DR ELIA ERIAN AZIZ v SOUTH TYNESIDE HEALTH CARE TRUST [2003] UKEAT 1175_01_2702

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 1175_01_2702Case No Appeal No. EAT/1175/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
DR ELIA ERIAN AZIZAPPELLANTSOUTH TYNESIDE HEALTH CARE TRUSTRESPONDENT
Before
Mr Justice BurtonDate 27 February 2003
[1]APPEARANCES For the Appellant MS C BOOTH QC And MR J LADDIE (of Counsel) Instructed By: Messrs Hodge Jones & Allen Solicitors 31-39 Camden Road London NW1 9LR For the Respondent MR B K HODGSON (Solicitor) Messrs Ward Hadaway Solicitors Sandgate House 102 Quayside House Newcastle upon Tyne NE1 3DX THE HONOURABLE MR JUSTICE BURTON (PRESIDENT) : This is an appeal by Dr Aziz, who was employed by the Respondent as Senior Registrar in Clinical Pharmacology at the Post-Graduate Institute for Medicine and Dentistry, attached to the Freeman Hospital in Newcastle upon Tyne, from 1996 until his dismissal in August 2000, against the unanimous decision of the Employment Tribunal at Newcastle upon Tyne in July 2001 that he was not unfairly dismissed.[2]The background facts can be summarised as follows. After qualifying in Egypt, and holding various medical positions in hospitals in Egypt and Ireland, he passed the examination in October 1993 for membership of the Royal College of Physicians (UK). On 1 January 1994 he took up a temporary 12-month appointment as a medical registrar at the Tullamore General Hospital in the Republic of Ireland. On 31 January 1994 the Appellant was suspended from that position for alleged misconduct in failing to comply with a lawful instruction from a consultant and failing to report for duty. His suspension ended with his dismissal on 11 March 1994, the validity of which the Appellant sought, and was granted, judicial review to challenge in the Irish courts. That judicial review application was dismissed by the Irish High Court in December 1994. He put in notice of appeal to the Supreme Court. Meanwhile he returned to Cairo, where he worked in private practice until he obtained an appointment as a medical registrar for 6 months in Cavan in Ireland. In June 1995 he came to England and successively held locum appointments in Barnsley and London, and then from March to October 1996 held an appointment in Cambridge. In September 1996 he submitted an application to the Respondent for the position to which he was in the event appointed. As will appear in more detail below, he omitted any mention in his detailed application form of the Tullamore General Hospital, his appointment there or its termination above referred to, or indeed the fact that his appeal against the dismissal of his application for judicial review was still pending in the Supreme Court.[3]He was successful in obtaining the appointment, which was initially for a period of 2 years 11 months and was subsequently extended to 18 November 2000. In June 2000 Dr Ford, the Senior Registrar in Clinical Pharmacology, read an article in the Irish Medical Times, describing the Appellant's dismissal from Tullamore General Hospital in 1994. This summarised the High Court decision, to which we have referred. The article, which summarised the decision of Barr J, concluded as follows:
" Mr Justice Barr said that the reality of the situation was that Dr Aziz had failed to attend for duty on the Saturday as a protest and in deliberate contravention of the instructions he had [received] from the Consultant … The Court held that the Health Board was entitled to regard Dr Aziz's conduct as being a grave dereliction of duty, which put patients at risk and exposed the hospital and the Health Board to the possibility of 'serious criticism or worse'. It held that in the circumstances of the case no grounds had been advanced from which it could reasonably be held that the penalty of dismissal was either unreasonable or unfair to Dr Aziz. "
[4]Thus for the first time the Respondent learnt about the events of January 1994. In fact, in the meanwhile, in October 1999 the Supreme Court had allowed the Appellant's appeal against Barr J's decision on the grounds, as appears from the decision of the court given by Keene J, that judicial review was concerned not with the decision but with the decision-making process, and the allowance of the appeal was founded upon the Hospital's failure to observe proper procedures in its investigation. Keene J however stated as follows:
" As the trial judge pointed out, there was evidence before the Defendants which beyond argument entitled them to reach the conclusion that, not merely had the Applicant failed to comply with a proper instruction from the relevant consultant and failed to report for duty, but that the misconduct in question was of so serious a nature and so potentially damaging in its consequences to the patients at the Hospital that it fully justified the termination of his contract of employment. The issue in the High Court and again in this Court, however, was not as to whether there was sufficient evidence to justify such a conclusion but rather as to whether fair procedures had been adopted in arriving at that conclusion …As I must again emphasise, the fact that there was ample evidence to justify the conclusion by the CEO that not merely had the misconduct been established but that it was of sufficient seriousness to warrant the Applicant's dismissal did not absolve the Defendants in a matter of this gravity from adhering scrupulously to fair procedures. "
