United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Appellant neither present nor represented


 


MR JUSTICE LINDSAY:

1. This is a hearing, by way of a preliminary hearing, of the appeal of Mr Anthony McGarry in the case, McGarry v Quality Care Homes Ltd. The Tribunal's decision was sent to the parties on the 11 May. There had been a hearing on the 13 April at Newcastle upon Tyne under the Chairmanship of Mr C T Grazin. The unanimous decision of the Tribunal was, firstly;

(i) "That the Applicant's complaint that he was unfairly dismissed by the Respondent is not well-founded and that complain is dismissed;

and:-

(ii) that the Applicant's complaint that he suffered an unlawful deduction from his wages is dismissed upon withdrawal by the Applicant".

2. There is a Notice of Appeal of the 21 June 1999. We have been recently told that Mr McGarry is unable to be present today, but, rather than his seeking an adjournment he simply asked that the matter be dealt with on paper. We have, of course, discussed the matter between the three of us. It is necessary to set out a little of the background.
3. Mr McGarry had been employed by Tamaris Ltd. Tamaris had a disciplinary code as a matter of contract which it will be convenient to speak of as "the Tamaris code". Mr McGarry was a manager of a nursing home which was registered, as such, with the local authorities, as they have to be. Tamaris then bought Quality Care Homes Ltd, the respondent company, and it came about that Mr McGarry was then employed by Quality Care Homes Ltd. His terms and conditions remained the same. The Tribunal held that Quality Care Homes Ltd however accepted that the applicant's terms and conditions were not altered in any way by that management change.
4. In the conduct of a registered nursing home, care has to be taken. There are statutory regulations, which, of course, have to be honoured if the licence or approval is to be retained. In particular, there are appropriate staffing levels for registered nursing homes that have to be observed and care needs to be taken that they are because otherwise the local authority approval is of course, in jeopardy. Distinctions need to be drawn, in relation to staffing levels, between nursing patients, and residential patients. That is just by way of general background.
5. On the 26 October 1998, Mr McGarry left to go on holiday. Before he went the employers regional nursing manager, Ms Limon, had begun an investigation into the home which Mr McGarry managed and, in particular, she was looking at its payroll. A report was produced as to which the Tribunal said this. They make reference to the report which is headed, "Westview Lodge Nursing Home Investigation into Current Staffing" and the quotation continues:-

"That is a document compiled by Ms Limon, running to some four closely-typed pages and setting out alleged failures to inform the Regional office of deviation from the staffing notice on five occasions during September and October 1998; failure to inform the Health Authority of deviation from the notice on three occasions; failure to work the Section 25 notice; and the failure to inform the Regional Office of contact with the Health Authority. We are satisfied that those were concerns that were genuinely held by Ms Limon on behalf of the Respondent".

6. A little later they say, of their own position:-

"It was not any part of our duty to consider whether the allegations were well-founded or otherwise. We did not consider that issue and we make no finding in respect of it. It is sufficient that we say that, during that period of two weeks, the concerns of Ms Limon and, in due course, Mrs Malham, as Nursing Operations Manager, were such that both of those persons thought it necessary to see the Applicant on his return to work on Monday 9 November".

7. On his return, Mr McGarry was suspended, and the Tribunal says:-

"In our view, the relevance of those matters is that the Applicant's attitude and approach seems to us to be sufficient justification for the decision made by Ms Limon and Mrs Malham that the Applicant should be suspended during the course of a disciplinary procedure".

8. He was written to as follows (and again this is a quotation from what the Tribunal is saying):-

"In a letter of 9 November 1998 confirming his suspension, the Applicant was told he was suspended and that he would receive pay while suspended. The letter continued:

"If however gross misconduct is confirmed dismissal will be immediate, without pay and without review".

9. Note those last three words. There was then further correspondence and Mr McGarry remained suspended. He also laid claim to statutory sick pay. There were two matters which, as the Tribunal held, particularly concerned him. They were as follows (I am quoting from paragraph 17 of the Tribunal's finding):-

"It is apparent from that narrative that there were two matters of concern to the Applicant:-

(i) the failure to make the payment of salary during the period of sickness absence;

and;

(ii) the alleged campaign to undermine and discredit the Applicant's position".

10. Those matters were then considered by the Tribunal, in relation to Mr McGarry's letter of the 11 December which had said this (and, again, I am quoting from the Tribunal's decision toward the end of paragraph 14):-

"The Applicant was suffering from stress which he contended was the result of his being suspended. The Applicant's response to that letter of 11 December was to resign his employment. Again, we think it is important to quote the first two paragraphs of his letter:

"Thank you for your letter received on Thursday 17^th December 1998. The explanation given for non-payment is unsatisfactory and as a result I am left with no alternative but to resign my post with immediate effect.

I have become aware over recent months of a concerted campaign by the regional management team to undermine and discredit my position as home manager. It is with regret that the only course open to me to bring these issues into the open is an Industrial Tribunal where I will be given an opportunity to present evidence to support my claims".

