which is here alleged). The fact that the appellate tribunal would have reached a different conclusion on the facts is not a sufficient ground for allowing an appeal."

So it is plain from that, and of course trite law, that unless the Industrial Tribunal has misdirected itself in law or reached a perverse decision, we, the appellate tribunal, cannot interfere.

Next, in our judgment, it is plain from a fair reading of the Industrial Tribunal's decision here that the Industrial Tribunal directed itself entirely correctly with regard to the applicable law, that much is apparent from paragraphs 2(i) and 2(ii) of the decision. In paragraph 2(ii) in particular, the Industrial Tribunal correctly direct themselves in substance with regard to the well-known test in British Homes Stores Ltd v Burchell and specifically by reference to section 57(3) of 1978 Act. It is also apparent that the Industrial Tribunal, over a hearing which took several days, paid regard to the very lengthy and detailed submissions which were made to them, and it is further beyond argument that there was evidence before them upon which they were entitled to reach the findings that they did.

The next principle which we regard as relevant, is the well-established principle that whilst an employer must comply with the British Home Stores v Burchell test, as helpfully amplified by the President in ILEA v Gravett [1988] IRLR 497 at paragraphs 14-17 of the judgment at page 499, it is clearly established that the duties and responsibilities of an employer in investigating an allegation of serious misconduct on the part of an employee, although onerous, are quite different in degree and kind from those which fall upon the CPS or some other prosecuting authority relating to a criminal trial where, for example, much more exhaustive duties lie, especially, but not exclusively, with regard to such matters as the disclosure of unused material which might possibly help a defendant in a criminal case.

Thirdly, and again in our judgment importantly, we have been reminded of the important principle laid down in the Court of Appeal in Westminster City Council v Cabaj [1996] IRLR 399, that whilst an employee is entitled to have an internal appeal decided in accordance with the contractual disciplinary procedure, nevertheless, even where this is not properly observed, it is still for the Industrial Tribunal to decide by application of section 57(3) whether any failure in an internal appeal procedure has rendered the appellate process defective, in the sense that it could or should have demonstrated a flaw in the decision at first instance in the internal procedure of the employer, or in some other way amounted to an unfair appeal hearing.

In our judgment, it is essentially against that backcloth, that the submissions made to us fall to be considered.

The first submission related to the student notes of the complainants. It was submitted that there was material in those notes that might have supported a contention that some of the complainants had reason to dislike the appellant, or which tended to show that factual allegations of complaint might not be correct, or of proving an improper motive which could have caused the complaints to have been fabricated, or of showing the complainants to be unreliable. But, in our judgment, it is apparent that the Industrial Tribunal considered and rejected this very argument. It specifically found in paragraph 36 that the investigation of Mr Rowan was thorough and sufficient, and it made a specific finding that the non-disclosure of certain matters could not be regarded as other than peripheral. It is in fact clear from the evidence presented to the Industrial Tribunal that the course notes were available, at both the internal hearing before Mr Rowan at first instance, and before the appeal committee, and indeed that the appellant did not ask for them to be looked at. It is plain from paragraph 19 of the Industrial Tribunal decision that the appellant's representative was able fully to develop the conspiracy allegation and the allegation of improper motive in cross-examination of the witnesses called in front of Mr Rowan. The Industrial Tribunal found that the appellant's representative had conceded that management had given him a fair and reasonable opportunity to put the appellant's side of the case. Further the Industrial Tribunal accepted Mr Rowan's evidence in paragraph 21 that he had carefully considered and rejected the conspiracy theory for what the Industrial Tribunal plainly found to be good reasons.

In our judgment, the Industrial Tribunal were fully entitled to conclude, on the issues of overall fairness, that there was no duty on the respondents either to consider or disclose the contents of the students' notes and were amply justified in concluding that that did not detract in anyway from the overall fairness of the procedure or of the decision to dismiss. We should say at this stage that in our judgment, exactly the same reasoning and conclusion applies to submission 3 relating to the use of the students' notes at the appeal hearing, so that we do not deal with that matter separately, we simply repeat what we have already found in relation to the submission relating to those notes with regard to the investigation by and the hearing before Mr Rowan.

