United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W PANTON (Of Counsel) Mr A Jha Principal Litigation Officer Commission for Racial Equality 10/12 Allington Street London SW1E 5EH


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing was to determine whether there is an arguable point of law, on appeal, which the Applicant/Appellant, Miss Johnson, wishes to make against a decision of an Industrial Tribunal, which was held at London (South). The Industrial Tribunal dismissed her two complaints that she had been discriminated against by her former employers, the Lewisham NHS Trust on the grounds of her race and secondly, that her employers had unfairly dismissed her.

The decision of the Industrial Tribunal is contained in a written decision which runs to twenty pages and ninety paragraphs. It followed a very extensive and lengthy hearing of evidence. In a nutshell, the background to this appeal can be stated in this way: Miss Johnson started working as a Registered Nurse for the first Respondent (there was a named individual as a second Respondent) under a work permit scheme in 1988, but her indefinite leave was granted in December 1992 and she continued to work: she is a qualified Midwife.

During the latter part of her employment, there had been what was thought at first sight, to have been a surprising number of deaths of neo-natal children. As a result of a particular death, the Hospital set up an investigation. During the course of that investigation they looked with care at the involvement of various midwives who had been on duty at the time of these sad events, including Miss Johnson. They indicated that there was no need for her to remain suspended from her position as a Midwife. The Hospital, very sensibly, because of the strain that she had been under, suggested that she should take four weeks paid leave before she returned to work: but they did, consistently with the report of this investigating committee, decide that they should confront Miss Johnson with certain matters of concern to them. Accordingly, in due time, a disciplinary hearing was established by the employers to investigate those matters.

The prime matter of concern to the employers was an allegation that Miss Johnson had very shortly before a baby had died, purported to make a record of readings in relation to that baby, and it was the belief of the employers, supported by medical evidence, that the baby could not have had those readings fifty minutes before its death. There were other matters which were of concern, that is, an apparent discrepancy in the Applicant's statement which she had made as to the use of the bleep to arouse assistance when one baby was in distress, if not dying, and what she had said orally to one of the Managers. The final matter of concern was an allegation that she had been behaving unacceptably in relation to staff and relatives and with reference to a particular telephone conversation.

The disciplinary panel concluded that Miss Johnson should be dismissed and there was an appeal against that decision which confirmed the original decision. As we understand it, no complaint could be made about what Miss Johnson was allowed to say and do in relation to the first disciplinary hearing or indeed at the appeal.

The function of the Employment Appeal Tribunal is to correct errors of law when such are made by Industrial Tribunals. It is submitted to us that the Industrial Tribunal has erred in law in a number of specific respects. Firstly, it is submitted, the Industrial Tribunal failed to recognise that there was a significant difference in the way that Miss Johnson was dealt with after the death of the (we think) last baby and the way that another midwife had been dealt with after the death of a different baby, on an earlier occasion. On the earlier occasion the midwife concerned had been looked after by the Hospital. They had given her comfort and when she was invited to prepare a statement, the Hospital gave her help with that and made available to her the medical notes to assist her recollection. (She was also given a cup of tea.)

In relation, however, to the Applicant, it is said on her behalf in this appeal, that her treatment was different and significantly worse; that she was not provided with her notes before she was asked to make a statement; she was not given assistance by the Hospital in preparing that statement and that the effect of that was to make it possible for the Hospital, in the disciplinary proceedings, to draw parallels between what was said in her statement on the one hand and what was said in the medical notes on the other. Therefore, it is said, that there was a significant difference between the treatment of these two people and that was relevant to the question of discrimination.