[5]After further enquiries, disciplinary process was instituted against the Appellant, and, after a meeting between the Appellant and Dr McInerny, the Associate Postgraduate Dean, she wrote a letter dated 17 July 2000 which commenced as follows:
" It has come to my attention that when you applied for your current post you failed to declare the fact that you had been employed at the General Hospital, Tullamore, in Ireland from 1 January 1994 and that you were suspended on 31 January 1994. I enclose a copy of an article from the Irish Medical Times and a copy of the relevant page of your CV. In our view, if this is true, this constitutes gross personal misconduct and you are required to appear at a formal disciplinary hearing … "
[6]The application form and curriculum vitae submitted by the Appellant to the Respondent, of which complaint was thus made, in each case included a chronological account of the Appellant's career: (i) The curriculum vitae gave a consecutive account up to the end of 1993 (when it is to be recalled he became a Member of the Royal College). The next heading read as follows:
" POST-MEMBERSHIP EXPERIENCE 1/12/1993 – 31/12/1994 Specialist Physician Private Practice Duration 13 months Cairo, Egypt 1/1/1995 – 30/6/1995 Medical Registrar Cavan General Hospital Duration 6 months Cavan, Rep of Ireland "
As can be seen the implication is that the Appellant spent his first post-membership year in Cairo in private practice. (ii) In his application form under the heading "PREVIOUS MEDICAL APPOINTMENTS HELD (with exact dates) SINCE QUALIFICATION (in reverse chronological order)", in respect of the period prior to his move to England in June 1995 he set out as follows:
" 18 Months Substantive Registrar Experience In Ireland 1/1/95 – 30/6/95 Medical Registrar Cavan General Hosp 1/12/93 – 31/12/94 Specialist Physician Private Practice, Cairo 1/7/92 – 30/6/93 Medical Registrar Sligo General Hospital Ireland "
[7]At the end of the application form above his signature there are the following paragraphs:
" 1. I understand that appointment, if offered, will be subject to the information given on this form being correct. I also understand that appointment is subject to satisfactory medical clearance which may include a medical examination. 2. Because of the nature of the work for which you are applying, you must declare ANY previous convictions … You are not entitled to withhold information about convictions which for other purposes are 'spent' under the Provisions of the [1974] Act and, in the event of employment, any failure to disclose such convictions could result in dismissal or disciplinary action … In the light of the above, do you have any convictions to declare? YES/NO "
[8]The Appellant submitted his Statement of Case, which ended as follows: " In conclusion, I do not feel that I have acted inappropriately and did not set out to mislead the Trust in any way. I simply did not feel it was appropriate to include information about my appointment in Tullamore within my curriculum vitae at the time of my application.[9]Professor Sir Michael Rawlins, Professor of Clinical Pharmacology at the University of Newcastle, wrote to Dr McInerny by letter dated 11 August 2000 to " confirm on behalf of my colleagues and myself that had we been aware of Dr Aziz's suspension from the General Hospital, Tullamore, in January 1994, we would not have recommended his appointment as Senior Registrar ."[10]What happened at the hearing is summarised by the Tribunal as follows:
" 13. The Disciplinary Hearing was held, as arranged, by Mr A Jones, Clinical Director of the Post Graduate Institute, and also Senior Consultant in Obstetrics and Gynaecology at South Tyneside District Hospital. Mr Jones had, as a matter of standard practice, handled serious disciplinary cases since the new arrangements were established. Mr Jones was accompanied by Mr Frame (Executive Director of Organisational Development at South Tyneside Health Care NHS Trust) and Mr Wright (representing the Medical Director of the Newcastle upon Tyne Hospitals NHS Trust (the 'host' Trust)). The management case was presented by Dr McInerny and Mrs Brown-Adams. The applicant was represented by Mr D Carter, BMA. 14. Mr Carter explained the background to the case, that the applicant's suspension and dismissal at Tullamore had been held to be fatally flawed. The applicant had felt that had he referred to this part of his employment, he would not have been successful in obtaining this post (a judgment confirmed by Professor Rawlins' letter). He went on to raise a number of procedural issues. Two letters to the applicant had referred to suspension and special leave. He had only received the investigating officer's report on the day of the hearing. He submitted that the offence did not constitute gross misconduct within the terms of the Trust's disciplinary procedure. An employee could not be dismissed for a first offence unless it was gross misconduct. The applicant was not aware that he was facing dismissal. Mr Carter did not have the opportunity to cross-examine the Trust's witnesses. 