RSPCA Manchester & Salford Branch v Eccles [1995] UKEAT 1050_94_0911

EAT
RSPCA Manchester & Salford Branch v Eccles
[1995] UKEAT 1050_94_0911 · 1995-11-09

JUDGE HULL QC :

This is an appeal to us by the Royal Society for the Prevention of Cruelty to Animals through their Manchester and Salford Branch and it is an appeal against a decision of the Industrial Tribunal sitting at Manchester under the chairmanship of Mrs Corcoran. That Tribunal sat on six days to hear the case, 25-28 July, and 5 and 7 September 1994 and their decision was finally registered on 26 September.It is a very long decision, one of the longest I have read and it clearly followed a very patient and careful enquiry. We are told that almost all the time at the hearing was occupied with the evidence. The Tribunal were fortunate to be attended by Counsel and they had submissions from Counsel which were not particularly long but, nonetheless, must have been of great assistance to them; perhaps all the more useful for being short and to the point.The application to the Industrial Tribunal was a complaint that Mr Eccles had been unfairly dismissed and, perhaps significantly, he asked for reinstatement or re-engagement. He did not expressly want compensation.He is a man who now is aged 42 and he was the Clinic Manager of the Royal Society at the Branch. The Royal Society, as we understand it, does not normally have clinics. There are other societies and associations, of course, which do run charitable clinics for animals. The Royal Society does not but, uniquely, there was this clinic at this particular Branch. We are not going to go into all the details of the constitution but there was a Committee locally who ran the Branch and they, of course, had officers. The Royal Society, through its central Council, has powers which are referred to in the decision. In particular, they are empowered to require a Committee to dismiss a particular officer. They are also in a position to replace Committee members if necessary with nominees, as apparently happened on this occasion.Mr Eccles started work at the Clinic on 14 February 1974. He evidently is devoted to the subject of animal welfare. He puts on his application, and as far as we know this was not in issue, that he worked on average 70 hours a week. He would work during the day at the Clinic, managing it, and he would go out at night to help with animals which were in distress and that sort of thing. In 1983 he became Branch Secretary. There was some question eventually about whether it was proper for him to have a paid job and to be on the Committee and in February 1989 a Miss Jenny Slee became the Branch Secretary and the applicant continued as Clinic Manager.The essence of the case here was that it was suggested (and had been suggested on more than one previous occasion) that he was going over the proper bounds of his job. He was not a qualified veterinary surgeon and under the Veterinary Surgery Act 1966 it is an offence for an unqualified person to do many of the things that a veterinary surgeon does; just as, of course, it is an offence for a person to carry out the duties of a registered medical practitioner if he is not. It was suggested that in the matter of carrying out operations or prescribing drugs or giving injections, matters of that sort, Mr Eccles had overstepped the mark and gone beyond what he should do as a manager.That led to tension with some of the local veterinary surgeons, not surprisingly. They, of course, would attend from time to time at the clinic. If it was suggested that the Clinic Manager, an unqualified person, was carrying out veterinary surgeons' duties, that would be bound to lead to some feeling and perhaps some very sharp feelings and, of course, be very likely to damage the good name of the Royal Society. As is pointed out to us, the Royal Society is a long standing and highly respectable organization, founded in 1824, recognized by statute in the 1930s and a very well-known charitable organization. Amongst its activities, which it clearly attaches importance to, is prosecuting those who ill-treat animals or neglect them. One knows from everyday experience that that is a very common activity of the Royal Society and, as they say, they cannot in those circumstances countenance criminal behaviour (which a breach of the Act of 1966 would be) on the part of their officers. One can certainly see that, and part of the complaint here against the Industrial Tribunal's decision, which I will come to shortly, is that the Industrial Tribunal overlooked many of these important matters, failed to give them proper weight, failed to consider them at all in reaching the decision which they did; a complaint having been made, supported with a video tape and an audio tape, of Mr Eccles going about such forbidden activities.Pausing there, one must say how regrettably and unpleasantly often that sort of evidence is being tendered. At any rate, there was an enquiry. There was, cutting a long story short, the local Committee which held