11. And then a little later in paragraph 16 the Tribunal says:-

"In so far as it is not clear, no further disciplinary hearing of any sort took place between 9 November 1998 and 18 December 1998, when the Applicant resigned. During the whole of that period, the only communication between the parties was in writing, in the various letter to which we have referred and which were before the Tribunal".

12. And the Tribunal concluded in their paragraph 18:-

"In the light of those contemporary documents, we have no difficulty in concluding that the real reason the Applicant resigned was the failure on the part of the Respondent to make the payment to him of his salary during the period of his sickness absence. We do not accept that the bringing of the disciplinary proceedings was the reason for the resignation. There is no reference to the disciplinary proceedings being a breach of contract in the letter of 11 December. The letter of 18 December specifically says that the Applicant has resigned as a result of the explanation for non-payment being unsatisfactory".

13. The Employment Tribunal looked into Mr McGarry's complaint about the payment of his salary. There is in the Notice of Appeal, no complaint as to the Tribunal's conclusion on that subject which was, looking at their paragraph 25:-

"In those circumstances, there is no question of the failure to pay amounting to a fundamental breach of the contract between the parties. It amounted to no more than a delay which could be resolved immediately that the Applicant chose to send to Mr Scott his copy of the relevant document. The Applicant's answer to that was that he though that Mr Scott was being awkward, that he had the document at all times and that he thought that Mr Scott was simply toying with him. We see no basis for that assumption".

14. So much therefore, for the complaint about payment of his salary, which was the reason which the Tribunal thought had loomed most in the Appellant's mind. As for the taking of disciplinary proceedings, although, in any case, the Tribunal held that not to have been a reason for Mr McGarry's resignation, that, too, was dealt with in some detail by the Tribunal. They held in their paragraph 21:-

"We then turn to the disciplinary proceedings themselves. Effectively, the Applicant was arguing that it was a breach of his contract of employment to bring disciplinary proceedings because he did not accept that he was guilty of any misconduct. As indicated above, it seems to the Tribunal that the only circumstances in which an employee could maintain that argument would be if he could show that there was no basis whatsoever for disciplinary proceedings, so that they were either malicious or a sham or something similar".

15. And then the Tribunal continues at some length concluding that there was no merit in the argument. And in paragraph 26 they revert to it by saying quite simply:-

"The Applicant cannot show any breach of contract in respect of the first matter (the disciplinary proceedings) let alone anything that gets anywhere near a fundamental breach of contract".

16. And so it was that in their paragraph 27 they say:-

"Since he was not entitled to resign his employment by reason of any fundamental breach of contract, he fails to comply with the requirements which were set out in the well-known decision of the Court of Appeal in Western Excavating (ECC) Ltd v Sharp [1978] ICR 221. In those circumstances the Applicant's complaint that he was constructively and unfairly dismissed is not well-founded and that complaint is therefore dismissed".

17. Well, that is, perhaps, an over-full setting out of the background. Against that background we revert to the Notice of Appeal. The complaint is that the Tribunal failed to recognise that the Respondent, Quality Care Homes Ltd had been seeking to enforce the Quality Care Homes disciplinary code and not the Tamaris code. Plainly, if there was a difference between the two that was material to the Tribunal's conclusion, well then, that could well signify a material error of law. The difference between the two sets of codes which Mr McGarry alleges is as follows. The Quality Care Homes code as already cited says:-

"If however gross misconduct is confirmed dismissal will be immediate, without pay and without review".

18. Mr McGarry says that the Tamaris code does not say "and without review". Mr McGarry has interpreted the difference between the two codes as leading to a conclusion that no appeal was available under the Quality Care Homes code. And thus, he says, despite the acceptance and earlier assurance that his terms and conditions remained the same on his employment passing to the Respondent, Quality Care Homes Ltd was in breach of contract by denying him a right of appeal that he was contractually entitled to. That, he says, is a serious and, indeed, fundamental breach of contract.
19. But the argument soon runs into the sand. That reference to "without pay and without review" is merely an extract from the Quality Care Homes code. The very next paragraph in the Quality Care Homes code deals with rights of appeal and, on that, the Tribunal said this:-

"It is clear that that sentence is an extract from Quality Care Homes Disciplinary Rules and Procedures, which is document H1 in the Applicant's bundle. It is within a paragraph headed "Precautionary Suspension". The next paragraph is headed "Appeal" and sets out a right of appeal against any disciplinary action. Although it was suggested to us that the letter implied that, if the applicant was dismissed, there would be no appeal against that decision, we cannot accept that interpretation. The letter was not to the standard that might be expected and might well have initially mislead the applicant, but had he considered the matter properly and in detail, he would have appreciated the position. At the very least, he could have made an enquiry before jumping to the conclusion that he did".

20. Thus the position is that strictly Mr McGarry was not being denied any right of appeal to which he was entitled under contract. The serious breach of contract which he alleges, did not in fact exist. The Notice of Appeal raises that point as its central point but we see it as not raising any arguable point of law. So, dealing with the matter simply on paper, as Mr McGarry has invited us to do, we must dismiss the appeal even at this preliminary stage.