Appeal No. UKEAT/0239/04/MH

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 1 July 2004
Judgment delivered on 8 October 2004

Before
THE HONOURABLE MR JUSTICE NELSON
MS P TATLOW
MR S YEBOAH

CHAS A BLATCHFORD & SONS LTD	APPELLANT

MR D BARRETT	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR AKASH NAWBATT
(Of Counsel)
Instructed by:
Messrs Stevens & Bolton
Solicitors
The Billings
Guildford
Surrey
GU1 4YD	
For the Respondent	MR ROBERT MARVEN
(Of Counsel)
Instructed by:
Messrs Brown & Vautier
Solicitors
Kent House
Cork Street
Frome
Somerset
BA11 1BL	

SUMMARY

Employment Tribunal did not substitute its own views for those of the employer, nor did it fail to take into account matters relied upon by the Appellant in forming its belief that there had been misconduct justifying dismissal; nor did it fail to give adequate reasons for its decision; nor was its decision perverse; nor could the finding of 20% contributory fault be properly described as perverse.

THE HONOURABLE MR JUSTICE NELSON

1.	This an appeal against the decision of the Employment Tribunal dated 23 December 2003 when, sitting at Exeter, it held that the dismissal of the Respondent from the Appellant’s employment was unfair. It was ordered on 4 February 2004 that the appeal be set down for a Full Hearing.
2.	The decision of the Employment Tribunal is challenged on four grounds:-
i)	The Tribunal substituted its own views for those of the employer in making its decision,
ii)	The Tribunal failed to take into account all matters relied upon by the Appellant in forming its belief that there had been misconduct justifying dismissal,
iii)	The Tribunal failed to give adequate reasons for its decision alternatively, its decision was perverse,
iv)	The finding of 20% contributory fault was perverse; it should have been substantially higher.
The Facts.
3.	The Respondent was employed as an orthotist at the Yeovil Hospital from 9 June 1997 by the predecessors of the Appellant and then by the Appellant whom they took over the contract to the NHS to provide orthotic services at the hospital in September 2001. The applicant was the main orthotist, but worked part time, on Mondays all day, Tuesdays all day, and Wednesday and Friday mornings. Another orthotist attended more occasionally. There was a permanent clerical assistant, the Surgical Appliance Officer, Karen Wheatley, who was not a qualified orthotist. She worked there full time and had also worked for the Appellant’s predecessors. It followed, as the Tribunal have stated in their findings, that Karen Wheatley was there on occasions when the Respondent was not there.
4.	The Tribunal found that the orthotic clinic was very busy, with the orthotist seeing patients listed for appointments throughout the day and liable to be called out to wards or paediatric or orthopaedic departments. There was some chaos in the administrative side. Files and records were not kept in order and there was a reference to cheques not being paid. There were several complaints about the administration.
5.	The Tribunal described the issue before them as follows:-
“The case concerns first of all whether Karen Wheatley was acting in excess of her duties by straying into the area of clinical work. Ultimately both she and the applicant were dismissed but we are only concerned with Mr Barrett’s case. The issue is whether Mr Barrett knew that Karen Wheatley was exceeding her authority.”
6.	At a disciplinary meeting on 22 April 2003 the Appellant decided that the Respondent had ‘knowingly allowed Karen Wheatley to measure, assess and fit patients with orthotic products.’ He was summarily dismissed for gross misconduct and that dismissal was confirmed by letter of 25 April 2003. He appealed that decision. The appeal hearing took place on 28 May 2003 and the decision was upheld.
7.	It is necessary to consider the factual background in some detail in view of the Appellant’s allegation that the Tribunal failed properly to consider all the matters upon which the Appellant had relied in forming its belief that the Respondent knew that Miss Wheatley had been treating patients when she was not qualified to do so.
