P J AND M E EGAN T/A DELL CARE HOME v MISS J M OWEN [2008] UKEAT 0035_08_0805

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0035_08_0805Case No Appeal No. UKEAT/0035/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
P J AND M E EGAN T/A DELL CARE HOMEAPPELLANTMISS J M OWENRESPONDENT
Before
His Honour Judge SerotaDate 8 May 2008
[1]APPEARANCES For the Appellant MR P DOUGHTY (of Counsel) Instructed by: Messrs Nicholsons Solicitors 23 Alexandra Road Lowestoft NR32 1PP For the Respondent No appearance or representation by or on behalf of the Respondent SUMMARY UNFAIR DISMISSAL Contributory fault Polkey deduction PRACTICE AND PROCEDURE Striking-out/dismissal The Claimant was dismissed from her position as a Senior Carer at the Respondent's Care Home. The dismissal was procedurally and substantially unfair. The Claimant was not made aware of the allegations against her and could not respond to them. There had been no proper investigation or evidence of misconduct. The Employment Tribunal concluded that the dismissal was automatically unfair. It did, however, accept that the reason for dismissal was conduct and that the Respondent believed the Claimant had been guilty of serious misconduct. The Respondent, who was unrepresented, wished to call evidence that went to the issue of the reason for dismissal and to the issue of contribution, but were prevented from doing so. The Respondent was denied the opportunity of calling evidence in relation to remedy. The Employment Appeal Tribunal considered that this denial could not be justified. HIS HONOUR JUDGE SEROTA QC This is an appeal from a decision of the Employment Tribunal at Norwich, chaired by Mr C R Ash, Employment Judge, which was sent to the parties on 13 April 2007. The hearing lasted some two days in March of last year and the Employment Tribunal found that the Claimant's dismissal was automatically unfair. The Employment Tribunal rejected claims by the Claimant that she had been dismissed for reasons of having made a public interest disclosure and she was awarded compensation, including uplifted compensation, of £14,401.07, together with agreed compensation for unlawful deductions in the sum of £212.08. There was also an order for costs in the sum of £1,000 made against the Respondent.[2]At the hearing the Claimant was represented by a solicitor, but the Respondent was unrepresented. The Notice of Appeal was initially disposed of under Rule 3 by HHJ Clark on 21 May 2007 but the matter went under Rule 3(10) for reconsideration before Lady Smith on 28 September 2007. On this occasion the Respondent was represented by Mr Doughty under the Employment Law Appeal Advice Scheme, "ELAAS".[3]I would interpolate, at this stage, how grateful the judges and members of the Employment Appeal Tribunal are to members of ELAAS, who give up their time and provide the greatest assistance to litigants in person. I have already observed during the course of submissions, and I repeat, that but for the assistance of Mr Doughty this appeal would almost certainly never have proceeded beyond the Rule 3 stage.[4]Lady Smith was particularly concerned with one issue raised in the Notice of Appeal to the effect that the Respondent wished to call three witnesses and the Chairman prevented them from doing so, on the basis that their evidence was irrelevant to the issues that the Tribunal had to decide. Lady Smith invited the Employment Tribunal, under the Burns/Barke procedure, to answer various questions and Mr Ash responded on 14 November 2007. The matter came back before Lady Smith on 14 January, when the Respondent was again represented by Mr Doughty, under the ELAAS scheme, and Lady Smith directed that there should be a full hearing.[5]Mr Doughty accepts, and his Skeleton Argument makes clear, that various matters raised in the original Notice of Appeal are no longer to be relied upon and the only matter raised by these Respondents is that they were was prevented from calling evidence, which so far as this appeal is concerned would have been relevant and material to issues of remedy.[6]The Claimant has not provided a Skeleton Argument. She has provided, through her solicitors, a response to the Notice of Appeal and has invited us to consider her submissions on paper and without her attendance today. We have of course taken the response into account.[7]I now say something about the brief facts, as are relevant to this appeal, and we take this largely from the decision of the Employment Tribunal. We will not, for example, recount the facts relating to the public interest disclosure matter.[8]The Claimant was a Senior Carer at the Dell Care Home in Lowerstoft from about 2003. The Home had been acquired some time after 2003 by the Respondent and there is no issue but that the Claimant's employment transferred under TUPE. Nothing turns on this. The Employment Tribunal, at paragraph 7 of its decision, noted that the Respondent regarded the Claimant as being, as she was, a loyal and hardworking employee.[9]It is right to say that the Respondent's case is that a number of complaints were made about the Claimant in increasing volume and they had received sufficient complaints of misconduct of a serious nature to call her to a meeting on 14 September 2006. The meeting was attended by Mr and Mrs Egan and their manager, Mrs Spoor. The meeting was held at very short notice. The Claimant was not told what the meeting was about. She was accused of many serious failings and misconduct.