Wythenshawe Hospital v Lewis [1994] UKEAT 221_94_1110

EAT
Wythenshawe Hospital v Lewis
[1994] UKEAT 221_94_1110 · 1994-10-11
MR JUSTICE PILL: This is an Appeal against the unanimous Decision of the Industrial Tribunal held at Manchester on 27 October and 6 December 1993 and 13 January 1994, whereby the Tribunal decided that the Applicant, Mr P.J. Lewis had been unfairly dismissed.The complaint was adjourned to 7 March 1994 to enable the Tribunal to consider and determine his Remedy. We say at once that our unanimous decision is that the Appeal must be dismissed, but it is necessary to give the procedural background to the present hearing.The Respondent, Mr P.J. Lewis, had been employed by the Appellants Health Authority as a Porter since 6 November 1981. The Appellants are identified in the papers as Wythenshawe Hospital, that is a separate hospital unit within the area of the South Manchester Health Authority.The incident which led to the dismissal occurred on 17 September 1992. On the following day the Respondent was suspended from duty. That suspension was followed by disciplinary hearings. A hearing was convened on 2 October 1992, but was adjourned until 12 October because a witness was on holiday. At the end of the hearing on 12 October, the Respondent was dismissed summarily from his employment with immediate effect. By letter of the same date Mr Ranson, the Appellants' Hotel Services Manager, gave notice to that effect in writing and stated that in accordance with the Health Authorities Disciplinary Procedure, there was a right of appeal. That right was exercised and while the sequence of events is not entirely clear from the papers, it appears to us as it did to the Industrial Tribunal that there was a hearing by a panel, composition of which is unknown, on 9 December 1992.There was a further hearing by a panel on 27 January 1993. In the meantime the Respondent had on 19 October 1992, made an Originating Application to the Industrial Tribunal and an Appearance was entered on 7 December 1992, that is two days before the first of the panel's hearings.We have indicated the dates on which the Industrial Tribunal heard the matter; their Decision was promulgated on 1 February 1994. A Notice of Appeal against their Decision was given by the present Appellants on 3 March 1994 and there was a Respondent's answer on 20 April 1994. However, four days after the Notice of Appeal had been served, the Remedies Hearing was conducted before the Industrial Tribunal, which had the same constitution as had heard the issue upon the dismissal.In a Decision promulgated on 12 April 1994, the Tribunal came to the conclusion that the Applicant should be re-engaged upon terms set out in the recent Decision. On 2 May, Mr Lewis presented himself for work and was told that he would not be employed and that an Appeal was pending. The Appellants then on 20 May 1994, sought a stay of remedy and they were told that no such stay would be given. The Registrar did however direct that the hearing of the Appeal be expedited. Also, on 20 May 1994, the Notice of Appeal had been amended to include an Application for a stay.By the amended Notice of Appeal the Respondent sought to argue that the Industrial Tribunal had erred in law in ordering the re-engagement of the Applicant. It was stated that it would not be practicable to re-engage Mr Lewis and that it was their case that they were not given an opportunity to call evidence and/or make submission on whether or not it would have been practicable to engage the Respondent.It is not now argued that the Appellants did not have that opportunity. In their recent Decision at the Remedies Hearing the Tribunal noted that at paragraph 11:"The Respondent [that is the present Appellants] did not lead any evidence about practicability at all and, as already indicated, Miss Routledge was frank and candid about that".Miss Routledge was the Solicitor acting for the present Appellants at that hearing. We have been told that there is to be, on 20 October 1994, a restored hearing by reason of the refusal of the hospital to re-engage Mr Lewis.As we have said, the incident which led to the dismissal occurred on 17 September 1992. Mr Lewis parked his car at the hospital in an unauthorised area and without a permit. Mr Shields was a fellow employee designated as the Car Parking Officer with specific responsibility for checking the parking of cars by members of staff. He placed a ticket on the windscreen of the car that Mr Lewis was using and which he had on loan from a friend.Mr Lewis went to see his immediate superior, Mr Langton and indicated in what the Tribunal described as " colourful language "; what he would do if any more stickers were put on his windscreen. Mr Lewis then went from Mr Langton's office where he was in discussion with his Supervisor, Mr Payne into the Porters' rest room. Mr Langton heard