MISS M FENTON v NEWHAM COMMUNITY HEALTH SERVICES NHS TRUST [2002] UKEAT 413_01_2607

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 413_01_2607Case No Appeal No. EAT/413/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS M FENTONAPPELLANTNEWHAM COMMUNITY HEALTH SERVICES NHS TRUSTRESPONDENT
Before
Mr Justice Wall Mr J HoughamDate 26 July 2002
[1]APPEARANCES For the Appellant MR BENJAMIN UDUJE (of Counsel) Instructed By: Messrs Webster Dixon Solicitors 21 New Fetter Lane London EC4A 1AW For the Respondent MS JANE McCAFFERTY (of Counsel) Instructed By: Messrs Bevan Ashford Solicitors 4th Floor 1 Chancery Lane London WC2A 1LF MR JUSTICE WALL : This appeal from the decision of the Employment Tribunal sitting at Stratford on 15 January 2001 comes before us in somewhat unusual circumstances. By her form IT1 dated 9 September 2000, Miss Marrian Fenton claimed that she was unfairly dismissed by her employer, Newham Community Health Services, NHS Trust (Newham). The reason given for her dismissal was that she deliberately defrauded Newham on 2 March 2000 by taking a break that was longer than recorded. The balance of the form IT1 reads as follows:
"The allegation arose because a fellow employee clocked me back in from lunch earlier than I had returned. I was unaware of that action. The employee concerned did not face full disciplinary proceedings and had left the Trust's employment before my hearing. As this employee had left the Trust's employment it was not possible for my representative to cross examine her on my behalf. My attempts to offer a defence against the allegation were also hampered by the fact that equipment used for recording arrival and departure times were defective and awaiting replacement. In the face of these difficulties I was unable to persuade the Disciplinary Panel that whilst the occurrence was admitted the defence was credible. They relied upon inconsistencies in my defence which were, to some extent, caused by the aforementioned difficulties. I have six years employment with the Trust without disciplinary incident and believe that I was unfairly dismissed."
[2]In its response to the Originating Application, Newham asserted that Miss Fenton was summarily dismissed for gross misconduct in accordance with Newham's disciplinary procedure. The form IT3 continues:
"Ms Fenton was clocked in whilst absent from the office on 2 nd March 2000. A member of the team had reported to the assistant service manager that Ms Fenton had been clocked in whilst out of the office. When confronted, Ms Fenton replied that her friend must have clocked in for her by mistake. The allegation that Ms Fenton knowingly took a longer lunch than that recorded was investigated, in accordance with the Trust disciplinary procedure and following this, a disciplinary hearing was convened. Ms Fenton has claimed that she had arranged to take a longer lunch on the day in question. This is not supported by the key witness accounts. Ms Fenton has changed her account of when and where she alleges this was agreed. When questioned as to why she thought it was her friend, that had clocked her in, when in practice it could have been anyone, Ms Fenton alleges this was suggested to her. The individual concerned strongly disputes this. There is also a dispute around the time Ms Fenton was confronted. Two witnesses provided clear and mutually supporting accounts that contradict the evidence offered by Ms Fenton. It was noted by key witnesses that the clocking in machine was working erratically and due to this staff were being more vigilant about checking their cards. Ms Fenton was questioned about this and at this point, wavered from her statement and stated that she had not clocked back in at all. At the disciplinary hearing it was felt by the disciplinary panel that Ms Fenton's account was inconsistent and in contrast with the consistent accounts of the witnesses, which supported each other. Ms Fenton also changed her account(s) during the day. The disciplinary panel did not believe that it was an honest mistake and felt that she had knowingly taken a longer lunch than that recorded. In summary the reasons for not believing Ms Fenton's account are as follows: Her accounts are completely at odds with all key witnesses. All witnesses provided very clear and consistent accounts which supported their statements, whereas Ms Fenton's account changed and shifted considerably."
