Appeal No.	 EAT/1002/01/TC

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	                   At the Tribunal
	      On 18 September 2002
Judgment delivered on 31 January 2003

Before
MS RECORDER SLADE QC
LORD DAVIES OF COITY CBE
PROFESSOR P D WICKENS OBE

MRS C HILL	APPELLANT

NORTH STAFFORDSHIRE COMBINED
HEALTHCARE NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR ANDREW GEORGE
(of Counsel)
	
For the Respondent	MR PAUL DEAN
(of Counsel)
Instructed by:
Mills & Reeve
Solicitors
Midland House
132 Hagley Road
Edgbaston
Birmingham B16 2NN	

MS RECORDER SLADE QC

1	This is an appeal by Mrs Hill from the Decision of an Employment Tribunal dismissing her complaint of unfair dismissal against her former employer, North Staffordshire Combined NHS Trust (‘the Trust’).

Factual Background
2	Mrs Hill had been employed by the Trust and its predecessors for more than twenty seven years until her dismissal for gross misconduct on 15 October 1999.  At the time of the events leading to her dismissal, she occupied the post of Ward Manager on a ward at Bucknall Hospital for the elderly mentally ill.  Following receipt of a number of serious allegations about her conduct, Mrs Hill was suspended from duty on full pay on 12 October 1998.

3	It is apparent from documents put before us by Mr Paul Dean, Counsel for the Trust, without objection from Mr Andrew George, Counsel who represented Mrs Hill under the ELAAS scheme, that following an investigation report by a Mrs J Gibson, Community Manager, Mrs Hill was informed by letter dated 15 July 1999 that a disciplinary hearing was to be held on 27, 28 and 29 July 1999.  Following a letter from her General Practitioner stating that she would be unfit to attend, the Trust arranged for Mrs Hill to be seen by Dr W N Trethowan, Consultant Occupational Physician.  The disciplinary hearing was adjourned.

4	Dr Trethowan saw Mrs Hill on 6 August and 15 September 1999 and wrote to Mrs Lynn Hunter, Personnel Manager of the Trust, giving his opinion on 10 August and (wrongly dated) 10 September respectively.  Following the receipt of Dr Trethowan’s September letter, by letter dated 21 September 1999, Mrs Hunter was notified that the disciplinary hearing was re-arranged for 13, 14 and 15 October 1999.
5	Mrs Hill’s then union representative, Mr Mack, applied for an adjournment at the start of the hearing.  His application was refused. Mr Mack withdrew and the hearing took place in the absence of Mrs Hill and her representative.  Mrs Breen, who conducted the disciplinary hearing, by letter of 15 October 1999 informed Mrs Hill that she considered that 22 of the 24 allegations against her were true and that she had decided to dismiss her.  

6	Mrs Hill appealed against the decision to dismiss her.  The appeal was to be held on 10 and 11 January 2000.  The appeal panel was chaired by Kirk Mackenzie.   David Mack of Unison represented Mrs Hill who was present.  In circumstances which are relevant to one of the grounds of this appeal, David Mack informed the panel that she was withdrawing her appeal.  

7	An Originating Application complaining of unfair dismissal was presented by Mrs Hill on 11 January 2000.  She complained that the decision to proceed with the disciplinary hearing on 13, 14 and 15 October 1999 rendered the dismissal unfair.  

The Disciplinary Hearing
8	In paragraph 13 of its Decision the Employment Tribunal held that:
“the procedure adopted by the respondent was reasonable and fair, both at the initial disciplinary hearing and at the appeal.”
In paragraph 10, the Employment Tribunal concluded that the decision to proceed with the disciplinary hearing on 13, 14 and 15 October 1999 was one which was open to a reasonable employer.  

9	Mr George, on behalf of Mrs Hill, submits that in concluding that the Trust acted fairly in proceeding with a disciplinary hearing on 13, 14 and 15 October 1999, the Employment Tribunal misunderstood the evidence and/or applied the wrong legal test and/or was perverse.  
Misunderstanding the medical evidence
10	It is contended on behalf of Mrs Hill that the Employment Tribunal misunderstood the medical evidence when it observed in paragraph 9 of its Decision that the medical evidence implied a postponement for a ‘lengthy and indefinite period’  Mr George submits that whilst Dr Trethowan merely stated in his letter of 10 September 1999 that Mrs Hill would not be fit to attend a disciplinary hearing within the next four weeks and that he would review her condition again in six weeks time and that these statements did not imply a ‘lengthy and indefinite period’ of delay.  

