MS M M MCNIFFE v REDCAR AND CLEVELAND BOROUGH COUNCIL [2002] UKEAT 1273_00_2301

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2002] UKEAT 1273_00_2301

Case No Appeal No. EAT/1273/00

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

MS M M MCNIFFEAPPELLANT

REDCAR AND CLEVELAND BOROUGH COUNCILRESPONDENT

Before

Mr Justice Lindsay

Date 23 January 2002

[1]APPEARANCES For the Appellant MS M MCNIFFE (The Appellant in person) For the Respondent MISS SHARON LANGRIDGE (Solicitor) Messrs Short Richardson & Forth 4 Mosley Street Newcastle upon Tyne NE1 1SR THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) We have before us as a Full Hearing the appeal of Ms M M McNiffe in the matter McNiffe v Redcar and Cleveland Borough Council ; it will be convenient to call the Respondent 'Redcar'. The appeal is against the decision of the Employment Tribunal at Thornaby in relation to unfair dismissal. Today Ms McNiffe has appeared before us in person; she had appeared at the Tribunal below in person. Redcar have been represented by Ms Langridge.

[2]The chronology of the matter is that on 11 May 1999 Ms McNiffe presented an IT1 for unfair dismissal and disability discrimination. She said she had been employed from January 1994 to 15 February 1999. She had been dismissed on that date, having, she said, been treated for depression from 1992 and for anxiety symptoms from November 1997. She said:

"Despite meetings convened by my employer prior to my dismissal, I do not consider that my employer properly examined other work options for me and specifically a suggestion by me that I be transferred to fulfil a post at St Margaret's Way, Brotton, Saltburn, Cleveland."

On 27 May there was an answering IT3 from Redcar. They said that she had been dismissed because she was not capable of carrying out her duties to a sufficient standard. Redcar said that less stressful jobs had been offered to her amongst a number of work options and the disability discrimination claim was denied.

[3]There were very short pleadings (to call them that) and it is a measure of the difficulties that can arise even from brief IT1s and IT3s that such very short pleadings took two days to hear, plus another meeting that the Tribunal thought was necessary for themselves to deliberate on the case. We have a judgment of some nine pages of close typing. The hearing itself was on 5 and 6 June 2000 and the meeting for deliberations on 26 July 2000.

[4]Ms McNiffe tells us today that although she had not fully realised it at the time of the hearing before the Employment Tribunal, she was really was not then fully well on medical grounds, not well enough, indeed, to do justice, representing herself, to her case. She got very stressed, she says, during the course of the case, such that she felt that she had to give its conduct over to her sister and that this put her to a disadvantage because her sister did not really know enough about her case.

[5]Looking at it through the Tribunal's eyes, there is no reason to suppose that Ms McNiffe made any form of application for the case to be adjourned on medical grounds, nor even indicated to the Tribunal that the conduct of the case had passed from Ms McNiffe to her sister because of any medical grounds. That being so, the Tribunal had no reason other than to continue with the case as they did and to regard the argument as fully representing, as it seemed to be, what the Applicant wished to put before them. There is no suggestion that so inept was the representation that the Tribunal itself should have felt or noticed, of its own motion, that justice was not being done to the Applicant's case. So, the Tribunal, on 5 and 6 June 2000, continued with the case as one would expect. On 17 August the decision was sent to the parties. It was the unanimous decision of the Tribunal at Thornaby under the Chairmanship of Mr J R Barton. The unanimous decision was that the Applicant had not been unfairly dismissed.

[6]On 31 August 2000 Ms McNiffe applied to the Employment Tribunal for a review. She lodged a letter of some nine and a half pages of handwriting. On 6 September the Chairman declined the review. On 27 November 2000 the Employment Appeal Tribunal received Ms McNiffe's own draft Notice of Appeal. It is directed only to the decision of the 17 August. The matter came forward to the Employment Appeal Tribunal on 28 March for a Preliminary Hearing in the ordinary way and that led to a deal of refinement of the Notice of Appeal and ultimately to an Amended Notice of Appeal. It is quite plain that the Employment Appeal Tribunal on 28 March intended that the Amended Notice of Appeal only was the matter that was to come forward to, as it transpires, this Full Hearing. The Amended Notice of Appeal in no way directs itself to disability discrimination. The reason for that, no doubt, is that the claim in disability discrimination had been dismissed upon its withdrawal by Ms McNiffe before the hearing which is now under appeal. Unfair dismissal had been the only claim before the Employment Tribunal on 5 and 6 June 2000 and, to restrict matters further, it had been accepted by Redcar that Ms McNiffe had indeed been dismissed. So the issue, in a phrase, was, unfairness or not. The Employment Tribunal found that the reason given and asserted by the Redcar Council for the dismissal was "capability" within Section 98(2)(a) of the Employment Rights Act 1996 .

