United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR P CHAPMAN (Solicitor) Messrs Mitchells Solicitors 2 Peckitt Street Clifford Street York YO1 9SF
For the Respondent	MR D BASU (of Counsel) Instructed by: Eversheds LLP Solicitors Senator House 85 Queen Victoria Street London EC4V 4JL


 


SUMMARY

Contract of Employment – Wrongful dismissal

Unfair Dismissal – Reasonableness of dismissal

Appellant appealing against finding that she was neither wrongfully nor unfairly dismissed. She had a full time job but worked one day a week with another body in paid employment. The Tribunal held that the employer was entitled to treat this as a repudiatory breach, particularly since they had given her the opportunity to resign from that employment. They also held that whilst there were certain procedural errors, they did not render the dismissal unfair. The appellant alleged that the Tribunal ought to have found that it was the employers and not her who was in breach, and ought to have found that the dismissal was unjustified both for procedural defects and because the person who dismissed had given no real consideration of alternative sanctions. EAT held that the Tribunal was entitled to reach the conclusion that it did.


 


THE HONOURABLE MR JUSTICE ELIAS – PRESIDENT

1. Dr Guernina appeals the decision of the Employment Tribunal, sitting at Watford, in which it held that she had not been unfairly or wrongly dismissed. In a claim before the Employment Tribunal she alleged that, in addition to being unfairly and wrongfully dismissed, she had been the subject of unlawful discrimination on grounds of race, sex, disability and religion, and that she had been victimised for whistle-blowing. She has subsequently dropped some of these claims. Others were dismissed by the Employment Tribunal. Although she sought to appeal some of these findings, she has not been given permission to appeal on the basis that, save for the two matters which I will mention in a moment, the grounds disclose no error of law.
2. The two matters in respect of which she has been allowed to pursue this appeal are that the Tribunal erred in finding that she had been wrongfully dismissed and, in particular, had misunderstood or misconstrued a contractual provision in the contract; and also in concluding that her dismissal was fair. The latter ground has two elements or limbs to it. The first challenges the decision to dismiss and says that it is not a reasonable sanction in the circumstances, and the second challenges the procedure which the employers adopted in reaching their decision.
3. She had contended that the reason for her dismissal was her competence and not misconduct, as alleged by the employers, but the Tribunal found against her on that part of the appeal and it was ruled out at the Rule 3 stage as having no prospect of success. The decision of the Tribunal is reasonably detailed. Even so there was, during the Rule 3 stage and at the point where HHJ McMullen QC gave leave on an oral application under Rule 3(10) for the two issues to go forward, a further request from the Tribunal for additional information as to its findings on certain particular matters. That Tribunal letter, which was dated 6 October 2006, responding to the request, had to be considered along with its Reserved Judgment.

The background

4. Dr Guernina is of Algerian origin and British nationality. She obtained the post of Senior Lecturer in Psychology with the Respondent on 5 November 1998. Prior to that appointment she had held down two posts: one at the Humberside University and the other was a part-time position where she was working a day a week for the Hull and East Riding Community NHS Trust. She claimed that she had told the Respondents about the Trust post. The Tribunal rejected this. They held that, whilst she had made reference to doing work for the Trust in her CV, there is no full disclosure. The way the Tribunal put it in the decision was as follows (paragraph 7.8):

"There is evidence of tacit approval by the Respondent to the Claimant carrying out sessions for the NHS as part of her CPD requirement since these were mentioned and no objection was made. However tacit approval to a partially disclosed commitment does not accord with the requirement in the contract of employment and we consequently find as a fact that the Claimant did not have the requisite consent of the Respondent to work for Hull and East Riding Community NHS Trust on one day per week whilst employed under a full-time contract with the Respondent."