[10]The Employment Tribunal was satisfied that Mr and Mrs Egan believed the complaints they had received were true. Accordingly, Mr. and Mrs. Egan were not prepared to investigate them further, for which they were heavily criticised by the Employment Tribunal. The Claimant was told that she would be demoted or could resign gracefully.[11]The Employment Tribunal's findings, in relation to this meeting, are set out in paragraph 8 of its decision. The Employment Tribunal considered that intolerable pressure was put on the Claimant. The Employment Tribunal rejected the Respondent's case that this was just a meeting to help the Claimant. Mr Egan said that there were about 60 complaints. He told the Claimant she was not frontline material, was not fit to be in control of a care home and her voice was too loud. He did not list the complaints. He said that the Claimant's deficiencies could be disposed of with just a couple of weeks' training.[12]The Employment Tribunal, as we have said, was justly critical of the manner in which the meeting took place, the failure to investigate the complaints, and the failure to give the Claimant an opportunity to adequately deal with them.[13]On 18 September the Claimant spoke to Mrs Spoor. The Respondents' case is that the Claimant, during the course of this conversation, said that she had resigned. The Respondents maintained that they did not want her to resign. The Claimant's case is that she did not resign, but made clear that she was seeking legal advice but would not turn up for work because her confidence in her employers had been shattered.[14]The Employment Tribunal went on to find that Mr Egan, without any further investigation, simply accepted that the Claimant had resigned and she was sent her P45 on or about 28 September 2006. No attempt whatever was made to follow statutory dismissal procedures.[15]We now turn to the conduct of the hearing and the decision of the Employment Tribunal. At the outset, on 9 March, the Employment Tribunal decided to deal with issues of liability first, including issues relating to the public interest disclosure matter and also to determine the reason for the dismissal and whether the dismissal was fair. The Respondent wished to call three witnesses, from whom witness statements had been served; Jo Caldwell, Pat Turner and Vyv Kestle. Mr Ash described the witness statements as being a generalised attack on the Claimant's capability and conduct which was irrelevant on liability issues because the Respondent had made clear it had no intention of investigating the complaints.[16]It is clear that the Respondent's case involved serious allegations against the Claimant of misconduct. These were relevant, both to the question as to the reason for dismissal and also as to remedy. The question of course that the Chairman had to consider was whether in fact these three witness statements were relevant to either of those issues.[17]It is right to say that the witness statements are short. They are not taken by someone familiar with legal procedures, but they do contain material, some of which is specific, which was highly critical of the Claimant. We have those witness statements in our bundle at pages 110 to 112. By way of example, Miss Caldwell does say that she herself saw the Claimant assaulting a vulnerable old gentleman, stealing food and eating it, as well as more generalised complaints about her being a "horrid and wicked bully". There are further, specific complaints about disposing of patients' drugs in the kitchen because she had forgotten to give them.[18]Miss Kestle says that she personally witnessed Miss Owen handling residents roughly, and again referred to the position of Mr Fleet and another resident, Mr Ford, who complained about the Claimant. Miss Turner referred to her shouting and wagging her finger in the face of an unnamed, vulnerable resident as well as abusive conduct towards a resident aged 100 who had broken her legs.[19]It is clear that these witness statements were all taken in preparation for the hearing and it is quite unclear whether in fact these three potential witnesses had provided information to Mr and Mrs Egan as at the date the decision to dismiss was taken. Certainly they do not say in their witness statements that they had informed Mr Egan although, as we have noted, these witness statements have not been prepared by a professional.[20]It is clear, and accepted by Mr Ash in his response to the order of Lady Smith, that having told the parties the way in which the Employment Tribunal proposed to deal with the matter, the hearing did not conclude over the first day, which was 9 March, but went over until 23 March. Mr Egan did not bring the witnesses on that occasion and I note that Mr Ash, in his response, says that Mr Egan said on 23 March he was not calling any further witnesses and that he was not prevented from calling witnesses. However, Mr Ash does continue and I quote:
"… it may well have been his assumption that witnesses referred to would not assist him in the least on the liability issues and it may have been his view their presence and evidence would only exacerbate what turned out to be a blatantly unfair dismissal."
