D v Abercorn Care Ltd UKEATS/0044/09/BI

Appeal against ruling that the claimant was not unfairly dismissed. The claimant claimed that the respondent, by using a piece of evidence at the internal appeal without warning the claimant in advance, had not complied with the statutory dismissal procedures. The EAT agreed with the ET that there was nowhere in the statute that stipulated that any evidence which a party was intending to use at an appeal should be relayed to the other in advance. Even if there was, it was plain on the facts of the case that it was only at the appeal hearing that the respondent decided to refer to the evidence, being prompted into doing so by appeal and grievance letters that were produced by the claimant at that stage. Appeal dismissed.


Appeal No. UKEATS/0044/09/BI



At the Tribunal

On 26 May 2010







Transcript of Proceedings



For the Appellant
Instructed by:
Ethnic Minorities Law Centre
41 St. Vincent Place
G1 2ER

For the Respondent
MR COLIN BOURNE (of Counsel)
Instructed by:
RBS Mentor Services
100 West George Street
G2 1PP



Claimant's claims of race discrimination, age discrimination and unfair dismissal all dismissed following a full hearing before the Employment Tribunal. Lengthy notice of appeal failed to pass the sift apart from one ground to the effect that the Tribunal had erred in finding that the Respondents had complied with the requirements of the statutory dismissal procedures (which were in force at the time of the Claimant's dismissal). On appeal to the EAT it was submitted for the Claimant that there required to be read into the statutory procedure a requirement that the employer notify the employee in advance of an appeal hearing if he has encountered new material to which he intends to refer at that hearing. That was in circumstances where a document of which the Respondents had not been aware at the time of the disciplinary hearing and dismissal was referred to at the appeal and in the letter refusing the appeal. Appeal dismissed by the EAT. No such provision could be read into the statutory procedure. Even if it could, it was plain on the facts of the case that it was only at the appeal hearing that the Respondents decided to refer to the document, being prompted into doing so by appeal and grievance letters that were produced by the Claimant at that stage.

**THE HONOURABLE LADY SMITH** **Introduction**
  1. This is an appeal from a judgment of the Employment Tribunal sitting at Edinburgh, registered on 6 July 2009, Employment Judge S Craig WS, dismissing the entirety of the Claimant's claims which were claims of race discrimination, age discrimination, and unfair dismissal. We will continue referring to parties as Claimant and Respondents.
  1. The Claimant was represented by Ms Stark, advocate, before the Tribunal and before us. The Respondents were represented by Mr Bourne, of counsel, before the Tribunal and before us.
  1. Put briefly, the Claimant was employed by the Respondents as registered manager of a care home for the elderly in Edinburgh. Following concerns that had arisen regarding her conduct and performance, the Respondents wrote requiring her to attend a disciplinary meeting on 6 December 2007. Their letter set out six specific allegations, all of which were found, following the disciplinary hearing, to have been established. Two of them were found to have amounted, individually, to gross negligence. The first involved the Claimant having made errors in respect of controlled drug administration requirements including the completion of important documents known as Medication Administration Sheets. Those errors were in circumstances where it had been found that controlled drugs were unaccounted for. When asked about the matter at the disciplinary hearing, the Claimant's response had been simply to say that no-one had died and no-one had received an overdose. The second matter involved an incident that had occurred on 20 November 2007. The Claimant had been suspended the previous day but had turned up at work. The Tribunal's findings regarding that matter are at paragraph 72 of their reasons:

"Despite that on 20th November the claimant did turn up at Viewpark insisting that she was "the manager" and was "there to work". The claimant refused to leave, despite being asked to do so by both Mr Lewis and Mrs Hill and only left after being asked to do so by the police."

  1. In the letter of 3 December that matter constituted the fourth of the Respondents' allegations and was summarised as:

"Refusal to follow reasonable management instructions and aggressive behaviour, on 20 November contrary to the Company's code of conduct."