[3]The form IT3 then recorded that Miss Fenton appealed and produced a written statement at the appeal hearing which she contradicted in an oral account. Her inconsistent evidence, it was said, contrasted with the evidence of other witnesses whose evidence remained consistent. The appeal panel accordingly upheld the decision to dismiss Miss Fenton.[4]Newham further argued that certain incidents of gross misconduct were regarded by Newham as being so grave as to merit summary dismissal. These included any deliberate attempt to defraud Newham and attempts to defraud included any alteration of time sheets or clock cards which attempted to record hours in excess of those actually worked. Whilst not seeking to argue that the point was relevant in relation to Miss Fenton's dismissal, Newham pointed out that she had been issued previously with an informal warning under the disciplinary policy on 23 March 1999 for taking annual leave without authorisation.[5]We have quoted extensively from the Originating Application and the Response because this is a case in which we do not have Extended Reasons. We were told that at the conclusion of the hearing on 15 January 2001 the Tribunal announced its decision, but did not give oral reasons. Summary Reasons were, however, provided for the parties on 1 February 2001.[6]Miss Fenton's Notice of Appeal is dated 22 February 2001. With it, she submitted the Summary Reasons which the Tribunal had given on 1 February 2001. On 8 March 2001, the Deputy Registrar of the Employment Appeal Tribunal wrote to Miss Fenton pointing out that in order for the appeal to proceed, she had to file a copy of the Extended Written Reasons of the Employment Tribunal in accordance with the requirements of Rule 3(1) of the Employment Appeal Tribunal Rules 1993 .[7]The Deputy Registrar drew Miss Fenton's attention to the decision of the EAT in William Hill Organisation Ltd v Gavas [1990] IRLR 488, and explained that in that case the EAT had stated that without Extended Reasons an appeal could not properly continue.[8]The Deputy Registrar pointed out also that the time for applying for the Extended Written Reasons was set out in the explanatory notes sent with the Employment Tribunal Decision. In the event of her request for the Extended Written Reasons being refused, she was able to make an appeal against that refusal and (we think this should read "or") apply to the EAT to exercise its discretion and hear the appeal on Summary Reasons. Miss Fenton was also told that any appeal against the refusal to provide Extended Written Reasons had to be made within 42 days of the date of the refusal letter, and be supported by a copy of the refusal letter itself. The matter would then be set down for a preliminary hearing.[9]Acting on that letter, Miss Fenton wrote to the Stratford Tribunal on 12 March 2001 asking for "the full-extended written notes regarding the above case heard 15 January 2001". She explained that she was anxious not to pass the 42-day deadline for an appeal.[10]On 21 March 2001 Mr David Newton, on behalf of the Regional Secretary of the Tribunals replied to Miss Fenton's letter which had been referred to a Chairman. The Chairman who sat refused Miss Fenton's application because it was well out of time. Reference was made to Rule 10(4) of the Employment Tribunals Rules of Procedure).[11]On 29 March 2001 Miss Fenton wrote to the EAT expressing her wish to appeal against the refusal of her request for Extended Written Reasons, and to apply to the EAT to exercise its discretion to hear the appeal on Summary Reasons. She enclosed the relevant correspondence.[12]On 17 September 2001, Miss Fenton's appeal came before the EAT in a constitution chaired by Mr Recorder Underhill QC by way of preliminary hearing. Miss Fenton was represented by Mr Thomas Kibling of Counsel, who appeared under the ELAAS Scheme. The EAT recognised that this was not a straightforward situation. Giving the EAT's judgment, Mr Recorder Underhill set out the chronology which we have recorded above. He noted that Miss Fenton had not formally appealed against the refusal of the Chairman on 21 March 2001 to provide written Extended Reasons. However, Mr Kibling submitted that there were two possible routes open to Miss Fenton. She could either invite the EAT to proceed on the basis that the appeal could properly be heard on Summary Reasons (that being a matter for the EAT constitution to decide whether it was a proper course in the particular case). Alternatively, she could appeal against the ET's decision to give Extended Reasons. That route, Mr Recorder Underhill notes would, of course, be much more prolonged because there would have to be a consideration at a full hearing of the EAT as to whether or not the Employment Tribunal had erred in law in making the decision which it did.