the enquiry by a sub-committee, and were not prepared to recommend dismissal. They found that there had been irregularities or appeared to be irregularities. They said there should be a final warning, a serious warning.The Central Council were not satisfied. The Central Council, through the appropriate officer, took the view that the matter was so serious that only dismissal could be justified. When the Committee learned of that they were so unprepared to take that course that they resigned. The Council then caused the appointment of further officers of the Committee, in effect, men who would do what the Council thought was necessary and, on 13 August 1992, Mr Eccles was dismissed and later he made his complaint. That is an outline of the matter.The Industrial Tribunal heard the case and found that he had been unfairly dismissed and it is from that decision that an appeal has come to us. I should say for completeness that the Tribunal found that he was in contribution to the extent of 30 percent and reduced any compensation to which he was entitled by that amount.I put it rather vaguely like that because although there purports to be an appeal to us against that part of their decision, in truth all they said at the hearing with which we are concerned, which led to the decision which was promulgated on 26 September 1994, was that they were minded to say that his contribution was a low one and that they would defer that matter to the proper stage, as they saw it, which was the remedies hearing. We have been told that, in fact, the remedies hearing was held but no reasons were given.It seems to us that it is completely misconceived to try to appeal to us against a decision or that part of a decision of the Industrial Tribunal which is not supported by reasons. Clearly the duty of any party who wants to appeal against any part of a tribunal's decision is to be quite sure they have the full reasons of the Tribunal for that part of their decision and that the notice of appeal refers in terms to that part of their decision. The appeal to us is against the decision which was registered on 26 September and it seems to us, as a matter of principle and as a matter of policy, we have no jurisdiction whatever to entertain an appeal against the apportionment of responsibility, the contribution which the Industrial Tribunal found. It would, in any event, be on the face of it very difficult to appeal such a matter, which is purely a matter of fact for the Tribunal. Without the full reasons we are not competent. The Rules make that perfectly plain and, in any event, the notice of appeal was given before that and is not given against that part of the decision. There it is. We are concerned with the question, so to speak, of liability, of whether the Industrial Tribunal were right to find that Mr Eccles had been unfairly dismissed.Needless to say if an employee has been guilty of a substantial offence against the criminal law, a serious matter which not merely affects his own reputation but damages the reputation of his employers, so that it essential for them to consider whether he can remain with them, the penalty of dismissal will, in general, be an appropriate penalty. There can be no question of that. Employers are not required to tolerate unlawful behaviour by responsible officers of their company or organization. As we are told here, behaviour which brings the good reputation of the Society into question is gross misconduct. That is clearly the general position but we have to look and see how all this arose.As we are told, this was not an easy case and it was set out at considerable length by the Tribunal. They took 23 closely typed pages to set out their decision. I am not going to read all of it but I clearly must read substantial parts to show how the question before us arises and how we deal with it.First of all, they set out personalities in the case and the facts of dismissal and they then at paragraph 4 talk about the findings of fact, which they reach. They have referred to the standing of the Royal Society and its Constitution and so on and they then direct themselves to the facts. They say:
"(a) The applicant has no formal qualifications (apart from a certificate authorising him to carry out euthanasia) ..."
They say that:
"(b) The Branch Committee is a Committee of volunteers which met about every six weeks."
They say who attended. They set out an important fact:
"The main activity of the Manchester and Salford Branch was the clinic which dealt with an increasing number of animals rising from 34,500 in 1987 to 60,000 in 1991/92. A night help line was set up by the Region and the controller would contact the applicant if there were requests for help."
One can certainly see, in that case, how he managed to notch up 70 hours' work.
"In 1992 there were five part time veterinary surgeons who did sessions at the Clinic. The applicant had interviewed and recommended their appointments to the Committee and was responsible for payments made to the veterinary surgeons."
