United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MRS BEATTIE (the Appellant in Person)


 


JUDGE J R REID QC:

1. This is the preliminary hearing of an appeal by Mrs Beattie against a decision of an Employment Tribunal held at Flint on 24 April 2001. Extended reasons were sent to the parties on 3 September 2001. By that decision the Tribunal unanimously held that the Applicant, Mrs Beattie's, three complaints against Convatec, her former employers, for unfair dismissal and breach of health and safety at work failed.
2. The appeal has been limited so far as one can tell to the unfair dismissal point. The facts very briefly are these: Mrs Beattie was employed by Convatec and she was concerned about the activities of what she regarded as being a clique on the shop floor. She contacted the head of human resources to state her concern but this warning wasn't acted on. In due course she and a fellow worker, Mrs Evans, became the focus of attention of members of the clique. Insults, accusations and comments were made. The Applicant who was a packer operator was at this time working on the night shift as she had been since October 1997 though that position had only become regular from January 1998.
3. There is a finding of fact by the Tribunal that a complaint of bullying and harassment was made against one of her close friends and that the allegation which was supported by witnesses was upheld. The friend was disciplined on 22 October 1999. Mrs Beattie is adamant that this finding of fact is incorrect and that the person disciplined was not a close friend. However as I'm sure she appreciates having received the helpful advice of Mr Wolfenden under the ELAAS scheme, this Tribunal cannot re-litigate issues of fact. Following that incident, Mrs Beattie registered a complaint of bullying and harassment against a Mrs Janice Andrews who had been one of the witnesses in the case involving the person held by a Tribunal to be Mrs Beatties's close friend. There was an investigation and the Tribunal held that as a consequence of there being no witnesses, I presume that means no independent witnesses, no action was taken because the employer was unable to satisfy itself that the allegations were correct.
4. Mrs Beattie continued to file her grievance through three levels of management. She met first of all with a Mr Burke, the Respondent's manufacturing manager. Dissatisfied with that outcome she went to the next level to Mr Higginbotham, the manufacturing director and requested action from him on two successive occasions. On 27 January she reached the Vice President complaining that she was still dissatisfied. The Tribunal found as fact that at each level the allegations were reviewed and that appropriate action was taken to address the personality conflicts. The Tribunal's finding is:

"Janice Andrews was however still not disciplined as was the Applicant's desire"

5. Mrs Beattie has stressed that what she was concerned with was her good name because she asserted that Mrs Andrews had accused her of sabotage rather than any disciplining of Mrs Andrews. However, I repeat that the findings of fact are a matter for the Employment Tribunal and not for this Tribunal. She was unhappy to continue working on the nightshift with Mrs Andrews and so was provided with three months notice from 4 February 2000 that Convatec would be invoking the terms of her contract requiring her to revert double-dayshift working. On 21 February she reported sick and the occupational health physician of Convatec advised that Mrs Beattie would not return to work until the management team had taken action against Mrs Andrews.
6. On 6 April Ms Beattie wrote the Vice President again requesting the highest level hearing under the grievance procedure. Following that there was a meeting between her and the Vice President on 26 April with a trade union representative present. She complained she did not want to move off nights and she expected Convatec to do something to clear her of allegations of sabotage and until that happened she would continue to suffer from depression. The Vice President explained the decision to move her from nights was the right decision given the circumstances for the time being. He also, according to the Tribunal, confirmed the comment about sabotage was an opinion shared during a meeting at which Mrs Beattie was present and he confirmed that Convatec did not believe she was sabotaging work and that by not moving her from her role as an operator Convatec had confirmed her integrity and its confidence in her.
7. After that the Trade Union representative contacted her to apologise for his involvement in the meeting. He explained that he had advised her that Convatec's actions were reasonable in addressing the complaints. The Vice President then confirmed the outcome of the final grievance hearing and requested she should return to work on 2 May on double dayshift. Following a letter to her from Convatec advising her that it considered it had taken all reasonable steps and believed it could now provide a reasonable alternative that would provide a safe working environment for her, there was a telephone conversation with the Applicant. During the course of that conversation Mrs Beattie confirmed that she did not consider there was anything further that Convatec could do for her but she was not prepared to discuss the option of part-time or flexible hours to accommodate her to return to work until something was done about Janice Andrews and her complaint.
8. Mrs Beattie was advised the situation had been addressed and Convatec now needed to manage her absence. She was adamant that she would not discuss returning to work until something was done. She was then again advised that no further action could be taken and that Convatec would offer her part time work to adjust her back to double day shift. This she refused. Then following discussions she was dismissed with effect from 31 May, the grounds being capability and refusal of offer of reasonable alternative employment. She did not appeal against that decision and told the Tribunal she was too ill and that in any event she relied on her trade union to represent her best interests.
9. Now that is a recital of the facts as found by the Tribunal. Mrs Beattie does not accept those findings of fact, but those are the findings of fact with which the Employment Appeal Tribunal has to live. The complaints that were made about that in the notice of appeal which was lodged on her behalf by the Wirral Health and Safety Centre, start with what have largely been allegations or errors of fact. A number of the assertions do not appear to be borne out by what is in the decision below but so far as anything that looks like an allegation or an error of law is concerned, it is alleged that the employer did not identify its principal reason for her dismissal and therefore could not establish a proper reason under section 98(1)(a): That it seems to us in incorrect. The reasons given for the dismissal by the employer and accepted as being the reasons for the dismissal by the Employment Tribunal were capability and refusal of the offer of reasonable alternative employment.
10. The reason for dismissal for capability was because she was signed off work ill and the occupational health practitioner took the view that she was likely to continue until some sort of resolution was reached about the grievance procedure. That was not a practical possibility given that the grievance procedure had been properly operated and exhausted. She was therefore liable for dismissal on the grounds of capability but she had been offered the alternative of double dayshift working and indeed a means of getting back to that through flexible and part-time working. That it seemed to the Tribunal was a suitable offer of alternative work, given that her health issue was one which arose out of the requirement that she should not work with Mrs Andrews. Since she was not prepared to accept this, the reality was that there was no prospect of her returning to work and thus there was no capability. Thus was a potentially fair reason for dismissal. In a nutshell, she couldn't work with Mrs Andrews, the company had exhausted its grievance procedure, was not prepared to move Mrs Andrews or discipline her. The evidence was that Mrs Beattie's medical condition would not permit her to work in those circumstances. She wouldn't work at any other time, therefore she was not capable of working and there existed a potentially fair reason for dismissal.
11. The Tribunal in our judgment rightly held that the grievance procedure having been dealt with properly, speedily and not being pre-judged, there was nothing more that the employer could do. Indeed Mrs Beattie accepted this in cross-examination. In those circumstances it was inevitable that the Tribunal should hold that capability was the eventual reason for dismissal and that she was fairly dismissed. The conclusions the Tribunal came to, namely that there had been no unfair dismissal and no breach of contract were in our view on the findings of fact which we have to deal with inevitable and there is no error of law in demonstrated in those findings.
12. In the circumstances therefore, it seems to us that there is no prospect upon any appeal succeeding and the appeal should be dismissed at this stage.