MISS J M PATRICK v LONDON BOROUGH OF LAMBETH [2002] UKEAT 1448_01_1706

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 1448_01_1706Case No Appeal No. EAT/1448/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS J M PATRICKAPPELLANTLONDON BOROUGH OF LAMBETHRESPONDENT
Before
Mr Justice LindsayDate 17 June 2002
[1]APPEARANCES For the Appellant MR L CRAWFORD (of Counsel) Instructed by: North Lambeth Law Centre 14 Bowden Street Kennington London SE11 4DS JUSTICE LINDSAY (PRESIDENT) We have before us, as a Preliminary Hearing, the appeal of Miss Janet Patrick in the matter Patrick v London Borough of Lambeth. Today Miss Patrick has been represented by Mr Lincoln Crawford.[2]The chronology of the matter is this. On 27 April Miss Patrick presented an IT1 for unfair dismissal and breach of contract. She said she had been employed from April 1989 to 3 February 2000. She was a Social Worker, working, in particular, in relation to the adoption of children. She said in her paragraph 5: 5 "On 3 February 2000 I was summarily dismissed from my job as a team manager with the Council's social services department after 11 years unblemished service. The reason for my dismissal was gross misconduct namely; that I requested and/or instructed a member of staff of the Thomas Coram Foundation – a voluntary adoption agency – to remove information from one of its internal document i.e. form "F", and that I did so because I did not want the Council's adoption panel to know that the prospective adopters had been rejected by Berkshire social services department."[3]A little later, in her paragraph 10 she says: 10 "It would appear that because I questioned the relevance of the information, the staff member [that is a staff member of the Thomas Coram Foundation] tip-exed it from the form." and then she said: 16 "The disciplinary panel hearing my case was wholly unsuitable for such a task and violated my human rights, in that, by their incompetence and incapacity I did not receive a fair hearing."[4]That, of course, is nothing like the whole of her particulars and statement but gives some flavour of the nature of the case that she was running.[5]On 7 June 2000 there was an IT3 from the local authority employer. They said in their paragraph 3: 3 "The Applicant was suspended on 7 June 1999 when there was prima facie evidence of serious misconduct on her part, i.e. that she had requested an adoption agency to remove important information from forms they were preparing for an adoption panel."[6]There was, said the employer, a reasonable decision to dismiss. There had been a disciplinary appeal as well as a disciplinary hearing and that it had been held, on the appeal, that there should not be a dismissal but rather a final written warning plus a return to work but that Miss Patrick had refused to return to work and so had been dismissed on the basis that the original decision to dismiss her had not been revoked.[7]Between 1 and 4 October 2001 there was a 4 or 5 day hearing at the Employment Tribunal with both sides represented by Counsel. Indeed, Mr Crawford who, as I have said, appears today for Miss Patrick, appeared for her then.[8]On 9 October 2001 the unanimous decision of the Employment Tribunal, which was the Tribunal at Stratford under the chairmanship of Ms V K Gay, was sent to the parties and it was:
"…that the Applicant's claims for unfair dismissal and wrongful dismissal fail and are dismissed."
[9]It had been conceded on day 1 of the hearing before the Employment Tribunal that Miss Patrick had, indeed, requested an employee of the Coram Family Adoption Service to remove certain information from the form "F" which was a form used in the adoption process.[10]On 19 November 2001 Miss Patrick presented a Notice of Appeal and it gives rise to a number of broad headings which, although not specifically and exactly in the same order, Mr Crawford has adumbrated before us this afternoon.[11]The first of the headings in the Notice of Appeal is "Relevance" . The argument here is that the question of whether the information deleted from the 1999 form "F" was relevant was a question only for the Coram board which deleted it and that the disciplinary hearing and, later, the Employment Tribunal erred in looking into what was the relevance of the information, in their view, which had been deleted. There are associated arguments based on relevance, looking at whether what had been requested to be deleted had been relevant or not in the form "F".[12]As it seems to us, this argument is misconceived. The disciplinary hearing had no need to look into relevance because Miss Patrick's case at that stage was that she had not in fact asked for anything to be deleted.[13]The Tribunal in their "findings of fact" at paragraph 5 (xxix) of our page 16 said: 5 (xxix) "The Applicant provided two written statements to the disciplinary investigation and was further interviewed on 23 July 1999. In the statements and in the second interview the Applicant was adamant that she had not requested (nor instructed) Ms Zumpe to remove anything. To avoid excessive length, we do not quote from those interviews or statements, but we find that she was absolutely clear and absolutely determined that she had not made such a request. She did not suggest that the information which was removed was irrelevant or that it was removed for a good reason."