MISS MARY WHITEHEAD v THE ROBERTSON PARTNERSHIP [2004] UKEAT 0378_03_1708

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2004] UKEAT 0378_03_1708Case No Appeal No. UKEAT/0378/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MISS MARY WHITEHEADAPPELLANTTHE ROBERTSON PARTNERSHIPRESPONDENT
Before
His Honour Judge J R ReidDate 17 August 2004
[1]APPEARANCES For the Appellant MR H CAMERON-BLACKIE (Solicitor) Messrs Barlow Solicitors 55/56 Quarry Street Guildford Surrey GU1 3UE For the Respondent MR MARTYN WEST (Advocacy System Manager) Messrs Carrington & Associates Solicitors 1 New Square Lincoln's Inn London WC2A 3SA SUMMARY Unfair Dismissal Unfair dismissal – holding that if proper disciplinary process 50% chance of dismissal. Did ET give adequate reasons for conclusion? HIS HONOUR JUDGE J R REID QC This is another hearing of a matter which has already been before the Employment Appeal Tribunal on two previous occasions. It is an appeal from the decision of an Employment Tribunal held at Reading which has determined that the Appellant was unfairly dismissed and made a compensatory award of £20,995.21 and a basic award of £1380. The compensatory award was reduced because the Tribunal formed the view that if there had been a fair disciplinary hearing the prospect of her retaining her employment was 50%. It is against that reduction that the Appellant appeals.[2]The involved procedural history of the case is as follows: the Appellant was constructively dismissed on 12 November 1999. By a decision sent to the parties on 11 July 2000 the Tribunal held that the dismissal was unfair. A remedies hearing then followed in October 2000 and following a decision meeting on 19 December 2000 a decision was promulgated on 11 January 2001 awarding the Appellant £14,805.23 as a compensatory award and £1380 as a basic award, the compensatory award being reduced by 50%. On 22 July 2002 the EAT (Chairman Judge Clark) remitted the case to the same Tribunal holding that the Tribunal's decision was not " Meek compliant". Judge Clark said:
"We think the Employment Tribunal's failure, in their reasons, to deal with the fairness of the potential dismissal following a proper investigation causes these reasons to fall short of the degree of reasoning required…."
Following a further hearing on 24 February 2003 by a decision promulgated on 7 March 2003 the Tribunal adhered to its 50% reduction but adjusted the amount of the award to take account of a notional three month notice period and (following a concession on behalf of the Respondent) her loss of salary and pension contributions for the period 17 to 31 January 2000. This produced the compensatory award the subject of this appeal, £20,995.21. Against that decision the Appellant appealed and on 23 June 2003 on a preliminary hearing the Employment Appeal Tribunal (chairman the President) remitted the case to the Employment Tribunal pursuant to the decision of the Court of Appeal in English v Emery Reimbold [2002] 1 WLR 2409 to enable the Tribunal to spell out their reasons for concluding that there was a 50% chance that the employer would on the balance of probabilities have had a reasonable belief that sufficient misconduct had been made out against the Appellant to justify dismissal. The Tribunal then reviewed its decision and amplified its reasons by a document promulgated on 22 December 2003. The Appellant is still dissatisfied with the decision and the reasons and so the matter came back to this division of the EAT for the determination of her appeal.[3]The submission on behalf of the Appellant in brief was that the decision (even as amplified by the review decision of 22 December 2003) was still not Meek compliant, that as a matter of law the reduction was unsafe and that the EAT should substitute an award, no reduction being made. In the alternative the Appellant submitted that the decision was perverse. On behalf of the Respondent it was submitted that an Employment Tribunal as an industrial jury is to take a broad brush approach and that the decision to which it came is sufficiently explained.[4]The facts are as follows.[5]The Robertson Group of Nursing Homes operates three nursing homes employing roughly 150 staff ranging from domestic assistants, care assistants and kitchen staff to nursing staff of varying degrees of seniority. Each of the nursing homes was under the overall management of a matron and the three matrons reported to the Appellant who was the Operational Director. The Appellant who had enormous experience in the nursing profession was responsible for the overall running of the nursing homes save for matters of finance and maintenance which remained under the control of Dr Colville. Matters relating to payroll and pay administration were dealt with by the Respondent's accountant Mr Young.