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United Kingdom Employment Appeal Tribunal |
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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Sahato v Redbridge Health Authority [1992] UKEAT 224_90_2907 (29 July 1992) URL: http://www.bailii.org/uk/cases/UKEAT/1992/224_90_2907.html Cite as: [1992] UKEAT 224_90_2907 |
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At the Tribunal
Before
THE HONOURABLE MR JUSTICE WOOD MC (P)
MR A D SCOTT
MR G H WRIGHT MBE
Transcript of Proceedings
JUDGMENT
Revised
APPEARANCES
For the Appellant MR SEBASTIAN NEVILLE-
CLARKE
(Of Counsel)
John Singh & Co
135-143 Stockwell Road
London
SW9 9TN
For the Respondents MR MARTIN GRIFFITHS
(Of Counsel)
Beachcroft Stanleys
20 Furnival Street
LONDON
EC4A 1BN
MR JUSTICE WOOD (PRESIDENT): By an Originating Application which was dated 19th April 1989, Mrs Sahato alleged that she had been unfairly dismissed or in the alternative, that she had been dismissed on the grounds of redundancy and claimed compensation from her employers the Redbridge Health Authority.
Her case on unfair dismissal was based upon a constructive dismissal; she was alleging a breach of the implied term of her contract, that her employers had without reasonable and proper cause conducted themselves in a manner calculated or likely to destroy or seriously to damage the relationship of confidence and trust between them and her.
The particulars of her complaint were subsequently amended but in total amounted to some 20 pages. This was a long series of complaints which, it is said, culminated in her decision to resign. She was first employed as a Nurse in 1974 she was a Senior Sister at Ilford Ward, King George V Hospital but in 1984 she moved to Ross Ward at Barking Hospital. She overlapped with another Sister, but by 1985 she was in charge and on the 1st August 1987 she became Ward Manager. This Ward is a long-stay, elderly care Ward with approximately 27 beds.
Her letter of resignation was dated 21st January 1989. This was written after there had been a disciplinary hearing on three days in the previous August, and an appeal hearing in January 1989. It was immediately after this that she resigned. Her letter of resignation read thus:
"Dear Sirs,
As you know I have been employed by the Authority since 1974 and was stationed at Barking Hospital as a Ward Manager.
As a result of the decision taken by you I feel amongst other matters that you have seriously destroyed and damaged the relationship of confidence and trust between employer and employee. The mere fact, amongst others, that on 20th January 1989 your employees deliberately and dishonestly mislead the Appeals Committee with regard to the evidence presented to them: I find that very dishonest and conduct unbefitting for your employers to be engaged in. In addition to that the decision you have agreed to stand by is grossly out of proportion for the alleged offences I am accused of committing. In addition to this I was taken aback when I discovered on 20th January 1989 for the very time discovered (not by your honest and voluntary disclosure to me) that Ross Ward, Barking Hospital where I was employed prior to these proceedings have only just been closed on or about 15th January 1989. It is for these and other matters when taken as a whole and viewed cumulatively amounts to a repudiatory breach on your part.
Will you please let me have by P45 by return of post."
The Tribunal heard 15 days of evidence. It started at the beginning of the Full Reasons not only by giving a list of those who had given evidence but also by making an important finding on veracity, they said that:
"Where there was a conflict in the evidence we preferred the evidence of the respondent's [the Health Authority] witnesses."
and they gave a particular incident upon which they relied in finding that the Applicant had lied to them. This is set out in paragraph 3 of the Decision. The circumstances were as follows.
The Applicant was suspended on the 30th June 1988 and therefore being suspended she was of course still being paid. After the disciplinary hearing in August she was away on sick leave. Thus from the 30th June 1988 until the date of her resignation in January 1989 she was, being paid. There was a suggestion that during that time, whilst on sick leave, or away, and whilst being paid by the Health Authority, she had also taken work with Reed's Nursing Agency and therefore, of course, she had been receiving two sums by way of remuneration. She denied that she had been doing this; evidence was before the Tribunal and they find, quite shortly, and I am quoting:
"that she lied to us."
and they say that even if they were wrong about that, someone had been sent in her stead without the necessary qualifications. So they approached this case on the basis that they did not find her to be a truthful and reliable witness.