[21]The Employment Tribunal then proceeded to give a short extempore judgment on liability. The parties retired to discuss matters. There was no suggestion that any further evidence should be called and the Employment Tribunal then went on to make its findings on remedies, which I have already referred to.[22]Mr Ash then went on to say in his response:
"Had we been asked to listen to the evidence of the three witnesses concerned during the remedies hearing, we would in effect have been asked to investigate generalised allegations covering a period of time and attempting to do, in very restricted circumstances and on minimal information, that which Mr Egan had refused to do himself. Further views on these matters can of course be seen in our Judgment which we do not rehearse. It would, in our view, have been an abuse of the procedure of Employment Tribunals to subject the Claimant to any further vilification and accusation in circumstances where the employer had failed to act timeously or at all at the appropriate time. No question of a reduction under the Polkey principle arose, and certainly no question of contribution."
[23]Mr Ash, at paragraph 11 of his response, expressed the following view:
"We are, in the circumstances, puzzled as to why the questions have been referred to us in the manner that they have when a Judge of the Employment Appeal Tribunal appears to have ruled on the matter. However, we do not seek to criticise, merely to observe."
[24]I think it is important to bear in mind the procedure of the Employment Appeal Tribunal when a Notice of Appeal is received. The Employment Appeal Tribunal rules provide, at Rule 3(7), that "where it appears to a judge, or the Registrar, that a Notice of Appeal or a document provided under paragraph (5) or (6) – (a) discloses no reasonable grounds for bringing the appeal; or … he shall notify the Appellant, or special advocate accordingly informing him of the reasons for his opinion and, subject to paragraphs (8) and (10), no further action should be taken on the Notice of Appeal."[25]Rule 3(8) entitles a would-be Appellant, who has received notification under Rule 3(7) to produce a fresh Notice of Appeal and Rule 3(10) provides that where an Appellant expresses dissatisfaction in writing with the reasons given by the judge or the registrar for his opinion under Rule 3(7), he is entitled to have the matter heard before a judge, who shall make a direction as to whether any further action should be taken on the Notice of Appeal or document.[26]It is that procedure which has been followed in the Employment Appeal Tribunal in this appeal together with the procedure which has been approved by the Court of Appeal, known as the Burns/Barke procedure, where in cases where there are matters that do not appear clear from the decision of an Employment Tribunal the Employment Appeal Tribunal can invite the Employment Tribunal to supplement its reasons and answer certain specific questions.[27]The Employment Tribunal considered the evidence on the public interest disclosure matter and rejected the Claimant's claim on the basis that the Respondent was unaware that the Claimant had made a disclosure. The Employment Tribunal found that the Claimant had been dismissed. This was not simply a constructive dismissal, although the Claimant would have been justified in asserting that it was. Although the Employment Tribunal had significant doubts as to the reason for the dismissal, and as to whether in fact it was based on conduct and that the Respondent believed that to be the case, it is clear that the Employment Tribunal, at paragraph 24 of its decision, accepted that on the balance of probabilities and just, and the "just" is stressed, the Employment Tribunal accept that Mr and Mrs Egan believed that the Claimant had committed acts of misconduct and therefore the reason for the dismissal was one relating to conduct. That was the principal reason.[28]The dismissal, however, was clearly unfair. It was unfair because there had been no investigation, no proper evidence of misconduct to support the belief of the Respondent. There was no proper opportunity for the Claimant to respond to the allegations because she was not aware of them. There had been no proper hearing, no appeal, and no statutory procedures had been followed in relation to the dismissal, which was therefore automatically unfair. The Employment Tribunal uplifted compensation by 50 per cent. The Employment Tribunal then went on to assess compensation and explain its reasons and it made an order for costs in the sum of £1,000 on the basis that there was a large number of unsubstantiated allegations without proper investigations and it was unreasonable to defend the proceedings, at least in so far as concerning the fairness of the dismissal.