8.	At a contract review meeting with the NHS Trust on 4 February 2003 it came to the Appellant’s notice that a complaint about delivery times had been made on behalf of a patient, Mrs Chorley. The complaint form noted that Mr Chorley had complained about the quality of the services his wife was receiving. The complaint contained references to Karen Wheatley carrying out clinical work, which she should not have done. Mr Illif therefore met Mr and Mrs Chorley on 13 February 2003 together with the Appellant’s Quality Manager. Mrs Chorley made very clear that Karen Wheatley had done several things for her, which only a qualified orthotist should have done, namely taking foam impressions of her feet, measuring her feet, fitting her with sandals and fitting plastic insoles to fit into her shoes. Peter Iliff, the Appellant’s Orthotic Services Manager, was given a copy of Mrs Chorley’s patient notes. These indicated that Karen Wheatley had ordered new shoes from a different supplier on 27 November 2002. This, Mr Illif considered, should have raised in the Respondent’s mind the question of who had assessed and measured Mrs Chorley for those new shoes, as it had not been him.  When confronted with Mrs Chorley’s complaint both Karen Wheatley and the Respondent denied that Karen Wheatley was undertaking work which only a qualified orthotist should be doing. Later that same day, 13 February 2003, Mr Illif telephoned the Respondent and suspended him from duty.
9.	When complaints in patient files were looked into further, a complaint from Linda Caren in November 2002 was found. That complaint, like that of the Chorleys, was primarily about delays in delivering equipment. But in a letter from Mrs Caren reference was made to her surprise at learning that Karen Wheatley was a qualified orthotist. She had been told that this was not so but Mr Illif wanted to find out how she had got that impression. He therefore telephoned Linda Caren on 19 February 2003. She told him that Mrs Wheatley had said that she was qualified to undertake clinical work, and that after a Mr Beaumont had left the Appellant’s employment all subsequent measurements for fitting her shoes and calliper had been carried out by Karen Wheatley.
10.	When Karen Wheatley was interviewed by Mr Illif later that day she admitted that she had been seeing patients but said that it was at the Respondent’s request, stating that he had asked her to measure patients for insoles and footwear. Karen Wheatley was suspended from work on 20 February 2003.
11.	Later, whilst the investigation was going on and Mr Illif was covering the orthotic clinic at Yeovil Hospital in the Respondent’s place he caused further investigations to be carried out. Ten patients were telephoned between 20th and 26th March, five of whom gave Mr Illif permission to use their names and details in disciplinary proceedings against Mr Barrett and Mrs Wheatley. They were Rosamund Chorley, Linda Caren, Kathleen Denning, Ashleigh Chislett’s mother and Kenneth Mayo. Each of them said that on several occasions they had been treated by Karen Wheatley. No witness statements were taken from any of these patients.
12.	On 17 April 2003 Mrs Wheatley was charged at a disciplinary hearing with assessing, measuring and fitting patients, and also with falsifying patients receipts. These charges were found proved and she was dismissed summarily for gross misconduct. The Appellant conceded before the Employment Tribunal that Mrs Wheatley had forged the applicant’s signature on a number of orders and receipts. This, it appears from the Respondent’s submissions, applied to four of the five patients who had given permission for their names and details to be used in disciplinary proceedings, excluding Mr Mayo. Karen Wheatley’s evidence was regarded as of doubtful reliability and both the Respondent and the Employment Tribunal considered that no credence could be placed on her assertion that what she was doing was with the Respondent’s authority.
13.	Between the Respondent’s disciplinary hearing and his appeal the Appellant discovered a copy of the minutes from a IOS contract review meeting on 26 January 2000 which noted that Mrs Wheatley may have been exceeding her duties by occasionally fitting shoes. The note stated that the Respondent confirmed that this only occurred when footwear with repeat measures were issued and that he would not allow it to occur on any other occasion.
14.	At the appeal hearing against his dismissal the Respondent is recorded as having said that he should have been given a rap on the knuckles as a result of his actions rather than be dismissed, and stated that he was not the only orthotist who operated in the way he did. Before the Tribunal it was contended that this amounted to an admission by Mr Barrett that he knew what Mrs Wheatley had been doing. The Tribunal rejected that contention. Before us the Appellant sought to contend that other passages in the notes of the appeal hearing amounted to admissions by the Respondent that he knew Mrs Wheatley had been carrying out clinical work. One related to a passage in the notes in which Mr Barrett is recorded as saying that he had clamped down in 2000 on Mrs Wheatley’s involvement with assessing, measuring or fitting patients but that Mrs Wheatley had ‘continued to operate inappropriately.’ This passage was not relied upon before the Tribunal, nor was it relied upon by Mr Stenson, who chaired the appeal hearing, as part of his decision to uphold the Respondent’s dismissal for gross misconduct.
