United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR ANDREW HOGAN (Of Counsel) Instructed by: Messrs Maclaren Britton Solicitors Grosvenor Chambers 23 King Street Nottingham NG1 2AY


 


MR JUSTICE HOOPER

1. This is an appeal against a decision of the Employment Tribunal held at Leicester and chaired by Mr Price. The hearing took place on 12 and 13 November 2000 and Extended Reasons were sent to the parties on 2 October. By their unanimous decision the Tribunal found that the dismissal was not unfair and that a claim for unlawful deductions from the Applicant's wages be dismissed.
2. The Respondent is a relatively small charity which helps adults who have sustained brain injury. It employs some 14 persons in its office from where the Appellant worked. Sylvia Davis was the general manager and Sue Hannam her deputy. These two dealt with the general administration. They reported to the trustees. Administrative resources were therefore limited (see paragraph 4(c)).
3. The Appellant reported to Sue Hannam. His duties were to provide support and advice to those who suffered from significant brain damage and to their relatives and carers. He was also required to assist in a range of appropriate activities and to liaise with the various agencies. He had at the time about 30 clients (see paragraph 4(d)).
4. He worked on a peripatetic basis. He was required to prepare a service plan for each of his clients. He had to keep a weekly record of the hours spent with his clients. These documents were referred to in fortnightly meetings with his line manager. In this manner his work could be monitored. His diary for the following fortnight was discussed and appointments agreed (see paragraph 4(e)).
5. On 19 July 1999, all staff were reminded of the need to keep line managers provided with the necessary information. At a meeting on 25 October Sylvia Davis expressed her concerns to the Appellant about his apparent lack of accountability and his failure to keep his records at Headway House. She said that since September he had not been supplying his line manager with written particulars of his contact with clients. The Appellant, so the Tribunal found in paragraph 4(i), replied by criticising her management skills. He accused her of talking down to him. He refused the offer of help with his administrative duties.
6. Sylvia Davis and Sue Hannam were concerned about the Appellant's desire for autonomy. A further meeting was arranged for 2 November at which Sylvia Davis read out the specific requirements she expected him to fulfil. The Appellant told her that if he had known that he would not have autonomy, he would not have applied for the job in the first place. He had brought none of his files with him and so Sue Hannam requested him to bring them in on 9 November and to complete his timesheets and diary before he left.
7. The Appellant told her that he would have to think about the situation generally. He left the building without taking any of the requested steps. Those findings of fact can be found set out in paragraph 4(j) of the Extended Reasons. There was then a meeting of 9 November. At that meeting the Appellant was given a verbal warning because of his failure to complete records before leaving on 2 November as he had been requested to do and because of his failure to bring his records to the meeting.
8. We have been provided, as was the Tribunal, with the notes of that meeting. What is clear from those notes is that in addition to the concerns by the line managers, the Appellant was saying that he wished to discuss these matters with Michael Switzer who was the chairman of the charity. He wanted to discuss with him "his achievements and concerns" and he was prepared to have his files and administrative documents available at such a meeting. In other words, the thrust of what the Appellant was saying was that he had no confidence in his line managers and he was prepared to do that which he was required to do but only if the chairman was prepared to see him. The notes record that he was definitely not prepared to leave his files at Headway.
9. On 23 November there was a meeting with Mr Munro, one of the trustees. At that meeting a written warning was given to the Appellant because of his continual refusal to provide information on his activities. A copy of that letter has been provided to us. It provides:

"Under the terms of the above policy [the disciplinary procedure] this letter constitutes Stage 2 of the Disciplinary Procedure being a Formal Written Warning."

This letter written by Mr Munro, Chair of the Disciplinary Sub-Committee informed the Appellant that formal discussions with Sue Hannam had sadly failed to result in his compliance with basic administrative and management requirements of the organisation. There is then set out the reason why the oral warning had been given. The written warning warned the Appellant that there was:

"no alternative but to inform you that unless immediate compliance with management requests already outlined to you is forthcoming, this organisation will inevitably move to Stag 3 of the Disciplinary Procedure and could lead to eventual dismissal."

10. In the penultimate paragraph Mr Munro wrote:

"I shall write to you within seven days and invite you to an interim disciplinary hearing when the matter will be formally discussed."

11. Finally, in the last paragraph the Appellant is strongly advised to read the Disciplinary Procedures. Criticism is made of the procedures followed. Under the Disciplinary Procedures it appears that the Stage 2 proceedings should be conducted by three trustees rather than just one and that written statements should be taken from all parties involved.
12. Criticism is made of the failure to comply with that requirement under the procedures. Criticism is made of the failure to examine the Appellant's own grievance, namely his lack of confidence in his line managers and criticism is made of the Employment Tribunal in not specifically addressing this point. In paragraph 4(l) the letter is set out and the Tribunal goes on to state:

"His response to the warning made it clear to Mrs Davis that the Applicant did not intend to make his records available to her or Miss Hannam. She therefore suspended him and took charge of his caseload because she was concerned that vulnerable clients could be a risk. Further, she was concerned that his refusal to provide information on his activities could place the charity itself at risk."

13. Although it might have been better if the Tribunal had dealt with the apparent failure to comply with the Disciplinary Procedure and although it would have been better if the statement had been taken from the Appellant, one must bear in mind that what the Appellant here was doing was refusing to produce the documents. There was obviously a conflict between him and his line managers. Nonetheless, his employer was quite entitled to take the view that what the Appellant had to do was comply with the lawful request of his line managers namely produced all this documentation.
14. The Employment Tribunal found that the procedure was fair (see paragraph 7(a)). We take the view that this is not a perverse conclusion or one that involves any error of law. We interpose at this point to say that during the hearing and indeed in the grounds of appeal, it is suggested that the Respondent conceded that the Appellant had provided all the documents other than the diary. We cannot accept that submission. It is not consistent with the decision.
15. The Appellant accepted that he provided no explanation for his refusal to comply with his line managers' requests. He merely made repeated criticisms of his managers. He indicated no regret for his conduct and admitted that he had deliberately withheld records and information. He accepted that he had meant to be difficult. It is inconceivable in our view that, if the concession for which the Appellant now contends, had in fact been made, the Employment Tribunal would have reached the conclusions which they reached.
16. We turn to paragraph 4(m) of the Reasons:

"The applicant's failure to heed or comply with the written warnings led to disciplinary proceedings being taken against him. He was informed of these by letter dated 25 November 1999. (That letter has not been placed before us). The Appellant was informed of the specific allegations which were being made, his rights, date of hearing and the risk of dismissal."

The disciplinary hearing took place on 8 December. It said by Mr Hogan that this was the first occasion during which the Appellant could put his case, namely that there was a conflict between him and his line managers and that conflict should be addressed before his employer considered whether or not he was in breach of his obligations by not providing the necessary material to his line managers. We do not accept that that was the first time that he had an opportunity to put his case. He could have done that and indeed probably did do it earlier, as we have already indicated.

17. At that disciplinary hearing once again the Appellant conceded that he had not complied with the request. It submitted that by not addressing the alleged conflict, the hearing was "short-circuited". The Appellant throughout refused to comply with the proper directions of his line managers and the Respondent was entitled to require him to do so without first resolving any such conflict.
18. This was a small charity and the Appellant was given ample opportunity to correct his ways. His stance through all times was "I will not do anything until I have a chance to see Mr Switzer and produce the files to him". That is not the task of the Chair of a small charitable organisation. We take the view that the Appellant has only himself to blame for what happened in this case. The Tribunal set out its conclusions clearly in paragraph 7 of its Reasons. Those conclusions are not arguably perverse and this Appeal fails.