Blundell v Christie Hospital NHS Trust [1995] UKEAT 496_94_1210

EAT
Blundell v Christie Hospital NHS Trust
[1995] UKEAT 496_94_1210 · 1995-10-12
JUDGE HULL QC This is an appeal by Ms Blundell against the decision of the Industrial Tribunal sitting at Manchester under the Chairmanship of Miss Woolley, dismissing her complaint of unfair dismissal. The Tribunal devoted three days in March 1994 to hearing the case and promulgated their decision on 15 April 1994.In the course of their written decision, which is a long and detailed one, the Industrial Tribunal examined the facts in detail. Ms Blundell was a cytology screener employed in the hospital's cytology department. She had been employed by the hospital since June 1969. In 1988 she became a shop steward. She was one of a number of "cyto screeners" whose task was to examine slides which showed cervical smears which had been taken from patients and processed by the laboratory. The results of the examination were recorded, and the object of the examination was to discover cytological abnormalities which might indicate the onset of disease, in particular cancer. The results of these examinations were recorded in Ms Blundell's workbooks. In certain cases at least, it was her duty to pass the slide on promptly to another screener in the same department for further examination.In November 1992 it was discovered that Ms Blundell had not handed on one of her slides promptly to another screener. There had been a delay of about thirteen days, potentially a serious matter for the welfare of the patient, who had previously given smears which were considered to be abnormal. There was an investigation by Mrs Walker, the laboratory manager. Ms Blundell gave no explanation for the extraordinary delay. Professor McClure, Head of the Cytology Department, decided to investigate the question whether there were other instances of delay. He asked Ms Blundell for her workbooks for the previous six months. Ms Blundell said she was not sure where they were. A search in the department failed to discover them; but she went home, found them there, and brought them to the department. She then said that she had another nineteen workbooks outside the department. Asked to bring the books in the next day, Ms Blundell said that was not appropriate, but she did in fact produce them. The books contained confidential medical information, including patients names and diagnoses.Mrs Walker checked Ms Blundell's workbooks and found a number of instances - no less than twenty-three - of delay in passing on slides to another cyto screener. Professor McClure decided to hold a disciplinary hearing in respect of these matters. There were four charges. The first three were (in summary):1. That Ms Blundell had caused an unnecessary delay in respect of the first slide.2. That Ms Blundell had caused unnecessary delays in twenty-three other cases, of which fourteen showed cytological abnormality; seven of the patients were referred for treatment, which was delayed unnecessarily.3. That Ms Blundell had removed nineteen workbooks from the department without permission.There was a fourth connected charge which was dismissed by Professor McClure and we were not concerned with that.Professor McClure, in the course of the hearing, heard Mrs Walker and other witnesses. Ms Blundell was represented by a full-time union officer. She gave evidence to Professor McClure and admitted the delays in handing on slides. She could not explain these delays, but said that she had not been very well and had suffered a number of bereavements. With regard to the workbooks, she said that she had the tacit permission of management to remove the books and keep them at home; certain people in managerial positions knew that she had done that and had not objected. Her purpose was to keep them safe. She had not actually been given express permission, but Mrs Walker knew that she had taken the books home; so did Mr Fry (Chief Executive of the Trust) and two others.Professor McClure did not seek evidence from Mr Fry or the other two witnesses; he preferred Mrs Walker's evidence and took into consideration what Ms Blundell had originally said to him about the workbooks and the impression she had made on him then. He concluded that he disbelieved Ms Blundell. He found that the first three charges against Ms Blundell were proved and were very serious. Her conduct might bring the Trust into disrepute, in addition to the potentially serious affect on patients and the possibility of litigation.The Industrial Tribunal heard evidence from Ms Blundell and Mrs Kelly, another shop steward. They also heard evidence from Professor McClure and Mrs Walker.On the matter of Ms Blundell's allegation that she had tacit approval to remove her workbooks from the laboratory and take them home, the Industrial Tribunal observed that Professor McClure had decided not to seek evidence from the three other members of management who were alleged to know of this practice. They considered that decision carefully. They were of the opinion that the obligation was at all stages on Professor McClure to investigate any issues which arose. He had evidence before him on which he was entitled to reject Ms Blundell's version in its entirety. The Industrial Tribunal said that they had evidence that Mrs Walker did know of the practice. However, she had denied it to Professor McClure and the Industrial Tribunal concluded that they should not substitute their own view of the matter for that of the Professor. They also concluded that his decision to make no further investigation of that issue was "within the band of reasonable responses" as was his decision to dismiss Ms Blundell.The evidence to the Industrial Tribunal that Mrs Walker knew about Ms Blundell's practice of taking workbooks home was that of Mrs Kelly. On 25 October 1994, the Employment Appeal Tribunal ordered that the Chairman of the Industrial Tribunal be asked to produce her Notes of Evidence of Mrs Walker and any other evidence relating to their observation that they had evidence that Mrs Walker knew of the practice. The relevant evidence is at pages 41 and 42 of our bundle, although the Chairman has expressly stated that other evidence, including the evidence that Mrs Walker did not know of the practice, had not been included.In her appeal to us, Ms Blundell by her Counsel, Miss Woodward, pointed out that in paragraph 4 of the decision the Industrial Tribunal said that they accepted Mrs Kelly's evidence about various matters. (It must be said that this statement was in the part of the decision dealing with a quite different matter, namely the history of a complaint by Ms Blundell against Professor McClure's predecessor, a Dr Yule.) From this, Miss Woodward formulated the submission that if Mrs Walker deliberately misled Professor McClure on a fundamental aspect of her investigation, it could not be said that the Trust had carried out a reasonable investigation. The Industrial Tribunal should have considered that matter. They should have concluded that Professor McClure should have made enquiries of the other three members of management. Miss Woodward went further and said that it was clear that the Industrial Tribunal believed that Mrs Walker had in fact misled them.Mr Rigby, for the Trust, pointed out that Ms Blundell had made no complaint in her "IT1" (the application to the Industrial Tribunal) that Mrs Walker had told an untruth to the disciplinary hearing. At the Industrial Tribunal hearing it was not suggested to Mrs Walker that she had lied to the Professor; the only note of her evidence in cross-examination on this topic is "I have no recollection of noticing fewer books at the applicant's work-station than at others. She had a lot of papers around her microscope because of being the union representative" (page 40). The suggestion that Mrs Walker had lied to the Professor was not raised at the disciplinary hearing. Mrs Kelly had not been called by the Applicant at the disciplinary hearing. The question was whether the Trust, through Professor McClure, had acted reasonably. Mr Fry had given evidence before the Industrial Tribunal and was not cross-examined at all about knowing of Ms Blundell's practice. In those circumstances it was laughable to suggest that the Industrial Tribunal, in their remarks about Mrs Kelly's evidence, had implicitly concluded that Mrs Walker was a liar.We are all of the opinion that it is illogical, in the light of these matters, to infer from what the Industrial Tribunal said in paragraph 4 of their long decision that they had found, or were logically obliged to find, that Mrs Walker had not told the truth to the Industrial Tribunal and to Professor McClure.The majority of us are of opinion that there is nothing in this point whatever. The case that Mrs Walker, the investigator, knew perfectly well that Ms Blundell was in the habit of taking workbooks home and had tacitly agreed to it, but had then deliberately told lies about that to Professor McClure and to the Industrial Tribunal, so that it was clear that the investigation was unfair, was never put forward either to the Professor's disciplinary hearing or to the Industrial Tribunal. If it had been the Applicant's case, it is inconceivable that Mr Foley would not have called Mrs Kelly (who after all was one of his trade union colleagues) before the Professor and would not have cross-examined Mrs Walker and Mr Fry about the matter before the Industrial Tribunal. We, the majority, think that this is an attempt to make a case before us which was not made in the Industrial Tribunal. We are satisfied that the Industrial Tribunal correctly directed themselves that it was not for them to say what evidence Professor McClure should have accepted or rejected, so long as he proceeded reasonably and fairly; and that they should not substitute their judgment for his. In the light of the fact that Ms Blundell never denied the two principal charges against her, the suggestion that the whole investigation was corrupted by Mrs Walker's alleged dishonesty appears to us to be without any foundation.One of us, however, is not satisfied with the decision of the Industrial Tribunal on this matter. This Member is of opinion that after the Industrial Tribunal had heard the evidence of Mrs Kelly that Mrs Walker knew of Ms Blundell's practice of taking workbooks home, they should have enquired further into the matter, if necessary recalling the Professor and Mrs Walker and Mr Fry, so that they could be questioned about it.The decision of the majority is that the appeal does not succeed on this ground.The second ground which is advanced in support of the appeal is that the Trust failed to observe their own appeal procedures. Ms Blundell appealed in accordance with the Trust's procedure to a panel of three members of the Board: the hearing was on 10 March 1993 and the appeal was dismissed. She then sought to make a further appeal. The disciplinary procedure provided:
"(i) In the event of an appeal against the decision of the Panel of the Trust Board, a member of staff has the right of appeal to the full Board of the Trust. The Trust Board has a discretion whether to hear such appeals.
