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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Mahmood & Anor v. Garside [2002] UKEAT 514_01_0803 (8 March 2002) URL: http://www.bailii.org/uk/cases/UKEAT/2002/514_01_0803.html Cite as: [2002] UKEAT 514_01_0803, [2002] UKEAT 514_1_803

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APPEARANCES

 

For the Appellants	MR MARC JONES (of Counsel) Appearing under the Employment Law Appeal Advice Scheme


 


MR COMMISSIONER HOWELL QC:

1. In this appeal before us for preliminary hearing Drs M. Mahmood and V. Kuhan seek to have set aside as erroneous in law the decision of the Stratford Employment Tribunal sitting on 17 January 2001, holding them to have unfairly dismissed their former practice manager, Mrs Jean Garside on 10 August 2000. At the conclusion of the preliminary hearing and having considered the detailed submissions made in writing by the Appellants and orally by Mr Marc Jones who appeared on their behalf under the ELAAS Scheme, we decided that we had not been satisfied there was any sufficiently arguable ground in law to warrant our directing that the appeal should go forward for full inter partes hearing, and we accordingly dismissed the appeal. This reserved judgment explains our reasons for that decision.
2. The proceedings before the tribunal had been begun by an Originating Application dated 21 August 2001 by Mrs Garside, alleging unfair dismissal from her position as practice manager after working for the same practice for over 18 years. According to the facts found by the Tribunal and not in dispute, the practice had been carried on by a succession of doctors during that time, and the Appellants had succeeded to it on the retirement of two previous incumbents in early 1999. Mrs Garside did not enjoy a good relationship with the two Appellants, who unlike their predecessors made constant complaints about her work, and she felt they were undermining her. By May 2000 matters had got to the point where she raised a formal grievance against them about her treatment which was now affecting her health. A meeting was held at the end of May 2000 but was inconclusive, and was followed by the Appellants sending her a formal letter dated 10 July 2000 in which they required her to attend what was described as an "enquiry meeting" on 24 July 2000 to discuss what they claimed were inadequacies on her part under ten itemised categories in a list. That meeting too was inconclusive.
3. The following day an event took place which led to the Appellants dismissing Mrs Garside summarily on 11 August 2000, for what their Notice of Appearance before the Employment Tribunal alleged to have been gross negligence and misconduct warranting such dismissal. The basis alleged for this in the letter of dismissal of the same date was that she had refused a request from a patient for a home visit without reference to a doctor and without informing Dr Mahmood, who was at the surgery at the time, until after a further call was received saying that the patient had died. The tribunal's findings as to what actually took place on 25 July were however significantly different. They appear so far as material from paragraphs 9(j) to (t) of the Extended Reasons as follows:

"(j) On the following day, 25 July 2000 the Applicant was on duty at about 10 am in the reception area. She took a telephone call from a caller enquiring as to the availability of a doctor to visit a sick relative. This was not her normal duty but the usual senior receptionist was absent.

(k) The caller requested that a doctor would visit her 78-year old sister who was a patient of the practice. The called informed the Applicant that her sister was suffering from breathlessness. The caller was not speaking from the patient's home.

(l) The practice procedure regarding home visits was set out in a practice handbook supplied to all staff. It stated:

'All requests for home visits must be recorded at the time of receipt in the visiting diary. You must not refuse requests for home visits. If you are in any doubt about the necessity or urgency of a home visit the request must be referred to a doctor. Any requests for visits after 1 pm should be referred directly to the doctor on call via the main surgery'.

(m) There was a home visit book kept at the practice by the receptionist. When a home visit was arranged by a receptionist it was entered in the book. After morning surgery, the doctor would be told by the receptionist by reference to the book what home visits he had to make.

(n) The Applicant, having been concerned at the report of breathlessness advised the caller that she should summon an ambulance for her sister. The caller stated that she did not think an ambulance was necessary. The Applicant was following the procedure which prevailed, by advising an ambulance in the case of breathlessness in case oxygen or other treatment was needed. The Applicant recorded details of the telephone call in the diary kept in the reception area.

(o) The caller informed the Applicant that she would be going to her sister's house immediately. The Applicant advised the caller that if she found her sister to be in a worse condition than she believed her to be, then she should call an ambulance and let the surgery know.

(p) At about 10.15 am the caller rang back to say that her sister was worse when she visited her home and that an ambulance had been called.

(q) At about 11.15 am the ambulance paramedic rang the surgery to say that when they arrived at the patient's house, she was found to be unconscious and that she had unfortunately died. The paramedic requested that a doctor should come to certify death.

(r) The Applicant recorded the above matters in the diary and she passed the information to Dr Mahmood who attended and certified the death of the patient.

