Davis v Forest Healthcare Trust [1997] UKEAT 307_96_0705

EAT
Davis v Forest Healthcare Trust
[1997] UKEAT 307_96_0705 · 1997-05-07

JUDGE PETER CLARK :

This is an appeal by Mrs Davis, the applicant before the Bury St Edmunds Industrial Tribunal sitting on 7th February 1996, whose complaint of unfair dismissal and unlawful racial discrimination was dismissed by that tribunal for the reasons sent out with a reserved decision promulgated on 26th February 1996.Her claim arose following her dismissal from the respondent's employment as a house manager at 48 Grove Road, Walthamstow, a residential care home for women with formidable learning difficulties, on 18th October 1994. Before setting out the substance of the complaint it is necessary to trace the procedural history of this case.

Procedural History

The appellant presented her Originating Application to the Central Office of Industrial Tribunals on 17th January 1995. At that stage she indicated that her representative was Ms Fox of her trade union UNISON.The case was originally listed for hearing before the Stratford Industrial Tribunal on 14th July 1995. The appellant requested a postponement of that hearing on the grounds that her union representative was not available to represent her during July. That application was granted and the case was re-listed at Stratford for 4th August. On that occasion the trade union representative stated that the appellant intended to call six witnesses and that further time was need for the hearing. Again that date was vacated.On 29th September 1995 solicitors by then instructed by the appellant wrote to the tribunal pointing out that following a complaint by the respondent to the appellant's professional body, the United Kingdom Central Council for Nursing, Midwifery and Health Visiting ["UKCC"], that body was considering bringing disciplinary charges against the appellant. The solicitors sought a general adjournment of the tribunal proceedings pending determination of any disciplinary proceedings to be conducted by the professional body. It appears that no reply was every received from the tribunal to that letter.On 7th November the tribunal case was transferred from Stratford to Bury St Edmunds with a view to obtaining an earlier hearing date.On 5th December Notice was sent to the parties of a hearing to take place at Bury on 17th, 18th and 19th January 1996. The respondent promptly requested a postponement of that date because their principal witness would be away on holiday in the Philippines. That application was granted and on 21st December 1995 the hearing was re-fixed to start on 7th February 1996.On 15th January 1996 the appellant learnt that UKCC had decided not to proceed with the respondent's complaint against her.On 5th February the tribunal received a letter from the appellant's then solicitors dated 2nd February asking for a further postponement. They stated that they had been acting for the appellant in connection with the UKCC complaint and had not prepared her case for the Industrial Tribunal. As they said:

"Put bluntly our client needs more time to prepare her case."

That application was put before a Chairman on the same day, who refused to order an adjournment.A further application for a postponement was made on 6th February on the basis that the appellant had a number of witnesses who then appeared to be refusing to attend the tribunal hearing at Bury, and it was said that it was too late to issue and serve them with witness summons. We pause to repeat that as long ago as 4th August 1995 the appellant's trade union representative obtained an adjournment on the basis that she wished to call six witnesses. So this was nothing new. This further application was again refused by a Chairman who observed:"the applicant has had a year since the issues have been clearly defined to prepare the case ... the applicant is not ready, that will not do".On 7th February the appellant appeared in person. Her solicitors did not attend and left her to make a further application for an adjournment. The application was refused for the following reasons which appear at paragraph 6 of the tribunal's full reasons:
"6 Today the applicant has appeared in person. The solicitors representing her have chosen not to attend on her behalf and have simply allowed the applicant to attend to ask for an adjournment, saying that she wanted to call some witnesses who were unable to attend. It was clear from the early part of December that this case would be heard in January and yet no attempts have been made to seek witness orders and the witnesses referred to were clearly envisaged as far back as July 1995. We have to consider the interests of justice and it is well over a year since the dismissal. The applicant has said that the solicitors in the case have been involved by her since September 1995 yet no application for a postponement was made within the 14 days. The principal ground of the request, which was that the applicant's case had not been prepared, is simply not satisfactory. We have to consider the interests of the respondents as well. They are here with their witnesses, a full bundle of documents running to 169 pages is available to the Tribunal, and it would be unjust on the respondents, two separate Chairman having rejected the application for a postponement, to be faced with a case being adjourned at the hearing when no fresh grounds have been put forward. Cases of this nature should be determined swiftly and it was with that in mind that the case was transferred to this Tribunal in November 1995 for a hearing to be fixed more swiftly than would have been the case had it remained at the Stratford Tribunal. With some sympathy for the applicant who now has to conduct the case on her own, we feel that the case cannot be further adjourned and must proceed."
And so the matter proceeded, and the appellant today appeals against that refusal to allow an adjournment.

