The Claimant's Case

1. First, as to the ET's approach to procedural fairness (unfair dismissal), the original dismissal decision was (as the ET found) flawed in such a serious and multifaceted way, (i) it could not be remedied on appeal; alternatively, (ii) only a perfect appeal process could remedy it. The ET erred in law in failing to look at the totality of the process, failing to weigh the gravity of the flaws at stage 1 with the flaws at stage 2. Mr Laddie QC laid stress on the statement in Taylor (paragraph 47) that it was for an ET to examine with "particular care" any subsequent proceedings in a disciplinary process found to be flawed at an earlier stage. That would be all the more so where the decision to dismiss was of itself "nearer to the borderline" (Taylor at paragraph 48). Earlier case-law cited in Taylor (paragraph 33) expressly recognised there might be cases where the defect was so severe it could not be remedied.

1. As to the fairness of the appeal, Mr Laddie QC raised issues regarding the composition of the panel. Ms Ludlam was (1) a mentor to Ms Leegood; and (2) had been involved to some extent in an operational policy document, which was part of the case against the Claimant. As regards Mr James, he was junior to the dismissing manager, Ms Ashworth, and reported to her. The composition of the appeal panel was thus in breach of the standards laid down by the Code as supplemented by the ACAS Guidance and there were alternatives this employer could have adopted. The obligation was on the Respondent; it was not for the Claimant to have to keep raising the point. It was of particular importance given the panel was considering live evidence and (by then) allegations of race discrimination and protected disclosure detriment. The ET failed to perform the task before it. It merely asked (paragraph 178) whether defects from the stage 1 continued into stage 2; it failed to have regard to the process as a whole.

1. As for the second ground of appeal, the Respondent itself saw Allegation 1 as a misconduct - not gross misconduct - issue. Allegation 2 could not reasonably be characterised as misconduct at all; if anything, it was capability. See the description used in the investigation and dismissal process; it was only characterised as wilful at the appeal stage.

1. On the third ground, the ET erred in law, alternatively reached a perverse conclusion and/or failed to give adequate reasons in respect of the wrongful dismissal claim. The ET would have needed to have found that the Claimant had acted in repudiatory breach of contract, and that entailed either a wilful or deliberate contravention of an essential term of the contract or gross negligence (Sandwell & West Birmingham Hospitals NHS Trust v Westwood). Accepting that the conclusions had to be viewed in the light of earlier findings on unfair dismissal, that did not assist: those findings had been in the Claimant's favour.

1. On the fourth ground, relating to the race discrimination claim, this raised an important question as to how an ET should deal with discrimination in the context of findings of unfair dismissal. The Claimant's claim of race discrimination as against Ms Ashworth was that she had treated the Claimant so unfairly, it raised an inference of race discrimination. The ET's conclusions gave insufficient recognition to what it had found on unfair dismissal. Was it really the case that - no matter how blatantly unreasonably the employer has treated an employee - unfairness, without more, cannot give rise to an inference of discrimination? In this case, the ET erred in failing to have proper regard to the complete picture. Doing so, gave rise to something more than mere unreasonableness; there was an absence of explanation. Accepting the ET purported to consider the question of explanation, finding there had been genuine mistakes which arose because of genuine errors; that was tautologous. A proper application of the burden of proof in these circumstances ought to have resulted in a finding of discrimination.

The Respondent's Case

1. On the first ground, Mr Cooper did not accept that the ET's findings of unfairness at the dismissal stage meant this could not be remedied on appeal. The ET did not put its conclusions any higher than that the decision fell outside the range of reasonable responses (see paragraph 159). It was not saying that it was fundamentally flawed or that the flaws were irremediable. It was also wrong to say there was any requirement that the appeal process itself be without fault. The highest the matter could be put was as set out in Taylor, i.e. the more serious the flaws, the greater the scrutiny that might be required. The ET had directed itself that it must assess the fairness of the procedure as a whole and then it did just that. It was not simply stating what would be required in a re-hearing, but properly assessed what had taken place at the appeal stage as against what had gone wrong before.

1. As for the composition of the appeal panel, the parties agreed the test was not the same as for a judicial process but these points may still be relevant to fairness. Whilst someone who was part of the original decision making below should not then determine the appeal (that would give rise to fundamental bias), presence at an earlier stage might or might not raise a question of bias depending on the facts. Matters had to be seen in the context of the workplace (see Taylor v OCS and the citation from UCATT v Brain [1981] IRLR 234 at paragraph 48). Here, the ET had regard to all relevant factors and reached a conclusion open to it. This could only be a case of apparent bias; the balancing exercise was a matter of weight for the ET.

