United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C K LYONS (Representative)


 


MR JUSTICE BURTON: This is an appeal by Mrs Akhtar in respect of a hearing by the Employment Tribunal in Manchester, chaired by Mr Creed, on 21st and 22nd June 1999, when the Applicant's claim for unfair dismissal by the Respondent, Victoria Nursing and Residential Homes was dismissed.

1. The grounds of appeal put forward by Mr Lyons on her behalf, who also represented her below, fall, effectively, into two parts. His main case is that the decision to dismiss was found to be unreasonable, not only on the basis of the events of 7th and 8th September 1998, but also taking into account, to some extent, events on 26th August 1998, which had led to an oral warning, and 29th and 30th August 1998, which had led to a written warning; and that the Tribunal erred in concluding that the Respondent had taken adequate steps to investigate, not the matters of 7th and 8th September, which he accepted had been so adequately investigated, but the earlier incidents, insofar as they played a part in the decision to dismiss. His second head is what he calls a collection of small points which taken together, as he submits, leads to a conclusion that the Tribunal was perverse and had no evidence upon which it could conclude that the dismissal was reasonable. To that end he would be seeking notes of evidence of the Tribunal if leave to appeal were granted.
2. I shall deal very shortly with the events, in the light of the fact that we are refusing leave.
3. There were events on 26th August 1998 which either were not challenged, so far as misconduct by the Applicant is concerned, or, if challenged, such challenge was not upheld by the Tribunal, who found that she had misconducted herself in certain respects set out at paragraph 7(iv) of the decision, which led to an oral warning about which before us no complaint is made, subject to the overriding point about an allegedly inadequate investigation.
4. On 29th and 30th August 1998 there was further misconduct by the Applicant which led to a written warning. Once again, there was no challenge before us today about the finding that there was such misconduct (whether or not there was any challenge below is unclear to me), but the only challenge relates to whether there was in fact a written warning, and there is a finding of fact that there was, and indeed it appears that such document was indeed before the Tribunal. There was a statement by the Tribunal that, although no appeal was entered against that written warning, a grievance procedure was instituted, and the point is made by Mr Lyons that apparently there was no appeal procedure; but that comment by the Tribunal is wholly peripheral, even if it is to be criticised in the way that Mr Lyons suggested, and leads nowhere.
5. On 7th and 8th September 1998 there was more misconduct by the Applicant and, again, such misconduct was found by the Tribunal and such findings are not challenged, or not sought to be challenged, on appeal, except that it is suggested that the Tribunal may not have taken into account adequately the circumstances in which that misconduct is alleged to have been committed by the Applicant.
6. So far as the events of 7th and 8th September 1998 are concerned, it is, as I have indicated, accepted by Mr Lyons that adequate investigation was carried out by the Respondent, but the criticism of the Tribunal's decision is limited on appeal to two points:

(1) The Tribunal records that the Appellant was represented at the hearing on 17th September, which was the first investigatory hearing into the misconduct, by "someone who had a good working knowledge of industrial practices and who was aware of the nature of the hearing which was being undertaken on that date"; that is a reference to him, Mr Lyons, who has ably represented the Appellant both in the Employment Tribunal and before us, and he says that the Tribunal erred in concluding that he had a good working knowledge of industrial practice. That does not appear to us to be a potential ground for appeal, even if it were correct that the Chairman was wrong so to describe Mr Lyons.

(2) It is said that the Tribunal erred in the same subparagraph of its decision, paragraph 8(iii)(b), by reference to "documentary material [setting] out in verbatim form questions and answers put and given at the hearing on 17th September 1998", and that that is inconsistent with an assertion in paragraph 8(iii)(a) that the Applicant was not provided with copies of the notes of the investigative hearing on 17th September 1998. It is not inconsistent. Notes set out in verbatim form were taken, which were not provided at the time to the Appellant, as the Tribunal has indicated, but which were then provided and relied on at the Tribunal, albeit it seems from Mr Lyons only supplied to his client shortly before, but that has not been the subject matter of any complaint before the Tribunal or indeed before us.

7. Finally, there were, after the hearing on 17th September 1998, two further disciplinary hearings, one of them an appeal, on 14th October and 14th December 1998, in which the Appellant chose, albeit represented by Mr Lyons, to take what appears to have been a very inadequate part, of her own motion.
8. In those circumstances, there was substantial material before the Tribunal upon which it could reach the conclusion it did that the matter was fully investigated, and that there were grounds for dismissal both arising out of the events of 7th and 8th September 1998 and 26th, 29th and 30th August 1998. Insofar as the fundamental assertion is concerned, namely that although the employers investigated the matters of 7th and 8th September 1998, they did not investigate the earlier events, there is a finding of fact by the Tribunal in paragraph 7(vi) that:

"Dr Parihar conducted a full investigation with regard to the events. … not only the events which occurred after the written warning, but also, those that had occurred on 26 August onwards. …"

Mr Lyons has no material on which he is able to suggest that that was a perverse conclusion.

9. In those circumstances, this appeal is dismissed.