Ituah v Camden & Islington CHS NHS Trust & Anor [1999] UKEAT 1157_98_1503

EAT

Ituah v Camden & Islington CHS NHS Trust & Anor

[1999] UKEAT 1157_98_1503 · 1999-03-15

JUDGE PETER CLARK :

Mrs Ituah was employed by the Respondent Trust from 1975 until 1997. In 1996, when employed as a District Nurse Grade G, she was the subject of disciplinary proceedings. She was suspended on 16 October; an investigation carried out by the Respondent was concluded on 21 January 1997 and a disciplinary hearing took place on 15 April. Two out of the four charges brought against her were found proved. Those two charges related to her standard of performance and level of clinical knowledge. As a result of that finding she was downgraded to an E Grade post, with commensurate reduction in salary.

Following her downgrading she was directed to report to the St Albans Clinic in Camden on 21 April 1997, but failed to do so. She never returned to work for the Respondent again.

She appealed against the disciplinary award. That appeal hearing took place on 16 July 1997. The appeal was dismissed.

On 21 July 1997 she presented an Originating Application (the first complaint) to the Employment Tribunal complaining of race discrimination, breach of contract, unauthorised deduction from wages and failure by the Trust to give her reasons for dismissal. She also named Miss Grace, who had been involved in investigating the disciplinary matter, as a Respondent. The Trust in due course counter-claimed for overpayment of wages in the total sum of £1,780.37 in respect of payments made, they said, by mistake for the period 23 April to 31 May 1997.

The Appellant then apparently withdrew the constructive dismissal claim, which she had also included in her first Originating Application, and two other claims with which we are not concerned. On 5 November 1997 she presented a second complaint claiming unfair dismissal and breach of contract. The unfair dismissal complaint was dismissed on withdrawal on 11 May 1998. However it appears that that complaint later reappeared by way of amendment to the first complaint.

The matter came before an Employment Tribunal sitting at London (North) on 6 - 8 July 1998. All the Appellant's claims were dismissed and the Trust's counter-claim was upheld for reasons promulgated with a decision dated 15 July 1998. Against that decision she now appeals.

In this appeal Mr Arowojolu takes two points. First he says that the Employment Tribunal erred in law in finding that the Appellant terminated her own contract. He submits that her demotion and transfer were in breach of the applicable procedures and that the Tribunal did not look properly into the circumstances of those events; that they concentrated solely on the Whitley Council procedures which they held applied to the Appellant's contract of employment. This was a case, he submits, where she was forced out of her employment.

We are unable to accept that submission. It seems to us that the Tribunal carefully considered the steps taken by the employer before reaching the decision to down-grade the Appellant as a result of the two disciplinary charges found proven. It seems to us that the Tribunal was entitled to conclude, as the fact-finding body, that there was here no repudiatory breach on the part of the employer, entitling the employee to treat herself as constructively dismissed.

Secondly, he attacks the Tribunal's finding on the counter-claim. We see from the Respondent's amended Notice of Appearance that the basis for the counter-claim arose in this way. It is there pleaded that on 12 May 1997 Mrs Grace wrote to the Appellant informing her that she was concerned that the Appellant was not adhering to the Trust absence reporting procedures. She asked for medical certificates, if the reason for her absence was ill-health.

The Appellant was also warned that if a medical certificate was not received by 19 May then her period of absence would be treated as unauthorised leave and would be unpaid. The Appellant failed to respond to that letter and on 30 May Mrs Grace again wrote to her confirming that as no sickness certificate had been received, her pay had been suspended with effect from 23 April, although she was in fact paid until 31 May, hence the counter-claim for the wages paid for the period 23 April until 31 May.

The Tribunal deal with the counter-claim shortly, at the end of their Extended Reasons, in this way:

"The Whitley Council conditions provide that if you do not work you do not get paid. The Applicant from 23 April onwards was paid in error. The amount of the overpayment is £1,780.37 and we make an order in favour of the First Respondent for that amount."

It seems therefore that the Tribunal accepted the Respondent's case that, in the absence of medical certificates supporting the Appellant's failure to attend for work under the rules applicable under the contract, the Respondent was entitled to withhold pay from 23 April and accordingly, those payments were made under a mistake and could be recovered by way of counter-claim.

In these circumstances it seems to us that this appeal raises no arguable point of law to proceed to a full appeal hearing and must be dismissed at this stage.