Hedden v Exeter Diocesan Board For Christian Care [1998] UKEAT 125_97_2606

EAT
Hedden v Exeter Diocesan Board For Christian Care
[1998] UKEAT 125_97_2606 · 1998-06-26

JUDGE J HULL QC :

This is an appeal to us by Mrs Brenda Amy Hedden and it is in our list under our Practice Direction to see whether we can, with Mrs Hedden's assistance, discover any fairly arguable point of law.We are simply concerned with points of law. The sole responsibility for discovering the facts in the case and adjudicating on them is with the Industrial Tribunal. The appeal to us must be on the basis that, as a matter of law, something is wrong with the Industrial Tribunal's decision. So it is no good any Appellant telling us that his evidence was not accepted, or that there was a lot of evidence the other way or anything of that sort, those are not matters for us.Mrs Hedden was first employed by the Respondents, who are the Exeter Diocesan Board for Christian Care, on 24 March 1987; she was employed as a social worker in the Respondents' adoption agency and she acted for North Devon. Part of her work was caring for children and the families who proposed to adopt them when those children were placed with the families and although, I am afraid, speaking for myself I know really very little about this department of social work, I understand she would continue to support them after an adoption order had actually been made.She continued in that work until 10 April 1996 when she was dismissed for gross misconduct. She then complained to the Industrial Tribunal that she had been unfairly dismissed and she made other complaints concerning various aspects of her employment. On 7 August the Respondents put in their answer. On 12,13,14 and 15 November 1996, the Industrial Tribunal, under the Chairmanship of Mr Anderson, sat at Exeter and they dismissed the averments of unfair dismissal. They also dismissed the allegations made by Mrs Hedden that there had been a breach of contract.I will not go further into the history but I must say something about the contentions in the case so that our decision can be understood.Mrs Hedden lays great stress, and no doubt rightly so, on the statutory duties that are imposed on all those, in particular social workers in her position, who are concerned with children. She has invited our attention to some of the provisions of the Children Act 1989. There are provisions for complaints to be made and entertained and the primary duty is to the child or children concerned.She says, and we have no reason to doubt her, that whatever the rights and wrongs of what she did, her motive throughout has been to do what she sees as her duty in accordance with the Children Act (the legal duties that are laid on her in the interests of the children) and that is what has inspired her. That led her to make, ostensibly on behalf of her employers, serious complaints against the action or inaction of the social services of the local authority; the county council. There was a complaint in respect of one of two children known as B and C, who were in the care of a Mr and Mrs A. This girl, B, had apparently an urgent wish to see her 'birth mother', as it is called nowadays, her natural mother, at a time when she was being considered for adoption and that was a matter which, in Mrs Hedden's view, and again we have no reason to doubt her, was most important and had to be considered carefully and was not being considered properly. As I say, I cannot possibly do full justice to these various contentions, but that was the nature of it.Her conduct in acting in an independent way led her employers to take a very grave view of the situation. One can quite see that, from the point of view of the Diocesan Board, friction of a serious sort with the local authority would be a matter which would gravely concern them; that was one of the matters which arose. It was also said that the proposed adoptive parents were greatly upset and that there were matters which were a source of regret there. We are not to pronounce in any way on the rights and wrongs of this.What happened was that, after an investigation, Mrs Hedden was charged with gross misconduct and there was a disciplinary inquiry, indeed, several inquiries, and she was in due course dismissed, as I have said, on the basis of gross misconduct. When she made her complaint, it was for the Industrial Tribunal to look into that and to ascertain all the rights and wrongs of it. So far as there were matters of fact they had to find the facts, so far as questions of law were involved they had to decide on the law.They found, on one of the grounds put forward by the employers, that there had been gross misconduct or, to be more accurate about it, that the employers were entitled to conclude that there had been gross misconduct, that the employers had acted reasonably, justly and fairly in dealing with the matter and that the sanction of dismissal was well within their rights and, therefore, the Tribunal felt they had discharged their duty, the burdens which lay on them, and that the dismissal was fair.We look therefore to see what the findings were. Before we do that I should say that Mrs Hedden makes a large number of complaints. She complains that (I am abbreviating) her employers did not act in good faith - they kept such matters as reports or parts of reports secret from her, they were not sincere in some of their evidence, she claims that the Tribunal itself was biased and that the Tribunal had themselves not acted in good faith. For the moment we are not concerned with those matters and I will say what we have to say about those in a few minutes. But she also invites our attention to the way in which the Tribunal dealt with her complaints, so I must refer to certain important parts of the Industrial Tribunal's decision, as given in their Extended Reasons.In Paragraph 6 of their decision they refer to the complaints which Mrs Hedden was making.