The history of the matter proceeds after the appointment to be in charge of the Ward on the 1st August 1987 in this way.
On the 23rd May 1988 there was a ward meeting at which a Mrs Marion Evans was present. She was the immediate Line Manager above the Applicant and also, because there was a vacancy, she was acting General Manager. The meeting was said to be chaotic, a number of strong complaints were made against the Applicant by a number of nurses including a Mr Leung, who we understand that he comes from the Far East. A few days later Mr Leung came to see Mrs Evans and expanded on the problems which he saw in Ross Ward. Mrs Evans told him that she would take this seriously, but he would have to put it into writing so that she could act upon it.
Pausing there for a moment it is right to say, as becomes evident from a statement of facts made to the Appeal Hearing subsequently, that there had over two years prior to June 1988 been some concern expressed about the Applicant's lack of leadership. However, the management had been unable to establish any firm corroboration of these comments and other matters and therefore, taking it in favour of the Applicant, they had not seen fit to take any particular steps about it. However, Mr Leung wrote to Mrs Evans a long letter. It was dated the 22nd June and was received by her on the 28th. That letter is set out in toto by the Industrial Tribunal in its Decision. We do not propose to read it, there are a number of complaints but in particular there were two which were subsequently thought to be of great importance, and they were the two upon which Mrs Evans relied in reaching a decision as we will indicate.
The first of those incidents concerned a Mrs Hayward, who was an 82 year old, diabetic and a depressive. Mr Leung said that the relationship between Mrs Hayward and the Applicant was far from satisfactory and that there had been an occasion when Mrs Hayward was to be moved to another hospital. The practice was not to tell the patient until the day of removal because he or she might get anxious and be worried about it. On the other hand, the practice apparently was, to inform the patient within a reasonable time of leaving so that he, or she, would understand that they were being dressed and their belongings packed up and that they were being moved; they could also be told where they were going. Mr Leung's suggestion here was that Mrs Hayward was only told about the destination as she got into a taxi, but that a taxi had been called instead of the ambulance because the Applicant was so keen to be rid of her.
The other allegation which caused concern was that on the 1st April 1987 the Applicant told a Mrs McCarthy, who was 87 years of age, that there was a telephone call from her daughter in America and that Mrs McCarthy was, naturally, very excited and pleased and was full of expectation and anticipation as she moved towards the telephone, apparently she had not been in touch with her daughter for some time. It was only when she reached the telephone that she was told by the Applicant that this was an April Fools' Day and it was only a joke. The patient went through a severe emotional shock. Those were the two main matters.
Having read that document in full Mrs Evans presumably realised she would have to do something. The Applicant was on the 30th June suspended on full pay pending investigation into possible mis-management of the Ward and patients and a letter was written. There is some question about the date of the letter, there is an error, it was in fact written on the 30th June, the Tribunal so found and that there was nothing in that matter.
Mrs Evans was in a difficult position, she was a Line Manager also the acting General Manager. She asked a Miss West to look into the matter and Miss West did so. She asked staff on the Ward to send in letters or statements, a few came in, they were not very informative. Miss West drew up a questionnaire and she and Mrs Smith, who was on the secretarial staff, saw nursing staff individually. Mrs Smith wrote out some pro-formas.
On the 15th July, Staff Nurse Leonard who is normally on night duty, came to see Mrs Evans and Mrs Evans made a file note.
On the 22nd July Staff Nurse Harte made a statement to Miss West in the presence of a Mr Jeyes, he was the Applicant's trade union representative.
