Phillips v Mid Essex Health Authority [1993] UKEAT 926_92_1105

EAT

Phillips v Mid Essex Health Authority

[1993] UKEAT 926_92_1105 · 1993-05-11

MR JUSTICE WOOD (PRESIDENT): By an Originating Application which was received on 24th December 1991 Mrs Sylvia Maureen Phillips alleged that she had been unfairly dismissed by the Mid-Essex Health Authority.

Her case was heard by an Industrial Tribunal sitting at Bury St Edmunds, under the Chairmanship of Mr Day, on three days in October 1992. The Tribunal decided against her and found that she had not been unfairly dismissed. She applied for a review. The decision was promulgated on the 20th November 1992, it was refused in essence because it was a request for a re-hearing. The Tribunal puts it in this way:

"The applicant is seeking to appeal against the Tribunal's decision and to reverse the decision on many of the facts. There is no power to do this."

Against each of those decisions Mrs Phillips appeals. She has been represented at various stages by her husband, and both she and her husband are, if we may say so, well able to put their cases and express their views. We have been grateful to them for the way in which they have conducted this appeal.

This is an appeal in each of these cases by way of a preliminary hearing, that is with only one party present. It is for this Appeal Tribunal to see whether a point of law, which merits argument inter partes, both sides here, is apparent on either of these appeals. If not, an appeal to this Tribunal is only on a point of law and, therefore, the appeals would have to be dismissed at this stage.

We turn therefore, to look at the decision and the reasoning behind it. There was clearly a great deal of evidence given to the Tribunal. We understand that Mrs Phillips herself gave evidence for some six hours. No doubt the learned Chairman made notes of the hearing. It has been said often that the decision of an industrial tribunal, the reasons given, must be sufficient for those who read it to understand the reasoning and the way in which the Tribunal looked at the issues. It is not necessary for the Tribunal to recite every piece of evidence; it is not necessary for them to reach a conclusion on every single fact which comes before them, but only to reach a conclusion and to set out those facts which are necessary for an understanding of the decision which it reached. We say that because Mrs Phillips is really disappointed that a great deal of her evidence is not recited in detail in the decision. I hope she will accept from us that for a decision to be perfectly valid that is not necessary.

The history of the matter is set out by the Tribunal with clarity. The facts are all there. We only recite the history of this matter in such form as is necessary for an understanding of our decision today.

The Applicant started working for the Health Authority on the 8th June 1987 she was ultimately dismissed on the basis of conduct. The Health Authority did not rely on any incidents and matters that occurred before February 1991. However, Mrs Phillips wished them to look into a number of other matters. They did so and deal with them in paragraphs 5, 6 and 7 of the decision. They deal with a Mrs Hepher, who had a family tragedy; they deal with Mr Gill, who had lost his temper with the Applicant but had apologised for that; and they dealt with the fact that on a number of occasions there were informal discussions between Mrs Young who was Mrs Phillips' Line Manager and Mrs Phillips.

In October 1990 matters seem to have come to a head when there was a complaint about Mrs Phillips' behaviour as a result of something that happened in the public corridor. There seems to have been a culmination, and as a result Mrs Young decided that there should be a disciplinary hearing. She had asked Mrs Phillips if she would welcome counselling, but Mrs Phillips did not want to do that, unless it was group counselling. She regarded the problem, as it is quite clear to us today listening to her, as not just her problem but it was others who were at fault and open to criticism as well.

The first disciplinary hearing took place on the 1st November, it was decided that a written warning should be given. There was an appeal which was heard on the 20th February 1991. It was dismissed and the warning letter stood.

The warning letter is of some import. It is dated the 14th November 1990. It expressed the fact that a written warning was being given "regarding your unacceptable behaviour" and it goes on in the second paragraph:

"In reaching my decision I took account of previous interviews I had with you regarding incidents in the department. You accept no blame at all for any of the incidents discussed, stating that on every occasion you were the innocent party. I find these explanations unsatisfactory and on the balance of probabilities this leads to misconduct. I asked you twice if you would see any way to resolve this long term situation, but you stated that you could not.

The following are the standards of behaviour considered acceptable for the efficient working of the department.

To adopt a friendlier, more amiable and helpful working relationship with all staff in the department.

All outbursts of bad temper and/or bad language will cease.

To desist from questioning the professional judgments of senior staff. Normal corrections of spelling, etc as part of secretarial duties are acceptable.