[6]In early autumn the Appellant perceived that a potential threat to her position which appeared to her to undermine her authority. She was suffering from a degree of stress and her thoughts may not have been necessarily as clear as they might otherwise have been. On 29 October 1999 she drafted a letter to her employers in which she expressed her intention of resigning. That draft letter was never sent to the Respondent and there is no suggestion that it amounted to a resignation at that stage. On 4 November, the Appellant telephoned Mr Young's Personal Assistant, Mrs Gammage and had a long conversation with her during which she expressed her concern that Dr Colville might have lost confidence in her and her ability to manage the homes. She mentioned the possibility that she might resign. Sensibly, Mrs Gammage told her not to do anything rash but to consider the matter and speak to Mr Young and/or Dr Colville over the next few days. On the following day, 5 November, the Appellant spoke to Mr Young. She again expressed her misgivings as to her situation and said that she was thinking that she might have to resign. She was concerned that Dr Colville had lost confidence in her. Dr Colville had certainly not said anything to her, either directly or indirectly, to the effect that he had, or might have, lost confidence in her. Mr Young indicated that the Appellant should take no immediate action but that he would speak to Dr Colville and get back to her.[7]Dr Colville was contacted by the matrons of the homes at Ascot and Godalming. They told him that they had a number of complaints about the Appellant that they wished to bring forward and a meeting was arranged for the 10 November so that they might discuss the matter with Dr Colville and Mr Young. Up to that stage, Dr Colville had been unaware that there were any misgivings about the Appellant or her management style. A long list of complaints was presented to Dr Colville and Mr Young. The Appellant was not shown the list at that time. At the time they were raised the complaints were not investigated by the Respondent. Mr Young arranged to see the Appellant on the morning of Friday, 12 November 1999. His purpose in going back to her was to tell her whether or not there was any lack of confidence on the part of Dr Colville in the her job performance.[8]At that meeting Mr Young told her that Dr Colville had lost confidence in her. He told her, in terms, that if she resigned that would be accepted but, if she did not, there would have to be an investigation. The Appellant was distressed and indicated that she would leave. She immediately left the office, returned to her own office, collected her personal possessions and left. Thereafter she did not return to work The Respondent packed up the remainder of her belongings that day and had them forwarded to Mr Young who had arranged to see the Appellant a few days later. She saw Mr Young on 16 November, recovered her personal possessions and complained that she felt that she had been sacked. A further conversation took place on 17 November during which the Appellant was made the offer of payment of three months' gross salary in lieu of notice together with 2.5 weeks' holiday pay and three months' pension contribution. Eventually an arrangement was reached that the Appellant would submit a letter of resignation on agreement of the financial terms and agreement as to the wording of a reference. After some redrafting, that reference was finally agreed in early January and the Appellant's letter of resignation was sent to the Respondent on or about 7 January 2000. She later received three months pay in lieu of notice.[9]After the initial hearing at which the Tribunal held that the Appellant had been unfairly, constructively dismissed there was the remedies hearing spread over three days in October 2000. The Tribunal heard evidence from Dr Colville, five members of staff and the Appellant. The Tribunal made findings on three specific complaints made against the Appellant, in one case (an allegation of assault on a patient), "the Sheila allegation", finding that the Respondent had "not proved, on the balance of probabilities, that this incident occurred in the way alleged against the [Appellant]", in one case (relating to the administration of a contraceptive injection to a member of staff) describing her offer to administer the injection as "unwise" but holding that it "could not see any substantial criticism of the [Appellant] in relation to this aspect of the matter", and in one case (relating to a complaint by the Appellant which led to the unjustified suspension of another member of staff), "the Aveyard allegation", accepting the explanation that the accusation had been a genuine error and that nothing adverse was established against her in that respect. The Tribunal went on to say that it was satisfied that it could decide the case without reaching conclusions of fact in relation to each and every one of the other allegations. It then concluded that had there been a fair disciplinary procedure the Appellant had a prospect of retaining her job but equally there was a risk that she might be dismissed. It assessed the risk at 50 per cent and so reduced the compensation by that proportion. It dismissed the suggestion that it was just and equitable to reduce the compensation further because of the Appellant's conduct. It was the brevity of the reasoning leading to these conclusions which led the Employment Appeal Tribunal to the conclusion that the decision was not Meek compliant and to remit the case to the same Tribunal.[10]After further argument, but no further evidence, the Tribunal maintained its earlier decision. The essence of its decision was as follows:
"9. It seems to us that there are three possible outcomes to a disciplinary procedure. The worst scenario from the applicant's point of view would have been summary dismissal. The Sheila incident would have been sufficient to justify summary dismissal on its own in our judgment. A combination or more other allegations, if proven, might have led to me same outcome depending on the view Dr Colville took of their seriousness. The second possible outcome would have been dismissal with notice. The applicant's contract of employment was subject to termination on three month's notice. The third possibility would have been that the applicant would not have been dismissed at all. That imports the possibility that she might have been completely exonerated by Dr Colville on all the allegations against her or alternatively found to be at fault on perhaps only a small number of minor allegations. In those circumstances there might well have been either no sanction at all or a sanction falling short of dismissal such as a warning. We are reminded that in the course of the evidence it emerged that the applicant was under some degree of pressure. She had some health problems which had recently developed. Two of her senior managers were on or about to go on maternity leave and there had recently been a fire at one of the nursing homes run by the respondent. She might very well have asked Dr Colville to take those matters into account by way of mitigation as explaining behaviour which might otherwise have been out of character. 10. In the light of those various permutations we see no reason to depart from our basic premise that the applicant's prospect of retaining her employment would have been 50%. We think that if the applicant had been dismissed after a fair disciplinary hearing, the probability is that she would have been dismissed for a reason relating to conduct rather than capability or some other substantial reason involving loss of confidence. We do not find it possible to go into any more detail as to the precise nature of her conduct in view of the very large number of allegations and the permutations that might be drawn from them. Had the applicant been dismissed, would that dismissal have been with or without notice? It is undeniable that there were allegations against the applicant which, if proved, could have led and probably would have led to her dismissal without notice but equally there are allegations which are unlikely to have led to that conclusion. Our analysis of that issue is that we think that, had the applicant been dismissed, the probability is that she would have been dismissed on notice and would have received three months' pay. To that extent we will reflect that finding in our award of compensation."
[11]This decision was expanded (at the invitation of the Employment Appeal Tribunal) after the Tribunal had conducted a review. The central passage of the review decision was expressed in these terms:
"The applicant would have faced 37 allegations of varying degrees of seriousness, disregarding the allegation of an injection given to Debbie Dolby. There were two serious allegations, namely those involving "
Sheila" and Roger Aveyard. In our view, either of those matters alone would have lead to the applicant's summary dismissal if Dr Colville believed them to have been proved. Such a summary dismissal would probably have been fair. We did not find either of those matters proved on the balance of probabilities but that is not the test. Would Dr Colville have formed the belief that the applicant was guilty of either or both? He might but we do not think we could go further than that. The matter does not end there, however, in that there were still a large number of other allegations which Dr Colville would have had to consider. They were all of varying, but lesser, degrees of seriousness compared to the "Sheila" and "Aveyard" allegations. Dr Colville might have concluded that the applicant was guilty of some or all or any combination of them. If he concluded she was guilty of a few relatively minor ones we do not think he would have dismissed Miss Whitehead. Had he done so we think his reason would probably have fallen into the category of "conduct" but then there would have been a probability that dismissal for a few minor matters would have been held to be unfair as being outside the range of penalties a reasonable employer might have imposed. On the other hand, had he found many or all of the lesser allegations proved to his satisfaction he might have taken the view that the cumulative effect was sufficient to justify dismissal. He would have had to form a view on the basis of the matters then before him and we find it impossible to specify any particular number or combination of matters that might have lead him to that conclusion. Equally, we do not find it possible to say with any certainty whether a Tribunal would hold that dismissal in those circumstances would have been fair or not. It would depend, in our view, on the precise combination of allegations he felt had been proved. We also bear in mind that Dr Colville might have decided that particular allegations were proved in part only. In our