Nabili v The Norfolk Community Health And Care NHS Trust (Unfair Dismissal : Reasonableness of dismissal) 2016) [2016] UKEAT 0039_16_2106

EAT
Nabili v The Norfolk Community Health And Care NHS Trust (Unfair Dismissal : Reasonableness of dismissal) 2016)
[2016] UKEAT 0039_16_2106 · 2016-06-21
[1]Dr Aqdas Nabili (“the Claimant”) appeals from the dismissal of her claim of unfair dismissal by decision of Employment Judge Postle sitting alone (“the EJ”) in a Judgment with Reasons sent to the parties on 24 February 2015. The Claimant was represented before me by Mr Grant of counsel and the Norfolk Community Health and Care NHS Trust (“the Respondent”) by Mr Cramsie of counsel who also represented them at the Employment Tribunal (“the ET”).[2]Following a Rule 3(10) Employment Appeal Tribunal Rules 2013 Hearing, Mrs Justice Simler P ordered that three grounds of appeal proceed to a Full Hearing. The principal ground, ground (iv), was permitted to proceed “as particularised in the skeleton argument”. By ground (iv) it is contended:
“Employment Judge Postle did not explain the reasons for his Judgment and did not take fully into account my representation as particularised in the skeleton argument prepared by Emma Dixon under the ELAAS scheme dated 2 February 2016.”
In paragraph 4 of her Judgment on 3 February 2016 Mrs

Justice Simler held:

“4. The fourth heading, as particularised in the skeleton argument, identifies a challenge by reference to the Respondent’s decision to proceed with a disciplinary hearing in the Claimant’s absence. She contends that the Tribunal failed to give consideration to the question whether the decision to proceed in her absence was reasonable, in error of law: the Employment Tribunal failed to ask, let alone answer that question; failed to consider the reasons for refusing an adjournment; failed to explain why the Respondent was justified in proceeding urgently given that there had already been a substantial delay; failed to consider the impact on the Claimant of that decision and instead simply by reference to a finding that it was unclear what else she would have been able to advance, concluded that her dismissal was fair nonetheless. That reasoning is said to flawed on Polkey vAE Dayton Services Ltd [1987] IRLR 503 grounds and in any event unsustainable. In the context of this case it is said that it was critical for the Respondent to hear from the Claimant as to her understanding of the suspension letter in order to determine whether or not she made an honest mistake in failing to appreciate the letter’s implicit prohibition on working for other NHS bodies. It seems to me, for all these reasons, as clearly explained by Ms Dixon, an arguable point of law that should proceed to a Full Hearing has been raised under this heading.”
By grounds (ii) and (iii) the Claimant contends:
“(ii) The Respondent in spite of having access to correct documents filled [sic] incorrect documents instead of the final documents of the investigation meetings and the investigation reports that were recorded and minuted. These reports and minutes were corrected by Medical Protection Society and British Medical Association representatives. However were not filled [sic] appropriately. (iii) I was not able to prove these documents were not correct documents because the correct documents were about to be recovered by Seagate company in Netherland [sic] and the hearing gone ahead before recovery of these crucial documents.”
Outline Relevant Facts[3]The Claimant, who is a doctor, commenced employment with the Respondent on 8 September 2008 as a Consultant Community Paediatrician. In April 2009 the Claimant was at home on special leave on full pay. Unknown at the time but later the Respondent learned that during this period the Claimant had carried out some work for another Trust in April and on one day at the beginning of May 2009.[4]The Claimant was suspended from clinical practice on 29 October 2009 over concerns about her performance and patient safety. No action was taken other than the Claimant returned to clinical practice under supervision on 1 March 2010. On 7 April 2010 the Claimant was again excluded from clinical practice. By letter dated 21 April 2010 she was informed by Mr Green, the Deputy Director of HR, that:
“During your exclusion you are not permitted to contact your work colleagues, patients or attend any work premises unless agreed in advance with the Medical Director or HR Director. During your suspension you must be available to attend any investigation meetings as required. You may only undertake voluntary work, study leave or annual leave with prior consent from the Medical Director. If you have any other part-time work with an NHS organisation we will also notify them of your exclusion from work.”