11	Mr Dean, in answer, points out that the Employment Tribunal referred not only to the report following the examination on 15 September 1999 but also to the earlier report of 10 August 1999 and to the letter from Mrs Hill’s General Practitioner dated 30 September 1999.  He submits that the Tribunal did not misunderstand the medical evidence when making the observation challenged by Mr George.  

12	We accept the submission made by Mr Dean.  The observation of the Employment Tribunal that the medical evidence implied a postponement for a ‘lengthy and indefinite period’ was open to it on the evidence.  Both letters written by Dr Trethowan indicated that Mrs Hill was at the time of writing unfit to return to work and by implication to attend a disciplinary hearing.  The letter of 10 September 1999 responded to a request made in a letter dated 3 September 1999 asking for advice:
“whether [Mrs Hill] is likely to be well enough to attend a disciplinary hearing in the next 4 weeks or if her condition is expected to continue for a significant period of time”

In Dr Trethowan’s letter of 10 September 1999 he observed that Mrs Hill was:
“most unlikely to be fit enough to return to work within the next four weeks and by implication to attend a disciplinary hearing.  Overall I would expect her condition will ultimately improve and resolve, but it is really quite difficult to give you any clear indication as to when this will be beyond saying that it is unlikely for the next few months”
In our judgment these observations plainly support the observation of the Employment Tribunal.  Further, the letter from Mrs Hill’s General Practitioner dated 30 September 1999 referred to by the Employment Tribunal stated:

“…….there are strong medical grounds for deferring the whole hearing until Cathryn is well enough to attend in person”

In effect the General Practitioner was proposing a postponement of indefinite length.  

13	In our judgment the Employment Tribunal did not misunderstand the medical evidence.

14	Secondly it is contended on behalf of Mrs Hill that the Employment Tribunal misunderstood the evidence in that it proceeded on the basis that by the date of Dr Trethowan’s September letter, dates for the rearranged disciplinary hearing had been set.  Whereas the dates were only notified to Mrs Hill by letter dated 21 September 1999, Mr George draws our attention to paragraph 5 of the Decision in which the Tribunal refer to a ‘disciplinary hearing which had been arranged’ at the time of Dr Trethowan’s letter of 10 September 1999.  

15	Mr Dean contends that it was the postponement rather than the initial setting of the date for the disciplinary hearing that was the issue as the Employment Tribunal properly found.  

16	It appears from a letter from the Trust to Mrs Hill dated 21 September 1999 which was before the Employment Tribunal that the Trust set the dates for the rearranged disciplinary hearing after it received the September report from Dr Trethowan.  

17	In our judgment Mr George has not established that the Tribunal proceeded on the basis that the dates for the disciplinary hearing had been fixed by 10 September 1999.  The sentence which contains the phrase to which objection is taken starts with a reference to the report from Mrs Hill’s General Practitioner dated 30 September 1999.  By that date the disciplinary hearing had been arranged.

18	Even if we were wrong in our interpretation of the material passage in the Decision, we accept Mr Dean’s submission that the material issue for the Tribunal was the fairness of the decision to proceed with the disciplinary hearing on 13, 14 and 15 October.  It is to be observed that this was not a case on which the length of time since a hearing had been fixed was a consideration taken into account in deciding whether to agree to a postponement.

Misunderstanding the evidence as to the length and purpose of the requested adjournment
19	Mr George contends that the Employment Tribunal failed to make any reference in paragraph 9 of its Decision to what he described as the Applicant’s fall back position; namely a request for adjournment of the disciplinary proceedings to enable Mrs Hill’s representative, Mr Mack to prepare for the hearing.