(s) The cause of death was not ascertained by the Respondents.

(t) No complaint was made as to the conduct of the Applicant or anyone within the practice in relation to the handling of the matter."

4. The issue before the tribunal on these primary facts, as recorded in paragraph 3 of their Extended Reasons broke down into two parts: first whether the Respondents had genuinely believed on reasonable grounds after a sufficient investigation into the circumstances that the Applicant was guilty of misconduct in the way in which she dealt with the request for a home visit to a patient; and second, whether in any event it was fair to treat any misconduct which the Respondents genuinely believed to have occurred as a ground for the dismissal of the Applicant as opposed to some other sanction such as demotion or a warning.
5. The tribunal's conclusions on these issues, incorporating further material findings of fact by the tribunal themselves on the evidence before them which had included evidence from nurses and other receptionists employed at the practice, were set out in paragraph 10 of their Extended Reasons under the heading "The Tribunal's assessment" as follows:

"(i) The Applicant was in dispute with the Respondents. She had raised an unresolved grievance in May of 2000. The Respondents had countered with an unresolved enquiry meeting into her performance on 24 July 2000.

(ii) The incident of 25 July 2000 was taken up by the Respondents as a disciplinary matter, although there was no complaint about the conduct of the Applicant from any person involved. It was surprising therefore that the Respondents should have raised it as a disciplinary matter and a ground for suspension of the Applicant.

(iii) The Applicant was in no doubt as to the advice she should tender to the caller. It was to summon an ambulance. She gave that advice, but the caller did not immediately act upon the advice, as she did not think that an ambulance was necessary for her sister.

(iv) The staff handbook was followed. There was no direction given in that handbook that would have indicated to the Applicant that any other course should be followed.

(v) In their evidence to the Tribunal the Respondents were not able to identify the cause of the patient's death. No enquiry was made by them of the deceased's sister as to the cause of her death. There was no enquiry of the [caller's] sister as to whether she wished to make a complaint against the Applicant.

(vi) There was no enquiry by the Respondents before dismissal of the receptionists and nursing staff, most of whom gave evidence on behalf of the Applicant that they recognised the procedure which she followed as what would be normally done. There was a preponderance of evidence in support of the action taken by the Applicant. The Respondents did not enquire of the former senior partner, who would also have supported the conduct of the Applicant in relation to this request for a home visit.

(vii) The one junior receptionist witness who was called on behalf of the Respondents could only give evidence to the effect that she always referred requests for home visits to a doctor. However she could not speak about the procedure followed by other receptionists.

(viii) Applying the principles in Burchell we are not satisfied that there was a genuine belief held by the Respondents as to the Applicant's misconduct. This incident was seized upon by the Respondents as a way of terminating the employment of the Applicant who did not fit into their plans for the practice. The reference to gross negligence was unjustified. There was no loss or damage caused to the practice, which is part of the definition of gross negligence amounting to gross misconduct in the contract of employment.

(ix) Even if there was a genuine belief in misconduct, it was not based upon reasonable grounds after a sufficient investigation into the circumstances of the case. The Respondents did not interview the caller or the Applicant's colleagues. Had they done so they would have had to accept that the Applicant had followed the common practice.

(x) We are driven to the conclusion in this case that the Respondents grasped an opportunity which they saw to terminate the employment of the Applicant in a situation which no reasonable employer would have regarded the matter as a ground for disciplinary action. The Applicant was therefore unfairly and wrongfully dismissed by the Respondents."

