MS LORNA M THOMPSON v TOWER HAMLETS HEALTHCARE NHS TRUST [2001] UKEAT 1401_99_2103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 1401_99_2103Case No Appeal No. EAT/1401/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS LORNA M THOMPSONAPPELLANTTOWER HAMLETS HEALTHCARE NHS TRUSTRESPONDENT
Before
Mr Recorder LangstaffDate 21 March 2001
[1]APPEARANCES For the Appellant MR ANDREW WILLIAMS (Representative) MR RECORDER LANGSTAFF QC This is a preliminary hearing in a case which came before the Stratford Employment Tribunal on 13 September 1999 in what was then intended to be a five day case. In the event, it took less time than that. Extended Reasons were promulgated on 29 September 1999.[2]Mr Williams, who has presented the appeal before us today with care and moderation, agrees that the background facts are not in dispute, and they are these: that the Appellant is, or was, an associate community nurse. Whilst in the employment of Tower Hamlets Healthcare NHS Trust, she visited a Mrs Hudson-Borg on 10 August 1998. The following day, Mrs Hudson-Borg made a complaint that the Appellant had stolen cash from her during the course of that visit. On 20 August 1998 the Appellant visited a Mrs Garrett. On 21 August 1998, she made a complaint, that in the course of that visit, the Appellant had stole cash from her too.[3]Inevitably, these complaints required investigation by the employer. Ms Hembrough conducted that investigation. She reported the result of that investigation on 8 September 1998. The consequence of that report was that there was a disciplinary hearing called for 15 September 1998, but in fact adjourned to 24 September. The conclusion of that hearing, which was chaired by a Mr Groves, was that the Appellant was dismissed. She had a right to appeal against that dismissal. She exercised the right.[4]The appeal hearing, went through a number of adjournments, the details of which it is unnecessary to recount, until finally, it came for hearing on 29 April 1999. On this occasion, Mr Groves was the presenting officer for the Trust. The Appellant did not then attend; in her absence and in the absence of her representative, the decision was made to dismiss her appeal. She then applied to the Employment Tribunal, making two complaints: first, that she had been unfairly dismissed, and secondly, that the circumstances were such that she had been discriminated against on the grounds of her race. The Employment Tribunal in the Decision to which we have referred, concluded that neither ground was made out.[5]The Appellant now seeks permission to have a full hearing on the first of those grounds, that relating to unfair dismissal. Mr Williams was kind enough to indicate, in his skeleton submissions that it was unlikely that the complaint of the appeal in respect of the allegations of discrimination on the grounds of race would be pursued, and in the event, he has not argued any such appeal.[6]The question then is whether or not the Employment Tribunal were entitled to come to the conclusion which they did, that the dismissal here was a fair one. That involved the Tribunal approaching the decision made by the employer on the basis outlined in British Home Stores v Burchell , that is, that the object of the enquiry by the Tribunal was to see whether the employer had an honest belief, based on reasonable grounds at the time that he had that belief, following a reasonable investigation that the allegations were made out.[7]The basis of the attack upon the decision of the Employment Tribunal is that they could not properly have concluded that the employer here had conducted a fair and proper or reasonable investigation. In the Notice of Appeal, a number of issues are raised at paragraph 4, setting out numbered grounds which run from (i) - (xiii), with one of them being subdivided into five sub-grounds of appeal. However, they can appropriately be summarised in the way in which Mr Williams himself summarised the basis for his appeal to us at the conclusion of his submissions. He said that the complaint which the Appellant has was one against the nature of the investigation, the manner in which statements had been taken by the employer, that is taken by Ms Hembrough, and presented for signature to the witness from whom they had been taken. Because those statements were not written in the witness's own hand, they were inevitably, statements written by one person, and said Mr Williams, thus inevitably represented one person's view of what had occurred.[8]He objected to the Tribunal's refusal to permit witnesses who may or not have assisted the Appellant's cause, to give evidence. An application was made to the Tribunal that five witnesses be ordered to attend. Two of those would be the two ladies who had made the original allegations of theft. One would be a Mr Moore, who it was said was present throughout the visit by the Appellant, to one of the ladies concerned, but who had indicated in a statement that for part of the time he was not present within sight and sound of the Appellant. One would be the police officer who investigated the complaints made to the police in respect of the same incidents, and the fifth a Mr Raycroft. There was, Mr Williams pointed out, ample time for those witnesses to come. Alternatively the Employment Tribunal could, he said, have sought their evidence by sworn affidavit.[9]Next, he suggested that the conduct of the employer was vitiated by the fact that Mr Groves had chaired the disciplinary hearing, even though he had, in Mr Williams' words "an involvement all along", which was not slight but continuous, throughout the process preparatory to the investigation, and thus he was armed with pre-knowledge when he came to sit as chairman of the disciplinary hearing. He then submitted that the port of last call, the disciplinary appeal, knew that the Appellant's representative was somewhere in the vicinity, and yet it chose to go ahead and accepted the submissions made to it by Mr Groves. The Appellant had been given no opportunity make a statement on her own behalf.