20	Mr Dean submits that Mrs Hill did not ask for a postponement of the disciplinary hearing in order to give the representative more time to prepare.  He further states that paragraphs 7, 8 and 9 of the Decision adequately set out the position of Mrs Hill.  Further, Mr Dean draws attention to the fact that this reason for requesting an adjournment appears on none of the documents.

21	The Employment Tribunal plainly took into account the fact that Mrs Hill was requesting a short adjournment until after her further appointment with Dr Trethowan.  Reference is made to the request for a short postponement in paragraphs 6, 8 and 9 of the Decision.  The Tribunal did not misunderstand the length of the postponement which was being requested.

22	As for the purpose for which the adjournment was requested, the Tribunal was fully entitled and indeed obliged to have regard to the contemporaneous documentary evidence.  In his letter dated 13 October 1999 Mr Mack refers to Mrs Hill wishing to be present at the hearing.  Mrs Hill wrote to Mrs Breen on 15 October 1999:
“My UNISON rep advises me that as far as UNISON were concerned the hearing should have been cancelled due to my ill health.  This was the reason for me asking Dave Mack to write to you on my behalf.  As the letter stated we asked for a short postponement until I had been to Dr Trethowan again and not a pro (sic) longed postponement like you had indicated in your letter.”

The reason for the requests for the postponement given by Mrs Hill and her representative at the time coupled with the fact that the length of the postponement requested was linked to a step in the inquiry into Mrs Hill’s medical state could not possibly justify a conclusion that the reason for the request was that advanced by Mrs Hill before the Employment Tribunal.  It cannot be said that the Employment Tribunal misunderstood the evidence relating to the length of and reason for the requested postponement of the disciplinary hearing.

Applying the wrong test
23	The amended grounds of appeal submitted on behalf of Mrs Hill assert that the Employment Tribunal erred in applying the ‘range of reasonable responses’ test to the question of whether it was reasonable to refuse a request temporarily to adjourn a disciplinary hearing on the grounds of ill health.  However this point was not pursued in the Skeleton Argument or in oral submissions made by Mr George to us.  Mr George was plainly right not to pursue this ground of appeal in the light of Whitbread PLC -v- Hall [2001] ICR 699 cited by Mr Dean in his Skeleton Argument.  Hale LJ in a judgement with which the other two members of the Court of Appeal agreed, held that the ‘band of reasonable responses’ test should be applied to both substantive and procedural elements of the decision to dismiss (see p 705: F para 16, see also p 706 H para 18, 707 E para 21).  

Perversity
24	Mr George submitted that it was unfair to the point of perversity for the Trust to fix the dates for the disciplinary hearing during a period when it was told that Mrs Hill would be medically unfit to attend.  He contends that Mrs Hill had a contractual procedural right to be present at the disciplinary hearing.

25	Mr Dean refers to the fact that Mrs Hill had been supplied with the investigation reports together with statements of witnesses in July when she was informed of the allegations she was to face at a disciplinary hearing.  

26	The Employment Tribunal referred to the letter dated 14 October 1999 setting out the reasons why Kay Breen decided to proceed with the disciplinary hearing.  Those reasons were also referred to in paragraphs 8 and 9 of the Decision.  

 “8	The respondent was motivated, however, by a number of matters, and not merely the stated basis for the applicant’s application for a postponement.  Their information strongly suggested that a short postponement of the kind sought by the applicant would not be of much use.  There would be no point in postponing to a date on which the applicant was likely still to be unfit to attend.  Further, the respondent was to call numerous witnesses at the hearing, some of whom were themselves complaining of considerable stress and threatening to leave their employment unless the matter was brought to a conclusion.  In the light of the existing medical evidence it did not seem likely that a further appointment with Dr Trethowan would change matters greatly.  Still further, the applicant had been suspended on full pay for 11 months since 12 October 1998 and there was some understandable concern that the matter should be progressed with reasonable expedition.
9.  The respondent faced a difficult decision.  To proceed in the absence of the applicant would incur the risk of being criticised for unfairness.  To postpone for the short period sought by the applicant offered no realistic prospect, in the light of the medical evidence, that she would be fit to attend at the resumed hearing.  To postpone for the lengthy and indefinite period implied by the medical evidence would foreseeably cause the exacerbation of existing problems with other staff, would involve a further lengthy period of suspension on full pay for the applicant and offered no certainty that the applicant would be fit to attend a resumed hearing whenever that might be.”
The Employment Tribunal also had before it the letter from Mrs Breen to Mrs Hill dated 21 September 1999 in which she wrote when giving the dates for the disciplinary hearing:
“I hope that your health may have improved enough to enable you to attend on the above dates, but if you feel unable to do so I will conduct the hearing in your absence.   If you do not attend in person, I hope that you will instruct your representative to present your case and/or submit your representations in writing so that I have the opportunity to hear all relevant information during the hearing”
In our judgment it was open to the Employment Tribunal in the evidence before it to conclude that a decision to proceed with the disciplinary hearing on 14, 15 and 16 October 1999 was within the band of reasonable responses of a reasonable employer.