sounds of commotion and went to investigate.The Tribunal noted in their Decision that:"Mr Langton maintained that he heard the Applicant [that is Mr Lewis] threaten Mr Shields, the Car Park Officer who was in the rest room, that if another sticker was placed on his car he would rip his, (Mr Shields') head off".Mr Lewis has consistently denied that he was in the Rest Room or he had ever confronted Mr Shields or threatened him in that or any other way. We have described the sequence of events which followed beginning with Mr Lewis's suspension on 18 September.The Tribunal directed itself upon Section 57 of the Employment Protection (Consolidation) Act 1978. They found that the employers had complied with the requirements of Section 57(1)(a) by showing that the Applicant was dismissed " for a prima facie fair reason justifying his dismissal ". They went on to consider under Section 57(3) whether the employers had acted fairly or unfairly having regard to the statutory criteria. They referred to the decision of this Tribunal in British Home Stores Limited v Burchell (EAT) 1980 ICR 303 and to the statement of Arnold J. at page 304 C to F. The learned

Judge stated:

"What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than more element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case".We consider that points two and three must be considered together in this sense. Whether the employer has reasonable grounds upon which to sustain his belief may in part depend upon whether there has been a reasonable investigation in all the circumstances of the case. The Tribunal dealt with the matter at paragraph 13 of their Decision and we set out the relevant parts. The disciplinary process was confused because after Mr Lewis's suspension on 18 September and his being notified that the Disciplinary Hearing would take place on 2 October, it was postponed because of Mr Langton's absence on holiday and took place on 12 October. There was no documentary evidence of what transpired at that Disciplinary Hearing. It seems that no notes were taken on behalf of the Respondents which particularly in a case where there is a clear conflict of evidence was unfortunate. The Applicant was advised on his dismissal that he had a right of appeal in accordance with the Respondents' Disciplinary Procedure i.e. to a panel nominated by the Respondent authority. He exercised that right of appeal but the documentary evidence put before the Tribunal in regard thereto was curious to say the least. The Respondents' Disciplinary Procedure makes it quite clear that an employee shall have the right to appeal against any disciplinary action, and particularly dismissal, to a panel of the Health Authority. However, document 34 of R1 refers to an appeal having been heard on 9 December and to a recommendation of the panel to the authority which would be that the Applicant's dismissal should be upheld. Document 11 of the Applicant's documents sets out the management's recommendation to be put to the Appeals Panel and refers to the date of 27 January, when this was in fact conducted. The Tribunal could only assume that before any reference was made to the Final Appeal Authority, management associated with the dismissal would have a further look at it to see if there are any other mitigating circumstances. This Tribunal have to say that they found the lack of any documentary evidence concerning the Appeal Hearing quite lamentable for a Respondent of this size, because the Appeal Hearing has to be taken into account when considering the provisions of Section 57(3) of the Act.Comments as to the perceived inadequacy of the procedure followed by the employers also appear at paragraph 8 of the Decision. On behalf of the Appellants, Mr Breen of Counsel, at a very early stage realistically accepted the extreme difficulties in his way in submitting that the Industrial Tribunal were not entitled to make the finding which is set out in the paragraph to which we have referred. He accepts, as noted by the Tribunal in paragraph 8, that Miss Woodcock gave no evidence to the Tribunal, yet Miss Woodcock had played what appeared to have been an important part in such investigations as there were. At the hearing on 12 October, it is noted that Mr Lewis was accompanied by his Trade Union representative and that " the Respondents (that is the employers) were represented by Mr Ranson, its Personnel Manager, Mr Wilding and Miss Woodcock, a Personnel Officer".The Tribunal found, as they were entitled to, that Mr Ranson was the dismissing officer and he had authority to take the action which he did on 12 October, namely to dismiss Mr Lewis. We do not have the Chairman's Notes of Evidence at the Tribunal. We do have bundles of documents which have been prepared. They confirm, as do Counsel, that there was not before the Industrial Tribunal any note of the hearing which had