[29]The Notice of Appeal, which we now turn to, originally raised a number of issues but they are now limited to the issue of the Chairman preventing the witnesses being called. We do not therefore address the other matters. There is therefore no appeal against the finding that this was an automatically unfair dismissal and the dismissal was unfair by reason of the matters set out in the decision of the Employment Tribunal.[30]It has been submitted to us that the three witnesses whom the Respondent wished to call could have given relevant evidence in relation to firstly the reason for the dismissal; secondly whether the Claimant's conduct had contributed to her dismissal, that is a remedy point, and whether her compensation should be reduced by reason of her conduct, also a remedy point.[31]We say straight away that it is by no means clear that the evidence of the three witnesses was relevant to the reason for dismissal. It would have required further investigation and no findings were made, one way or the other, as to whether these three witnesses had in fact been interviewed by Mr Egan prior to the dismissal. We say no more about it because the issue as to the reason for dismissal was in fact resolved in favour of the Respondent, but it seems to us that this evidence was undeniably relevant to issues of remedy. It is quite clear from the passages in Mr Ash's communication to the Employment Tribunal that we have read out that the Respondent was left in little doubt that this evidence was considered irrelevant on all issues and would not have been entertained by the Employment Tribunal.[32]We recognise and sympathise with the Employment Tribunal. It was dealing with a case prepared by a litigant in person who obviously had strong views and on occasions had gone somewhat "over the top". We also recognise that it is thoroughly disagreeable for an Employment Tribunal to have to investigate serious allegations against an employee who has manifestly been unfairly dismissed, but nonetheless that is something that an Employment Tribunal has to do. There may be many cases in which an employer has perfectly good grounds for dismissal, or would have had perfectly good grounds for dismissal, had it chosen to properly investigate an allegation of serious misconduct and to have carried out the appropriate disciplinary procedures.[33]It cannot be the case that an employer, who has failed to adequately investigate an allegation of serious misconduct or to have a proper disciplinary procedure, should be prevented from relying upon evidence which may be absolutely overwhelming that would be relevant to issues of remedy.[34]In our opinion it is a very strong thing for an Employment Tribunal to exclude evidence that is both relevant and material, as this evidence was, in the absence of some breach of an order or rule relating to the preparation of that evidence. Indeed we find it difficult to envisage cases where a party has complied with rules and directions in relation to the submission of evidence to exclude evidence where it is relevant and material.[35]In our opinion, in the unfortunate circumstances of this case, this evidence, which was clearly relevant to issues of remedy, was in effect excluded. We have given very serious consideration as to whether we should remit this matter for further consideration by the same Tribunal, or whether it should be referred to a different tribunal. We have considered the authority of Sinclair Roche & Temperley & Ors v Heard & Anr [2004] IRLR 763 and in particular the criteria set out by Burton J at paragraph 47.3. It seems to us, in the particular circumstances of this case, that there is a real risk of the Respondent considering that the Tribunal might pre-judge the issue, having regard to the strong terms in which this evidence was excluded, and where the Employment Tribunal appears to have found that the allegations of misconduct were, in any event, unjustified. In the circumstances therefore, this matter must be remitted to a differently constituted tribunal to reconsider issues relating to remedy, compensation and costs.[36]It remains for us to thank Mr Doughty for his assistance. I note there is an application for costs made by the Claimant. In the circumstances we do not need to make any order upon that.[37]Having regard to the gravity of the allegations that are made against the Claimant it is essential, in our opinion, that the Claimant is given proper notice of the allegations made against her to give her the opportunity of dealing with them. We would therefore respectfully suggest that the Employment Tribunal might wish to have a case management meeting at which it can give appropriate directions for the service of a schedule of allegations, written statements in support, and a witness statement, or witness statements, on behalf of the Claimant.