The Grounds of Appeal.
1.  The Tribunal substituted its own view for that of the Appellant.
15.	Whilst conceding that the Tribunal set themselves the proper test by stating in paragraph 2 of their decision that “we are primarily concerned whether the Respondents had reasonable grounds for their belief”, the Appellant submits that the Tribunal did not apply the test that they had correctly set out. Paragraph 5 of the decision, where the Tribunal said “the issue is whether Mr Barrett knew that Karen Wheatley was exceeding her authority” is an early example of the Tribunal substituting their own view for that of the Appellant.
16.	The Appellant submitted that the essential question for the employer at the disciplinary hearing and appeal, was whether Mr Barrett was telling them the truth. Two separate managers formed the conclusion that he was not, after seeing and questioning him at his disciplinary and appeal hearings.
17.	An employer deciding an issue of credibility such as occurred in this case must be given special deference by a Tribunal, but far from so acting, the Tribunal, the Appellant submits, reached its own conclusion about the Respondent’s knowledge. This can be seen in particular from paragraphs 21, 22, 23, 24, 25 and 26 of the decision.
18.	In paragraph 21 relating to the IOS review note, the Tribunal says “Our interpretation of that note is that he found it satisfactory that she could reorder footwear but not if it entailed any measuring or fitting”. In paragraph 22 when rejecting the contention that the notes in Mrs Chorley’s file showed that there must have been some measure of assessment or measurement, the Tribunal stated “The applicant does not accept that conclusion nor do we agree that it is so clear as to mean that there must have been re-measurement.”  In paragraph 23 the Appellant submits that the Tribunal substituted its own view, of whether the changing of a supplier was a clinical activity, for that of Mr Illif, the Appellant’s Orthotic Services Manager. In paragraph 24, when considering Mrs Wheatley’s notes, the Tribunal said:-
“We do not accept that there is so much information on that file as to lead the applicant inevitably to the conclusion that Mrs Wheatley was acting with his knowledge, nor was it reasonable for the Respondent so to conclude. According to the file the applicant pointed out to Mrs Wheatley that a change of supplier meant a re-measurement hence the need for a casting but that does not indicate that she had already carried out any re-measuring. It implies the contrary.”
19.	In paragraph 25, when dealing with the IOS meeting of 2000 the Tribunal said “We accept that at the most that might have put the applicant on his guard to look out for further events, but we do not accept that page 171 of the clinical file of Chorley was so clear as to trigger an enquiry.” The question, the Appellant submits, which the Tribunal should have asked is whether no reasonable employer could have concluded from the Chorley file that Mr Barrett must have known that Mrs Wheatley had been treating Mrs Chorley.
20.	In relation to what Mr Barrett said at the disciplinary and appeal interview the Tribunal again came to its own conclusion as to what Mr Barrett’s statement about having been given a “rap on the knuckles as a result of his actions rather than being dismissed” meant.
21.	There was a particular failure by the Tribunal, the Appellant submits, to consider or understand Mrs Chorley’s notes properly. It was submitted to us that the placing of a re-order itself was a clinical decision. It would not have been had the same shoes been ordered from the same supplier but if new shoes were ordered from a different supplier a clinical decision was involved, namely would this supplier be able to give this particular patient the appropriate shoes. That involved clinical knowledge. The Appellant’s orthotists concluded that it was apparent from the notes that this was a clinical activity of which Mr Barrett must have been aware when he saw the notes, but, it is submitted, the Tribunal did not ask themselves whether no reasonable orthotist could have concluded as the Appellant’s orthotists did, but instead weighed up the evidence themselves and stated what they thought. Furthermore, the Tribunal failed to give reasons for rejecting the Appellant’s submissions.
22.	The Appellant further submits that the Tribunal once again asked itself the wrong question when dealing with the alleged admissions. They should not have decided whether it was an admission or its extent, but whether or not a reasonable employer could have come to the conclusion that it was an admission of knowledge. They did not pose this question in paragraph 26 of their decision, but came to their own view upon it.