They set out that the clinic was unique. The only one of its kind within the Society. They set out the power of the Council to require the Committee to dismiss any person, suspending such person for such period as the Council may decide and then they set out that when the Committee was required to dismiss, they resigned. They say that:
"(e) The applicant knew of the relevant provisions of the Veterinary Surgeons Act, 1966. In 1979 an inquiry had been carried out by a Regional Superintendent of the Society into allegations that the applicant was acting as a veterinary surgeon. The applicant had instructed a solicitor. There was no prosecution and no disciplinary action following that inquiry. In 1982 there had been an unfounded allegation that he had carried out a caesarean operation on a bitch. He had been threatened with prosecution by RCVS [Royal College of Veterinary Surgeons] which did not materialise and on that occasion the Society had given him full support. Following an enquiry from him he had been provided with a document issued in 1978 headed `Lay Staff Duties'. ..."
They also referred to an incident in 1990 when the Applicant gave a hormone injection to a bitch; he was never given a formal warning about this and the matter was not pursued. I do not need to go into all that. The fact was that there had been events before which had given rise to concern, whether justified or not.In the summer of 1992 they record that the Royal College of Veterinary Surgeons had sent to Mr Bate, who was the chief veterinary officer of the Society, a letter from a Miss K Constantine, a letter dated 8 June from Mrs Winnard with an audio tape and video taken by a Mr Eagan, Mr McDonald's stepson.
"All had been handed to the College by a Mrs E MacDonald, wife of a local veterinary surgeon. ... alleging that they showed that the applicant was holding himself out as a vet ..."
To go on with this rather unpleasant story:
"The Constantine dog had been seen by the applicant at about 11 pm and injected with a prescription only medicine. The Winnard dog, which had been given a tranquilliser by Mr McDonald, to fake illness was seen by the applicant at about 11 pm on a Friday, given two injections, one an antibiotic, kept in overnight ..."
They then record that the video had taken a record of these matters. It does not sound at all a pleasant atmosphere and, needless to say, the Royal Society would be well entitled to try to clear it up as best as they could. They went on:
"(h) On 17 June, the Branch Committee met and established that while Mr Roberts, Miss Slee and Mr Barrington would form the Sub-Committee to carry out an enquiry into the allegations, they would report back with recommendations to the Branch Committee and that they in turn would report to Head Quarters."
That was the system of the thing. The Committee was charged with the enquiry, the sub-committee would report to them and it would go to headquarters. The applicant had, they say, a solicitor:
"We do not know in what terms the applicant was told of the meeting to be held when he would be given the opportunity to respond to the allegations. We find that at no stage in 1992 nor indeed on any previous occasion has he been warned that any conduct of his might result in disciplinary action including dismissal."
They then say how the matter was carried on. It was made clear to the sub-committee by the Council observers - they say that those observers were present - that:
"if there had been a breach of the Veterinary Surgeons Act then that was a serious offence which was gross misconduct and in those circumstances the Sub-Committee would have to recommend dismissal. The applicant was invited to answer two further questions ..."
The sub-committee decided to deal with the matter and Miss Slee wrote to Mr Sayce at headquarters on the same day in these terms:
"On the evidence presented, we have reason to believe that Mr Eccles has acted in contravention of the Veterinary Surgeons Act 1966 as it has been interpreted to us today by the Observers at the Hearing and by our retained veterinary adviser Mr J Tandy.
It is proposed that subject to further consultation the following actions should be taken:1. A severe written warning should be issued to Mr Eccles, this warning to be drafted in consultation with our Solicitors.2. Immediate steps will be taken to employ a Veterinary Director to take control of Veterinary Services at the Clinic." [A step which had been recommended on previous occasions but this was what was said now.]3. Mr Eccles will have no jurisdiction whatsoever over veterinary consultations or treatments.4. Mr Eccles will continue to be employed as our lay Clinic Manager, subject to the conditions of the written warning.

We await your comments."

