Appeal No. EAT/1124/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 18 May 1995

	Before

	THE HONOURABLE MR JUSTICE MORISON

	MR T C THOMAS CBE

	MRS P TURNER OBE

MRS FELICIA SARO	APPELLANT

WELLMEADOW NURSING HOME LTD	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

	PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MR A SHARDA
(of Counsel)
Messrs Harnells
Solicitors
57 Camberwell Church Street
London SE5 8TR

	

	MR JUSTICE MORISON:  Mrs Saro, whom we shall call "the Appellant" was employed by Wellmeadow Nursing Home Ltd, whom we shall "the employers" and worked at their nursing home as a carer.  She was employed from April 1990 until 30 June 1992 when she was summarily dismissed for misconduct.  Following her dismissal the Appellant presented her complaint to an Industrial Tribunal, which made a written decision sent to the parties on 18 October 1994.

	The hearing of the evidence and submissions was extended over a period of four days from 26 May 1993 to 21 June 1994.  The Industrial Tribunal unanimously concluded that the Appellant was unfairly dismissed and was 80 percent to blame for her dismissal, so that her total award was reduced from just over £4,000 to £1,050.

	The purpose of this hearing is to determine whether, having regard to the notice of appeal and the submissions which have been succinctly made to us by Mr Sharda, on behalf of the Appellant, the Appellant has shown an arguable point of law sufficient to justify the matter going to a hearing before a full tribunal.

	This dismissal occurred following an incident involving an elderly patient, who alleged that Mrs Saro hit him, causing his nose to bleed and that another carer, on the same occasion, had thrown his dentures at him.  The Industrial Tribunal found the following facts:  the matron carried out an investigation of the incident involving the patient, which took place on 30 June 1992.  She discovered that the patient had a bad cut and a doctor was called.  She spoke to the patient who told her what had happened.  Mrs Saro had been spoken to on a previous occasion and was working under a final written warning.  By the time the matron came on the scene both Mrs Saro and the other carer had gone home, having failed to make a proper report, which is required whenever a patient under their care is injured.  Accordingly, she prepared a letter of dismissal and gave it to the Appellant the following day, 1 July, without giving the Appellant any opportunity to explain her side of the story.  

	Not surprisingly, the Industrial Tribunal concluded that the dismissal was unfair.  They reviewed the Appellant's evidence and said that they were far from satisfied with the credibility of her version of the events.  They assessed her credibility, as they were entitled to do, as a result of hearing the whole of her evidence, not just in relation to the facts giving rise to the dismissal but also in relation to her alleged attempts to obtain alternative employment.  They concluded that the Appellant had brought about her own dismissal and assessed her contributory fault at 80 percent.  

	The notice of appeal contains a number of grounds which purport to be errors of law as amplified before us in Mr Sharda's submissions.  First, it was argued that the conclusion reached as to 80 percent was primarily because of her unreliability as a witness and not based on conduct.  It seems to us that the point is manifestly unarguable in the light of  paragraph 22 of the decision.  Secondly, the Industrial Tribunal took into account erroneous facts because they had regard to witness statement which were made after the incident and the dismissal.  The Industrial Tribunal placed little weight on this material as it was untested by cross-examination and, as they indicate in their decision, they were entitled to have regard to that material when assessing the degree of contributory fault of the employee and we can detect no error of law in their approach to the question of the unfairness of the dismissal, an issue which was determined in the Appellant's favour.  Thirdly, it is alleged that the Industrial Tribunal failed properly to spell out the conduct which they said gave rise to the contributory fault of 80 percent.  It seems to us quite clear that the Industrial Tribunal held the Appellant to blame for her treatment of the patient, for her failure to report the injury, and for the fact that this occurred after she had been given a final warning.  There was no need, in our judgment, for the Industrial Tribunal to say any more than they did and we regard this point as unsustainable in law as well.

	Finally, it is said that 80 percent was excessive in all the circumstances.  This is not a point of law unless it could be said, and it is not, that the decision was perverse.  Any Industrial Tribunal must weigh the blame to be attached to the employee's misconduct where the circumstances demand it and it is a judgment with which this Employment Appeal Tribunal will only interfere if there is something manifestly wrong with the decision so that it could be said to be perverse.  

	Our conclusion is, that despite the succinct and clear way in which the submissions have been made to us, the notice of appeal and the further arguments do not disclose any arguable point of law fit for hearing before a full Tribunal.  Accordingly, this appeal will be dismissed.