1. There could be no requirement that all members of a disciplinary or appeal panel had had no prior or dealings (even close dealings) with the individuals involved in the events in question. That would be impractical where, as here, the allegations concerned a member of the senior management team and witnesses included other senior managers. The correct approach was to consider, in the round, the composition of the appeal panel and the way it went about its business; to assess whether the overall process was within the range of reasonable responses. That the panel had examined the facts dispassionately, at great length and with scrupulous fairness, and did in fact act fairly and justly and demonstrated actual impartiality was highly material to the assessment. It was for the ET and only susceptible to challenge on appeal if it thereby failed to apply the correct test or reached a perverse conclusion.

1. It was also relevant to see how the Claimant had put matters below. Before the appeal panel, an issue regarding Ms Ludlam had been raised in correspondence but not then pursued, notwithstanding the Claimant was legally represented. Before the ET, the point had been pursued with a different emphasis. The ACAS Code and Guidance did not address the case of a panel rather than a single manager. So whilst Mr James' subordinate role (albeit he was still a very senior manager and there was no evidence than that he had done other than participate in an impartial and dispassionate manner) might not be ideal, the question was whether it gave rise to a fundamental breach of natural justice and it had not. It was simply a matter to go into the overall mix and it would only be if the ET's approach failed to take account of that or was perverse that it could be challenged on appeal. Here, the ET had carried out its task impeccably. It had taken into account relevant points and reached conclusions open to it.

1. The second ground of appeal was really a perversity challenge. The first allegation was accepted to be a conduct issue; the documents showed it had been viewed by the Respondent as a serious misconduct matter (see its reference to this being a breach of the Code of Conduct). Far from the Claimant's conduct at the 20 July meeting not being overly serious, the meeting was specifically due the problems with the CPU and her 'phoning a colleague and saying she would not be doing what other managers had directed, then responding to Ms Leegood in a hostile manner set the context for how it was viewed by the Respondent.

1. As for the second allegation, this had always been that the Claimant had failed to be cooperative: i.e. she was being uncooperative. That was capable of being a conduct issue, as the letters from the Respondent had made clear when speaking about her unhelpful attitude. The real issue became apparent to the Respondent over the course of the investigation and to the ET over the course of the hearing. It was not easy to put into one paragraph but it was clearly a matter of conduct and that was how it was understood by the Claimant.

1. On the third ground, the wrongful dismissal claim: the ET had evidence from the witnesses and was entitled to reach its own conclusions. It heard the Claimant and others in respect of the 20 July incident and saw this as a serious incident. It made its own finding as to the blameworthy aspect of the Claimant's conduct in respect of the operational policy change; it found palpable resistance and deliberate reluctance (wilful conduct). Given its findings as to the requirements of the Claimant's job, there was sufficient explanation for its conclusion.

1. Lastly, on the race discrimination appeal, whatever further clarification might be helpful on the point, what was clear was that mere unfairness plus a protected characteristic was not sufficient (see Zafar). Here, (unlike Anya) there was no actual comparator and the ET's finding was of nothing more than mere unfairness. In any event, the discussion ultimately went nowhere because the ET had approached this as if the burden of proof had shifted and the Respondent was obliged to provide an explanation. The ET concluded there was a genuine error in the attempt to follow the process and Ms Ashworth's decision taking had been absent race discrimination. Moreover, it was important to keep in mind what the explanation had to be for. Here it was the dismissal of the Claimant, and it was plain (see paragraph 56) that the ET had made a finding that Ms Ashworth had a genuine belief in the Claimant's misconduct.

The Claimant in Reply

1. On ground 1, what distinguished this case was, first, Mr Deans' concession that, had he known of the circumstances relied on, that may have made a difference such that Ms Ludlam would not have sat on the panel. And, second, the appeal panel was concerned with the veracity of the witnesses, this being a re-hearing. Ms Ludlam had mentored Ms Leegood, and Mr Smith reported into Ms Ashworth. In some cases these facts would not undermine the fairness, but this was fact-sensitive and where, as here, the credit of witnesses was an essential factor, it undermined the fairness of the appeal process.

