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Case No: B3/2010/0710

Neutral Citation Number: [2010] EWCA Civ 1017

IN THE COURT OF APPEAL ( CIVIL DIVISION )

ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: Friday 30th July 2010

Before:

LORD JUSTICE ELIAS

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Between:

NJOKU (Applicant)

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LEWISHAM HOSPITAL NHS TRUST (Respondent)

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( DAR Transcript of

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The Applicant appeared in person.

The Respondent did not appear and was not represented.

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Judgment

( As Approved )

Crown Copyright ©

Lord Justice Elias:

1. This is an application for permission to appeal that has been turned down on paper by Mummery LJ, who felt that it had no prospect of success.

1. It is brought by Mr Njoku. He was employed by the Lewisham Hospital NHS Trust from 1 March 2005 until he was dismissed in July 2010. He brought proceedings for unfair dismissal and race discrimination in connection with his treatment by the Trust. That was heard by the employment tribunal over four days in June 2009, and they gave judgment in September 2009, in which judgment was given by Employment Judge Baron and he rejected both the claims.

1. The background briefly is this. Mr Njoku was suspended from his job on 29 January 2008. A number of allegations had been made against him by a number of people. There was one patient and there were also two nurses who had made certain complaints against him.

1. The four complaints which were identified by management, made the subject of disciplinary proceedings, and which resulted in his suspension were these: that he had bullied patients and relatives in 2006, that he intimidated and harassed staff who complained, and that he had fallen asleep on duty.

1. Initially there was an investigation carried out by a Miss Harman, who produced a report in March 2008. That was apparently 24 pages long and had 21 appendices attached to it. She believed there was a case to answer. The applicant had made counter-allegations. He said that he had raised concerns about management of drug errors on the wards. He identified, in particular, letters that he had sent in September, on 26 December, on 2 January and 5 January and again at a meeting on 9 January. He considered that the reason that these charges were being made against him was not because they had any substance but as part of a conspiracy to damage him because of the allegations that he made. The investigation noted that there were inconsistencies with the management and that valuable lessons had been learnt, they believed, from the incidents which had been raised.

1. The upshot of the investigation was the recommendation that there should be disciplinary proceedings. There was then a disciplinary hearing conducted before a Miss Carlton. That was on 4 July but it was adjourned to the 15th for completion. The applicant attended, but only as an observer on the 15th. He was given opportunity to cross-examine or ask questions of the witnesses but he chose not to do that. Miss Carlton concluded that the allegations were sustained and that they were sufficiently grave to merit dismissal, since they constituted in her view gross misconduct.

1. The conclusion of Miss Carlton also considered the counter-allegations of collusion and conspiracy, essentially that the applicant had been dismissed because of his whistle-blowing activities, but considered that that was not established. There was an appeal, which was heard on 9 January 2009 but concluded that there had been no error in the way in which the disciplinary panel had conducted matters.

1. The tribunal set out this background material. They heard evidence about the allegations that the claimant had made, both with respect to the letters to which I referred and in the meeting with the matron on 9 January 2008, and they were referred to other allegations of bullying and harassment that the claimant had made. They noted in the course of the judgment that some consideration had been given to the complaints which the claimant had made about drug errors. It had been suggested at one stage that he may be responsible for one of them, but after investigation it was found that he was not in error and indeed an apology was made to him. There were other errors that he identified and, as I said, the tribunal noted that both in the investigation and in the conclusion of the disciplinary hearing itself it was recognised that there had been issues about management which had properly been raised and from which lessons needed to be learnt. They also recorded that the allegations of bullying and harassment were partially investigated by Deborah Shields, who produced a report on 17 October 2008, that is after the dismissal but prior to the appeal hearing. The reason it was only partly completed was because she had asked the claimant to respond and he had not made further contact with her. He tells me that in fact he did not receive any letter asking to make further contact, but that was the evidence before the tribunal.

1. The tribunal directed itself in law, and had to consider first the unfair dismissal claim. They referred to the well known principles established in British Home Stores v Burchell, essentially that there has got to be a genuine belief in misconduct, reasonable grounds for that belief having carried out a reasonable investigation, and they also recognised that it was not their function to determine whether a penalty of dismissal was appropriate but whether it was within the range of reasonable responses open to the employer.

1. They also set out the law with respect to protected disclosures. It is automatically unfair for someone to be dismissed because they have made a protected disclosure. They concluded that the dismissal was fair, that is that there had been a reasonable investigation and that a genuine and reasonable assessment of the facts had been made which established the misconduct in question and the dismissal was an appropriate sanction which the employer could properly adopt.

