Small v Shrivastava [1995] UKEAT 1032_94_1403

EAT
Small v Shrivastava
[1995] UKEAT 1032_94_1403 · 1995-03-14
MR JUSTICE BUCKLEY: Mrs Julie Small was employed by the original Respondent before the Industrial Tribunal Dr Shrivastava in his doctor's practice, a general practitioners practice. The matter unhappily ended in dismissal on 26 April 1993 and the Applicant Mrs Small complained to an Industrial Tribunal that that was unfair. The Tribunal appears to have sat at Sheffield on about three days in all, December 1993 and April 1994 and the conclusion that they arrived at was that the Applicant was not unfairly dismissed and they dismissed the application. Now Mrs Small appeals or seeks to appeal to this Tribunal. In accordance with the practice, this is an ex-parte hearing and we have explained to Mr Small who has represented his wife here before us, that we need to find a point of law upon which the Tribunal has at least arguably gone wrong before this matter can proceed further.We have lengthy reasons in support of the application which we have read and they are informal and really in the form of a letter but they are none the worse for that, we have all read them and considered them and we have heard Mr Small address us. More to the point perhaps we have read carefully the extended reasons of the Tribunal. The short point seems to be that there was unfortunately a problem between the parties, various complaints were made one way or the other, in particular concerning an incident. Chronologically anyway, the last instance was about 30 March and a disciplinary interview or hearing was arranged and that itself gave rise to further difficulties, because Mrs Small did not in the event attend. The parties were unable to reach agreement as to whether Mrs Small could have a union representative present or not and so forth.Those are all matters that the Industrial Tribunal investigated very carefully, unfortunately for Mrs Small, the Tribunal state quite clearly in their findings that they preferred the evidence of the Respondent. The conclusion that they arrived at was in these terms:
"... We think that this matter started out as a relatively trivial affair which if dealt with on 1 April might have resulted in no more than an oral warning. As it was the applicant by first obtaining a medical report which she now admits was false and then by making veiled threats and insisting on being represented raised the stakes to the point where the respondent had no practical alternative but to dismiss her. We do not think that the respondent was to blame for this situation. We think that he merely responded to events which were effectively orchestrated by Mr Small. In our view the respondent acted reasonably in treating the applicant's conduct as a sufficient reason for dismissing her."
That really says it all and that is a finding on the evidence and on the facts and it is not for us of course to re-open the facts. We have not heard the evidence and we are bound by the Tribunal's finding. We regret from Mrs Small's point of view at least, we cannot identify any point of law that would merit this matter proceeding. Mr Small has drawn our attention to the fact that conduct was alleged, in the appearance, for dismissal and he urged on us that the Tribunal seemed to have taken a different view from that. We think that when paragraphs 14 and 15 are read together, it is reasonably clear that the Tribunal whilst they are focusing on the events concerning Mrs Small's refusal to attend the disciplinary hearing, that is inextricably linked up with the reason for that hearing in the first place, which of course was the events of 30 March.Technically the position is that if an Applicant or an employee does not ultimately turn up at a disciplinary hearing and does not therefore put forward a case rebuffing whatever allegations are made rising out of the earlier events, provided he has otherwise acted reasonably the employer would be entitled to take a certain view of those earlier actions. In other words, misconduct. That is really we think what the Tribunal are saying in these paragraphs. They have preferred the evidence of the Respondent and have made a clear finding of fact that it was reasonable to treat the conduct as a sufficient reason for dismissal. That is not something that we can find any basis for attacking and having listened toMr Small and read the papers, we have as we say been unable to identify any point of law that would justify this Tribunal upsetting the findings of the Industrial Tribunal, so this appeal must be dismissed.