1. On ground 2, it would not have been difficult to express Allegation 2 as a conduct issue, if, indeed, that is what it was; that is not how the Respondent chose to put it.

1. On wrongful dismissal, ground 3, although the Respondent's written submissions before the ET had stressed the need to differentiate between unfair and wrongful dismissal, the parties were still left having to trawl through the unfair dismissal findings to get any reasoning relevant to the wrongful dismissal conclusion; even then, it was insufficient.

1. On ground 4, on the facts of this case, this was not mere unreasonableness. The ET did not consider whether its findings on fairness provided sufficient material. As for the explanation, the findings asserted that Ms Ashworth had made mistakes; that was not an explanation. The issue was why she made those mistakes.

1. We start with the appeal against the ET's rejection of the unfair dismissal case. When looking at the question of fairness, the ET was bound to consider the process overall (Taylor). It did so. Having made its findings as to the unfairness that it concluded tainted Ms Ashworth's decision, the ET did not consider the flaws it had found were such as to mean that the position could not be remedied. We have had careful regard to the ET's findings in respect of Ms Ashworth's decision making and then to the findings made on the appeal process. It is clear that the ET did that which Mr Laddie QC says that it must: it had regard to the nature and the extent of the flaws at the earlier stage, specifically going through these points when assessing the appeal process (see paragraphs 179 to 194). We reject the assertion that this was a case where the initial unfairness was such that the position could not be remedied or could only be remedied by an entirely perfect appeal process or by an appeal process that gave the Claimant a yet further hearing or review thereafter. The process was to be considered in the round. We do not accept that the ET missed the point regarding the seriousness of the flaws at the first stage; it very much had those in mind. Its findings on the appeal do not sit in a vacuum; it also took into account the findings it had made on the original decision to dismiss.

1. We turn to the question whether the appeal stage was itself flawed, such that it could not rectify the position, because of the composition of the appeal panel. We note the ET made a finding of fact as to Ms Ludlam's earlier involvement in matters relevant to the case: it was no more than a minor involvement some year and a half earlier which she had, unsurprisingly, forgotten. No issue can be taken with that and there could thus be no question of Ms Ludlam sitting in judgment on her own prior decision or involvement in the case. At most, the Claimant had raised a question as to Ms Ludlam's management role more generally, which included her role as mentor to Ms Leegood, suggesting this gave rise to an appearance of bias.

1. The assessment of that question, in the context of an internal disciplinary process, is not to be approached as it would in judicial proceedings and for good reason (see the references in the case-law we have cited above). Even if it was, however, we are satisfied that the fair-minded, informed observer would not consider that there was any appearance of bias in these circumstances. The informed observer would bring to bear on the assessment the kind of industrial experience that the EAT lay members have been able to do in this case. She would, therefore, be aware that very senior managers, such as Ms Ludlam, will mentor and have involvement in the management of a number of employees and may well also sit on disciplinary and appeal panels in which those employees might be involved. She would understand that to require an employer to avoid any such link would be both unrealistic and undesirable: employers are entitled to want to utilise the knowledge and experience of relevant members of the senior management team in this way; it does not, without more, render the process unfair. Here there was nothing more suggested by the mentor role Ms Ludlam had carried out. The fact that the Claimant's legal representative did not pursue the point after receiving the Respondent's response was a further significant fact the ET was entitled to take into account.

1. As for Mr James, the Claimant objects that he was junior and reported to the dismissing manager, Ms Ashworth, albeit that was not a point made by her at the time of the appeal itself. We accept and endorse the general advice given by ACAS to the effect that the person hearing an appeal should be senior to the original decision taker. That will generally be right given that the person hearing the appeal has to be able to overturn the decision taken below. More than that, there may be a concern that a subordinate might be unduly influenced if considering a decision taken by a manager to whom they report. On the other hand, we have to see this in context (as did the ET). As the Respondent points out, Mr James, who was himself a general manager of some seniority, was one of a panel of three. The panel was chaired by a director and included another director, both senior to Ms Ashworth, and received independent advice from a senior pharmacy professional. Those matters took this case outside the circumstances specifically considered by the ACAS Code and the non-statutory guidance. Moreover, whilst we can see that the involvement of a more junior employee (albeit in this case someone of seniority, whose reporting line to Ms Ashworth may not have been in the same form as employees at a lower level) might not have been ideal, the ET was entitled to look at the substance not merely the form. These matters, along with Ms Ludlam's management and mentor role, all went into the mix. The ET took all those matters into account and reached a conclusion open to it on the evidence. That view was informed by the conclusion as to what had actually taken place at the appeal, both as to the hearing but also in terms of the panel's decision making. The ET was entitled to have regard to all those matters in assessing the question of fairness. It reached a view properly open to it. It is not for us to interfere.