[13]In any event, what occurred was that following some discussion and on the EAT indicating that it was minded to allow the substantive appeal to proceed on the basis that it was arguable that Extended Reasons were unnecessary, and that the case raised a real point of law, Mr Kibling, having taken instructions, indicated that Miss Fenton did not wish to attempt to appeal against the refusal of the Tribunal to give Extended Reasons.[14]The EAT accordingly directed that the appeal should proceed to a full hearing, but stated that it must be understood that it would be for the EAT at the hearing of the appeal to consider whether it was prepared to consider the appeal in the absence of full reasons in accordance with the decision of the EAT in Wolesley Centres Ltd v Simmons [1994] ICR 503.[15]These, therefore, were the circumstances in which the appeal came before us. We were faced with two decisions. The first was whether or not the appeal should proceed in the absence of Extended Reasons: the second, assuming the answer to the first to be "Yes" was whether or not there was any error of law detectable in the Tribunal's Decision.[16]Before proceeding any further, we think we should set out the Tribunal's Summary Reasons in their entirety. They comprise some eight paragraphs, taking a little more than one page of A4. This is not to criticise them: they are Summary Reasons. They read:
"1 The Applicant, Miss Marrian Fenton, who was born on 5 December 1961 was employed by the Respondents, Newham Community Health Services NHS Trust, as a Personal Secretary from 7 November 1994 until 14 June 2000 when she was summarily dismissed. Miss Fenton contends that the dismissal was unfair which the Respondents dispute. 2 Ms C Gibbons, a Manager with the Respondents, dismissed Miss Fenton because she contended that [it] was her belief that Miss Fenton had on 2 March 2000 defrauded the Respondents by taking a longer lunch break [than] was recorded on the clocking in/out system. We have heard Ms Gibbons give evidence. We are satisfied that she held a genuine belief as to this. 3 An investigation into the incident was carried out by two managers unconnected we believe with the specific department in which Miss Fenton worked. They interviewed Miss Fenton and six other members of the staff and considered as part of their investigation memoranda regarding the clocking in/out system and they looked at the relevant card and others. 4 Miss Fenton on being interview admitted that she went to lunch at 1:11 pm but she claimed to have returned at 2:15 pm approximately when she says she clocked in. No such time is shown on her clock in/out card; however the card does show 1:11 pm, which is when she says she went out, and 1:26 pm – on the face of it indicating a 15-minute lunch break. Mr Chivers another of the Respondents' managers claimed that Miss Fenton told him that another colleague of hers, Miss G. Batchelor-Skeet, had clocked Miss Fenton in by mistake, although Miss Fenton now denies that she ever said this. Mr Chivers also claims that Miss Fenton did not return until about 2:30 pm. Mr Chivers goes on to say that Miss Fenton told him that she had arranged with Mrs Humphries to take a longer lunch break, but this, Mrs Humphries, categorically denies. In short what Miss Fenton says occurred does not tally with the evidence of Mr Chivers and Mrs Humphries nor indeed with her clock in/out card. 5 In these circumstances we have concluded that there was a sufficient investigation carried out and that Miss Gibbons had reasonable grounds for her belief. Accordingly the Burchell Test is satisfied. 6 The disciplinary procedures of which Miss Fenton was aware stated that: 'any deliberate attempt to defraud the Respondents including any alteration of time sheets or clock cards which attempt to record hours in excess of those actually worked amounted to gross misconduct'. 7 Each flexi time employee was debited with a lunch break of a minimum of half an hour but on Miss Fenton's own case she was out for 30 minutes more than this, but never brought this to the Respondents' attention on her return. Furthermore Miss Fenton on her own case returned 15 minutes outside the permitted lunch hour. This she did not report either. In short, although Miss Fenton's previous record may have been unblemished, this was a serious matter which would cause the Respondents to [lose] trust and confidence in her, particularly where she stuck to her story, which they did not believe, rather than admit the charge put and ask for them to be lenient. Accordingly we also conclude that the decision to dismiss fell within the band of reasonable responses to the employee's conduct which a reasonable employer might have adopted. 8 We therefore hold that dismissal was not unfair."
