United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR T CATO (Solicitor) North Lambeth Law Centre 14 Bowden Street London SE11 4DS


 


MR JUSTICE KIRKWOOD: This is the preliminary hearing of an appeal by Mrs Lincoln-Todd against the decision of an Industrial Tribunal at London (South) sitting on 25th July and 14th October 1997 dismissing her complaint of unfair dismissal.

The task of Mr Cato today, who appears for Mrs Lincoln-Todd, is to persuade us that there is an arguable point of law in the appeal to go to full hearing. Included in the phrase 'point of law' is the concept which is described in shorthand as 'perversity'. That can be a point of law if a tribunal reaches a decision which no reasonable tribunal could possibly have reached on the evidence available to it. It then becomes a matter of law, but it is a strict test and well recognised to be extremely difficult to establish. I say that so that it is clear that it is not the task of this Employment Appeal Tribunal today, or indeed in any such circumstances, to review the findings of fact of an Industrial Tribunal and on appeal the case proceeds on the basis of the findings properly made.

The respondent to this appeal, and the respondent before the Industrial Tribunal, is Dr Chudha who is a general practitioner. His practice team consists of himself as sole practitioner, locum doctors when needed, an assistant doctor, a practice manager and a practice nurse, an administrative assistant, and two receptionists and the appellant.

The appellant was employed as a part-time secretary/receptionist. Her employment began in September 1995 and the effective date of termination of it was 19th May 1997. At the material times her duties included opening up the surgery in the morning in time for the arrival of doctors and patients. At material times also the practice was in a state of transition. Dr Chudha was preparing to move into a new purpose-built surgery and to provide increased and better facilities for patients. In the meantime, the practice was being run temporarily in a portacabin.

A crisis occurred in December 1996. One of the receptionists was off due to long-term sickness and on 18th December the second of the receptionists went down with chicken-pox. The Practice Manager therefore considered the question of cover and drew up an emergency rota to cover the Christmas and New Year periods. Under it, the appellant, who lived locally, would do morning duty and the administrative assistant, who lived a good distance away, would do the afternoon duty. On this emergency rota the appellant would work each Saturday morning instead of her usual alternate Saturdays.

On 21st December 1996, the appellant was due at work at 9 a.m. to open up and prepare for the 9.30 a.m. surgery. The respondent, Dr Chudha arrived at 9.30 a.m., the surgery was not open. There were five or six patients queuing in the cold. A letter of complaint had been put through the door from one patient complaining of having to wait with her daughter in the cold for half an hour to 9.30 a.m.. The appellant did not attend for work at all that day.

Dr Chudha reported that incident to the Practice Manager who, however, went on leave on 21st December 1996, his leave running until 15th January 1997, and he did not speak to the appellant about those matters before he went.

On 24th December 1996 the appellant was unwell and a telephone call was made about that, and Dr Chudha arranged for an ex-employee to come in to work the morning rota that day and for the week of 27th December when the surgery was to re-open after Christmas. The doctor was understandably keen to have reliable cover in place.

On 27th, however, the appellant attended for work. She told the doctor that she was now well and would attend work each morning. So, in the light of that, the doctor discharged his temporary assistant.

Dr Chudha himself went on leave on 30th December 1996. On Monday, 30th the appellant did not attend for work. At locum doctor arrived at 8.45 a.m. and could not get in. From 9 a.m. and patients were waiting out in the cold. The locum was then called away. At 9.30 a.m. an assistant doctor arrived and also could not get in. Everyone was standing about in the cold. Eventually a key was obtained from the appellant's husband and it was possible to open up at 10 a.m..

Dr Chudha was informed about that on his return from leave. He was, however, very busy himself, not only with the adjustments to the practice which I have described, but also with a transfer over to new budgetary arrangements, and he decided to leave the disciplinary question to the Practice Manager who would be back from leave on 15th January 1997.

On 15th January, however, the Practice Manager was seriously ill. He did not return to work, and indeed, had to resign. So there was no Practice Manager. Dr Chudha set about engaging a new Practice Manager which he did, as we understand, fairly soon. In those circumstances, Dr Chudha decided that in the circumstances he would have to deal with the appellant.