5. In fact the Appellant was able to fulfil her commitments to the Trust whilst being employment by the Respondent because of the terms of the contract which limited her teaching commitments to 18 hours per week. A timetable was arranged in which she would only have to be on campus around three days per week for virtually all the time that she was employed by the Respondent.
6. There were concerns about the psychology subject group. It was not thought to be performing well. Professor Cassidy was brought in to improve the standing of this group some time around 2000. He was, by all accounts, a somewhat abrasive individual who was critical of members of the team, and he sought to improve standards. This involved at one stage requiring all staff to be on campus for five days per week. That would of course include the days when they would normally have worked at home. It seems that the direction to that effect was never fully implemented and there was not, at any stage, an obligation in fact to work five days a week. However, there could in principle be no objection to the employers stipulating that in the contract if there was a proper reason to do so.
7. The Appellant was upset about this direction. It is not necessary to spell out the history, but it appears that on 18 September 2003 a meeting was called to discuss timetabling matters. She told Professor Cassidy of her commitment to the NHS Trust at that stage. That, the Tribunal found, was the first time the Respondent had become aware of her paid employment in the Trust. Thereafter there were further meetings about this matter.
8. The Respondent took the view that while some outside paid work was not incompatible with full-time employment, the particular nature of the obligation undertaken here was. This was a concurrent permanent commitment of one day per week to another employer. Accordingly the Respondent required her to resign from her Trust work. She contended that she had received consent by a Professor McCaffery, who had by then left the Respondent's employment. He was contacted and denied it.
9. She refused to resign from the Trust. There were various meetings arranged. There were delays, partly because she was sick and partly because she did not attend meetings and partly indeed because there was a decision by the Vice Chancellor, who ultimately made the decision to dismiss, not to act on a recommendation for dismissal from the Deputy Vice Chancellor until a grievance which she had lodged had been determined.
10. On 16 February, shortly before the dismissal which took place on 22 February 2005, there was a meeting at which she was represented by her union representative. A number of possible resolutions were suggested at that meeting. One was that the Trust might pay the University for the work she was doing and another was that she might undertake a "four-fifths contract", that is working four days a week. She turned down these proposals, in so far as they were proposals, and it is not clear that they were more than ideas being floated at this stage. She was not sympathetic to them.
11. To go back briefly, on 30 April 2004 a disciplinary hearing had been held in respect of the Appellant's continuing employment with the Trust. It was chaired by Professor Cook. She produced a memorandum in some detail of that hearing. She made a recommendation of dismissal. The matter was then considered further by the Vice Chancellor and there was a memorandum of that disciplinary hearing which was held on 14 December 2004. As I have indicated, he waited until the grievance had been resolved before finally determining to dismiss, which was carried out by letter dated 22 February 2005. The core of the letter giving the reason for dismissal says this:

"I have given the matters raised by the University and yourself extensive consideration. Taking into account all the points raised by your disciplinary hearing and those made by you in your two statements I regret that I am of the view that you have acted in breach of your contract with the University. This is because you sought, accepted and undertook paid employment for the Hull NHS Trust when you were also a full-time member of staff being paid by Thames Valley University under a full contract of employment covering the same period. You have therefore been accepting a double payment for part of your working week at Thames Valley University. I am also of the view that you are in breach of the implied duty of trust and confidence owed by the employee to his employer."

There was an appeal against that decision. It was described by the Tribunal as a thorough review of the disciplinary issues (see para 7.34) but the appeal failed.

12. The terms of the contract of employment are material to this case. They are apparently national terms. Clause 2 sets out the duties and hours of work. Clause 2.1 is as follows:

"This is a full time post and its nature is such that you are expected to work such hours as are reasonably necessary in order to fulfil your duties and responsibilities. Those duties include teaching and tutorial guidance, research and other forms of scholarly activity, examining, curriculum development, administration and related activities. You are expected to work flexibly and efficiently, and to maintain the highest professional standards in discharging your responsibilities, and in promoting and implementing the corporate policies of TVU. In relation to the performance of your duties you will be required to participate in an appraisal scheme approved by the Board of Governors."

13. Then the other relevant clause to consider is clause 10, which is headed "external work". This has been described by the parties as the exclusivity provision. In fact it provides for circumstances where, notwithstanding the full-time obligation to provide services for the university, they will be allowed to do some external work, some of which will be remunerated. Clause 10.2 sets out certain forms of external work for which no permission is required. They include external examining, acting as an assessor, and writing a book. Clause 10.3 is material. It is as follows:

"Your Subject Head will then decide (within 5 working days or whatever other period may be agreed or being responsible in all the circumstances) if that work will:

(a) interfere with the performance of your professional responsibilities: or

(b) compete or conflict with the interests of TVU, in which case TVU may at its sole discretion require you not to undertake the work; such a requirement will not be made unreasonably, will be subject to full consideration with yourself and, if made, will be accompanied by full written reasons for it."