On the 25th July Mrs Glavin, from the Personnel Department, and Mrs Evans held a preliminary meeting with the Applicant and Mr Jeyes. Mrs Sahato was invited to state her side of the matters. She did not refute some of the allegations, she complained about the Auxiliary Nurses. Mrs Evans decided that she would have to hold a proper disciplinary hearing.
This took place on 8th, 9th and 10th August 1988. Present on the first day, the 8th, were Mrs Evans, Mrs Glavin, the Applicant, and the trade union representative Mr Jeyes. On the 9th and the 10th Mr Jeyes, as a representative, was replaced by a Solicitor, a Mr Singh, who was the brother of the Applicant. At the end of the three day hearing Mrs Evans announced her decision orally, that the Applicant would be demoted from Grade G to Grade D.
Despite all the criticisms that were made the Industrial Tribunal found no fault with the conduct of the hearing. They say this in paragraph 12:
"Mrs Evans was particularly concerned by the incident (which she found proved) with the patient, Mrs McCarthy, (the April Fool incident) and the incident (which she found proved) with the patient, Mrs Hayward, (not told where she was going until she was being wheeled out of the ward). Mrs Evans felt that these instances showed a grave lack of judgement on the part of the applicant."
That was the finding of the Tribunal, and indeed the finding of Mrs Evans, at that disciplinary hearing.
The next day the 11th August the Applicant went sick, suffering from strain, and remained on sick leave until the 21st January 1989 when she wrote her letter of resignation and resigned.
The following day, the 12th August a decision letter was sent by Mrs Evans to the Applicant. Complaint is made about this letter in the sense that the penalty imposed was quite out of all proportion and was tantamount in itself to a dismissal. It is therefore important that we should read it. It was also set out by the Tribunal in its Decision. It reads:
"Dear Mrs Sahato,
RE: DISCIPLINARY HEARING
Following the recent disciplinary hearing against you, I write to confirm my findings in respect of the allegations made against you. Whilst I realise that you do not accept these allegations I must advise you that I regard the allegations as serious and cannot be ignored. I recognise the problems associated with some of the untrained staff on Ross Ward, and it is for this reason that the outcome has not been more serious.
Therefore, it is my decision to advise you that with effect from 11th August 1988 you will be down-graded to a registered general nurse Grade D. You will carry out your duties initially on Lister Ward under the guidance and supervision of Ward Manager Power, who will be regularly monitoring your performance. There will be no managerial role and you will not be expected to take charge of the Ward at any time. Furthermore you will be expected to attend an individualised patient care education programme.
I advise you that this matter will be referred to the E.N.B. as is the normal practice."
and then the information about an appeal against this decision.
On the 13th September 1988 the Applicant started a complaint under the Grievance Procedure, her particulars of complaint cover some 22 pages and at the end of that Grievance Procedure she terminates in paragraph 28 saying:
"In all the circumstances of the case Marion Evans failed to manage, give pertinent advice, assistance and counselling on matters pertaining to her job description in addition to this she has departed and allowed herself to deviate from line reporting."
So this was a complaint, in substance, about Mrs Evans. In fact, that Grievance Procedure was never processed, the complain was never heard, the Tribunal deal with that later in their Judgment.
The Applicant appealed and the hearing of the appeal took place on the 20th January 1989, the day before she wrote her letter of resignation. Under the Rules of Procedure, which have been shown to us, agreed at Whitley Councils, it would normally be some 5 weeks as a guide line for the hearing of appeals, as clearly it is in the interests of everyone that appeal should not be unduly delayed. There was here a very long delay, but the Tribunal examined that and said:
"We do not think any substantial point arises on this."
The Authority felt that in fairness a nurse member should be on the appeal panel; there is only one nurse member and it was difficult to find a date on which she could be available. Also, on the 16th November Mr Singh asked for a postponement.
