United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR GILROY (of Counsel) Messrs Eversheds Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB
For the Respondent	NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE RESPONDENT


 


HIS HONOUR JUDGE J R REID QC

1. This is an appeal from a decision promulgated by an Employment Tribunal sitting at Leeds on 3 May 2001 after 2 days of hearing and a further day when the Tribunal considered in Chambers the parties' written final submissions. The decision of the Tribunal was that the Applicant, Miss Rees, had been unfairly constructively dismissed by the Respondent, The Medical Protection Society Ltd. A hearing in relation to remedies was left to be fixed in the future. Against that decision The Medical Protection Society Ltd has appealed. On the appeal Miss Rees has neither appeared nor been represented. The Medical Protection Society Ltd has been represented by Mr Gilroy of counsel, who has very helpfully and very fully argued the matter, and has very fairly pointed out a variety of matters which it was proper for him to point out, not necessarily to his client's best advantage.
2. The points of appeal can be summarised as was done at paragraphs 7 and 8 of the Amended Notice of Appeal but in order to make some sense of them it is necessary first to give a little bit of the background to the case. Miss Rees was employed in May 1994 and left the employment of The Medical Protection Society Ltd in October 1999. Latterly she was Project Leader in the IT department and her salary at the end of her time was £29, 250 per year. Miss Rees had as her head of department a Mr Stothard although at the end of her time she reported to a Mr Kirby who was described as Systems Development Manager. Miss Rees believed that she had a good relationship with Mr Stothard but it is clear that Mr Stothard did not have the same view of her capabilities as she had.
3. On 30 September 1999 Mr Stothard gave her a letter which invited her to attend a disciplinary hearing the following day. That weekend the system on which she had been working was due to go live. In the light of that, because she was anxious to be there when the system went live and because a disciplinary hearing would have been a distraction, she asked for the hearing to be put off until the following Monday. It was put off until 3.30pm on Monday 4 October. Over the weekend Miss Rees had the opportunity of reading the letter inviting her to a disciplinary hearing and looking at its detail. As a result of that in the morning of 4 October she resigned. She then launched these proceedings in the Employment Tribunal in which she alleged that she had been constructively dismissed. The Tribunal, as I have said, so held, and I come back now to the points made in summary by the Appellants.
4. The first point (a) was that the Tribunal erred in law, or misdirected itself, or reached a perverse conclusion by finding that the meeting of 1 October 1999 would have inevitably concluded by the Respondent being subjected to some form of disciplinary sanction. The Tribunal, of course, had the advantage of seeing the witnesses, in particular Miss Rees and Mr Stothard, and it is fair to say that they took a pretty dim view of Mr Stothard and his evidence. In our judgment the conclusion that they reached, that the meeting of 1 October would inevitably have concluded by some form of disciplinary sanction, was one that was entirely open to them. They had the advantage of hearing Miss Rees, of hearing Mr Stothard and of forming a view of the two of them. They also had, of course, the letter. I shall set out some short passages from it at this stage:

"Dear Angela

I would like to invite you to attend a Disciplinary Hearing on Friday 1^st October 1999 in the Personnel Office, commencing at 2.30pm.

The purpose of the meeting is threefold:

1 To discuss with you my concerns regarding your work performance over recent months. Examples of this can be summarised as follows:-……. [there then follows 6 bullet points]

2 To listen to and take into account any mitigating circumstances which you wish us to take into consideration.

3 To decide upon the most appropriate course of action, if any, to take as a result of this meeting.

You will of course have the right to be accompanied by one of your work colleagues throughout the meeting should you so wish. If you have any queries regarding this meeting, please do not hesitate to contact me."

This letter was written without any previous enquiry or seeking of explanation of Miss Rees. It is very noticeable that it refers to listening to and taking into account of any mitigating circumstances. In our judgment it was quite open to the Tribunal to take the view that the procedure that was envisaged might be likened to the procedure between conviction and sentence rather than the procedure of trial.

5. It is noticeable that the procedure purported to be in accordance with The Medical Protection Society's disciplinary code, part of which is to be found at page 23 of our bundle, and which begins in this way:

"Principles

No disciplinary action will be taken against an employee until the matter has been thoroughly investigated and where the employee concerned has been offered the opportunity of attending a disciplinary hearing.

