United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR R EDEY (Representative)


 


JUDGE PETER CLARK: Mrs Edey, the Appellant, was employed by the Respondent from 1 September 1984 until her dismissal on 3 November 1995 as a nursing sister in the school medical centre. She lived with her husband, who has represented her throughout these proceedings, in school accommodation. As a result of the dismissal the school sought possession of that accommodation and that is the subject of separate proceedings with which we are not concerned.

Following her dismissal she presented a complaint of wrongful dismissal and unfair dismissal to the Central Office of Industrial Tribunals on 21 December 1995. That complaint came before the London North Industrial Tribunal on 5, 6 and 9 December 1996, and was dismissed for the reasons given in full on 14 January 1997. An application for a review of the substantive decision was dismissed under Rule 11(5) of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 on 7 February 1997.

Now there is an appeal against the substantive Tribunal decision on the grounds that it was unreasonable, perverse, irrational and against the weight of the evidence.

The Facts

The Tribunal was alive to the fact that different issues arose in relation to the unfair dismissal and wrongful dismissal claims.

The incident which the Respondent said led to the Appellant's dismissal occurred on 10 October 1995. It was the evidence of Mrs Hume, sister in charge of the medical centre, that on that day the Appellant became angry, called Mrs Hume a "bitch" and her fingertips came into contact with Mrs Hume's head, and that this was a deliberate act not an accident. The Appellant was suspended pending disciplinary proceedings.

On 30 October a disciplinary panel met to consider the incident. Dr Kaye, the general practitioner in charge of the medical centre was on that panel. The Appellant's version of events was that she touched Mrs Hume accidentally. Dr Kaye rejected her account. It was said in the course of the Tribunal proceedings that Dr Kaye was not an impartial arbiter, in that there had been an incident on the previous day when he had scratched the Appellant.

On 3 November a disciplinary hearing took place before the bursar, Mr Liddiard. He also rejected the Appellant's account and dismissed her for physical assault, serious verbal abuse and refusal to obey an instruction to go home, given to her by Mrs Hume after the incident.

On appeal, a governor of the school, Mrs Baker, reached the same conclusion as Mr Liddiard and dismissed the Appellant's appeal.

The Tribunal concluded:

(1) as to unfair dismissal, that the matter had been properly investigated; the Respondent was entitled to reach the view that the Appellant had assaulted Mrs Hume; dismissal fell within the range of reasonable responses open to the employer. The dismissal was fair.

(2) on the evidence, the Tribunal found as a fact that the Appellant had assaulted Mrs Hume; the verbal abuse was admitted; the Respondent was in these circumstances justified in dismissing the Appellant. The claim of wrongful dismissal therefore failed.

The Appeal

Mr Edey has pursued this appeal on the following basis. First he criticises the procedures employed by the school. The Appellant was not permitted representation either by himself or by the Royal College of Nursing, which was not recognised by the school. However a senior housemaster attended the disciplinary hearings to protect her interests. Initially the bursar intended to hear an appeal from his own decision to dismiss; wiser counsel prevailed, and the appeal was taken by the governor, Mrs Baker, who Mr Edey pointed out, was not legally qualified. He tells us that one of the school governors is a High Court Judge. However, she took advice from the school's solicitors. Mr Edey says that those solicitors could not give impartial advice because one of their partners, Mr Stebbings, is the Clerk to the Governors. Further, there was no written disciplinary procedure, and under the school's Constitution, dating back to a Victorian statute, only the Headmaster can dismiss. That latter point was apparently not taken before the Industrial Tribunal.

As to the substance of the decision, Mr Edey contends that the evidence which he called completely demolished the Respondent's evidence, and it was perverse of the Tribunal to prefer their evidence to the Appellant's.

Thirdly he relies upon Article 6 of the European Convention for the Protection of Human Rights. He submits that where the charge is one of assault the Industrial Tribunal ought, under Article 6, to have applied the criminal burden of proof.

We have carefully considered these submissions. As to the procedural matters, these were argued before the Industrial Tribunal and rejected.

At paragraph 12 of their reasons, the Tribunal say:

"The Respondent's witnesses seemed to the Tribunal to be people of integrity who had approached the incident in a fair and reasonable manner."

In our judgment that was a permissible conclusion open to the Tribunal.

As to the substance, the question of which evidence is to be preferred is essentially one for the Industrial Tribunal, not for us. There was evidence to support the Tribunal's material findings of fact.

Finally the European Convention. In our judgment that is not directly enforceable in private proceedings brought before the domestic courts. Breaches are dealt with by action taken against the United Kingdom Government in the European Court of Human Rights.

In these circumstances, we have reached the conclusion that this appeal raises no arguable point of law to go to a further hearing before the Employment Appeal Tribunal and accordingly, the appeal is dismissed at this stage.

Following our judgment in this case Mr Edey made an application for review of our decision in this appeal under Rule 33(1)(c) of the Employment Appeal Tribunals Rules 1993; that the interests of justice require such a review. The basis on which he makes the application is that he cannot accept that the findings of fact by the Industrial Tribunal cannot be reviewed by this Court in circumstances where it is a ground of appeal that the Industrial Tribunal's verdict was against the weight of the evidence.

We are quite clear that our function is to determine questions of law not fact. In these circumstances the application for review has no reasonable prospects of success and we shall dismiss it.

Leave to appeal to Court of Appeal refused.