SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal
The conduct established at the appeal against prior dismissal was
completely different to that upon which the decision to dismiss was based and
was not such as could have resulted in any reasonable employer dismissing the Appellant.
THE HONOURABLE MR
JUSTICE WILKIE
Preliminaries
1.
This is an appeal by Miss Perry against a decision of the Employment
Tribunal after a four day hearing between 19 and 23 April 2010, which, by
a decision sent to the parties on 4 June 2010, dismissed her claim that
she had been unfairly dismissed by Imperial College Healthcare NHS Trust and
also dismissed claims for disability discrimination and unpaid holiday pay. No
appeal is launched in respect of the disability discrimination or unpaid
holiday pay decisions.
2.
Our decisions in summary form are, first, to uphold the appeal against
the decision of the Employment Tribunal dismissing the claim for unfair
dismissal; second, to substitute a finding that the dismissal was unfair;
third, to make a finding of contribution to the dismissal by the Appellant to
the extent of 30%; fourth, the necessary consequence of these three decisions
of ours is that the questions of remedy and award will be remitted for decision
on the basis of our findings. There is no reason why it should go to the same
Employment Tribunal as the questions of remedy and calculation of award is
separate to the decisions to which we have come and the Employment Tribunal
dealing with the question of calculation of the award will have the benefit of
a transcript of this decision.
3.
Also by way of preliminaries, we identify a number of issues raised in
the appeal with which it has either not been necessary for us to deal or where
we reject the grounds of appeal. The first ground concerns an allegation of
procedural impropriety, which, effectively, involved allegations that one or
other or both of the lay members of the Employment Tribunal were asleep at one,
or other, or more than one, time during the four day hearing. The Employment
Appeal Tribunal ordered evidence to be furnished in respect of that issue. We
have read that evidence. We have also read the submissions of both parties in
respect of that issue. In the light of our main decision and the reasons for
it, it has not been necessary for us to reach any conclusion as to whether that
ground is a good one.
4.
Second, it appeared from the Notice of Appeal and from the skeleton arguments
that it may be that Miss Perry was seeking to reopen an argument that the
dismissal was automatically unfair for failure to comply with the statutory
procedures; an argument which had at one stage been canvassed before the
Employment Tribunal. It is common ground between the parties that counsel who
appeared for her at the Employment Tribunal did not seek to argue the point in
closing submissions. Accordingly, if it were sought to reopen this issue at
this level, that would be impermissible.
5.
In any event it has become clear from what Miss Perry has said that
she does not seek to reopen that issue; rather, what she seeks to do is to
ensure that alleged discrepancies between the various approaches of the
Respondent, at various stages of the dismissal procedure, should be available
for her to comment on and argue in support of her main appeal. Mr Moretto
has not sought to argue that that would be impermissible and we entirely agree
with him on that, but the consequence of that is that there is no longer any
attempt to appeal the finding that the dismissal was not automatically unfair
as it had been withdrawn as an issue from the Tribunal.
6.
The next issue which is raised in the grounds of appeal, and which we
reject, is a contention that the Employment Tribunal was perverse in coming to
a conclusion that the Respondent believed and had reasonable grounds for a
belief that, in some way or another, the Appellant had acted dishonestly. We
have been reminded by Mr Moretto of counsel in his helpful skeleton argument
of the numerous occasions on which the very high hurdle for a perversity
argument to succeed, illustrated by the decision of this Tribunal in Yeboah
v Crofton [2002] IRLR 634, has been referred to at Court of Appeal
level as a warning to this Tribunal and to Employment Tribunals not to be ready
too easily to reopen, or substitute, their views for those of the Respondent,
or the Employment Tribunal as it may be, on the grounds of perversity.
7.
As will become apparent from our rehearsal of the facts of this matter,
the argument that the Tribunal was perverse in coming to the conclusion that it
did about the genuineness of the Respondent’s belief and the reasonable grounds
for it is hopeless. In passing, however, we observe that the Tribunal did
make certain findings of its own in respect of the bona fides of the Appellant
in arguing for, or saying that she believed in, a certain construction for one
of the terms of her contract of employment. That finding of fact by Tribunal
was, in our judgment, clearly set out at paragraph 13 of its Reasons and
was to the effect that the Tribunal found that she was in good faith in forming
that view, though they later on made it clear that they thought that her view
was a mistaken one. That clear finding of fact has enabled us to conclude that
we are in a good position to make findings in respect of contribution; findings
to which we have already referred and to which we will return.
