JANET MATTHEWS v KINGSTON DISTRICT & COMMUNITY NHS TRUST [2002] UKEAT 53_01_1104

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2002] UKEAT 53_01_1104Case No Appeal No. EAT/53/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
JANET MATTHEWSAPPELLANTKINGSTON DISTRICT & COMMUNITY NHS TRUSTRESPONDENT
Before
HIS HOUNOUR JUDGE J R REID QCMR D A C LAMBERTMISS D WHITTINGHAMDate 11 April 2002
[1]APPEARANCES For the Appellant MR R MOORE (of Counsel) Instructed by: Messrs Baron Grey 441 Richmond Road East Twickenham Middlesex TW1 2EF For the Respondents MR J HODKINS (Solicitor) Instructed by: Messrs Bevan Ashford Solicitors 35 Colston Avenue Bristol BS1 4TT JUDGE J R REID QC: This is an appeal from the decision of an Employment Tribunal held at London (South) between 9 and 12 October 2000. The decision was entered in the register and copies sent to the parties on 14 November 2000. By that decision, the Tribunal unanimously held that the Applicant, the Appellant here, Mrs Matthews had been unfairly dismissed and unanimously held that her claim for wrongful dismissal failed and was dismissed.[2]The appeal with which we have to deal has two limbs to it. The first is an appeal against the decision to dismiss the wrongful dismissal claim and the second relates to the basis of compensation to be awarded under the unfair dismissal claim.[3]The facts in outline are these: the Appellant was employed as a Senior Nurse/Service Manager at Woodruff House in Surbiton. She was qualified to deal with patients with learning disabilities and she had many years experience as a nurse. Her employment at Woodroff House began on 8 September 1986. It was determined on 30 March 1999, when she was dismissed for gross misconduct. That dismissal followed a disciplinary hearing which took place between 16 and 24 March 1999, the decision being announced on 30 March. From that decision she appealed unsuccessfully. The appeal was heard on 9 and 11 June 1999. The Originating Application was issued on 20 June 1999 and the hearing before the Employment Tribunal took place between 9 and 12 October 2000.[4]The employment which she held with, until the events with which the Employment Tribunal was concerned, an un-blemished record was senior position as a nurse involving, managerial duties and her duties were spread amongst several of the Respondent's sites broadly encompassing the care of disabled patients. A number of allegations were made against her by a subordinate on 28 November 1998 and she was suspended from duty at that time. Notice of five of the allegations made against her was given to her on 3 December and as the investigation into her suspension continued and other allegations were made, the number of allegations being made up to ten. On 29 January 1999 at the original disciplinary hearing, some, but not all, of the allegations made were found to be proved and on the appeal against her dismissal the appeal panel upheld five of the six allegations which the disciplinary hearing had found to be proved against her. The appeal panel, as I have already said, confirmed the decision to dismiss on the grounds of gross misconduct.[5]The Employment Tribunal, when entertaining the claim of wrongful dismissal dealt with it very briefly. It dealt with it at paragraph 9 of their decision in these terms:
"A claim for wrongful dismissal is a claim by the Applicant that the Respondent has committed a repudiatory breach of contract against the Applicant. The onus is on the Applicant to establish the breach. The Applicant chose not to give evidence before the Tribunal and no particular breach was highlighted by her representative in his cross-examination of the Respondent's witnesses. The Tribunal could not therefore find that any breach by the Respondent had been committed and this claim fails and is dismissed."
The reasoning of the Tribunal, as expressed in that paragraph, is not supported by the Respondent. The position in this case, was that the Applicant had been dismissed summarily. The question for the Tribunal was whether or not that summary dismissal had been justified. The Tribunal therefore approached the matter, it appears, on the wrong basis. However, it was argued on behalf of the Respondent, and we accept the argument, that when one looks at the findings of fact made in the body of the Tribunal's decision, it is clear that the Employment Tribunal found that there had been disciplinary offences committed by the Applicant, the Appellant here, one at least of which justified her summary dismissal. The particular incident which justified the summary dismissal was an incident on 18 October 1998. The allegation made against her and upheld by the disciplinary panel was that she had left her shift early on that day thus placing the safe keeping of staff and patients at risk. The Tribunal said of this at paragraphs 16.8 of their decision:
"The incident was said to have occurred on 18 October 1998, and is linked to another allegation discussed above in which the Applicant was accused of claiming excess pay for a shift only partly worked. The disciplinary panel relied on the evidence of two witnesses who both said that the Applicant left early on that day, although the Applicant denied this. The Respondent's evidence was supplemented by the drug record for that evening which showed that the evening drug administration had been carried out by Pratima Rajah, a qualified nurse. In the absence of an explanation from the Applicant the only credible explanation for Pratima Rajah doing the drug round was that there was no other qualified nurse on duty at that time, giving credence to the allegation that the Applicant had indeed left early on that day."