[5]It came to the Respondent’s notice around the end of July 2010 or the beginning of August that the Claimant had been undertaking work for the Royal Berkshire Hospital in Reading during her period of suspension or exclusion. The Respondent conducted an investigation into this matter. By letter dated 2 December 2010 Mr Green invited the Claimant to an investigatory meeting. The letter set out the allegations against her and informed the Claimant of her right to be accompanied by a work colleague, a BMA representative or a legal representative.[6]The investigatory meeting took place on 22 December 2010. Mr Green was present as was a note taker. Ms Underwood, Deputy Executive Nurse, conducted the investigation. The Claimant was represented by Mr Milbourne from the BMA. The EJ held at paragraph 4.11:
“4.11. … It is important to record the minutes typed up were sent to the Claimant, as she accepts, and her representative, as she accepts, but despite the Claimant asserting that both herself and her BMA rep corrected those minutes and returned them to the trust, there is no documentary evidence before this Tribunal, whether by letter, email or draft, suggesting that this occurred. In fact the first time the Claimant appears to question the accuracy of those minutes is before the Employment Appeal Tribunal. I fully accept Ms Underwood’s evidence that she never saw any amended version of any minutes from the Claimant or her BMA representative.”
The EJ recorded that:
“4.12. The issues the Claimant particularly takes issue with are (at page 383 of the minutes) the words “in hindsight” have been added, and she told them that she was at home gardening (at page 394).”
Further the EJ held:
“4.14. … In answer to a question, “Did you believe that you could work elsewhere without advising your employer?”, her answer was “Yes, normally I would tell my employer but this was not normal”
. That clearly suggested she knew she should have informed her trust and in effect should not be working for another trust while she was excluded. The Claimant also states during the meeting her interpretation of the trust’s letter of 21 st April, notwithstanding the above, that she thought she was only required to advise the trust or obtain the agreement of her Medical Director in relation to voluntary work, study leave or annual leave. 4.15. What is clear from the minutes and the Claimant’s admission is that she did work for two other trusts whilst on special leave and, more importantly, whilst she had been excluded from clinical practice. The Claimant was clear what was being alleged and she had every opportunity to respond with the assistance of her BMA representative, Mr Milborne.”[7]By letter dated 1 April 2011 the Claimant was invited to a disciplinary hearing to be held on 19 April. On 18 March she had booked a flight to Iran for 14 April as her mother had been taken ill. On 12 April the Claimant emailed Mr Milbourne, her BMA representative, to ask him to request a deferment of the disciplinary hearing. About two days later Mr Milbourne emailed Mr Green asking for a postponement of the disciplinary meeting. In the morning of 15 April 2011 Mr Green emailed Mr Milbourne agreeing to postpone the disciplinary hearing but later that day changed his mind and said that the meeting was to go ahead given the panel’s availability in the future. The email also suggested that Mr Milbourne attend in the Claimant’s absence.[8]Mr Milbourne informed Mr Green that he did not have the Claimant’s authority to attend the hearing on her behalf. The disciplinary panel met on 19 April. Neither the Claimant nor Mr Milbourne attended. The EJ held:
“4.21. The panel raised concerns about continued delay and the number of months the Claimant had been excluded and ultimately decided on balance to proceed with the disciplinary hearing with Dr Heap chairing the hearing. …”
[9]The Panel concluded that without permission the Claimant had worked at the West Kent PCT whilst on special leave. The EJ held:
“4.22. … the Claimant had not offered a reasonable explanation why she had not sought permission at the investigatory hearing … and in relation to the Royal Berkshire she worked there whilst she was excluded from the Respondent due to clinical concerns and patient complaints. She had not told them that she had been excluded and would have known that she should not have been working elsewhere whilst excluded …”
[10]The Disciplinary Panel decided that the Claimant be dismissed. She was informed of the decision by letter dated 4 May 2011 to her London address. The letter stated:
“… The panel found that you had known you had breached the requirements of Maintaining High Professional Standards in the Modern NHS, Section 2 “Restriction of practice and exclusion from work”, and the terms of your employment contract whilst working during your exclusion from work and whilst working for another PCT when absent from work on sickness grounds. …”
The Claimant did not appeal the dismissal decision and her employment ended on 5 May 2011. The Decision of the Employment Judge[11]The EJ referred to the test in British Home Stores Ltd v Burchell [1978] IRLR 379 and directed himself:
“5.2. … when considering fairness in the process, as Counsel for the Respondent points out, if there is a procedural flaw it does not change the process but one has to look at the process overall to see if that process taken in the round, looking at all aspects, was a fair one.”