To accept correction in a positive way without taking it as personal criticism or slight.

To discuss with the member of staff concerned any matter in which you feel you have a problem and resolve it in an adult manner.

To cease making disparaging remarks about one colleague to another.

Unless there is a significant improvement in your behaviour further disciplinary action will be taken which may result in the termination of your employment.

You may request the expunging of this warning from your file after one year."

and then explains that there is a right of appeal.

Thereafter, as found by the Tribunal, matters deteriorated. There was a question of time-keeping; arriving late at work; taking extra time for breaks. Mrs Young spoke to the Applicant, there were various matters which are all set out in the decision. There was also a question of Mrs Tosic's letter which complained, in effect, that she was frightened of the way in which her relationship with the Applicant had developed. The Applicant took comments in Mrs Tosic's letter as a personal attack. She felt she was unable to continue. However, matters went from bad to worse and ultimately, after various people had spoken to her, there was a further disciplinary hearing.

The matter was heard at the second disciplinary after adjournment on the 30th September 1991. Surprisingly, as the Tribunal found, this hearing was chaired by Mrs Young who was the Direct Line Manager. There was a decision to dismiss and that is recorded. There was an appeal; the appeal was heard on 14th January 1992; it was chaired by the Chairman of the Health Authority, Mr Hilton with two other members; they upheld the decision to dismiss; the Applicant was advised of that decision by a letter dated 15th January 1992.

Mr Phillips clearly represented his wife with ability and set out his submissions which the Tribunal divide into two parts. They have first of all the substantive side and then what they call the procedural aspects. On the substantive side he had argued that there was no misconduct sufficient to justify the first written warning or indeed what had happened thereafter. That submission was not accepted by the Tribunal, although they do find that Mrs Young in her procedures, was open to criticism on the procedural aspect.

Secondly, Mr Phillips submitted that there was a deliberate policy to set up arrangements which would lead to his wife's dismissal. The Tribunal rejected that. Then he submitted further that it was unfair to expect his wife to continue to work with Mrs Tosic without explanation from her of the allegation she put forward. He pointed to the various aspects of that. The Tribunal looked at it again and said they could not accept that contention and they could not accept that Dr Carol was not in a position to take a part in the various instructions that had been given. So they reject on the substantive side all the submissions made by Mr Phillips.

The Tribunal then turn to the procedural aspects. They criticise that Mrs Young could question the Applicant about the contents of her statement prior to the warning, but they felt that that did not invalidate the dismissal by reason of the final appeal hearing referred to below.

Then there was an issue about whether the four earlier informal verbal warnings had in fact been issued and whether they should have been taken into account. The Tribunal looked at that and they look at the Whitley General Council conditions of service, they reject any complaint on that score.

Thirdly, they look at the fact that Miss Dougall and Mrs Tosic did not give evidence before the appeal hearing - Miss Dougall was in Stornaway - and they continue:

"As regards Mrs Tosic the matter at issue before the tribunal was not the veracity or otherwise of Mrs Tosic's letter but the applicant's persistence, despite warnings and instructions to the contrary, of pursuing the matter with Mrs Tosic."

They therefore reject that criticism. Also the absence of Miss Scott was complained about. The Tribunal say her absence was not material to the decision.

However, they are critical of the fact that Mrs Young chaired the second disciplinary hearing. They do not accept the explanation; they take the view, and indeed we agree, that that rendered the procedure unfair. They therefore look to see whether that unfair procedure has been corrected by the subsequent hearing of the appeal. They clearly examined the matter with care and they say this at the end of paragraph 28:

"The final hearing here, chaired by Mr Hilton, was a hearing de novo. We find no fault with what took place at that hearing. The procedural defect to which we have just referred (and any other possible defect including the failure to supply the applicant with a copy of Mrs Tosic's letter at an earlier stage) were accordingly no longer relevant."

The Tribunal then continue to look at their task under Section 57(3) and they dismiss the application.

The application for review is then made in some documents which, I think, are about twelve pages, and we have already referred to the rejection of that application.

Before us a number of points have been taken. We have explained to Mr and Mrs Phillips that we cannot help them unless there are errors of law. The fact that the decision was against them; the fact that certain aspects of the matter may have been found as fact against them; the fact that the Tribunal took a different view upon the actual incidents concerned are immaterial provided that they did not err in law.

