Wirral Hospital NHS Trust v Mason [1996] UKEAT 505_96_1312

EAT
Wirral Hospital NHS Trust v Mason
[1996] UKEAT 505_96_1312 · 1996-12-13

JUDGE PETER CLARK :

Mrs Mabel Mason, the applicant, commenced employment with the Trust or its predecessor as a midwife in 1977. She worked at the Arrowe Park Hospital.In 1992 her superviser, Mrs Thompson, became aware of complaints about the applicant's performance. An assessment was carried out and it was concluded that her midwifery practice was unsafe. She was given three month's supervised practice at the Whiston Hospital.In October 1993, before she had completed that three month course, she was asked to attend for a further three months supervised practice at Whiston, all expenses paid. She consulted a solicitor, Mr John Halson of the Liverpool 8 Law Centre. Having done so, he wrote a letter on her behalf refusing to extend the initial period of supervised practice. As a result she was suspended on full pay.She then presented a complaint of racial discrimination against her employer. That complaint was dismissed by an Industrial Tribunal on 11th November 1994.Following those proceedings the position was that the applicant had not completed the first period of supervised practice, she was not considered safe to resume ordinary practice and she had done no midwifery for two years.On 9th January 1995 a meeting was held attended by the applicant and her solicitor, Mr Halson, Mrs Thompson and a member of the employer's personnel department, Mrs K Thomson. The meeting ended with the proposal by management that Mrs Judith White, of the local supervising authority, would arrange with the applicant for a period of supervised practice at a hospital other than Arrowe Park. The employer made it clear at that meeting, confirmed by a letter from Mrs K Thomson dated 10th January 1995, that it would not pay the applicant's travel expenses to whichever hospital was identified for the further supervised practice.Various potential hospitals were suggested and rejected by the applicant. Her choice, Arrowe Park, was ruled out by the employer.Eventually Mrs White settled on a hospital in Lancaster as being suitable for the applicant's needs. That location would require extra travelling for the applicant.A meeting was held on 3rd April 1995. Prior to that meeting Mrs Thompson made some notes which were agreed with Mr Holt, Director of Operations and Mrs K Thomson. The note records "Prepared to pay travel costs to Lancaster".The meeting on 3rd April was attended by those three members of management, the applicant and Mr Halson. The applicant refused to go to Lancaster; management made no mention of their being prepared to pay her travel expenses. She was dismissed. An appeal against dismissal was in turn dismissed on 27th April.She presented a complaint to the Industrial Tribunal on 13th June 1995 alleging unfair dismissal and victimisation under section 2 of the Race Relations Act 1976 . That case was heard by an Industrial Tribunal sitting at Liverpool (Chairman Mr E Lloyd Parry) on 24th October and 23rd November 1995. By a majority the tribunal found the dismissal unfair, but that the applicant had contributed to her dismissal to the extent of 60%. The tribunal unanimously dismissed her claim of victimisation.The applicant appealed against the victimisation finding. That appeal was dismissed by this tribunal at a preliminary hearing held on 22nd November 1996 (Morison J presiding).The employer has appealed against the finding of unfair dismissal. It is that appeal which comes before us today.

The Tribunal decision

The tribunal unanimously concluded that the reason for dismissal was that set out in the letter of dismissal dated 10th April 1995 from Mr Holt to the applicant. They put it in paragraph 5 of their extended reasons in this way:
"5. We were unanimous that the applicant was dismissed on 3 April 1995 for the reasons set out in the letter from Mr Holt dated 10 April 1995. She was not competent to practice as a midwife and needed supervised practice, which she refused. Essentially, that was a reason relating to her capability to do the job for which the respondents employed her. But there was an element of conduct in the refusal to undertake the training."
The tribunal parted company over the issue of reasonableness of the dismissal under section 57(3) of the Employment Protection Consolidation Act 1978 (now section 98(4) of the Employment Rights Act 1996 ).The Chairman in the minority expressed his reasons at paragraph 10 in this way:
"The Chairman decided the question as to reasonableness thus:- (a) The respondents reasonably decided to look outside Arrowe Park as the place for the applicant supervised practice, and to have no part even in deciding where she should go. Thus they sent her to Mrs White. They were reasonably entitled to rely on, indeed, feel bound by Mrs White's recommendation. To have refused the suggestion that the applicant go to Lancaster (for whatever reason) would have been to court the kind of reaction from the applicant that they strained to avoid by sending her to Mrs White. (b) The respondents did not reject the idea of paying the applicant's travel expenses; they did not want to pay them because they wanted to motivate some serious commitment from her, but they would have paid them had she shown that she wanted them. That attitude towards the payment of expenses the respondents were reasonably entitled to. They did not pay them because the applicant did not raise the matter of expenses as an obstacle to going to Lancaster. (c) The question of expenses was raised for the first time by the applicant after her dismissal. Expenses were not the real reason for her refusal to go to Lancaster. She did not go because she did not think she needed to and because she felt that the respondents were compelling her. She felt constrained to say that she accepted the need for re-training, but that was mere lip-service. There would have been some objection to any venue for supervised practice."
The majority expressed themselves in this way at paragraph 8:
"...