The question of delay therefore, was dealt with and it is right for us to comment that in fact in the transcript of the appeal hearing there is no note that Mr Singh, who has represented his sister throughout, took the point that the appeal was out of time. That appeal panel was Chaired by a Solicitor, Mr Mullett, and the other members were a Miss Hogan, who was the nurse member, and Mr Brunnen, who was connected with the ambulance service. The hearing lasted for almost 10 hours, the Tribunal comment that that was much longer than usual. We would also add that Mrs Sahato did not give evidence otherwise it might have been longer still.
The Tribunal find no fault with the conduct of the appeal except in one minor error of judgment in the Chairman, Mr Mullett, who should have allowed a question which he had refused to be allowed to ask. But apart from that there is no finding against the hearing at all and at the end of the deliberation of the panel they make a finding dismissing the appeal. On the 21st January, as we have said, Mrs Sahato resigned. She alleges constructive dismissal.
In addition to the Decision itself and the copious allegations made in the Originating Application and the Notice of Appeal, we have had a bundle of documents, which seem to be in excess of 300, which is correspondence, statements of witnesses and documents dealing with every facet of this case, and also we have had a further bundle which seems equally substantial but which in the main consists of some 95 pages which are the typed record of the appeal hearing and some 93 pages, approximately, which is the typed record of the disciplinary hearing in the August. So that we have been able, as were the Tribunal, to get a very clear picture of everything that occurred.
The Applicant's case is that the dismissal of her appeal was the final straw. It is to be noted that in her letter of resignation she uses the phrase "amongst other matters" on two occasions and therefore it might be thought that her complaint should not be limited to the contents of the letter. As we have understood her case before us, and indeed the Industrial Tribunal were also careful to take into account all the complaints she made in her oral evidence, they can really be sub-divided into three main headings. First of all that the disciplinary hearing and the appeal hearing were unsatisfactory for a number of reasons. Secondly, that her Grievance Procedure was never processed through and never heard, it was adjourned pending the appeal, and of course once she resigned there is probably no reason to continue. Thirdly, that there had been a failure to re-grade her when she had asked that this should be done. But in essence, what is being said is that this decision was a perverse decision.
May we first of all look at the disciplinary hearing and the appeal hearing. The way in which complaint is put by Mr Neville-Clarke is that Mrs Evans should never have presided over that disciplinary hearing in August 1988. She was the nursing manager and general manager (acting), she had been investigating the complaint in the letter, she refused on that occasion to be cross-examined, she had never mentioned any earlier criticisms had taken place and the calling of witnesses was unsatisfactory both there and at the appeal hearing. In other words there was a suggestion of bias and suggestions of lack of natural justice. The most recent case to which we have been referred on this type of situation was that of Slater v. Leicestershire Health Authority [1989] IRLR 16. In that case Mr Slater, the complainant and the appellant, had been employed as a Staff Nurse in a hospital for the mentally ill. He was dismissed following an incident when it was alleged that he had slapped an elderly patient twice across the buttocks. That incident had been report to the Director of Nursing Services, a Mr Sivewright, by another Nurse. Mr Slater was suspended pending an investigation and as part of his investigation Mr Sivewright had gone straight in to look at the patient and he had seen a red mark on the body and concluded that was consistent with a blow having been struck by an open hand, a doctor also present reached that same conclusion.
In a subsequent disciplinary hearing it was Mr Sivewright who presided, Mr Slater was informed of the charges against him and he made his case, but Mr Sivewright decided on the evidence that Mr Slater had lost his temper with the patient and struck two gratuitous blows, that was gross misconduct and he dismissed him.
The Industrial Tribunal dismissed the complaint of unfair dismissal, they found that the handling by Mr Sivewright of the disciplinary hearing was fair and on appeal this Court upheld that decision. It went to the Court of Appeal. Lord Justice Parker gave the leading Judgment in the Court of Appeal. The facts we have sufficiently stated. The case being made on appeal was set out clearly in paragraph 31 of the learned Lord Justice's Judgment where he says this:
"The appellant's case is that the dismissal was unfair because Mr Sivewright had already conducted an investigation, was a witness to the buttock mark which was the only corroboration to Nurse Allan's evidence, had already concluded that it was made by a slap, and was at one and the same time prosecutor, judge and the person making the decision to dismiss. He should not, therefore, so it is said, have conducted the disciplinary hearing."
