MRS N BARRETT v WAKEFIELD & PONTEFRACT COMMUNITY HEALTH NHS TRUST [2001] UKEAT 0180_01_1206

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2001] UKEAT 0180_01_1206

Case No Appeal No. EAT/0180/01

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MRS N BARRETTAPPELLANT

WAKEFIELD & PONTEFRACT COMMUNITY HEALTH NHS TRUSTRESPONDENT

Before

His Honour Judge J Altman Mr A E R Manners Mr H Singh

Date 12 June 2001

[1]APPEARANCES For the Appellant NO APPEARANCE OR REPRESENTATION BY OR ON BEHALF OF THE APPELLANT JUDGE ALTMAN This is an appeal from the decision of the Employment Tribunal, sitting at Leeds over 5 days in November 2000, that the Appellant was not unfairly dismissed. It comes before us by way of preliminary hearing to determine if there is an issue of law capable of argument in full before the Employment Appeal Tribunal.

[2]The Appellant and her representative have not appeared today but following a telephone call it was ascertained that they did not propose to attend and wished the hearing to proceed on the written material before the Employment Appeal Tribunal. We have before us a Notice of Appeal, which contains 2 grounds. The first is that the Tribunal erred in law in finding that the Appellant was not unfairly dismissed or that alternatively no reasonable Tribunal could conclude that the dismissal was fair, given the circumstances, and the second is that the Tribunal erred in law in finding that the Appellant was not dismissed for making a protected disclosure contrary to Section 103(a) of the Employment Rights Act 1996 .

[3]We turn to the second matter first. It was the Appellant's case recorded by the Tribunal in paragraph 4 of its extended reasons that the true reason why she was disciplined was for exercising what are crudely called her 'whistle-blowing rights', namely to complain to her manager about two care support workers; and that having made those complaints, the Appellant was then herself subject of an investigation and that after that the Respondents were looking for an opportunity to get rid of her.

[4]The Employment Tribunal set out that issue very carefully and concluded in their decision that the reason that the Appellant was disciplined was the true one asserted by the Respondents and not the one contended for by the Appellant.

[5]We can see no error of law in that respect. There was evidence on both sides and, whilst the Appellant disagrees no doubt with the finding, there was plenty of evidence, as the Employment Tribunal found, to support the conclusion they came to; that the Appellant was disciplined on two occasions for genuine matters.

[6]The first matter was recorded as being 'common ground' in paragraph 10 of the Employment Tribunal's decision and it related to the night shift, during which an incident occurred, in relation to a patient who had slipped away from being supervised without anyone noticing, at a time when the Appellant was watching a video tape of a film. Although she had been accused of being asleep by those about whom she had complained, the Tribunal dealt with the matter whether or not she had been asleep, as they found in their decision.

[7]The next matter that occurred related to 18 November 1999. It again related to the control of a patient and it appears that during the course of the evening a problem had arisen because of that patient's use of a jug which was his and the instruction from the Appellant that the jug should be removed from him. He was known to be cantankerous but in spite of some violence in his past was not thought to be dangerously violent.

[8]The incident was outlined in the decision of the Employment Tribunal in which the Appellant instructed carers on duty to escort the patient to his room and they found 26. "she told them to keep him there" And there was also the fact that these escorts had been authorised by the Appellant to give the patient medication contrary to the rules of the Respondents that a care support worker can only administer medication in an emergency, which the Respondents judged did not apply here.

[9]The instruction to "keep him there" was interpreted as an instruction to place the patient in therapeutic isolation and this was done contrary to the Respondent's policy, which required that such isolation should include the presence of a member of staff.

[10]Those two matters were dealt with by the Respondents. The first was dealt with by the administration of a final written warning (that relates to the March incident) and there was a disciplinary hearing in relation to the jug incident. The Employment Tribunal set out the history of the matter and in paragraph 33 of their decision they set out the conclusion of the Respondents.

[11]The Respondents had expressed themselves as taking account of the Appellant's failure to: "Follow the Trust's therapeutic isolation policy Complete a risk incident form ……. Follow the Trust's administration of drugs policy… And they found that the intervention of the Appellant was to be recorded as having caused additional distress to a patient.

[12]The decision to finally dismiss was deferred whilst there was investigation of the final written warning incident and following this, the dismissing officer believed that dismissal was appropriate.

[13]The Tribunal then turned its attention to their own findings in this matter. They dealt with the reason for dismissal, which related to conduct and they differed as to whether the Respondents acted reasonably or unreasonably in treating that as sufficient for dismissing the Appellant.