14. As we have indicated, the view of the Tribunal was that the reason for the dismissal was the taking of concurrent paid employment, despite having been told that it was incompatible with her contract. The Tribunal considered that this was, in principle, a good reason for dismissal and that, particularly in the light of the fact that the Appellant had refused all efforts to resolve matters by resigning from her position with the Trust, wrongful dismissal was justified. They also considered that the Appellant had not been unfairly dismissed. They recognised that there had been certain aspects of the procedure that might have been handled better, but they did not consider overall that they rendered the procedure unfair. They held that she was in fundamental breach of contract throughout her period of employment and had she resigned from the Trust then her employment would have continued.
15. The three matters which they did focus upon as being procedural blemishes were, first, the failure formally to suspend the Claimant from her work between February 2004 and her dismissal in February 2005; the fact that Professor Cook had, in her recommendation to the Vice Chancellor, identified performance issues as a matter of concern as well as misconduct and she had accepted apparently under cross-examination that that was inappropriate; and finally, the delay in reaching the conclusion on the disciplinary issues, to which we have already made reference.

The grounds of appeal

16. The grounds are essentially threefold. First, it is said that the Tribunal has misconstrued clause 10 of the contract. Furthermore it is submitted that, in any event, there was no proper or reasoned basis on which the employers could have taken the view that there was a breach of clause 10 had the employers properly considered the terms of clause 10.3 of the contract. Second, it is said that there are procedural breaches which ought to have rendered the decision unfair. The argument here must be that the decision of the Tribunal was perverse and not one they could properly reach, or else that they had misdirected themselves in some material way. Third, it is said that there was no proper assessment of whether dismissal was a reasonable sanction in all the circumstances, and the conclusion ought to have been that it was not.
17. Taking the construction point first, Mr Chapman, who ably represented the Appellant in this matter, contended that there had been clear procedural failures by the employers in the way they had dealt with this matter. He pointed out that clause 10.3 of the contract requires a decision to be taken as to whether paragraphs a) or b) of that clause have been infringed. That should be after full consultation with the Appellant and there should be a full statement of written reasons for the decision, at least in circumstances where that decision is not to permit the external work to be carried out. The clause talks in terms of obtaining permission, or seeking to obtain permission, "before you enter into an obligation to undertake any external work".
18. Mr Chapman submitted that it would be unduly literal to read the words as they are writ. He submitted that the obligation to go through the procedure would apply even in circumstances where the employee had committed himself or herself to undertake external work and where the employers came to know of that at some later stage. He drew an analogy with applications for planning permission. He said that if you start building your house without planning permission then you can subsequently seek to obtain that planning permission without first having to pull your house down. Mr Basu pointed out that in fact the Appellant's case had been that she had sought permission from the beginning and that this submission now advanced was, in truth, highly artificial.
19. In our view it is not possible to read the contract in the way in which Mr Chapman suggests. The terms of the agreement make it plain that it is obligatory for the employee to seek to obtain permission prior to undertaking the work. If that is not done then there can be no obligation on the employer to go through clause 10.3. That is what the Tribunal say in the supplementary letter, was its conclusion on this matter. If that is right then the criticisms about failing to comply with the appropriate procedures all fall by the wayside.
20. Strictly, it seems to us, the employers were therefore entitled to say that, having taken employment without consent, the Appellant should give up that employment and, if she wished to take advantage of the clause 10, should make a fresh application in circumstances where she was merely seeking that employment. We accept entirely Mr Chapman's point that that is all rather artificial and that it makes much more sense for the employers to treat her as though she were making an application, but we are looking at this in the context of determining whether the employers are in breach of their contract, and it does not lie well in the mouth of this Appellant, who has herself infringed the terms of clause 10 by failing to seek to gain permission in advance of taking up a post, thereafter to contend that it is the employers who are in breach in failing to comply with the procedure which they would have had to honour had she acted properly in the first place.
21. Of course we recognise here that she had already undertaken this job prior to getting an appointment, but that, it seems to us, cannot assist her. It simply means that she should have made that disclosure at an earlier stage. It may well be that she would never have got the employment had the University known of the nature of her obligation.
