Pattison v Board Of Governors Of Christ's Hospital [1995] UKEAT 836_95_2111

EAT
Pattison v Board Of Governors Of Christ's Hospital
[1995] UKEAT 836_95_2111 · 1995-11-21
MR JUSTICE KEENE : This is a preliminary hearing for the Appellant in this matter to show cause why this appeal should not be dismissed for not disclosing an arguable point of law.The appeal itself is lodged against the unanimous decision of an Industrial Tribunal sitting at Newcastle upon Tyne in March and May 1994, a decision which was entered in the Register on 3 June 1994. The decision of the Tribunal was that the present Appellant was fairly dismissed.Mrs Pattison was dismissed from her position as head of care at Christ's Hospital in Sherburn. That hospital was a charitable institution governed by a Board of 16 governors. The Chairman of the Governors was a Mr Morrissey, who was also Chairman of the Home Care Committee. It is necessary for the purpose of our decision today to provide some of the detail which forms the background to this particular appeal.The Appellant's husband is the Reverend Graham Pattison, who was the Master of Christ's Hospital and also the Administrator. He therefore had an involvement in the activities of that institution. It appears that over a period of time, while the Rev. Pattison and Mr Morrissey cooperated in various ways, in due course they fell out and a certain amount of acrimony appears to have developed. In any event, after the dismissal of the present Appellant, there was an appeal by her to a panel composed of members of the Finance and General Purposes Committee. This followed on from a disciplinary hearing which took place where the present Appellant was represented, the panel conducting that disciplinary hearing consisting of a Mr Mordica, a Councillor Firby and a Mrs Petrie. It was their decision by a 2 to 1 majority to dismiss the Applicant summarily, Mr Mordica and Councillor Firby constituting the majority.Following the dismissal Mr Morrissey was reported, according to the Industrial Tribunal, by members of the Pattison family to the Charity Commissioners for irregularities connected with the Hospital's affairs. He was suspended from the Governors and has not played any part in the affairs of the employing charitable institution since that time. The Tribunal records that ostensibly he played no further part in the matters leading to and following the dismissal.The members of the Appeal Panel to which the Appellant appealed, were Councillor Bowman, who gave evidence before the Industrial Tribunal and Councillor Smith and a Mr Morland. The appeal was dismissed and the Appellant was duly notified of that by a letter dated 24 January 1994. The Respondent relied upon the conduct of the Appellant as the reason for dismissal. It is necessary to note that the Tribunal was addressed apparently at some length on whether a proper investigation had been carried out by the employer in this case and the Tribunal found that it had. They said this:
"The first matter which the Tribunal had to consider was whether or not there was in this case a proper investigation. There was produced before the panel at the disciplinary hearings a large number of statements summarised above and contained in the respondents' bundle. But the question remains whether or not the investigation was a reasonable and proper investigation having regard to the fact that it was carried out by Mr Morrissey who had over the preceding year crossed swords frequently with members of the Pattison family. It was a source of concern to the Tribunal that there may have been bias on the part of Mr Morrissey, or at least the appearance of bias. However we note that it was never alleged specifically by Mrs Russell [who was appearing on behalf of the Appellant] during either the original disciplinary hearing or the appeal that investigation by Mr Morrissey had not been properly carried out, rather it was alleged before the Tribunal that the allegations that were contained within the statements that were taken in the course of the investigation were themselves either untrue or exaggerated either because of the influence of Mr Morrissey, or for other reasons. It was also alleged during the Tribunal hearing that the original 2 statements that had been taken from Mrs Anderson and Mr Annowar which were instrumental in leading to the suspension of the applicant might have been typed on the same typewriter and certainly their typewriting appears very similar. Although it is right to observe that neither of those people gave evidence at the original disciplinary hearing (or at the Tribunal), they did give evidence before the appeal at the request of Mrs Russell and were questioned by her. It is clear that the appeal hearing must have accepted for the most part the evidence that they gave and that they were genuine witnesses. Certainly there was no suggestion that the appeal hearing found or ought to have found having heard Mrs Anderson and Mr Annowar that the original complaint that they had made had been in any way coerced or improperly obtained. The Tribunal accordingly find that the investigation in this case was properly conducted and that the statements that were obtained were genuinely obtained and signed by members of staff."
The Industrial Tribunal then went on, having found that there was a reasonable and proper investigation, to consider whether in those circumstances the dismissers believed in the allegation and misconduct which were relied upon and had reasonable grounds in their minds upon which to sustain that belief.The Tribunal noted that the principal and most serious allegation relating to the conduct of the present Appellant was that relating to drugs and prescription pads. They said, and again we quote:
"In brief summary the case presented to the disciplinary hearing was that a large number of drugs had been found in the applicant's office which was locked, both on top of the desk and principally within locked drawers or a locked cupboard in that room which were out of date and/or which should not still have been on the premises ..."