23.	The Respondent submits that the Tribunal did set itself the correct test at paragraphs 2 and 8 and whilst they may have used an unfortunate phrase here and there they did approach the matter correctly and not substitute their own view. It was not necessary for them to spell out the correct test each and every time they reached a particular conclusion, provided that the decision demonstrated that they had the right test in mind. The guiding principle when it comes to construing the reasons of an Industrial Employment at an appellate level, as the Court of Appeal said in Jones v Mid-Glamorgan County Council [1997] IRLR 685 “must be that if the Tribunal has directed itself correctly in law and reached a conclusion which is open to it on the evidence, the use in other passages of its reasons of language inappropriate to the direction it has properly given itself should not be allowed to vitiate the conclusion unless the relevant words admit of no explanation save error of law.”
24.	It was important to note that the ground of dismissal was that Mr Barrett had knowingly allowed Karen Wheatley to “measure, assess and fit patients with orthotic products.” It had not been the case of the Appellant either at the disciplinary hearing or the appeal that the fact of reordering shoes from a new supplier in itself amounted to a clinical decision as was contended before us. It had then been the Appellant’s case, as it had been before the Tribunal that when reordering took place there must have been some assessment or measurement. It followed the Respondent submitted, that both on this ground and those relating to failure to consider matters relied upon by the Appellant, and the ground of perversity, that the Tribunal had in fact made no error of law on this particular issue. On the contrary they had properly taken into account the disciplinary hearing and the appeal together with the evidence and arguments before both the employers and themselves, and had come to a perfectly proper conclusion. This is borne out by the fact that when the new supplier said that they wanted a cast Mrs Wheatley did nothing herself but left it for Mr Barrett to make a foot impression on 20 January 2003. The Tribunal’s decision on this issue was therefore fully supported by the facts and arguments before it.
25.	We have considered the submissions on this ground, both in writing and orally, and are satisfied that the Tribunal had in mind the appropriate test when considering the matter. Paragraphs 2 and 8 of the decision make this clear. For example in paragraph 8 the Tribunal said “The issue before us is whether the conclusion reached was a reasonable one. Although this case has taken two full days the issue is very narrow. What evidence did the Respondents have - not simply that Karen Wheatley had acted inappropriately but that the applicant knew that she acted inappropriately”.
26.	Paragraph 24 also indicates that they still had the correct test in mind when they stated that it “was not reasonable for the Respondents” to conclude on the evidence of Mrs Chorley’s file that Mrs Wheatley was acting with Mr Barrett’s knowledge.
27.	When considering the evidence and argument before them, the Tribunal were inevitably having to weigh the opinions of one orthotist (the Respondent) against those of other orthotists (Mr Illif and Mr Stenson). They could not simply accept the Appellant’s opinions as being the only reasonable opinions capable of being held. They had to exercise their judgment on the evidence and argument before them.
28.	It is correct that the Tribunal used phrases which suggest that they are making their own minds up on the issue, for example when they say “we do not accept” or “we accept” or “our interpretation”. They also said the issue “is” when they should have said the issue “was” in paragraph 5. The fact remains however that however they express themselves on some occasions in the course of their decision, the Tribunal clearly had in mind the need to consider whether the conclusion reached by the employers was a reasonable one. We are satisfied that they had this need in mind throughout their decision and that their occasional use of inappropriate language to describe individual findings, does not derogate from that conclusion. It is not necessary for a tribunal to re-express the test in precisely the same language every time that they make a finding. Having considered the decision as a whole we conclude therefore that the Tribunal did have the correct test in mind and did not substitute their own views for those of the employer.
2.  Failing to take into account all matters relied upon by the Appellant. 
29.	The matters complained of under this ground are, the Appellant emphasised cumulative. We have considered them on this basis.