22. Strictly it is not necessary to deal with Mr Chapman's alternative point that it was not open to the employers to conclude, in accordance with clause 10, that she should be precluded from carrying out this work. His case, putting it very briefly, was that clause 2 of the contract does not require her necessarily to be at work five days a week; it simple obliges her to make sure she has reasonably carried out her duties to the University. In practice she had not been asked to be on the University premises five days a week, except when she received this direction from Professor Cassidy, and even that was never formally implemented.
23. Mr Chapman said that if and insofar as any conflict might have arisen, no action should have been taken until it had actually arisen and then it might well have been resolved. He submits that there was no obligation on her to work Fridays for the Trust. That is what she did in practice but there was some evidence, he says, that she indicated that she could change the day. There is a letter from the Trust which we have seen to that effect. He says that the real objection was not that she was working this one day a week for the Trust but rather that she was being paid for it. He submitted that the fact that she received payment ought to have been entirely irrelevant. It did not, of itself, make the risk of any interference with the performance of her responsibilities any greater, nor did it give rise to any greater competition or conflict of interest. If she could do this work voluntarily then she ought to have been allowed to do it paid. He submitted that it was plain from the suggestion that the Trust might pay the money to the University that it was really the money that was the principal concern. He points out that certain other officers of the University had said that it was valuable for her to carry out this work.
24. We accept that there is some evidence to support the contention that a very significant, if not the principal, concern here was the fact that she was being paid for this work. We, however, reject the contention that this was not a material factor to consider. It seems to us that it is highly material. The fact of payment creates a potentially conflicting contractual obligation; it is very different from a voluntary activity. Even if there was no duty to carry out her work on a Friday, the fact is that, by accepting paid employment elsewhere, she was putting herself in a position where there might be potential conflicts between the two employers. Moreover, the University was paying her to be available, without difficulty, if necessary, on five days a week. They could perfectly reasonably take the view that they were not happy to have to have matters resolved on each occasion when there was a potential conflict. They could not guarantee necessarily that the Trust would give way and that their interests in this matter would always win the day. Accordingly, even had we thought that clause 10 was applicable, we would not have accepted that it was a perverse or irrational position for the University to take the view that they would not permit her to carry out this work in the way in which she was doing it.
25. We have no doubt that, having come to the view that there was this breach of contract, and given that her position was a deliberate and considered one and involved a refusal to comply with the University's attempts to resolve matters by getting her to resign from the Trust, the Tribunal were correct to say that this was a repudiatory breach entitling the employers to dismiss. Of course there was no obligation for the Appellant to leave the Trust. That was a decision for her. But she cannot then, in our view, complain if the University says that she is not giving to them the full range of obligations which she has undertaken in her contract of employment.
26. We turn briefly in the context of the dismissal to consider the contention that the decision to dismiss was unreasonable and unfair. As we have indicated we think that, in principle, it was a perfectly appropriate sanction and one which a reasonable employer could impose. The argument advanced by Mr Chapman was a little more subtle, however. The decision to dismiss was taken by the Vice Chancellor, although in fact it was also confirmed on appeal, but even focusing on the Vice Chancellor what is said is this. He did not come to give evidence before the Tribunal, yet when he wrote the letter he said that he had "no alternative" but to dismiss for the reasons given. It is said that he was adopting some form of tariff system and not assessing the facts of the particular case.
27. We wholly reject that observation. It seems to us that what was fundamentally happening here, as Mr Gammon noted in an observation in Court, was simply "I have come to the view that that is the only appropriate decision".
28. It is also suggested that the decision to defer the matter until after the grievance procedure is inconsistent with a finding that he had no alternative but to dismiss. However, he made that decision, the grievance having been heard. He may well have decided to act earlier, but he chose to wait and see if there was anything in the grievance which might perhaps give him food for thought. In the event there was not and he considered that dismissal was appropriate. We see no possible complaint about that.
29. The other ground is the procedural ground. In part this repeats the matters which were considered by the Tribunal, in particular the contention that the suspension was unlawful. In addition Mr Chapman has referred us to the decision of this Tribunal in Lock v Cardiff Railway Company [1998] IRLR 358, and in particular to the passage in the judgment of Morrison J (then President) to the effect that Tribunals ought to have regard to the Code of Practice if it appears to be relevant, whether or not it is expressly referred to them. He accepts frankly that he did not make any reference to the Code itself, but he prays it in aid in various ways in support of his contention that there were procedural defects which existed in this case.