[6]It is common ground that the patients for whose care the Applicant was responsible were difficult and could be violent. A nurse of the Applicant's experience and seniority should have understood the dangers of leaving the unit in the hands of a relatively new junior and unqualified member of staff, which would have been the consequence of her actions in leaving her shift early. Pratima Rajah was on duty in a neighbouring unit, so was not on site except to administer drugs.[7]It is said that there was in fact an explanation proffered, which the Tribunal appears to have overlooked. That explanation amounted to this: that from time to time the Appellant would ask for other members of staff to come round to be with her when she administered drugs. It is clear that the explanation was rejected by the disciplinary Tribunal and equally that it must have been overlooked or treated as being incredible by the Employment Tribunal. They in particular referred the evidence of two witnesses, one of whom of course was Pratima Rajah that the Applicant had left early on that day although she denied it.[8]In our judgment the unfortunate expression "in the absence of an explanation from the Applicant" does not detract from the overall finding of fact in paragraph 16.8. The Tribunal reverted to this matter in paragraph 20 when they said this about this incident:
"Secondly, and of far more gravity is the incident on 18 October 1998 when, on the evidence presented to the disciplinary panel it is clear that the Applicant left her shift early leaving the charge of seriously challenged and potentially violent patients in the care of an inexperienced and unqualified member of staff. This behaviour is unacceptable from a nurse of the Applicant's experience and seniority and despite her previously impeccable record such behaviour would justify the panel's decision to impose the sanction of summary dismissal on the Applicant."
As we read it, the Tribunal is there making its own findings as it is entitled to do as to the facts of what occurred on 18 October. They were having to do so on hearsay evidence, that is to say the evidence presented to the disciplinary hearing because before the Employment Tribunal those who gave evidence on behalf of the employer were Chief Executive and Chairman being respectively the Chairman of the disciplinary hearing and the Chairman of the appeal hearing. No evidence was called before the Employment Tribunal from the Appellant, Mrs Matthews. In those circumstances the Tribunal acted as they were entitled to on the hearsay evidence before them, namely the records of the hearing before the disciplinary tribunal and they were entitled to come to the conclusion which they did, that the Applicant had left her shift early and that that conduct was conduct which justified her immediate dismissal. In these circumstances, although the reasoning by which the Tribunal reached its decision is flawed, in our judgment the decision was a correct decision and that ground of appeal fails.[9]So far as the second ground of appeal is concerned, this relates to the finding that: "If correct procedures had been followed the Applicant's dismissal would probably have been postponed for a period not exceeding three months," with the consequent determination of compensation for unfair dismissal based on the premise, that but for the unfair procedures which the Tribunal held in followed at the disciplinary hearings, the Appellant would have been dismissed not more than three months after the date on which she was in fact dismissed. The complaint made about that decision is the findings of the Tribunal showed that the disciplinary procedures were substantively flawed, rather than merely procedurally flawed and it was suggested in those circumstances, it could not be said with any certainty what would have happened if proper procedure had been followed and what would have been the eventual outcome so far as the Appellant's continued employment was concerned.[10]The complaints that were made about that were helpfully summarised in the Appellant's skeleton argument at paragraph 14 and they pick up the points made in paragraph 19 of the Tribunal's decision. The summarising of this reasonably brief form, the first complaint that the Tribunal had about the disciplinary proceedings, was that the Applicant was not informed of the allegations against her until "shortly before the disciplinary hearing."[11]There has been no cross-notice seeking to challenge that finding of fact, though his perhaps a slightly surprising one given that the employee's own ET1 indicates that she was informed of five of the charges early in December, that is to say only a few days after her suspension, and the remainder by 29 January, that is to say almost two months before the disciplinary hearing. Secondly, that the hearing was flawed by Mr Little's presence as Chairman of the panel in circumstances where his own evidence was taken into account in the consideration of the charges against the Applicant. Mr Little was Chairman and also the Chief Executive of the Respondent. His evidential role related to one matter where he had some second hand evidence as to a telephone call made after the Appellant's suspension. It did not impinge on the substantive count relating to October 18 th or indeed on other counts relating to the claimant claiming for payment for hours which she had not worked.