Should the appeal be heard in the absence of extended reasons?[17]For Miss Fenton, Mr Benjamin Uduje referred us to Rule 39 of the Employment Appeal Tribunal Rules 1993 , and to two cases, William Hill Organisation Ltd v Gavas [1990] IRLR 488 and Wolesley Centres Ltd v Simmons [1994] ICR 503. At [1994] ICR 507, His Honour Judge Hague QC giving the judgment of the EAT, and having cited from the judgment of the Court of Appeal in William Hill Organisation Ltd v Gavas said this:
"In our judgment, it is clear from rule 32 and from the decision in William Hill Organisation Ltd v Gavas that the appeal tribunal has a discretion whether or not to allow an appeal to proceed in the absence of full reasons. In that case, the appeal tribunal had 'come to the conclusion that, in the absence of full reasons, it was quite impossible to adjudicate upon the matter being urged by way of appeal' and so refused to hear the appeal. The Court of Appeal refused to interfere with the exercise of the appeal tribunal's discretion. We agree with Mr Bear, counsel for the employers, however, that there is no general principle that the absence of full reasons makes an appeal non-justiciable, and that the effect of non-compliance with rule 3(1) ( c ) depends on the circumstances in each case."
[18]Mr Uduje invited us to exercise our discretion to allow the appeal to proceed to a full hearing on the following bases: 1) the hearing below was conducted, and the Notice of Appeal settled by the Appellant acting in person and without legal assistance; 2) it is unclear whether the Appellant was given the guidance note, in any event, the Appellant acted promptly in requesting Extended Reasons once the need for them was brought to her attention; 3) the nature of the Summary Reasons: the reasoning is sufficiently detailed in the essentials, and the amended grounds of appeal are reasonably arguable on the basis of the Summary Reasons.[19]The amended Notice of Appeal, settled by Mr Kibling of Counsel reads as follows: i) that having regard to the evidence tendered before the Employment Tribunal including but not exclusively the Appellant's six years unblemished record, the delay between the incident on the 2nd March 2000 and the decision to dismiss on the 14 th June 2000, the fact that the clocking-in machine was working erratically and was thereby unreliable, that at the disciplinary and appeal hearings the Appellant did not have the opportunity to cross-examine or question Ms Batchelor-Skeet (on whose evidence the Respondent relied), the Employment Tribunal erred in law in determining that the decision to dismiss fell within the band of reasonable responses and in so doing failed to have regard or proper regard to those factual matters identified above, ii) Alternatively, having regard in particular to the factual matters identified above, this decision that the Appellant was fairly dismissed was legally perverse."[20]Whilst recognising that there was a substantial overlap between the exercise of a judicial discretion whether or not to allow the appeal to proceed to a full hearing on the one hand, and deciding, on the other, whether or not there was any error of law in the Tribunal's approach, Miss Jane McCafferty, for Newham, nonetheless argued that it would be contrary to the interests of justice to waive the requirement for Extended Reasons in this case. In her submission, the appeal was a challenge to the text of the Tribunal's Decision and sought to argue that the Tribunal failed to take account or proper account of various matters in arriving at its decision. In the absence of Extended Reasons, it was simply impossible to identify those matters which the Tribunal took account of, and therefore it was impossible to say that the Tribunal failed to take proper account of any particular issue.[21]Miss McCafferty further argued that the appeal was brought against the Tribunal's decision that dismissal was within the band of reasonable responses. The Tribunal's reasoning on this conclusion is contained, she argued, in just two sentences in paragraph 7 of the Reasons, namely: "In short, although Miss Fenton's previous record may have been unblemished, this was a serious matter which would cause the Respondents to lose trust and confidence in her, particularly where she stuck to her story, which they did not believe, rather than admit the charge put and ask for them to be lenient. Accordingly we also conclude that the decision to dismiss fell within the band of reasonable responses to the employee's conduct which a reasonable employer might have adopted.