Nagalingam v Lewisham & North Southwark Health Authority [1993] UKEAT 90_92_1901

EAT
Nagalingam v Lewisham & North Southwark Health Authority
[1993] UKEAT 90_92_1901 · 1993-01-19
MR JUSTICE KNOX: This is a preliminary hearing of an appeal by Dr Nagalingam from a decision of the Industrial Tribunal at London (South) after a hearing which extended over five days in October 1991, the decision being sent to the parties on the 23rd December, when the Industrial Tribunal held that Dr Nagalingam's application in respect of claimed unfair dismissal was dismissed.The jurisdiction of this Tribunal is limited by Section 136 of the Employment Protection (Consolidation) Act 1978 to questions of law arising from any decision of, or arising in any proceedings before, an industrial tribunal under, or by virtue of, that Act of 1978 which is the Act which sanctions unfair dismissals in Part V of the Act.This is an unfortunate matter which has led to the dismissal of a professional person for, at the end of the day, what seemed to us to have been personal differences which might perhaps, had matters fallen out differently, have been avoided. However, we certainly have no power to re-write history and we have to find the facts as they have turned out and in particular we are bound by findings of the Industrial Tribunal on fact subject only to two well known qualifications where a point of law may arise. First, if there is a finding for which there is no evidence whatever. Secondly, if there is a finding which is described in the authorities as perverse. The exact circumstances that perversity is capable of embracing is not entirely clear but certainly it is clear on the authorities that it is only in the most exceptional circumstances that this Tribunal is justified in treating as perverse a finding of fact by an industrial tribunal and their conclusion in the exercise of the discretions that Parliament has conferred upon them falls into the same category. It, therefore, is not enough, in particular, for this Tribunal to form the view, if it does, that it would have decided the case differently. That is not the test. The test is whether the Industrial Tribunal has been guilty of an error of law in reaching the conclusion that it did.With that preamble we turn to look, shortly, at the basic facts. Dr Nagalingam is, as we have mentioned in passing, a professional person, she is a qualified Doctor, and she has not only an MBBS from Sri Lanka, which is her country of origin but also an LRCP and a DPH (Diploma in Public Health). She started to work with the Respondents, the Lewisham & North Southwark Health Authority, which I will call the "Health Authority", at the end of March 1985. There was a written contract of employment the first paragraph of which was:
"I have pleasure in confirming your appointment to the above Authority as a Clinical Medical Officer commencing on 25th March 1985. You will be based at The Community Health Service Headquarters and you will be responsible for undertaking duties throughout the Health District. You will be accountable to the specialist in Community [I think the last word is "Medicine" but it does not matter much]."
Dr Nagalingam told us, that there was contemporaneously, an informal agreement that she would not be asked to work throughout the Health District as the contract provides but that she would be engaged in one of the areas in the District, namely, the Southwark area and not in other areas, which as the name of the Health Authority indicates were in Lewisham, and that was the basis, she claims, on which her employment was conducted for the first several years of it. There were some disagreements between Dr Nagalingam and others engaged in the Health Authority work. It is not necessary for us to go into the details of those because they are not directly relevant to the issues that arise but in particular there was an occasion when there was an altercation, is perhaps a strong word, but certainly a difference, between her immediate superior, Dr Jesuvant and herself, in respect of which she was given a formal warning, but that was eventually discharged on appeal because it was found, by the ultimate appellant body, that Dr Jesuvant might have used abusive language to her Dr Nagalingam and so that was, so to speak, expunged from the record. The events which directly gave rise to the unfortunate dispute that brought about the termination of Dr Nagalingam's employment really start in the middle of 1990. There was a decision taken in July of that year that Dr Nagalingam should move to a different zone within the Health Authority's district working to a new SCMO. That was stated to be Mrs Scullion's decision. She was a lady who was the Director of Community Health Services, an administrator rather than a medical person, and very shortly after writing the letter which the Industrial Tribunal quotes from in its decision which contains the decision by Mrs Scullion that it would be helpful:

"if you moved to a different zone within the district, working to a new SCMO."