[12]The third matter which was a matter of criticism was that the panel failed to investigate what is described as missing and inconsistent evidence that was presented to it. So far as the disciplinary panel is concerned of course, its job was to decide matters not to investigate, though what the Employment Tribunal thought, was that the panel should have adjourned matters for further investigation in relation to certain of the matters which were before it.[13]Fourthly, it was said that the panel failed to consider whether the evidence of one of the employers witnesses might have been prejudiced against the Appellant in view of his suspension from duty by her. That again, somewhat surprisingly was not the subject of any cross-appeal because it is clear that the panel had to address his evidence and no doubt took into account any possible prejudice he might have had against the Appellant when giving such weight they thought appropriate to his evidence.[14]Fifthly, it was said that they failed to investigate an allegation of sexual harassment made by the Applicant against the person who laid the initial complaint against her. That again would not have been the panel's job. At most they might have been expected to adjourn the matter for some further investigation and again the eventual outcome of that further investigation could not have affected the decision in relation to the crucial matter of 18 October. Lastly it is said that the panel based many of their conclusions on premises which could not be supported by the evidence that was presented to them. That led the Employment Tribunal to rejecting a number of the allegations which the Disciplinary Tribunal and the Appeal Panel had held to be substantiated.[15]Taking those together it is said that they show more that mere procedural defects and that it could not be said that had matters been done correctly, the inevitable result would have been the dismissal of the Applicant at any particular time. In our view, that is an incorrect analysis. The Employment Tribunal discounted the matters which were the subject of criticism and took the view, which in our judgment they were entitled to, that if all those matters had been put right, the inevitable consequence would have been the same, namely a dismissal of the Appellant for gross misconduct.[16]The question that exercised the Tribunal's mind, and in our view was rightly so, was how long that would have taken. The Tribunal, as I have said, took the view that it estimated the steps would have caused a delay of a further three months in the ultimate dismissal and appeal process. What then was the consequence of that? The Tribunal fixed on the three month figure and compensation was then assessed on that basis. The starting point so far as authority to which we were referred was concerned was a case of King v. Eaton (1998) IRLR 686 and there in paragraph 19, Lord Prosser, giving the judgment of the Court of Session Inner House, Second Division, said at the end of the paragraph:
"It seems to us the matter will be one of impression and judgment so the Tribunal will have to decide whether the unfair departure from what should have happened was of a kind which makes it possible to say with more or less confidence that the failure made no difference or whether the failure was such that one simply cannot sensible reconstruct the world as it might have been, doesn't seem to us that there is anything very wrong in using the words, "substantive in connection with the status situation"
[17]The position here was that the Tribunal, in our judgment in a way which they were perfectly entitled to, took the view that they could reconstruct the world as it might have been if all that should have been done was done. One then moves on to Constantine v. Mc Gregor , a decision of the Employment Appeal Tribunal in which Mr Justice Lindsay gave the judgment. At paragraph 31 he said:
"As we see it, the question for the Employment Tribunal in our case in the light of language used in King and using some of that language becomes this: Did the Employment Tribunal in our case have evidence laid before it upon which an Employment Tribunal properly instructing itself and applying the appropriate standard of proof could have concluded that the unfair departure from what should have happened was of a kind which made it possible to say with some confidence that the employee would have in any event been dismissed after a further two weeks."
Paragraph 34 he said:
"If the proper question for the Tribunal was as we have described it, it is hard to see as from the Chairman's Notes, how we could answer it as we just do not know what the evidence was, the Tribunal plainly felt able to conclude as a matter of impression and judgment on a balance of probabilities to use the phrase from King v. Eaton Ltd was that they could fairly conclude that the employee would have been dismissed in 14 days."
Going on again to paragraph 41, the matter after that paragraph he said:
"The Tribunal on consideration, if it cannot be certain what would have happened and when it would have happened had all been properly attended to, then has to switch to dealing with compensation and evaluation of chance. Once it done that, it moves away from the balance of probabilities."
