Appeal No. EAT/868/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 23 November 1994

	Before

	HIS HONOUR JUDGE J HULL QC

	MRS R CHAPMAN

	MR S M SPRINGER MBE

MR D A WATLING	APPELLANT

GLOUCESTERSHIRE COUNTY COUNCIL	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING 

Revised

	APPEARANCES

For the Appellant	NO APPEARANCE BY OR
REPRESENTATION ON
BEHALF OF THE
APPELLANT

	

	JUDGE HULL QC:  Mr Watling who does not attend before us today appeals to us from a decision of the Industrial Tribunal sitting at Bristol under the Chairmanship of Mr Toomer with two Industrial Members on 19 May and 4 July 1994.

	Mr Watling was first employed by Gloucestershire County Council on 15 November 1984.  He is a professional occupational therapist and he is now aged 45.  He was allowed to undertake work, not apparently as an occupational therapist but in other alternative therapies, as they were referred to, on a private basis in his own time which was generally understood to be in the evenings, weekends or other holiday times but not during the day when he was employed, of course, as an occupational therapist.  His work involved him in visiting various people with disabilities, usually at home; sometimes at work; and advising them on various matters including special apparatus.

	In 1990 there was a difficulty.  We do not need to go into all the details but he was apparently seeing a private patient and was seen by Mrs Wheeler, an area manager employed by the Gloucestershire County Council, and the main purpose of the disciplinary interview appears not to have been concerned with the actual time at which he saw the patient; but at that time Mrs Wheeler discovered that he had been seeing the patient at times during the normal working week and she gave him a strong warning on that occasion that when he saw private patients under his alternative therapy, that was to be outside his normal working hours.  Thereafter all went well until last year, 1993, when Mr Watling was seen to behave in a way which gave rise to suspicions that he was indeed seeing a patient in ordinary working hours.

	After a phonecall had been overheard in which he was apparently calling up a private client during his work time, he, on 11 August 1993, left the office at 10.45am (I will not go into all the details); it emerged that he did indeed, between 11 and 11.30 am, see a private patient with a view to alternative therapy.  The employers took exception to that.  He was seen by Mr Lloyd the team manager who elicited many of the facts and made apparently a very thorough enquiry.  There was a disciplinary hearing on 15 September conducted by Mr Burns who was the Cheltenham area manager employed by the Authority, and it was decided that Mr Watling was guilty of gross misconduct in two respects; first of all in seeing a private patient during working hours and secondly in ignoring the very clear and emphatic warning which he had been given by Mrs Wheeler in 1990 and in those circumstances Mr Burns recommended that he be dismissed summarily for gross misconduct.  That recommendation was carried out.  He appealed but without success.  He complained to the Industrial Tribunal that he had been unfairly dismissed.  The Industrial Tribunal, sitting on the dates I have mentioned, heard his complaint.  He applied for reinstatement.

	The decision of the Industrial Tribunal starts at page 8 of our papers.  Although their decision is one in which they do not set out the facts at any greater length than is necessary, they do show that they looked into the evidence which was before Mrs Wheeler and before Mr Burns and Mr Lloyd.  It is quite clear that a very substantial amount of evidence had been collected.  Putting it very shortly, Mr Watling's case was that Mrs Wheeler was simply not telling the truth about the warning which she said she had given him in 1990 and as for the events in 1993, which were the immediate cause of the trouble, he said that he was doing no more than taking an early lunch hour; about which the obvious comment is that lunch hours are for lunch and not for seeing private patients; but quite apart from that he had indeed, on the day in question, taken a lunch hour as well, according to the evidence.  