[12]The EJ held that the Claimant did not raise the issue of inaccuracy of the transcripts of the investigatory meeting before the previous hearing at the Employment Appeal Tribunal (“EAT”). The EJ held at paragraph 6.5:
“6.5. … only at the Tribunal now the Claimant says that the words “in hindsight” were added at page 383 and in fact, as Counsel for the Respondent indicates, they in fact go to her credit rather than against her, and the other inaccuracy she advances is at page 394 “I told the investigatory meeting that I was on garden leave”
. How that changes the substance and response to the allegations is unclear. I am satisfied that the transcript of the investigatory meeting is a fair and accurate reflection of that meeting.”[13]The EJ noted at paragraph 6.6 that the main concern of the Claimant is whether the disciplinary hearing should have proceeded in her absence. EJ Postle held:
“6.6. … Given the extent and detail of the investigatory meeting and the Claimant’s responses at that meeting, it is unclear what else the Claimant would have been able to advance or her representative to the allegations at the disciplinary meeting. 6.7. Furthermore if the Claimant had booked a flight on 18 th March for 14 th April I repeat there was every expectation, quite rightly, that she would go and see her sick mother on 14 th April so it does beg the question why following 1 st April she did not prepare a written response and instruct her BMA representative to attend on her behalf and make representations for her. 6.8. The panel clearly did believe that an act of misconduct had been committed. They believed clearly that the trust had more than reasonable grounds for that belief, after all the Claimant had admitted it, and this was after a reasonable investigation, so therefore proceeding with the disciplinary in the Claimant’s absence [with] the allegation in the circumstances in the Tribunal’s view does not render the dismissal unfair. It was clear what the allegations were and it was clear from the investigatory meeting what the Claimant’s response to them was. Proceeding in her absence did not render the process unfair.”
[14]The EJ held that the sanction of dismissal was reasonable and the Respondent’s action was fair. The Grounds of Appeal Ground (iv) as amplified[15]Ground 4(iv) is the central ground of appeal. Mr Grant contended that EJ Postle failed to consider whether the decision of the Respondent to proceed with the disciplinary hearing in the absence of the Claimant was reasonable. It was said that EJ Postle failed to decide the reason for refusing a postponement of the hearing. Further he failed to explain why the Respondent was justified in proceeding urgently.[16]Mr Grant submitted that such a decision was all the more important as the Respondent advanced two different reasons for proceeding in the absence of the Claimant or her representative. In paragraph 35 of the rider to the ET3 the Respondent gave as the reason that:
“… It would have taken a considerable amount of time for the hearing to be heard if it had been rearranged again due to the panel’s diary commitments. …”
However, Loyola Weeks, a member of the disciplinary panel, wrote in paragraph 6 of her witness statement that she was against granting a postponement as the Claimant had given a similar reason, an urgent family matter, in the past for requesting a postponement. Further the Claimant had been excluded for a number of months. It was important that there be no further delay and to make sure patients received a high level of care.[17]Mr Grant referred to the judgment of the Court of Appeal in Teinaz v Wandsworth London Borough Council [2002] ICR 1471 in which it was held that an Employment Tribunal had to be particularly careful not to cause injustice to a party seeking an adjournment where the consequences of the refusal were severe. He contended that similar reasoning applied to an internal disciplinary hearing. It was said that the EJ failed to consider the serious consequence of an adverse decision for the Claimant in deciding the reasonableness of proceeding with the disciplinary hearing in her absence. Accordingly Mr Grant submitted that EJ Postle erred in holding that proceeding with the disciplinary hearing in the absence of the Claimant did not render the dismissal unfair.[18]The EJ did not find that the Panel decided that they could proceed in the Claimant’s absence because her presence and that of her representative would have been futile. It was submitted that Wilkie J pointed out at paragraph 27 of the Claimant’s previous successful appeal (UKEAT/0437/13) from the decision by another EJ, EJ O’Rourke, to strike out her claim, that this is not a case which falls within the exceptional circumstances referred to in the speech of Lord Bridge in Polkey v AE Dayton Services Ltd [1987] ICR 142. Those are circumstances in which the employer reasonably decides that the presence of the employee at the disciplinary hearing would be futile. Therefore depriving them of that opportunity does not render the dismissal unfair. As in the case of the successfully appealed decision of EJ O’Rourke, EJ Postle determined the fairness of proceeding in the absence of the Claimant by posing the question which Lord Bridge in Polkey held impermissible: that of whether the Claimant could have said anything which would have been likely to make a difference to the outcome. Mr Grant submitted that the EJ erred in directing himself at paragraph 6.6:
“6.6. … Given the extent and detail of the investigatory meeting and the Claimant’s responses at the meeting, it is unclear what else the Claimant would have been able to advance or for representative to the allegations at the disciplinary meeting.”