The main point taken, and it is a point properly taken, is that the procedural error of Mrs Young at the second disciplinary hearing was not corrected by the appeal. It is said that Mr and Mrs Phillips were never told it was a re-hearing and there is no record that it was a re-hearing. Neither of those things are necessary, the question is, was it in fact a re-hearing?

The attention of the Tribunal was drawn to this, they refer to it specifically, they clearly looked at this point bearing it well in mind and they decided as a matter of fact, and it is an issue of fact, that this was a re-hearing which rendered any prior error in procedure to be corrected. We can find no error in the way in which the Tribunal approached it. The point is taken and we have looked at it, we have looked at the documents, and there are about nearly 300 pages of them, we can find no error in that.

Secondly, it is said that the verbal warnings should not have been taken into account. They were not recorded and they were produced by Mrs Young at a stage, I think the first appeal hearing, and they should not have been. That point was taken, no doubt properly and fully taken, by Mr Phillips before the Tribunal. It is dealt with, as we have already indicated, in paragraph 27.2 of the decision and there is, in our judgment, nothing in that point in law.

The third point taken is that the written warning was ineffective, really immaterial, and should not have been relied upon because no one else was required to obey it and as it did not apply to everyone it was not an effective written warning. That again does not seem to us to be a valid point of law. Mrs Phillips has throughout, as she does before us, maintained that she was not the one at fault. It was others at fault, not she who is at fault, and thus this written warning was really unfair and it should not have been exercised or relied upon in the way in which it was.

The case was abundantly clear, the written warning was given, we have referred to it. Thereafter the activities, not all of which we referred to, are set out in the decision of the Industrial Tribunal and we can see no reason at all why the management should not have relied upon the written warning. When you look at it in the light of the whole history as has been found by the Industrial Tribunal we can find no error in law on that aspect.

There is a further point made in that during discovery it came to light that a statement which Mrs Phillips had prepared for the first appeal hearing had been tampered with, or anyhow parts of it were missing, pages were missing, and that that should have been investigated by the Health Authority. Clearly that point was made to the Tribunal. Mrs Phillips explained it, she told us about it, and that again would have been considered. It is not specifically mentioned but that there was no need, in our judgment, as this was relevant to the first appeal hearing. Mrs Phillips complains that that matter was not referred to and not dealt with, but in our judgment it was not necessary for the Tribunal so to do, they only dealt with such facts as they found were necessary for the reasoning of their decision.

Lastly, Mrs Phillips takes the point, on the main hearing, that she mentioned Polkey v. A E Dayton Services Ltd

[1988] ICR 142

to the Tribunal, but the Tribunal did not mention Polkey in its decision. They merely said that they knew all about Polkey and with Polkey before them the Tribunal should have investigated Mrs Tosic's letter. That again is dealt with impliedly in paragraph 27.3 of the decision where they deal with the letter. They explain that it was Mrs Phillip's behaviour after receiving the warning letter in connection with Mrs Tosic which was relevant and that the voracity or the dishonesty of that letter was not strictly material to the whole situation. In any event there is no evidence that there was an application to the second appeal hearing that Mrs Tosic should attend as a witness.

Now so far as mentioning Polkey is concerned, again the Tribunal does not have to mention every authority cited to it. They were well aware of Polkey and they were aware not only of the importance of looking at the procedure but that not every breach of procedure renders the dismissal unfair. In our judgment here the mere failure to mention Polkey does not render the decision erroneous in law nor was it, as a matter of law, necessary to refer to Polkey . Therefore, doing the best we can with the points which are raised by Mr and Mrs Phillips on the main hearing, we can find no error of law here.

We appreciate that Mr and Mrs Phillips disagree with the decision; we appreciate that they feel that they have not been fairly dealt with; we appreciate that they will never accept that Mrs Phillips was in the wrong and that others employed were not also in the wrong and perhaps the matter should have been dealt with differently. All those are matters for the Industrial Tribunal and very largely they are issues of fact. There is no point of law and the appeal is dismissed at this stage.

We turn next to the review decision. It was argued here that this was erroneous in law because the Tribunal ignored the evidence and ignored the facts. That, in effect, is asking for a re-hearing of the decision without any specific new grounds on which to rely. The learned Chairman did not misdirect himself in any way in using the phraseology which he did. This, in essence, was asking for a re-hearing of the case, as indeed I have pointed out to both Mr and Mrs Phillips. Again they may feel still that they have been hard done by, but there is no error of law and unless there is an error of law in these decisions we are unable to help. We can find no error of law and this appeal also must be dismissed.