Mr Sayce replied:
"`The Officers of the Council, two of whom were present as observers at the hearing, consider that the proposed actions do not reflect the gravity of the Sub-committee's findings that breaches of the Veterinary Surgeons Act were committed by Mr Eccles, thus bringing the Society into disrepute. Therefore, with authority delegated to them by the RSPCA Council, the Officers, pursuant to Rule XI(23), require the Committee of the Manchester and Salford Branch to give notice of dismissal to Mr J B Eccles with immediate effect.
I am required to remind you that the Committee, as Trustees of the Branch, are custodians not only of the reputation of the Branch but of the Society as a whole. That responsibility must outweigh any personal feelings you may have towards Mr Eccles.I have asked your Chairman to confirm to me, by Monday 3 August that the necessary action in respect of Mr Eccles has been taken.'The four Officers were Mr Stubbs, Mr Foster, Mrs Fulger and Mr Kay. They had all seen the Sub-Committee's letter of the 27 July 1992 but two had not seen the letters, the video or heard the tape. They did not meet. We do not know the content of the telephone calls. When asked why not give a written warning Mr Foster replied `Having seen previous correspondence over the years I could not see the applicant stopping. It was going to bring the Society into disrepute and he had admitted everything and considered it correct. I got the impression that given the opportunity he would continue to do so. I got the impression that he considered he was a veterinary surgeon and that he had the knowledge to diagnose and dispense drugs at will which knowledge can only be obtained if you are a veterinary surgeon of a number of years'. The four Officers agreed that the only correct action was to dismiss."The letter was sent. Two Officers had been there but only as observers, the other two had not been there at all. There had just been the telephone calls and the Tribunal said that they did not know what the substance of the discussions was.That being the position:
"(1) The Branch met again on 30 July, adjourned pending a reply from the Council to their plea of mitigation. The four officers met to consider that plea which was replied to by Mr Davies, Chief Executive [at the RSPCA centrally] on 4 August 1992 in the following terms:"
Mr Davies set out that the view was not one which could be changed. He said:
"The Officers accordingly require your Committee to give Mr Eccles notice of immediate dismissal. That notice must be communicated to him in writing within 14 days of the date of this letter and confirmed in writing to this Headquarters on the same date."
and then offered them indemnity in respect of any action which Mr Eccles might take as a result.Eventually, the Committee declining to act, the Council appointed trustees. Mr Wright, on their behalf, wrote the letter of dismissal, setting out once again that the actions of Mr Eccles had brought the Royal Society into disrepute.The Tribunal continued:
"(n) Although there was no disciplinary procedure and hence no provision for an appeal against a decision to dismiss it was agreed that an appeal should be heard by Mr Sayce. Some 7,000 letters in support of the applicant had been received. The appeal eventually took place on the 7 December 1992. [They referred to all that passed at the appeal.] Mrs MacDonald attended the appeal but said nothing stating that the matter was subjudice. [They set out other persons who attended the appeal.] The applicant denied that he had been in breach of the Veterinary Surgeons Act, and maintained that in going out at night he was acting in an emergency. He also stated [other matters]. The appeal was dismissed."
They set out lengthy submissions which were made to them by Mr Poole and Ms O'Rourke. We have had the good fortune, as they did, to hear both Counsel today. They set out the submissions of Counsel. We do not need to refer to those. They say themselves that they do not feel that they could do justice to those submissions but they set them out in essence.They set out all those facts very patiently, many of them of a very striking sort which, in an ordinary case, would certainly compel the view that an employer in that position was entitled to consider, as one of his rational choices, the option of dismissal. Indeed, some employers would say dismissal was the only course to take in those circumstances. Having set all that out, we think very fairly, the Tribunal then go on to consider the statutory provisions. They set them out, so far as we can see, without any error at all and they then start on their reasons. They say that:
"Mr Wright, the dismissing officer, [he was the trustee appointed] had played no part in any investigation and had not been present at any of the meetings and had not spoken with the applicant. He had, however, stepped into the shoes of the previous trustees and we decided he had to be treated as the employer at that time. The set of facts known to the employer at the time was that in the opinion of the Sub-Committee the applicant had contravened the Veterinary Surgeons Act and the officers in the light of this had required that the applicant be dismissed. They considered that his action could bring the Society into disrepute and that it would therefore be inappropriate for him to continue in employment. We find that it is more likely than not that the reason for the dismissal related to conduct."