15. After deliberating, Mr Jones recalled the parties and explained that he accepted some of the criticism as to the procedure, but did not feel that this had prejudiced the manner in which the applicant had been able to present his case. He believed that the applicant had falsified his application form, with the intention of deceiving the appointments panel, and thus there was a breach of trust. His decision, which was supported by his advisors, was that the applicant be dismissed with immediate effect, and the case be reported to the GMC. "
[11]Mr Frame, the Executive Director of Organisational Development, confirmed his dismissal to the Appellant by letter dated 14 August 2000:
" I refer to the Disciplinary Hearing, held on 11 August 2000, held in accordance with South Tyneside Healthcare NHS Trust Disciplinary Procedure, and conducted by Mr A J Jones, as Clinical Director for the Post Graduate Institute Directorate. Mr Jones received personnel advice from myself representing the lead employer Trust and Mr Wright who represented the Medical Director of the host Trust, and he heard the evidence provided by Dr D McInerny and Mrs Brown-Adams from the Post Graduate Institute, and from yourself and Mr D Carter from the BMA. I confirm the decision of Mr Jones, that you be dismissed with effect from 11 August 2000 on the grounds that you: Deliberately failed to declare your employment at the General Hospital, Tullamore, with the intention of deceiving the appointments panel which appointed you to your current post. This offence was considered to be an act of gross misconduct which damages the level of trust required between the employee and the employer, and additionally in this case, the host Trust. You have the right to appeal against this decision to an alternative Executive Director and/or the South Tyneside Health Care NHS Trust Board, and if you wish to exercise this right, you should do so in writing, to myself, within 21 days of the receipt of this letter, stating clearly the grounds for your appeal. "
[12]By letter dated 31 August 2000 Mr Carter, as the Appellant's representative, submitted to Mr Frame the Appellant's appeal. The letter commenced as follows:
" As Dr Aziz's representative, I am appealing on his behalf against the notice of dismissal contained in your letter to him of 14 August 2000. Grounds for the Appeal are that he did not deliberately fail to declare his employment at the General Hospital Tullamore with the intention of deceiving his employment panel, and the alleged offence is not one which should be constituted as gross misconduct. A Statement of Case will be submitted in due course to the Appeal Panel. "
Nine points were specifically summarised.[13]The appeal hearing was held on 17 November 2000 before a non-executive director of the NHS Trust, Mrs Elsy, as Chairman, and Mr Foster, Executive Director of Facilities, and once again a detailed statement of case was submitted by the Appellant. The Tribunal recounts in paragraph 19 of its decision:
" A full note was taken of the hearing, which lasted about 2½ hours … Mr Frame presented the management case, and called Mr Jones and Dr McInerny. The applicant and Mr Carter, who again represented him, were given the opportunity to ask questions of the witnesses. After the presentation of the management statement of case, the applicant read out a prepared statement, in which he submitted that the management case was inadmissible. Mrs Elsy adjourned to discuss this with Mr Foster. They were of the view that the hearing should continue. Mr Carter then outlined the applicant's case, following which the applicant read from a prepared statement. " 20. In reaching the decision, Mrs Elsy had in mind that the applicant had stated that he was employed in Cairo between 1 December 1993 and 31 December 1994. This was not true. Whatever the circumstances in Ireland, the Trust had been prevented from obtaining information or references about this period of his career. They were satisfied there had been a significant [breach of] trust which amounted to gross personal misconduct, and accordingly dismissed his appeal. He was advised to this effect by letter dated 20 November 2000. "
[14]Mrs Elsy's letter of 20 November 2000 concluded as follows:
" Having carefully considered all the evidence presented, the Panel were satisfied that there was a significant breach of trust which constituted gross personal misconduct. Therefore the actions of the disciplinary panel [was] appropriate and their decision to dismiss you from your employment as a Senior Registrar were upheld. "