[7]Ms McNiffe's skeleton argument and, indeed, her oral argument today tend to range well beyond the somewhat limited terms of the Amended Notice of Appeal. To the extent that it is outside the Amended Notice of Appeal it is an excess and we should not and do not pay attention to that excess. We should properly look to the grounds in her Amended Notice of Appeal and take them one by one. Ms McNiffe has addressed us at some length and she candidly accepts that at points in her argument she thinks she is going round in circles. For that reason I think it is best that we do stick to the Amended Notice of Appeal to give us a framework which we can apply to her argument.

[8]The Amended Notice of Appeal has as its first ground – and I should add that it was settled by counsel - it says this:

"Although the Respondent dismissed the Appellant for a reason related to capability the Tribunal has failed to take into account that between 9 th July and 3 rd November 1996 the Appellant performed satisfactorily while on a placement in St. Margaret's Way as a residential social worker."

Eventually, Ms McNiffe was given notice on 16 December 1998 to expire, as we mentioned, on 15 February 1999. What had happened in the summer and autumn of 1996 was reasonably to be regarded as part only of the background. It is in any event quite plain that the Tribunal did have that early spell at St Margaret's Way in mind. The Tribunal specifically refer to it in their paragraph 6(t). They refer to the fact that there was no negative feedback – feedback, in other words, negative to Ms McNiffe - relating to that time of employment. The answer to this first ground is that the Tribunal plainly did take that earlier spell into account. It was for the Tribunal to assess how relevant it was, how important it was as a matter of fact relative to the later time of December 1998 and June 1998 which principally concerned them. We cannot say that there is an error of law in that the earlier spell at St Margaret's Way was overlooked because it was plainly referred to by the Tribunal and was in their mind.

[9]The second ground in the Amended Notice of Appeal was this:

"The Tribunal further failed to take into account that the Appellant was due to return to St. Margaret's Way on 1 st June 1998."

Here the answer is somewhat similar. The Employment Tribunal refer to the prospective return to St Margaret's Way in their paragraph 6(u). The move, however, was deferred so that Ms McNiffe could get on with the task of bringing her current records up to date before she moved off to St Margaret's Way. She was given the opportunity to work on her records. The Tribunal says:

"It was agreed that the applicant could commence work in the new post on 1 June 1998 and that consideration would be given to other posts which arose as suitable. A letter was written to the applicant to this effect on 21 April 1998 (page 51). We accept Mr Finlay's evidence that he had written that letter before receipt of the applicant's letter of 1 May and that he had proposed a start date of 1 June with the intention f providing the applicant with sufficient time to bring up her casework to date before starting there. We accept that that isn't specifically made a part of the offer that was put forward to the applicant. We do accept Mr Finlay's evidence, however, that he was in regular contact with the applicant and encouraged her to get matters up to date so that she could move. As a result of a meeting on 2 June 1998, concerns having by then been expressed by the deputy director, Ms Shaw as to whether the applicant would complete her recording of cases before moving to St Margaret's Way, it was agreed that the applicant should spend time in her office to attend to this task and that her commencement in St Margaret's Way would be deferred until 8 June 1998 to enable her to do so."