We turn to consider the second main submission which is divided into two separate heads. The first heading is that the appeal committee acted in breach of the disciplinary procedure in refusing to allow the appellant to call witnesses before them, and thereby impeded the appellant from obtaining a fair hearing before the appeal committee. In our judgment, although the matter is not entirely clear, on a fair interpretation of Rule 4 of the procedure, the appeal committee did have a discretion as to whether to allow the appellant to call witnesses if there had been a failure, as there had been in this particular case, on the part of the appellant to comply with paragraph 4.4. In our judgment it is clear that the obligation to exchange written statements of the case and to send such cases to the appeal committee not later than seven days before the appeal hearing, includes an obligation to serve a list of witnesses to be called at the same time. It is plain that the appellant and his advisers had lamentably failed to comply with this requirement. The appeal committee found that the management papers had been available to the appellant since the previous Autumn, and in those circumstances they were entitled, in our judgment, as a matter of contract, to refuse to allow the appellant to call witnesses, a list of which was produced at the very last moment on the day of the hearing. However that may be, in our judgment even if the appeal committee did act in manner contrary to the contractual obligations to be found in the appeal procedure, in our judgment it is apparent that the Industrial Tribunal took into account the position with regard to the overall fairness of the appeal hearing, and were fully entitled to conclude as they did, that in all the circumstances that the appeal haring was fair, and that such inability as there was for the appellant to call witnesses did not in anyway impede the appellant's case before the appeal hearing, or in any way prejudice the appellant.

In this regard, the appellant wished to call witnesses in two categories, namely:

(1) Mr Meldon-Smith, his previous representative, to say that he had observed witnesses talking to one another after they had given evidence before Mr Rowan. With regard to this category of evidence, the Industrial Tribunal specifically found that what they described as "any chat outside" did not effect the fairness of the hearing before Mr Rowan.

(2) The second category of witnesses related to the witnesses who had given evidence before Mr Rowan on behalf of the appellant, and whose evidence had in any event been summarised by him in the management case, which was before the appeal committee. In our judgment this evidence, in the main, either went to character, which was not in dispute, or to the fact that the appellant did not misconduct himself toward the student witnesses who had given such statements, and to the fact that no complaints were made at the time. It is plain from the findings of the Industrial Tribunal that the hitherto good character of the appellant was not in dispute nor was the fact of the delay, nor was the fact that no complaints were made at the time.

In our judgment, here again, the Industrial Tribunal were amply justified in concluding as they did in paragraph 37 of the hearing, that the appeal was in substance a fair hearing and that the denial of further witnesses did not affect the fairness of the hearing or work any prejudice to the appellant. We adopt as correct the submission made to us at paragraph 3.8 of Counsel for the respondents skeleton argument. Accordingly, this ground of appeal is rejected.

The second limb of this submission relating to the appeal hearing is founded on the proposition that although management had a discretion as to which witnesses to call at the appeal hearing, it was not entitled to include in its case before the appeal committee written statements of other witnesses, nor was the appeal committee entitled to pay regard to them, since this would or might have the effect that the appeal committee would or might give weight to written statements to support the evidence given by live witnesses without giving the appellant the opportunity to cross-examine such witnesses.

On consideration of Rule 4, although once again we do not find the contractual position straightforward, on balance we do not consider that there is any limitation on management relying upon written statements, rather than calling live witnesses at the appeal hearing. In our judgment there is no contractual objection to the internal appeal proceeding partly by way of review and partly by way of a rehearing.

However, if we are wrong about that, in our judgment it matters not since here again the Industrial Tribunal dealt specifically with the substance of the point with regard to fairness, and concluded:

(a) that the fact that the appeal was in part a review and in part a rehearing was not fatal but simply rather less than satisfactory (see paragraph 25 of the decision); and

(b) by paragraph 37 of its decision, the Industrial Tribunal specifically held that the appeal hearing, judged by standards of fairness, matched up to the standards which the Industrial Tribunal as the industrial jury, would expect in all the circumstances.

The Industrial Tribunal had evidence before them from Mr Dunham a member of the appeal committee, from which they were entitled to infer that the appeal committee appreciated the different weight to be given to written statements on the one hand and live evidence on the other. Accordingly we must reject this ground of appeal.

Finally, we deal with the submission that the Industrial Tribunal erred in deciding that the respondents acted reasonably in imposing the sanction of dismissal. It is plain, in our judgment, that the Industrial Tribunal took care to obtain precise elaboration from Mr Rowan as to why the employers regarded the appellant's conduct to be gross misconduct, and it is apparent that they were impressed by the reasoning and fairness of Mr Rowan's approach. In our judgment the Industrial Tribunal were fully justified in concluding that the respondents acted within the range of reasonable responses of an employer in the position of the Health Authority, in deciding that the type of conduct which they found the respondents reasonably believed to have been committed by the appellant, amounted to gross misconduct, and thereby imposing the sanction of dismissal.

Accordingly for those reasons this appeal must be dismissed.

Legal Aid taxation for the appellant granted.