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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Wilding v. Russell [2002] UKEAT 1091_00_2702 (27 February 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/1091_00_2702.html Cite as: [2002] UKEAT 1091__2702, [2002] UKEAT 1091_00_2702

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APPEARANCES

 

For the Appellant	MR McCARTHY (of Counsel) Instructed By: Mr T Box Messrs Freeman Box Solicitors 8 Bentinck Street London W1U 2BJ
For the Respondent	MISS MORGAN (of Counsel) Instructed By: Messrs Hempsons Solicitors 20 Embankment Place London WC2N 6NN


 


JUDGE PETER CLARK:

1. This is an appeal by Mrs Wilding, the applicant before the London North, now Central Employment Tribunal, chaired by the then Regional Chairman, Mrs T J Mason, against that Tribunal's reserved decision, promulgated with extended reasons on 14 July 2000, dismissing her complaints of unfair dismissal and breach of contract, that is, wrongful dismissal, brought against her former employer, Dr Jeremy Russell.
2. The Facts

The appellant commenced her employment as Practice Manager at the respondents medical practice in July 1995. The Tribunal found her to be extremely efficient, in the respondent's word "meticulous". In late 1996 Dr Kate Hawley joined the practice. The arrangement was that Dr Hawley would receive 60% of all billings to patients whom she had treated. The remaining 40% went to the respondent.

3. It was agreed between Dr Hawley, the respondent and the appellant, that the appellant would be responsible for calculating the correct amounts and invoicing the patients. By 1999 the hourly rate charged by the doctors was £150. A half-hour consultation would be charged at £75, even if it took only 20 minutes. If known in advance that the consultation would take less than 30 minutes, a fee of £55 would be charged. The fee for a home visit was £100. Variations to this scale of fees may be necessary, in which case, the relevant doctor would state the appropriate fee on the day sheet which recorded appointments for that day.
4. From May 1999 Dr Hawley took to writing the appropriate fee against the name of the patient on the day sheet from which the appellant could invoice the patient. She had no authority to increase the fee. If she wished to query a fee she could raise this with a particular doctor, as she did with the respondent.
5. In early September 1999 the respondent received a complaint from a patient. That patient had settled his account for an initial consultation with Dr Hawley. He paid £85. He was then surprised to receive an invoice for £95. The respondent was concerned. He remembered that one or two patients had said that Dr Hawley's fees were on the high side. Dr Hawley then found a number of irregularities where figures she had indicated on the day sheet had been "upped" on the fee note sent to the patients. The respondent regarded the overcharging of patients as a serious matter. It reflected badly on the practice and could have an adverse impact on his professional relationship with Dr Hawley.
6. He decided to call in a firm of accountants to scrutinise the accounts. A report was then prepared by Mr Morris of Arram Berlyn & Gardner, a firm of chartered accountants. It was considered by the respondent and Dr Hawley. It showed that on nine occasions during a two-week period, patients of Dr Hawley had been charged a higher fee than she had indicated on the day sheet and that she had not received her agreed fee percentage and had been underpaid. Mr Berlyn of the accountants, suggested to the respondent that the appellant be given an opportunity to explain the apparent discrepancies. As a result, the respondent asked the appellant to meet the accountants to discuss the accounts. He did not tell her that they were investigating any wrongdoing on her part, nor did he say that they were to discuss his pension arrangements as the appellant suggested in evidence.
7. A meeting took place between the appellant and the accountants. She was not, contrary to her evidence, bullied in that meeting. She was asked to explain discrepancies on seven pages of documents. She had an opportunity to explain her working methods. Mr Berlyn reported back immediately to the doctors and advised them as to the options open to them but without making recommendations. It was clear that the accountants thought that the appellant had misconducted herself. A meeting was arranged for the afternoon of the same day. The appellant asked if her husband could be present, the respondent agreed. That meeting lasted one and a half hours. The respondent explained his concerns about inflated fees and underpayments to Dr Hawley. The appellant replied that the meeting with the accountants was like a police interrogation, which the Tribunal did not apparently accept. She did not claim to have authority to increase the fees or that she had been unclear as to the guidance which she had received. She said that she had been under pressure, that Dr Hawley had merely given guidelines as to her fees and that she had made a mistake as to the 60% of fees payable to Dr Hawley. She apologised saying there had been a genuine mistake and she had not intended to do any wrong.
8. The respondent considered the matter. He concluded that the number of errors found were too many to be explained as mistakes. The appellant's actions had been deliberate. Although he did not believe that she had received any financial gain, he decided she was guilty of gross misconduct for which the penalty was dismissal. As a kindness, he offered her the opportunity to resign, which she took. There was nevertheless a dismissal, so the Tribunal found, with effect from 30 September 1999.
9. The Tribunal Decision

The Tribunal found that the respondent's reason for the dismissal related to the appellant's conduct, that is, overcharging patients and underpaying Dr Hawley. That conduct struck at the necessary base of trust in the appellant as Practice Manager. Applying the well-known Burchell test they found that the respondent had a genuine belief based on reasonable grounds following a reasonable investigation in the misconduct alleged.