There was then a reference to a large number of blank prescription pads approaching some 800 in all being found locked in and on the desk. They referred to the explanation, which the Appellant gave to the panel, namely, that:
"... so far as the drugs was concerned she had packed most of them into a black plastic bag in order to return them to the pharmacy on the day of her suspension following the change of the drug routine at the hospital to the more modern Nomad system in February 1993. Mr Mordica told the Tribunal, and we accepted his evidence on this point, that he rejected that explanation. The drugs were of considerable age and some in particular dated back to 1986 and were accordingly some 6 years old. Some were simple analgesics but some were not. This meant that there were a considerable amount of drugs (set out in the list contained within the respondents' bundle) which should never have been on the premises at all and should have been disposed of earlier."
The Tribunal came to the decision that the allegations found proved in relation to the drugs, to the prescription pads and to the treatment of Mr Annowar, were serious enough, in particular when the other allegations found proved were added to them, to constitute gross misconduct by a person who was in the senior management position held by the Appellant and that these matters could not be overlooked by reason of her hitherto good service record.Consequently, they found that the Respondents had established that the principal reason for dismissal was conduct within section 57(2)(b) of the Act, that the procedures were broadly fair and that it was reasonable in all the circumstances for the Respondents to summarily dismiss the Appellant.Following on from that decision there was an application on behalf of the present Appellant to the Tribunal for a review of its decision. That application was made on 1 August 1994 by solicitors then acting on her behalf and it was principally on the ground that new evidence had become available since the conclusion of the hearing that could not reasonably have been known of or foreseen before that date, namely, that the membership of the original body which determined dismissal of the Appellant included Messrs Mordica and Firby and the supposedly independent appeal body which consisted of three members, included Messrs Bowman and Morland. They also said that all four Governors were party to the original decisions made by the Home Care and/or General and Financial Purposes Committee and the minutes of that Committee had only just come to light, and they alleged certain discrepancies.The Industrial Tribunal rejected that application for a review. They said in the course of their decision:
"In addition there is nothing that we have seen in the documents disclosed to the Tribunal today which do reveal wrong doings, as found by the investigation, on the part of anyone other than Mr Morrissey and the Reverend Pattison, the applicant's husband. There is nothing which would lead us to conclude, contrary to our earlier findings, that Mr Mordica was an unreliable witness."
They then go on to make certain references in detail.They made reference in their decision on that review application to an argument being advanced about the forthcoming report of the Charity Commissioners following on from the reference of a complaint to the Charity Commissioners to which we have already referred. At the hearing of the application for a review, an application was also made for an adjournment on the basis that the Charity Commissioners' report was still awaited. The Tribunal, at the review, said that they had no idea when realistically that report might be disclosed and they added that:
"It is only speculation that it might reflect so greatly on Mr Mordica as to affect our views as to the reliability of his evidence."
They also noted that there was nothing in the documents before them that led the Tribunal to reconsider the credibility of Mr Mordica or reliability of the appeal process.The grounds of appeal, as lodged in this case, were the grounds which led to this preliminary hearing. They were as follows:
"1. The Tribunal did not consider whether the internal appeal procedure complied with the rules of natural justice.
2. The Tribunal allowed a witness to be intimidated.3. The Tribunal failed to take cognisance of the fact that all so called evidence supporting dismissal was discovered after dismissal not before."At this hearing today, the Bishop of Jarrow, who has appeared on behalf of the present Appellant, has not in terms sort to maintain or advance any of those grounds of appeal. The basis of the argument advanced today on behalf of the Appellant is that since the Industrial Tribunal's original hearing and, indeed, its review hearing, fresh evidence has come to light in the shape of the Charity Commissioners' report and it is therefore said that on the basis of that fresh evidence, this matter ought to go back to an Industrial Tribunal. The Charity Commissioners' report or, to be more precise about it, the report of an Assistant Commissioner of their Investigations Division is dated 9 August 1995 and clearly comes after both the original Tribunal hearing and the review. It notes that:
"The inquiry has revealed a web of conflicts of interest, patronage and nepotism spun over a period of years. Few of those involved in the administration of the Charity during the period covered by the report emerge with much credit."
In particular the report criticises both Councillor Morrissey and the Reverend Pattison in forceful terms. However, what is relied upon on behalf of the Appellant today is a reference on page 3 of the report and a further reference on page 4. On page 3 of the report of the investigating officer, after the criticisms of the Reverend Pattison there is reference to Councillor Morrissey and we quote:
"Like Reverend Pattison he has been in positions where he has been able to manipulate the affairs of the Charity directly or indirectly to his own ends. He has exploited his position as Chairman of the Charity in an attempt to engineer the attempted removal of Reverend Pattison, and the sacking of Mrs Pattison, after his dismissal from his post at Skill Training Ltd by Reverend Pattison."
