Appeal No. EAT/513/92

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 14th April 1994
	Judgment delivered on 17th June 1994

	Before

	HIS HONOUR JUDGE J PEPPITT QC

	MISS A MACKIE OBE

	MRS P TURNER OBE

MRS V WHITTINGTON	APPELLANT

DR GREEN & ORS	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR J WAITHE
(of Counsel)
Martin & Co
87A Kingsland High Street
LONDON E8 2PB

For the Respondents	MR J DEVAL
Representative
North Thames Regional Office
British Medical Association
Tavistock Square
LONDON WC1H 9JP

HIS HONOUR JUDGE PEPPITT QC         This is an appeal from a decision of the London (North) Industrial Tribunal sent to the parties on 14th May 1992.  The Tribunal, after a hearing extending over seven working days decided that the Appellant, Mrs V Whittington, had not been unfairly dismissed.

	Mr Waithe, on behalf of the Appellant, attacks the Tribunal's decision on three separate grounds:
(i)Actual or apparent bias on the part of the Chairperson, Mrs Stoll.
(ii)Misdirection in law; and
(iii)perversity.
These grounds are developed in the Notice of Appeal and in a Skeleton Argument which runs to over six closely typewritten pages.  We mention the latter document only because it contains grounds additional to those appearing in the Notice of Appeal; we have, however, considered those additional grounds in arriving at our decision.

Bias
(i)  Apparent bias at the commencement of the hearing
The Respondents are general medical practitioners with a National Health Service practice in Welwyn Garden City.  The Appellant was their practice manager.  At the commencement of the hearing Mrs Stoll informed the parties' representatives that her husband was a general medical practitioner and a member of the BMA.  He had served on a number of BMA Committees but had now retired from NHS practice.  She asked whether in those circumstances there was any objection to her conducting the hearing.  Both Mr Waithe and Mr Deval of the BMA who represented the Respondents replied that there was not.  The hearing then began.

Mr Waithe, whilst accepting the facts set out above submitted that this was not enough.  Mrs Stoll, he said, should have declined to sit on the Tribunal notwithstanding his consent that she should do so.  She should also have disclosed that her husband was a Fellow of the BMA, a position which we were told was purely honorary carrying no obligations and conferring no privileges.

In support of his submission Mr Waithe cited to us a number of authorities on the appearance of bias including R. v. Sussex Justices ex parte McCarthy (1924) 1 KB 259 and Metropolitan Properties Company FGC Ltd v. Lannon (1969) 1 KB 598.  Mr Waithe was not able to refer us to any authority in which an allegation of apparent bias had been upheld where the complaining party had submitted to the jurisdiction of the Tribunal after disclosure of the material facts, but he submitted that in such a case it was the duty of the Tribunal to disqualify itself whether or not the party appearing before it objected.

We do not accept this submission.  If a legitimate objection could have been taken to Mrs Stoll's Chairmanship of the Tribunal on account of her medical connections, the time to take it was when the relevant disclosure was made.  By consenting to her participation in the hearing Mr Waithe on his client's behalf, in our judgment, waived any right to take the point at a later stage.  We are satisfied that proper disclosure was made by Mrs Stoll and that the absence of any reference in that disclosure to her husband's fellowship of the BMA was of no significance.

 We have also considered a subsidiary allegation of apparent bias referred to in the Appellant's Skeleton Argument.  One of the members of the Tribunal, Mr Cutler, sat on various committees in the area of Welwyn Garden City but did not know any of the parties.  This fact was disclosed to Mr Waithe and Mr Deval and no objection taken to it.  In the circumstances it seems to us that no reliance can be placed upon it.

(ii)   Actual or apparent bias in the course of the hearing
Mr Waithe next submitted to us that throughout the hearing Mrs Stoll displayed bias against the Appellant and her witnesses.  His submission was supported by affidavits sworn by the Appellant herself, by one of her witnesses, Renate Kempa, and by a friend who was present throughout the hearing, Angela Kane.

We have considered these affidavits with some care.  We also have considered Mrs Stoll's letters of 1st October 1992 and 6th April 1994 in which she commented upon the allegations of bias which they contain.  We do not propose to examine each allegation separately because we are satisfied that whether we view them individually or collectively they do not establish either that Mrs Stoll was biased or that her conduct of the hearing could have created the impression of bias in the minds of right-thinking persons.  It is apparent that the hearing was a trying one for all concerned and it is almost inevitable that in the course of a hearing of this length a Tribunal will give some indication of the extent to which it considers evidence called before it to be relevant to the material issues.  As we see it Mrs Stoll went no further than this.

Accordingly we reject the allegation of bias.

Misdirection
	Mr Waithe submitted that the Tribunal had misdirected itself in the following respects:
(i)in failing to hold that the Respondents acted unlawfully by permitting claims for obstetric services to be made on forms appropriate only for doctors on the NHS obstetric list whereas in some cases the Respondent concerned was not on that list.

(ii)in finding that the Appellant's dismissal was fair notwithstanding that she was not given the opportunity to appeal from the decision to dismiss her.  There was a right of appeal contained in her contract of employment.