It was contended that this was an approach which was contrary to the judgment of the House of Lords in Polkey .[19]Mr Cramsie, counsel for the Respondent, referred to the chronology of the request for the postponement of the disciplinary hearing. The Claimant had booked her flight to Iran on 18 March 2011. She was informed of the 19 April 2011 date of the disciplinary hearing by letter dated 1 April yet her representative only requested a postponement on 12 April 2011. The Claimant had taken no steps to prepare written representations or to authorise her MDU representative to appear at the disciplinary hearing on her behalf.[20]Mr Cramsie agreed that a finding of gross misconduct had most serious consequences for the Claimant. However he contrasted this case in which the allegations against the Claimant were not disputed with those in Salford Royal NHS Foundation Trust v Roldan [2010] ICR 1457 . In Salford the facts were disputed and the Court of Appeal reinstated the decision of the EJ that the dismissal was unfair for failure to follow a fair procedure. Counsel contended that the EJ was entitled to consider the procedure adopted by the Respondent to be fair “in overall terms” as did the ET in Fuller v Lloyds Bank plc [1991] IRLR 336 at paragraph 43. The Claimant had been given the opportunity at the full investigation to advance any explanation she had to the allegations made against her. She had admitted that she had worked for two other health trusts whilst on sick leave and whilst excluded. She had no good excuse for doing so. In these circumstances the EJ was entitled to conclude that it was reasonable for the Respondent to proceed with the disciplinary hearing in her absence. Discussion and Conclusion on Ground (iv) as Expanded[21]Whilst it is for Employment Tribunals to consider the fairness of a dismissal by applying the words of the statute, when considering the approach to defects in a dismissal procedure there would have to be good reason to depart from the clear guidance given by the House of Lords in Polkey . Although extremely well known, since that guidance was in issue in judgments of two Employment Judges in this case it is worth repeating it. At page 163A-C Lord Bridge held:
“If an employer has failed to take the appropriate procedural steps in any particular case, the one question the industrial tribunal is not permitted to ask in applying the test of reasonableness posed by section 57(3) is the hypothetical question whether it would have made any difference to the outcome if the appropriate procedural steps had been taken. On the true construction of section 57(3) this question is simply irrelevant. It is quite a different matter if the tribunal is able to conclude that the employer himself, at the time of dismissal, acted reasonably in taking the view that, in the exceptional circumstances of the particular case, the procedural steps normally appropriate would have been futile, could not have altered the decision to dismiss and therefore could be dispensed with. In such a case the test of reasonableness under section 57(3) may be satisfied.”
[22]The observations of Wilkie J in the context of the successful appeal from the Judgment of EJ O’Rourke striking out the Claimant’s claim are equally applicable to the Judgment of EJ Postle dismissing it. Wilkie J held:
“27. … This is not a case where it is apparent, from the terms in which the disciplinary body advised itself, that they had concluded that a hearing, at which Dr Nabili would have the opportunity to address them, whether by way of explanation or mitigation, would have been futile. Nor did the Employment Judge address the issue, which he might have addressed, of whether, in the light of the fact that there had been a very full investigation in which the Claimant’s full explanation had been taken and recorded, the Respondent had concluded that it was open to it, and so procedurally fair, to proceed without giving her an opportunity to address the body taking the decision because a hearing with her present, or represented, would have been futile.”