[10]Lastly, he was concerned about fairness in relation to a document which saw the light of day during the employer's hearing. That was a reference purporting to come from a previous employer of the Appellant, indicating that she had been dismissed from that previous employment for theft. He confirmed that, broadly speaking, it was right that that document had been produced because the Appellant had claimed that she had never previously been subject to dismissal or discipline, but nonetheless, maintained that it was obvious that such a document must have been planted in the file of the Tower Hamlets Healthcare Trust because if there had been such a document genuinely received by the Trust, then no self-respecting Trust would ever have employed the Appellant in the first place, nor would it have retained her in employment in the light of such a reference.[11]What those submissions cover, as developed before us, were particular concerns that the Appellant did not have the opportunity to deal face to face with the two ladies who were her initial accusers. We can understand the Appellant's sense of unease at being faced by allegations of dishonesty without having the opportunity, in front of her employer, or subsequently before the Employment Tribunal, of asking questions of her accusers. However, we have to remind ourselves that any appeal must disclose an arguable point of law. The Tribunal here was not engaged in asking the question: did the Appellant commit the thefts of which she was accused? British Home Stores v Burchell make that clear. The question for the Tribunal to ask and answer was: did the employer think honestly, that she had (and I will put in brackets ("however wrong they might be"), providing there were reasonable grounds for so thinking, and providing there had been a reasonable investigation.[12]The question of whether a reasonable investigation necessarily would involve an employer bringing the accused face to face with her accusers, is one which, undoubtedly, was addressed to the Tribunal because Mr Williams represented the Appellant before them. The Tribunal set out its conclusions in the following terms. Having reminded themselves of the test in British Homes Stores v Burchell it concluded at paragraph 20:
"20…….The reason for the Applicant's dismissal was because the Respondent genuinely believed that she was guilty of theft from two elderly patients in her care."
I read on to paragraph 21:
"21. At the time that the Respondent, in the person of Mr Groves, formed the belief there were reasonable grounds for it based upon consistent evidence, presented through Ms Hembrough, from the complainants and an absence of evidence to support the allegations of collusion, confusion or discrimination asserted by the Applicant. It was open to Mr Groves to believe that the allegations were true upon the evidence he received. It was not unreasonable for him to believe them."
Before us, there has been no criticism of those two paragraphs. The Tribunal continued:
"22 At the time that Mr Groves made his decision, the Respondent had carried out a thorough and fair investigation. Ms Hembrough's investigation and the report were complete and fair. The only criticism of Mr Groves was that he had had some contact with Ms Hembrough prior to the disciplinary hearing. The contact amounted to him learning only that there was an allegation against Ms Thompson and that it was being investigated. It was not conduct of such a kind as to disable Mr Groves nor to raise any reasonable suggestion of there being bias or prejudice in Mr Groves' decision or the appearance thereof."
They concluded at paragraph 23:
"23 The decision that Mr Groves took, namely to dismiss the Applicant, was one which any reasonable employer could reasonably have made in the light of all the circumstances. Indeed, any employer who failed to consider dismissal in those circumstances could only be described as acting unreasonably."
Note that they recite, at paragraph 15, the complaints of procedural unfairness, which Mr Williams made to them, and which he has repeated before us today.[13]We ask in respect to the first of the essential concerns that Mr Williams has expressed to us, whether the law required or now requires, because of the impact of Article 6 of the Fundamental Charter of Human Rights, that an employee accused of dishonesty, should as part of the process of discipline by her employer, necessarily be able to confront her accusers, and whether the process is fundamentally flawed if that does not happen. In aid of his submission, Mr Williams referred us to Louies v Coventry Hood & Seating Company Ltd [1990] IRLR 324 . The headnote of that says that "where the essence of a case against an employee is contained in written statements by witnesses, it is contrary to the rules of natural justice and prima facie unfair for an employer to refuse to let the employee see those statements. Thus where, in deciding to dismiss, an employer relies almost entirely on such written statements, it will be very rare for the procedures to be fair if the employee is not allowed to see the statements, or at least be told very clearly exactly what is in them." That was a case in which the employee had not seen the statements. Here we do not understand it to be in dispute that Ms Thompson had seen the written statements. Indeed there were sixteen such statements, fifteen of them signed by the maker of the statement. Even though the wording in each was that of Ms Hembrough, she had sought, after discussion, the assent of the witness by signing.[14]Next, we were referred to McLaren v National Coal Board [1988] ICR 370 , a decision of the Court of Appeal. That was a case in which an employee had pleaded guilty to a charge of assault arising out of a disagreement during the miners' strike. The employer had thereupon dismissed the employee concerned from employment. The Court of Appeal held, affirming the Decision of this Tribunal, that fairness required the employer to listen to the explanation of the employee. Again, although we understand the exhortation of fairness, that is not this case, because Ms Thompson here, did have the opportunity to, and indeed did, answer the complaints before the disciplinary hearing.[15]Thirdly, we were referred to Henderson v Granville Tours [1982] IRLR 494. That was a case in which there had been an allegation made against the driver of a coach, relating to the manner of his driving. There was a six page letter from someone who had been a member of the coach party. The Employment Appeal Tribunal in allowing an appeal against the Industrial Tribunal's Decision that there had been reasonable investigation said that in circumstances in which the employer had simply shown the complaint, at short notice to the employee, required an explanation and then preferred the view expressed in the complaint because the integrity of the complainant was not in doubt, was unfair. This was upon the basis that any reasonable employer would have given the Appellant time to consider the letter, and that there was no reason why an enquiry could not have been carried out with at least the principal persons involved as organisers in the arrangements for the trip. No attempt had been made to check the allegations with the other passengers, nor was the Appellant given any proper opportunity to defend himself in the sense of answering the complaints.