	Mr Watling was represented by his union representative who apparently also gave some evidence in his favour and the Industrial Tribunal had to look into these matters.  They said that they had before them all the matters which were the subject of the enquiry by the officers of the Respondents and they set out various documentary pieces of evidence to which they referred and said in paragraph 14:

		"Before us, there was no dispute at all that the applicant had permission to work for private clients in his own time, such as the evenings and the weekends.  Moreover, there was no dispute that the applicant had seen private clients during weekdays on a regular basis, as the extracts from his diary which were reproduced as an appendix to Mr Lloyd's report had shown. [In other words those were matters which came to light - that he had been seeing private clients during week days on a regular basis.  Those matters came to light at the enquiry by the County Council after the first matter of complaint].  The applicant denied that it was reasonable or fair to dismiss him, however, because he claimed firstly that the respondent's responsible officers were aware of what he was doing; secondly, that because of the flexibility which he was permitted in the ordering of his work and the taking of his lunch break, it was entirely reasonable of him to elect to take part of his lunch break early - at, say, 11.00am - in order to see a private client; and thirdly, that despite evidence to the contrary, he had never been given any instruction that this was something which he was not permitted to do. [That of course as I have said was a matter of keen contest before the Tribunal].

		15  The respondent's case was that it had available to it, in the course of a detailed investigation, evidence that the applicant had on a regular basis seen private clients at times during the working day when he should have been available to attend to the respondent's clients, and that he had been given clear instructions in 1990 by Mrs Wheeler that he should work for his private clients only in his own time... On this evidence, it was said, there was clear proof of a consistent disobedience of a management instruction and a persistent use of what might be described as the respondent's time for the applicant's private purposes.

		16  It should be emphasised that it has not been our task to determine what the applicant was or was not actually told by Mrs Wheeler, but whether the respondent genuinely and reasonably believed after a proper investigation that the applicant was guilty of the gross misconduct alleged against him; and if so, whether it acted reasonably in treating that gross misconduct as sufficient grounds for summary dismissal.  Having reviewed the evidence available to the respondent, and having considered Mr Burns' summary of conclusion and decisions, we were unable to say that there was anything unreasonable in the respondent's conduct.  Mr Burns was faced with a conflict of evidence, as between the applicant and Mrs Wheeler; and he decided that he preferred the evidence of Mrs Wheeler.  Having read the explanation of what led him to this course, it seemed to us that it was an entirely reasonable conclusion for him to reach on the all the information before him.  Moreover it was not unreasonable, in our view, to reject the suggestion that the applicant could arbitrarily elect to take a lunch break at 11.00 o'clock in the morning; it seemed to us entirely proper for an employer to conclude that even making allowances for the flexibility which a senior officer is allowed, that goes beyond any reasonable construction of what is permissible.

		17  Similarly, we could see nothing inherently unreasonable in the decision of the respondent that this matter was sufficiently grave to warrant summary dismissal.  The respondent had reasonably concluded, not only that the applicant's behaviour was unacceptable, but that he had persistently disobeyed a management instruction forbidding just such conduct.  Faced with such behaviour by a senior employee, who was trusted not to abuse the lack of detailed supervision which would have brought this state of affairs to management notice, the respondent behaved reasonably in our view in concluding that this was conduct so serious as to constitute gross misconduct, and that only summary dismissal was appropriate."

	Mr Watling appeals to us and he makes a number of assertions.  He accuses Mrs Wheeler of telling untruths about him and the warning which she gave him and makes a very sophisticated legal point concerning the question of working hours and the distinction between working hours and the hours when he should have been available to do the Respondents' work.  

	It appears to us that the answer to each and every one of the points which are taken by Mr Watling in his Notice of Appeal is that he is raising matters of fact, which were first and foremost for his employers to decide by means of a reasonable and fair enquiry and the consideration of what had happened and what to do about it in a reasonable and fair way.  So far as the Industrial Tribunal was concerned, it appears to us that they have set out the nature of their enquiry and their duty impeccably in the passages which I have read and that they have answered the questions which they then raised pursuant to that enquiry in a way which cannot possibly be challenged as a matter of law.

	This case is in our list under our practice direction to see whether we can, with the assistance of everything which has been put to us by Mr Watling, discover any point of law on which we can allow the appeal to proceed because our jurisdiction solely relates to such points of law.  We can find no point of law here.  It appears to us that the decision of the Industrial Tribunal is beyond any sensible criticism in spite of what Mr Watling has said about it and in those circumstances we have no alternative but to dismiss the appeal and not to allow it to proceed to a full hearing with all the delay and expense which that would inevitably involve.  Therefore we dismiss the appeal at this stage.