(a) of the Children Act 1989 and they say:

"...At this point the applicant" Mrs Hedden "was clearly expressing what she perceived to be her duty to ensure that the Department was meeting the obligations imposed upon it by those statutory provisions to give due consideration to the wishes of child B in the accommodation provided for it; and to ascertain the wishes and feelings of the child before making any decision with respect to it. That letter was written on the respondent agency's headed notepaper. On 10 October and in the course of a lengthy telephone conversation with Mr Goodwin" ... a manager of the Diocesan Board) "the applicant made further reference to the statutory provisions and indicated her intention to complain to Devon Social Services about the way in which the issue of child B's contact with its birth mother had been handled. As her deputy manager, it was open to him to instruct her not to do so but he took no such action."
That is an important finding.They go on to consider the considerable disturbance that Mrs Hedden's behaviour caused. There was an event which was referred to where, among other things, the effect on the children was described, an event referred to as an "appalling fiasco." They then went on to consider the result of their inquiries into all this. After these various inquiries (they say in paragraph 10) the employers convicted her of gross misconduct and they say that she was thus dismissed.In paragraph 12 they say:
"The respondent" that is the board "in its evidence has effectively advanced two reasons for the dismissal of the applicant and these are set out... It first of all refers to the fact that the applicant made complaints to Devon Social Services and to the Social Services Inspectorate on the respondent's headed note paper such that her action in doing so was detrimental to the work of the respondent or reflected adversely on the reputation of the respondent. In so doing the respondent places that course of conduct by the applicant in the category of gross misconduct as so defined in its disciplinary procedure. In considering that particular reason and the respondent's view that it comprised gross misconduct, we have taken into account the very important point made by the respondent's Chairman" we would say he is an eminent churchman " in the course of his evidence to this tribunal that following a favourable report on the activities of the agency by the Social Services Inspectorate the agency was in the process of negotiating a fresh contract with Devon Social Services and that the actions of the applicant in writing as she did to Devon Social Services and to the Inspectorate could have a damaging effect on the standing of the agency in the eyes of Devon Social Services. On balance, however, and it is a fine judgement, we take the view that the respondent could not properly regard that aspect of the applicant's conduct as gross such as to justify summary dismissal but rather we take the view that it falls to be treated and should have been treated as an act of serious misconduct for which the appropriate disciplinary action would have been warnings. In taking that view we are mindful that the respondent agency's management had very clear indications from the applicant that she proposed to raise those complaints with the external agencies in order to pursue her concerns and yet no firm action by way of an explicit instruction or warning was given by the management in order to prevent her. We have taken into account the suggestion in the course of the respondent's evidence that no amount of warnings would have deterred the applicant. Be that as it may, on balance, we take the view that those actions of the applicant did not amount to a sufficient reason for her dismissal and that dismissal for that reason would not fall within the range of reasonable responses."
So there the Industrial Tribunal were saying that they accepted the evidence that this was a very serious matter (and of course it was the matter which had given rise to all the trouble) but they thought, bearing in mind everything - of course Mrs Hedden has had a long, long career in these matters, a blameless career, we have read tributes to her skill and determination and her persistence and integrity - bearing in mind all those matters and the facts which they mentioned, it should not have been treated as an act of gross misconduct.Then they went on, in paragraph 13:
"There is, however, a second reason advanced by the respondent which is the belief it held that in the light of the applicant's conduct (which it viewed as unprofessional and intolerable) in relation to the placement of B and C with Mrs and Mrs A, it could not in future have any confidence that the applicant would not in any other case assigned to her act outside the control of the respondent and its managers."
They say:
"...The evidence presented to us provides strong support for that belief and the fact that the respondent held it."
And they went in to a little more detail, they say:
"...She made equally clear before the standing committee that she believed that she must act independently of the agency in pursuing that issue which she perceived to be a matter of duty and conscience. It was that attitude that led the respondent to the view that it could not in future have confidence that the applicant would not seek to act independently of the agency in any other case assigned to her and that it was reasonable to dismiss her for that reason. We agree. We accept that by conducting herself in that way the applicant had undermined the trust and confidence which an employer must necessarily have in its employees."
They say, at the end of the paragraph:
"...In those circumstances, it is our judgement that the belief held by the respondent and the resulting loss of trust and confidence in the applicant was a sufficient reason for her dismissal and that dismissal was a reasonable response."
"14. We have been exercised in our minds throughout this case with the issue of child B's rights under the Children Act but we are satisfied that those rights have not been prejudiced by the respondent's actions."
Now we come to the point which has exercised us. It is this; the Industrial Tribunal found that in all the circumstances Mrs Hedden's conduct in complaining very strongly to the local authority, which was an indelicate thing to do in the circumstances, should not have led to her dismissal. It was not so serious that it should. It would have meant serious warnings; a proper disciplinary action would have been that.Then they go on to the particular case which had occurred and found that the respondents were justified in taking the view that her conduct in that case (which was what had led to all the complaints) was such as to destroy the confidence and trust which must exist between employer and employee. Mrs Hedden attacks it in the same way. She says:
"I was doing my duty. I had statutory duties to carry out and whatever my employer thinks of the convenience, or empirical convenience, of the situation, I had to carry out those duties."
It does seem to us that if that was her case and if the Tribunal had taken the view which they did, in paragraph 12, when they went into the cause of all this trouble, the placement of the children with Mr and Mrs A, that it is arguable that it behoved them to have regard to these statutory provisions which had, in Mrs Hedden's view, led her to behave in this way.Was it, in fact, as they seem to have found, done in absolute good faith and out of a sense of duty by Mrs Hedden and if it was, on what basis were they to distinguish her behaviour in this matter from her behaviour in taking the matter up with the social services? Why was this sufficient to destroy the relationship of trust and so forth whereas the other was not? Were they satisfied that indeed these duties did exist under the legislation and, in particular, the Children Act? That is a particular grievance with Mrs Hedden because she said:
"I wanted to call a witness who would have told them all about the statutory framework and the duties."
The Industrial Tribunal were perfectly entitled to say:
"we will not hear evidence about the law from however eminent a person; it is our duty to ascertain the law."
That would be perfectly correct and we do not criticise the Tribunal for taking that line, or for trying to limit their inquiry to what they saw were the essential issues in the case.But they had found that in one matter, where she wished to complain, her own employers had not tried to stop her doing so and therefore, they said, this was not gross misconduct entitling the employers to dismiss her. Should they not have looked into that statutory background a great deal more thoroughly than they did to see whether what was, so to speak, a justification in one case for reducing it to mere "serious behaviour" did not apply here? Because it does seem to us that essentially these two matters are very closely connected and if the conduct was to any degree excusable in one case then it could most certainly be urged that it was equally excusable in the second case, in the matter of the children themselves.It may well be that that is not so, but we think it can be properly argued that here the Tribunal either failed to make a full inquiry into the circumstances or, much more likely, that having made what was a thorough inquiry, for they spent four days over it, they failed adequately to give their reasons for differentiating the two cases.So we think that, that being a fairly arguable point, the appeal can properly proceed on that point and on that point alone.With regard to the other points raised, Mrs Hedden, who undoubtedly is deeply wounded by what has happened, has raised allegations which, of course, fell to be decided by the Tribunal, which amount to recklessness, bad faith and dereliction of duty by her employers. She also makes allegations against the Tribunal itself, alleging that the Tribunal, or at any rate the Chairman, was biased and has indeed actually invented evidence or put evidence falsely into her mouth; matters of that sort.Having thought about it as carefully as we can, having heard Mrs Hedden, having read the papers and thought about it, we cannot find that any of those points are fairly arguable. The Chairman and the Members have set out for our benefit their answers to the criticisms made of them. We find that those points are not fairly arguable and the point which I have endeavoured to define is the only point which, in our view, is fairly arguable.I suppose it goes without saying that although Mrs Hedden is, if I may say so, a thoroughly lucid and fair litigant, as she has appeared in front of us today, this is, in a sense, a real lawyers' point and Mrs Hedden should seek to have legal assistance in putting it before this Tribunal when the appeal is listed for a full hearing. It requires a dispassionate analysis of the decision itself. What it does not require is any notes of evidence or anything of that sort.There is an Application to Amend the Notice of Appeal which we consider entirely inappropriate. Among other things Mrs Hedden is anxious to contend that both the Chairman and the Advocate for the Respondents should not have been appearing at all. I do not propose to go through all the other matters which Mrs Hedden wished to raise. We have considered them. We are quite satisfied that none of them are arguable as matters of law in front of us. Whatever merit that they may have had and whether or not the Tribunal accepted the right evidence or took the right view of this or that is entirely, I am afraid, beside the point.The only point on which we give leave to appeal is the one I have indicated. Now that, as I say, would benefit very greatly if Mrs Hedden could obtain legal assistance in putting forward her case. It should not be impossible, it is possible to obtain legal aid to appear in front of our Tribunal if the question of resources is a real problem. There are also, as Mrs Hedden has discovered this morning, volunteer lawyers who are prepared, in certain circumstances, to appear free of any charge, simply as an act of public benevolence or good will, to put forward cases here. It may be that if she fails to get legal aid and cannot afford representation by a competent advocate she could find some help from the Free Representation Unit.It is a short point too. We think that a competent advocate would not find it unduly burdensome to consider the point on which we give leave to appeal. But of course it is ultimately up to Mrs Hedden whether she appears in person or chooses to avail herself, as we hope she will, of legal assistance.I should say for completeness that Mrs Hedden has sought our leave to appeal against the refusal of a review by the Tribunal and also against a decision, in her favour, by consent, with regard to a written statement of the terms on which money is being paid to her and a deduction made therefrom; the Tribunal said that they did not think it right to make any order for a further payment from the Respondents who had already, in their view, voluntarily paid a sum which they need not have paid to Mrs Hedden. We see no reason to differ from the discretion which the Tribunal exercised, or to comment any further on the oversight which led to the parties having to return to the Tribunal for that purpose.So, Mrs Hedden, you have our leave to appeal on that point, so when your case is listed that will be the only point which you can urge on this Tribunal. Of course you can refer to any other matters which you want to but you would be very well advised to have a lawyer.