6. The grounds on which Dr Mahmood and Dr Kuhan seek to pursue an appeal against those conclusions were identified in the original Notice of Appeal under three heads: first that the tribunal had applied the test of reasonableness in British Home Stores v Burchell [1980] ICR 303 (to which they expressly referred in directing themselves to the law in paragraphs 6 to 8 of the Extended Reasons) "without having all available evidence to hand". Secondly, the Appellants felt that the manner in which the proceedings before the tribunal took place had been "flawed", and thirdly, they felt that "the findings of the tribunal were based on a different set of issues to those raised in the Applicant's original ET1 form". These grounds were explained and amplified by way of a number of more specific points in the grounds of appeal annexed to the Notice, a skeleton argument submitted by the Appellants themselves, and by Mr Jones in oral argument before us at the hearing. To some extent the points and arguments interrelate, but for present purposes they can be summarised as: (1) complaints of alleged breaches of natural justice on the part of the tribunal in proceeding to hear the case as they did with a tribunal consisting only of the Chairman and one additional member, and in having declined an application by the Appellants for an adjournment to deal with what they contended had been "the presentation of new claims and indictments not appearing on the Applicant's original ET1 form" by reference to additional documents not disclosed to them until shortly before the hearing; (2) complaints that the tribunal reached a perverse conclusion on the two material issues of whether there had been a genuine belief on the part of the Appellants as to Mrs Garside's alleged misconduct and whether that amounted to reasonable grounds for her dismissal; (3) complaints about the findings of fact reached by the tribunal which the Appellants wished to challenge as unjustified on the basis that their own evidence ought to have been accepted; and finally (4) a complaint that the tribunal had wrongly failed to take account of a contention that Mrs Garside had been responsible for her own dismissal and accordingly should not have been treated as eligible for any compensation.
7. We have not been satisfied that there is any arguable ground in the points of alleged breach of natural justice. Mr Jones expressly confirmed that the Appellants had consented at the outset of the tribunal hearing to the case proceeding with only two tribunal members sitting, when the third was unable to do so. However, he said they now wished their consent to be treated as ineffective on the ground that they had not understood the implications. We were not persuaded that it could be an error of law for the tribunal to go ahead on the basis of the actual consent of the two Appellants: though unrepresented, they are of course professional men, and we see no ground whatever for any inference that the question of whether they consented to the constitution of the tribunal was in any way inadequately or improperly put to them by the Chairman.
8. Similarly, the complaints about the hearing having proceeded to deal with different issues from the factual contentions put forward in Mrs Garside's Originating Application (which consisted only of two sentences explaining the nature of her dismissal and alleging that it was unfair) are in our judgment equally misconceived. In any case of alleged unfair dismissal, as is well established, it is for the employer to show to the satisfaction of the tribunal what the actual reason for the dismissal was, and in the context of the present case it was for the Appellants to satisfy the tribunal of the truth of the express assertions in their Notice of Appearance that the true reason for the dismissal of Mrs Garside had been the gross negligence and misconduct they alleged.
9. The reason the case went against them was that they failed to do this when the tribunal had heard their evidence, and that the tribunal also took the view that even if the accusation had been genuine, summary dismissal in such circumstances had not been the action of a reasonable employer. Those were matters on which the tribunal necessarily had to form its own view in order to determine the case, which was the purpose of the full merits hearing set down for 17 January 2001. The need to determine those issues did not in any way arise from fresh unspecified allegations sprung on them by Mrs Garside outside her Originating Application; and in fact when we enquired into what the new undisclosed documents complained of under this head had actually been, we were told these consisted principally of the diary referred to in paragraph 9(e) of the extended reasons, which Mrs Garside had referred to in giving her oral evidence about the history of difficulties between the parties, and the grievance letter referred to in the same paragraph which, of course, the Appellants had already received and considered. No arguable breach of natural justice has therefore been identified, in our view: no reasonable employer, even one appearing before the tribunal unrepresented, could say that he was unjustly treated by being required to satisfy the tribunal that the assertions made in his Notice of Appearance were correct.
10. We also reject the complaints that the tribunal's conclusions on the material issues they defined were perverse, or based on inadequate findings. The passages we have quoted above from the tribunal's extended reasons show what the tribunal's findings of primary fact from the evidence before them were, and although it is clear Dr Mahmood and Dr Kuhan wish to dispute some if not all of those findings on the ground that the tribunal should have preferred the evidence and contentions they themselves put forward, we have not been persuaded that there is an arguable case for saying the tribunal erred in law in not doing so. In particular the crucial finding in paragraph 9(n), which the Appellants sought strongly to dispute, that the Applicant was following the normal procedure by advising an ambulance in the case of a patient reporting breathlessness, was a justified one for the tribunal to make based on the evidence of both receptionists and nursing staff recorded in paragraph 10(vi) that the procedure she followed was recognised as what would normally be done. The assessment of the evidence of the witnesses and the conclusions to be drawn from it is, of course, a matter of fact and degree for the tribunal which hears the case to determine: an appeal to this Appeal Tribunal can be brought only if there is some error of law in the way the tribunal have gone about their task. We were not persuaded that it is arguable there was such an error in the conclusions reached, that this was not a genuine or reasonable dismissal for misconduct.
11. Finally, there is the complaint that the tribunal failed to take account of a point alleged to have been raised that any compensation to be awarded to the Applicant should be reduced or eliminated by reference to her own conduct. Again we have not been persuaded that this gives rise to any separately arguable point of law, even if the tribunal had been referred to the authority of Polkey v A.E. Dayton Services which Mr Jones mentioned to us. All that appears to have been said was that the Appellants considered the Applicant had contributed 100% to her own dismissal by the conduct for which they purported to dismiss her: just another way of saying that it was her gross misconduct which had been the reason for her dismissal. That contention was for the employers to establish, and it was not accepted by the tribunal for reasons they adequately explained.
12. For those reasons, as already indicated this appeal is dismissed.