been conducted on 12 October or on 9 December or on 27 January. There was no evidence before the Tribunal as to the enquiries and investigations which had been conducted, or as to the evidence which was made available before Mr Ranson dismissed on 12 October, or when that decision was upheld by either of the panels. We have to assume from the documents conducted hearings upon 9 December and 27 January.We consider that the strong terms in which the Tribunal expressed themselves upon the inadequacy of the material before them were wholly justified. We can see no justification when there is a formal procedure, when dismissal and other disciplinary proceedings are contemplated, for the failure of the employer to make known to the Tribunal the investigations which they had conducted, or the basis upon which the hearings were conducted and the Decision reached.Mr Breen did not attempt to justify the absence of that information. He made the point that the fact there were hearings was itself sufficient evidence that there was a sufficient investigation. We reject that submission. He also submitted in his reply to Mrs Cover who appears on behalf of Mr Lewis, that upon the evidence, investigations could not have made any difference because Mr Lewis would have been dismissed in any event.In the circumstances of this case we wholly reject that submission too. We have no hesitation in dismissing the Appeal. Mr Breen accepted in his opening submissions that even if he were to be successful on the other point, to which we now turn, then having regard to procedure and the principles in Burchell the Appeal would have to be dismissed.The Tribunal also considered whether the employers had been inconsistent in dismissing Mr Lewis on the grounds stated when they had declined to dismiss other employees in circumstances where physical violence had been involved. As noted in paragraph 10 of the Decision a part of Mr Lewis's case was that reference had been made to:".... incidents of fighting previously in the Porters' rest room and also an incident involving the catering personnel when either no disciplinary action, or disciplinary action short of dismissal was imposed".The Tribunal dealt with it in this way.".... the main thrust of the Applicant's case was that there was inconsistency of treatment, the penalty was too severe and that the investigation upon which Mr Ranson based his decision to dismiss was not as full and thorough as it should have been".We have already considered the second of those points. Dealing with the first, the Tribunal stated:".... Mr Wilding himself [Mr Wilding being the Personnel Manager, appearing for the employers] admitted in evidence that there had been other cases of actual physical violence and fighting, particularly in the catering department of which the applicant had been a member, and also in the porters' rest room, which had not resulted in dismissal even if there had been any disciplinary action at all. On the basis of the cases already cited to the Tribunal, the Tribunal take the view that there was some evidence of inconsistency of treatment and this affected the fairness of the dismissal. It is not for the Tribunal to say that the penalty of dismissal was too severe in the circumstances, unless it can say that no Tribunal acting reasonably would have imposed a penalty of dismissal in the circumstances. The Tribunal must not substitute its own view for those of the respondent employer even though it might not have dismissed on those facts and in those circumstances itself".The Tribunal went on to state in the following paragraph that they had unanimously concluded " in all the circumstances " that the dismissal was unfair.Mrs Cover, on behalf of Mr Lewis, accepts that if this was to be a ground of Decision then, it would have been better if the Tribunal had stated so in terms. We cannot be certain from their formulation whether and, if so, to what extent the question of alleged inconsistency was a ground of the Decision. In our view, having concluded that the Appeal must, in any event, be dismissed by reason of the procedural failure it makes no difference. The question of inconsistency was considered by the Court of Appeal in the Post Office v Fennell [1981] IRLR 221. That was a case where the Court reversed the earlier finding on the basis that there was inconsistency in dismissing an employee who had a conviction in a Criminal Court for assault, when other employees had similar convictions. Having reached that conclusion

Lord Justice Brandon stated, and I refer to the headnote:

"In reaching their decision that the Respondent's dismissal was unfair, the Industrial Tribunal had not, as the Appellants argued, imposed too high a standard of consistency by failing to appreciate that there must be considerable latitude in the way in which an individual employer deals with particular cases.