30.	It is contended that the Tribunal failed to consider the “Five verbal statements submitted from patients” which were raised with Mr Barrett at the disciplinary hearing. They did not refer to these. Furthermore although four of the five patients were discussed at the appeal hearing the Tribunal referred to only two of them, namely Mrs Caren and Mrs Chorley. They state in paragraph 10 of their decision that the Respondents particularly considered those two specific cases. The omission to mention the other cases is however important, firstly because as someone with an obligation of general supervision as a senior clinician, Mr Barrett would have been expected to have seen notes in relation to patients, and secondly, because some of the measuring and fitting which Karen Wheatley carried out was done in the room adjoining Mr Barrett’s room. No written statement was taken from the witnesses and there was no evidence before the Tribunal as to when, in relation to whom or where such measuring or fitting had taken place. It was not suggested at either the disciplinary hearing or the appeal hearing that any such measuring or fitting had taken place in Mr Barrett’s sight. What concerned the Appellant, as is clear from the record of the disciplinary hearing, was that “it was difficult to believe that DB had no knowledge of what KW had been doing as they both worked in such a small working environment.” This close proximity of where one worked in relation to the other the Appellant submits was not dealt with by the Tribunal even though it clearly weighed heavily with the employer.
31.	The Respondent submitted that it was hardly surprising that the Tribunal said that the Respondent had particularly considered two specific cases as that is what they had done. The fact that it transpired that Mrs Wheatley, unknown to Mr Barrett, had forged his signature in relation to four of the five cases and that complaints about delay or treatment received were only made in the cases of Mrs Chorley and Mrs Caren made it inevitable that those were the two which were concentrated upon both by the employers and the Tribunal. Although reference was made in the disciplinary hearing to Mrs Wheatley and Mr Barrett working closely together in a small working environment, it was in relation to two patient complaints, namely Mrs Caren and Mrs Chorley that Mr Illif expressed concern. It was never at any stage suggested that Mr Barrett was an eyewitness to what Mrs Wheatley had done when he was present in his adjoining office. There was no evidence to that effect at all. The Respondent’s own note of the disciplinary hearing, which was the only note to raise this matter do not state that Mr Barrett was an eye witness. The verbal statements of the patients therefore went to the question of what Mrs Wheatley had done, and the employer’s case as to Mr Barrett’s knowledge was based on the documents.
32.	The Tribunal did, the Respondent submits, consider the working environment in their decision. Thus they referred to the fact that the clinic was busy, that Mrs Wheatley was part of the permanent staff whereas Mr Barrett was there part-time. There was chaos on the administrative side, records were not kept in order and there were complaints about the administration. Thus they had the working environment and the fact that Mrs Wheatley would be working there when Mr Barrett was not, clearly in mind.
33.	Mr Stenson’s notes of the appeal meeting showed that his conclusion concentrated on Mrs Wheatley’s statements, Mrs Chorley’s patient notes, patient complaint investigation, which could only relate to those who made complaints namely Mrs Chorley and Mrs Caren, and the minutes from the IOS meeting. It was not surprising in all these circumstances that the Tribunal concentrated, as the Respondent had, on those two particular cases. That was the way that the matter was presented before the Tribunal and it was appropriate for them to deal with it in that manner.
34.	We have considered the respective submissions on this issue and prefer the submissions made on behalf of the Respondent. There were no written statements from any of the patients and the only two who made complaints about either delay or the quality of their treatment were Mrs Caren and Mrs Chorley. It was these two patients about whom Mr Illif expressed concern at the disciplinary hearing and clearly Mrs Chorley’s notes played an important part in the appeal decision and in the Appellant’s presentation to the Tribunal. We have seen nothing to suggest that the Tribunal’s statement that the Appellant particularly considered two specific cases did not properly reflect the manner in which the Appellant’s case was presented to them at the Tribunal hearing. Furthermore it clearly had in mind the working environment and in particular, the fact that there would be occasions when Mrs Wheatley was working there when the Respondent was not.
35.	The Appellant further contends that in relation to Mrs Caren the Tribunal did not properly consider Mr Stenson’s view that when considering her complaint Mr Barrett would have seen the files and would have known that Mrs Wheatley had been treating her. The difficulty with this submission is that the Tribunal make a specific finding that Mr Barrett was not sent a copy of the complaint, which was primarily one of delay but which included a reference to Karen Wheatley treating the patient. He had, the Tribunal found, no reason to look at anything other than delay and that is what he dealt with. Such a finding cannot be and is not expressly challenged by the Appellant. Mr Barrett told both the disciplinary hearing and Mr Stenson at the appeal that he did not check Mrs Caren’s file. The finding by the Tribunal that “he had no reason to look at anything other than delay” appears to us to accept that evidence.
