Appeal No.	 EAT/1002/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 18 February 2002

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MR D A C LAMBERT
MR K M YOUNG CBE

MRS C HILL	APPELLANT

NORTH STAFFORDSHIRE COMBINED HEALTH NHS TRUST	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING EX PARTE

Revised

	APPEARANCES

For the Appellant	MR ANDY GEORGE
(of Counsel)
Appearing under the
Employment Law Appeal
Advice Scheme	

THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT)

1	We have before us as a Preliminary Hearing the appeal of Mrs C J Hill in the matter Mrs Hill v North Staffordshire Combined Health NHS Trust.  Today Mrs Hill has been represented by Mr George under the ELAAS Scheme and we are very grateful to him, as also should be Mrs Hill, for the assistance that he has given to the Tribunal.

2	Mrs Hill presented an IT1 on 11 January 2000.  She had been a Ward Sister at one of the Trust’s hospitals.  She said that she had been dismissed on 15 October 1999 after many years’ service.  Disciplinary process had been pursued against her, she said, whilst she had not been well enough to attend that process.  On 1 February 2000 the employer Trust put in an IT3.  They said that she had been a Ward Manager, having the charge of some highly vulnerable patients.  They said that there had been complaints of bullying and victimisation of staff, that there had been maltreatment of patients and, indeed, even damage to the ward.  The employer said that Mrs Hill had been suspended, that there had been an investigation, that yet further allegations had been received, a disciplinary hearing had been arranged and had been postponed on the grounds of Mrs Hill’s ill health.  The employer decided not to adjourn it further (so the IT3 put the matter) and in their paragraph 8 of the IT3 the Trust said:

“The Respondent decided to proceed with the disciplinary hearing and reiterated that the opportunity for the Applicant’s union representative to present her case and cross-examine witnesses would remain available.  The Applicant declined to attend and instructed her union representative not to attend on her behalf.”

The disciplinary hearing did go ahead in Mrs Hill’s absence.  There was oral evidence at the hearing from thirteen witnesses and written evidence from a further seventeen.  Ultimately gross misconduct was found.  Mrs Hill appealed and attended the appeal but then discontinued her attendance there on the afternoon of the second day.

3	That was the picture painted by the IT1 and the IT3.  The matter went forward to a three day hearing on 19, 20 and 21 February 2000.  Mrs Hill, I think, was in person or, at any rate, had only the assistance of a union representative rather than a professional representative with legal qualification.  The actual head sheet of the decision says – ‘For the Applicant:  In person’.  On 11 July 2000 the decision was sent to the parties.  It was the unanimous decision of the Tribunal under the Chairmanship of Mr S J Williams at Shrewsbury that the Applicant was not unfairly dismissed.  

4	As to the gravamen of Mrs Hill’s complaint, which was chiefly that the disciplinary process went ahead when she was unfit to attend, the Tribunal recognised that there was a problem.  In their paragraph 9 they said:

“The respondent faced a difficult decision.  To proceed in the absence of the applicant would incur the risk of being criticised for unfairness.  To postpone for the short period sought by the applicant offered no realistic prospect, in the light of medical evidence, that she would be fit to attend at the resumed hearing.  To postpone for the lengthy and indefinite period implied by the medical evidence would foreseeably cause the exacerbation of existing problems with other staff, would involve a further lengthy period of suspension on full pay for the applicant and offered no certainty that the applicant would be fit to attend a resumed hearing whenever that might be.”

The Tribunal continued:

“To those facts we had to apply the now well-established law.  The question was not what would the Tribunal have done but, rather, was what this respondent did a course of action which was open to a reasonable employer; was it, in other words, within the range of reasonable responses.  In all the circumstances, the Tribunal were satisfied that the respondent did all it could to convene a fair hearing and permit the applicant’s case to be put and argued by her representative, Mr Mack, either in her presence or in her absence, depending on the state of her health and her wishes.  We could not categorise the course of action adopted by this respondent in the difficult circumstances it faced as unreasonable.”

5	A problem had arisen about the conduct of the disciplinary hearing being under the Chairmanship of a Mr McKenzie.  Mr McKenzie, it seems, had played some part, perhaps the leading part, in the granting of amnesties to witnesses at that disciplinary hearing.  In their paragraph 11 the Tribunal concludes, describing the nature of the amnesty as they held it to be, as follows:

“They were granted an amnesty to that extent, namely that they would not be penalised for their late disclosure of allegations.  Importantly, they were not offered any amnesty to exempt them from disciplinary action for any offences that they may themselves have committed.”

6	On 21 August 2001 the Employment Appeal Tribunal received (I think it is ‘home made’) a Notice of Appeal from Mrs Hill.  She certainly did not then have the assistance of Mr George.  The Notice of Appeal itself is, if I might say so, unimpressive.  In the skeleton argument also that Mrs Hill has prepared the matter has, as one would expect, not been put with the ability to analyse in the way that Mr George has put the case to us.  In the skeleton argument at paragraph 3, Mrs Hill says:

“I have stated in my notice of appeal that I was unable to properly challenge all the allegations made against me.  I presented my case in person before the Employment Tribunal when my husband who was present endeavoured to assist me he was advised that he would be removed from the room if he “interrupted”.  The Employment Tribunal denied me the opportunity of properly putting my case in that my evidence consisted of me being questioned by the Respondent’s legal representative.”