I am setting out these matters of fact because it is said that all these matters, which Ms O'Rourke referred to, were not considered by the Industrial Tribunal in reaching their decision. It seems to us that they were most patiently and carefully set out, not as irrelevancies at all but because the Tribunal was paying very careful attention to them.They set out section 57(3) of the Act of 1978:
"... the question whether dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case."
It is often said and often it is the practical position, that that question has to be decided by considering all the procedural steps that were taken. Was there a proper inquiry? Was there a fair disciplinary hearing? Was the employee given a proper opportunity to see the case against him? Was he given a proper opportunity to make his case? To say what he wanted to say? In considering that, were the employers fair-minded? Did they keep an open mind and listen properly to what he had to say? Those are often regarded as the ingredients. They are not the only ingredients. The question is, in all the circumstances, did the employer act reasonably or unreasonably? In some cases all these circumstances may go beyond the mere procedure of the disciplinary process, important as that is and here there were, indeed, circumstances which went beyond the disciplinary process itself, which the Tribunal deal with. They say:
"11. We asked whether the employer had acted reasonably or unreasonably in treating the applicant's conduct as a sufficient reason for dismissing him. {Precisely the question which they ought to ask by the Statute.] In doing that we have taken into account all the circumstances of this case ..."
There they are saying precisely that they did what Ms O'Rourke says that they did not do. They said that they did take into account all the circumstances.
"... and make our decision in accordance with equity and the substantial merits of the case. Flowing through the evidence were several themes. One was the tension between Headquarters and the Branch. The Branch did not welcome interference from Headquarters and were not going to be reluctant [I think that must be `not going to be willing'] to take any advice in the running of their affairs. On the other hand Headquarters, aware of this, were unwilling to interfere. There had been a running battle between certain of the local private veterinary surgeons in particular Mr McDonald through his wife and both the Society and Mr Eccles in particular."
They set out that, fortunately, relations were generally good. They say:
"The main theme however was the fact that the Manchester and Salford Branch never had enough money and everything which they wished to do or purchase came down to a question of availability of funds and a decision having to be made as to what should be given priority. The respondent at this hearing sought to emphasise that Headquarters/Council had provided finance in response to a request from the Branch in the past and that the Branch could have asked for extra funds to be made available to ensure that a veterinary surgeon would be available at night or for a veterinary Director to be appointed. Such a request would have been met rather than have Mr Eccles acting in breach of the Veterinary Surgeons Act. However, we note that in 1988/89 when the Branch did ask through the Regional Representative for assistance and the Council agreed that the Branch need not pay its quota to the Society for that year and that they would meet the VAT bill, conditions were attached to the granting of that money. One of those conditions was veterinary coverage would be reduced by one session a day.