Substantive issues

There is no appeal against the tribunal's decision to dismiss the complaint of racial discrimination. Accordingly we shall now focus on the complaint of unfair dismissal.In June 1994 the appellant was suspended from her duties as manager of the home pending investigation of the following allegations against, her set out in a letter from the respondent dated 16th June 1994:
"1. That you may have physically abused residents living at 48 Grove Road, Walthamstow, London E17 9AU.
2. Failure to follow financial procedures.3. Alleged argument with staff in the presence of the Residents and Members of the Multi-disciplinary Team.4. Failure to provide staff supervision and reluctance to do so.5. Failure to provide adequate staff cover.6. Failure to follow procedure regarding the administration on ordering of medicine."Mr David Naylor, the officer responsible for the home, appointed an independent consultant, Andrew Holmes-Smith, to oversee the investigation into these allegations.The Acute Services Manager for the Elderly, Denise Bowden, who had not direct management responsibility for or knowledge of the appellant, was asked to undertake the investigation. She did so, preparing what the tribunal describe as a "carefully-reasoned 18 -page report" which was submitted at about the beginning of August 1994 after a full investigatory interview with the appellant, who was represented by her trade union shadow Branch Secretary, Mr Loxley. Notes were taken of that meeting.The matter proceeded to Mrs Canlas, the Service Manager who took over as the disciplining officer. A disciplinary hearing was arranged. It was first fixed for 15th September 1994, then re-fixed for 5th October and finally took place on 13th October. Those changes of date had taken place in order to accommodate the appellant's representative. At the end of that stage of the procedure, Mrs Canlas rejected two of the allegations of physical abuse against the appellant, but upheld the majority of the remaining allegations, and decided that those contained in paragraphs 1, 3, 5 and 6 of the letter of 16th June amounted to gross misconduct and those in paragraphs 2 and 4 to mismanagement. The tribunal observed that at the disciplinary hearing the appellant had ample opportunity to put her case and cross-examine witnesses, which she did with some ability and success.On 21st October, the respondent wrote to the appellant confirming summary dismissal having taken effect on 18th October. There was an appeal, and the management decision was upheld, save for one count of gross misconduct which was quashed.

The Industrial Tribunal decision

At paragraph 19 of the reasons the tribunal direct themselves as to the law to be applied. They said this:
"19 ... As far as the claim of unfair dismissal is concerned, our duty is to consider whether the respondents have proved the principal reason for dismissal and that that is a reason falling within section 57(2) of the Employment Protection (Consolidation) Act 1978 or some other substantial reason and, if so satisfied, we have to consider whether the respondents behaved fairly or unfairly in treating it as a reason for dismissing this applicant having regard to the criteria laid down in section 57(3) [ Now s.98(4) of the Employment Rights Act 1996 ]. In this respect we remind ourselves that it is not for us to decide whether we would have dismissed the applicant or not or whether the allegation are proved or not. It is for us simply to review the employer's investigation and belief so that we can be satisfied that the respondents formed an honest belief based on reasonable grounds after a satisfactory investigation that the applicant had committed the misconduct alleged and that the penalty of dismissal was within the range of possible penalties to be applied by a reasonable employer in respect of such misconduct."
Then at paragraph 21 they set out their findings in relation to unfair dismissal:
"21 ... we are quite satisfied that the respondents formed an honest belief that the applicant had behaved improperly in relation to the clients over whom she had direct managerial control at 48 Grove Road, Walthamstow, and that that belief was the belief not only of Mrs Canlas, the dismissing officer, but also of Miss Denise Bowden, the investigation officer. The belief in the misconduct was derived from a painstaking investigation into the facts which took pains to give the applicant every opportunity (which she took) to put forward matters in her own defence and indeed to cross-examine witnesses where appropriate. The procedure adopted was that set out in the respondents' own procedure and the sanction of dismissal fell within the range of possible penalties which a reasonable employer would consider in relation to the misconduct which was found. Accordingly the applicant's claim that she was unfairly dismissed fails."

The Appeal

Three points are taken.