(ii) Appeals to the Trust Board should be made in writing to the Head of Personnel within 10 working days of the issue of the Panel decision.(iii) Where the Trust Board chooses to exercise its discretion to hearing (sic) an appeal, the Head of Personnel will convene a disciplinary hearing within 20 working days, giving not less than 10 working days notice."The Industrial Tribunal made the following findings:"30. The Applicant wrote to the Head of Personnel on 17 March 1993 exercising what is described as her "right of appeal" and that letter was received by the respondents on 18 March 1993. It was referred at some stage between then and 23 March 1993 to Mr Fry who was a member of the Trust Board. Mr Fry got all the documents, statements and notes of the hearing and considered what the issues had been and what the outcome was. His view was that a Stage II Appeal should only be considered or allowed to go ahead in exceptional circumstances. He discussed the position with Mr Leigh, the Chairman of the Trust Board, and they decided together that the respondents should not allow a Stage II Appeal in this case on the grounds that the Applicant had shown nothing exceptional. ...31. When Mr Fry gave evidence to us he told us that he took that decision in consultation with the Chairman under the implied delegated powers which he had from the Board because, otherwise, there would have been delay because the Trust Board would not meet for four months. In fact, in his closing submission, it was revealed by counsel for the respondents that he had not understood that that was the evidence and it was later agreed that the next meeting of the Trust Board was 8 April 1993. At that meeting the Board were asked to, and did, ratify the decision of Mr Fry and the Chairman. It is not suggested, however, that there had been express delegated powers to Mr Fry and the Chairman before that date.32. We come to the conclusion that Mr Fry was not under any real pressure of time, as he told us. We accept the applicant had a contractual right for the Board to exercise its discretion and not for Mr Fry to deal with it with the Chairman. We accept that there was, however, an insoluble problem for the applicant, namely that the criteria for the exercise of the Board's discretion are not laid down in the written procedure and, in the written procedure, although it is referred to as a "right of appeal" at all stages, the "right" is always qualified by the discretion of the Board. On the evidence before us the true position was that the union and the Board had agreed to something which was contradictory. We come to the conclusion that as the applicant had not got any specific grounds for asking for a new hearing, and as she was merely asking the full Board to re-consider the matter and substitute their view for that of the panel by having a re-hearing on the merits, it was not likely that the Board would have exercised their discretion to allow that appeal on the present state of the written procedure. Half the Board, namely the five people who had considered it in various ways, had come to a conclusion against the applicant. The Board consisted of 10 members. Although, therefore, there was a breach of the disciplinary procedure by Mr Fry and the Chairman deciding the issue, the so-called "right" given to the applicant in the written procedure was, in our view, in fact worthless. It was not a right at all. The written procedure is therefore, in our view, misleading and confused. At the very least it requires further provisions to be inserted to make it workable."It appears to us all that the reasoning of the Industrial Tribunal on this point is flawed. The procedure provided expressly for a second right of appeal. There was an important proviso that the Board had a discretion whether to hear such appeals. There is in our view no internal contradiction here, nor was the right of appeal worthless. The Applicant had a right to appeal and the Board had a right to decide whether to hear the appeal. Not only did Ms Blundell have a right to appeal, she had the right to have the Board exercise their discretion whether or not to hear it; and that discretion had of course to be exercised bona fide and on reasonable grounds. In fact the Board never did exercise its discretion. Mr Fry and the Chairman purported to exercise the discretion on its behalf and did so, as is made clear by the Industrial Tribunal, on mistaken grounds.On 8 April 1993 the Board purported to ratify the decision of Mr Fry and the Chairman. It appears to us that that was a misconceived decision; indeed as the Industrial Tribunal themselves said "we accept that the Applicant had a contractual right for the Board to exercise its discretion and not for Mr Fry to deal with it with the Chairman". The concept of ratification is part of the law of agency and is not appropriate to a quasi-judicial decision. Had the Board rescinded the purported decision of the two officers and exercised their discretion anew and in good faith, we have no doubt that that would have been, on the face of it, a valid and proper decision either to hear the appeal or to refuse to hear it; but that is not this case.There has therefore, in the opinion of all of us, been a breach of the Trust's procedure for the conduct of the second appeal. The Trust relied on the decision of the Employment Appeal Tribunal in Post Office v Marney [1990] IRLR 171 as authority for the proposition that, if the dismissal was originally fair, a breach of the procedure with regard to an appeal would not necessarily render it unfair. That case was, on its facts, a rather special one. It has not been followed in two later cases. In Stoker v Lancashire County Council [1992] IRLR 75 , where the second and third internal appeals by the employee were not conducted as full re-hearings, in breach of the agreed procedures, the Court of Appeal held that the Industrial Tribunal had erred in law in misinterpreting the procedures to be followed. Dillon LJ observed at paragraph 20:
"It might be the view that a reasonable employer could be expected to comply with the full requirements of the appeal procedure in its own disciplinary code."