[22]Miss McCafferty argued that, had Extended Reasons been requested timeously and provided, the Tribunal's decision would not have been reasoned "in short" but would be presumed to set out all those matters of which the Tribunal took account. In her submission, the Summary Reasons were here very summary and were insufficient as a fair basis for an appeal. In this context, she referred us to the comments of Lindsay J in paragraph 15 of Meyer v Adwest Steering Ltd (Unreported) EAT/808/98. In that case, Lindsay J pointed out that the Summary Reasons would probably be found insufficient as a fair basis for disposing of an appeal and noted that counsel for the Appellant, given the choice between the matter going forward on Summary Reasons and an extension of time under Rule 15, counsel very much preferred what was described as the "lesser of two evils", namely an extension of time under that Rule.[23]In the instant case of course, Miss Fenton had nailed her colours to the "Summary Reasons" mast, and we agree with Miss McCafferty that, in the circumstances of this case, it is not possible to do justice to either the Appellant or the Respondent on the basis of Summary Reasons alone. The critical question in this case is whether or not the decision to dismiss Miss Fenton is outside the range of decisions open to a reasonable employer in all the circumstances of the case. For that issue fairly to be decided, and for the Employment Appeal Tribunal to decide whether or not there was an error of law in the Tribunal's approach, it would be necessary to examine the Tribunal's reasoning, and its analysis of the evidence. The material before us simply does not enable that to be done. In these circumstances, we agree with Miss McCafferty that the appeal should not be allowed to go to a full hearing, but should be dismissed at the preliminary stage.[24]Nonetheless, in case we are wrong in our answer to the first question, we have decided that we should look at the appeal as though it were a full hearing. In this respect, there is, we think, only one point in the case, namely the argument that the decision was so harsh that no employer, reasonably applying its mind to the circumstances, would have ordered dismissal. In his skeleton argument, Mr Uduje, seeks to introduce a question of procedural fairness and insufficiency of investigation. We do not think, with respect to him, that these points are open to him on the Notice of Appeal, but in any event, we are not impressed by them.[25]Whilst, at first blush, it might appear that the use of the word "fraud" and "gross misconduct" are inapposite to describe an extra 30 minutes taken during a lunch break and a failure to punch the card on return, we were shown by Miss McCafferty Newham's Disciplinary Procedure and Rules. Paragraph 4 deals with the Range of Disciplinary Responses, and reads:
"4.1 The responses available to Management will be counselling or informal warning or if applicable formal disciplinary action ranging from a written warning to summary dismissal from employment dependant upon the matter under consideration. 4.2 In the majority of cases a written warning will normally be appropriate for a first offence, or whether there is a repetition of an offence following an earlier informal warning. 4.3 A final written warning will normally be appropriate: (a) Following misconduct which is so serious that the Manager could not tolerate a repetition or (b) For continued breach of conduct or failure to reach prescribed standards as detailed in any current written warnings."
[26]However, paragraph 9 which deals with Gross Misconduct reads as follows:
"9.1 certain incidents of misconduct are regarded by Newham as being so grave that they merit summary dismissal – i.e. dismissal without notice. Examples of gross misconduct include: 9.1.1 Fraud Any deliberate attempt to defraud Newham, its employees, its patients or a member of the public. Deliberate attempts to defraud Newham include any alteration of time sheets or clock cards which attempt to record hours in excess of those actually worked."
