Donnelly v Homewood NHS Trust [1997] UKEAT 1195_95_2504

EAT
Donnelly v Homewood NHS Trust
[1997] UKEAT 1195_95_2504 · 1997-04-25

JUDGE D M LEVY QC :

Like many cases which come to this Tribunal Miss Donnelly's appeal is an unhappy one. She was employed at the Homewood National Health Service Trust ("the Trust") as an Enrolled Nurse and commenced her employment in June 1986.Shortly after Miss Donnelly had returned to work on 22 August 1994, after 15 months' absence due to sickness, an incident happened in this way. When she reported for duty on her morning shift two nurses on the ward found that Miss Donnelly's breath smelt of alcohol and reported it to their superior. She was suspended, there were disciplinary procedures and ultimately, on 20 December 1994, she was dismissed.On 27 February 1995, she made an application to an Industrial Tribunal complaining that her dismissal was unfair. An Appearance was entered by the employer which was received on 6 April 1995. That highlighted the fact, as is said on the letter accompanying the IT3 form:
"As you can see from the papers, we believe that, on the key issue (i.e. whether the applicant attended work under the influence of alcohol) and the potential implications of this for patient care, there is no real dispute on the facts."
There was a hearing before an Industrial Tribunal on 26 May 1995 and 19 July 1995 at London (South). The Decision was sent to the parties on 18 September 1995. The unanimous decision of the Tribunal was that the Applicant was not unfairly dismissed. She appealed from that decision by a Notice of Appeal dated 27 October 1995.Essentially, three points were taken in the appeal. First of all, disciplinary procedures were not carried out properly. Secondly, that there had been some procedural impropriety at the hearing before the Industrial Tribunal in that, after evidence had been completed and submissions made the Tribunal looked at a letter at the invitation of the Trust, and the third ground was put in this way:
"The statement by the original disciplining manager and the dismissal letter to the appellant both pointed out that the decision to dismiss was taken because Miss Donnelly did:-