On page 4 the report says this:
"Other Governors have consistently been named as long-standing supporters of Councillor Morrissey, most notably Councillor Edward Gallon, Edward Mordica, Harry Morland, Anne Pratt, John Bowman and Bill Firby, all of whom were Governors throughout all or the greater part of the period covered by this Report."
Their role was, I believe, one of supporting the actions of Councillor Morrissey and - provided that it was in accordance with what Councillor Morrissey wanted - Reverend Pattison. I have uncovered no evidence of bad faith or dishonesty on their part but I have no doubt that they have all allowed their personal/political loyalty to Councillor Morrissey to override their duty to the best interests of the Charity at various times."It is said on behalf of the Appellant that those passages in the report on behalf of the Charity Commissioners might have a decisive effect on the Industrial Tribunal's decision. It has to be put like that because, of course, it is well known that this Appeal Tribunal will not normally admit fresh evidence or allow an appeal on that basis, but will do so only in exceptional circumstances and part of the test of whether or not an appeal should be allowed on that basis is whether the evidence might have made a decisive difference to the Industrial Tribunal's decision.In that report, the reference there to Councillor Morrissey attempting to engineer the sacking of Mrs Pattison is what is principally relied on on her behalf.We find it difficult to see that that simple reference, albeit one made after the conduct of an investigation on behalf of the Charity Commissioners, might have any decisive effect on the Industrial Tribunal's decision. The involvement of Councillor Morrissey in the processes concerning the eventual dismissal of the Appellant was a topic raised before the Industrial Tribunal and canvassed at some length. We have to say that we are impressed by the depth into which the Industrial Tribunal went in investigating the unhappy conflicts which had clearly arisen within the conduct of the Charity's affairs and we, for our part, have no doubt that they were well aware of the possibility of various manoeuvrings and shenanigans, as they have been called, between the various factions, once Councillor Morrissey and the Reverend Pattison had fallen out.We cannot see that that passing reference on page 3 of this report to Councillor Morrissey attempting to engineer the sacking of Mrs Pattison could have any decisive difference on the Tribunal's decision because this was a topic which was investigated in depth by the Tribunal, having heard witnesses give evidence and be cross-examined in front of them.So far as the second reference in this report is concerned, that which appears on page 4, it is right, of course, that the Tribunal had placed weight, in particular, on the evidence given before them by Edward Mordica. That appears from the Tribunal's decision. What the report indicates is that Alan Martin, the Assistant Commissioner of the Investigations Division, had concluded that Edward Mordica was a long-standing supporter of Councillor Morrissey. On the other hand, he also notes that he has uncovered no evidence of bad faith or dishonesty on the part of any of the individuals named. That seems to us to be of importance because there is no doubt whatsoever that the Tribunal placed reliance on the evidence which was given before them by Edward Mordica. They considered how reliable he was as a witness. This report does not seem to us to provide evidence for challenging Edward Mordica's honesty as a witness in any way. We have already drawn attention to the fact that at page 8 of their original decision the Tribunal had accepted the evidence given by Mr Mordica in relation to the very serious allegation about the drugs. They were in the advantageous position that they heard Edward Mordica give evidence in front of them and they could form a judgment as to his honesty. Nothing in this report, on behalf of the Charity Commissioners, actually discloses any new evidence which could lead them to doubt, in our view, the honesty of Edward Mordica as a witness. No new evidence is referred to in that report. What one has is a conclusion reached by that particular investigating officer, but the sort of allegations that were being made here, about there being these connections and relationships between various of those involved in the conduct of the Charity's affairs and Councillor Morrissey, were canvassed at the Industrial Tribunal hearing and were investigated by them. As we have indicated, the Tribunal accepted the evidence given by Edward Mordica. We cannot see any prospect that the Tribunal would arrive at any different view as to his evidence simply because of the references made in this report.That being so, we do not accept that the test of whether this evidence might have a decisive effect on the Industrial Tribunal's decision has been satisfied in this case. We are bound to note that the point that we have allowed to be canvassed this morning on behalf of the Appellant, and which we have now dealt with, is not one contained in the grounds of appeal but we felt it right to allow it to be canvassed and to deal with it on its merits despite that fact. As we have already indicated, we do not find that there is any fresh evidence which should be admitted in this case or which forms any basis for allowing this appeal. In those circumstances, we have to conclude that this appeal must be dismissed.