Downend Estates Ltd v Dyer [1996] UKEAT 874_96_2511

EAT

Downend Estates Ltd v Dyer

[1996] UKEAT 874_96_2511 · 1996-11-25

JUDGE D M LEVY QC :

Mr Pollard appears on behalf of Downend Estates Ltd in an appeal which the Company, through him, wishes to mount against a decision of an Industrial Tribunal following a hearing in Bristol on 15 January 1996, in proceedings brought by the proposed Respondent to the appeal, Mrs M.D. Dyer.

Put shortly, Mrs Dyer was working at a nursing home controlled by the Company and we see from a letter dated 8 September 1995, that Mr Pollard, on behalf of the Company, wrote her a letter which commenced:

"It was brought to my attention this morning, by Matron, that your Pin No.'s expiry date was 11/94 and that you may not have renewed it."

If her pin number had not been renewed there could have been a breach of the Health Authority Regulations by the Company, and this was of great concern to the Company and of Mr Pollard, its Director.

Mrs Dyer was dismissed on 8 September 1995 (the date of the letter). Her application was received by the Industrial Tribunal on 16 October 1995. Mr Pollard signed the Company's response, its IT3 being dated 20 October 1995. The salient facts set out in Extended Reasons of the Industrial Tribunal are in paragraphs 3, 7 and 8:

"3 In September 1995 it was drawn to the attention of the Manager of the home, Mr Pollard, that the applicant's registration with UKCC had expired with the consequence that for a period of 10 months she had been practising illegally and the home was in breach of the Health Authority's staffing requirements. Mr Pollard then contacted UKCC who advised that the applicant could apply for re-registration and told him the procedures necessary for such re-registration. He also contacted the local Health Authority who advised that the continued employment of an unregistered nurse could [our emphasis] place the registration of the home at risk. In the circumstances, he took the view that he had no other option than to dismiss the applicant which he did instantly by letter dated 8 September 1995."

(That is the letter of 8 September to which we have already referred and which included this paragraph:

"On contacting our Registration Officer, I was informed that as you were not registered, the Registration of the Nursing Home was at risk and the only way to solve the situation was to terminate your employment, unless you could produce photocopies of all documentation required by the U.K.C.C. together with evidence of paying the fee, immediately [ our emphasis ]. You would not be able to work as an R.G.N. until your re-registration is confirmed." )

Paragraph 3 of the Extended Reasons continues:

"3 ... In the event, the applicant obtained re-registration with UKCC by 14 September 1995 and the next day on which she would have been due to work for the respondent was 15 September 1995."

"7 We found the applicant to be a credible witness and we are entirely satisfied that her failure to re-register as a Registered General Nurse was a genuine oversight and that she was not aware of the requirement for re-registration which had in fact been introduced by UKCC while she was employed in South Africa. Furthermore, the Health Authority took no action against the respondent for the applicant's failure to re-register and the fact that he had been operating its staffing levels in breach of the Health Authority's requirements; and while the Health Authority, by a letter dated 12 September 1995, made clear to Mr Pollard that the employment of staff who it could not verify were on the UKCC's register would put the registration of the respondent's Home in jeopardy it added ' that unless you received written assurances from the nurse concerned that she had applied to the UKCC for registration then termination of employment may be the appropriate route '. From the evidence it is clear that by that date the applicant had put in hand the necessary procedures for re-registration and, as already noted, this was granted to her by 14 September 1995, the day before she was next due to work for the respondent. In all the circumstances, we do not consider that the respondent's view of the applicant's failure as constituting gross misconduct justifying summary dismissal was reasonable; and, in our judgment, dismissal in those circumstances did not fall within the range of reasonable responses of a reasonable employer.

8 In addition, the procedure followed the respondent not only was in breach of its own disciplinary procedures but fell well short of the standards required by the ACAS Code of Practice relating to disciplinary practice and procedures in employment. "

The Extended Reasons set out why the procedure followed was lamentable.

The Appellant, after the hearing, sought further evidence and then made an application for review of that evidence which was ultimately heard by the Chairman and a Member on 11 April 1996. Then, the unanimous decision of the Industrial Tribunal was that the review of its decision be refused. In giving their Extended Reasons for refusing a review on 25 January 1996, the Tribunal set out parts of Rule 11 of the Industrial Tribunals (Constitution and Rules of Procedure) Regulations 1993 which provides that a review of a decision can be allowed if:

"(d) new evidence has become available since the conclusion of the hearing to which the decision relates, provided that its existence could not have been reasonably known of or foreseen at the time of the hearing; or (e) the interests of justice require such a review."

The Extended Reasons continue:

"3 ... In our opinion, it is not open to the respondent to argue that the interests of justice require such a review since this is not intended as a 'sweep up' provision not affected by any of the other specified grounds but is intended to cover the situation where the conduct of the hearing breached one of the rules of natural justice or otherwise. In our opinion, the only grounds on which the respondent's application can succeed is ground (d) above relating to the fact that new evidence has become available since the conclusion of the hearing."

Paragraph 4 of the Extended Reasons reads:

"4 It is entirely clear to us that the question of the applicant's registration with the UKCC and the implications of her failure to register were the central issues at the original hearing and that it was incumbent upon the respondent to bring all relevant evidence pertaining to these issues to the hearing. The evidence which Mr Pollard asserts to be new evidence was, in our view, available at the time of the original hearing and its existence could have been reasonably known of or foreseen at the time of that hearing. Further, on our examination of the notes of evidence of the original hearing we are satisfied that Mr Pollard did challenge the applicant on the date of her return from South Africa and she conceded that she had incorrectly stated it; and he further conceded in his own evidence to the original hearing that in November 1994 the matron should have checked with the UKCC that the applicant had re-registered and could have brought to his attention that she failed to do so. The new evidence on which the respondent bases his application for review relate directly to these matters and, in our view, the respondent could have produced that evidence at the hearing in support of its case."

Faced with that decision, the Company appealed to this Court with a Notice of Appeal which is dated 4 June 1996. The Notice of Appeal itself does not set out the grounds of appeal but from the Skeleton Argument, which Mr Pollard kindly produced prior to this hearing, we understand he wished to appeal against the refusal of the Industrial Tribunal to review its decision, but we have thought it right, as he is appearing as a layman here, to set out the full facts because it appears to all of us first, that the original decision was one which the Industrial Tribunal was well entitled to reach on the evidence, as we have summarised it; secondly, as for the review, the Industrial Tribunal again set out the matters which they had to consider and stated why they rejected them. In neither decision can we perceive any errors of law and Mr Pollard has not identified any to our satisfaction.

Appeals to this Court can only be made if there has been an error of law in the decision of an Industrial Tribunal, or if there is, to put it shortly, a perverse decision on the facts. We have carefully listened to all that Mr Pollard has said and we can find no error, either in the original decision, or in the review decision and it would be wrong therefore to let this appeal, (about an award of £533.54) to go forward to a full hearing. In the circumstances, we have no alternative other than to dismiss this appeal. We would only add this. In the course of his courteous submissions, Mr Pollard told us that he had received legal advice to the effect that in pursuing this appeal he was "on a winner". As we remarked to him then, that is almost always very dangerous advice either to give or to receive.