On 10th February 1997 he drafted a letter to her about the matters I have described but did not in fact give it her on that occasion.

A separate disciplinary matter arose to do with the appellant leaving work early. The doctor prepared a letter about that of 3rd March 1997, and, in fact, handed the two letters to the appellant on 11th March 1997. It invited a reply.

The appellant replied by letter dated 12th March:

"In reply to your letter dated 3rd March 1997. When I have worked on Saturday mornings particularly with locum doctors they have always left the surgery by 11.00 am the reason I left shortly afterwards was because I always had my work completed, plus being in the surgery alone and unable to lock the door or outside gate from inside made me very vulnerable. ... In reply to your second letter dated 10th February 1997 ... I can only apologise for Monday 30th December 1996, I have even checked my own diary and have written hours 3-6 for that date. If you and ... told me about all the mornings then I can only say I had forgotten. It is very unlike me to let anyone down. You have mentioned serious misconduct and grounds for dismissal. I am very shocked and upset about this. It was never my intention.

December 21st 1996 there is another date mentioned when you say you had a written complaint similar. I really cannot understand why I did not turn up for duty. All that remain is an apology I do not want to lose my job I am happy working on the reception and helping patients where possible. If you feel you have no other alternative, then you must sack me. If the last sentence is to be my fate let me know as soon as possible. ..."

Dr Chudha then met the appellant on 21st March 1997. The meeting was in fact also attended by the new Practice Manager who made a file note. By then the doctor had heard some further matters relating to the appellant to do with possible breaches of confidentiality. But Dr Chudha did not discuss that in any sort of detail at the meeting. He was exercised, as appears from the extended reasons of the Industrial Tribunal, by the matters raised in the earlier letters and the appellant's response of 12th March 1997.

It was the doctor's view that the letter of 12th March was unsatisfactory. In the light of it, he had it in mind that the appellant would have to go.

It is clear from the findings of fact of the tribunal that the doctor did not make himself clear to the appellant that she was going to have to leave. What they said was that:

19. ... He told her that he would help her find other work with another GP and that she could remain working with him until such time as alternative employment was found. He told her that he would explain to any new employer that he had to release her because she lived in the practice area and was familiar with the patients. He expected her to make a proposal to him regarding arrangements for leaving his employment."

The tribunal found that:

"20. The Applicant was very distressed by the meeting. She did not fully understand Dr Chudha's intention although she understood that he did not want her to work for him any longer. ..."

The result of the lack of clarity and forthrightness by Dr Chudha in conveying his intention to the appellant was that she remained on. It was on 14th April 1997 that the doctor wrote her letter terminating her employment from 19th May 1997.

The Industrial Tribunal reminded itself of s.98 of the Employment Rights Act 1996 and, in particular, reminded itself of s.98(4) and the words:

"... the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case."

It is inherent in all that I have said that this case concerned a sole medical practitioner and part-time secretary/receptionist.

The tribunal reminded itself also of the well-known decision in British Homes Stores v Burchell [1978] IRLR 380, which sets out, as it were, the three-limb approach that it is proper for an employer to take in approaching the question of investigation and conclusion as to dismissal.

The tribunal found that the principal reason was a belief in gross misconduct in failing to report for work. The tribunal found that Dr Chudha had reasonable grounds to believe in that misconduct. The tribunal found that dismissal was within the band of reasonable responses having regard to all the circumstances of the case as it found them to be.

The appellant seeks to challenge that decision on a number of grounds.

First, it is said, that Dr Chudha did not follow his own disciplinary procedure contained in Mrs Lincoln-Todd's contract of employment. The skeleton argument sets out a whole range of ways in which it is said that the doctor was there in error.

It is clear to us that the skeleton argument goes, on any view, far too far in rehearsing all sorts of matters to do with the disciplinary steps, informal procedure, verbal warning, written warning and so on. The question here is whether there was appropriate investigation in the context of dismissal.

The only way in which it has been demonstrated to us that there was or may have been significant departure from the process is in the absence of evidence as to whether Mrs Lincoln-Todd knew of a right to be accompanied by a colleague at all stages of the procedure and whether that opportunity was made available to her.