view, it would be an unrealistic exercise for the Tribunal to embark on a detailed examination, allegation by allegation of the evidence, in support and against, with the object of deciding which ones Dr Colville would have decided were made out and which ones were not. We have reached the conclusion that none were made out but Dr Colville is entitled to have formed his own views. The matters would have been much fresher in. the minds of the witnesses then than when we heard them and his views might or might not have accorded with ours either wholly or in part. Had Dr Colville found the applicant to have been guilty of either of the "Sheila" or "Aveyard" allegations she would, in my opinion, have been summarily dismissed regardless of his views on any of the lesser matters arid such dismissal would have been fair in all probability. We have borne in mind that if a Tribunal had had to decide whether a dismissal has been fair it would have had to keep the " Burchell " principles in mind. It would have ask whether Dr Colville had a genuine belief that the applicant was guilty of any particular allegation, whether there was sufficient evidence to justify that belief even, though the Tribunal might, themselves have taken a different view, and whether there had been as much investigation as was reasonable in the circumstances. In our opinion, if there had been a dismissal, the reason would probably have been for "conduct" rather than any other reason such as "some other substantial reason" i.e. loss of confidence. We know that is what the applicant was told and which lead to her resignation but the allegations sound in conduct and we think it more likely than not that that would have been Dr Colville's reason. Further, we think there is a 50% chance that the applicant would have been dismissed with notice, whether on garden leave or not. Miss Whitehead was a very senior employee and we do not think she would have been dismissed without notice unless Dr Colville had been satisfied that she was guilty of at least one of the two serious allegations."[12]On behalf of the Appellant it was submitted that even at this stage the Tribunal has failed to produce a decision which is Meek compliant. The attack mounted on the decision was split into two sections: first, an attack on the lack of specific findings as to what a disciplinary process would have found proved; and the second as to the disciplinary process that would have been followed.[13]As to the first line of attack, it was submitted that the Tribunal should have made specific findings as to each of the thirty-seven complaints made against the Appellant. This the Tribunal refused to do. The Appellant submitted that without such a finding she could not know the basis on which she had lost. She further submitted that the Tribunal's finding that the Appellant was entitled to three months pay in lieu of notice, when coupled with the finding that if the disciplinary hearing had found either of the Sheila or the Aveyard allegations proved she would have been dismissed without notice, necessarily involved a finding that the disciplinary hearing would not have found either of those allegations proved. It followed, in the Appellant's submission, that the finding of a fifty per cent chance of a fair dismissal must have been on the basis that some or all of the other lesser allegations would be found proved, and that she was entitled to be told which of those other allegations might, in the opinion of the Tribunal, have founded a fair dismissal. Which of the remaining available allegations, the Appellant's advocate asked rhetorically, might have been made out which would justify Dr Colville in dismissing the applicant? What findings on those allegations might Dr Colville have made in the face of the response of the Appellant to each of those allegations?[14]The Tribunal expressed its view on three of the allegations but also expressed the view that a disciplinary hearing might have come to a different conclusion. The Tribunal rightly pointed out that the evidence would have been much fresher at the time of such a hearing than it was at the time of the hearing before the Tribunal. Indeed there is no guarantee that the same witnesses would have been involved. The Tribunal took the view that in order to decide the case it was not necessary to make findings on each of the other allegations. In our judgment the Tribunal was entitled to take this view. It was entitled to take a broad view of the complaints and the likely outcome of a proper disciplinary process. In Meek terms the Appellant was made aware of the reason she suffered a reduction in her compensation, namely that the Tribunal formed the view on all the evidence that there was an evens chance that after disciplinary proceedings she would have been fairly dismissed.