Mrs Scullion was replaced by another lady Ms Brough who took over and who, obviously, was concerned to implement that decision. There was, the Industrial Tribunal found, and Dr Nagalingam did not challenge this, a meeting on the 23rd July 1990, in which Dr Nagalingam while making clear her position that she neither wished nor was bound to move from where she was content to work in the North Southwark area to the West Lewisham area, which was what management wanted her to do and that there was no problem in her relationship with Dr Jesuvant, nevertheless, at that meeting agreed that as a temporary measure for two months from the beginning of the Autumn school term, she would work in the Lewisham area. There was a conflict of evidence about this meeting before the Industrial Tribunal, and the Industrial Tribunal preferred the evidence of Dr Nagalingam and her BMA adviser Mr Barr, to that of Ms Brough whose evidence had been that there was no such firm arrangement as two months come to. The Industrial Tribunal, as I say, preferred Dr Nagalingam's evidence on this and found that the agreement was that she would move for a temporary period of two months, and that at the end of the trial period Dr Nagalingam could move back to North Southwark if she wished although the hope of management was that she would stay in Lewisham. There then was some contact between Ms Brough, who had taken over from Mrs Scullion and Dr Nagalingam, as a result of which it became clear that there was a difference of opinion about the length of time that Dr Nagalingam was committed to going to Lewisham instead of Southwark and that remained, effectively, an unresolved situation. In accordance with the agreement that had been reached Dr Nagalingam did move to West Lewisham in her work and started in fact, on the 4th rather than the 3rd, which was a day when she was on leave and this led to another situation that caused friction because there were two SCMO's who were immediately above her because the SCMO job was being job-shared. They were both, of course, medical persons, Dr Cooper and a Dr Nesbitt, and there had previously been friction between Dr Nagalingam and Dr Cooper and there was again another issue between the way in which management viewed things and the way in which Dr Naglingam saw them. What the Industrial Tribunal said about this was:
"She [that is to say Dr Naglingam] again, mistakenly we find, believed that her main contact would be with Dr Nesbitt."
Dr Nesbitt, of course, was the Doctor with whom Dr Nagalingam had no issue at that point, and her, Dr Nagalingam's attitude was that she was prepared to work with Dr Nesbitt but not with or under Dr Cooper. However, that was not a view that was shared by management. There then were two relevant meetings of SCMO's and CMO's, or such of them as attended. There was one irrelevant one on the 5th September which the Industrial Tribunal found that Dr Nagalingam attended and co-operated at, and no issue arises with regard to that. The first one that was significant was one on the 23rd October which was attended by Dr Nagalingam in a sense, in that she was in the room when the meeting started, Dr Cooper was not there so this is not an episode that was affected by the personality differences between those two ladies, but Dr Nesbitt was, as was Mrs Atkinson zone manager for Lewisham. The meeting was described to us today by Dr Nagalingam as one in which she was in the room but did not take part in because those present were talking about something that she did not agree with any way and there was, it was found by the Industrial Tribunal, a stage when Dr Nagalingam left the seat that she had been occupying and walked to another part of the room. The only difference between Dr Nagalingam's view of what happened on that day and what the Industrial Tribunal found about it was with regard to an observation which Dr Nagalingam when asked to join in the meeting accepts that she said, namely:

"You are going to sack me anyway"

whereas the finding of the Industrial Tribunal was that she said:

"she would like to be given the sack."