[14]And a little later, as part of (xxx) (b) the Tribunal said: 5 (xxx) (b) "She accepted [this is Miss Patrick] in cross examination that irrelevance was no part of her case to the disciplinary investigation. We find that this is correct. Neither she nor her representative advanced to Ms Morgan or Ms Scantlebury [those were the persons looking into it on Lambeth's behalf] that the Berkshire rejection material was irrelevant, either orally or in writing."[15]Her assertion that she had made no request for any deletion was a lie. It was disbelieved by the disciplinary hearing panel and the Employment Tribunal, in their (xxxv), said: 5 (xxxv) "The disciplinary hearing ultimately concluded from the totality of the evidence that the Applicant had lied to them about this. They were correct in that conclusion, as the Applicant ultimately conceded in cross-examination. The Applicant was offered the opportunity by Mr Adamson, in cross-examination, to explain why she had lied to the disciplinary hearing. She was unable to do so. We record, for the avoidance of doubt, that she maintained this lie for a very considerable period after the disciplinary hearing."[16]As there was no defence at the disciplinary stage that the material was irrelevant, there was then no need for the disciplinary hearing to look into the question of relevance. The disciplinary hearing was faced with someone lying about whether or not she had requested deletions in what was said to be an important adoption form, form "F".[17]The disciplinary hearing concluded that that request for a deletion amounted to gross misconduct. On that the Tribunal made a number of findings. They said in their (xli): 5 (xli) "We are satisfied from the totality of the evidence that the disciplinary panel conducted an extensive, thorough investigation."[18]They held in their paragraph 6.1 (ii) (b): 6.1 (ii) (b) "We find that the Respondent was entitled to conclude: - first, after the disciplinary investigation, that the disciplinary procedure should be invoked; - second, after the disciplinary hearing, that the Applicant was guilty of gross misconduct. and a little later the Tribunal said:
"In the circumstances we are satisfied that dismissal was within the range of reasonable responses."
[19]There having been no defence of irrelevance at the disciplinary hearing or at the disciplinary appeal, it was for the Employment Tribunal to consider whether, as things stood during the disciplinary process, including the appeal, the employer had truly believed in the existence of the gross misconduct alleged, in other words that a deletion had been requested in a form "F"; whether it had conducted an adequate investigation into the events; whether the investigation gave good grounds for a reasonable belief in the misconduct alleged; and whether summary dismissal was within the band of reasonable responses. At the Employment Tribunal the employer succeeded on all those points.[20]Whether or not, by reference to an argument, that is to say "relevance", not raised during the disciplinary process and inconsistent with what was then being raised, the Appellant could have succeeded in resisting a finding of gross misconduct, is completely immaterial. Were it to have succeeded it would have amounted to the Employment Tribunal, on later material, substituting its view for what was the view of the employer at the end of the adequate investigation and at the end of the adequate disciplinary process. That, of course, would be impermissible.[21]However, we add this, that, if that strict view can be departed from then, in any event, the disciplinary stages and the Employment Tribunal did both look into the relevance of the information which Miss Patrick had requested should be deleted. It may be doubted whether the Employment Tribunal was correct in doing so, for the reasons that we have given. However, an argument that it was irrelevant to the full functioning of the Respondent's adoption panel in 1999 (a panel which differed in its membership from that which had looked at adoption earlier in 1994 and 1995) for it to know that in 1992 Berkshire's social services had rejected Mr and Mrs D as adopters of the children in question on the grounds of their adverse life experience seems to us little short of absurd. The disciplinary hearing held that such material was, indeed, relevant.[22]Referring to the ladies who looked into the matter on Lambeth's behalf as a matter of disciplinary investigation the Tribunal said: 5 (xxx) (b) "The conclusions make plain that Ms Morgan and Ms Scantlebury considered the issue of relevance and that they found that the information which was removed was relevant. They even set out their reasons for coming to that conclusion (paraphrasing for brevity):(a) that it is important that every panel should be given the full facts;(b) safeguarding the welfare and protection of children is the reason for the above;(c) the perceived effects on the panel were sought by the Applicant to be avoided. The information had a specific purpose and should have been put, because it contained relevant facts. In effect they were saying that the Applicant would not have wanted the material removed if she had not wanted to avoid its effects on the deliberations;(d) members of the adoption panel had changed, so all the relevant details should be before all panels. That is, if were relevant in 1995, it was still relevant.[23]The good sense of that conclusion, as a matter of investigation by Lambeth, seems to us to be plain. Certainly, no good ground is advanced before us to establish any deficiency in it.