In its decision, the Tribunal said that summary dismissal of the Respondent "went beyond the bounds of fairness in this case". In using the expression "went beyond the bounds of fairness", the Industrial Tribunal clearly had in mind this kind of latitude. It is implicit in those words that there is an area of manoeuvre within which it cannot be said that an employer is being unreasonable but that area is bounded by a boundary which in this case the employer crossed".As appears, that was a case where the Industrial Tribunal had in effect reversed the finding which the employer had made and the Court of Appeal upholding the EAT in that case, found that the Industrial Tribunal had been within its powers on the facts in taking that view.The majority of this Tribunal have concluded that this ground of Decision by the Tribunal also was a good one. The Tribunal were entitled to hold that there had been inconsistency because the material before it indicated " actual physical violence and fighting " and there was sufficient material for the Tribunal to hold that the employers had been inconsistent in distinguishing between the present case which involved a threat of violence and the cases of fighting to which their attention was drawn.The Presiding Judge has doubts on this point. In his view a Tribunal should not be too ready to find employers guilty of inconsistency in circumstances where the evidence by way of comparison between the several incidents was limited. Each case must be considered upon its own merits and the presiding Judge sees an important distinction between evidence of fighting, the nature and cause of which was not in evidence, and what happened in this case, namely a threat to a junior employer, the car park officer, that violence would be done to him if he simply did his job.The Presiding Judge's reservations do not of course effect the outcome of the appeal and indeed, he does not formally dissent on this second ground either, but he would seek respectfully to caution Industrial Tribunals who cannot re-try allegedly similar cases from holding on what must inevitably be partial information about those other cases, that an employer cannot fairly draw a distinction between one case and another.Before leaving the case we would draw attention to other points in the Decision. We do so without having any doubt about the outcome which the Appeal should have, but points of concern have arisen. The major one is that which is inherent in the description of the sequence of events at the beginning of this judgment, that is, the refusal of the employers to re-engage together with, as we find, the absence of any indication by the employers to Mr Lewis or those representing him, before the Remedies Hearing, that the present Appeal was to be pursued.We have heard from Mrs Cover and we accept on the specific instructions which she has had that when the Remedies Hearing took place on 7 March, Mr Lewis had made known that he was seeking re-engagement. No attempt was made by the employers to have the Remedies Hearing adjourned pending the hearing of an Appeal on the question of the fairness of the dismissal, and the Industrial Tribunal conducting the Remedies Hearing on 7 March were not told of the fact that the fairness of the dismissal was being challenged by way of Appeal to this Tribunal.Further, in a Notice of Appeal it was subsequently stated that the employers had had no opportunity to deal with the question of practicability which arises when a re-engagement order is sought. Yet it is plain from the finding of the Industrial Tribunal, now accepted, that on 7 March the employers did have an opportunity to call evidence as to practicability and by their Solicitor, Mrs Routledge, who was as frank on that occasion as Mr Breen has been today, did not take that opportunity.There are other matters of less significance on which we comment. At paragraph 11 reference is made to the absence of evidence from the other people who were in the room when Mr Shields claimed that he had been threatened and of course evidence that he had been threatened was given by Mr Langton. That by itself might not be fatal. We need not, and indeed, cannot consider how important that consideration is because the inadequacy of the evidence presented by the employers to the Industrial Tribunal was such that we simply do not know whether any efforts were made to trace and to interview those who were present in the room when the relevant events occurred.The Tribunal, possibly unfairly, did state this in paragraph 11:"The Tribunal were made aware that Mr Ranson was the dismissing officer but he did not take any part in the investigation which was carried out by Miss Woodcock, who was not called to give evidence to the Tribunal".The absence of evidence from Miss Woodcock was an entirely fair and appropriate and relevant comment, but having noted that at the meeting of 12 October Mr Ranson and Miss Woodcock were present, immediately before Mr Lewis's dismissal, it was probably not a fair conclusion for them to state that Mr Ranson did not take any part in the investigation. At any rate, he and Miss Woodcock were both present on 12 October when presumably this matter was under consideration.The reference towards the end of paragraph 13 to Mrs Burywood, is perhaps unfortunate, once the Tribunal found that she was not present in the room where the hearing of 27 January took place. It is right to say that the Tribunal went on to say that they did not consider her evidence "sufficiently certain for it to make any finding to that effect" . She had stated that the hearing on 27 January was "a farce" . The Tribunal did make a qualification, but it would have been better if, in the circumstances, they had not repeated this comment when clearly Miss Burywood was not in a position to make a judgment upon it. This Tribunal would be slow to find that a panel of members of a health authority would conduct a hearing in that way.Further, the Tribunal may have been somewhat unfair, at any rate in the language they used, when referring to the "disciplinary procedures for two other offences" in paragraph 11 of their Decision. They stated that they considered it:".... rather undesirable that these other matters were dealt with at the disciplinary hearing on 12 October at the same time as the matter in respect of which the Applicant was dismissed".As Mrs Cover readily accepted, the matters were distinct and the other matters were not dealt with as might appear from the language used by the Tribunal at the same hearing, at the same time. It was a comment which they would have been entitled to make that two other matters had been considered by Miss Woodcock with Mr Lewis the same morning as the relevant disciplinary hearing.For the reasons given earlier this Appeal is dismissed.