(a) One of the members put the matter this way:-

For re-training, the respondents sent the applicant too far and were not prepared to pay her travel costs or for her "relocation", meaning the cost of accommodation. (b) The other member put it thus:- (i) It was the respondents' responsibility, after the previous Tribunal case, to make it clear that a new page was being started. The first thing they said was, in effect:
"You can't do your training here, but we'll get an independent person to arrange it, and we'll accept the findings but we can't pay any travel costs."
That was an attitude hardly likely to engender any repairs in the damaged relationship between the parties. It was a bad start.(ii) When the only available option for re-training proved to be Lancaster, the respondents should have been aware immediately that this would impose very heavy demands on the applicant in terms of distance and the like. I cannot see that they have made any attempt to set her mind at rest on this issue. If they had done so, and the applicant had refused, then she would have had no complaint. Lancaster was unreasonably far away for daily travel. Given all the resources in the Merseyside region, I cannot believe that this would have been the only option. They could have looked further.(iii) There should have been a meeting with Mrs White. Lancaster should have been put to her at a personal interview. The other efforts (to accommodate her supervised practice) should have been explained to her, the enquiries as to Liverpool and other places."

The Appeal

Mr Brunnen, on behalf of the employer has attacked the reasoning of each of the lay members of the tribunal separately expressed at paragraph 8(a) and (b) of the reasons. We shall refer to them respectively as Member A and Member B.The way in which the tribunal's reasoning is set out in this case is highly unusual. It is our almost invariable experience that where a tribunal reaches a decision by a majority, and where that majority consists of the lay members with the Chairman dissenting, the majority express their reasons jointly. Here, there is on the face of it a three way split.That gives rise to this question, which we put to counsel. If the reasoning of one of the majority lay members is unsustainable as a matter of law, where does that leave the decision. Both counsel submitted, and we think this must be correct, that in these circumstances the decision cannot stand. There must not only be a majority decision, permitted by Rule 10(1) of the Industrial Tribunal Rules of Procedure 1993, but the reasons given by the majority, as required by Rule 10(3) must be sustainable as a matter of law.We turn first to the reasons given by Member A. That member does not approve or adopt the reasoning of Member B on the face of the decision. He or she provides limited reasons. If they cannot be sustained, it follows that the overall decision of the Industrial Tribunal must be set aside.Member A's reasoning may be split into three parts.In relation to retraining:(1) the employer sent the applicant too far (i.e. the proposed supervised practice at Lancaster, some 50 miles from Liverpool, where she lived);(2) the employer was not prepared to pay her travel costs;(3) the employer was not prepared to pay the costs of relocation, that is accommodation at Lancaster.In our judgment, these factors must be viewed conjunctively.As to the first factor, Member A had concurred in the unanimous finding by the tribunal at paragraph 7(c) that the employer was reasonably entitled to rely on the efforts of Mrs White. We would refer also to the following unanimous findings by the tribunal. First, at paragraph 4(h). A meeting took place on 1st February 1995 between the applicant and Mrs White. During that meeting, the tribunal found that the applicant did not want to travel outside Liverpool. Mrs White suggested Stockport, Manchester and Macclesfield as being within a reasonable distance. The applicant said they were too far. Mrs White said that the period of practice could be longer and days shorter to accommodate the need for travel. The applicant's response was that she wanted to do her practice at Arrowe Park. Something which the employer had ruled out and the tribunal found unanimously had reasonably ruled out.Then at paragraph 4(l) the tribunal found unanimously that Mrs White explored the possibility of accommodating the applicant's supervised practice at Fazakerley Hospital in Liverpool. They could not take her. Consideration was also given to the Liverpool Maternity Hospital, but it was reasonably decided that they were in the throws of a large removal, they should not be asked to undertake a special assignment in addition to their other problems.Finally this at paragraph 4(m):
"Mrs White concluded that the best place for the applicant was Lancaster Hospital: she knew it and believed it was the best place for the applicant."
It therefore seem to us that the finding by Member A that Lancaster was too far for the applicant is inconsistent with those unanimous findings of the Industrial Tribunal to the effect that the employer was entitled to rely on Mrs White and Mrs White by a process of elimination had arrived at Lancaster Hospital as the only option apart from Arrowe Park.Secondly, the tribunal unanimously found at paragraph 4(t) that the employer would have agreed to pay the applicant's travel cost to Lancaster, but did not offer payment at the meeting held on 3rd April 1995 which culminated in the dismissal. Again, Member A's finding on this point is, it seems to us, inconsistent with that earlier unanimous finding of the tribunal.Finally, the cost of accommodation at Lancaster. There was no unanimous finding of fact that the employer was not prepared to pay for accommodation there. The unwillingness to pay travel costs is recorded in the employer's letter of 10th January 1995. No mention is there made of relocation costs, although Mr Halson gave evidence that such unwillingness extended to relocation costs. If Member A was finding that he or she preferred the evidence of Mr Halson on this point, that is itself a minority finding of fact. There is no unanimous finding of fact to that effect, and neither Member B nor the Chairman such a finding in their reason at paragraphs 8(b) and 10 of the reasons.In these circumstances we conclude that Member A's reasoning for finding this dismissal to be unfair is unsustainable. There is no proper factual basis for the findings expressed in paragraph 8(a). Accordingly this decision cannot stand. The appeal is allowed.The question then arises as to what course we should take. Mr Brunnen invites us to reverse the finding of unfair dismissal. We do not feel able, on the state of the tribunal's reasons to make a finding of fairness ourselves. Mr Cape asks us to remit the matter to the same tribunal. In our view that would not meet the justice of the case. Accordingly we shall remit the whole case to a fresh Industrial Tribunal for rehearing.Before leaving this unusual case we would make this final observation. Rule 10(3) of the Industrial Tribunal Rules of Procedure provides that:
"the tribunal shall give reasons for its decision in a document signed by the chairman."
In this case the Chairman simply recorded in the written reasons the views of each lay member in their own words. It seem to us that it would be helpful if the Chairman, although disagreeing in the result, were to assist the lay members, with his expertise in setting out reasons in a form which complies with Rule 10(3), in the way in which their reasons are formulated.