30. We would simply emphasise that it is well established that breach of the Code does not of itself give rise to any legal remedy and does not of itself establish that a dismissal was unfair. It is a factor to consider in all the circumstances when determining the fairness of the procedure. In our view the Tribunal was entitled to take the view that the defects in suspension were really of no great weight. They may, of course, have been relevant to the employee insofar as she was out of pocket because she was suspended, I gather, on half pay rather than full pay, but they do not go to the fairness of the fundamental procedure which was adopted in determining whether or not she should be dismissed.
31. Second there is a complaint about the fact that the Vice Chancellor did not come to the Tribunal and give evidence. The Tribunal did make some reference to that and they noted that they had a detailed memorandum or minute of the disciplinary meeting which had taken place prior to his decision to dismiss, and they also had evidence from the Secretary who had attended that meeting.
32. We would accept that an employer who does not send the person who has dismissed to a Tribunal is taking a risk that there may be doubts as to the genuine reason for the dismissal, but the Tribunal in this case considered that they could reach a proper conclusion on that matter. As we had said, there is no permission to take the question of the reason for dismissal any further in any event. It seems to us that this is all that this point goes to. Essentially it is being said that the Tribunal did not have a proper basis for being sure that the question of competence was not considered, but the Tribunal had an evidential basis for dealing with the matter as they did and, in fairness to the Tribunal, it must have been plain that the principal concern here was the work being carried out for the Trust and not questions of competence because of the efforts that the University were prepared to make to retain the Appellant in employment if she were willing to give up work with the Trust. It would have been inconsistent with a finding of dismissal for incompetence to have given her the opportunity to give up the potentially competing or conflicting work in that way.
33. Finally there is a procedural complaint about alleged bias. It is emphasised, quite properly, that the Code of Practice says that those hearing disciplinary procedures should normally be independent persons. There are two criticisms here. One is directed against Professor Cassidy, who wrote a memorandum which may well have been considered by the Vice Chancellor on 31 January 2004, in which he expressed the view that the Appellant's contract should be terminated.
34. The Tribunal considered this and was satisfied that this memorandum in fact had had no influence on the decision to dismiss, neither the decision of the Vice Chancellor nor, insofar as it is necessary, on the appeal body. The complaint here, it seems to us, is really directed at the failure of the Vice Chancellor to come and give evidence, which is a matter with which we have already dealt. What is being said is: here is this important letter, it may well have swayed the Vice Chancellor's mind and we do not know because he is not here for us to be cross-examined. So this aspect of the case seems to us to take matters no further. The Tribunal considered the point and rejected it.
35. Finally there is a complaint about the fact that Professor Cook, who carried out a disciplinary hearing leading to the recommendation to dismiss to the Vice Chancellor, was also biased and ought not to have heard the case because of her earlier involvement. We have seen a memorandum that she sent to various managers dealing with the problem of poor performers. She clearly considered the Appellant to be a poor performer and she described her as being very manipulative. It is submitted that in the circumstances she ought not to have heard this appeal.
36. It is true to say that the Tribunal do not expressly deal with this matter in its decision. However, we would make a number of points in relation to this. Firstly we do not accept that that memorandum is in fact directly dealing with the issue that she had to consider relating to this employee. Management will often have to make decisions of a disciplinary nature about employees when they will have strong views, in some cases, about their qualities, or lack of them. It does not mean that they are not able to act professionally and to put those considerations to one side. She had not been involved in any direct way with the issue of whether these were conflicting obligations or not, nor had she expressed any views about that matter. She refers in email to the fact that there was knowledge by then that the Appellant was committed to the NHS trust on Fridays, which is what was thought to be the case, but she has expressed no views about whether that was the right or wrong thing for the appellant to be doing. Furthermore she was making a recommendation; she was not making the final decision.
37. There was a further disciplinary hearing before the Vice Chancellor made his decision and, even at the last moment, the whole question of dismissal could have been avoided had the Appellant been willing to give up her employment with the Trust. The key complaint she had was that the employers ought not to have considered that it was a conflict appearing within the terms of rule 3.10 so as to justify preventing her from undertaking this work. It does not seem to us that the decision of Ms Cook, subject as it was to the further consideration of the Vice Chancellor after a disciplinary hearing and then yet further appeal with another right to make representations, is such as to render the procedures here unfair.
38. Accordingly, for these various reasons, and notwithstanding the attractive advocacy of Mr Chapman, we reject this appeal.