[23]It is apparent from the findings of fact by EJ Postle that when the Respondent convened the disciplinary hearing they intended the Claimant to be present. By letter of 1 April 2011 the Claimant was invited to attend the disciplinary hearing. When told that she would be unable to attend on 19 April 2011, the date given for the hearing, the Respondent by their acting HR director, agreed to a postponement. The EJ made no finding of fact as to who and why that decision was revered the same day, 15 April 2011, and why the Disciplinary Panel on 19 April 2011 took the decision to go ahead. In my judgment the EJ could not have reached a soundly based conclusion that the Respondent decided that the attendance of the Claimant at a disciplinary hearing would have been futile let alone that such a decision was reasonable without making a finding as to why it was taken and whether all relevant circumstances had been taken into account. Teinaz illustrates that prominent amongst those circumstances is the effect of an adverse outcome on the ability of a Claimant to pursue their chosen career. Further, although not referred to by either counsel, in my judgment it would have been important for the EJ to consider and refer to the applicable disciplinary procedure.[24]The reasoning of the EJ that proceeding with the disciplinary hearing in the absence of the Claimant did not render the process unfair is set out in paragraph 6.8 of the Judgment. The EJ held that the Disciplinary Panel believed that an act of misconduct had been committed and that the Respondent had more than reasonable grounds for that belief. “[A]fter all the Claimant had admitted it, and this was after a reasonable investigation”. “[T]herefore” the EJ held that proceeding with the disciplinary hearing in the Claimant’s absence did not render the dismissal unfair.[25]The EJ recorded in paragraph 4.14 of the Judgment that in the investigation meeting the Claimant:
“4.14. … maintained she believed during her period of exclusion she could work for other NHS trusts without informing the Respondent. … The Claimant also states during the meeting her interpretation of the trust’s letter of 21 st April … that she thought she was only required to advise the trust or obtain the agreement of her Medical Director in relation to voluntary work, study leave or annual leave.”
[26]The dismissal letter of 4 May 2011 which is set out in paragraph 4.23 of the Judgment states that:
“… there was overwhelming evidence … that you … were dishonest and lacked integrity towards the employers with whom you worked. The panel found that you had known you had breached the requirements of Maintaining High Professional Standards in the Modern NHS, Section 2 “Restriction of practice and exclusion from work”, and the terms of your employment contract whilst working during your exclusion from work and whilst working for another PCT when absent from work on sickness grounds. …”
It appears from the dismissal letter that the Disciplinary Panel considered the Claimant to have been dishonest. It was for the Disciplinary Panel not the investigating officer to decide whether the Claimant had been dishonest and had knowingly breached the terms of the Respondent’s letter of 21 April 2010, her contract of employment and published standards. The EJ observed at paragraph 6.8 that the Panel had more than reasonable grounds for their belief in the Claimant’s misconduct “after all the Claimant had admitted it”. Whilst the Claimant had admitted that she had worked for other Trusts whilst on sick leave and excluded, the findings of fact do not show that in the investigatory interview she had admitted doing so dishonestly or knowing that she was in breach of the letter of 21 April 2010, her contract of employment or professional standards. Since an important issue for the Respondent as can be seen from the dismissal letter was the Claimant’s state of mind, proper consideration should have been given by the EJ to whether in those circumstances the Respondent did in fact consider that the presence of the Claimant before the disciplinary hearing would be futile and if so whether they were reasonable in so concluding. Further, the EJ failed to consider the fairness of the proceeding in the absence of the Claimant taking into account the impact of an adverse finding on her ability to work as a doctor. Further the EJ failed to have regard to the fact that it was not the opinion of the investigating officer of the Claimant’s honesty and culpability but that of the members of the Disciplinary Panel, having themselves considered her explanations, which was material.[27]The EJ erred in law in his approach to the issue of whether the Respondent adopted a fair procedure in conducting the disciplinary hearing in the absence of the Claimant. Ground of appeal (iv) succeeds. Grounds (ii) and (iii)[28]As the decision of the EJ is set aside on ground (iv) of the Notice of Appeal it is not strictly necessary to determine grounds (ii) and (iii). However, for completeness I will consider these grounds albeit briefly.[29]The Claimant contended before the EJ that the minutes of investigation meetings had been corrected by her and by her representative Mr Milbourne but that the corrected minutes had not been put in the bundles before him. She said that she was not able to prove that the documents before the EJ were not the correct documents as these were about to be recovered from her computer which had been sent to the Netherlands for repair. The Claimant wrote to the ET on 14 January 2015 saying:
“… I have been informed by Seagate that the documents are recoverable by them and will be sent to me as soon as recovered within January 2015. …”
The Claimant stated that the documents were in the Respondent’s possession and she asked to be provided with them. The Claimant complains about “the hearing gone ahead before recovery of these crucial documents”, a complaint which was repeated before me.[30]Mr Cramsie pointed out that the Claimant was given the notes of the investigatory meeting of 22 December 2010. There were two orders for disclosure to be complied with, one, by 28 May 2012 and the other by 30 October 2014. On neither occasion did the Claimant disclose the amended minutes which she said were stored on her computer. On 12 January 2015 the Claimant applied to stay the proceedings before the ET pending the repair of her computer. On 14 January 2015 the EJ refused the application for a stay. Mr Cramsie contended that in the circumstances, the EJ was entitled to refuse the application. Mr Cramsie observed that one year later the Claimant has still not disclosed a copy of the amended minutes. Counsel pointed out that the Claimant gave oral evidence to the EJ of the differences she had identified in the minutes which are set out in the Judgment. He contended that grounds (ii) and (iii) raise no error by the EJ. Discussion and Conclusion on Grounds (ii) and (iii)[31]EJ Postle held at paragraph 6.5 of his Judgment that the first time the Claimant raised questions about the accuracy of the transcript of the investigatory meeting was at the EAT on 18 February 2014. As Mr Cramsie observed, at that time the Claimant had not sent her computer to the Netherlands for repair and there is nothing to indicate that she did not have access to any amendments which she or her representative had made to the minutes of the investigatory meeting 22 December 2010provided to her after that.[32]In my judgment the case management decision taken by EJ Postle in January 2015 not to grant an adjournment in the hope that documents would be recovered from the Claimant’s computer was not made in error of law or perverse. If corrections had been made to the minutes, they were made by the Claimant or her representative and were within her control since at least the beginning of 2011. The Claimant stated that her computer was sent to the Netherlands and the documents were likely to be recovered during the course of January 2015. If, as she contended, the documents were “crucial” she could have taken steps to print and save them in the three and a half intervening years.[33]In any event the Claimant was able to give oral evidence on the points on which she disagreed with the Respondent’s notes of the disciplinary hearing. These were noted in paragraph 6.5 of the Judgment. The Claimant said that the words “in hindsight” were added which as counsel for the Respondent observed at the time, went to her credit rather than against her. The other inaccuracy was said to be “I told the investigatory meeting that I was on garden leave”. The Claimant has advanced no basis on which the finding of the EJ that he was satisfied that the transcript of the investigatory meeting is a fair and accurate reflection of that meeting may be challenged.[34]Grounds of Appeal (ii) and (iii) do not succeed and are dismissed. Disposal[35]As appeal ground (iv) as expanded succeeds the dismissal by the Judgment of EJ Postle of the claim for unfair dismissal is set aside.[36]The claim for unfair dismissal is remitted for rehearing in light of determination by a newly constituted Employment Tribunal of the reason for and reasonableness of the decision to proceed with the disciplinary hearing in the absence of the Claimant in the circumstances and their effect on the fairness of the dismissal for the purposes of Employment Rights Act 1996 section 98(4). All other findings of fact and conclusions reached in the Reasons sent to the parties on 24 February 2015 are to stand. The rehearing is to be before a different Employment Judge, not Employment Judge Postle or Employment Judge O’Rourke.[37]The venue for the remitted hearing is to be determined by an Employment Judge after consideration of any evidence to be submitted by the Claimant about her caring responsibilities for her sister and which she said affected her ability to travel.[38]At the hearing I expressed concern at the expenditure of public money on these proceedings which are now to go before a third Employment Judge having been before the Employment Appeal Tribunal on two occasions. The parties are invited to consider whether they can now reach a satisfactory resolution of this matter.