(iii)in their findings as to the size and resources of the Respondents' organisation, the investigation into the Appellant's misconduct which the Respondents carried out, the procedure adopted at a disciplinary hearing on 30th November 1990 and the reasonableness of the Respondents' decision to dismiss.

	To put these contentions into context we must summarise the facts found by the Tribunal.

	The incident which led to the Appellant's dismissal arose from a decision taken by the Respondents in the summer of 1990 in relation to claims for obstetric services.  There were two forms on which such claims might be made.  The first, coloured pink, was for use by doctors not on the NHS obstetric list.  The second, coloured buff, was for the use of doctors who were.  Claims made on buff forms were paid at a higher rate.

	Dr Barbara Hanak joined the Respondents' practice in May 1990.  She was on the NHS obstetric list.  Dr Green was also on the list but the other Respondents were not.  Dr Hanak suggested that she should set up a practice ante-natal clinic and that she and Dr Green should assume ultimate responsibility for all obstetric services.  By this means all claims for obstetric services could be made on buff forms and paid at the higher rate whichever of the Respondents actually saw the patient.

	The Appellant thought that this procedure was improper and said so.  She was unwilling to follow the Respondents' instruction that it should be put into effect.  So Dr Hanak telephoned the Maternity Claims Department of the Family Health Services Association who confirmed that the procedure was correct.  The Appellant refused to accept this and insisted upon telephoning the FHSA herself.  She said to the FHSA:
	"What they are doing is illegal.  I want you to know that I want no part in it.  I will not let my staff take any part in it".
In these circumstances the Respondents decided to appoint a meeting to enable the Appellant to explain her conduct.  Details of the Respondents' complaints against her were contained in a letter dated 23rd November 1990.  The Respondents' main complaint was
	"... that whilst speaking to an employee of Hertfordshire FHSA you accused the partners of dishonesty.  We regard this as serious misconduct".

	The meeting was held on 30th November 1990.  The Appellant was accompanied by Miss Kempa.  She had with her a lengthy written statement.  She told the Respondents that she proposed to read it and that if there were any interruptions she would leave.  The Respondents permitted her to do so.  The reading took 40 minutes.  When she had finished the Appellant said that she would be suing the Respondents for `defamation and wrongful dismissal'.  She added that she was leaving and would not be returning, a statement which she repeated to Dr Green shortly afterwards.

	The Tribunal further found that the meeting of 30th November was a disciplinary hearing and that the Appellant knew that this was so.  At the conclusion of the meeting the Respondents believed that the Appellant had resigned and wrote to her on 3rd December 1990 accepting her resignation.  The Appellant's reply, dated 5th December 1990 was that she had not resigned.  So in a long letter dated 11th December 1990 the Respondents dismissed her.  The letter concluded:
	"We are therefore terminating your employment as of today.  The main reason for your dismissal is that you telephoned Hertfordshire FHSA and accused the partners of deliberately falsifying maternity claims, although we accept you believe this to be correct, despite Dr Hanak's reassurance to the contrary.  It is your action in discussing this matter with the FHSA rather than the partners which we feel constitutes serious misconduct".
Having considered the facts set out above the Tribunal stated:
	"Looking at the realities of the situation and considering the size and resources of the respondents' organisation, we find that they acted reasonably in reaching the decision that there was nothing more that they could do and that they had no alternative but to dismiss the (appellant)".

	We turn now to consider the Appellant's allegations of misdirection against this factual background.
(i)The Tribunal found as a fact that Mrs Fraser of the FHSA had confirmed to Dr Hanak that the new procedure adopted by the Respondents for the purpose of making obstetric claims was `the correct procedure'.  There was no evidence before the Tribunal to the contrary and Mr Waithe wholly failed in his argument to persuade us that Mrs Fraser was wrong.  Accordingly we reject this allegation of misdirection.

(ii)Although the Appellant's contract of employment contained a right of appeal against dismissal the Tribunal found that:
"In the circumstances of this case the fact that the (appellant) was not offered the possibility of an appeal does not render the dismissal unfair".
This was in our judgment a finding which the Tribunal was entitled to reach.  Not every procedural defect renders a dismissal unfair and in any event the Appellant did not seek an appeal.  Had she done so, Dr Green, the Respondents' senior partner `would have been perfectly prepared to see the appellant and to listen to any argument she may have had'.  In the circumstances we reject Mr Waithe's second allegation of misdirection.

(iii)The Tribunal's finding as to the Respondents' size and resources, their investigation of the Appellant's misconduct and their conduct of the meeting on 30th November 1990 were findings of fact which there was evidence to justify.  We cannot accordingly interfere.

Perversity
	There are many allegations in the Notice of Appeal and in the Appellant's Skeleton Argument of incorrect findings of fact by the Tribunal.  We do not propose to deal with each such allegation separately but simply say that in our judgment there was evidence which the Tribunal was entitled to accept which supported all of its material findings.  The Appellant's real complaint is that the Tribunal preferred the evidence of the Respondents to that which she and her witnesses gave.  That is a matter for the Tribunal, not for us, and we therefore reject Mr Waithe's third ground of appeal.

	In the circumstances, therefore, this appeal must stand dismissed.