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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Hughes v. Jones (t/a Plas-Y-Bryn Nursing Home) [2000] UKEAT 688_00_2811 (28 November 2000) URL: http://www.bailii.org/uk/cases/UKEAT/2000/688_00_2811.html Cite as: [2000] UKEAT 688__2811, [2000] UKEAT 688_00_2811

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APPEARANCES

 

For the Appellant	MS S J DAVIES (of Counsel) Instructed by: Richard C Hall & Partners Crown Buildings 121A Saughall Road Blacon Cheshire CH1 5ET


 


JUDGE J ALTMAN

1. This is an appeal from the decision of the Employment Tribunal sitting at Caernarfon on 7 April 2000 and it comes before us by way of preliminary hearing to determine if there is a point of law such as justify a full hearing before the Employment Appeal Tribunal. The Employment Tribunal found that the Appellant was unfairly dismissed, but they made a finding of contribution to the extent of 100%.
2. The Appellant was employed in a nursing home. He was dismissed for what, on the face of it, was alleged to be an act of serious misconduct, relating to the treatment of a resident. The Employment Tribunal found that the procedure adopted by the employers was inadequate in a number of respects; they were very critical of the procedural way in which the employers approached the matter.
3. In coming to a finding that there was contribution of 100%, the Employment Tribunal relied upon evidence of a combination of previous conduct of the employee and of the incident itself. The point that seems to us appropriate for full argument before the Employment Appeal Tribunal, relates to the approach of the Tribunal to that. In order to reach their judgment, the Employment Tribunal relied upon questionnaires and hearsay evidence. This evidence was untested, not only in the Tribunal, but effectively, it appears, by the employer himself, for the procedures did not, on the face of it, provide any interviews at which the employee was able to challenge what was being said. Therefore it seems to us that there are proper grounds for this matter to be considered in full.
4. Furthermore, whilst referring to the Polkey test in their Reasons, the Employment Tribunal do not refer to it in their final decision, and it may well be that there should be some argument as to the part it appears to have played in their decision, either on its own, or as setting the scene for the assessment of contribution. Further, that seems to lead to a question as to the extent to which the Employment Tribunal distinguished between the questions that the employer had to ask himself and the questions the Tribunal had to ask themselves.
5. There is a further ground of appeal, however, in ground (iv) of the Notice of Appeal which relates to paragraph 5 of the decision. The employer assigned the investigation of earlier incidents to a Mrs Sheila Kingsmill Brown who was an employee who had begun quite recently in the service of the employer, but who was wrongly described in the first extended reasons as having been a "lady who had been at the home for several years". When this was drawn to the attention of the Chairman, he issued a certificate of correction to correct that erroneous statement of evidence.
6. It is suggested to us that that is a primary finding of fact which should not have been corrected under any sort of slip rule. We disagree. The very fact that the Chairman corrected this under the slip rule is indicative of the status of that particular finding of fact. It was really, on the face of the decision, a comment in parenthesis, and does not, on the face of the decision, bear on any of the central issues in the case. It does not seem to us that there is any arguable point on that particular ground of appeal, and it is dismissed at this stage.

Subject to that, this matter will go forward, to be heard in Category C, half a day, Skeleton Arguments to be furnished 14 days before the date listed for hearing.