MR C MADHEWOO v NHS DIRECT [2006] UKEAT 0030_06_0103

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2006] UKEAT 0030_06_0103Case No Appeal No. UKEAT/0030/06Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR C MADHEWOOAPPELLANTNHS DIRECTRESPONDENT
Before
His Honour Judge Peter ClarkDate 1 March 2006
[1]APPEARANCES For the Appellant MR DAVID MASSARELLA (of Counsel) Instructed by: Royal College of Nursing Legal Services 20 Cavendish Square London W1G 0RN For the Respondent MR BEN COLLINS (of Counsel) Instructed by: Messrs Capsticks Solicitors 77-83 Upper Richmond Road Putney London SW15 2TT SUMMARY Practice & Procedure: 2002 Act and Pre-Action Requirements Regulation 18(a) 2002 EA (DR) Regulations. Transitional Provisions. Meaning of employer first contemplating dismissal. Who is the employer? Test subjective or objective. Need for communication to Claimant. Perversity. Appeal dismissed. HIS HONOUR JUDGE PETER CLARK This case involves the proper application of the expression "where the employer first contemplates dismissing…the employee" in Regulation 18(a) of the transitional provisions of the Employment Act 2002 ( Dispute Resolution) Regulations 2004 ("the Regulations") made under the Employment Act 2002 ("the Act").[2]The matter is presently proceeding in the Watford Employment Tribunal. The parties are Mr Madhewoo, the Claimant and NHS Direct, the Respondent. I shall so describe them.[3]This appeal is brought by the Claimant against the judgment of a Chairman, Mrs S Goodman, sitting alone on 2 November 2005 at a Pre-Hearing Review whereby she dismissed his claim of unfair dismissal as being out of time. His claims of sex and race discrimination were allowed to proceed, time for those claims being extended under the just and equitable provisions in the respective statutes. I am concerned here only with the claim of unfair dismissal. Background[4]The Claimant commenced employment with the Respondent as a nurse adviser at their Southall Call Centre from November 1998. He had a total of some 37 years' service in the National Health Service prior to his summary dismissal on 4 November 2004. The Respondent answers telephone enquiries from members of the public concerned about their health and proffers advice as to steps which they should take to obtain any necessary treatment.[5]Prior to the index incident on 22 June 2004, the Claimant had undergone a period of retraining following an episode in 2003 when his advice to a caller had led to concern. He was not disciplined in any way. On 22 June 2004 he gave advice to a caller to seek a general practitioner's visit at home when her stated symptoms (indicating a perforated bowel) required emergency admission to hospital by ambulance. Following that advice, the patient's GP made a formal complaint to the Respondent. Preliminary investigation was carried out by a senior nurse manager, Frances McKenzie, who suspended the Claimant on full pay on 21 July. An investigatory meeting with the Claimant and his trade union representative took place on 26 August. At the end of that meeting Ms McKenzie explained that she had not then decided whether a disciplinary hearing would follow; she would first complete her investigation.[6]On 24 September, she wrote a short letter to the Claimant in which she said:
"I have concluded my investigation and will be proceeding to a formal disciplinary hearing. You will shortly be receiving a management statement of case and details of a hearing date"
. It was not until receipt of a letter dated 25 October from Anne Byles, head of Human Resources, that the Claimant heard further about the process followed by the Respondent. She then informed him that a disciplinary hearing would be held on 4 November before Steven Wibberley, Regional Director, accompanied by Ms Byles who would advise on procedure. The management case would be presented by Ms McKenzie and a copy of the written management statement of case prepared by her was enclosed with Ms Byles' letter. Ms McKenzie's conclusion at the end of the statement of case was expressed thus: "The [Claimant's] actions in handling this call constitute gross misconduct in accordance with section 8.3.5 of the NHS Direct Disciplinary Procedure. The ultimate penalty for gross misconduct is dismissal".[7]I interpose here that, on pre-reading the papers and noting that reference to the Respondent's disciplinary procedure and bearing in mind that this appeal centres on the disciplinary process, I thought it might be helpful to see the Respondent's written procedure. A copy was helpfully provided in advance of this hearing. Today, I am told by Counsel, both of whom appeared below, that the procedure was in evidence before the Chairman below. In summary, it reflects the ACAS Code, now updated to take into account the changes to the law affected by the Act and the Regulations with effect from 1 October 2004.[8]In particular, as provided for in paragraph 60 of the ACAS Code which Tribunals are enjoined to take into account, where relevant, by s207 of the Trade Union and Labour Relations (Consolidation) Act 1992 , management is required to investigate fully before any disciplinary action is taken. That was the initial process undertaken by Ms McKenzie under paragraph 16 of the Respondent's procedure which provides that the immediate manager, in whose shoes Ms McKenzie stood, must establish the facts to decide whether there is a need for a disciplinary hearing and the disciplining manager must consider whether there is sufficient evidence to proceed to a formal hearing.