MRS P IGBOLEKWO v 1) THE UNIVERSITY OF LUTON 2) MRS B BURDEN [2000] UKEAT 865_99_1812

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 865_99_1812Case No Appeal No. EAT/865/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS P IGBOLEKWOAPPELLANT1) THE UNIVERSITY OF LUTON 2) MRS B BURDENRESPONDENT
Before
His Honour Judge D M LevyDate 18 December 2000
[1]APPEARANCES For the Appellant MISS E JOSEPH (Of Counsel) Instructed by Messrs Chase Christopher Roberts Solicitors 257 Grays Inn Road London WC1X 8QT For the Respondent MR M BARKLEM (Of Counsel) Instructed by Messrs Mills & Reeve Solicitors Francis House 112 Hills Road Cambridge CB2 1PH JUDGE LEVY This is an appeal by Mrs P Igbolekwo ("the Appellant") following a decision of an Employment Tribunal promulgated on 3 June 1999 after a 7 day hearing. Two days of the hearing were in November 1998 and five in May 1999. The Appellant was represented by Counsel other than Counsel appearing for her on the appeal. The Respondent University ("the University") below as here, was represented by Mr Barklem.[2]The originating application of the claimed unfair dismissal. Her complaint commenced:- "Unfair Dismissal I was unfairly dismissed on 13 March 1998 for alleged unprofessional behaviour. The unprofessional behaviour was said to have arisen during the course of paid employment elsewhere. The University of Luton dismissed me because they said I had a duty to report the matter to them. I would not have been dismissed had it not been for an outstanding written warning on my disciplinary file from the previous year which arose from unfair allegations. I have been the subject of previous disciplinary hearings for minor allegations. I believe this was due to the racial discrimination I have experienced since 1989 whilst I was employed at the University of Luton."[3]The Appellant was employed as a midwife teacher with the Luton and Dunstable Hospital Midwifery School from 1986 and Hospital and Luton University in April 1991 and continuity for employment was established from 1986.[4]There had been a disciplinary hearing in 1997 when the Appellant was given a final warning to remain on her file for 2 years. The proceedings at the Industrial Tribunal came about because of an incident which occurred in December 1997 at a location the University only learnt at or after the 3 rd day of the hearing below and after compliance with a discovery order. The University then learned that the Appellant had taken employment at the Barton Nursing Home ("the Home") in addition to that which she had enjoyed at the University. There had been an incident at the Home on 13 December 1997. On 17 December 1997 a Secretary at the University was found writing a letter on the instructions of the Appellant, which apparently had something to do with that incident and the finding of that letter led to disciplinary proceedings at the University.[5]On 9 March 1998 the University held a disciplinary hearing chaired by Dr A J Wood. On 13 March 1998, a letter was sent from Dr Wood to the Appellant informing her of the decision to dismiss her within 3 months. On 27 April 1998 there was an appeal hearing from that decision, chaired by Sir Ian Dixon. The decision to dismiss was upheld not on the grounds of which complaint was originally made but on the ground of professional practice. The ground was that the Appellant should have reported to the Dean that a complaint had been made against her at the Home. It was clear that he decided to dismiss because, that report having been made, it was appropriate to dismiss in the light of the final warning which had been given on 1 July 1997.[6]It is clear from reading the extended reasons that most of the hearings time below was devoted to the complaint of race discrimination which the Appellant had made. From the decision the Appellant appealed by Notice of Appeal dated 13 July 1997. The points in the Notice of Appeal were over a wide range and they were considered by a Panel of this Tribunal headed by Judge Pugsley on 12 November 1999. Most of the grounds of appeal were rejected at that stage but, as appears from an amended Notice of Appeal dated 12 November 1999, it was clearly recognised by Counsel who then appeared before her that matters which the Employment Appeal Tribunal allowed to go to a full hearing were these:
"1 The Tribunal erred in law by failing to make any or any adequate findings as to whether the Appellant was in breach of her contract of employment, in relation to her employment at the Barton Nursing home. 2 The Tribunal erred in law by failing to properly consider the extent of the investigation carried out by the Respondent into what had taken place at the Barton Nursing Home and whether it was reasonable for the Respondent to dismiss the Appellant on that basis. 3. The Tribunal erred in law as it failed to make findings in relation to whether the dismissal was fair in light of the procedural irregularities it found by reason of section 98(4) Employment rights Act 1996."
[7]There was a further interlocutory hearing at this Tribunal at a meeting for directions where an attempt was made to widen the grounds of appeal. In a judgment dated 7 July 2000 for reasons he there gave, Judge Clark rejected that attempt.[8]At the hearing this morning we have had the benefit of an additional bundle. Not happily paginated or in chronological order, it was helpful to us the better to understand what had happened at the different stages of the Appellant's disciplinary hearings. It was clear that by the time the Appeal hearing was held on 27 April 1998 that the incident at the Home was before the Committee. At page 2 of the Notes of the April hearing, there is this passage:
"Second allegation, which I found established related to the incident in the care home. This item hinges on whether the incident is regarded as professional or not. KR and BB both qualified nurses, gave evidence that locking patients away is regarded as professional. Further, V Cooke, the representative for the Appellant conceded this is not professional practice, although she said it has happened in the extreme."
