Talianos v Kingston & Esher Health Authority [1996] UKEAT 1174_95_2309

EAT
Talianos v Kingston & Esher Health Authority
[1996] UKEAT 1174_95_2309 · 1996-09-23
MR JUSTICE HOLLAND : We are concerned with an appeal from a decision of the Industrial Tribunal that was held at London (South) on and between 31st July and 2nd August 1995. Their decision was that the applicant, Mr S Talianos was not unfairly dismissed by the respondents Kingston & Esher Health Authority. Against that decision Mr Talianos appeals.In order to understand the matter, it is helpful to start with a short chronology. On the 12th January 1964, Mr Talianos entered employment with the Authority as a nurse. His employment, certainly by the end of it, was as a Senior Enrolled Nurse.The events that led up to the termination of the employment appear from paragraphs 5, 6 and 7 of extended reasons sent to the parties on 14th September 1995. We interpose to pay tribute to the clarity with which those reasons were drafted.Turning then to them, paragraph 5:
"5. The Applicant had a clean disciplinary record up to the date of the incidents giving rise to his dismissal and there was no evidence to suggest that until then his capability had been called into question. Towards the end of his employment he was transferred from Long Grove, a psychiatric hospital, to Rose Lodge, a 17-bed rehabilitation unit. At the time of his dismissal he was employed as a senior enrolled nurse and his terms and conditions of employment are set out ...
6. As a Grade E senior enrolled nurse the Applicant was in charge of a ward and part of his duty, indeed a most important part, was to administer drugs to patients as required. There was a detailed procedure laid down for this purpose but the basic principles were obvious: it was the Applicant's duty to administer the drug prescribed by the doctor of the patient concerned and not the wrong drug or no drug at all; it was also his duty to fill in the prescribed forms correctly and if a mistake was made to note it down.7. On 12 November 1992 the Applicant was formally suspended on account of three allegations:
"1. administering the wrong medication to a patient consistently for seven nights after this was brought to your attention by the patient concerned.
2. recording the administration of medication incorrectly on the prescription card of the patient.3. omitting to administer prescribed medication to a patient".The first matter was brought to light by Miss B, the patient concerned, who reported it to a manager. This occasioned a check of the Applicant's work which gave rise to the second and third allegations, which related to two other patients."It is material to note that the check that was carried out was seemingly an audit of medicine cards executed by a fellow employee, Mr Lim.On 7th December 1992, there was disciplinary hearing convened before Ms Cartwright. In the course of the meeting, as is recorded in paragraph 8 of the reasons, the applicant did not deny that he had committed the three offences charges, but pleaded domestic stress and pointed to his long service and his good record. The overall result of the meeting was that Ms Cartwright took the view that he was guilty of gross misconduct, and accordingly reached the decision that he was to be dismissed. That dismissal was communicated to him by way of a letter dated 11th December 1992.The employment of Mr Talianos was on terms which provided for an appeal procedure in the event of a decision to dismiss. That appeal procedure appears in the documentation before us. By paragraph 4 of that procedure it is provided:
"4. Employees of an authority who are aggrieved by disciplinary action, which results in ... their dismissal, shall have the right of appeal against such action to their employing authority. Employing authorities should set up appeals committees consisting of not less than 3 members of the authority to hear appeals."
The further provision, arising in paragraph 6, is that a report of the appeal committee should be submitted to the full employing authority who would thereupon reach a decision on the case.Turning back to the events, Mr Talianos invoked that procedure with the result that on 28th January 1993 there was an appeal hearing conducted by a sub-committee of the respondents. At that hearing Mr Talianos was represented by a solicitor and the committee heard evidence in chief, and under cross-examination. In the result there came into existence an undated report to the Health Authority which found that the findings of fact made by Ms Cartwright and already set out in this judgment should be upheld as proved, and found:
"that the Dismissing Officer, Ms N. Cartwright, acted reasonably in treating these as grounds for dismissal. The appeal is therefore dismissed."