27	Mr George fairly stated that that he did not submit that there can be no circumstances in which disciplinary proceedings can be conducted in the absence of an employee against whom complaints have been made but who is unable to attend.  In our judgment the fairness of the proceedings must depend upon the particular facts in each case.  In this case the Employment Tribunal did not misunderstand the evidence, err in law or come to a perverse conclusion in deciding that the Trust did not act unfairly in proceeding with the disciplinary hearing in the absence of Mrs Hill.

The Appeal
Failure to give adequate reasons
28	Mr George contends that the Employment Tribunal erred in failing to make a finding of fact that Mr Mack took advice and then advised Mrs Hill to withdraw her appeal in the light of the behaviour of the Chairman of the Appeal Panel, Mr Mackenzie.  

29	It is alleged in the Amended Notice of Appeal that Mr Mack, Mrs Hill’s Unison representative at the appeal hearing, was of the view that the Chairman of the Appeal Panel had originally denied all knowledge of an amnesty given to witnesses and that this denial had been contradicted by a witness, Mrs Turner.  After receiving advice, he then advised Mrs Hill to withdraw her appeal.  

30	Mr Dean refers to the relevant findings of fact made by the Employment Tribunal.  Further he contends that the Employment Tribunal was under an obligation to make findings as to the reasons for the advice given by a representative. 

31	The Employment Tribunal at paragraph 11 of the Decision that the reason for the objection by Mrs Hill and her representative to the chairmanship of Mr Mackenzie was that he had been involved in granting an amnesty to witnesses against her who had, on the first occasion of their being interviewed, not given all the details which they gave subsequently.  

32	The Tribunal made further material findings of fact.  It found that the witnesses were granted an amnesty to the limited extent that they would not be penalised for their late disclosure of allegations.  They were not offered any amnesty to exempt them from disciplinary action for any offences that they may themselves have committed.  The Tribunal further found as a fact that:
“Mr Mackenzie raised at the outset of the hearing on the first day the question of the amnesty and invited Mr Mack to make such points as he wished.  Mr Mack accepted the respondent’s notes of that part of the appeal hearing as accurate.  Mr Mack and the applicant elected to proceed with the appeal at that stage.  Contrary to the evidence of Mr Mack, the Tribunal found that there was no contradiction of any substance between what Mr Mackenzie had said on the first day of the hearing, and what Lynne Turner said on the second day in evidence.”
The Tribunal went on to conclude:
“…..the mere fact of Mr Mackenzie’s personal involvement in granting that amnesty, in its limited terms, was not sufficient to render him an improper person to be a member of the panel hearing the appeal and to chair it.”

33	The Tribunal found:
“The appeal commenced on 10 January and the appeal was withdrawn on 11 January when the applicant and her representative took exception to the chairmanship of Mr Mackenzie.”

34	In our judgment the Tribunal cannot be said to have failed to give adequate reasons for its decision in relation to the appeal hearing.  The assertion that Mr Mack, Mrs Hill’s representative at the appeal hearing, took advice before advising her to withdraw the appeal was immaterial to the Tribunal’s consideration of the fairness of the appeal hearing or the propriety of Mr Mackenzie’s chairmanship of the appeal panel.  