[9]With that finding in mind, we considered the findings of fact made by the Employment Tribunal when dealing with the matters of the investigation and the dismissal by the University. Prior to paragraph 22 of the extended reasons they dealt with confusion early on in the investigation and they continue at paragraph 22:
"There was a similar confusion about the Vice Chancellor's disciplinary hearing in March 1998. Although the Tribunal accept that the hand-written documents that Mrs Burden had found spoke for itself (that is a reference to the document which was being typed when we understand the Appellant was on leave and related to the incident) there was at no stage any serious attempt to interview the Appellant and put the contents of the document to her. Equally, the evidence is not clear as to whether the charges were fully put to the Appellant before the disciplinary hearing commenced. We do not think that this failure to interview the Appellant follows the spirit of the disciplinary procedure, although we do accept that paragraph 18 provides that where matters are not in dispute "an investigation will not be required" (and there was a reference to) ( Boys & Girls Welfare Society –v- McDonald [1996] IRLR 129 ) Paragraph 23 "
Nonetheless, the lay members of the Tribunal find that the hearing before the Vice Chancellor was flawed because of the failure to give proper notice of the issues to the Appellant. The Chairman however, finds that such notice was given, and that despite the shortcomings in the Respondent's procedure the hearing before the Vice Chancellor was nonetheless a fair hearing." Paragraph 24 "But despite their reservations about the hearing before the Vice Chancellor, the two lay members accept that by the time the Appellant pursued her appeal before Sir Ian Dixon and his two colleagues, she was well aware of the issues that she had to answer. Again, at that hearing, just as at the hearing before the Vice Chancellor, witnesses were called and the Appellant and her representative had an adequate opportunity not only to cross examine those witnesses, but also to call any witnesses of their own (which they failed to do) and to make submissions to the panel." Paragraph 25 "As a result, all three members of the Tribunal are unanimous in finding that despite our criticisms of various stages of the Respondents' procedure overall was fair, that the investigation was a reasonable one, and that the appeal panel held a reasonable belief in the Appellant's guilt in respect of the third allegation. (The third allegation being not reporting that she had been involved in an incident at Barton House) We find that the decision to dismiss was in circumstances, a fair dismissal."[10]We return to the grounds of the amended notice of appeal. The first ground in the amended notice does not in our judgment amount an error in law. As we understand the way the matter proceeded in the disciplinary hearings, it was not resolved against the Appellant that she was in breach of her contract of employment by taking employment at the Home. At the preliminary hearing of this Appeal, the Panel did not have the benefit of seeing the documents, which we have seen and thus were persuaded that that was an issue at the hearing of the final appeal.[11]As to the second ground of appeal, we have set out the paragraphs of the Extended Reasons. We are satisfied that the Employment Tribunal considered the disciplinary hearings of the University sufficiently to reach the conclusion that they were fair. In that regard, Counsel for the Appellant has helpfully referred us to the latest 2 cases where the duty of a Employment Tribunal has referred to Folley v Post Office [1999] ICR 1150 and HSBC Bank Plc v Maddon [2000] ICR 1283 . The head note in the latter commences:- "Held that the correct approach for Employment Tribunals when applying section 98(1) & (4) of the Employent Rights Act 1996 was to give to those provisions the same interpretation as had for many years been placed by the courts on a prevalent provisions in section 57(1),(2) &(3) of the Employment Protection Consolidation Act 1978 and thus for all practical purposes to consider whether the Employer's decision to dismiss fell within the band of reasonable responses to the employee's conduct which are reasonably employed could adopt and to apply the trite part approach to the reason for and the reasonableness of the dismissal relating to the contempt of an employee and that that approach required the employer to establish the fact of his belief in the employee's misconduct that he had reasonable grounds on which to sustain that belief and that at that stage at which he formed the belief on those grounds he had carried out as much investigation into the matter as reasonable in the circumstances of the case."[12]In the Maddon decision the Court of Appeal considered that the Employment Tribunal had erred impermissibly, by substituting itself as employer in place of the bank and then assessing the quality and weight of the evidence before the investigator and concluding that no reasonable Tribunal properly directed could have had concluded either the bank had failed to conduct a reasonable investigation or dismissal was outside the range of reasonable responses.[13]In our judgment it is quite clear that the Employment Tribunal after a long hearing did consider the extent of the investigations carried out by the Respondent in relation to the matter which they found proved. In our judgment it would have been an error had the Employment Tribunal come to a decision other than that there had been a reasonable investigation and had attempted to substitute their own response to that of the University.[14]As to the third ground of appeal in our judgment the Tribunal did not err in law in failing to make findings adverse to the University because of their procedural regularities which they identified. It is quite clear from the passage in the extended reasons which we have set out that the Tribunal considered that the final appeal hearing was sufficient for it properly to conclude there had been a fair hearing below and the employer was entitled to dismiss the Appellant.[15]We cannot accept the submissions made on the part of the Appellant that there was a duty of the Tribunal to go into what had happened at the Home, more particularly as it is clear that the Appellant did not make known to the Respondent, the address at which she was actually doing additional work until these proceedings were very well under way.[16]In the circumstances we thank both Counsel for the assistance they have given us in their submissions today. There may well have been arguable points of law found at the preliminary hearing of this appeal, on the submissions which had been placed before the Tribunal for consideration. However, we have had additional material, from which we are satisfied that the Appellant cannot succeed on the three grounds of appeal before us. In those circumstances we dismiss the appeal.