MS M M MCNIFFE v REDCAR AND CLEVELAND BOROUGH COUNCIL [2001] UKEAT 1273_00_2803

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1273_00_2803Case No Appeal No. EAT/1273/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS M M MCNIFFEAPPELLANTREDCAR AND CLEVELAND BOROUGH COUNCILRESPONDENT
Before
Mr Recorder LangstaffLord Davies of CoityDate 28 March 2001
[1]APPEARANCES For the Appellant MISS J HEAL (Of Counsel) Appearing under the Employment Law Appeal Advice Scheme MR RECORDER LANGSTAFF QC We have been persuaded by Miss Heal who appears under ELAAS that there is an arguable point or two in this case. Those arguable points are that the dismissal was for capability but it seems not to have been in contention that the Appellant had carried out a post as a residential social worker at St Margaret's Way in a satisfactory manner, see page 52 and the employer proposed to transfer her to such a post on a permanent basis with effect from 1 and then 8 June 1998.[2]We are told that that post did not involve the reporting difficulties, which were the essence, it is suggested, of the capability dismissal. Secondly, Miss Heal seeks to argue on the Appellant's behalf that in paragraph 10 in the sentence beginning:
"Nevertheless we are left in absolutely no doubt that it was spelt out to the applicant in no uncertain way that reporting was a fundamental part of the job and that she was failing to achieve it. She held a professional role and was sufficiently intelligent to realise the implications of her failure to do so."
We do not consider that a reasonable employer, acting reasonably would have gone further than this respondent went in seeking to identify the problem, in seeking to warn and assist the employee and in giving her opportunities to improve." there is hidden the view that there had been no sufficient warning to the employee of the consequences of failing to complete the reports which were outstanding from her period as a field social worker prior to transfer to St Margaret's Way as a residential social worker.[3]We note in passing that the words "she was failing to achieve it" in the first of those two sentences may suggest the Tribunal took a view of the failures as continuing to affect her work at St Margaret's Way rather than being historical in the sense of being a hangover from her period in the field and there is an arguable question as to the evidential basis for that if that indeed was their view.[4]We shall say no more about the grounds which will be encapsulated for the Appellant by Miss Heal. When we have considered those grounds we shall consider whether it is appropriate to give leave for them. In principle we do so. There should be a skeleton argument limited to those grounds only two weeks before the hearing. Together with that there should be a chronology.[5]Thirdly if there are any authorities upon which the Appellant or the Respondent seek to rely they should be supplied with copies with their skeleton arguments. The case will take no more than half a day to argue. It is Category B for listing purposes.