United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	THE SECOND APPELLANT IN PERSON


 


MR RECORDER UNDERHILL QC:

1. The appellants employed the respondent, Mrs Stevens as a care worker at their residential home for the elderly. On Christmas Day 1999 at 6.30 a.m. Mrs Stevens found that one of the elderly residents of the home had died. She did not at once call the doctor because, as she said and as the tribunal found, she and her colleague Mrs Robertson were expecting Mr Bills to arrive within the next 20 minutes and he had access to the various details which the doctor would require and they did not. Mr Bills duly arrived. He asked Mrs Stevens to call the doctor but she said that it would be better if he did so because he had all the relevant information. The appellants say that Mrs Stevens refused point blank to call the doctor and did so in offensive terms. The tribunal, however, found otherwise.
2. On 29th December 1999 Mrs Stevens was dismissed with immediate effect for both the initial failure to call the doctor and for, as the appellants alleged, refusing a reasonable instruction from Mr Bills to call the doctor after he had arrived. The dismissal was confirmed by letter dated 4th January 2000.
3. Mrs Stevens brought proceedings for unfair dismissal and also for wrongful dismissal, in as much as she had not been paid the notice pay which she said was due.
4. The tribunal heard evidence from the parties and had statements from three other employees, including Mrs Robertson. They held that the dismissal of Mrs Stevens was unfair because no kind of proper procedure, or investigation into the alleged misconduct, had been followed prior to the decision to dismiss. They also found in connection with the claim for wrongful dismissal that Mrs Stevens had not committed any act of insubordination or misconduct sufficient to justify summary dismissal. In particular, they found that her preference that Mr Bills rather than herself should call the doctor was a reasonable one. To quote from paragraph 22 of the extended reasons:

"… our finding is that the Applicant did question Mr Bills' instruction to telephone Candoc [the service which provided the doctor], but she had reasonable grounds for doing so because she believed that she did not have the information Candoc would require. Her behaviour was not an insubordinate refusal to obey a reasonable instruction …."

Although it does not appear from the reasons that express consideration was given to questions either of contribution or of what the consequences of following a fair procedure would have been (in accordance with the decision in Polkey), the finding of the tribunal on wrongful dismissal, as we have just set out, effectively precluded any argument as to contribution or that this was a case of procedural unfairness where the applicant might be entitled to no, or to reduced, compensation.

5. The appellants feel deeply aggrieved by the decision of the tribunal. They believe that Mrs Stevens had acted grossly irresponsibly in not calling the doctor as soon as she found the patient dead and that it was wrong to delay for even the twenty minutes before the expected arrival of Mr Bills. They also believe that the tribunal were wrong to hold that Mrs Stevens did not refuse a reasonable instruction and that her stance was justified. But those were precisely the questions which it was for the tribunal to consider. They did consider them and they did not accept the appellants' arguments.
6. No appeal lies to this tribunal unless those conclusions by the Employment Tribunal can be shown to have been wrong in law or unsupported by any evidence. We cannot accept that there was no evidence on which the tribunal could properly have reached that conclusion. We cannot see any misdirection in law. This appears to us to be pre-eminently a case in which the tribunal was obliged to make factual findings and where the findings cannot now be challenged. Neither the contents of the Notice of Appeal nor Mrs Bills' deeply felt oral submissions to us have revealed any arguable basis of law; and we accordingly dismiss this appeal.