[24]The fact that Miss Patrick was able to procure Coram to delete information does not establish that the information was irrelevant to Lambeth's full functioning nor does it establish its irrelevance to that purpose to say that it was for Coram to elect what information to include in the form. Indeed, if it was for Coram and Coram only to decide what information to put in the form, that, in itself, shows the impropriety of Miss Patrick requesting the deletion.[25]Even if the relevance of the material requested to be deleted were to be treated as an item of true significance, despite, at the disciplinary stages, the only defence being that no such request had been made, then, even so we see no error of law or perversity in the Employment Tribunal's treatment of the issue. That is the first and main heading in the Notice of Appeal and the chief argument which Mr Crawford has advanced to us today.[26]There are related arguments. The Notice of Appeal's second heading is "Assuming the Function [of] the Adoption Agency" . What the Notice of Appeal says is this: 13 "The Tribunal erred in law in attempting to substitute its decision for that which is statutory responsibility of Coram as an adoption agency."[27]With respect, we do not see that to be the case. If, at the late stage of the Employment Tribunal, the Appellant brought up, as she did, the question of the relevance of the material the deletion of which she had lied about, she having earlier always said that she had made no such request for any deletion, the Employment Tribunal was then, for the first time, if not bound, at least likely to look into such subjects as Mrs D's life experience as recorded in the documents.[28]The Notice of Appeal says, of the Employment Tribunal: 13 "…Their findings also imply that Mr D had the qualities to be a single adopter and that Coram was wrong to approve Mrs D as a single adopter. Such findings were clearly outside the jurisdiction of the Tribunal." With respect, we do not see that any such implication emerges from the judgment of the Employment Tribunal. The Employment Tribunal was right to say nothing on that subject.[29]The next heading in the Notice of Appeal is "Risk Assessment" . Here what is said is this, that: 14 (a) (c) "…the Tribunal finding that the previous Berkshire rejection "is potentially relevant to risk" and should have been included on the 1999 Form F, was another example of its fundamental misunderstanding of the case." We are quite unable to find any fundamental misunderstanding of the case of the kind there asserted.[30]The next heading is "Expert Evidence" . A Ms James gave evidence and the evidence was rejected by the Employment Tribunal. The Employment Tribunal gave thorough and logical reasons for rejecting her evidence. Ms James began giving evidence by saying this: 5 (l) "Ms James expressed the opinion in her report and in oral evidence that the information about the Berkshire refusal was irrelevant to the considerations of the adoption panel in March 1999. We reject the expressed opinion of Ms James."[31]So that was how she began her evidence, but she concluded it in a very different style because a little later the Tribunal says: 5 (l) "…Almost at the conclusion of her cross-examination Ms James answered Mr Adamson [and he was Counsel for Lambeth]:
"The Tribunal [that is, the Employment Tribunal] has seen the information in the form Fs and is in a better position than me to make an assessment or judgment as to the relevance of the Berkshire reference"."
[32]In other words, her eventual view was that the Tribunal was better able to rule on relevance than she, the so-called "Expert" was. It was for the Tribunal to take a view how far to rely upon her evidence. It was entirely open to them to attach little weight to it. That is essentially a matter for the Employment Tribunal. It involves, as we see it, no error of law.[33]The next heading (I think it is the fifth) in the Notice of Appeal is "Investigation" . It might be as well to read the whole of this heading; it was this: 18 "The Tribunal was wrong to hold that Morgan, Scantlebury and the disciplinary panel had carried out a thorough investigation of the Appellant's case. Had a thorough investigation been carried out, it would have been clear that there were no grounds for the Respondent to form a belief that the Appellant had misconducted herself." That, as it seems to us, is not an identification of any error of law. It is nothing but bold assertion.[34]Next, and last of the headings, is "Dismissal" . The complaint here is that: 20 "The Tribunal's finding of gross misconduct and bringing the Respondent into disrepute was against the weight of the evidence." It is, of course, for the Tribunal to weigh the evidence. So long as there is some evidence for an impugned conclusion, the attack upon that conclusion is not one of law but of fact and thus must fail at this level. To say that something is merely against the general weight of the evidence is not to identify an error of law; a complaint has to show that there was no evidence whatsoever to support whichever conclusion is attacked. That is not done here and, so far as we can see, cannot be done here.[35]We have now, I hope, referred to all the arguments in the Notice of Appeal and those which Mr Crawford has elaborated today. He has drawn particular attention to the Adoption Agencies Regulations 1983 but we have not been able to find in there anything that suggests error of law in the Tribunal's decision.[36]So, far from finding error of law, we can see only a thoughtful and careful Tribunal decision. We find no arguable error of law and accordingly we must dismiss the Notice of Appeal, even at this preliminary stage.