[15]In our judgment it was not incumbent on the Tribunal to make a decision not only as to what it thought of each allegation but also as to the view that would have been formed by the Respondent after a properly conducted disciplinary hearing. It would have been unrealistic (and disproportionate) for the Tribunal to embark on an exercise by which it considered each of the thirty-seven allegations and whether a disciplinary hearing would have found each allegation proved and, if so, whether in whole or in part only. The Tribunal expressed its view about three of the allegations and also recognized that a disciplinary hearing could have formed a different view. This was not a case such as O'Donoghue v Redcar & Cleveland BC [2001] IRLR 615 where a Tribunal could make a clear finding as to the likelihood of otherwise of the employee's continued employment. An Employment Tribunal has to work "in practical conditions" and is "bound of necessity to operate in a somewhat rough and ready way, and to paint the picture with a broad brush" as Phillips J put it in Fougere v Phoenix Motor Co [1976] IRLR 259 at para 2. In this case this inevitably meant that the Tribunal had to make a percentage assessment as to the likely outcome of the disciplinary process.[16]The determination that if the Appellant had been dismissed she would probably have been dismissed on notice does not seem to us to involve either implicitly or impliedly finding that the disciplinary hearing would have rejected either the "Sheila" or the "Aveyard" allegations. The finding as to notice is one element in a decision which encompasses a variety of different factors in reaching an overall view of the likely outcome. One of the factors to be taken into account is the possibility that the disciplinary hearing would have been swayed by the matters of mitigation which the Tribunal indicated would have been urged on the Appellant's behalf. We accept that it is possible to read individual parts of the various documents which record the totality of the decision in a contrary sense and that putting the various documents together so as to understand the decision as a coherent whole is not altogether easy, but in the end we think that the proper construction of the decision does not involve the assumption that the Tribunal was making any finding as to what a disciplinary hearing would have found as to those two allegations.[17]There was a further limb to this argument to the effect that the decision was not Meek compliant because the Tribunal did not explain it could fairly reconcile the requirements of the Respondent's own disciplinary process that "normally you will not be dismissed for a first breach of discipline except in the case of gross misconduct" with a fifty per cent chance of a fair dismissal. Reliance was placed on the ACAS code of conduct which suggests that good disciplinary procedures should ensure that except for gross misconduct no worker should be dismissed for a first breach of discipline. In our judgment this point does not assist the Appellant. The relevant disciplinary process does not absolutely forbid dismissal following a first disciplinary hearing except for gross misconduct. Here there was, amongst other possibilities, the possibility of a finding of gross misconduct and also the possibility of findings of multiple lesser disciplinary offences. We do not think that in its necessarily broad brush approach the Tribunal failed in its duty to explain its decision merely because it did not make specific reference to that element in the equation.[18]The second line of attack asked on what basis was the Tribunal satisfied that a fair process could be carried out by Dr Colville. Central to the finding of unfair dismissal was the Tribunal finding that without investigation of the allegations Dr Colville had lost confidence in his most senior employee and told Mr Young to tell her as much, entitling her to resign. In the hypothetical world where the Appellant had not resigned and Dr Colville commenced a disciplinary process it was submitted that this closed mind must have made any subsequent dismissal unfair. It was submitted that Dr Colville should not be given credit for the fact that a fair minded employer could have entertained a process with an open mind unless the tribunal is satisfied that he would have entered it with an open mind. It was asserted that the finding in December 2003 that he was a fair minded man is irreconcilable with the finding from July 2000 that he had lost trust and confidence in her without investigation of the facts, and his evidence that he had completely prejudged the outcome of the allegations.[19]In our judgment this attack is based on a misunderstanding of the legal position. The question is not whether if Dr Colville had conducted a disciplinary hearing, that hearing would have been fair, but whether if there had been a fair disciplinary hearing the result would still have been a dismissal. As was observed in Oderinde v Datapact Ltd EAT/0611/00 (unreported, 14 January 2002) evidence from the employer that if a proper procedure had been conducted the result would have been dismissal will be extremely closely scrutinized. Here the Tribunal were confronted with a more or less inexhaustible series of possibilities and were entitled to take the broad brush view that there was a fifty-fifty chance of dismissal and that the likelihood was that it would be with notice.[20]In all these circumstances we take the view that the decision reached by the Tribunal was one it was entitled to reach and the route by which it arrived at was adequately explained. The appeal will therefore be dismissed.