Perversity
35	An unparticularised allegation of perversity is made in the grounds of appeal.  This was developed briefly in oral submissions before us as an allegation that it was perverse for the Employment Tribunal not to hold that the involvement on the appeal panel of the person who took the decisions to grant an amnesty rendered the appeal hearing unfair.

36	In our judgment it cannot be said that on the findings of fact properly made by the Employment Tribunal which we have set out above, the conclusion in relation to the appeal was perverse.  

The Trust’s Respondent’s Answer
37	Mr Dean contends that if we were to find that there was a deficiency in the disciplinary hearing in that Mrs Hill was not present and the hearing proceeded in her absence, that deficiency was remedied at the appeal hearing, until cut short by Mrs Hill withdrawing her appeal after lunch on the second day.  He relies, in support of this proposition, on Whitbread PLC -v- Mills [1988] IRLR 501 and Louis -v- Coventry Hood Co Ltd [1990] ICR 54 at p 58E,

38	Mr George meets this contention by making two points.  First he says that the Decision of the Tribunal does not contain sufficient findings of fact for the appeal to be relied upon as remedying any defect in the disciplinary hearing.  He relies upon Whitbread at p 509 para 55 and on Byrne -v- BOC Ltd [1992] IRLR 505 in which Mr Justice Knox, giving the judgment of the Employment Appeal Tribunal held at paragraph 17 that where the first stage of the disciplinary hearing is seriously flawed:
“…….it is essential, if the appellate process is to be properly treated as establishing fairness overall, for it to be able to stand on its merits as conferring upon the employee all the rights which the contract of employment is intended to protect, morally proper notice of the complaint, and a full opportunity of stating the employee’s case”

Secondly, he refers to the Employment Rights Act 1996 section 127A to contend that the legislature has determined that failure to take advantage of an internal appeal procedure may be penalised by a reduction in the compensatory award.  Mr George contends that failure to exercise an internal appeals procedure cannot render an unfair dismissal fair.  He contends that this proposition is well established and refers to Chrystie -v- Rolls Royce (1971) Ltd [1976] IRLR 336 and Hoover Ltd -v- Forde [1980] ICR 239.

39	The appeal process in this case was not completed.  The fact that it was not completed because it was aborted by Mrs Hill is immaterial.  An employee is not obliged to pursue an appeal against his dismissal.  If he fails to do so, since the amendment to the Employment Rights Act 1996 effected by the Employment Rights (Disputes Resolution) Act 1998 see sec 13 (SI 1998/1658 at article 3(6) ) he may suffer a reduction in any compensation award for unfair dismissal.  However, failure to pursue an internal appeal does not affect the fairness of dismissal (see Chrystie and Hoover Ltd). 

40	In our judgment, the decision reached on appeal is an essential part of the comprehensive hearing referred to in Whitbread & Co PLC -v- Mills [1988] IRLR 501 page 509, para 55 and Byrne -v- BOC Ltd [1992] IRLR 505 at para 17.  In this case the appeal process was not completed.  It therefore could not have been relied upon to remedy any defect in the original disciplinary procedure.  It is not apparent from the Notice of Appearance that before the Employment Tribunal it was being asserted by the Trust that if there was a defect in the disciplinary hearing the defect was cured by the appeal hearing.  In any event, and perhaps for this reason, the Decision does not contain findings of fact relating to the appeal hearing other than those relating to the challenge to the chairmanship of Mr Mackenzie.

41	For the reasons given we have concluded that the Employment Tribunal did not err in deciding that the procedure adopted by the Respondent both at the disciplinary hearing and at the appeal was  reasonable and fair.  Our observations on the Respondent’s Answer are therefore obiter.

The conduct of the Employment Tribunal hearing
42	It is alleged in the Amended Notice of Appeal that the Employment Tribunal breached the requirements of procedural fairness and/or natural justice.  Two complaints are made.  First that the Tribunal stated that Mrs Hill’s husband would be removed from the room if he ‘interrupted’.  Secondly it is contended that the Tribunal gave insufficient time and attention to considering documentation which Mrs Hill had collated.

43	In support of these grounds of appeal Mr and Mrs Hill have sworn affidavits.  The Chairman and the lay members commented in writing on the affidavits.  