1. We turn then to the second ground of appeal: the characterisation of the disciplinary charges and findings. Ultimately we consider this comes down to a perversity challenge, and we do not find the Claimant has met the high standard she must to make good such an appeal.

1. We start with the Allegation 2. Contrary to Mr Laddie QC's assertions, we do not find it in any way difficult to see why this was characterised as a conduct rather than a capability issue. The EAT lay members, in particular, consider that where an employee - in a senior management role and leading on an operational change of this nature - has been found to lack commitment and to have failed to cooperate, support and lead, that can properly be described as a conduct issue. On any fair reading of the dismissal letter, it is apparent that Ms Ashworth was finding that the Claimant was hostile to the policy and that is why she had delayed and failed to lead. The whole purpose of the CPU was to move to a pharmacy- not nurse-led service. Yet the Claimant's contributions showed her continually seeking to cast this as a nurse-led service. It is clear that Ms Ashworth found that the Claimant was motivated by her disagreement with the policy; that made her conduct wilful. We do not consider that any of this is undermined by the fact that the Respondent might not initially have seen the issue so clearly. It was something that became increasingly apparent over time, as the ET found here. In part, it is something that crystallised with the events at the meeting on 20 July. We can see why the ET described the Respondent as having come to its view having "looked back over events as a whole through "the prism of the final alleged escalation of behaviour" " (paragraph 186).

1. As for Allegation 1, what took place on 20 July did not stand in a vacuum; the Respondent was entitled to have regard to the nature of the meeting and to see the Claimant's conduct in context, hence its characterisation of this as breaching the Code of Conduct.

1. As for how matters were labelled in the investigation and dismissal letters, we look to the substance not just the labels or form. We have no difficulty in thus seeing how the Respondent saw these matters as serious issues and we do not consider that the Claimant had such a difficulty either. We can accept that the appeal outcome letter was a rather better drafted document than the earlier correspondence emanating from the Respondent. But the substance remained the same. Most relevantly, the ET was entitled to conclude - as we are satisfied that it did - that the Respondent had a reasonable belief that the Claimant was deliberately resistant and obstructive and saw her conduct on 20 July as both part of that and illuminative of it.

1. As to ground 3, we note that the ET heard the Claimant's evidence along with that of a number of other witnesses over a period of time and clearly reached its own view. In part its reasoning is set out in its unfair dismissal findings. But its descriptions of the Claimant's conduct as demonstrating palpable resistance and deliberate reluctance (see paragraph 200, for example) are expressions of its own views on the evidence before it. That was sufficient to permit a characterisation of the Claimant's conduct as wilful. Further, given its clear findings as to what was required of the Claimant as part of her job (see paragraph 199, for example) the ET was entitled to find that she had acted in breach of the contractual obligation to do that which was reasonably required of her. Reading from both the findings under the heading of unfair dismissal and wrongful dismissal, the ET's conclusions are adequately explained.

1. As for race discrimination, I permitted this part of the appeal to proceed to a Full Hearing because of a concern that there might be something in the point that the ET had not given sufficient regard to the weight of its findings as to the unfairness of Ms Ashworth's decision making. Having had the opportunity to more fully consider the question of unfairness as part of the unfair dismissal appeal, I and my colleagues are satisfied that any such concern has been laid to rest. This was not a case where the ET had found matters tipped beyond what might be described as mere unfairness. There may be cases that do give rise to more difficulty of analysis. This is not one of those cases.

1. Even if we were wrong on that, we are, in any event, satisfied that the ET considered the explanation provided by the Respondent and found as a fact that it was not tainted by race discrimination. Ms Ashworth made genuine mistakes because of the errors in her approach. Whatever the reason for her mistakes - and, allowing for human error, there may be nothing more to add to that - the ET was satisfied that she genuinely believed in the Claimant's misconduct and that she was not informed, consciously or subconsciously, by the Claimant's race. That is a sufficient answer. This ground of appeal fails along with the others.