12. The scarcity of funding also affected consideration of the appointment of a Veterinary Director. In his letter dated 28 June 1990 ... Mr Bate had asked that the Committee consider the advantage of nominating one of the Veterinary surgeons to be Veterinary Director employed on a full-time basis. He received no reply to the letter although his suggestion was repeated in [another] letter ... He [Mr Bate] did not pursue the appointment of a Director. Later, a report was commissioned by the Branch from a Mr Berridge of Manchester Business School about the organisation and funding for the Clinic. Top of his recommendations was that a Veterinary Director should be appointed. For whatever reason the Branch did not take steps to appoint a Veterinary Director nor did they explore through Headquarters the provision of funding to do so.13. Against that background we first asked in determining whether the employer acted reasonably or unreasonably in treating the conduct of the applicant as the reason for dismissing him whether the respondent had an honest belief based upon a reasonable amount of information arising from a reasonable amount of investigation in the misconduct of the applicant. The Council and the respondent relied on the letter of the Sub-Committee stating that they had reason to believe that the applicant had acted in contravention of the Veterinary Surgeons Act 1966. The details of the basis of that finding were not available at the time and are not available now. ... The Sub-Committee had concluded that some disciplinary action was necessary. No further investigation took place nor was the finding put to the applicant before the Council required the Branch to dismiss the applicant. [They point out certain other defects in what had happened.] We consider, however, that there was a reasonable amount of information on which to base their belief that the applicant may have been in breach of the Veterinary Surgeons Act of 1966 given that this is a criminal act and ultimately only a Court could decide whether, in fact, there had been a breach or not."We think that the right interpretation of that is that they were holding that the employers had a reasonable belief in the fact that there had been breaches of the Act on the part of Mr Eccles and they are taking the rather literal-minded view that since it was a crime, of course only a Court could say whether a crime had actually been committed. They were not saying that it was a mere suspicion.
"14. We next asked whether it was within the band of reasonable responses to dismiss the applicant for this conduct."
That again, is entirely the correct question to ask - impeccable.
"In doing this we were mindful that it was not for us to say what we would have done in the circumstances ..."
Another impeccable direction.
"... but to ask whether a reasonable employer would have dismissed for this misconduct."
"Aha", says Ms O'Rourke, "there you have it". That is exactly the question which Lord Denning MR said in British Leyland UK Ltd v Swift [1991] IRLR 91 they should not have asked themselves. They should have asked, as they had asked earlier, whether the employer acted reasonably in dismissing. They go on to compound this mistake:
"A reasonable employer would have taken into account that the applicant had more than 18 years of service with the Branch, that he had worked long hours, that there had always been financial difficulties and no financial provision had been made for cover by a Veterinary Surgeon at night. The applicant knew that there were no funds ..."
It seems to us that a just way to read that is not to say "a reasonable employer" but "any reasonable employer", in the light of all that has gone before. After all, it can in plain English mean either certain reasonable employers would have done that or any reasonable employer and probably most people would say it meant any reasonable employer would do that. If it does mean that then, again, it is beyond criticism.They say with regard to the pressure which the shortage of finance caused and the general situation, the increase in business:
"The Branch had not concerned itself with whether this pressure might result in a breach of the Veterinary Surgeons Act nor pursued what he [Mr Eccles] was actually doing when either in the Clinic during the day or when he was called out at night. The applicant knew that the Clinic was being expected to deal with an increasing number of animals and that he was left to manage in the way that he chose and did it in the only way he knew how. He knew that he was trusted for his judgment and was relied heavily on for his long experience and hard work."
To that extent, the 7,000 letters written in his support showed his importance and the value which was given to his work with the organization.Paragraph 15 is very important and central to their decision:
"The Branch Committee were content to allow the applicant to carry on. To do otherwise would have cost money which they did not have. They knew that to have asked the Council for money would have placed more control in their [the Council's] hands which they did not want. A mixture of politics, money, having complete confidence in the applicant and trusting him although he was not a qualified Veterinary Surgeon prevented any action being taken in relation to the appointment of a Veterinary Director. The request for the applicant to do a feasibility study for such an appointment was not followed up. They knew that the applicant was attending the clinic at night and we conclude that the Regional Manager Mr Divine must also have known. The Committee in reality exercised no control over the applicant."
It seems to us that they are really saying there that this was something approaching connivance. The Branch Committee were winking at what was going on. It seems to us to be the just view of what they were saying there.
"He may have reported orally to the Committee but no action had been taken to ensure that there was no overstepping the mark. It appears that neither Ms Slee nor Mr Roberts reported Mr Bate's concern expressed in the letters in 1990 to the Committee. One of the members of the Committee was a Veterinary Surgeon and she could have been detailed to enquire from the applicant what he was and was not doing. This did not happen. It would appear from the letter from the Clinic Veterinary Surgeons ... that they were aware of his day to day activities. He had been put in the situation where he might be tempted to, because of his concern for animals, overstep the mark. The sub-Committee concluded at the meeting on 27 July that he did. The Sub-Committee realised that having relied so heavily on the applicant, having put him in that situation and not having warned him in a disciplinary sense or at all that it was unreasonable to turn round and dismiss him for misconduct. We agree."