[15]The Tribunal's attention was drawn to authorities including British Home Stores Ltd v Burchell [1978] IRLR 379 , and Iceland Frozen Foods Ltd v Jones [1982] IRLR 489. As to the substantive question of the reasons for dismissal and its justification, they concluded in paragraph 27 as follows:
" What cannot be disputed by the applicant is that in completing and submitting his application for the Senior Registrar post at Newcastle, he had not told the whole truth. Page 3 of the application form required him to state 'Previous medical appointments held (with exact dates)'. The entry as to 'Private Practice Cairo' was not true, and his attempt during cross-examination to explain four weeks in Ireland as an interruption which did not exceed his normal leave was pure sophistry, as was his contention that he did not think this short period as appropriate to be considered as training in relation to this particular post. The truth was, as Mr Carter conceded at the Disciplinary Hearing …, that the applicant had made an assumption that had he referred to this part of his employment, he would not have been successful in obtaining this post. That is the real point at issue, as the Applicant was well aware at the time. Moreover the situation at that time was that his dismissal had been upheld, the decision only being quashed in October 1999 … But whilst the dismissal was quashed, it is clear from a reading of the full transcript that the applicant emerges with little credit, and certainly cannot claim to have been professionally exonerated. The Trust was entitled to know about this. In relation to an important hospital position they are entitled to rely on the information given in the application form. To emphasise the point, this is made absolutely clear on page 11 where an applicant signs it. "
[16]In relation to the complaints made on the Appellant's behalf as to the procedure, with which they dealt in detail, and to which we shall return when we consider the grounds of appeal put forward by Ms Cherie Booth QC, who has appeared with Mr James Laddie before us on the Appellant's behalf, the Tribunal concluded as follows:
" 36. As we have said, the criticisms made of the procedure have not in our view identified any significant flaws, which have in any way affected the essential fairness of the procedure. Moreover the fact that the appeal was a rehearing would effectively cure any procedural defect had it been of a sufficiently serious nature to raise questions as to the fairness of the initial decision to dismiss ( Sartor v P & O European Ferries (Felixstowe) Ltd [1992] IRLR 271). "
[17]The Tribunal's conclusion in paragraph 37 is that they:
" … were satisfied that the Trust had carried out an adequate investigation, and that the disciplinary hearing was essentially in accordance with the Trust's procedure, and in accordance with the rules of natural justice; i.e. the applicant was fully aware of the case against him and had an opportunity to state his case. We do not find that the procedure was flawed as Mr Melvin [Dr Aziz's representative before them] suggested, so as to render the dismissal unfair. The decision to dismiss was within the band of reasonable responses. "
[18]Ms Booth QC formulated six grounds of appeal against the Tribunal's decision, only five of which have been pursued in the event before us; one, namely that the Appellant was not put sufficiently or at all on notice that the allegation was one of a deliberate failure to disclose with intent to mislead, was abandoned by her in the course of her submissions, and properly so. The surviving five grounds can be summarised as follows: Ground 1: The Appellant was not put sufficiently on notice that dismissal was a possibility at the disciplinary hearing. Ground 2: Mr Jones, the Clinical Director of the Postgraduate Institute, had no authority to dismiss the Appellant. Ground 3: The fact that Mr Wright, Medical Director of the host Trust to which the Appellant was assigned, stated to Mr Jones at the disciplinary hearing, unknown to the Appellant, that the host Hospital – the Freeman Hospital – was not prepared to have the Appellant return to that hospital – a fact which was disclosed by Mr Jones in the course of the appeal hearing – unfairly prejudiced the Appellant. Ground 4: Contrary to the conclusion of the Employment Tribunal in paragraph 36 of its decision, the appeal hearing was not a rehearing, and thus was not capable of curing any procedural defects in the disciplinary hearing. Ground 5: The absence of a second appeal, to which the Respondents' Disciplinary Procedure entitled the Appellant, rendered the dismissal unfair.[19]Before we turn to consider these five grounds, it is important to set out the context and the legal background:(i) The facts were not materially in dispute.