[14]The Employment Tribunal dealt in paragraph 40 with their finding. They first of all looked at the final written warning, which of course by the time of dismissal was finally concluded in any event, but the majority found that there had been a just and reasonable investigation and a thorough one and then they dealt with the response to dismissal in the following terms:

"For the majority, the key point was that, very soon after he came on duty, Mr Newey managed to quickly defuse the situation concerning the patient AT, something which the Applicant had failed to do. Whilst we acknowledge the irresponsible part played by Mr Meeson in that incident, the (Appellant) failed to stop him holding the handle to the door of AT's room. Simply telling him not to and then leaving the scene was not enough. We find that the Respondent acted reasonably in looking back to the final written warning and in linking the conduct which gave rise to that warning with the conduct which gave rise to the dismissal. Having said that, the majority agreed with Mrs Hemmingway that the decision to dismiss the Applicant was harsh. Had we judged the matter ourselves, we would probably not have dismissed the Applicant but that, as we are constantly reminded, is not our function."

[15]In reaching that decision, the Employment Tribunal had previously recorded that very shortly before this incident the Appellant had most unfortunately been away, unable to work through illness, and that she had returned to work with a limited role. This was that she would be in a deputy capacity, although it was accepted that she might have to 'act up' if called upon to do so. This incident occurred only a day or so after her return and she was acting in full charge when it was not really intended that she should have to do so, so early on.

[16]Against that background it was accepted by the Tribunal that the result of the Appellant being taken back on in the capacity of being a deputy meant that she may have had to 'act up' in the way that fortuitously she had to on this occasion. So, whilst it may be unfortunate that the Appellant was not quite ready to take on the responsibility she had, it was clearly not the fault of the Respondents that she was so exposed.

[17]That was the basis upon which the minority member found that the decision to dismiss was an unreasonable response. Effectively he found that a reasonable employer would have taken into account the fact that at the time of the incident there had been insufficient rehabilitation and that it was the Respondent's fault that that rehabilitation had not taken place. He would have taken account of the fact that a reasonable employer would have looked to the fact that the Appellant was demoralised, let down by her manager and that with those difficulties a reasonable employer would not have expected such a high standard of conduct.

[18]Against that background we have considered the grounds of appeal and it seems to us quite clear that the Employment Tribunal very carefully set out the facts of this case and the issues involved and conscientiously followed, as individual members, their own judgement as to the findings of a reasonable employer and came to a conclusion which was within their entitlement to come on the facts that they found. Whilst they personally found the dismissal harsh, the majority followed the law, rather than act contrary to it, in coming to the conclusion which they did.

[19]We have considered carefully the skeleton argument which is headed 'Grounds for Appeal', which was furnished to us today but essentially what it does is to set out only the arguments which were or could have been addressed to the Tribunal and were to the effect that the Employment Tribunal should have preferred a different view of the facts.

[20]In ground 3 the Appellant says that Mr Singh identified that the Respondents did not give sufficient time. That was an issue of fact upon which the members of the Tribunal were entitled to, and did, differ. So far as the 'whistle blowing' issue is concerned, the Employment Tribunal were entitled to reject the reason put forward by the Appellant in preference to that of the Respondent.

[21]Complaint was made that Mr Black was not present to be cross-examined and yet his evidence in writing was relied upon. However, that is one of the ways in which Tribunals operate. They have to act upon the evidence before them and if it is in writing, within limits they take it into account that it has not been cross-examined upon, but they do rely on it from time to time and are entitled to do so.

[22]The complaint is made in paragraph 7 that the Employment Tribunal was subjective in its approach in sympathising with Ms Edwards, representing the interests of the Trust, but that clearly did not affect their judgement for they clearly distinguished very markedly in their decision their own personal views from those of a reasonable employer.

[23]In paragraph 8 the assertion is that the Respondents were the authors of the Appellant's mistakes by failing to honour the agreement to permit her to settle back into work and we have already dealt with that, for it was simply an issue of fact which the Tribunal took into account. It is said that the Appellant submits that a reasonable employer would have acted differently but the Tribunal considered otherwise and did not err in law, and cannot be argued to have erred in law, it seems to us, in that respect.

[24]That essentially is the argument put forward, namely that the Tribunal were wrong in their assessment of the facts. We have no doubt that that is the belief of the Appellant but we do not see any evidence that they were arguably so wrong as to have come to a conclusion that no reasonable Tribunal, acting on the evidence before it, could have reached. Therefore there is no arguable ground of law in this appeal.

[25]We would only add one matter, finally. Like the Tribunal, this Tribunal was dismayed to read that the representative of UNISON gave evidence against her member on behalf of the Respondents. We understand that trade union membership is an individual membership between the individual member and the union, that it is founded on confidentiality and its purpose results in a duty being upon the union to act in the interests of its members. We cannot envisage any circumstances in which a union representative can properly give evidence against a member about matters in relation to which that very representative has spoken to the member and acted on behalf of the member. Whilst it is not formally a legal privilege it is very much the same as a solicitor acting for a client. How on earth, we wonder, can a trade union member meet with and ask a union official to act on his or her behalf knowing that that official may later betray that confidence and give evidence against that member in a Tribunal?

[26]We hope that in due course that may be noted in future. Of course there is the discretion on the part of a Tribunal to refuse to entertain such evidence in any event, but that does not affect our overall decision. There is no arguable point of law and this appeal must be dismissed.