1. They did not find that there were relevant protected disclosures. Although some of the letters were capable of constituting protected disclosures, they did not consider that that was the main purpose of the letters and in any event they clearly concluded that it was not the cause of the dismissal. Mr Njoku has put in a detailed submission before me as to why the tribunal were wrong and he took his case to the Employment Appeal Tribunal, and HHJ Richardson heard an oral application under Rule 3.10 because the case had been dismissed under Rule 3. In his determination he concluded that there was no error of law committed by the employment tribunal and that in essence what Mr Njoku was seeking to do was to re-open the findings of fact made by the tribunal and to contend that they should not have reached the decision that they did on the material before them.

1. It is that decision which is the subject of this appeal, but of course in determining whether there is a right of appeal we have to consider whether there is an arguable case that the tribunal erred in law or whether the position adopted by HHJ Richardson was correct. As I have said, the decision of HHJ Richardson was upheld on the paper application for permission by Mummery LJ when he concluded that there was no reasonable prospect of this appeal succeeding. I have to say I share that view.

1. I should indicate what it is that Mr Njoku is particularly concerned about, and I think it can be identified under three heads. The first is he says that there was not sufficient evidence to justify the employers and then the tribunal reviewing the matter to conclude that he had committed the particular offences of which he complains. For example, he says, and this is just one of many examples, there was no evidence of him sleeping on duty, there was no clear identification of what date or dates it was said to have occurred and he says that the tribunal could not properly in the light of that material have found that the claims were sustained. The second and perhaps the strongest point he seeks to advance is that he says there never was a proper investigation of the complaints he made about the drug errors that had occurred on a number of occasions in the hospital. The third ground, which is partly related to that, is he submits that there was not a proper consideration given to his contention that it was the fact that he made these allegations which caused a group of the staff to conspire against him to trump up these charges and, effectively, to force him out unjustifiably and wrongly.

1. I have no doubt that he strongly and passionately believes that the tribunal has erred in law and that the management ought not to have reached this decision, but the question is whether the tribunal was entitled to come to this view. What is plain it seems to me is that both the investigating officer, that is Miss Harman and also the woman who chaired the disciplinary panel, Mrs Carlton, were very conscious of the fact that his case was that these were trumped up charges and that it was part of a conspiracy directed against him with members of staff colluding against his interest. They considered that.issue. I do not understand it to be alleged that Miss Carlton herself was involved in that conspiracy. The question is whether the decision taken by the disciplinary tribunal and of the employer was a proper and sustainable one. The tribunal considered that they had carried out an investigation properly. It has to be pointed out that the claimant had an opportunity to address the panel and to examine witnesses and to put to them that they were part of a conspiracy or a collusion but he did not do that. That was his right, not to participate, but inevitably it made a claim of that kind more difficult to sustain.

1. The tribunal had the complaints from the two nurses. They had a written statement from the patient who was complaining. They plainly had an evidential basis for the conclusion that they reached, as the tribunal found, and I can see no error of law about that.

1. The question as to whether they properly carried out an investigation into the complaints made about the drug errors, with great respect to Mr Njoku, in part misses the point. It looks as if there were some investigations, but whether there was a full investigation I am not in a position to say. But that is not a key matter, it seems to me, as far as the unfair dismissal claims are concerned. The question is whether he has committed the offences for which he has been taken before the disciplinary panel. Whether the employers have independently properly investigated allegations that have been made is not directly material to that matter. What was material is the fact that these allegations were made, whether rightly or wrongly, and that Mr Njoku says that it was the fact that they were made, in particular, which caused staff to be hostile towards him. But that was a matter which the employers considered and the tribunal also analysed in some detail. They treated it not just as a separate whistle-blowing complaint, which they felt was not established in accordance with the authority of Street v Derbyshire Unemployed Workers' Centre [2005] ICR 97, but also whether it was a matter which was considered by the employers in the disciplinary process itself. They concluded that the employers were entitled to find that these were not trumped up charges, that they were sustained on the material and it was not thereafter for the employment tribunal to interfere.

1. Every day, up and down the land, employment tribunals have to make findings of fact. They have to reach conclusions about the reasonableness of an employer's behaviour. Every day the unsuccessful party is unhappy about the outcome, believes that the tribunal has wrongly assessed the facts, has made conclusions on the evidence which they ought not to have made, but that is the function of the tribunal. It is not the job of this court or indeed of the Employment Appeal Tribunal to second-guess the tribunal and to go over all the material again. Mr Njoku has put his case courteously. He has set it out in detail. As I say I have no doubt he feels deeply aggrieved at the outcome, but I have to consider whether there is a realistic prospect of establishing an error of law if this case were to go further and, in my judgment, for the reasons given by the two judges in the Employment Appeal Tribunal and in accordance with the analysis made by Mummery LJ when this case was heard on paper, I do not think there is any realistic prospect of success and it would simply involve the appellant in potentially expensive litigation, because costs can be awarded in this court, unlike in the Employment Appeal Tribunal So he would be liable potentially for costs in a case which I think has no realistic prospect of success.

Order: Application refused.