Came into work smelling of alcohol

failed to comply with a legitimate management request

did administer or attempt to administer an incorrect dose.The inference was that each point alone would not have led the employer to dismiss - this is quite relevant and has been the basis for a number of internal disciplinary hearings. This view is borne out by the Ward Manager who acted quite reasonably in removing the appellant from the immediate area once the allegation of smelling of alcohol had been made, but failed to explain to the appellant either the reason for removal or the seriousness of the allegation, until some time later - by which time not understanding the reasons for her removal had gone to a non nursing area. We would argue that smelling of alcohol is not a dismissal offence and that management by their actions therefore failed in their duty towards the appellant by not explaining the full reasons."On 24 September 1996 there was a preliminary hearing on the ex-parte procedure before a different panel of the Employment Appeal Tribunal. The ground alleging an insufficient investigation was dismissed, but the Tribunal ordered the appeal be allowed to proceed to a full hearing on two grounds, one of which is set out above. The other ground was the matter of the impropriety at the hearing. On that ground, the Employment Appeal Tribunal at the Preliminary Hearing ordered the Appellant to file with the Employment Appeal Tribunal an affidavit giving particulars of the matters complained of. That was complied with by an affidavit sworn by Mr Paul Scivier who had represented her below. His affidavit reads as follows:
"I, Paul Scivier ... attended an Industrial Tribunal on 26 May 1995 continuing 19th July 1995, [and he gave the address of sitting and he stated that he represented Miss Donnelly]. After I had made my submission and closing argument, the Respondents Representative produced a document to the Tribunal, to which I objected, as all evidence had been presented and summing up completed. Having viewed the document, the Tribunal Chairman stated it was not any new evidence, but neutral."
The Chairman was invited to comment on that affidavit and he did in these terms, by letter dated 13 January 1997:
"1. ...He [the Chairman] would like to take the opportunity in respect of the first ground of appeal.
2. His recollection is that a letter was produced by the Respondent after the evidence had been presented and summing up was complete. Although this was clearly unsatisfactory, the Tribunal decided that in all the circumstances it should not be refused out of hand, for fear of failing to conduct the hearing 'in such manner as it considers most appropriate for the clarification of the issues'. The Applicant's representative did object to this.3. In the event a brief sight of the letter by the Tribunal made it quite apparent that it added nothing, and the Tribunal said so. The document was returned to the Respondent and no copy was retained. The Chairman has no recollection now of what it said.4. The Chairman asks me to confirm this played absolutely no part in the decision-making process, and had absolutely no influence on the Tribunal in reaching the conclusion it did."Faced with the affidavit and that statement Mr Holroyde, who appears for Miss Donnelly today, says that she was greatly prejudiced because if the letter had been admitted her then representative would have been able to cross-examine on it.It seems to us that the decision taken by the Tribunal was wholly proper in the circumstances and that no injustice was done to either party. The Tribunal looked at the letter de bene esse , decided it was not relevant and put it out of their minds that, at a time when the evidence had been completed. In our judgment, nothing whatsoever wrong was done by that and the appeal on that ground must fail.The appeal on the other ground is slightly more complicated, but it is quite clear from reading the decision that the Industrial Tribunal had in mind what was in the forefront of the Trust's Notice of Appearance, namely that there had been a smell of drink when Miss Donnelly attended for duty on the day in question.Mr Gatt, who appears for the Trust on this appeal, has drawn our attention to the decision of Carlin v St Cuthbert's Co-operative Association Ltd [1974] IRLR 188 (NIRC) sitting in Scotland said this:
"If an employer gives two reasons for dismissing an employee and one only is established ... before the tribunal and there is no evidence as to which reason, if either, was subordinate to the other, the employer's defence may [emphasis added] fail upon the view that what was in fact the principal reasons for dismissal has not been proved and so the requirements of ... [the then subsection] have not been satisfied."
The situation here, as is apparent from the documents, is that at the forefront of the Trust's case was the smell of drink. It appears in the passage of the IT3, to which we have already referred, and also appears further down in the IT3. Earlier than that, it is apparent that it was a matter which prompted the suspension and investigative process. In our judgment this was what prompted Miss Donnelly's suspension on Thursday 25 August. This is reflected in the letter sent to Miss Donnelly the following Tuesday, 30 August, when she was reminded that she would be referred to "Occupational Health" for assessment. This is reflected in box 1-4 of the information sheet sent to "Occupational Health" for their consideration at the appointment for 7 September 1994. In the Investigatory Report dated 21 November 1994 it is stated as the first matter relied on.In the dismissal letter dated 21 December 1994, although the breach of the rules were listed numerically in the order in which the rules were breached, the behaviour complained of was that she was unfit for duty as a result of alcohol consumption. In a document dated 24 January 1995 on Miss Donnelly's appeal from dismissal, the writer of the Management Statement of Case concluded:
"I considered the breaches of the [Trust's] Disciplinary Rules as detailed above were very serious particularly that the client group cared for would include people with drug and alcohol problems, Ms Donnelly was an experienced qualified nurse and it was fundamental behaviour which cannot be tolerated."
In his address to us today, Mr Holroyde has attempted to give evidence as to what actually happened in the ward in question. We have not permitted him so to do, because no evidence can be given here, least of all by an advocate, but the complaint is clear to us was that Miss Donnelly was an experienced and qualified nurse; it was fundamental that the behaviour of which complaint was made could not be tolerated by the Trust.Some Hospital Trusts may take the view that an isolated disciplinary offence such as this does not merit dismissal, but this Hospital Trust did not take that view. The Industrial Tribunal considered whether the view the Trust took was a proper view for it, as a responsible employer, to take. It came to the conclusion that it was. The investigatory process has been found to be satisfactory by both the Industrial Tribunal and by this appellate Tribunal.While thanking Mr Holroyde for his careful and full submissions, we have reached the clear conclusion that the Industrial Tribunal were entitled to find the facts which were found and to reach the conclusion in law which was reached. We therefore dismiss this appeal.