They were saying there, in terms, this committee was very largely responsible for what had happened. It was not a case like British Leyland v Swift where the employers had no part whatever in what had happened, certainly had never encouraged or countenanced the stealing of an excise licence. This was a case where those who were responsible for supervising him had passively allowed all that had happened and not without motive, either, there were political reasons, economic reasons and, of course, the very high trust which they put in Mr Eccles. That is what the Tribunal are saying there.They say:
"16. But the applicant was dismissed at a subsequent date and by the Branch, his employer, although now with different officers nominated by the Council. Since it was the Council who had required that the applicant be suspended pending the investigation and then to be dismissed we had to consider the reasonableness of that action. We find that the respondent acted unreasonably in treating the applicant's conduct as a sufficient reason for dismissing the applicant. We have dealt with it by treating the Council as having stepped into the employer's shoes through their nominees. From an early point, in reality, it was determined that if the conclusion was that there had been or may have been a breach of the Veterinary Surgeons Act then that was gross misconduct and there was no alternative but to dismiss the applicant."
They then go back a little in history about the previous incidents and none of those had resulted in any disciplinary action and they say, in particular:
"The pressure for a decision at the investigatory hearing meant that the result of the investigation was not reported back to the full Committee before recommendations were made. It meant that the Officers did not know which of the allegations gave rise to the finding of the Sub-Committee. We still do not know."
These are serious defects, clearly so regarded by the Industrial Tribunal but they do not seem to have been the ground of their decision. They say in paragraph 17:
"The respondent argued that the applicant had been warned about his conduct. We find that the applicant has never been warned in the employment context that his conduct, in whatever form, might lead to dismissal. ... We do not accept that Mr Roberts warned him in a disciplinary sense or at all. There was no record of that and Mr Roberts does not recall in what terms he may have expressed the warnings. ...
18. The Society's Rules sit uneasily with the recommendations of ACAS about how procedurally a reasonable employer should dealt with disciplinary matters. There was no written disciplinary procedure which applied to the applicant."Another very serious defect, one would have thought.
"The Council having nominated four people to take over the running of the Branch and to dismiss the applicant, did not communicate directly with the applicant to inform him of the findings of the Sub-Committee nor to tell him that he was to be dismissed and to give him an opportunity to say anything he wished to say in mitigation. The letter of dismissal was sent to the Branch and the applicant learned from the press that he had been dismissed. Although much criticism could be levelled at the uncertainty and failings caused by the lack of procedure which resulted in the inept and unreasonable way the dismissal occurred those factors alone would not have led us to find the dismissal unfair."
Well, certainly, in many cases they would lead an Industrial Tribunal to such a conclusion. The fact that they did not shows the weight which, it seems to us, they were giving to the employer's case the great importance they attached to it. They go on:
"19. Some of these omissions were remedied at the appeal by which time the applicant did know that the matter was being considered in an employment context rather than in a breach of the Veterinary Act, criminal proceedings context. It did not remedy the fact that the Council had taken into account matters on which the applicant had not been given the opportunity to comment. It did not sort out which of the three allegations the findings of the Sub-Committee related to and it did not take into account that the Committee and Headquarters had seen fit for their various reasons not to investigate what exactly the applicant was doing within the clinic and at night time - not to take disciplinary steps in 1990, and not to pursue the appointment of a Veterinary Director."
We regard that as the essence of their decision. They felt that the appeal, though no doubt a fair one and perfectly proper, had not remedied these matters and, in particular, as they say, for various reasons, had not investigated these matters. It is almost, in terms, saying there was connivance here, a deliberate shutting of eyes for various reasons to what was going on. In other words, that the people who should have been sacked here, if they had not resigned, were the Committee not, perhaps, Mr Eccles and, perhaps, somebody at Headquarters, who had failed to follow up these various previous incidents with proper energy. They say:
"20. We find that in all the circumstances of this case it was not within the band of reasonable responses to dismiss the applicant. The dismissal was unfair."