10. There was no procedural unfairness, found the Tribunal. The first stage was the investigation by the accountants and their interview with the appellant. The second stage was a lengthy disciplinary hearing conducted by the respondent with the appellant and her husband present. Having heard the appellant's explanation the respondent was entitled to reject it.
11. Finally, the Tribunal considered that in all the circumstances, the penalty of dismissal was a reasonable sanction. As to the claim of wrongful dismissal, the Tribunal found that in the light of the misconduct proved, the respondent was entitled to summarily dismiss the appellant.
12. The Appeal

In support of this appeal which he boldly puts on the grounds of perversity in the legal sense, Mr McCarthy takes the following points:-

(1) That the appellant was not given a proper opportunity to state her case, first at the meeting with the accountants and, secondly, at the meeting with the respondent. That submission was considered and rejected on the facts as found by the Employment Tribunal. In our judgment, that was a permissible conclusion, it was not irrational as Mr McCarthy submits.

The first meeting was a fact-finding investigation by the accountants. The second was a disciplinary hearing at which the appellant knew the nature of the case against her. As she agreed in cross-examination during her evidence below, she had every opportunity to put forward her case.

This case is quite distinct, we think, from that of Spink v Express Foods Group Ltd [1990] IRLR 320 to which Mr McCarthy referred us. There the Industrial Tribunal found that the employer had deliberately refused to tell the employee the nature of the charge against when calling him to a disciplinary hearing. The Tribunal found that to be procedurally unfair but, as the unfairness made no difference to the result, they held the dismissal to be fair. That latter conclusion offended the principle laid down by the House of Lords in Polkey v A E Dayton Services Ltd [1987] IRLR 503 and, thus, the employee's appeal succeeded. The respondent to the appeal was unable to persuade the Appeal Tribunal that the Industrial Tribunal's finding of procedural unfairness was wrong in law.

Here, the first meeting was not a disciplinary hearing. The employer did not deliberately refuse to inform the employee of the charge and the Tribunal found no procedural unfairness. We can see no grounds in law for interfering with that finding.

(2) Did the respondent carry out a reasonable investigation? The Tribunal found that he did. Mr McCarthy attacks that finding on the basis that Dr Russell ought to have adjourned the disciplinary hearing to investigate the appellant's claim that she was under pressure at work. That is a point for the industrial jury. We do not think, in the context of this small practice, it is a very good one but that is nothing to the point. It is sufficient, on appeal, for us to state that we are satisfied that the Tribunal's finding that, in all the circumstances, the respondent carried out a reasonable investigation, was a permissible finding, it being largely a question of fact for the Employment Tribunal.

(3) Was summary dismissal a reasonable sanction in all the circumstances of the case? Mr McCarthy has referred us, as he did the Employment Tribunal, to what was then paragraph 8 of the relevant ACAS Code of Practice which provides; "Employees should be made aware of the likely consequences of breaking the rules and in particular they should be given a clear indication of the type of conduct which may warrant summary dismissal." He has also referred us to the EAT decision in Lock v Cardiff Railway Company Ltd [1998] IRLR 358 in which that provision was considered. He submits that the respondent failed to draw to the appellant's attention the fact that she might be dismissed summarily for the particular offence in this case. We cannot accept his submission in this regard. First, because the misconduct, as the Tribunal found, went to the root of the contract justifying, we think, dismissal both under section 98(4) of the Employment Rights Act 1996 and at common law. Secondly, because the appellant had acted deliberately, not mistakenly and thirdly, it seems to us axiomatic that where an employee is entrusted with keeping the books of here, a small medical practice, such irregularities must inevitably give rise to the risk of dismissal.

That was the commonsense approach of the industrial jury below and accords with our own view and in these circumstances we cannot say that the Tribunal reached a perverse conclusion in finding that dismissal fell within the range of reasonable responses open to this employer.

(4) Did the Tribunal make an irrational finding in preferring the evidence of the respondent to that of the appellant because of her meticulous approach to her work. Our short answer is "no". The fact of the appellant's efficiency contradicted her claim that she had made mistakes and supported the respondent's conclusion that she had acted deliberately. In circumstances where, the Tribunal found, she had no discretion in the matter of fees to patients, her conduct was quite simply extraordinary. It was not done for personal financial gain but the potential effect on patient perception and on the relationship between Doctors Russell and Hawley was such that the respondent's decision to dismiss cannot be said to fall outside the range of reasonable responses. Nor can the Tribunal's decision upholding that response, be characterised as perverse. In these circumstances we shall dismiss this appeal.