It is said that she was given no disciplinary interview, but we have already referred to the meeting of 21st March 1997. Written argument that she was given no opportunity to appeal has not been pursued in oral argument, and rightly so, because one has to consider the circumstances and consider the words in the contract of employment as to appeal where circumstances permit.

The Industrial Tribunal had to have regard to the circumstances in which the question of disciplinary intervention was made, which it did, and concluded that in the circumstances the process was a fair one. That is not something with which we can interfere, it being, essentially, a finding of fact in the circumstances of the case as a whole.

Secondly, it is said, that the tribunal decision that there had been a reasonable investigation and a conclusion reached on reasonable grounds, is perverse. Two matters are particularly mentioned. One is that the tribunal made reference in paragraph 25 of its extended reasons to reports from two doctors. Mr Cato, for the appellant, says that there is no evidence about reports from two doctors.

That, with respect, is plainly wrong, because there was the incident to which I have referred on 30th December 1996, when first the locum and then assistant doctor were unable to get into the surgery.

The next point that Mr Cato raises is that the fact there was delay until 11th March 1997 when the appellant was handed the two letters of 10th February and 3rd March, respectively, demonstrates that, whatever else may be said about the appellant's failure to attend for work, it cannot be described as an act of gross misconduct; because if it were, there would have been a much earlier, swifter and decisive response. So the conclusion that the doctor found on reasonable grounds gross misconduct is a conclusion in which the tribunal erred because it is said that that conclusion flies in the face of properly informed logic.

This again was a matter of fact for the Industrial Tribunal to consider. It is coupled with the next argument that the decision of the tribunal that the appellant was not disadvantaged by delay is perverse, because it is said that her memory must have been affected three months later. But these are all matters which the tribunal specifically dealt with.

The tribunal considered that and said:

"25. ... whether the Applicant was put under a disadvantage by Dr Chudha's delay in requiring her to explain her conduct. We found that she was not disadvantaged by the delay. ..."

The tribunal then sets out material upon which it relied: availability of her diary; sufficiently aware of the change of circumstances brought about by the absence of the two receptionists; aware of the change in her duties and so on.

The next way the decision is said to be perverse is that the tribunal made a finding that the misconduct for which the appellant was dismissed was solely the alleged failure to report for work; whereas if one looks at the letter of 14th April there is reference also to questions of breach of confidentiality.

The tribunal made the finding of fact to which I have already referred. The question of confidentiality was not much discussed at the meeting of 21st March, but what was in the doctor's mind was the letter of 12th March dealing with the absences. It seems to us that it was entirely open to the Industrial Tribunal to make the finding it did, and the attempt to argue perversity is misconceived.

Lastly, the appellant seeks leave to amend the Notice of Appeal: first, by making an amendment to reflect a submission that delay in itself rendered the dismissal unfair.

We do not accept that as a proposition of law. The question depends on the facts of the particular case and the findings of fact about it made by the tribunal.

Secondly, an amendment to reflect a submission that the tribunal erred in failing to consider whether the rules of natural justice were complied with in certain particular respects. The substantial allegations there are that the appellant was not informed of the allegations; that she was not given any indication of the evidence against her; that she was given no opportunity to ask questions; no opportunity to argue her case; and, not asked whether there was any other evidence or enquiry which could help her case. That submission flows, it seems to us, chiefly from the argument that, in reality, part of the reason for the dismissal went to the ground of breach of confidentiality.

That is not what the tribunal found. The appellant was quite well aware from the letters to which I have referred of the complaints about her failing to attend work. They were not matters in issue. She had not been there. The rota was plain for all to see. She was given the opportunity, so the Industrial Tribunal found, to speak on her own behalf and to put forward matters in mitigation on her own behalf to the doctor at the meeting of 21st March, as well, of course, as in the letter she was invited to write in response to the letters of complaint of February and March.

We are entirely satisfied, having considered this case in detail, having considered the skeleton argument in detail, and having heard argument, that there is no arguable point of law in this case. The result of that is that the appeal will be dismissed at this stage.