[27]It is immediately apparent from these provisions that Miss Fenton's conduct as found by the Tribunal in paragraph 7 of its Summary Reasons plainly falls within the heading of Gross Misconduct, and that dismissal was a proper option for Newham within the terms of its own disciplinary procedures. Furthermore, in paragraph 6, the Tribunal finds that Miss Fenton was aware that conduct of the type found by the Tribunal constituted gross misconduct and rendered her liable to dismissal. In these circumstances, provided that the dismissal was procedurally fair, Miss McCafferty argued that in order to succeed Miss Fenton would have to show that the Employment Tribunal reached a decision which no reasonable Tribunal could possibly reach when deciding that Newham's decision to dismiss Miss Fenton was outside the band of reasonable responses.[28]In this context, Miss McCafferty referred us to the decisions of Post Office v Foley [2000] IRLR 827 and HFC Bank v Madden [2000] IRLR 827 . In the former case, Mr Foley, a postal worker, was given permission to leave his shift early to deal with a domestic problem. However, about an hour later, he was seen in a nearby pub. His defence was that he had gone to the pub to call for a taxi, and had left some time before the alleged sighting. The Post Office rejected his explanation and decided to dismiss him. That decision was upheld following an appeal.[29]The Court of Appeal reinstated the Employment Tribunal's dismissal of Mr Foley's complaint. At [2000] IRLR 831, paragraph 50, Mummery LJ said this: "The range of reasonable responses approach does not, however, become one of perversity nor is it rendered 'unhelpful' by the fact that there may be extremes and that (as observed in Haddon at p.676, 26) 'dismissal is the ultimate sanction'. Further, that approach is not in practice required in every case. There will be cases in which there is no band or range to consider. If, for example, an employee, without good cause, deliberately sets fire to his employer's factory and it is burnt to the ground, dismissal is the only reasonable response. If an employee is dismissed for politely saying 'Good morning' to his line manager, that would be an unreasonable response. But in between those extreme cases there will be cases where there is room for reasonable disagreement among reasonable employers as to whether dismissal for the particular misconduct is a reasonable or an unreasonable response. In those cases it is helpful for the tribunal to consider 'the range of reasonable responses'.[30]In the circumstances we have described, it seems to us inevitable that the decision to dismiss Miss Fenton was within the range of reasonable responses for Newham, and accordingly that it was not possible for the Tribunal to interfere with that decision.[31]It is also apparent from the documentation which was before the Employment Tribunal, and which Miss McCafferty made available to us, that Newham carefully followed its own disciplinary procedures, and that there was no procedural irregularity or unfairness. In her skeleton argument, Miss McCafferty dealt succinctly with four additional points, namely: a) Miss Fenton's six years' unblemished record; b) the delay between the incident on 2 March 2000 and the decision to dismiss on 14 June 2000; c) the fact that the clocking-in machine was working erratically and was therefore unreliable; and d) at the disciplinary and appeal hearings Miss Fenton did not have the opportunity to cross examine or question Miss Batchelor-Skeet (on whose evidence the Respondent relied) and who had "clocked" Miss Fenton in.[32]Miss McCafferty argued that it was clear, even from the Summary Reasons, that the Tribunal took Miss Fenton's record into account. It did not appear that delay was relied upon by Miss Fenton in the Tribunal or that she was in any way prejudiced by it. It was common ground that the clocking-in machine was working erratically but there was no suggestion that the record of Miss Fenton's return at 13:26 was an inaccurate result. Natural justice did not require witnesses to be available for cross examination, since Miss Fenton knew the detail of the case against her and had been supplied with the investigation report and the witness statements.[33]In any event, as Miss McCafferty points out, Miss Batchelor-Skeet's evidence was if anything favourable to Miss Fenton, since she said there had been no prior agreement to punch Miss Fenton's card and that she had made a genuine and honest mistake in doing so.[34]In all these circumstances we are quite satisfied that if our decision not to allow this appeal to go to a full hearing on the Summary Reasons is wrong, the appeal in any event falls to be dismissed on the basis that there is no discernible error of law in the Summary Reasons given. Clearly, there can be varying views about the decision to dismiss in this case, but in our judgment it is quite impossible to say that the decision is outwith the range of decisions which a reasonable employer could take and, of course, it is not for either the Employment Tribunal or ourselves to substitute our views for those of the reasonable employer. In all these circumstances, the appeal will be dismissed.[35]Both Counsel made protective applications for permission to appeal on the basis that we were reserving our reasons and it would be inappropriate for Counsel to attend to make a further application when the decision is handed down. In the event, we refuse Miss Fenton permission to appeal. Whilst we have some sympathy for her in the sense that she was acting in person and therefore did not make an immediate application for Extended Reasons, we do not think there is any point of principle involved in this case; rather that the case involves the application of well established principles to a particular set of facts. In these circumstances, should Miss Fenton wish to take the matter further, she will need to persuade the Court of Appeal that permission to appeal should be granted.[36]For all these reasons, the appeal is dismissed and permission to appeal is refused.