[16]Although that is much closer to the facts of the present case, the Industrial Tribunal here concluded that Ms Hembrough, who took no less than sixteen statements, had indeed carried out a thorough and complete investigation, and indeed, went to some lengths to commend the completeness and thoroughness of it.[17]That case, Henderson , was a case of a knee-jerk reaction by an employer to a complaint. This case, on the findings which bind us, was not. Even if one turns to general principles, a person facing a serious charge of misconduct against him or her must be given a reasonable opportunity to put their side of the case, and to answer the allegations made. They must also have before them a tribunal which is not biased, in the sense of having an interest one way or the other in the outcome. Here that essential standard of fairness, on any showing, appears not to have been breached. We do not think that the European Convention on Rights requires even a public sector employer, such as an NHS Trust, to conduct a disciplinary hearing as if it were a criminal, or even civil trial. But it has to be noted that even if they had conducted it as if it were a civil or criminal trial, the procedures presently used in both the criminal and civil courts of this land permit the use of hearsay evidence, and in civil cases, permit written statements to be given as evidence, even though the maker of the statement is not present. There is a school of thought which suggests that somebody who faces only a written statement and not the accuser in person may actually be better off because tribunals and courts are encouraged to give less weight, quite rightly, to written statements than they do to oral evidence.[18]We therefore understand the point that Mr Williams makes. We cannot regard it as coming anywhere near the test that it would have to meet before we could permit this case to go to a full hearing. There is, in short, no arguable point of law on behalf of the Appellant that the employer must have fallen short of the standards of fairness required, and that the Employment Tribunal in its Decision failed properly to recognise that.[19]So far as the allegation in respect of a failure to allow Mr Williams to call witnesses, on the Appellants behalf, we think that the Employment Tribunal were entirely right to do so, and indeed could have been criticised by the employer, if they had taken a different approach. The reason for that is that the Employment Tribunal were not concerned to know whether the decision that Ms Thompson was guilty of dishonesty was right or wrong; they were only concerned to answer the question whether the tests in British Homes Stores v Burchell had been satisfied.[20]It could not help to answer those tests to know what in fact, if they had been asked various questions before the Tribunal, witnesses may or may not have said. What mattered was simply what the employer thought was the position and whether the employer thought so, having made reasonable enquiries. The Employment Tribunal, as we have recounted, addressed and answered that issue.[21]The next point that was raised was whether the identity of Mr Groves vitiated the proceedings. We do not think there is any arguable case that he did, given the findings of fact binding on us, which the Employment Tribunal made. The Employment Tribunal considered the question of Mr Groves' involvement in the words that we have quoted already. They came to a conclusion. We cannot say that they were wrong to reach it, nor can we say that the failure to conduct the appeal hearing in the presence of the Appellant was a miscarriage of justice in the way in which Mr Williams has invited us to, and therefore the Employment Tribunal were not wrong to come to the conclusion that they did, on that basis, either.[22]Finally, as so far as the emergence of the reference is concerned, again, we understand the points that Mr Williams makes to us. Nonetheless, we do not think that there is any such force in them as requires this case to go forward. There is no arguable point of law concerned.[23]We have also considered whether or not the Employment Tribunal might have wondered whether the fact that Ms Hembrough had taken the statements herself, and might therefore have influenced the presentation of evidence before the Tribunal, and before the disciplinary hearing and invited them to come to a particular result, contrary to the Appellant's interests, had been explored and analysed by the Tribunal. As to that it is, I think, sufficient only to say that in paragraph 10 of the Decision of the Employment Tribunal, this is said:
"10 In the course of the hearing, both in her evidence and through Mr Williams, the Applicant attacked the bona fides and credibility of the Respondent. In the course of its deliberations, the Tribunal had to decide whether the Applicant or the Respondent's witnesses were telling the truth on a number of issues. By the end of the hearing we found, with little hesitation, that the Applicant was a stranger to the truth."
The Employment Tribunal had the issue therefore in mind. It saw and heard witnesses, and we cannot say that it was not entitled to come to that conclusion if it seemed to the Tribunal to be right.[24]We should add, for the sake of completeness, that although in the Skeleton Argument, various allegations of bias against the conduct of the Employment Tribunal are raised and developed, and although this arose as an issue when the matter was last before this Tribunal for hearing and determination, they have not been pursued at all, before us, today by Mr Williams. We think that, having read the material, that the policy of self-denial which he operated was wise; we do not think that there would have been an arguable ground there either.[25]Accordingly, on that basis, we do not think there is any arguable point of law in this appeal, and it must consequently stand dismissed.