Whatever the date of that report, on 1st February 1993 Mr Talianos received a letter from the clerk to that appeal committee on note paper headed with 'Kingston and Esher Health Authority'. In the body of the letter Mr Jupp set out the decision of the appeal sub-committee telling him that the appeal was dismissed. It would seem that there was no further communication directly to Mr Talianos dealing with the procedure that he had invoked and set in train.Before the Industrial Tribunal there were various issues taken, but two of which merit present attention as being the foundation for the appeal. As to these two issues it is to be observed that both were taken for the first time before the Industrial Tribunal, neither had featured in the application neither it would seem had been the subject of any forewarning to the respondents, and neither had been the subject of any particular preparation.Dealing with the first such issue, it relates to the appeal procedure. The point was taken that the decision to dismiss the appeal of Mr Talianos and thus uphold the dismissal was not seemingly taken by the Authority as provided for by the terms of his contract, but by the appeal committee. That submission was advanced in reliance upon the disclosed undated report of the appeal committee and on the basis of the letter just cited.On behalf of Mr Talianos Mr Short's submission is this, given a decision by the appeal committee arrived at on Thursday 28th January 1993, there can have been no interim consideration of this matter by the respondents as the employing Authority before the letter of 1st February 1993 was written. Further, Mr Short points out there is nothing in that letter to indicate that the matter had been decided by the Authority, the whole purport is that the matter is dealt with by the appeal committee itself. Thus, submitted Mr Short to the Industrial Tribunal there was a fundamental flaw in the appeal procedure, such as rendered the dismissal unfair.That point having been taken, the respondents then sought to deal with it by way of oral evidence, that is evidence from a witness, Mr Plumridge. We have the advantage of seeing the Notes of the Chairman, and the particular passage appears as follows:
"Did not SUBMIT to full employing authority for decision? Need to recall the practice. As I recall, reports did go to a full meeting as confidential agenda. Including decisions taken. In practice we made the decision."
That evidence is seemingly reflected in a finding of fact made by the tribunal in answer to this part of Mr Short's submissions. That finding in paragraph 17 reads:
"17. Mr Short made two objections to the constitution and actions of the appeal panel: ...
b) The appeal committee should not have reached a decision but simply have submitted a reported to the employing authority for them to reach a decision ... The answer to that is that, however the subcommittee's report was described (whether as a finding or simply a recommendation), the matter did in fact go to the employing authority, which made the ultimate decision."Turning then from the way in which the matter proceeded before the Industrial Tribunal, to the appeal to this tribunal, Mr Short has renewed his submission. He essentially submits that on the evidence available, that finding of fact was perverse and should be set aside, and that in truth the decision to dismiss the appeal and thus uphold the dismissal was not made by the employing Authority but by the sub-committee. He therefore submits that there was this breach of the procedure laid down as a term of the contract of Mr Talianos and that in those circumstances the dismissal was unfair, that further we should then send the matter back on the basis that the dismissal was unfair to have the remedies found by the tribunal.The approach of this tribunal to that submission has involved two stages. By stage one we have been concerned as to whether the respondents as the Authority ever did make a decision or not. Conscious that that matter was sprung upon them at the Industrial Tribunal, and that the evidence was plainly somewhat speculative at best, we sought some assistance mainly as to whether there was not a minute of the decision if decision there had been. It would seem that this approach by this tribunal amounted to a second surprise for the respondents, who have been driven to making telephone calls during the day, the net effect of which is that if there is a decision it is apparently recorded in minutes which are not immediately available having been put into some form of storage. Thus it is that as at today's date for this tribunal the first part of this issue involves the following balance of factors. On that one hand there is the oral evidence that has already been cited, which evidence is effectively as to what ought to have been the position; and on the other hand, notwithstanding the raising of the issue in the Notice of Appeal to this tribunal and the long passage of time, there is no documentary evidence as to the making of a decision which evidence we would anticipate is in existence if decision there was. In all those circumstances, we take the view that we should approach this part of this appeal on this footing: that on proper examination there was, in our judgment, no good evidence to found the finding of fact that the employing Authority had made the ultimate decision, so that we can and we do set aside that part of paragraph 17. It may be in making that decision we are in truth being unfair to the respondents, but they will have to agree that it is entirely their own look out that this tribunal finds itself in this unusual and quite unsatisfactory position. They will no doubt concede that for us to take any alternative view, that is a view unfavourable to Mr Talianos on this point, notwithstanding the notice that he has given of considerable length about the importance of this point, would be grossly unfair to the other side.What then follows from the setting aside of that finding of fact? As to that we have been assisted by reference to two cases. The principal assistance that we have derived comes from the recent Court of Appeal decision in Westminster City Council v Cabaj [1996] IRLR 399 , a decision of the Court of Appeal. In course of the principal judgment given by Morritt LJ, the Court cites a passage from the judgment of this tribunal in Post Office v Marney [1990] IRLR 170 , Morritt LJ says as follows:
" In Post Office v Marney [1990] IRLR 170 the industrial tribunal had held that the denial of the employee's contractual right of appeal result in a dismissal which they would otherwise have concluded was fair being unfair. The Employment Appeal Tribunal disagreed. At paragraph 23 Knox J said:
'So far as we have been approaching the industrial tribunal's reason that the denial of Mr Marney's contractual right of appeal resulted in the dismissal being unfair. In our judgment that, by itself, is an oversimplification. It is not every denial of a contractual right that has that result. It is, in our judgment, only when the circumstances warrant that conclusion, and in this type of case of a defective appellate stage there has to be a circumstance that renders the appellate process defective in the sense that it should or could have found and demonstrated a flaw in the decision at first instance in the internal procedures of the employer'"Continuing in his judgment, Morritt LJ pointed out that in the current context:
" The questions the industrial tribunal is required to answer are those posed by s.57(3). It is not disputed that there are three questions, namely (1) What was the reason (or the principal reason) for the dismissal? (2) Was that reason a reason falling within s.57(2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which that employee held? (3) Did the employer act reasonably or unreasonably in treating that reason as a sufficient reason for dismissing the employee?"