A summary of our reasoning
8.
Finally, by way of preliminaries, we summarise our reasons for
concluding that the decision of the Employment Tribunal in dismissing the claim
for unfair dismissal is fundamentally flawed in law and cannot stand. The
decision of the Employment Tribunal is set out in a full decision. It is
structured, to the extent that, at paragraph 4, it sets out a summary of the
issues; at paragraphs 5-48 it sets out its findings of fact; at paragraphs
49-51 it sets out the law. It then conducts, at paragraphs 52-69, what is
called “an analysis” in respect of unfair dismissal, which contains the
substance of its reasoning.
9.
This was a case where the employer dismissed the Appellant for alleged
gross misconduct. In setting out the law the Tribunal at paragraph 49
rehearsed, faithfully, the provisions of s.98 of the Employment Rights Act
1996. In particular it identified that the responsibility was on the
employer to show the reason for the dismissal and that it was a reason falling
within, in this case, subsection (2), namely relating to conduct. It then
rehearsed, briefly, the statutory provision as to whether the dismissal was
fair or unfair depending on whether:
“In the circumstances […] the employer acted reasonably or
unreasonably in treating it as a sufficient reason for dismissing the employee,
and shall be determined in accordance with equity and the substantial merits of
the case.”
10.
In paragraph 50 the Employment Tribunal then posed for itself the
questions which they had to ask. They said as follows:
“We have to ask whether the employer has proved the reason for
the dismissal. It is for the employer to establish the fact of its belief in
the misconduct. Then we have to ask on a neutral burden of proof whether the
employer had in its mind reasonable grounds upon which to sustain that belief.
Thirdly we ask whether the employer, at the stage in which it formed that
belief on those grounds, at any rate at the final stage at which it formed that
belief on those grounds, had carried out as much investigation into the matter
as was reasonable in all the circumstances of the case. We take that
proposition from the well-known test in BHS v Burchell [1978] IRLR 379
at paragraph 5.”
11.
The Tribunal went on to address the law in relation to disability
discrimination. It is, in our judgment, a startling omission that the
Employment Tribunal, having taken it upon itself to identify the relevant
questions and to cite the well known authority of BHS v Burchell
omitted entirely to remind itself of the final question which, in subsequent
decisions of the Court of Appeal, is said to be fundamental and to be inferred
from what was said in BHS v Burchell; that is, whether the
decision to dismiss was one which was within the range of responses available
to an employer acting reasonably; (the reasonable range of responses test).
12.
Such a startling omission in this part of the decision would not, of
course, be of significance in itself if the Tribunal had subsequently gone on
in the analysis part of its decision to demonstrate that it had, in fact, posed
for itself that question and answered it and had given reasons for so doing.
It is of significance that, in this case, there was a decision to dismiss and
then there was, subsequently, a process of appeal which was effectively by way
of re-hearing, which, whilst confirming the decision to dismiss, manifestly
approached the decision on a very different basis from the original decision to
dismiss, drawing a very different set of conclusions and inferences from the
same basic facts.
13.
The Tribunal acknowledged this and recognised it by dealing, in its
analysis section, with these two stages extensively and separately. In
relation to the original decision to dismiss, in considering the question of
the range of reasonable responses of the decision to dismiss, the Tribunal
limited itself to a single brief paragraph - paragraph 61 - where they said this:
“We consider therefore that what the employer did in fact was
fair and that it was within the reasonable range of responses of a reasonable
employer.”
14.