AN APPLICATION FOR COSTS IS MADE ON BEHALF OF MR LEWIS

THE SUCCESSFUL RESPONDENT

By virtue of Rule 34(1) of the Employment Appeal Tribunals Rules 1993,
"Where it appears to the Appeal Tribunal that any proceedings were unnecessary, improper or vexatious or that there has been unreasonable delay or other unreasonable conduct in bringing or conducting the proceedings the Tribunal may order the party at fault to pay any other party the whole or such part as it thinks fit of the costs or expenses incurred by that other party in connection with the proceedings"
We have set out the sequence of events between the dismissal of Mr Lewis in September 1992 and the present and will not repeat them at this stage. Mrs Cover submits that this Appeal does come within the categories in the Rule. We are mindful of the fact that these words must be construed according to their ordinary meaning and there can be no question of an Order for costs being a routine Order granted to a successful litigant before this Tribunal and the burden is a heavy one in terms of the material which must be available before a Tribunal is justified in making an Order for costs.We have spent the best part of a day upon this Appeal and we bear that in mind along with the fact that we have seen fit to consider points of detail upon the sequence of events and upon the Tribunal's Decision. Furthermore, there is no doubt that one of the points raised, the inconsistency point, was a point which we could not classify as unarguable. Having said that we must also bear in mind that Mr Breen frankly accepted, at a very early stage, he had to succeed on both points namely the procedural point and the point of substance. If he failed on either of them the Appeal was doomed. We do bear in mind, although it is certainly not a criticism of Mr Breen, the realistic way in which within the first couple of minutes of his submissions this morning, he ventured to state the extreme difficulty of his submission, on the evidence before the Industrial Tribunal, as to the procedure which was followed between September 1992 and January 1993. In our judgment on that central and fundamental point, the decision of the Industrial Tribunal was plainly unassailable.We regret that we have also come to the conclusion there has been a substantial tactical element in the bringing of this Appeal. Notice of Appeal was given only shortly before the Remedies Hearing. The Tribunal, when conducting that hearing, was not told an Appeal against the substantive decision was to be made though notice had already been served.Further, it does appear that the employers by their representatives were under the impression that the bringing of an Appeal would act as a stay upon any re-engagement Order, and it is unlikely to be a coincidence that, with that belief, the Notice of Appeal had been prepared just before the Remedies Hearing. We see force in Mr Breen's point that at the end of the day the employers can refuse to engage so that all the employee may have is a money remedy and he has that Remedy notwithstanding the present Appeal. However, there are almost always tactical advantages if matters are deferred. The employee may lose heart or may go elsewhere and that can be a factor in a situation such as this. In coming to the conclusion that we regrettably have on this aspect of the case we also note that by an amended Notice of Appeal a quite unarguable point was put forward, namely that the employers had no opportunity to argue practicability at the hearing on 7 March. It was plain that they had had that opportunity as is now accepted. In those circumstances we consider that the bringing of the Appeal does come within the definition in Rule 34 and we order that the Respondent, Mr Lewis, shall have his costs of the Appeal. I would add that parties are entitled, to an extent, to have regard to tactical considerations in their conduct of litigation in defence of their own interests. But if they do follow that course, particularly in a case where we find the decision of the Tribunal on the central point was unassailable, they increase the risk of having an Order such as this made against them.