At every stage in the procedure, the employee will be advised of the nature of the complaint(s) against him/her and will be given the opportunity to state his/her case before any decision is made. .…………

The Procedure

STAGE 1 – Informal Warning ……

STAGE 2 – Verbal Warning ……"

The procedure clearly envisages that there is going to be a thorough investigation before disciplinary action is taken and an opportunity to attend at a disciplinary hearing. There is no reason why the investigation should not continue in the course of the disciplinary hearing. There is no reason why it should not be at that stage, in our judgment, when the employee concerned is offered the opportunity of tendering their side of the case. The trouble in this case, as the Tribunal found, and in our judgment they were quite entitled so to find, was that it was made clear, both by Mr Stothard's attitude as found by the Tribunal and by the letter summoning Miss Rees, that it was not intended that there would be any proper investigation at the proposed hearing. What was being asked for there, was simply mitigation. In our judgment therefore the Tribunal were correct and cannot be faulted for their decision, that the meeting of 1 October would have inevitably concluded in some form of disciplinary sanction.

6. The second ground of appeal (b) is that the Tribunal was wrong to hold that the Appellant's disciplinary procedure gave the Respondent the right to state her case before a decision was taken as to whether to convene a disciplinary hearing. That turns on the reading one gives to the two sentences that I have already set out commencing 'No disciplinary action'. In our judgment it does not follow from the words used that there had to be a consultation with the employee or her views sought before a decision is taken whether to convene a disciplinary hearing. In our judgment the Tribunal's erroneous reading of these words was immaterial to the final result at which the Employment Tribunal arrived.
7. The third of the points (c) was this:

"The Tribunal erred in law and/or misdirected itself and/or reached a perverse conclusion by finding:…..

that by failing to give the Respondent the opportunity to state her case before a decision was taken to convene a disciplinary hearing, the Appellant committed a breach of an express term of the Respondent's contract of employment (i) by simply denying her the opportunity to state her case 'per se', and (ii) by therefore not thoroughly investigating her case."

There was a clear finding of fact that there had been no previous proper investigation. In our view, if the Tribunal had simply been saying that the failure to allow her to state her case before convening a disciplinary hearing was the fundamental breach, they would have been in error, but one has to look at the decision as a whole and in our judgment when one looks at the decision as a whole it is clear that they took the view that no way was Mr Stothard going to afford her an opportunity of properly presenting a case for defence as opposed to mitigation and that therefore clearly there was no proper investigation and would not be any proper investigation. It follows that although the emphasis used by the Tribunal might be faulted we do not think that there is any point of substance in this ground of appeal.

8. Fourthly (d), the Appellant asserts that the Tribunal was wrong in holding that the Appellant acted in breach of the implied term of mutual trust and confidence by its failing, and they refer back to paragraph (c) which I have just dealt with. In our judgment the position was this. By Mr Stothard's acts over the period of some three months when he had been dealing with Miss Rees and in particular by the delivery of that letter, the manner of its delivery, the timing of its delivery and its content, the Appellant, through Mr Stothard, was acting in breach of the implied term of mutual trust and confidence and the decision which the Tribunal reached (although it might perhaps have been expressed more felicitously) was an entirely correct decision.
9. The remaining grounds of appeal related to paragraphs 8 and 9 of the Tribunal's decision. Those two remaining paragraphs were, in effect, alternative or supplemental grounds of decision. We accept that there could be some criticism of the Tribunal's expression of views particularly in relation to matters relating to equal opportunity which had not been the subject of complaint and about which they heard no argument. However, it does not seem to us that we need to express any views further about those two paragraphs because the decision itself can be upheld on the grounds that we have already indicated. The primary ground relied on by the Tribunal cannot be properly impugned. It was that there was a significant breach of the implied contractual obligation of mutual trust and confidence by reason of the content of the letter, by the manner it was delivered, the timing of its delivery and what was made manifest by Mr Stothard's conduct, that there was going to be no proper investigation but simply an opportunity given to Miss Rees to mitigate what was already a fait accompli, i.e. the finding of a disciplinary offence.
10. In those circumstances, despite the admirable argument of Mr Gilroy, it seems to us that the appeal must fail.