That was the sole issue before the EAT and the sole issue before this Court.
The Court of Appeal felt that there was some force in those submissions and indeed they had been referred to an earlier decision of Moyse v. Hylton Castle Working Men's Social Club & Institute Ltd [1986] IRLR 482. Lord Justice Parker goes on:
"I accept both the general rule and the exceptions. The rules of natural justice in this field do not in my view form an independent ground upon which a decision may be attacked, although a breach will clearly be an important matter when the IT consider the question raised in s.57(3) of the Act."
He then proceeded to look at the matter and decide that there was evidence upon which the tribunal could have reached its decision. It was a question of fact and they concluded that it was a fair investigation, and as it was a question of fact in the last paragraph, paragraph 39 the learned Lord Justice comments:
"That was an end of the case, for it was always common ground that if the two slaps occurred dismissal was fair."
There is no general rule that someone to whom a complaint was made in a managerial role cannot handle a disciplinary hearing. I have had the advantage of the advice given to me by the two lay Members sitting with me today, who emphasise that in an industrial world it is bound to be fairly common in certain instances which are immediate instances or where you have very small firms, or where you have a man in charge of a shop, I mean by that an engineering shop, or in a factory that he or she will have to deal with the matter there and then; after investigating it, then deal with it. Every case must depend upon its own facts. They emphasise that the really important thing is that at the appeal stage there should be a totally unconnected person handling the hearing on the appeal, and I would add to that as the lawyer, that it is even more important where that situation arises that the appeal should be by way of a re-hearing and not merely a statement of what has occurred at this disciplinary hearing.
Here, the point was taken that Mrs Evans was judge and investigator. That point must have been made in extenso on the documentation and before the Industrial Tribunal and as we have already indicated they rejected it. The second made on the procedures was that the appeal was out of time. But as we have already said that point was never taken, it is not a mandatory time limit and that is of no substance.
The question of bias was not raised until after the disciplinary hearing. There is no suggestion of bias at the re-hearing of the appeal, it was only that the decision was wrong and that witnesses had lied. Although Mrs Evans was not cross examined at the disciplinary hearing, she was cross examined at length during the appeal hearing. All those matters could have been dealt with in cross examination and the Tribunal were able to examine that. There is then the issue of the witnesses. It is abundantly clear that all the witnesses who were asked to be called, and could be called, were called. The Tribunal, in an addendum to paragraph 19 of its Decision, list of all the staff who were involved on the Ward, 10 who were called at various stages and some 8 who were not. There is an explanation in each case, whether someone was sick or in some cases refused to given evidence, and the night staff were not relevant. All those matters were examined by the Tribunal. So that, as we will see when we look at their Decision in detail, it seems to us that the points taken by Mr Neville-Clarke are without foundation on that aspect of his complaint.
The second main heading was the Grievance Procedure. The Tribunal look at this, the substance of the Grievance Procedure was really in essence the complaints about Mrs Evans and the Tribunal find that it was perfectly proper to adjourn it pending the appeal. All those matters which sought to be raised on that Grievance document could have been raised, and although we have not read every word, no doubt were raised if Mr Singh thought it necessary. We bear in mind of course that Mrs Sahato has had the advantage of representation either by her trade union representative from the very first investigative meeting, or by her brother from the second day of the disciplinary hearing onwards.
The third matter dealt with as the head undermining confidence was the failure to re-grade her. This was a somewhat complicated matter which presented no problems to the Industrial Members but presented some problems to me at the initial stages.
