Appeal No. EAT/1195/95

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 September 1996

Before
HIS HONOUR JUDGE J HICKS QC
MR P DAWSON OBE
MRS R A VICKERS

MISS T DONNELLY	APPELLANT	

HOMEWOOD NHS TRUST

RESPONDENTS	

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR R HOLROYDE
(Trade Union Representative)	

	JUDGE HICKS QC:   Miss Donnelly was an enrolled nurse who had been employed by the respondent, Homewood NHS Trust, from June 1986 until she was dismissed on 20th December 1994. She worked in the area of mental care, and the hospital where she worked included a detoxification facility.

	On 22nd August 1994 she was back from 15 months’ sick leave. Three days later, on 25th August 1994, she reported for duty at 8 a.m.. Her colleagues took the view that there was evidence her having taken alcohol; she was sent by her immediate superior, Mr Poh, to the staff room and investigations ensued, culminating in a disciplinary hearing on 20th December 1994 when she was dismissed. There was then an internal appeal held on 27th February 1995, in which that dismissal was confirmed. 

	We are allowing this appeal to proceed on two of the three grounds advanced, and need say nothing about that; in fact, it is better for us to say nothing about those. Ground 3, although expressed at some length, is in substance a complaint that the superior whom I have mentioned, Mr Poh, was both the investigating officer who looked into the complaints and presented the case for dismissal at the disciplinary hearing, but was also a primary witness of fact as to some of the complaints, because one of the complaints was of a failure to comply with his instruction to go to a staff room and inferentially to stay there, whereas it was alleged that Miss Donnelly was found making coffee, chewing something minty which she had obtained from the hospital shop, and manifestly the implication was that she was trying to conceal the evidence of alcohol.

	The complaint therefore is that Mr Poh, being in that respect a primary witness, should have made a witness statement, and that that witness statement should have been before the disciplinary hearing on 20th December 1994, and he should have been available for cross-examination upon it.

	This complaint was plainly canvassed in the hearing before the Industrial Tribunal. The tribunal deals with it in paragraph 20 of its reasons. They say, and they are dealing in part with other matters as well, but this passage covers the present point:

“We have noted that the responsibility for this was given to Mr Poh, who himself had been involved in some part with the events on 25 August, but we are satisfied that his report was made objectively and conscientiously. On appeal the Applicant’s representative criticised that Mr Poh had failed, as she should have done, to make the witness statement with the effect that the Applicant was prejudiced in not being able to cross-examine on the evidence. [I think that is intended to read ‘to make a witness statement’] We have found this argument unconvincing, for there was a full opportunity for Mr Poh to be questioned by the Applicant or her representative, which was not taken up. In our view this was an over-rigid adherence to the rules, which diminished rather than made use of the protection of the interests of the Applicant.”

That last sentence is in relation to a finding which the tribunal are leading up to that there were certain elements in the employer’s conduct which they were concerned about. But as to the particular point of Mr Poh’s not having made a witness statement and not being available for cross-examination, the tribunal considered that matter, came to a conclusion that it failed and made an express finding that Mr Poh was available to be questioned by applicant, and that opportunity was not taken.

	In our view, therefore, there was no error of law in this respect in the decision of the tribunal and Ground 3 of the grounds of appeal must be rejected. But, as we have already said, we shall direct that the appeal go forward to a full hearing on grounds 1 and 2, and we proceed to give directions in that regard, which need not be transcribed as part of these reasons.