So, as to this ground - that the Tribunal failed to take into account the fact that the Appellant was due to return to St Margaret's Way - they plainly had it in mind. They specifically refer to it in the passage to which we have just referred. Again, just how important it was is a matter essentially for them. The fact that if Ms McNiffe had indeed got her records up to date, or even had put her back into getting the records up to date, she would have been able to move to St Margaret's Way is no defence to a charge that she was persistently incapable of doing her job at Eston. As to not putting her back into getting the records up to date, continuing from that quote which indicated that evidence was accepted by the Tribunal that the move to St Margaret's Way would be deferred to 8 June in order that she should, the Tribunal continued:

"The applicant attended on 2 June. It was Ms Shaw's evidence that she [she being Ms McNiffe] came in late at 9 am but we accept the applicant's evidence that she was on the premises by 8.30. The applicant took a full lunch hour and left shortly before 4.30 pm, producing only one report that day which came to 3 pages. Ms Shaw had concluded that such a task should have taken her half an hour or so. On 3 June, Ms Shaw received 2 telephone calls from Mr Lammiman to the effect [that] the applicant had reported back to him at the end of the previous day and seemed to have achieved very little. Later he rang to say that the applicant had phoned him to say she would not be coming into work."

Ms McNiffe is deeply unhappy, as we understand her, about the findings that are here made, but it cannot, it seems to us, be said that there was no evidence at all on which the Tribunal could have concluded as they did. They specifically refer to Ms Shaw having given evidence. It is, of course, the Tribunal's job to decide which body of evidence to prefer. If there is no evidence whatsoever to support a conclusion, that may well be an error of law, but if there is some evidence to support the conclusion then the conclusion cannot represent an error of law. The shortest answer to that second ground of appeal, that the Tribunal had failed to take into account that the Appellant was due to return to St Margaret's Way, is, of course, that they specifically refer to it and had it in mind.

[10]The next ground, number three, is this:

"The tribunal should have found that, having found the Appellant reasonable alternative employment in which the problems of incapability did not arise, no reasonable employer would have dismissed the Appellant for lack of capability before she had taken up the employment."

Well, of course, there was no guarantee that if she moved back to St Margaret's Way in mid 1998 her capability would improve. The fact that for a few months back in autumn 1996 she had not run into difficulty whilst she was at St Margaret's Way did not necessarily indicate that if she went back in mid 1998 all would be well. Whether all would be well in 1998 would no doubt best be judged from her performance in 1998, which was, as the Tribunal found, that despite time being given to her for her to catch up with the recording side of her work she not only remained in arrears but seemed willing to do little or nothing to deal adequately with those arrears and thus did not perform what was, in practical terms, a precondition of her return to St Margaret's Way. Ms McNiffe does not care at all for the description of it being a precondition of her return to St Margaret's Way that she brought her records up to date, and she is right to say that that was never expressed as a condition in writing, but in employment there is no need for everything that is agreed to be put into writing; it is often helpful, but it is not a strict necessity. The Tribunal, as we have quoted, found on the evidence that they heard that her commencement in St Margaret's Way would be deferred until 8 June 1998 to enable her to spend time in her office to bring her recording of cases up to date. That full consideration was given by Redcar to an opportunity being given to Ms McNiffe to bring herself up to date is quite plain from several of the findings that the Tribunal made.

(z) of their Extended Reasons they say:

"Ms Shaw concluded that management had done all that could be done to assist the applicant, to no avail. She had shown herself consistently unable or unwilling to make improvement to her performance."

We have also been referred to a letter of 3 April 1998 in which earlier, Mr John Finlay, Principal Personnel Officer, had written to Ms McNiffe saying:

"Your Team Manager has tried various means of trying to improve your overall performance, however, the concerns have remained. I am aware that you do not agree with management's assessment of the position, nevertheless the point has been reached where your line managers consider enough is enough and progress has to be made."

In the circumstances we cannot say that the Tribunal erred in law when they held, as they did:

"We are satisfied that almost from the outset of the applicant's employment she had difficulty in carrying out what was a fundamental and statutory duty associated with her role, namely that of reporting adequately."

Equally, a little later, the Tribunal held:

"She was given every opportunity to improve and indeed it could be the case that the respondent could be criticised for failure to take more positive action in relation to the applicant's employment at an earlier stage."

Reasonableness is really a matter of fact and degree. How a reasonable employer would react, or what a reasonable employer could believe in particular circumstances, is best left, within fairly broad parameters, to the Employment Tribunal which is carefully composed of a balanced composition on the employer side and the employee side with a legally qualified chairman, making up, as the expression used to be 'the industrial jury'. Going back to this ground of the Amended Notice of Appeal we are unable to see any error of law.