That is one allegation that there had been something that could conceivably amount to some degree of impropriety or misconduct levelled at the hearing by the Tribunal.  There is another point of a similar character because in paragraph 3 Mrs Hill continues:

“When the Employment Tribunal asked if I had any further evidence that they wished to consider I drew their attention to a substantial bundle of documentation that I had collated.  That documentation was considered over a lunch break and it is quite clear that there was insufficient time for that documentation to be considered by the Tribunal (page 1-51).  I contend that the Tribunal erred in law in failing to allow me a proper opportunity to present my case.”

So, there is another allegation of some degree of procedural impropriety.  

7	Mr George asserts that there is there sufficient allegation of procedural impropriety to warrant the matter going forward.  He also takes a number of other points.  He says that the medical evidence, as cited by the Tribunal, misses the point, that, properly understood, the Doctor, Dr Trethowan, was truly only saying that Mrs Hill would be unfit at least until 
27 October and that the citation from the letter in paragraph 5 of the Tribunal’s decision that speaks about a number of months and suggests that there will be a disability for a number of months is a misunderstanding of the letter.  Mr George argues that the Tribunal have misunderstood the basic principles of unfair dismissal and that procedural unfairness is not simply to be swept away as part of the test to the band of reasonable responses.  He says that there is a degree of confusion, or certainly a lack of adequate explanation, in relation to the role of Mr Mack at the disciplinary hearing and as to the role of Mr McKenzie, who was the grantor of the amnesties that were granted.  He says that the Tribunal misunderstood, or failed adequately to explain, the way in which Mrs Hill withdrew from the disciplinary appeal on its second day.

8	These are matters which, it seem to us, could conceivably disclose arguable errors of law when properly investigated.  They are certainly matters which, if to be investigated at all, are best investigated in the presence of the other side, to make it a full inter partes hearing.  Accordingly, we will allow this matter to go forward to a Full Hearing.  Mr George is to amend the current Notice of Appeal and reframe it to take the grounds which he has adumbrated this morning.  We do not give him, so to speak, carte blanche, to put in anything he chooses.  The draft Amended Notice of Appeal is to be submitted to the President in writing.  It must confine itself to the grounds which have been described this morning.  With that, we will discuss with Mr George how long that is likely to take.  Also, we are going to need to discuss with him whether this is a case where Chairman’s notes are likely to be needed.  It seems that if procedural impropriety is to be advanced at all it will first of all need to be supported by an affidavit from Mrs Hill or from someone on her behalf.  The Chairman can then be asked, not only to comment on the Amended Notice of Appeal, but also on the affidavit.

Mr George, what do you say about - first of all, how long will it take to amend the Notice of Appeal and then how procedurally do we cope with Chairman’s notes and affidavits and so on?

Sir, an Amended Notice of Appeal will take fourteen days, although on other occasions here a transcript of the panel’s decision has been provided, which obviously makes it easier to ensure that the grounds match the decision.  I don’t know how long that takes at the moment sir?

Well, I’m afraid we do have problems about typing!  I think the better course is for you to frame …. -  I mean you know what you’ve said - we haven’t actually in terms ruled out anything that you’ve said, so that to that extent you don’t need the transcript, but I would have thought fourteen or twenty one days should suffice.

Might I ask for twenty one – just to ensure I can …..

Yes, very well.  Twenty one days to amend the Notice of Appeal and submitting it to me as I mentioned.

Sir, as far as the affidavit is concerned, I will certainly explain to Mrs Hill the significance and the import of that.  I would have thought it would be procedurally be possible for Mrs Hill, having set out her recollection, much as she has done, to have an argument for that to be sworn in any appropriate form, and I shall have to offer …… see if there are places ….

Yes, how long?

Perhaps twenty one days for both, then both can come to you together sir?  My submission would be that Chairman’s notes of evidence ….

Twenty one days for the affidavit and then we will need to send off the affidavit and, I would think, the Amended Notice of Appeal for comment from the Chairman.  Do you think you see any real need for Chairman’s notes beyond comment?

No sir, insofar as ……. that would be a discrete issue…  was there, at that particular procedural impropriety, and what was said to the Applicant’s husband…. clearly, if the Respondent is going to assert that, for whatever reason, any of the matters I have put to you today were dealt with and notwithstanding the lack of reason, as it were, there was an evidential consideration, that may hereafter give rise to ….

Well, at any rate you don’t ask for them at the moment?

Quite so, sir.

Very well, if circumstances change fresh application can be made.  I think that’s everything we need.

Sir, might I raise just two matters for clarification of your decision?  First, that the Applicant’s ………[inaudible] was in person and the trade union representative was a witness at the case and gave no ….

At the Tribunal? – he was merely a witness was he?

Secondly, just …. obviously the Mr McKenzie issue occurred in the context of the appeal, as you rightly said in your decision – the word ‘disciplinary hearing’ - I’m sure the other side would not be confused, but just to make it quite clear that the panel are well aware that there was a disciplinary hearing, but it was the appeal ….

Yes, certainly.

I’m grateful sir.