(ii) Although it is to be expected that an employer will follow a contractual procedure ( Stoker v Lancashire County Council [1992] IRLR 75, Westminster City Council v Cabaj [1996] IRLR 399): (a) procedural failings do not necessarily render a dismissal unfair ( Fuller v Lloyds Bank plc [1991] IRLR 336 and Sartor above). (b) the issue is, as is now clear from Whitbread plc v Hall [2001] IRLR 275 and Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 , whether the dismissal by the employer of the applicant was within the reasonable range of responses of a reasonable employer, i.e. the test of the 'band of reasonable responses' open to an employer faced with misconduct applies to both substantive and procedural aspects of the dismissal ( Whitbread at paras 13, 16, 18 per Hale LJ and Sainsbury at para 30 per Mummery LJ).(iii) The Employment Tribunal, as is well established, acts as an industrial jury not only in relation to the reasons for dismissal but also as to the fairness of the procedure, and there is no appeal save on the basis of errors of law. Perversity by a tribunal, their reaching of a conclusion which no reasonable tribunal could reach, which was not in any event in the forefront of Ms Booth QC's arguments, is extremely difficult to establish.(iv) It is only in exceptional cases (see Kumchyk v Derby City Council [1978] ICR 1116 ) that a submission, even a submission wholly of law, not run at first instance can be permitted on appeal for the first time. This applies to ground 3 and to an extent grounds 4 and 5, as will be seen. Arnold J in Kumchyk at 1123 stated as follows:
" It is certainly not enough, in our judgment, that the point was not taken owing to a wrong, or what turns out in the light of after events to be a wrong, tactical decision by the appellant or his advocate. It would certainly not be enough that the omission was due to the lack of skill and experience on the part of the advocate. It would certainly not, we think, be enough that the omission could have been made good had the [employment] tribunal chosen to suggest the point for consideration to the appellant or his advocate …We think it is very far from the duty … of the chairman of [employment] tribunals that they should be expected to introduce into the case issues which do not figure in the presentation on the one side or the other, at any rate in normal circumstances. "
Submissions were made as to the adequacy of the Tribunal's reasons. Reference was made on the one hand to Meek v City of Birmingham District Council [1987] IRLR 250 (necessity for sufficient reasons) and on the other hand to High Table Ltd v Horst [1997] IRLR 513 (only necessary to deal with the principal important points in controversy). We are entirely satisfied that the Tribunal's decision was full, and thorough, and gave adequate reasons for its conclusions.[20]We turn then to consider each ground in turn, and it seems sensible to deal first with ground 4, the question of rehearing, because if the appeal was a rehearing, this would remove the challenge to the Tribunal's conclusions that, if there were any procedural flaws in the disciplinary hearing (to which all of grounds 1, 2 and 3 alone apply), they would have been cured.[21]Ms Booth QC points to paragraph 7 of the Respondent's "Personnel Policies and Procedures Disciplinary Procedure", which governed the Appellant's employment. This paragraph, headed " Appeal Rights ", reads as follows in material part:
" To exercise the right of appeal the employee must write to the authorised officer specified at Appendix A within 21 days of notification of disciplinary action, requesting a further meeting to review the earlier decision. The relevant authorised officer will arrange a meeting to hear the Appeal. This will normally be the next level of Authorised Officer as stated in Appendix A. Clear grounds for appeal must be stated, the Appeal Process is not intended to be a rehearing of the case. The individual will be informed of the decision at the end of the meeting and the decision will be confirmed in writing. The individual will have a second right of appeal, in cases of dismissal only, to the Trust Appeals Panel. The Appeals Panel will consist of 1 Executive Director, who should not be directly involved in the case, 1 Non-Executive Director (Chairman), and the Director of Personnel in an advisory capacity "
In paragraph 2 of her witness statement for the Employment Tribunal Mrs Elsy stated as follows:
" The appeal hearing was conducted in accordance with our laid down procedures ."
Ms Booth QC consequently submits that the appeal was not a rehearing.[22]It is plain that this was not a point that was in issue before the Employment Tribunal. We have the two skeleton arguments that were put in below. The skeleton argument of Mr Hodgson, who represented the Respondents below as he has before us, makes the point in paragraph 6 that:
" As a general point it is submitted that the Applicant being represented throughout the entire process was fully protected procedurally. None of the above, even if they are accepted to be procedural flaws, have interfered with the substance and equity of the case, particularly in view of the fact there has been a full appeal by way of re-hearing in this matter [ Sartor ]."