The Applicant was being paid in her Grade G grading but from the April of 1988 there was, as we all know, a massive regrading operation throughout the National Health Service and it is the posts which are graded and not the individuals. The posts are regraded and on the 26th October 1988 Mrs Sahato was sent a letter; this was of course after the disciplinary hearing in August. She was told that as from the 1st April 1988 she was Grade D, that was her demotion. The letter also said that if she had complaints about the grading then the procedure was set out. It was said that there were various methods of consultation with staff, the Director of Patient Care, the Director of Personnel and informal appeal, a tremendous amount of work and that they were being paid on a without prejudice basis so that the matter could be sorted out later.
What Mrs Sahato wanted was her increment which she would have been paid, after the regrading of the new salary structure came into being, and to that end she wrote. She wrote on the 4th November 1988 but that related to her downgrading, not to the grading of her post, and indeed some three days later she wrote again but she put in her personal factors at that time.
On the 9th November she received a letter from the Director of Personnel saying that she should consult her Staff Association or Trade Union and operate through them. She subsequently wrote to Mrs Evans, the line manager, and wrote some seven letters which were not acknowledged or answered; that is open to criticism. But the point is this that the regrading merely related to a question, as far as the Applicant was concerned, of the increased increment. There was never any doubt, we are told, by Mr Martin Griffiths, that she would be entitled to that increment. So that it seems to us that the complaint that the letters were being ignored is of no great substance, when she could, as she had been told in the letter, have approached her Trade Union or Staff Association. She could have complained higher up the ladder. She had a brother Solicitor acting for her who could have written, and therefore, as the Tribunal found, that this was not a matter of any great import.
We hope that we have adequately set out the overall basis and approach upon which it is alleged that her confidence was undermined, and this was the final straw.
The hearings took place over 15 days and the Tribunal had ample opportunity to assess the witnesses. Despite the size of the evidence, and the length of the hearing we are grateful for the succinct and clear way in which this Decision has been formulated. There are really three paragraphs in the reasoning which are material.
The first is paragraph 18, where the Industrial Tribunal deal with the law. There is no criticism by the Appellant of that Direction. They set out the implied terms as we indicated it at the beginning of this Judgment and they caution themselves also that they must look at "the employers' conduct as a whole and determine whether it is such that its effect, judged reasonably and sensibly, is such that the employee cannot be expected to put up with it."
They also say
"The conduct of the parties has to be looked at as a whole and its cumulative impact assessed:"
That is an impeccable Direction and they also remind themselves that they are looking for a fundamental breach of contract.
Their findings on the evidence before them, their material findings, are in paragraph 19, it is a long paragraph but it sets out their findings with admirable clarity. They make the point in the first sentence as follows:
"The points on which the applicant can rely for her complaint of unfair constructive dismissal are limited to what she wrote in her resignation letter and what she said to us in her oral evidence."
That is impeccable because they have not only looked at the letter, they have taken the point which we made earlier that that letter refers to other matters. They therefore listened to all those matters which the Applicant wished to put before them.
They then turned to the letter and make these points. First, they deal with the deliberate and dishonest evidence which is alleged. The Tribunal find that the evidence was true and even if some was not true there was no breach of contract by the employer. They reject that ground.
Secondly, they reject that the demotion was grossly out of proportion to the alleged offences and they therefore reject that. And an important finding in that connection is this they say:
"In our view the Mrs McCarthy incident and the Mrs Hayward incident without more would warrant the demotion."
Pausing there, it was submitted by Mr Neville-Clarke that the Mrs Hayward incident had been dropped at the appeal hearing. Mr Martin Griffiths, who had been present at that hearing, emphasised that that was not so, what had been dropped was the importance of ordering a taxi, because there were two limbs to that incident. First of all failing to tell a patient that she was going until the last moment, and the ordering of a taxi to hasten her out. The taxi element was dropped but the importance of the failure to tell her, to give her some understanding and comfort in what was happening to her, was maintained. It seems to us that that sentence indicates quite clearly that the Tribunal were quite satisfied that the Hayward incident was still alive at the end of the appeal hearing.
