United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR JAMES COPLEY (of Counsel) Free Representation Unit Room 140 49-51 Bedford Row London WC1R 4LR
For the Respondents	MR DAVID BRUNNEN (of Counsel) Messrs Hill Dickinson Davis Campbell Solicitors Pearl Assurance House Derby Square Liverpool L2 9XL


 


JUDGE JOHN BYRT: This is an appeal against the decision promulgated on 20 May 1997 of an Employment Tribunal sitting in Liverpool, whereby they held that the employee, a Mrs Mason, was fairly dismissed. Mrs Mason appeals that decision.

The facts are that Mrs Mason was employed by the Respondents and had been so for a number of years as a midwife. We do not know where else she served, but latterly certainly it was at the Arrowe Park Hospital, Wirral.

In 1992 there had been criticism of her work as a midwife and the result was that in 1993 Mrs Thompson, her immediate supervisor at that time, arranged for her to have some training. Unhappily, problems arose during the course of that training. Mrs Mason being black brought claims alleging racial discrimination against Mrs Thompson, alleging that she conspired with others to sabotage her career. In 1994 the Industrial Tribunal hearing that claim, dismissed it. But certainly, it would be naive of us to think that Mrs Mason did not believe in the allegations she had made against Mrs Thompson.

By the time that determination was made, Mrs Mason had not worked for two years and that meant she had to undergo further training before she could resume her midwife role. The result was that in January 1995, she and representatives of the Respondents agreed that she would undergo further supervised training and, in order to avoid her feeling she was being placed in a position where she would be vulnerable again to discrimination, arrangements were made for her to negotiate with a Mrs White where she would go. She was a representative from the local supervising authority. Mrs Mason was told that her tuition fees would be paid but not her travelling expenses.

On 1 February there was a meeting between Mrs Mason and Mrs White when they discussed the situation and on 21 February, Mrs White wrote back to Mrs Mason telling her that training could take place at the Lancaster Hospital, a place some 50 or 60 miles away from Mrs Mason's home. Perhaps not surprisingly, Mrs Mason took some time to reply. The result was that on 1 March the Respondents wrote to Mrs Mason asking her to make her reply within seven days, and indeed, on 6 March Mrs Mason did reply, in a letter written for her by a Solicitor with the Liverpool Law Centre. In that letter she stated it would seem that there was no hospital within reasonable travelling distance who could accommodate her training programme and, on that basis, she was prepared to return to Arrowe Park Hospital, Wirral, provided she was allocated a supervisor of midwives other than Mrs Thompson and that Mrs Thompson was not involved in the supervision assessment of her practice. The letter ended with the statement "Mrs Mason wishes me to make it quite clear that she is not prepared to undergo her supervised practice in Lancaster". In that letter Mrs Mason had stated her terms according to which she was prepared to undergo her training at Arrowe Park Hospital and on 16 March the Respondents wrote back rejecting her proposal that she should undergo her training at the Arrowe Park Hospital. They called her to a meeting which was arranged for 3 April, warning her that her contract could be terminated at that meeting.

Mrs Mason attended that meeting in the company of her Solicitor. The trustees were represented by a number of people including Mrs Thompson from the Arrowe Park Hospital. At that meeting Mrs Mason rejected the proposal she should go to Lancaster on the basis that it was too distant from her home and she maintained her case that her training should be accommodated at the Arrowe Park Hospital.

As is recorded in the Tribunal's Extended Reasons, the Respondents had a dilemma, namely that Mrs Mason could not resume her practice as a midwife without further training. They were not prepared to allow her to resume that training at the Arrowe Park Hospital and Mrs Mason had rejected the only alternative possible, namely the Lancaster Hospital. Accordingly, they felt bound to dismiss her and accordingly did so.

There was an internal appeal which was unsuccessful and so the matter was brought before the Employment Tribunal. Mrs Mason, took out an Originating Application alleging that she had been unfairly dismissed. In considering the matter the Employment Tribunal posed itself the correct questions. First of all, what was the reason for dismissal? And they concluded that that was Mrs Mason's conduct, namely her refusal to undertake the training on the terms offered by the Respondents. The second question they asked was whether the Respondents were acting reasonably in treating that conduct as justification for her dismissal.

