MR V JHANKUR v SURREY OAKLANDS NHS TRUST [1999] UKEAT 734_99_2510
[1]APPEARANCES For the Appellant MR T A CEDENIO (Representative) LORD JOHNSTON : This is a preliminary hearing in the appeal by Mr V Jhankur against a finding of the Employment Tribunal that he was fairly dismissed from his employment with Surrey Oaklands NHS Trust, part of the National Health Service. The background to the matter was that the basis upon which dismissal was effected were allegations and a subsequent investigation into receipts submitted by the appellant for expenses in regard to various expeditions that he carried out accompanying patients in his care, who were mentally handicapped.[2]Mr Cadenio, who appeared for the appellant, pointed firstly to paragraph 21 of the decision where, he submitted to us, that the tribunal had taken into account matters it should not have taken into account, and in any event, had been misled to some extent in their own reasoning by their attitude towards what might have been the motive or lack of it in relation to the complainers or position of that of the appeal panel.[3]We take that on board. However we are much more concerned by the fact that in paragraph 22, the tribunal having considered quite correctly that there was, in their view, a genuine belief on the part of the employer that there had been misconduct and that there was material before them to reach that position, the tribunal did not take the next stage further down the road to consider whether, at the end of the day, dismissal was a reasonable option or response or, indeed, a reasonable act in the context of a man who had exemplary service and in respect of which, there were at least question marks as to how the allegations were presented to him and pursued against him.[4]In these circumstances and at this stage of the matter, we are of the opinion that there is an issue to try in this case as to whether the tribunal properly applied the correct legal test and reached a conclusion in law that was sustainable.[5]In these circumstances, the case will go forward to a full hearing.