There is no mention of this point in the skeleton of the Appellant's representative Mr Melvin. Hence in the Employment Tribunal's Decision at (the first) paragraph 23, the Tribunal simply recites Mr Hodgson's submission that the procedural matters " had not interfered with the substance and equity of the case, particularly as there had been a full appeal by way of re-hearing " and in the conclusory paragraph 36, which we have quoted in paragraph 16 above, the Tribunal simply referred to " the fact that the appeal was a re-hearing " as having effectively cured any procedural defect.[23]It does not seem therefore that the matter was in issue below, such that to raise it now would appear to fall foul of the principle in Kumchyk referred to above. However, in any event, it is plain from perusal of the notes of the hearing that, whatever the Disciplinary Procedure paragraph 7 in fact said, the appeal hearing was a rehearing. Whatever may have been the position at the dismissal hearing, the Appellant full well knew by now that he faced dismissal, and submissions were made at the appeal hearing by way of mitigation and as to alternative sanction. As discussed above, the statement by Mr Wright to Mr Jones was mentioned in the course of his examination in chief (by Mr Frame) by Mr Jones, who was cross-examined at some length by Dr Aziz. Mr Jones and Dr McInerny both gave evidence at length, and were cross-examined, and Dr Aziz, who expanded orally on his case summary, was himself cross-questioned by Mr Frame and by the Appeals Panel. The conclusion of the Appeals Panel was that " having considered all of the evidence, the Panel [was] satisfied that there was a significant breach of trust which constituted gross personal misconduct, therefore the decision of the disciplinary panel to dismiss was upheld. " In so far as the point remains live and/or is capable of being argued on appeal, we are entirely satisfied that the appeal amounted to a rehearing sufficient to fall within the authorities of which Sartor is one example, but to which there fall to be added Whitbread and Co plc v Mills [1988] IRLR 501 and Clark v Civil Aviation Authority [1991] IRLR 412. Ground 1[24]The Tribunal recorded, in paragraph 14, that this was a complaint made by Mr Carter on the Appellant's behalf at the original dismissal hearing:
" an employee could not be dismissed for a first offence unless it was gross misconduct: the applicant was not aware he was facing dismissal "
. The same submission was made by Mr Melvin to the Employment Tribunal, as recorded in paragraph 30 of the Decision, namely that the situation at the dismissal hearing was that " the Applicant was not aware that dismissal was a possibility ". Reference was made to the contractual Disciplinary Procedure, referred to above, at paragraphs 1 and 4:
" 1. … An employee must be notified in writing of any disciplinary action being considered at least 48 hours prior to the hearing. Details of the alleged offence must be provided. 4. … Stage 4 … Notice of an interview at which dismissal is being considered must be given in writing. It must specify the reasons for the interview, remind the employee of their rights of representation and inform them that dismissal is being considered. In cases of gross misconduct an employee may be dismissed without notice. "
[25]Ms Booth QC submits that the mischief, if the Appellant did not appreciate that he was at risk of dismissal, is that he may not have concentrated on putting forward his best defence, or at any rate may not have concentrated sufficiently or at all on questions of mitigation or alternative penalty.[26]The Tribunal concluded in paragraph 30:
" As we have seen, Dr McInerny's letter of 17 July did not spell out that the Applicant was facing dismissal. "
We interpose to point out that that letter, which we have set out in paragraph 5 above, did spell out expressly that the allegation that the Appellant was facing was one of gross misconduct. " But the Disciplinary Code is clear that an employee may be dismissed for gross misconduct. The Applicant was being advised, and we do not accept that neither he nor his representative were aware that dismissal might follow in the event of the allegations being substantiated. If this was a procedural flaw, it was of the most minor nature, and did not, in our view, affect the overall fairness of the procedure. "[27]Ms Booth QC points out that the Tribunal did not specifically find that the Appellant himself was so aware, but simply that one or other of him or his representative was aware. Given however that the Appellant was accompanied and advised at the dismissal hearing by his representative Mr Carter, we conclude that that finding by the Tribunal was sufficient to address the mischief to which Ms Booth QC referred. The notes of that hearing record as follows:
" 6. [Mr Carter] had concerns about the letter of 17 July 2000 from Dr McInerny to Dr Aziz as it states that in her view the allegation constituted gross personal misconduct. Mr Carter put forward the view that this should have said that it might constitute gross personal misconduct, and indeed he wasn't actually convinced that it was gross misconduct, and he would discuss this further within his case … 9. Mr Carter pointed out that he felt a double injustice would have happened if Dr Aziz, having once been unfairly dismissed in Ireland, was penalised again. 10. Mr Carter referred to the list of offences stated as being gross misconduct within the Trust's Disciplinary Procedure. He pointed out that an employee could not be dismissed for a first offence unless it was considered to be gross misconduct. He pointed out that for gross misconduct to take place there must be an undermining of confidence between the employee and the employer, and this had not in fact happened. Dr Aziz had in fact worked for 4 years at Newcastle without any blemishes whatsoever. No disciplinary action had been taken against him, there had been no cause for concern and indeed his contract had been extended for 12 months. Indeed Dr Aziz had only 3 months of his contract left. "