44	The affidavits of Mr and Mrs Hill depose to Mr Hill intervening during cross-examination of his wife to point out that his wife had already answered a question which he felt had been asked four or five times.  They state that:
“ the Chairman told [Mr Hill] ‘I should not interrupt and if I interrupted again I would be removed from the room.’ ”
Mr Hill then stated that he could not say anything on his wife’s behalf.  
45	Both Mr and Mrs Hill depose to the Chairman stating that the Tribunal had read other statements, Mrs Hill refers to pages 3 - 51 over a one and a half hour lunch break.  Mrs Hill contends that the Tribunal could not have read the documents in such a short time.  

46	The Chairman had no personal recollection of the events referred to regarding Mr Hill which were alleged to have taken place about a year earlier.  He refers to the record of proceedings which showed that there was an adjournment of two hours and eight minutes for lunch on the day in question.   One lay member agreed that the Chairman advised Mr Hill that if he continued to interrupt during the cross-examination by the Respondents, he would have to leave the room.  The member commented:
“However he had repeatedly interrupted the cross-examination and left the Chairman with little choice, but to tell him to be silent or he would have to leave the room.”
The second lay members states:
“I also remember that the applicant’s husband did attempt to suggest answers to his wife while she was being cross-examined and that the Chairman had to inform him that his wife must answer for herself”
He added:
“I recall that we did take documents out with us when we adjourned and read them over the lunch break”
Before returning, the Chairman asked my colleague and I whether we had had sufficient time to read them.  We both replied that we had and the Chairman resumed the hearing.

47	On the material before us, Mrs Hill has not established that the Employment Tribunal failed properly to consider the material she placed before it.

48	Mr Dean referred to the procedure laid down in Facey -v- Midas Retail Security and Whitgift Centre Management [2000] IRLR 812 for dealing with cases where there is a sharp conflict of primary fact between a party and an Employment Tribunal.  He suggested that in this case the matter would not be advanced by seeking further evidence.  We agree and consider that we would not be assisted by sworn witness statements or other steps.  
49	On the material before us which we have referred to it is clear that the Tribunal took sufficient time to consider the forty eight pages of documentation provided by Mrs Hill.  The fact that she was asked no questions about it does not indicate that it was not considered.  If she had any point to make on a particular document or passage, no doubt she could have done so.  

50	As for the comment of the Chairman to Mr Hill, it appears from the evidence before us that he told Mr Hill words to the effect that if he continued to interrupt during the cross-examination by the Respondents he would have to leave the room.  One lay member stated that Mr Hill had repeatedly interrupted the cross-examination and the other that Mr Hill did attempt to suggest answers to his wife while she was being cross-examined.  The Chairman commented that he:
“regards it as inconceivable that he would have suggested to Mr Hill that he might have to leave the tribunal room unless Mr Hill’s interruptions were persistent and, in the judgment of the Chairman, tending to disrupt the proper conduct of the proceedings”

51	Mrs Hill has not established that the Tribunal proceedings were conducted inappropriately in the ways alleged.  A Tribunal is to conduct a hearing in an appropriate and just manner (see Employment Tribunals (Constitution and Rules of Procedure) Regulations 2001 Schedule 1 Rule 11).  A Chairman is entitled to exercise appropriate control over someone who is interrupting the proceedings.   On the material before us to which we have referred, we conclude that the Chairman did not behave inappropriately in seeking to restrain Mr Hill’s interruptions.  Mrs Hill gave evidence.  Five witnesses gave evidence to support her case.  As is recounted in paragraph 1 of the Decision, both parties submitted closing arguments in writing.  It cannot be said that the Chairman’s comment to Mr Hill inhibited the presentation of Mrs Hill’s case.

Conclusion
52	Despite the valiant efforts of Mr George, this appeal is dismissed.  The Respondent’s Answer seeks to support the Decision of the Employment Tribunal on other grounds rather than raise a cross-appeal.  The ground raised in the Respondent’s Notice is otiose in the light of our rejection of all the grounds of appeal including that relating to the fairness of the disciplinary hearing.