Then they deal with the demotion which they find was entirely appropriate in the circumstances. One ought to deal perhaps with a point made by Mr Neville-Clarke about that demotion. He submits, looking at the job description, that the demotion was, in effect, a dismissal because of the wording in the letter from Mrs Evans that Mrs Sahato would not be involved in the managerial and not expected to take charge of the Ward at any time. He points to the job description of a Grade D, Staff Nurse as being, I am reading material words:
"The post holder is expected to carry out all relevant forms of care without direct supervision [these are the important words] and may be required to demonstrate procedures to and supervise qualified and/or unqualified staff."
and he submits that by telling the Applicant that she would not be expected to do that, and indeed that she would be expected to go on an education programme, they were saying that she was not fit to be a Grade D Nurse, and was not so qualified. All three of us find ourselves quite unable to accept that interpretation, and indeed if that point was taken in front of the Industrial Tribunal it seemed that neither did they.
Then the third point in the letter dealt with by the Tribunal, was the question of the redundancy and the closure of the Ross Ward, and they reject that and we have heard no argument about that on this appeal.
Thereafter the Tribunal turn, to the oral evidence, and they continue thus:
"We turn to the applicant's oral evidence, to see what extra points were made. First, that deliberate lies were told by the nurses at the disciplinary hearing as well as at the appeal hearing. We answer this as we have answered above concerning the appeal hearing. Second, that the applicant took out a grievance against Mrs Evans which was not heard. In our view this grievance was virtually the same as the appeal and it was sensible to postpone proceedings on it until after the appeal hearing. As the applicant then resigned, the grievance necessarily fell. Third, that the applicant appealed against re-grading and go no response. We think there has been some confusion in this case between (1) the appeal against Mrs Evans's disciplinary decision and (2) the general nationwide clinical re-grading exercise. We have dealt with (1) above; as regards (2) we think it is peripheral to this case and need not be further discussed. Fourth, that there was a threat to report the applicant to the English National Board. This was not a threat; it was done. There is in our view nothing in this point, because it was done in pursuance of a statutory requirement. Fifth, that not all the nurses were heard. Mr Griffiths, for the respondent, handed in a summary of witnesses heard and a summary of witnesses not called."
The Tribunal then set all those out, it extended over some three pages, and then they say at the end:
"Under this fifth point, we find no fault."
Going back to those headings, they deal with all those relevant points to which we have already referred, the lies; the grievance; the proceeding and the witnesses, they are each of them dealt with after hearing the whole matter.
Finally, in paragraph 20 the Decision reads:
"The Chairman suggested during the hearing that it was a matter for consideration whether it was proper for Mrs Evans to take some part in the investigatory process and conduct the disciplinary hearing."
Pausing there, that suggestion came from the Chairman:
"We have decided that this point does not avail the applicant because (1) we find that it was not a cause of the applicant's resignation, and (2) even if it was a cause of her resignation, this being an allegation of constructive, not actual, dismissal, it is only of any significance if it was a breach of contract by the respondent. We find as a fact that it was not; there is nothing in the written procedure to make it improper."
Those then are the conclusions and those matters are dealt with by the Tribunal.
So that we have here a question, was this fair? The allegation is, in essence, perversity. The Tribunal saw and heard the witnesses, they found that the Applicant was an unsatisfactory witness, they considered all the issues, which have again been reviewed before us. The Direction on the law was perfectly sound, no criticism is made of it. There was ample evidence to substantiate the findings of fact. In our judgment this Decision was clearly right.
There was a further hearing on the 24th August, the main hearing being promulgated on the 12th March 1990 and that was on the issue of costs. There was no appeal against that Order but it is perhaps interesting to note that there was an Order by way of costs of £8,850 against the Applicant and that the comment was this:
"we think that this is such a bad case of time-wasting and cost-wasting that we should award the sum of £8,850 in full."
There is no appeal against that but that is some indication of the view taken by the Industrial Tribunal after having seen and heard everything.
This Appeal is dismissed.