This appears to us clearly to address the risk of the penalty of dismissal.[28]In any event, in agreement with the Employment Tribunal, we take the view that, notwithstanding the fact that, contrary to the terms of the Disciplinary Procedure, the risk of dismissal was not expressly spelt out in the letter of 17 July 2000, nevertheless the fact that it was spelt out that the allegation was one of gross personal misconduct, which by the express terms of the same Disciplinary Procedure means a stage 4 offence for which an employee may be dismissed, coupled with the manner in which the dismissal hearing in fact was carried out (as appears above), means that this was not a procedural defect which led to the dismissal being unfair in all the circumstances. Further, as the Tribunal also finds in paragraph 36, this procedural flaw, if flaw it was, was plainly cured by the rehearing on the appeal when all matters, including the penalty to be imposed, were and could be readdressed. We can see no error of law in any event in the Tribunal's conclusions. Ground 2[29]Under the Disciplinary Procedure (paragraph 1) the " Managers authorised to take disciplinary action are as specified at Appendix A ". So far as the Appellant was concerned, Appendix A provided that, in relation to someone of his status (Training Grade), dismissal for a stage 4 offence was to be carried out by the Medical Director. Although Mr Jones was in fact the Clinical Director of the Postgraduate Institute at which the Appellant was actually employed, he was not Medical Director of the Respondent Trust. Consequently this was submitted to be a further procedural defect, being in breach of the Appellant's entitlement to a disciplinary procedure in accordance with his contract.[30]In paragraph 13 of its Decision, the Tribunal recorded that " Mr Jones had, as a matter of standard practice, handled serious disciplinary cases since the new arrangements were established. " He was, as we set out above in paragraph 23, called as a witness at the appeal hearing and examined and cross-examined about his role in the dismissal and at the Postgraduate Institute. In answers to Mr Frame, Mr Jones is recorded as replying that he acted as disciplining officer in all cases contravening South Tyneside's procedures. In answer to the Appellant, he stated that as Clinical Director of the Postgraduate Institute he was acting on behalf of the Chief Executive of the Respondent Trust, and Mr Frame is recorded as advising the appeals panel that the Medical Director's authority to dismiss had been thus delegated to Mr Jones. The Tribunal's finding, at paragraph 33 of the Decision, addressed the submissions made to them in this regard by Mr Melvin on the Appellant's behalf: " Mr Jones, in answer to questions, said that the genesis of his position stems back to the 1995 reorganisation when the Regional Health Authorities had been abolished. It had been determined within the region that the Trust should, for the purposes of employment issues, act as 'Lead Employer', and he had, for the last six years, been undertaking this role on behalf of the Chief Executive and Medical Director. Although the Trust could point to no official minute or record of this 'delegation', we are not satisfied that the arrangements were not formally set up at the time, and we do not find any procedural flaw here.[31]Ms Booth QC points to the double negative in the Tribunal's decision as indicating that the Tribunal did not in fact make a finding that there was lawful delegation. However it seems to us quite clear that the Tribunal found as a fact that Mr Jones did in practice carry out, under authority delegated to him, all dismissals, and that there was no unfairness to the Appellant nor a material procedural flaw. In any event, once again the Tribunal found that any such flaw was 'cured' by the rehearing. All this in our judgment constituted a finding of fact by the Tribunal, but in any event, applying the overall test of reasonableness in relation to the procedure, no error of law is disclosed in the Tribunal's decision or approach. Ground 3[32]This arose, as we have indicated, because of what occurred during the appeal hearing. Mr Frame was asking questions in chief of Mr Jones, and the notes of the hearing read as follows:
" Mr Frame asked if there was any information to support the view that the trust between the host hospital and Dr Aziz had been damaged. Mr Jones advised that Mr Wright who was representing the Medical Director for the Freeman Hospital had informed him that he had stated that he was not prepared to have the Appellant return to that hospital. "