Then he proceeds to the crucial part of the judgment of the Court in these terms:
" The relevance to those questions of a failure of the employer to follow agreed disciplinary procedures is shown in the passages in West Midlands Co-operative v Tipton and Polkey v AE Dayton Services Ltd which I have quoted already. Thus, as pointed out by Lord Bridge of Harwich in the former, the relevance of the failure to entertain an appeal to which the employee is contractually entitled is whether the employee is thereby denied the opportunity of demonstrating that the real reason for his dismissal was not sufficient. It is irrelevant to that question to consider whether the employer would have acted differently if he had followed the agreed procedure, for that is hypothetical. On the other hand, as pointed out by Lord Mackay of Clashfern LC and Lord Bridge of Harwich in the latter, it is relevant to consider whether the employer acted reasonably if he actually considered or a reasonable employer would have considered at the time of dismissal that to follow the agreed procedure would in the circumstances of the case be futile. For my part I would endorse the general approach of Knox J in Post Office v Marney . I put it that way because it has been suggested that the last sentence of the passage I have quoted is contrary to the decision of the House of Lords in Polkey v AE Dayton Services Ltd as requiring consideration of what would have happened if the proper procedure had been followed, rather than, as permitted by West Midlands Co-operative v Tipton , considering whether the defect denied to the employee an opportunity of showing that the employer's real reason for dismissing him could not reasonably be treated as sufficient. I read it in the latter sense but if it is properly to be read in the former sense then that passage cannot be supported."
For this tribunal, thus encouraged by the Court of Appeal, assistance is then to be gained by looking at the actual decision in Post Office v Marney . The facts are of some materiality. The initial dismissal of Mr Marney as a postman, was decided upon by the District Head Postmaster, Mr Moore. It seems that the matter then primarily considered by Mr Moore was whether Mr Marney had failed to deliver letters as had been alleged. He, Mr Moore, concluded that he was guilty of that conduct and ordered dismissal. It however was the case that at the material time Mr Marney was already the subject of a suspended dismissal arising out of an earlier offence. Mr Marney took advantage of appeal procedure and that appeal was heard by a Miss Anderson. That lady took the view that because Mr Marney was under a suspended dismissal at the relevant time if she found that he had been guilty of a serious offence then dismissal must automatically follow, and that she had no authority to consider whether that was the appropriate penalty.With that as background, the matter came first before the Industrial Tribunal and then before this tribunal. The latter was critical of the stance taken by Miss Anderson, and took the view that she was wrong so to direct herself. The problem then arose as the significance of that error on the part of Miss Anderson which error was part of the appellate procedure. The tribunal directed itself in the passage cited by Morritt LJ and already set out in this judgment, and then coming to the nub of the matter dealt with it as follows at paragraph 28:
" We accept that, for present purposes, we do have to take account of the proceedings before Miss Anderson and we reject the argument that Mr Lemon advanced to us that one should exclude the consideration of appeal processes unless they are shown to throw up evidence which throws light on what happens overall or unless they consist of a denial of an opportunity to call evidence. On the other hand, we do not accept that it is in principle wrong to lose to sight of the fact that an appellate process, even inside an employer's organisation, is what that description involves. It is a process whereby what has been done by an inferior official or tribunal is investigated to see whether it is something which ought to be disturbed or not and we do not consider that the principle in West Midland Co-operative v Tipton that the employer's activities right down to the end of the appeal process has to be the subject of consideration, should involve losing sight of the fundamental question whether the dismissal was fair or unfair. The dismissal, in this case, was the act that Mr Moore took at the end of the proceedings before him.