[18]The last of the cases on this point referred to us was O'Donahue v. Redcar and Cleveland Borough Council , a decision from the Court of Appeal, in which Lord Justice Potter gave the judgment of the court which he described as being largely prepared by Mr Justice Bennett. At paragraph 50 he said this:
"On the other hand in a case like the present, where the question is or maybe whether there is a chance of the employee being fairly dismissed in the future, the percentage chance is likely to vary according to the timescale under consideration. Thus there may be a 20% chance of dismissal in 6 months but a 30% chance in a year. It is not easy to resolve these conclusions in some overall percentage by which the normal amount of compensation per Lord Justice Browne Wilkinson should be reduced. Indeed in such circumstances it may not be possible to identify an overall percentage risk. All will depend on the facts of a particular case. The crucial factor is that what is being assessed is a chance. It seems to us to follow that it cannot be said to refuse to assess on a percentage risk is necessarily wrong in principle, especially in a case of this kind where the Industrial Tribunal was considering whether the Appellant would or might be fairly dismissed within or after a given period. Eventual approach to the Tribunal as we read their reasons was to consider the chance of the Appellant being fairly dismissed by 6 months from the date of her unfair dismissal, if it appears they concluded there was 100% chance of her being dismissed within 6 months, we can see nothing wrong in principal with the exercise they performed. In this regard the three crucial sentences in the Industrial Tribunal's findings are; they gave rise to the question of whether in due course and irrespective of the Applicant's previous complaint to the Tribunal, they would have led to her dismissal in any event. We considered but rejected an assessment of the percentage risk. We came to the conclusion at some point that such a dismissal would have taken place . 53. We read these sentences in their context as meaning that the Industrial Tribunal was satisfied that the chances of a possible fair dismissal taking place after an actual unfair dismissal were 100% i.e. certain by a particular date. That seems to us a legitimate approach. Where the Appellant was in the estimation of the Industrial Tribunal on an inevitable course towards dismissal, it was legitimate to avoid the complicated problems some sliding scale percentage estimate for a chance of dismissal as time progressed by assessing a safe date by which the Tribunal was certain, if it felt able to be certain that dismissal would have taken place and making an award of full compensation in respect of a period prior there to ignoring any question of interim percentages. It was urged upon us that given the use of the word "probably" and "would" in the Employment Tribunal's judgment, they were not entitled to fix a three month period as the dismissal period. It was said that the O'Donahue case meant that before an Employment Tribunal could adopt that method of awarding compensation. It had to be certain that dismissal would have taken place by that date."
[19]We do not read the judgment in that sense. What has to be done in all of these cases is to assess fair and equitable compensation. If the Tribunal cannot be certain what would have happened and when it would have happened, then it has to evaluate a chance and move away from the balance of probabilities. In evaluating a chance, it seems to us that there is nothing wrong as a matter of law in picking a particular period of time as being the period of time applicable for the assessment of damages as being the appropriate date to fix on for the assessment of the chance. This would be in our judgment as fair and a great deal more readily intelligible way of doing it than picking a variety of percentages for a variety of periods. That in our judgment would lead only to confusion, it would lead to a lack of certainty and it would lead also to a lack of fairness. In those circumstances we take the view that the decision by the Tribunal to fix compensation by reference to a three month period was a decision to which the Tribunal was entitled to come and therefore that ground of appeal also fails.[20]There is one further matter which I should have mentioned in relation to the first of the two points on the appeal. A point was taken on behalf of the Respondents that given the amount of compensation which had been paid following a remedy hearing to the Appellant, no further compensation could be paid for wrongful dismissal and that for that reason the Employment Appeal Tribunal had no jurisdiction to remit the case to the Employment Tribunal on behalf of the Appellant. It was accepted that there could be no further monetary claim, beyond perhaps nominal damages. But it was submitted that there was an absolute right to have that claim remitted for determination simply as a matter of declaration and the award if appropriate of nominal damages by the Tribunal. That matter depends on probably a rather deeper analysis of the history of the jurisdiction of the Employment Tribunal and for that matter the Employment Appeal Tribunal and of the legislation under which they operate than has taken place in this case and since there is no need for us to venture review on it in the light of the decision which we have reached on the two substantive points, we prefer to express no view about it. For those reasons the appeal will be dismissed.