  1. The Tribunal found that it was reasonable for the Respondents to regard these two matters as they did, namely as each amounting to instances of gross misconduct. Neither the facts underlying that conclusion nor the conclusion itself were challenged in the appeal.
  1. At paragraph 82, the Tribunal found that the principal reasons for the Claimant's dismissal were the two acts of gross misconduct. That finding was not challenged in the appeal. At paragraph 83, the Tribunal held that the decision to dismiss was one which the Respondents were entitled to take in all the circumstances and was a reasonable decision. That finding was not challenged in the appeal. The Claimant was dismissed as at 7 December 2007.
  1. At some point between 7 December 2007 and 4 January 2008 a note in the Claimant's handwriting was found in a resident's file. It appeared to be a letter addressed to the Respondents' Managing Director, Mrs Hill, and Mr Lewis, the Strategy and Training Director. The Claimant made a number of complaints in the letter which were mainly directed at Mrs Hill and included complaints that the Claimant felt she was being discriminated against on grounds of race and age. The Claimant is of Black French Caribbean ethnic origin. The Claimant had written the letter on 13 November 2007 and said that she had not handed it to Mrs Hill or Mr Lewis because her advisers had told her to do what she did with it, namely to leave it in a resident's file. She had kept a copy of it and her advisers also had a copy.
  1. The Claimant appealed and a hearing was fixed for 4 January 2008. Prior to the appeal hearing the Claimant submitted a detailed appeal letter in which she challenged the decision to dismiss her and included a statement that she believed that her dismissal was discriminatory on grounds of her race. She also produced a separate letter headed "Re: Written Grievance concerning race discrimination and discriminatory dismissal." The appeal was adjourned for an hour to allow the new documentation to be considered. The Respondents then decided that given the matters now raised by the Claimant they would require to refer to the letter in her handwriting that had been found in the resident's file. It is plain from the agreed note of evidence that it was not until then that the decision to make reference to the letter was taken.
  1. The Claimant's appeal was rejected. She was provided with reasons by letter dated 30 January 2008. The letter repeated the Respondents' earlier concerns about the Claimant's conduct and added, in the penultimate of seven bullet points that they considered the Claimant had also made derogatory remarks within the letter that had been left on file and that those remarks further damaged the relationship between employer and employee.
**Relevant law**
  1. The statutory dismissal procedures which applied at the time of and to the Claimant's dismissal were contained in Part 1 of Schedule 2 to the Employment Act 2002, chapter 1. It involved the following stages:

"Step 1: statement of grounds for action and invitation to meeting

1(1) The employer must set out in writing the employee's alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

(2) The employer must send the statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.

Step 2: meeting

2(1) The meeting must take place before action is taken, except in the case where the disciplinary action consists of suspension.

(2) The meeting must not take place unless – (a) the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and (b) the employee has had a reasonable opportunity to consider his response to that information.

(3) The employee must take all reasonable steps to attend the meeting.

(4) After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.

Step 3: appeal

3(1) If the employee does wish to appeal, he must inform the employer.

(2) If the employee informs the employer of his wish to appeal, the employer must invite him to attend a further meeting.

(3) The employee must take all reasonable steps to attend the meeting.

(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.

(5) After the appeal meeting, the employer must inform the employee of his final decision."

  1. As was commented by Elias J, as he then was, in Alexander v Bridgen Enterprises Ltd* [2006] ICR 1277, "these procedures are concerned only with establishing the basic statutory minimum standard" (para 35). That basic minimum standard involved giving notice in the step 1 letter of the conduct or characteristics or* other circumstances which lead the employer to contemplate dismissing the employee. As Mr Bourne rightly submitted, the requirements had regard to three categories into one of which all dismissals could be expected to fall. The requirements are plainly not a conjunct list and we reject a submission made by Ms Stark to the effect that they are. The operative word is "or" not "and".
  1. It is also of importance for the purposes of this appeal to observe that when it came to an employee's appeal against an employer's decision to dismiss, the statutory procedure did not include any requirement for the employer to send any notice of any kind prior to the appeal meeting. In particular, there was no requirement for the employer to give prior notice to the employee of any matter that he intended to rely on at the appeal meeting. No doubt, in a particular case, issues may arise as to whether the failure to do so renders the procedure unfair for the purposes of s.98(4) of the Employment Rights Act 1996 but that is another matter. So far as the statutory procedure was concerned, there was nothing written in it that required the employer to give any such notice.
**The appeal**
  1. The Claimant's case on appeal was, essentially, that notwithstanding the absence of any express provision requiring the Respondents to intimate to the Claimant their intention to refer to the letter that she had written and left on file, at the appeal meeting, it should be read into the statutory provisions that they were required to do so. That was, it was said, in accordance with the spirit of the statutory procedure. That procedure was, it was said, all about loss of employment and what occurred here, where the Claimant was faced with the letter being referred to without having had prior notice of her employers' intention to do so, was exactly what the provisions were designed to prevent. Fresh information had come to hand and the Respondents were obliged to notify the claimant about it.
  1. It was pointed out to Ms Stark that it could hardly have been a surprise to the Claimant that the letter had been found given that that seemed to be what she had intended. She accepted that but said that she did not know until the appeal hearing that it had in fact been found.
  1. As to the likely outcome, had it been found that the dismissal was automatically unfair for failure to follow the statutory procedure, Ms Stark seemed to accept that there was a likelihood of a reduction in compensation and that that reduction could have been to nil, given the nature and extent of the Claimant's contribution to her dismissal as exemplified by the findings of gross misconduct. She said that the point was that there would still have been value to her in the bare finding of unfair dismissal.
  1. Mr Bourne submitted that the appeal was wholly misconceived. The purpose of the statutory dismissal procedure was to protect the employee from being ambushed at a disciplinary hearing but even at that stage, it was a misreading of the procedure to suggest that everything taken into account by an employer at disciplinary hearing stage required to have been notified in advance. An employee might, as in this case, provide a wholly unsatisfactory response to conduct allegations. There was nothing wrong, so far as the statutory procedure was concerned, in taking such a matter into account.
  1. Regarding the appeal stage, he made two points in answer. First, on the facts, the Respondents could not have given advance notice of intending to refer to the letter because they had no prior intention of doing so. It was only when the Claimant produced the appeal letter and grievance letter at the appeal that they decided to do so. Secondly, the statutory dismissal procedures did not require advance notice to be given in respect of anything that an employer intended to refer to at an appeal hearing. There was a difference between that stage and the Step 1/Step 2 stage. By the time of appeal, the employee had been dismissed. The Tribunal had not erred.
**Discussion and decision**
  1. We agree with Mr Bourne. This appeal is ill founded and falls to be dismissed.
  1. There is no question of the statutory dismissal procedure having required any intimation to be given by an employer in respect of anything that he intended to refer to at an appeal meeting. That may or may not have been an undesirable gap in the statutory procedure but if it was, it was not the only flaw, as has been discussed in numerous other decisions concerning these provisions. That said, we do not consider that it ought to have been part of the scheme that an employer be required to do so. By appeal stage, the employee's status has changed. There has been a dismissal. The onus is on the employee to put before the employer anything that he or she wishes to rely on to seek to persuade that that decision should be revoked. The statutory procedure required nothing more of the employee than that he inform the employer, by any means, that he wished to appeal. He did not need to give prior notice of his grounds of appeal. The appeal stage was thus treated quite differently from the initial pre dismissal stages. Prior notification of matters to be raised at the meeting was simply not a feature of the appeal stage. There is no hint of Parliament having intended that intimation of the sort alluded to by Ms Stark be required at appeal stage. That is not surprising. It would have been very odd if, in circumstances where no intimation other than that he wished to appeal was required of the person on whom the onus, at that stage, lies, intimation of matters to be relied in answer to the appeal had been required of the employer.
  1. The Tribunal considered the Claimant's case that the Respondents did not comply with the statutory procedures at paragraphs 191 to 195. They record Ms Stark's submission as being:

"There had been …many issues which led into the dismissal which were not put to the claimant."

  1. That submission seemed to be to the effect that the Step 1 letter was shown to have been inadequate once the reasons for the dismissal were examined. That is rather different from the submission that was put to us, as will be evident from the above. Ms Stark advised that she had made the submission she made to us, to the Tribunal. We are not able to say whether or not it was effectively communicated to the Tribunal. What we would, however, observe is that the Tribunal's judgment in this case is one of commendable clarity both as regards its making of findings of fact and its exposition of the legal issues that arose. It would be surprising if a point of any significance was missed. It may be that there was a breakdown of communication when it came to this unusual submission. That does not, however, matter since, as we have indicated, it is without merit.
  1. Further, it is plain from the facts that even if the Claimant's case that the Respondents were obliged to give prior intimation of any intention to refer to the letter at the appeal was well founded in law, this appeal would still be bound to fail. That is because the Respondents did not have any prior intention to do so. They only decided to refer to the letter when the Claimant presented documents at the appeal meeting which, for the first time, contained allegations of unlawful discrimination. Ms Stark sought to suggest that the Claimant had raised such allegations in November when she had asked Mr Lewis if his carrying out an investigation into concerns about her (those being the concerns which led to her being disciplined) was because of her race (para 54). We do not accept that her comment amounted to the making of such an allegation. Even if it had, it would have made no difference. On the facts, the Respondents did not intend to refer to the letter prior to the appeal hearing.
  1. Turning to the practical outcome, given the extent to which the findings of the Tribunal would stand unchallenged we agree with Mr Bourne that even if the Claimant was correct in her interpretation of the statutory dismissal procedure, there is a high probability that she would still have failed to secure any compensation, which was what, in terms of her form ET1, she was seeking. It is difficult to see how her contribution to her own dismissal could have been fixed at anything other than 100% given the nature and extent of her misconduct. It is no answer to say that she would have had the benefit of a bare finding of unfair dismissal and that that was what she was looking for, which was Ms Stark's answer. That is not what the legislation envisages as being the purpose of a claim for unfair dismissal, the statutory remedies for which are monetary payments (basic award and compensation) or re-engagement/reinstatement (Employment Rights Act 1996 s.112).
  1. Mr Bourne has given notice of an intention to seek an award of expenses in his written response to the Notice of Appeal and today, he reserved his position in that regard. Parties were agreed that in the event of the appeal being dismissed any claim for expenses should be determined on the basis of written submissions.
  1. In these circumstances, we will pronounce an order dismissing the appeal.

Published: 05/10/2010 16:13

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