They considered Mrs Mason's contentions. The first was that the Respondents had acted unreasonably in rejecting her proposal that the training should take place at the Arrowe Park Hospital. The Employment Tribunal looked back at the history of trouble which existed between Mrs Mason and Mrs Thompson, the allegations that had been made in the racial discrimination case and took the view that it would be storing up trouble for the future were the Respondents to allow her to return. Their views are summarised in paragraph 7 in which they set out the history of the discrimination case and paragraphs 23 and 24, where they come to the conclusion that the Respondents acted reasonably in insisting that the training take place elsewhere other than the Arrowe Park Hospital.

Dealing with that contention forms a substantial part of the argument advanced by Mr Copley on behalf of Mrs Mason. First, it was said those paragraphs set out inadequately the Tribunal's reasons for dismissing the contention and secondly, such reasons as they did give indicate that their finding was perverse.

It is well recognised in this Tribunal that the Employment Tribunal, in setting out its reasons, do not have to set out all the detail facts upon which the Tribunal relies in justification of their conclusions. We think their reasons are adequately set out in paragraph 7, paragraphs 23 and 24. Anybody reading those paragraphs would have an ample understanding of the finding and the conclusions the Tribunal came to. The question is whether the conclusion they came to in those paragraphs was perverse.

We have considered this matter with care. We have directed ourselves to the observations, made in the case of Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 and have asked whether the decision the Tribunal came to in those paragraphs, was so obviously wrong that we should interfere with it in any way.

It is not for us to express a view whether the reasons set out by the Tribunal in those paragraphs justified the conclusions they came to. The question to be asked is whether the conclusions that Tribunal came to were within the broad band of what is reasonable for them to conclude. We have no doubt that the Tribunal's rejection contained in those paragraphs was a reasonable conclusion for the Tribunal to have come to. Accordingly, on that and the second like ground of the appeal, we would dismiss the Appellant's appeal.

But there remains a third ground upon which Mrs Mason relies. Mr Copley argues that the proposal Mrs Mason should have gone to Lancaster with her tuition fees paid but not her travelling expenses, was a wholly unreasonable attitude for them to have adopted and that, therefore, the dismissal is unfair.

Mr Copley says the Tribunal's conclusion that the dismissal was fair was one which was perverse, and we have to consider that claim with considerable care. We notice that in the paragraphs 27, 28 and 29 of their reasons, the Tribunal analyse their own approach with great care. They ask themselves what would have happened had the Respondents dismissed Mrs Mason following receipt of the letter of 6 March stating that she would not go to Lancaster. The Tribunal came to the conclusion that had the dismissal taken place then, it is likely they would have found it unfair. They then asked themselves what the position would have been at the 3 April meeting if Mrs Mason had shown some degree of flexibility and the Respondent had not taken up that approach by meeting her half-way with a negotiating position. Again, the Tribunal state they would, in all probability, have found the dismissal unfair. But then they concluded that the sole reason for Mrs Mason's rejection of the Respondents' proposal at that meeting was the geographical distance of Lancaster. They found that there was nothing the Trust could possibly do to persuade her to alter her position. In paragraph 31 they say:

"31. It is clear to us that Mrs Mason had set her face against Lancaster entirely and she made that position perfectly clear at the meeting of 3 April ..."

And they go on to say that, in view of those circumstances, there is nothing the Respondents could have done to alter Mrs Mason's determination.

That is a conclusion the Tribunal came to, having seen the witnesses and heard their evidence about what happened at the meeting of 3 April. They were at liberty, and indeed bound to form a view about Mrs Mason's attitude, both before the Tribunal and how it reflected her position at the meeting on 3 April. Having heard that evidence, they came to the conclusion that there was nothing the Respondents could do to alter Mrs Mason's determination not to go to Lancaster and, in the circumstances, that the Respondents had no alternative but to dismiss her. Again, as an appellate tribunal, it is not within our power to take a view on the facts and retry the issue. Only if we find the Tribunal has erred in law, would we be empowered to reverse the finding.

We have to ask ourselves as to whether, on the evidence before it, the Tribunal having formed the impression that they did about the witnesses who gave evidence, came to a conclusion outwith the bounds of reasonableness. In this particular case, we are satisfied that the Tribunal directed themselves to the relevant issues. They quite plainly rejected the contention Mrs Mason put forward at the Tribunal hearing, namely that she would have adopted a wholly different attitude if the Respondents had volunteered her travelling expenses. In the circumstances it is our view that the conclusions they came to in those paragraphs were ones which are within that broad band of reasonableness which would prevent us from setting aside their decision on the grounds of perversity. In the circumstances we feel that we have no alternative but to dismiss the appeal.