United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS J OLAKOTAN (the Appellant in person)
For the Respondent	MR M ROBERTS (of Counsel) Messrs Aaronson & Co Solicitors 197A Kensington High Street London W8 6BA


 


MR RECORDER LANGSTAFF

1. There are many curious features about this appeal from a decision of the Employment Tribunal sitting at London North which was promulgated on 8 November 1999. The Tribunal upheld the employee's complaint that she had been unfairly dismissed by her employer and awarded her £973.84 in compensation. Yet she has appealed. On the face of it, it is an appeal against victory.
2. The grounds of appeal complain in particular about findings made by the Employment Tribunal in which the Employment Tribunal accepts that the Appellant deceived her employer in respect of whether her attendance at a university course, which she was doing part time, was authorised. However, the reasons for a decision which is reached in a party's favour can never be the subject of an appeal. In essence, the Appellant being unrepresented, we have treated this appeal as one in respect of quantum and we are reassured by Mr Roberts' acceptance that this is what the appeal amounted to. That means that we accept as a starting point that the Appellant was unfairly dismissed by her employer.
3. The essential facts are that she was employed as a Practice Nurse from January 1993 until 8 April 1999 at the Brompton Medical Centre. Her employer was a partner in that practice. She sought and hoped that she might attend a course at the University of North London leading to a Practice Nursing Degree. The Tribunal found that in order to apply for that degree 4 matters had to be satisfied. One is that the Applicant had to have at least 120 credits at Level 2. Secondly, she would have to have the approval of the general practitioner for whom she worked. Thirdly, she would have to have confirmation of funding, (a) to support the degree course and (b) to pay for locum nursing assistance to do her job at the practice while she was studying. Fourthly, the arrangements had to comply with a practice plan.
4. In what the Tribunal found to be the absence of confirmation of the required number of credits or of funding, she was provisionally accepted on a course. She attended that course on Thursdays from 4 February until 25 February. On 26 February she was told in writing that she could no longer continue on the course because evidence of her credits and evidence of funding was not available and indeed it appeared the funding would not be forthcoming.
5. One of the issues that the Tribunal had to resolve was whether or not in seeking the permission of her employer to attend the course, she had misled him in any way as to the likelihood of funding and as to the degree to which she satisfied the programme requirements. The Tribunal held at paragraph 9 that in this respect she deceived her employer. They went on to find that the dismissal which followed was for her misconduct but that the procedure that was adopted by Dr Iqbal was flawed so that the dismissal was unfair. The finding of unfairness was thus for procedural reasons.
6. When it came to assessing compensation, the Employment Tribunal set out at paragraph 12 the need to look, first of all at the situation as it would have been had a proper procedure been followed. In doing so they applied the case of Polkey v Dayton Services. They said:

"….we must look at the likelihood of Mrs Olakotan being dismissed if a proper procedure had been followed. We think that likelihood is very high in view of the documentary evidence and previous record of Mrs Olakotan. Similarly, we think that it is equally unlikely the Dr Ali would have disturbed the decision to dismiss had an appeal been heard."

They went on to deal with the question of whether there should be a reduction from any award on the basis of the conduct of the Appellant and they said this:

"In addition, we must consider the extent to which Mrs Olakotan contributed to her dismissal and we find that in this case it was to a substantial extent. Given those two factors we do not consider that it would be just and equitable to make any monetary award for compensation beyond the two weeks pay referred to above."

Those two weeks were essentially in respect of the period of time it would have taken for a proper disciplinary procedure to have been gone through.

7. There is no division in the Tribunal's reasoning between a basic award and a compensatory award. On the face of it, a basic award would appear payable and is not covered by paragraph 12 which refers only to compensation. However, the logic of paragraph 12 might suggest that the extent to which there had been contributing conduct to her dismissal by the Appellant might reduce any such basic award. The only conclusion we can come to is that the Tribunal must have concluded, if they thought about at all, that the contributory conduct should apply to the extent of 100%. That however would not fit easily with their description that the contributory conduct was, 'to a substantial extent', which are the words actually used in paragraph 12.
8. In short we are unclear as to the way in which both the Polkey deduction and the deduction in respect of contributory fault came into play in the assessment of compensation. We are conscious that it is sometimes all too easy to overanalyse or be hypercritical of reasoning of an Employment Tribunal which, taken as a whole, is clear. Mr Roberts for the Respondent has urged upon us that here the reasoning was sufficiently clear. He says, that it is to be implied that by setting out the fact that there had been a history of complaints by the Respondent in respect of the Appellant's conduct, the Employment Tribunal were accepting that those complaints were justified. However, they never said so. He suggests that the implication from the description in paragraph 9 that the Appellant had committed deception upon her employer means that the Employment Tribunal, viewing the matter as one of credibility, accepted his evidence and not hers. Indeed, one of his submissions is that much of the decision rests upon the question of credibility. We think he was right to make that submission but unfortunately the Employment Tribunal at no stage say which of the two they preferred in terms of evidence nor do they make clear findings of fact as to the conduct which preceded the deception they found to have taken place in respect of the unauthorised attendance at the university.
9. The question of the extent to which there should be a deduction on the basis of Polkey demands an assessment of the conduct which is complained of. So too does a consideration of the extent to which any award should be reduced, if it is to be reduced at all, by contributory fault. For that assessment to be understood by a claimant it has to be at least sufficiently clear so that the basis is plain. Here in paragraph 9 of the Employment Tribunal reasoning, this is said:

"In this case we have to decide whether Mrs Olakotan was unfairly dismissed. From the evidence it is apparent that the reason for dismissal was Mrs Olakotan's conduct and we accept that the conduct was of such a serious nature as to undermine the trust and confidence which Dr Iqbal needed to have in Mrs Olakotan as his practice nurse."

We pause there. The conduct is not spelt out. It may refer to her conduct in respect of the university course. It may refer to her conduct which inspired a long history of complaints, but as we have said it is not clear to what if any extent those complaints were actually upheld. That some of them were thought to be credible is indicated, as Mr Roberts pointed out, by the reference which I have already cited to the documentary evidence and previous record of the Appellant in paragraph 12. Again there is no clarity as to what parts of the previous record are regarded as being of importance or which documents are regarded as being of importance.

10. The matter might have little significance if the Tribunal had found that the dismissal was in response and purely in response to the events surrounding the university course. However the Employment Tribunal twice refer to the dismissal as having been 'the last straw'. At paragraph 7 this is said:

"In view of the Respondent's previous complaints about her time keeping, leave taking and general conduct within the practice, Dr Iqbal decided that this [that is the conduct in respect to the university] was 'the last straw."

They go on to say he:

…wrote terminating her employment with four weeks' notice."

In paragraph 9, dealing with the deception which they found to have occurred, they say this was:

"…..indeed the last straw."

That expression is capable of meaning and would normally imply that on its own it might not be sufficient a ground for dismissal. It becomes sufficient only when taken in combination with earlier misconduct. That in turn requires an Employment Tribunal at least to indicate which aspects of the alleged previous misconduct they found to have been made out or to be of significance. It also may suggest that when one comes to consider the conduct said to be contributory it is important to identify that conduct precisely. If the conduct said to be contributory is the conduct of the employee throughout the entirety of her employment, then that one may understand. If on the other hand, it is the conduct solely in relation to what is described as 'the last straw', and if that expression implies that on its own it would not be sufficient to justify dismissal but perhaps a final warning instead, then that would suggest that any finding of 100% contributory fault would be unjustified and inappropriate.

11. The difficulty that emerges, as will be apparent from the considerations to which we have had regard, is that there is a lack of clarity taken as a whole in this decision where it deals with questions of compensation. It may well be that they had in mind, very well, the precise features which they were taking into account and the way in which those factors would apply in respect of both the basic and the compensatory award, but it is an essential principle laid down in Meek v Birmingham City Council amongst other cases, that a Tribunal in its decision should show clearly to the parties before it, why one has won and why one has lost. That principle applies no less to compensation than it does to liability. Why has what should, on the face of it, be a claim for considerable compensation by way of both basic and compensatory award, be reduced? What are the factors which have led it to be reduced and what is the extent, if any, of the contributory conduct? We can well see that on one basis it could be argued here that the contributory conduct was not so substantial, if it was truly 'the last straw' as to justify the deduction that the Tribunal have made. That is not a question for us. We are satisfied that despite the eloquent, persuasive and well focused submission of Mr Roberts, to whose argument we pay tribute, this is a case in which there is simply a lack of clarity and that the Employment Tribunal should reconsider the question of compensation. It should do so, we direct, upon the basis that there has been a dismissal which is unfair and that the dismissal is one that has been caused by the conduct of the Appellant. We must leave it to the Tribunal to reassess and spell out clearly so that it may be understood, the basis for their finding in respect of compensation and we suggest that it is open to them what figures they may ultimately decide as appropriate. Once the analysis is done in the way that we suggest it may rapidly become apparent, for instance, that the figures in the decision on 8 November can no longer stand, equally, it may be the case that those figures are entirely right and proper. That is for the Tribunal and not for us to determine.
12. Accordingly we shall allow the appeal to this extent. That the case will be remitted to the same Employment Tribunal with a direction that they consider the question of compensation in the light of this judgement.