MRS J HAWKES v DEVON & CORNWALL AUTISTIC COMMUNITY TRUST [2001] UKEAT 921_00_3101

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 921_00_3101Case No Appeal No. EAT/921/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MRS J HAWKESAPPELLANTDEVON & CORNWALL AUTISTIC COMMUNITY TRUSTRESPONDENT
Before
His Honour Judge CollinsDate 31 January 2001
[1]APPEARANCES For the Appellant No appearance or representation by or on behalf of the Appellant JUDGE P COLLINS CBE This is the preliminary hearing of an appeal from a decision of an Employment Tribunal sitting at Truro. The Extended Reasons were promulgated on 8 June 2000, after a hearing which had taken place on 8, 9, and 10 May.[2]Neither Mrs Hawkes nor Mr Hawkes, who has represented her throughout, have attended the hearing today. We do not find that altogether surprising in view of the distances involved. We have adequate written material on which to come to a conclusion.[3]The Tribunal dismissed Mrs Hawkes's claim that she had been unfairly dismissed. She had been employed by the Respondents, who are the Devon & Cornwall Autistic Community Trust, as a Deputy Team Leader from 20 February 1997 until 11 October 1999.[4]In June 1999 her husband applied for a position in the Trust and failed to obtain it. Thereafter, an appalling relationship grew up between Mr and Mrs Hawkes and the Trust. It is clear from the Tribunal's Reasons that Mr Hawkes mounted a campaign of vilification against the Trust, and Mrs Hawkes found herself caught up in it, having enjoyed a perfectly happy relationship with her employers until her husband failed to obtain the job. Underlying the whole of the Tribunal's Reasons, is a very strong awareness of the impossible position that Mr Hawkes had placed his wife in, vis a vis her employers.[5]The actual reasons for dismissal were set out in a letter of 28 September 1999, which is summarised in paragraph 19 of the Tribunal's Reasons:
"19 On 28 September 1999 the applicant was dismissed. The reasons were set out in a detailed letter which stated that the applicant had sought to copy confidential information, and had removed herself from the duty rota without informing management. The letter made it clear that the actions of Mr Hawkes had not influenced the decision to dismiss. It stated that the lesser sanction of a warning had been considered but this was not possible as no suitable employees would work with the applicant , and in any event the influence of Mr Hawkes on her caused real concern to the Trust which was caring for vulnerable and disadvantaged people."
There is an obvious inconsistency between saying that the actions of Mr Hawkes had not influenced the decision and then later saying that the influence of Mr Hawkes on her had caused real concern and that is something which caused us a measure of concern.[6]It is clear from the reasons of the Tribunal, so far as it can be ascertained, that the disciplinary hearing on 20 September 1999 which had led to the Appellant's dismissal, concentrated on two specific allegations; one, that she had sought confidential information and second, that she had removed herself from the Duty Rota, without informing management.[7]This Tribunal accepts very readily, that an employee who removed herself from the duty rota at night, when the care of people under a disability was in question, had committed a serious breach of the obligations of her employment, which might have justified dismissal without a warning.[8]However, that is not the end of the matter. The Tribunal had to consider the question of whether the dismissal was just and equitable in all the circumstances of the case, and a concern arises, from looking at the reasons of the Tribunal, that the lesser sanction of a warning was not adopted for the reasons set out in paragraph 19. But those reasons were not ventilated at the disciplinary hearing on 20 September 1999, and the Appellant was given no opportunity to argue, or state her case, as to why the lesser sanction of a warning was not appropriate, and was not told that the draconian sanction of a dismissal was being considered, and was being considered for reasons which she was not given an opportunity to rebut or comment on at the disciplinary hearing.[9]We think that there is an arguable case that there was procedural unfairness in the dismissal, even though the Trust might have been entitled to dismiss her for gross misconduct in taking her name off the rota.[10]It has to be pointed out that this, which we see as the only reasonably arguable point on behalf of the Appellant, is not taken in the Notice of Appeal which was drafted by Mr Hawkes. It is regrettably clear to us that Mrs Hawkes has not, perhaps, been represented as objectively by her husband as one might have wished.[11]All the material in the Notice of Appeal and in the written argument put before us, relates, in our judgment, to factual matters which are not capable of being substantiated and we are prepared to allow the appeal to proceed to a full hearing only on the ground which I have identified. It will have to be on terms that Mrs Hawkes, within 21 days of receiving the transcript of the reasons which I am now giving, lodges an amended Notice of Appeal, encapsulating the matters which I have set out. That would give her the opportunity of deciding that she does not want to proceed with an appeal on that basis, which means that she will not be able to proceed with the appeal at all.[12]In the event that she decides that she does want to proceed on that basis and puts in an amended Notice of Appeal to that effect, the directions will be listed Category C, time estimate two hours, Skeleton Arguments 14 days before the hearing.