[9]I accept Mr Collins' submission that that stage was also completed by Ms McKenzie. I note also that paragraph 8 sets out categories of misconduct: that is minor, serious, and gross misconduct. By paragraph 14, the decision to dismiss may be taken where a third and final warning is in force, or gross misconduct has occurred. It therefore follows that, on his disciplinary record, the Claimant was only liable to dismissal if a charge of gross misconduct was made and upheld by the disciplining manager, here Mr Wibberley.[10]Having been informed of the charge of gross misconduct by Ms Byles' letter of 25 October, the Claimant attended with his trade union representative the disciplinary hearing on 4 November. The charge was found proven. He was summarily dismissed with pay in lieu of notice. An internal appeal against that decision was dismissed by a letter dated 16 February 2005 from the chairman of the Respondent's Disciplinary Appeals Panel, Mr Evans. On 3 May 2005 the Claimant lodged his form ET1 with the Tribunal. The Statutory Framework[11]The primary limitation period under s111(2) of the Employment Rights Act 1996 ("ERA") for a claim of unfair dismissal is three months. That limit is subject to extension where it is not reasonably practicable to present the claim within the primary limitation period. The Chairman rejected an argument that it was not reasonably practicable to present the unfair dismissal claim within the three month period expiring on 3 February 2005. There is no appeal against that finding.[12]The Regulations came into force on 1 October 2004.

(a) Regulation 18(a) provides:

"These regulations shall apply (a) in relation to dismissal…where the employer first contemplates dismissing…the employee after these regulations come into force"
. The relevant date is 1 October 2004. The Chairman's Decision[13]The critical issue for the Chairman to determine was whether the Respondent employer first contemplated dismissing the Claimant before or after 1 October 2004. If the former, the unfair dismissal claim was out of time; if the latter, it was just within time. She decided that it was the former. Her findings of fact included the following:(i) Anne Byles discussed the case with Frances McKenzie but not after the investigation meeting on 26 August as she knew she would be on the disciplinary panel and wanted to keep back from it (corrected reasons paragraph 4);(ii) The letter from Ms Byles dated 25 October was the first time that the Claimant knew that his conduct, as against his capability, was under review or that the outcome might be dismissal rather than as before, a period of monitoring or training. Her reasoning is set out at paragraphs 14-16 as follows:
"14. Did the employer contemplate dismissing the Claimant before 1 October 2004? The use of the word 'contemplates' in the Regulations is, so far as is known, novel, and no assistance in the section defining terms or in other legislation has been found. In the view of the Tribunal, the normal meaning of the word 'contemplate' as in 'contemplates dismissal' means less than "the employer decided to dismiss" (as the claimant urges), and something more like 'considered a course of action which might result in dismissal. In ordinary language, if an employer contemplates an action he is thinking about it, indeed it probably means even less than he is considering it. This might be as early as the start of the investigation process, but more likely means that dismissal was being 'contemplated' at the conclusion of the investigation process when the decision was made that there was sufficient evidence to hold the disciplinary hearing at which would be one of a range of potential outcomes. When was that decision made? The answer would best be given by Miss McKenzie, but the Respondents have not called her to give evidence, and so that has to be deduced from documents. 15. On 24 September, Miss McKenzie wrote that she had concluded her investigation process and that there would be a disciplinary meeting, so at least by that date on 24 September had reached a conclusion of some kind. She referred to the Claimant receiving a management statement of case "shortly" although in fact the statement of case was not sent for another month. Ann Byles thought there may have been delay while consulting about the date for the hearing which had to appear in the letter of 24 October. It seems likely to the Tribunal that Frances McKenzie contemplated dismissal as an outcome at least by 24 September 2004 when she had considered the evidence and its implications enough to decide that disciplinary action (which might include dismissal) should be considered at a disciplinary hearing; she had almost certainly prepared at least a draft of the management statement of case which in its 24 October version clearly said the dismissal was possible. 16. Counsel for the Claimant has argued of "contemplates" that the test is not a subjective issue wholly for the employer, but also comprises the fact that dismissal had been contemplated being communicated to the employee. While the Tribunal agrees that that would perhaps, especially in the light of the facts of this case, be clearer and fairer, it is not what the Regulation actually says. The natural meaning of the word contemplate includes contemplation being an interior thought process and does not, of itself, imply any communication of the subject matter of that thought process to any other person, and therefore not without some sympathy to the Claimant, the Tribunal concluded that the Regulations do not apply in this case. It follows that the Claimant cannot use the extension under Regulation 15."