He was not asked any questions by the Appellant in relation to this, although the Appellant's cross-examination of Mr Jones commences almost immediately afterwards, and no suggestion of bad faith was made, indeed the reverse, because, in his closing submissions to the Appeals Panel, Mr Carter is recorded as accepting that the Trust had acted in good faith.[33]The complaint that is sought to be made on the Appellant's behalf is that, this statement having been made by Mr Wright to Mr Jones prior to the dismissal but not disclosed at the time, the Appellant did not know of it and had no chance to explore or question it. We are told by Mr Hodgson that his recollection is that Mr Wright's statement was put to Mr Jones in cross-examination at the Tribunal and that he was questioned about it, and answered that he had discounted it in making his decision. Whether that is right or not, it does appear that, for whatever reason, the point was not pursued or made anything of at the Tribunal. As we have indicated, we have the skeleton arguments that were used below. Six bullet points were made by Mr Melvin on behalf of the Appellant by way of alleged fundamental procedural flaws (two of them being now pursued before us, as grounds 1 and 2), and those six points surface in the Tribunal's Decision, consecutively in paragraphs 30 to 35 inclusive. We are satisfied that, whatever may be capable of being made of the point, it falls plainly within the Kumchyk principle, and having not been run as a point before the Tribunal, and not dealt with by the Tribunal in its Decision, it cannot now be raised on appeal. Ground 5[34]The last point arises by virtue of the express terms of paragraph 7 of the Disciplinary Procedure, which we have quoted above. According to that contractual procedure, there is to be a second right of appeal. After the dismissal hearing there is provision for an appeal which " will normally be [to] the next level of Authorised Officer as stated in Appendix A ", and then there is to be a " second right of appeal, in cases of dismissal only to the Trust Appeals Panel ". In this case there was an appeal to the Trust Appeals Panel, chaired by Mrs Elsy, but there was no intermediate appeal.[35]This point also was not dealt with by the Tribunal in its Decision, and it does not appear to have been raised specifically by Mr Melvin in his submissions on the Appellant's behalf, not least by reference to the six bullet points in his skeleton argument to which we have referred. However: (i) in his witness statement, put in before the Employment Tribunal, at paragraph 14 the Appellant said the following which, albeit it is stated in narrative form, presumably was intended to carry with it an implicit complaint:
" I only had one right of appeal, which went to the Trust Appeals Panel, which comprised of a non-Executive Director, Mrs Elsy, and Mr Foster, Executive Director of Facilities. " (ii) no doubt for that reason, Mr Hodgson on the Respondent's behalf included the fact that there was only one level of appeal as a matter which he understood to be the subject of complaint by the Appellant, and he answered it by saying "
The Applicant appealed to the ultimate level ".[36]It may be said therefore not strictly to fall within the Kumchyk principle, since, albeit that it does not appear that it was taken up by the Appellant's representative as a positive complaint in submissions, it was at least pointed out and sought to be answered by the Respondent's representative. That answer was that in fact the Appellant did have an appeal (by way of rehearing) to the ultimate appeal, and to a body which was composed of the same people who were intended to come fresh to the question, just as they would have done if there had been not one but two previous hearings. Mr Hodgson points out how it appears to have come about that there was only the one appeal, at any rate on the documents before us:(i) According to the notes of the dismissal hearing, at the end Mr Frame " pointed out to Dr Aziz his right of appeal indicating the Trust Board should be made in writing ".(ii) In Mr Frame's confirmatory letter of 14 August 2000 he concluded: " You have the right to appeal against this decision to an alternative Executive Director and/or the South Tyneside Health Care NHS Trust Board, and if you wish to exercise this right you should do so in writing, to myself, within 21 days of the receipt of this letter, stating clearly the grounds for your appeal ."(iii) Pursuant to that, Mr Carter wrote the letter of 31 August 2000, to which we have referred, appealing on his behalf, setting out the grounds for the appeal in general terms and stating that " a Statement of Case will be submitted in due course to the Appeal Panel ".[37]Given that, by reference to paragraph 7 of the Disciplinary Procedure, this would appear to indicate a decision to appeal to the "Appeals Panel" referred to, rather than have an appeal to an " alternative Executive Director ", it may be said that it was thus that the Appellant made, through Mr Carter, an election – for the use by Mr Frame of the words ' and/or " in the conclusory paragraph in his letter of 14 August 2000 referred to above can be said clearly to show that there can either be two appeals or one.[38]But the concept of election perhaps should have no more of a formalistic role in the issues underlying unfair dismissal than should the role of strict compliance with contractual procedure. The question is whether there was overall fairness, and whether the employer acted within the reasonable range of responses. Although the point is not specifically addressed by the Tribunal, hardly surprisingly given its minimal role, as would appear, in the argument before it, we are satisfied that the overall conclusions of the Tribunal in paragraphs 36 and 37 of its Decision more than cover this question also, and that no error of law in its approach is disclosed either by reference to this ground or at all.[39]In those circumstances this appeal is dismissed.