We agree that even such a short paragraph on the face of it does appear
to pose and answer the last question which had been omitted from the Tribunal’s
statement of the law. It is to be observed that there is no process of
reasoning set out in support of the Tribunal’s conclusion in respect of that
specific question. However, what is more significant is that in the subsequent
paragraphs, running through to paragraph 69, and in particular paragraph 69,
the Tribunal deals with the appeal process at the end of which the dismissal
was confirmed but on a wholly different basis. In that part of its decision,
the Tribunal, whilst going through the Burchell questions which
it had posed for itself in some detail, and having concluded that the
Respondent had a genuine belief, on reasonable grounds and after a reasonable
investigation for its belief, said nothing which addressed the question
whether, in the light of the factual situation which by then had emerged, the
Respondent had, in dismissing the Appellant, taken a decision which was within
the range of reasonable responses. In our judgment that is a fundamental failing
in the Tribunal’s decision and, accordingly, it cannot be sustained. On that
basis alone we uphold the appeal.
15.
The next question for us was whether we should substitute our own
finding for that of the Employment Tribunal. Each of the parties urged upon us
that we were in a position to do so. This is essentially a case which turns
very substantially on different forms of documentation: contractual
documentation; policy documentation; reports; letters; and emails.
Mr Moretto perhaps trying to, as he put it, have his cake and eat it, suggested
that we should only substitute our own finding if it were obvious and suggested
that the only obvious solution was that the Employment Tribunal would have come
to the same decision as it did had it posed the correct question. In our
judgment, the position is in fact obvious, but, unfortunately for
Mr Moretto, our view is that it is obvious the other way. We have
therefore, on that basis, acceded to his submission that we should only
substitute our view on the basis that it is obvious. Had we been of the view
that there were significant arguments to be had either way we would have
remitted that matter, either to the same Tribunal or to a different Tribunal,
depending on our view on the issue which we have not felt necessary to decide,
namely procedural impropriety.
The underlying facts in summary form
16.
The Appellant is a midwife. She was employed by the Respondent working
19 hours a week performing her functions on a community basis. That meant that
she conducted home visits. This meant that she had to be mobile. Her chosen
way of travelling was by bicycle, but, more significantly, her patients being
visited in their own homes meant that she had to be capable of going to a
number of different places, accessing a number of different types of
accommodation, including, for example, high-rise council flats with broken
lifts.
17.
From about 2006 she developed a chronic knee problem and surgery, which
she underwent in 2006, if anything made it worse. In September 2007 she was
interviewed for another part time position, namely as a family planning nurse
working for Ealing Primary Care Trust. That was a job which was effectively
clinic-based and which was situated within 100 yards of her home. She took up
that employment. Accordingly, she had two jobs at the relevant time, both of
them part time and both of them involving working at mutually exclusive hours;
they did not clash in any way.
18.
From December 2007 her medical condition was such that she could no longer
perform her work for the Respondent because her knee condition made it too
difficult and painful for her to access the community locations which her job
required her to access. However, she was well equipped and able to continue to
do the clinic-based job that she was undertaking for Ealing. She was off sick
from the Respondent’s employment on 13 December 2007. However, she
carried on performing the work which she had previously undertaken for Ealing
and, as emerged in due course, at no time did the work that she performed for
Ealing in any way overlap with the hours of work she would otherwise have
worked for the Respondent. Accordingly, there was no point at which she was
drawing sick pay from the Respondent in respect of hours for which she was working
for Ealing and, therefore, being paid by Ealing.
19.
She did not, however, notify the Respondent of the fact that her Ealing
employment was continuing, notwithstanding the fact that she was signed off
sick from working for the Respondent. As the year, during which she was absent
from work for the Respondent, went on, circumstances arose whereby it was
becoming possible for her to return to work for the Respondent and arrangements
were being made for that to be achieved, possibly by way of breaking her in
gently. However, towards the end of 2008, it came to the Respondent’s
attention that she had been continuing to work for Ealing whilst off sick from
work for the Respondent. This set of circumstances sufficiently concerned the
Respondent that, on 23 December 2008, her manager, Toby Cooper, wrote to
her, informing her that it had been brought to her attention that an allegation
of fraud had taken place in respect of her working for Ealing PCT whilst taking
sick leave at the respondent between December 2007 and December 2008, and
informing her that it would be investigated.
20.
This matter was clarified by the Respondent at the request of
Miss Perry on the following basis:
“… the allegation of fraud is that you have been reported to be
in paid employment by Ealing PCT whilst certified as sick at Imperial College NHS Trust.”
21.