and the case was remitted to a differently constituted Industrial Tribunal to reconsider the complaint in the light of the judgments of the Court of Appeal. Lord Justice Dillon, with whom the other two Lords Justices agreed, said in paragraph 21 that the Industrial Tribunal had necessarily erred in law, because they had misinterpreted the procedures which were to be followed under the disciplinary code. In paragraph 22 he said:
"... the Industrial Tribunal and the Employment Appeal Tribunal never addressed their minds to the right question in considering whether the county council had acted reasonably. Therefore, it must follow, ... that they erred in law in the circumstances of this case and this appeal must succeed."
In Cabaj v Westminster City Council [1994] IRLR 530 the appeal of the employee was heard by a panel consisting of two members of the Council instead of the three for which the agreed procedure provided. The Employment Appeal Tribunal, under the Chairmanship of its President, held that the Industrial Tribunal, deciding in favour of the employer, had erred in treating this defect as a procedural error. The Employment Appeal Tribunal observed at paragraphs 17 and 18 of their decision:
"It is true that the Industrial Tribunal took into account the defect in the composition of the appeals tribunal and concluded that that defect did not render the dismissal unfair. Mr Kurrein submitted that a decision which took proper account of that matter could not be characterised as perverse. This argument does not, however, meet the point that the Industrial Tribunal failed to appreciate that, as a matter of law, the defect in the composition of the appeal tribunal was not simply a matter of `procedural error'. There was a fundamental flaw in the composition of the appeals tribunal affecting its jurisdiction to determine the appeal. We repeat that Mr Cabaj did not have his appeal heard and decided by a properly constituted tribunal. In the case of Stoker v Lancashire County Council [1992] IRLR 75, the Court of Appeal emphasised the importance, with regard to internal appeals, of addressing the fact that an employee has not been accorded a right of appeal to which he was contractually entitled. It is not a question of looking at the reasonableness of the actions of the council. The legal error, in our view, was in regarding the defect as a procedural error instead of a significant contractual and jurisdictional failure. For those reasons we should allow the appeal.
The question arises as to whether the matter should be remitted to the Industrial Tribunal for fresh consideration in the light of this ruling. We have reached the view that the denial to Mr Cabaj of his contractual entitlement was so fundamental a defect in the dismissal process that, if the matter were remitted to an Industrial Tribunal, it could only come to one conclusion, that the dismissal was unfair. In those circumstances this Tribunal will reverse the decision of the Industrial Tribunal and hold that Mr Cabaj was unfairly dismissed."Mr Rigby invited us to hold that Cabaj v Westminster City Council was wrongly decided, or to distinguish it. We are not prepared to do so. It appears to us that the error in the present case destroyed the Applicant's right to have the entire Board exercise its discretion whether to hear her appeal, which was an essential part of the severe limitation placed on her right of appeal, and that in those circumstances the dismissal must be held to have been unfair. It also appears to us that in paragraph 32 of their decision, the Industrial Tribunal were overlooking the decision of the House of Lords in Polkey vAE Dayton Services Ltd [1987] ICR 301 , when they observed:
"... We come to the conclusion that as the applicant had not got any specific grounds for asking for a new hearing, and as she was merely asking the full Board to reconsider the matter and substitute their view for that of the panel by having a re-hearing on the merits, it was not likely that the Board would have exercised their discretion to allow that appeal on the present state of the written procedure. Half the Board, namely the five people who had considered it in various ways, had come to a conclusion against the applicant. The Board consisted of 10 members. Although, therefore, there was a breach of the disciplinary procedure by Mr Fry and the Chairman deciding the issue, the so-called "right" given to the applicant in the written procedure was, in our view, in fact worthless. It was not a right at all. The written procedure is therefore, in our view, misleading and confused. At the very least it requires further provisions to be inserted to make it workable."
The Industrial Tribunal were there considering the question "would the adoption of the agreed procedure have made any difference"? On the authority of Polkey , the proper time for considering that important matter is on the assessment of compensation, not in deciding whether the dismissal was fair.We therefore allow the appeal and remit the case to the same Industrial Tribunal with a direction that the dismissal was unfair for the reasons we have set out; and we ask the Industrial Tribunal to continue their hearing so as to decide the question what, if any, remedies should be accorded to Ms Blundell.