36.	The Tribunal’s finding that the IOS meeting of 2000 “at the most might have put the applicant on his guard to look out for further events” is criticised by the Appellant as not fairly reflecting the IOS meeting, which was one of the factors taken into account by the Appellant in forming its conclusion about Mr Barrett’s knowledge. The 2000 minutes showed that Mr Barrett had “made a commitment not to allow KW to be involved with the setting, measuring or fitting patients.”
37.	This is in essence a complaint about inadequate weight being given to the IOS meeting by the Tribunal. It is therefore a contention which should properly be considered under the ground of perversity rather than failing to take into account matters relied upon. The IOS minute was clearly a matter at the forefront of the Appellant’s submissions and clearly an important part of the case against the Respondent. It cannot however be said that the Tribunal failed to take it into account. They expressly did so in paragraph 25 of their decision and made a finding that the Chorley file notes were not sufficiently clear as to trigger such an enquiry.
38.	Related to this contention is the further contention that the Tribunal failed to take into account the various admissions which it is contended the notes reveal Mr Barrett as having made at either the disciplinary hearing or the appeal hearing. The Tribunal dealt specifically with Mr Barrett stating that he should have been given a rap on the knuckles rather than dismissed, and that he was not the only orthotist who operated in the way he did, at paragraph 26 of their decision. They did not deal with any of the other admissions now relied upon though Mr Barrett submits that this is so because they were not relied upon before the Tribunal. Nor does the letter confirming dismissal or any subsequent letter rely upon such admissions. We cannot see how the Tribunal can be criticised in such circumstances. The contention appears to relate to matters which were not raised before but it is now with hindsight wished that they had been.
39.	We have stood back and looked at each of the individual allegations under this ground and also considered them cumulatively. Having performed that task we are satisfied that the Tribunal did not fail to take into account all matters relied upon by the Appellant. The Tribunal cannot be criticised for failing to deal with matters which were not pursued during the course of evidence or argument before them.
3.  Failure to give adequate reasons / perversity.  
40.	The contention that the Tribunal failed to give adequate reasons for its decision is in essence an alternative way of arguing grounds 1 and 2. Thus in its written submissions it is contended that if the Tribunal did determine the reasonableness of the Appellant’s determinations and did consider all of the matters relied upon by the Appellant, then they failed to give any adequate reasons for their findings. We do not consider that there is any substance in this complaint. It is clear from the decision and in particular from paragraph 29 thereof that the Tribunal gave anxious consideration to a case which they had found difficult to determine. In our judgment they deliberated the matter with some care and set out their reasons for their eventual conclusion in a proper manner.
41.	We are satisfied that they dealt properly with the points raised before them and stated why they were satisfied that the employer’s conclusion that Mr Barrett must have known that Mrs Wheatley was treating patients was unreasonable.
42.	The basis of the Appellant’s belief that Mr Barrett knew that Mrs Wheatley was treating patients is set out in paragraph 16 of the Appellant’s skeleton argument. It amounts to substantial grounds for contending that Mr Barrett ought to have known that Mrs Wheatley was treating patients. That was not however the question which the Tribunal had to determine. They had to determine whether the Appellant’s determination that he did know was reasonable.
43.	We do not consider that this is an appropriate case for us to hold that the Tribunal’s decision was one which no reasonable Tribunal on a proper appreciation of the evidence and the law would have reached. The Appellant’s case was based substantially on the interpretation of documents and inferences to be drawn from matters which were not the subject of written statements. The conclusion that the employer’s finding that Mr Barrett must have known that Mrs Wheatley was treating patients on such evidence was not reasonable, was one which was open to the Tribunal to make. We do not consider that their conclusion can properly be described as perverse.
4.  Contributory fault.
44.	The Tribunal found 20% contributory fault. Such a finding might have been generous to Mr Barrett but we cannot conclude that it is one that could properly be described as perverse in the light of the Tribunal’s findings of fact. As the Respondent submits, Mrs Wheatley was not formally managed by Mr Barrett even though he had a general duty to exercise some supervision. She worked on days when he did not and Mr Barrett could be called out of the clinic throughout the day. There was some administrative chaos and “at the most” he “might” have been put on his guard in 2000. We reject this ground of appeal.
Conclusions.
45.	We are not satisfied that the Appellant has made out any of the grounds of appeal. Accordingly the appeal must be dismissed.