On 12 February 2009, following receipt by the Respondent of a fact
finding report compiled by Toby Cooper, the Respondent, acting by the General
Manager, Maternity and Neonatology, Emma Hardwick, wrote to the Appellant
requiring her to attend an investigatory hearing on 27 February 2009, at
which she intended to investigate the allegation that, during the period
13 December 2007 and 28 December 2008:
“… you claimed and received statutory sick pay from Imperial College NHS Trust, whilst concurrently working for Ealing PCT as a family planning
nurse.”
22.
She advised the Appellant that this investigatory hearing might result
in a disciplinary interview being conducted which may result in action
including, potentially, dismissal.
23.
On 27 February the investigation hearing took place. Prior to that
hearing taking place, on 25 February, the Appellant had obtained a letter
from her general practitioner addressed “to whom it may concern”, which stated
that its aim was to clarify her ability to perform some aspects of her work
during the period from 2007 until the present. That letter reads as follows:
“During the time that the patient was signed a Med 3, she had
been signed off her usual work as a Community Midwife. This involved
travelling around to client/patients’ homes on her bicycle and assessing women
in antenatal care, postnatal care and various stages of labour. She was unfit
to carry out this job but as far as I was aware, she was fit to work in the
Family Planning Clinic (she lives about 100 yards from this clinic and is
within easy short walking distance). She performed most of her required tasks
from a desk based situation and thus required no extra stress on her knee. She
worked between 0 - 6 hours per week on a Monday evening and I feel that the two
jobs and the nature of the jobs should be taken as completely separate and
different from each other, requiring different levels of physical abilities.”
24.
Notwithstanding that letter, the contents of which were reported to
Ms Hardwick, Ms Hardwick declined to receive it in evidence,
apparently on advice. As a result, she wrote a letter on 5 March 2009,
following the investigatory hearing of 27 February, which had been
immediately followed by a disciplinary hearing. That letter summarily
dismissed the Appellant for gross misconduct. In the course of that letter,
and as part of her investigation, reference was made to a report from the
Counter Fraud Department. The letter records that report as saying as follows:
“… which clarified that an employee cannot work for another
employer while in receipt of occupational sick pay or statutory sick pay, and
that the interpretation of this is treated as a strict interpretation. The
reason being that you would be being paid twice; as you would be providing
services to another employer while you should be using your skills and
abilities for the benefit of your primary employer. The implications of this
to the primary employer are financial loss, the need for staff cover with
associated financial loss and the inconvenience to other team members which may
risk a potential detrimental effect on patient care. [The author of that
report] explained that this situation would be considered a fraud.”
25.
Immediately after the investigation and following an adjournment, the
letter records the proceedings as follows:
“… I explained that after carefully considering the information
presented at the hearing, I considered that gross misconduct had occurred in
that during the period of 13 December 2007 and 28 December 2008 you
claimed and received sick pay from Imperial College Healthcare NHS Trust,
whilst concurrently working for Ealing PCT as a Family Planning nurse. I
therefore decided to proceed to a disciplinary interview.”
26.
The letter then records that at the disciplinary interview
Ms Hardwick informed the Appellant that, after giving due consideration to
all the circumstances, she considered the allegation to be well founded. She
explained that, having had regard to technical advice, the clinical elements of
the two jobs - Ealing and Imperial - were effectively the same. She concluded
that the Appellant’s actions in continuing to be employed with Ealing whilst
off sick with Imperial suggested that the Appellant had acted unlawfully and,
regardless of whether that had occurred by reason of the Appellant’s ignorance,
that it was contrary to the Respondent’s reasonable expectation that she would
act lawfully.
27.
The letter then went on to state that there had been established:
“… an intention to defraud. I explained that your actions or
omissions have served to permanently deprive the Trust of a large sum of money
over a period of time when neither the management or Occupational Health had
given their advice or approval for you to do so.”
28.
On that basis she considered the Appellant’s actions constituted gross
misconduct and she was summarily dismissed.
29.
It is to be observed, at this point, that the conclusions drawn by the
Counter Fraud report were far in excess of what was legitimate. Far from a
person not being allowed to work for two NHS employers at the same time, it
subsequently emerged that this was relatively common. The position is covered
by the terms and conditions of employment where the only inhibition on a person
working for more than one employer, or in more than one employment, concerns
their working over the 48 hour week compliant with Working Time Regulations.