(1) Refusal to postpone the hearing on 7th February

Miss Braganza has put before us a list of 10 issues which she submits arose when the tribunal came to consider the question of whether or not to adjourn the proceedings on 7th February . She focuses particularly on three points.First, that the tribunal did not mention in their reasons the appellant's then solicitors, Lucas Baron Jacobs, letter of 29th September 1995, asking for a postponement pending determination of the UKCC complaint, and the fact that no reply was ever received from the tribunal to that letter. Thus, she argues, the tribunal failed to take into account a relevant factor in reaching its conclusion and that amounts to an error of law under Wednesbury principles. See Carter v Credit Change Ltd [1979] ICR 908 , at 918 per Stephenson LJ.We do not regard that omission as significant. The solicitors never followed up that letter, and in particular, when the case was transferred to Bury St Edmunds, and when Notice of Hearing was given on first 5th December and then 21st December, did not repeat their request for a general postponement pending the outcome of the UKCC proceedings. In these circumstances, we attach no significance to the tribunal's omission to mention that letter in the course of their reasons.Secondly, she points to the letter from the appellant's solicitors, who do not instruct her today, dated 2nd February 1996 in which they claim that the respondent's representative agreed to an adjournment. It is clear from their later letter to the respondent of 6th February, that if such consent was given over the telephone as claimed, it was withdrawn shortly thereafter, and in any event, on 7th February the respondent did oppose the application for an adjournment.Again, we cannot see that failure to mention that point vitiates the tribunal's reasoning in relation to the applications for an adjournment.Thirdly, she points out that at the hearing the appellant was unrepresented and called no witnesses, not even herself. This illustrates the injustice of allowing the matter to proceed on 7th February.It may be said that during the internal disciplinary proceedings the appellant had cross-examined witnesses and taken a full part in those proceedings; but nevertheless, we are all of us concerned that the appellant was put in that position on 7th February, and we note that the tribunal was sympathetic to her plight. However, the fault lies, if anywhere, with her then solicitors. No explanation was put forward as to why her tribunal case was not prepared, other than the solicitors had been concentrating on the UKCC proceedings. We can see no reason why the two should have been prepared in tandem. In our judgment, that is not good enough, as the tribunal observed. It seems to us that her remedy lies not by way of appeal against the tribunal order, which in our view was properly made without error of law, but if at all against those solicitors.Accordingly, we are not persuaded that this ground of appeal raises any arguable point of law.

(2) The test under s.98(4) of the Employment Rights Act 1996

Miss Braganza submits that the tribunal misdirected itself as to the correct test in law. She argues that the tribunal's reference in paragraphs 19 and 21 of the reasons to whether dismissal fell within a range of possible penalties which a reasonable employer would consider in relation to the misconduct which was found demonstrates an error of law. The tribunal should have considered the range of reasonable, not possible penalties.We cannot accept that submission. It is plain that the tribunal had in mind the range of reasonable responses test first laid down by Lord Denning MR in British Leyland UK Ltd v Swift [1981] IRLR 91 , and that the point taken is simply one of semantics and not substance.

(3) Procedural unfairness

Finally, Miss Braganza submits that the tribunal failed to take into account the procedural shortcomings on the part of the respondent leading up to the dismissal, and in particular the appellant's length of service, she commenced employment in March 1985, and the absence of warnings prior to dismissal.As to that, length of service will not of itself save an employee found guilty of gross misconduct, see AEI Cables Ltd v McLay [1980] IRLR 84 . Further, it is not usually necessary to warn an employee before dismissing for gross misconduct.Miss Braganza's final submission was that the tribunal failed to consider the fairness of the disciplinary procedure adopted by the respondent; it simply observed in paragraph 21 of the reasons that the procedure adopted was that set out in the respondent's own procedure.We do not think that that is fair reading of the reasons as a whole. It is correct to say that the tribunal found that the respondent complied with their own procedure; not to do so may amount to unfairness; but in addition they found that the respondent carried out a painstaking investigation, giving the appellant every opportunity to put her case. In these circumstances we cannot accept that the tribunal overlooked the need to consider procedural fairness. It did and it found that it was fair.We are bound to say that the care and skill with which Miss Braganza has argued this case today contrasts markedly with the appellant's earlier representation. It gives us no pleasure to conclude that despite Miss Braganza's best efforts, we are unable to discern any arguable point of law in this appeal to go to a full hearing and accordingly the appeal must be dismissed.