There was never any suggestion that Mr Marney was deprived of an opportunity of producing evidence that he wished to produce before Miss Anderson. What he is urged upon us to have lost is the chance of Miss Anderson coming to a different conclusion from that which Mr Moore reached on the question of penalty. Once it is conceded that the process that Mr Moore went through was intrinsically a proper one which arrived at a conclusion that was proper, the proof that Miss Anderson did not consider or review one of the constituent parts of that process that Mr Moore went through, does not in our judgment involve the proposition that the dismissal was, as seen overall, unfair."We have found that passage of assistance in this case. Just as in that case, we have here an initial decision in favour of dismissal. That decision was arrived at by Miss Cartwright. The question that arises is as to whether that decision by Miss Cartwright was a decision that was within the range of responses that arise out of the facts as found so as to be potentially a basis for a fair dismissal having regard to the terms of the Employment Protection (Consolidation) Act 1978 .It is germane, inevitably, to look at the subsequent appeal process and to take what then happened into account. So soon as we look at the subsequent appeal process we find that the initial appeal to the sub-committee cannot in itself be faulted, we find that at no stage was Mr Talianos deprived of the opportunity to present his case and to bring to the attention of the authority matters that he regarded as relevant, and that what went wrong did so at the very latter stages of it, that is, in and between the making of a decision by the sub-committee and the passing of a report to the Authority itself.Turning back to Marney we find ourselves in precisely the same position as that tribunal. Looked at overall, we cannot take the view that even on the premise that we have adopted, the decision to dismiss could be condemned in any way as unfair. Thus it is that for that reason we cannot uphold the first points taken by Mr Short.The second point taken by Mr Short again was one that arose without forewarning at the hearing before the Industrial Tribunal. The point itself emerges from the extended reasons. Paragraph 14:
"14. Before the decision to dismiss (and to confirm the dismissal) was arrived at, was there a sufficient investigation in all the circumstances of the case? Mr Short argued that there was not. His principal contention in this context was that the Respondent failed to investigate an audit of nurses' "mistakes" carried out by Dr Lim. It is of course true that inconsistency of treatment can amount to unfairness but there has to be some evidence of such inconsistency before it can be prayed in aid by the Applicant. No such evidence was adduced in the present case from which one could compare like with like. If the Applicant could show genuine inconsistency, it was open to him to call evidence to that effect or to require discovery of documents relating thereto."
This point as to the evidence was returned to by the tribunal in the next paragraph:
"15. Reverting to the question of inconsistency, we note that there was some cross examination of the Respondent's witnesses in this regard but no positive evidence was pointed to suggesting that any particular person had been guilty of charges truly similar to those presented against the Applicant. At the end of the Respondent's case, Mr Short applied to the Tribunal to admit a written statement from the Applicant on which he could be cross-examined, an application we readily granted. At the same time, Mr Short applied to put in statements from Dr Nathan, Ms de Vere and Dr Lim, amounting to some 40 pages in all. They were said to deal with the question of inconsistency of treatment. After considering submissions from both sides, we declined to admit or read these statements, leaving it open to the Applicant to call these witnesses in person if he wished to do so. It appeared to us that the Applicant was really trying to open up a completely new line of argument and that the production of written statements was not the right way to do this. Statements themselves were apparently written for the purpose of the report to UKCC, that is, in an entirely different context: it does not follow that facts justifying a dismissal would necessarily justify depriving a man of his nursing qualifications. The statements were not available to the disciplinary or the appeal hearings and were therefore not relevant to the actions of the Respondent at those times."