[11]The next ground, the fourth, says:

"The tribunal failed to consider that the dismissal arose directly from events on 2 nd and 3 rd June 1998 and whether it was in reality a dismissal for misconduct."

The Tribunal fully recognised that Redcar had asserted that it was a dismissal on capability grounds. In their paragraph 3 they say:

"The reason given for the dismissal was that the applicant was not capable of carrying out her duties to a sufficient standard." and in paragraph 7 they say: "

We accepted on the facts we found that the respondent had discharged the obligation imposed by Section 98(1) of the ERA, as showing what was the reason (or, if more than one, the principal reason) for the dismissal and that it was a reason falling within subsection (2), namely that it related to the capability of the employee." The letter of dismissal we have in a bundle of supplementary documents and, to quote from part of it, it said this:

"The evidence from both Investigating Officers and witnesses has demonstrated clearly that a great deal of assistance, support and management time has been given to you with a view to assisting you with your personal and professional difficulties. In my opinion there is no evidence from your employment as a Social Worker to support the case that you could effectively work in any other social work position. Recording is an integral part of any social work role and cannot be viewed in isolation. It is an essential statutory requirement for any position within the Social Services department. I am concerned that your failure to comply with statutory requirements places myself, the Department and the Council in a very vulnerable position. I do not feel that it would be proper of me to allow this to continue. I am also concerned with the situation of service users. Whilst there is no criticism of your direct work with service users the absence of any assessment and plans would effectively mean that the needs of service users cannot possibly be met or measured. I also have a responsibility to other employees, namely your Managers and the apparent strains this ongoing situation has caused. I therefor have no alternative but to dismiss you from your post."

There was no specific mention in that of Ms McNiffe's lackadaisical performance on 2 June 1998 and 3 June 1998 – a possible "conduct" ground - nor is there any finding that that letter of dismissal was in any way disingenuous. That being so, it seems to us that the Employment Tribunal's finding of capability as the ground cannot be faulted in law. It certainly is no necessary part of an Employment Tribunal's duty specifically to negative the existence of other possible grounds which the employer had not sought to rely upon. So we see no error of law in that fourth ground.

[12]The fifth ground is this:

"The Tribunal should have considered whether and decided that such a dismissal was unfair."

Grammatically, that is not very clear, but the Employment Tribunal did specifically deal with the issue of the reasonableness of the sanction of the dismissal. It would, in fact, be remarkable if that had not been looked at in an unfair dismissal case. In paragraph 12 they say:

"As to whether the sanction of dismissal was a reasonable one in all the circumstances, [pausing there, they have set out a body of circumstances] we have no hesitation in concluding the respondent acted reasonably."

They did therefore consider whether the dismissal was a reasonable sanction and decided that it was. So there is nothing in that fifth ground.

[13]The sixth ground is this:

"It is a necessary implication of paragraph 10 of the tribunal's decision that the Appellant was not warned of the risk of dismissal if she failed to improve her performance. The tribunal should have found that the dismissal was, for that reason unfair."

We see some force in that as an arguable point but one has to look at how the matter was dealt with. The Tribunal heard evidence, of course, and they say in their paragraph 10:

"In terms of warning, only one formal warning appears on the applicant's record and that was expunged after a period of six months. [Pausing there, that was quite some time before] 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."

A little later they say:

"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."

If, as the Employment Tribunal held on the evidence which they heard, the Appellant had realised the implication of her failure to achieve adequate work in relation to a fundamental part of her job, which was a failure persisting after several attempts to cause it not to persist, and after an earlier formal written warning, what, one might ask rhetorically, would an express warning have added? No authority was shown to us for the proposition that a capability ground cannot be relied upon even where the employee knows that dismissal may well be a consequence of persistent want of capability and even where the employee is given full opportunity from the employer to improve and assistance towards improving, without express warning from the employer. We have not been shown any authority for any such proposition and we would doubt that any such proposition can exist. Ms McNiffe has urged before us that she never thought that dismissal was, so to speak, on the cards. She is plainly an intelligent women and, indeed, has so, in fact, asserted to us that she is, and when the Tribunal say she was sufficiently intelligent "to realise the implications of her failure" it is manifest in context that what they mean is that it was a plain implication that she might be dismissed if she did not improve. That being so, as we say, what would an express warning have added? The answer would seem to be nothing. Although it would no doubt have been better if dismissal had been expressly referred to, the fact that it was not does not in the particular context give any ground to Ms McNiffe in error of law. Going back to the Notice of Appeal ground six says: It is a necessary implication of paragraph 10 of the tribunal's decision that the Appellant was not warned of the risk of dismissal if she failed to improve her performance. The tribunal should have found that the dismissal was, for that reason unfair. The Tribunal, as we have cited, held that she had realised the implications of her failure to keep up records, it being plain, in context that, as we have said, that what the Tribunal meant by talking about implication was that dismissal was on the cards. The Tribunal heard the evidence. It was a matter for them to determine what to make of that evidence and we cannot say that there is any error of law there.