Not very much, we think, turns on that difference.More serious were the differences that arose in relation to a meeting on the 5th November 1990, which was when the next meeting between SCMO's and CMO's for that area was scheduled to take place. Dr Nagalingam did not attend. That was because the two month period, which Dr Nagalingam rightly as the Industrial Tribunal found, claimed she had agreed to work at Lewisham for, had expired on the 3rd November 1990, and Dr Nagalingam's attitude as from then on was that she had done as much at Lewisham as she was bound to do but she did take the view that she would continue to do the clinic work with children, which was her main concern, so as not to adversely affect their interests, but that degree of co-operation did not extend to attending meetings between SCMO's and CMO's. This of course was exacerbated by her reluctance to accept Dr Cooper as part of, or one of her SCMO's. There was contact between Dr Nagalingam and Dr Cooper on the 13th November which the Industrial Tribunal found resulted in a refusal by Dr Nagalingam to attend Dr Cooper's office and as a result of advice that Dr Cooper took from personnel people the Industrial Tribunal found that Dr Cooper and Dr Nesbitt decided they would try to see Dr Nagalingam at the school that she was then attending while conducting a clinic there. On that occasion they met and disagreed, the Industrial Tribunal finding that Dr Nagalingam had explained to her by Dr Cooper that she, Dr Cooper, was concerned that Dr Nagalingam refused to attend meetings and refused to accept her as her manager. That was indeed the attitude that Dr Naglingam adopted and, on the other side, Doctors Nesbitt and Cooper thought that they were getting no positive assurances from Dr Nagalingam that she would accept their managerial role. As a result of that meeting and that disagreement between those three persons Dr Nagalingam was suspended.There was then a disciplinary hearing chaired by Ms Brough which took two days, one the 26th November 1990 and the other on the 6th December 1990. Between the two after the management evidence had been given but before Dr Nagalingam's evidence had been received, Dr Nagalingam's BMA representative, Mr Barr gave Dr Nagalingam his appreciation of what the situation was, namely, that he considered there was a risk, to put it at its lowest, of dismissal but there were produced certain assurances for Dr Nagalingam to consider giving and the Industrial Tribunal says this about that:
"He [that is Mr Barr] had persuaded Dr Nagalingam that she should continue to work in West Lewisham until 19 December. This was a period of only two weeks from the adjourned hearing of the disciplinary procedure. On 6 December, Dr Nagalingam was asked to give assurances that until 19 December she would recognise both Dr Cooper and Dr Nesbitt as her Managers, and that she would work within Management framework including attending and participating in meetings which they arranged. She was also asked for assurances that she would continue to work within Management framework when she went back to North Southwark. In her evidence Dr Nagalingam said that she was willing to sign the assurances for the two weeks she was to remain at West Lewisham but she saw no reason to sign any assurances relating to her acceptance of Management when she returned to Southwark. She stated that that was part of the terms and conditions of her contract which she had already signed."
One only has to read that difference of opinion to appreciate how unfortunate this dispute is. However, there it is. As a result of that refusal Dr Nagalingam was dismissed.We, therefore, now have to consider what there is in the Industrial Tribunal's decision that can arguably constitute an error of law. Otherwise, of course, this appeal is doomed to failure. What the Industrial Tribunal did was to analyse the provisions of Section 57(2) of the 1978 Act in a way which has not been criticised before us and in which, indeed, there is no basis for criticism. They said:
"We also have to consider whether in all the circumstances it was just and equitable to treat that reason as a sufficient reason for dismissing Dr Nagalingam."
and by that reason, they were referring to the reason which the employer has to show as being the one for which the Applicant was dismissed. They stated their conclusion in paragraph 18 of their decision on that score by saying:
"We are satisfied that Dr Nagalingam did refuse to conform with the reasonable Management instructions both from the documents, from the respondents' witnesses, and from Dr Nagalingam's evidence."
they say that, effectively, more than once - they say, in the critical finding:
"Having regard to her refusals, which she admitted, to attend the SMCO and CMO meetings in November and the meetings with Dr Cooper on 13 November we are satisfied that it was reasonable for Management to want those assurances."
They then deal with some evidence that was given by Mr Barr, the BMA representative, a little later they say:
"she did not have respect for her Managers and that there was a constant under-current of friction."
that was part of his evidence. As to which the Industrial Tribunal said:
"We are satisfied that proper procedures were followed though we regret that there has been an inordinate delay in the internal appeal being heard. We find Dr Nagalingam was dismissed for gross misconduct and that in all the circumstances it was just and equitable to treat that conduct as sufficient reason for dismissal."
That of course is a matter which is one which is entrusted by the provisions of Section 57 of the 1978 Act to the judgment of the industrial tribunal. We have tried to see whether there is, anywhere in this somewhat distressing story, anything which can be discerned as an error of law in the Industrial Tribunal's decision. We have considered in particular whether it could be said that the Industrial Tribunal failed to pay regard to the fact that Dr Nagalingam was found to be in the right about the two month only agreement to work in Lewisham rather than in Southwark, but we have been driven to the conclusion that there really is not a point of law there. The issue that Industrial Tribunal addressed, and rightly, was whether it was just and equitable to treat Dr Nagalingam's refusal to give the assurances in question as a sufficient reason for dismissing her and whether we agree with the conclusion that was reached is neither here nor there, the fact is that we have been unable to discern any error of law in their conclusion on that question. It would therefore be counter productive for this appeal to continue any further and we therefore dismiss it at this stage.