The Appeal[14]Mr Massarella puts the appeal in the following ways;(i) The test as to when dismissal is first contemplated by the employer under Regulation 18(a) must be an objective one. It cannot be wholly subjective on the part of the employer. I disagree. What is contemplated by the employer is what is in his mind. just as the reason for dismissal for the purposes of s98 ERA is the set of facts in an employer's mind which leads him to dismiss. Equally, I am not persuaded that an element of communication to the employee, whether actual or constructive, is to be imported into the plain wording of Regulation 18(a) as to when the employer first contemplated dismissal. I therefore reject the submission that the relevant date is the date on which the Claimant received Ms Byles' letter of 25 October (actual knowledge) or as being the date when a reasonable employee would have concluded that the employer had first contemplated dismissal on that date. To find otherwise would, in my judgment, be a bridge too far in the so-called purposive approach to this legislation. On this aspect of the case, I was initially troubled as to who was the employer for these purposes. Having canvassed that concern with Counsel, I accept Mr Collins' submission that Ms McKenzie is to be included within the meaning of the employer for present purposes. She carried out the investigation and determined that a disciplinary hearing would take place at which, as effectively the prosecutor, she would be pressing for a decision to dismiss by the ultimate decision maker, Mr Wibberley. The fact that later Ms Byles wrote the letter of 25 October which represents step 1 of the Statutory Disciplinary Procedure for the purpose of Regulation 3 of the Regulations, read with Schedule 2 of the Act (had they applied) does not prevent Ms McKenzie from being treated as the employer, as the Chairman did for these purposes.(ii) Perversity. The Chairman's reasoning at paragraph 15 is challenged on the evidence called and the findings of fact. True it is that Ms McKenzie did not give evidence. Accordingly, there was no direct evidence as to when she first contemplated dismissal. However, the Chairman had before her the letter of 24 September and Ms McKenzie's conclusion in her written statement of case. Subject to the burden of proof point, which I shall come to next, it seems to me that it was open to the Chairman to conclude on that material that Ms McKenzie first contemplated dismissal on or before 24 September. Such a finding was not, as Mr Massarella submits, an impermissible option, given my earlier conclusion, that Regulation 18(a) does not require actual or constructive communication of first contemplation to the Claimant.(iii) Burden of Proof. It is common ground between Counsel that the burden lay on the Respondent within whose exclusive knowledge the fact of first contemplation lay to establish the relevant date. I am not persuaded that the Chairman overlooked the correct burden of proof here. She found it likely (that is more probable than not) that Ms McKenzie first contemplated dismissal at least by 24 September. Thus the Respondent had, despite not having called Ms McKenzie, discharged the burden placed upon it. Conclusion[15]Like the Chairman, I reach my conclusion in this case without enthusiasm. It is that this appeal fails and is dismissed. I would not draft Regulation 18(a) in the terms in which it appears. That is not my task. Rather, it is to give effect to the will of Parliament or, in this case, the relevant minister responsible for tabling the Regulations.[16]I also bear in mind Mr Collins's submission. The Regulations provide, in certain circumstances, for an extension of the ordinary three month primary limitation period for unfair dismissal claims. It was open to the Claimant, advised as he was by a solicitor engaged by his trade union, to put in his claim within the initial three month period. Unfortunately, the advice given (see reasons paragraph 11) appears to have involved a misreading of the Regulations. On this occasion I find myself unable to relieve him of the consequences of that advice.