Appeal No.	 EAT/17/98F

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 15 January 1999

Before
HIS HONOUR JUDGE PETER CLARK
MRS T A MARSLAND
MR J C SHRIGLEY

MISS S WEISS	APPELLANT

LONDON BOROUGH OF HILLINGDON	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MISS NATASHA JOFFE
(of Counsel)
Messrs Morgan Cole
Solicitors
3 West Way
Oxford OX2 0SZ	
For the Respondent	MR CHRISTOPHER MAKEY
(of Counsel)
The Solicitor
London Borough of Hillingdon
Civic Centre
High Street
Uxbridge  UB8 1UW	

	JUDGE PETER CLARK:	The Appellant, Miss Weiss was employed by the Respondent from February 1990 until her dismissal on 12 August 1996.   Prior to her dismissal she presented an Originating Application to the Employment Tribunal on 1 July 1996 alleging sex discrimination, victimisation and raised an equal pay claim (the first complaint).  Following her dismissal she presented a second complaint on 6 November 1996 alleging both unfair and wrongful dismissal.

	Both complaints were heard together by an Employment Tribunal sitting at London (North) over four days in June and July 1997.  The Appellant withdraw her equal pay claim and the remaining complaints were dismissed by the Tribunal by a reserved decision with detailed Extended Reasons running to 29 pages dated 1 September 1997.

	Against that decision the Appellant appealed to this Tribunal by a Notice dated 7 October 1997.  The appeal came before a division of the Appeal Tribunal for a preliminary hearing on 8 July 1998.  By its judgment delivered by Judge Hull QC on that day this Tribunal dismissed all grounds of appeal save one in relation to the claims for unfair and wrongful dismissal.  That single point was formulated thus at page 5 E-F of the judgment:

“It appears to us at any rate arguable that the Tribunal should first of all have looked to see whether there were other steps which the employers could or might have taken and whether indeed they should have taken them to give clear warning to Miss Weiss that if these matters continued she would not remain in their employment, she would be dismissed, to see whether by counselling, advice and warning Miss Weiss could be brought to see that this was not a way in which she could behave and to behave in a different way in future.......”

	It is that issue only which falls to be determined at this full inter partes appeal hearing today.

	The Facts

	The Appellant commenced employment with the Respondent in February 1990 as a Day Centre Officer.  In October 1993 she transferred to the Challenging Behaviour Unit (CBU) as a peripatetic support worker.  In March 1995 she commenced a part time academic course on day release at Brunel University.  In November 1995 she began a series of practical placements within Hillingdon.

	On 16 November 1995 she witnessed an incident involving the unacceptable practice of locking up a service user by an employee, Fred Elder.  She reported the incident to the senior worker, Mr Phillips-Roy, who supported Mr Elder.  She then reported the matter to the unit manager, Mr Barry.  She claimed that he reprimanded her for telling Mr Elder that locking people up was not allowed.  That was denied by Mr Barry.

	On 21 November the Appellant witnessed a repetition of the earlier incident by Mr Elder involving another service user.

	The line manager, Mr Budding then carried out an investigation.  Management decided that it was not appropriate to take any disciplinary action.  The practice of locking up was forbidden.

	On 30 November 1995, at her own request, the Appellant was transferred from CBU to the People with Disabilities Team (PDT).

	An article about the locking up incidents appeared in the local paper in February 1996.

	The Appellant was unhappy that no disciplinary action had been taken against Elder or Phillips-Roy, and that she had not been interviewed by the Service Manager, Guna Mahadevan in the course of an investigation by him which had led to his reporting to Ms Warwick, later Acting Director of Social Services.  The Appellant expressed her concerns in a letter to Ms Warwick dated 6 March 1996.

	On 11 March Mrs Wardle, Personnel Manager (Social Services) wrote to the Appellant informing her that her grievance would be heard by Ms Warwick.  A meeting was arranged for 19 March.  It did not take place.  The Appellant said in evidence to the Tribunal that she did not have confidence in Ms Warwick to hear her grievance.

	Correspondence followed, in which the Appellant continued to express her concerns for the safety of service users.  The matter rumbled on. The Appellant was removed from the CBU.  By 10 June 1996 she had lost faith in Mrs Ross, the Director of Social Services, who had become involved.  She was critical of the way her managers had handled the matter.

	A meeting took place on 5 July, attended by Mrs Ross and Mrs Wardle on the management side.  The meeting was tape recorded.  Having listened to the tape the Tribunal observed that the Appellant could not suppress her anger.  She would not listen to any advice.

	Following that meeting Mrs Ross concluded that the relationship of mutual trust and confidence between the Appellant and her line managers and other staff in the Social Services Department had broken down.  It had become apparent that the Appellant did not trust anyone in the Department and that she was not listening to anything that was being said to her.  Mrs Ross concluded that the Appellant’s continued employment was seriously prejudicial to the interests of service users due to that breakdown in trust and confidence.

	On 5 August the Appellant was asked to attend a meeting to discuss the breakdown in trust and confidence.  Her reaction was to complain to the Chief Executive, who advised her to attend the meeting.

	On 8 August Mrs Ross left Hillingdon’s employment and Ms Warwick took over as Acting Director of Social Services.  She saw the Appellant on 12 August.  On being told of the purpose of the meeting the Appellant walked out.  That day Ms Warwick wrote a letter of dismissal, terminating the Appellant’s employment with six weeks’ pay in lieu of Notice.

	The Tribunal Decision

	The Tribunal dealt with the claims of Unfair and Wrongful Dismissal at paragraph 18 of their reasons.  They found that the reason for dismissal was some other substantial reason, that is, the breakdown in mutual trust and confidence between the Appellant and her line managers, Wadley -v- Eager [1986] IRLR 93.

	As to the reasonableness of that dismissal, the Tribunal was satisfied that the Appellant had lost all faith in her managers and colleagues in the department.  Significantly, the Tribunal found that the situation was “irredeemably beyond repair”.  There was no alternative to termination of her employment.

	Further, they found that the Respondent’s disciplinary proceedings including a right to an internal appeal, were inappropriate in this particular case, and in the Tribunal’s words “a waste of time”.

	In all the circumstances they found that the dismissal was fair.  Further, that the Appellant was not wrongfully dismissed.

	The Appeal

	Ms Joffe submits that it will generally be unfair to dismiss an employee without warning unless he or she is guilty of an act of gross misconduct.  She has referred us to the ACAS Code of Practice.  That is correct.  However, we bear in mind the guidance given by the Court of Appeal in Retarded Children’s Aid Society Ltd -v- Day [1978] ICR 487, expressly approving the approach of Sir John Donaldson P. in James -v- Waltham Holy Cross, Urban District Council [1973] ICR 398, (National Industrial Relations Court) to which we would add the President’s approach in Dunning -v- Jacomb [1973] ICR 448, a capability case, to the effect that a formal warning of dismissal may not be necessary where the employee is determined to go his or her own way and is incapable of changing his or her attitude.

	The effect of the Tribunal’s findings, having heard the evidence, is that the Appellant had formed a settled intention to challenge her senior management.  She had no faith in them.  She would not listen to what they said.  Her reaction, when told of the purpose of the 12 August meeting was to walk out.

	It was open to the Tribunal, in these circumstances, to conclude that nothing further could reasonably be done  by the Respondent and that the normal disciplinary procedures, including a right of appeal and warning was inappropriate on the facts of this case.  The respondent had taken all reasonable steps to improve the relationship.  In our judgment, there is no error of law made out in this case and consequently the appeal must be dismissed.