The way Mr Short puts the matter to this tribunal is thus. He would concede that the particular statements in question were late upon the scene and indeed were only made available to Mr Talianos for the purposes of the report to the UKCC. That said, he submits that the content of the statements must have been known to the respondent Authority, and that that content suggests inconsistency of treatment in as much as it suggests that other nurses employed by the Authority in this unit were similarly not punctilious in making records relating to the dispensing of drugs, and yet on the face of it, no disciplinary action had been taken against those employees. On that footing, he submits that the issue of consistency was a matter for the Industrial Tribunal, and that it followed that evidence relating to that issue should have been admitted. He further submits that whereas he would accept in an ideal world that evidence should be by way of witnesses giving an oral account, that, first, as a matter of law the tribunal is not prevented from receiving documentary evidence at its discretion; and yet further he submits that since the evidence that he desired to put before the tribunal by way of the statements in question, emanated from the Authority's own witnesses, he should not be obliged on behalf of his client to call the latter for the Authority. Thus it is, he submits, that the decision of the tribunal in this regard was wholly erroneous as wrong in law, and on that ground we should allow this appeal, presumably so as to allow the matter to go back to be reheard by a different tribunal.For the purposes of dealing with this submission, this tribunal has indeed read the statements in question. Yet further, we have looked carefully into the history of the matter.What undoubtedly the statements demonstrate is that, with respect to certain patients, investigation of the relevant records, seemingly the medicine cards, reveals omissions which cannot be laid immediately at the door of Mr Talianos and which presumably arise through failures on the part of one or more fellow employees. It is further apparent to us that this material in essence was available before and certainly at the hearing of the appeal sub-committee. We infer that because at the outset of that hearing Miss Cartwright then presenting the case for dismissal sought to introduce evidence arising out of the audit of the medicine cards, so as, ironically, to reveal further errors alleged to have been committed by Mr Talianos. Those errors related to three other patients, Mr M, Mr S and Mr H. The medicine cards in question, we now discern from the statements, seemingly showed those further errors by Mr Talianos, but it is those very same documents which seemingly show errors by one or more other fellow employees.What happened before the sub-committee was that the solicitor then appearing for Mr Talianos objected successfully to any of this evidence being considered by this sub-committee, presumably on the basis that it had not been before Miss Cartwright when she made the original decision to dismiss. Thus it is that the first body that was invited to consider this material was the Industrial Tribunal at the hearing. There was seemingly no forewarning given that this point was now going to be taken reflecting a different stance, so that all the material would go in, whether to Mr Talianos's discredit or not, and thus it was that the tribunal was confronted with Mr Short seeking to advance this point without having any witnesses available to develop it, and with the only apparent material being the statements that by that time were in his client's possession.Turning then to the statements, which we have seen de bene esse , what they amount to is an entirely factual account of what is to be seen on these medicine cards, indicating whether the entries were seemingly made by Mr Talianos, or whether they were not; doing no more than indicating when, as appears to have been the case, there was an error which was not down to Mr Talianos. That being the sum total of the material in the judgment of this tribunal, the Industrial Tribunal was entirely right not to receive any of this material. The Industrial Tribunal was under an obligation to deal with the matter in stages.As stage one, it had to identify what the issues were, so that it could make a judgment as to relevance and as to probative weight. There had been no forewarning that this was an issue. Once there was an apparent issue being raised, then in stage two it was for the tribunal to look at the material that was tendered, to see if it had any probative weight at all. We firmly endorse the view of the Industrial Tribunal that these statements taken as such, were totally without probative weight: they did not indicate in any way as to what entries were or were not there, as to who else was involved, and as to to what treatment had been meted out to any fellow employees that had been involved or not. Yet further, as will be gathered, if in any way they did have probative effect, it was not just to implicate other employees, but seemingly to provide a further plank in a case against Mr Talianos. If this line was to be developed, then it could only be developed on the basis of oral evidence; that is, on the basis of a witness who could take the tribunal through the material and explain it, indicating what inferences could be drawn from it. Ironically, these witnesses were presumably to hand, or if not immediately to hand, could have been got there by virtue of the procedures that are open to the tribunal. Those advising Mr Talianos made a conscious decision not to have witnesses there; this is not a decision that is readily to be understood by this tribunal, we do not presume to criticise the tactical decisions made, but we can see no particular reason why, for example, Dr Lim should not have been called in order to explain that material if it was believed that what he was saying would provide the foundation for an argument as to consistency. But absent oral evidence of this kind, there was no material to be discerned from the statements themselves. The matter can be tested simply, had the statements been admitted and in any way relied upon, then it is plain that the Authority would then have a very strong case indeed for appealing a wholly wrongful exercise of discretion, entirely prejudicial to their interests. Thus it is, we readily uphold the decision of the Industrial Tribunal in this regard, that, in its turn, disposes of the second ground raised by Mr Short.We have to dismiss this appeal. We do so with genuine regret to this extent, that we appreciate that this is the last chapter in a very sad history arising over the past four years which serves to bring a very long career in nursing seemingly to an end, at least so far as that career is with the responding Authority.