[14]It is said, next, in the seventh ground:

"In deciding the dismissal was fair notwithstanding the lack of warning of dismissal, the tribunal failed to take into account the proposed move to St Margaret's Way."

We have already dealt with the move to St Margaret's Way. We do not see anything in ground seven that amounts to an error of law. The matter was taken into account.

[15]The last of the eight grounds is:

"The tribunal should have decided that in the light of the proposed move the Appellant would not or would not necessarily have realised that dismissal was likely."

But that does not amount to an error of law for the reasons that we have given, namely that the Tribunal, looking into the evidence, found that she was intelligent enough well to have realised what the implications of her failing to come up to competence was.

[16]Ms McNiffe has sought to rely on medical aspects to emphasise that in June 1998 when she was required to bring her recording up to date before a move to St Margaret's Way she really was already sick. The difficulty that is put in her way about that is that evidence was given at the disciplinary hearing that is dealt with by the Tribunal as follows (this is a description by the Employment Tribunal of something that occurred at the disciplinary hearing); they say this: - "The applicant was represented by her union representative Mr Clark, who wished to present her case based on her health but she rejected it. This resulted in lengthy private discussions. The applicant effectively took over and presented her own case based upon the argument that she would be a good social worker were she to be given the opportunity. She argued that the workload was too high and that this was the reason for her failing to keep up to date with recording." As we have understood that, where it says 'this resulted in lengthy private discussions' it means that at the disciplinary hearing there were discussions, private between Mr Clark, her union representative, and herself, which led to the health ground not being advanced, and one can see some reason why Ms McNiffe would not want to take that ground. But once it was held that the medical ground had quite deliberately not been taken at the disciplinary stage, it made it extremely difficult for anything to be made of it at any later stage. As we have mentioned earlier, there was no medical evidence laid before the Tribunal that Ms McNiffe was not capable of handling matters on her own behalf at the Employment Tribunal and this paragraph that we have just cited shows that any attempt to say that the disciplinary aspect of things had been askew because of her health could not be advanced because it had been open to Ms McNiffe but had been specifically abandoned. It is therefore, as it seems to us, not an aspect of things that Ms McNiffe can usefully expand upon to her advantage.

[17]Ms McNiffe says, and repeated, that management has managed to twist and distort matters and present an unfair picture of what truly was the case. The Tribunal, though, in terms find in their paragraph 11 that the Respondent acted in good faith. Ms McNiffe says that whilst she specifically sought to counter some of the evidence that was presented on her employer's side, she naturally did not want to contest in a truly hostile manner all aspects of the Redcar case because at that stage what she was chiefly looking for was not money but a restoration to working for Redcar and that that naturally inhibited her attack on the Redcar witnesses. The Tribunal, of course, has to deal with the matter as it is presented to them and if an attack that could have been made was not made then the Tribunal naturally treats the matter as having been uncontested.

[18]We are not without some sympathy for Ms McNiffe. It might well be, if the medical side of things had truly been elaborated at the disciplinary hearing, or even if it had been truly laid before the Employment Tribunal itself, that Ms McNiffe, on medical grounds, was unable to give a good account of herself and do her case justice, that her position could conceivably have been better than it now is. We have to remember though, that it is not for us to find facts, still less to find facts relative to arguments that were not put. We can only deal with errors of law, properly-so-called, and, having sought to concentrate upon those, we fear that we find no error of law and thus must dismiss Ms McNiffe's appeal.