They were saying, procedurally we would not have held the dismissal to be unfair, although there were grave breaches in procedure; but bearing in mind that Mr Eccles was the grossly over-worked victim of a combination of matters, his own excellence, his willingness to work hard, the fact that his Committee did not want to ask for extra funding for a veterinary supervisor, although that had been recommended on more than one occasion because they did not want the extra control from headquarters, had been left unsupervised to get on with it, we think it was unfair. What would be, one asks, the likely effect on a man with a passionate enthusiasm for animals and a humane sense of their needs? He must, in the course of his night trips and his daily work, have seen many injured or ill animals at times when a veterinary surgeon was not in attendance, and he had an enormous workload. They took into account all these matters. They said so and we think they were right to do so.They then went on to consider the matter of contribution and here, and only here, they say that they found Mr Eccles by no means a perfect applicant, if I can put it like that. They said that he was in contribution. The Tribunal said:
"It was only under strenuous cross-examination that he accepted that his actions seen on the video might amount to treating, diagnosing and administering of drugs not under the direct personal supervision of a Vet. All his actions may have been done for the best of motives but we consider that even though he had not been warned in a disciplinary employment sense he did know from what had been said to him by Mr Bate [the chief veterinarian] if not from the previous threat of prosecution that there was a danger of overstepping the mark."
Ms O'Rourke complains there that at that very late stage they were, for the first time, introducing Mr Eccles' own failings in considering the justice of the matter. To be unkind to Ms O'Rourke's argument, she is saying that all the matters which they should have considered were either put too early in their reasons or too late, not in the middle, where they belonged.We read the reasons as a whole. That is our duty. In many cases the Court of Appeal has told us that we must not go through picking out individual phrases and saying, "Aha, this shows a departure from what Lord Denning said in this case or what Lord Justice Russell said in another case". We have now read the decision ourselves several times. In spite of Ms O'Rourke's submissions, we do not think that this was an example of the Tribunal simply considering fairness to Mr Eccles and not considering fairness to the employers. We think it shows an admirable balance. We think the Tribunal kept their eyes wide open to defects both of Mr Eccles and of the Committee and of the Council of the Royal Society itself and we think they had their eyes wide open to the importance of the work of the Royal Society and their very legitimate interest in making sure that their reputation was maintained and that they were not let down by Officers. We think they had all that well in mind and they set it out.It is perfectly true that they set out those matters very favourable to Mr Eccles in giving the reasons why they found he had been unfairly dismissed but, of course, that was the part of the judgment which was in his favour. They needed strong reasons, indeed, in the circumstances of this case to say that such a serious matter did not merit dismissal and they found those serious mattes and set them out, we think, with clarity. Of course, it is true they could have set out their decision in a different order. They could have said repeatedly, as they went through these matters adverse to the Royal Society's action, "We bear in mind, of course, what we have said before about the various matters which justified, in the view of the Royal Society, the action which they took". They did not keep repeating that but we think that this very long and very careful decision shows that the Tribunal did its job, if I may use the word once more, impeccably. They devoted great care to a difficult case. They were very fortunate to have the assistance of Counsel. They spent no less than six days on it and we think they got their decision absolutely right so far as questions of law are concerned. It is not, of course, for us to say whether we would have reached the same decision on the facts or whether another Tribunal would have reached the same decision on the facts. It was for them and them only, as the industrial jury, as they have been called, to make their decision on the facts. So far as the law goes, we think this is a decision which cannot be criticised in any proper sense. We think that it is legally impeccable and we think that they reached a decision which they were entitled to reach.In those circumstances, despite the very forceful and conscientious submissions of Ms O'Rourke, we think that this appeal must be dismissed.