The Tribunal on the other hand was of the view that there was no significant difference in the treatment of the two midwives following the deaths of babies. Counsel, in effect, is saying that that finding must have been perverse, bearing in mind the distinctions to which I have referred. It seems to us that there is no merit in that submission. The reason why the investigating committee concluded that the observation which was recorded in the notes was false, was not because there was a discrepancy between what Miss Johnson said in the notes on the one hand and what she said in her statement on the other, but was based as is apparent from paragraph 36(b) of the decision, upon the premise that those readings could not have been genuine at 6.00 a.m. because that was fifty minutes before the baby's death. It was a medical opinion that was given by Dr Garvey to that effect, which influenced the disciplinary committee to conclude that Miss Johnson had been guilty of falsifying a record in relation to a baby.

Whilst it may be that to some extent there were discrepancies between the statement and the notes, as we read the decision that was not the governing or important factor in the decision which the employers made in this case.

The second main submission was that the employers did not carry out a proper investigation of the serious matter of falsification, because they denied themselves the opportunity of looking at the whole of the records relating to the baby in question over a 48 hour period of its life. That seems to us to be a question which was a pure question of fact for the Industrial Tribunal to decide upon. They were faced with a submission that there had not been a proper investigation. The Tribunal concluded that there had been a proper investigation, and whether or not an employer could reasonably reach the conclusion which they did in relation to that issue based on the material before them without regard to other material, was essentially and purely a question of fact. We do not consider that there is any arguable point of law which arises from that point.

The third point is that the Industrial Tribunal should have concluded that the dismissal was unfair, because no fair employer could have allowed to be included in the disciplinary hearing, allegations of what one might describe as more minor complaints, which are set out in paragraph 36 (c) of the Tribunal's decision. Counsel says in his robust submissions to us that those allegations have no place in a disciplinary hearing of a professional person who was charged with very serious misconduct. We can see the force of that contention, but it seems to us that it was a matter for the Industrial Tribunal, to say whether that corrupted the fact-finding investigatory body or the disciplinary tribunal which then was convened, or not.

The Tribunal were of the view that those minor matters in the end did not actually play any part in the decision to dismiss. In fact two members of the panel were called, and as was not surprising, each of them took slightly different positions as to the weight of any of the particular points. But that is not, in our view, of significance and there is no foundation for the suggestion that this is a point of law as opposed to a pure question of fact and judgement for the fact-finding Tribunal.

Then it is said that the Industrial Tribunal had misunderstood what the balance of probabilities means. We found this, with great respect to Counsel who made the submission, a somewhat confusing submission. The test which the Tribunal must apply in determining whether there has been a fair dismissal is that set out in the Act. That is a test which is not to be complicated by sophisticated arguments as to where the burden of proof lies and how the burden of proof is to be defined. But the point that is made, by the Tribunal and by the investigatory body, was that on the evidence before them at the first hearing and at the appeal hearing, they [the employers] were entitled to rely upon the medical evidence which they received, which to their satisfaction showed that there had been a falsification of the observations in the contemporary notes. They point out, as they did at the Tribunal, that had the Applicant been able to provide them with compelling evidence to the contrary, that might have made a difference, but in the absence of any such compelling evidence, they were of the view that the case had been made out. We see nothing wrong with that line of reasoning in the context of the investigation which has to be carried out by an employer and subsequently by a Tribunal, of an employer's conduct.

Then it is suggested in relation to burden of proof, that a higher standard should be applied where an employer is disciplining with a view to dismissing, a person who has professional standing. We can understand the force of that point. But, it seems to us, not appropriate to make it in the context of burden of proof, rather to make in the context of what a fair-minded employer would do in the circumstances of the case. We are sure that in a case where an employer is disciplining a professional person with the consequence that it may have for that person, they will take that matter into account before reaching any conclusion. It does not seem to us that there is any foundation in the material referred to in the decision to support a contention that the employers have failed in their duty in that respect. They were perfectly well aware of Miss Johnson's standing in her profession and no doubt were well aware of the seriousness of the allegation that was being investigated, namely the falsification of observations in a contemporary note.

In those circumstances we have not been persuaded that there is any arguable point of law and we shall dismiss this appeal.