By reason of that concern, the terms and conditions of employment provide as
follows:
“The Working Time Regulations state that you should not work
more than an average of 48 hours per week based on a 17 week period.
Accordingly, the Trust should be aware of all the hours you work regardless of
whether this is for the Trust as overtime, bank/casual, agency work or with
another employer. You are, therefore, asked to notify your manager of any such
hours worked over and above 48 per week for the Trust or any external employer.
If you wish to exceed the 48 hour maximum, you should discuss
this with your General Manager and any agreement reached should firstly be
confirmed in writing.”
30.
Not only is that the case, but it is also the case that, in respect of
statutory sick pay, it is perfectly in order for an employee with two
employments to be claiming sick pay in respect of one employment whilst
continuing to work under the other. We have in our bundle a document which is
said to be an extract from a document entitled “statutory sick pay E14” which
was faxed by the Statutory Sick Pay helpline to provide guidance for
employers. The segment which is in our bundle reads as follows:
“Your employee has two contracts.
It is possible for an employee, who has two distinct contracts,
with the same or different employers, to be incapable of work under one
contract but capable of working under the other.
When an employee has more than one contract with the same or
different employers trading in association, and their earnings are aggregated
for NICs purposes, they must be incapable of work under all contracts before
they can be entitled to SSP.”
31.
The position, as far as Ealing and Imperial Health Trusts are concerned,
is that they were not associated employers in that sense. In addition, in our bundle
there is some guidance on how to resolve a dispute:
“It is quite common for the employer to dispute the incapacity
and whether the employee is incapable of work under their contract, even though
they have medical evidence to support the incapacity.
This can be for a number of reasons, a few examples are that the
employee
·
Is still working in another job
[…]
An employee might have more than one type of job and be
legitimately off work sick with one employer, while continuing to work with
another employer. SSP is contract specific, for example, the employee might
work in a supermarket as a shelf stacker and be off sick, but is able to
continue working as a secretary.”
32.
Having regard to that statutory guidance it is obvious, in our judgment,
that the conclusion, at least to that extent, of the fraud report which informed
Ms Hardwick’s view was misconceived. Not only that, but so too was the contention
that it was gross or very serious misconduct for the Appellant to be in the
situation of receiving statutory sick pay from the Respondent whilst working
for another employer because the Appellant would be being paid twice, providing
services to another employer while she should be using her skills and abilities
for the benefit of her primary employer.
33.
As must have been known by Ms Hardwick, because of what she had been
told by the Appellant from the letter from the GP, which she should have looked
at, the work performed at the two employments were at different hours, so there
never was a time when the Appellant, whilst off sick and being paid statutory
sick pay for the hours she would otherwise have worked for the Respondent, was
working those same hours for Ealing, thereby obtaining payment twice. Had that
been the case ‑ and we will return to this - there is authority
from this Tribunal that that would be inappropriate. But in this case there
was no question of that. On that basis too, the advice being tendered to
Ms Hardwick, which she seems to have followed very closely in her letter
of dismissal, was misconceived.
34.
Against that background it is unsurprising that the Appellant appealed
against her dismissal, nor is it surprising that the position of the Respondent,
when it came to appreciate the true factual position, changed very
significantly. As a result, the letter setting out the position of management
on the hearing of the appeal changed tack very significantly. The management
summarised their position as follows:
· “Your
contract of employment had stated that while absent on sick leave you were not
permitted to work elsewhere without prior permission from your manager, which
you had neither obtained nor sought;
[…]
· Your
duty had been to inform your line manager that you were continuing to work at
Ealing PCT; your sick certificates had indicated that [you] were unfit for any
work; by not disclosing the true position, you had prevented the Trust from
realizing that you might be re-deployable to other duties;
[…]
· In
this way, you had deceived the Trust; this deception went beyond a mere
technical breach of contract;
· Accordingly,
the evidence presented at the disciplinary hearing led management to the
conclusion that you had committed gross misconduct, and that, of the relevant
sanctions available, dismissal was the most appropriate.”
35.
It may be interposed here that, whilst that may have been the position
of management at the appeal, it most certainly was not the basis for the
decision to dismiss taking by Ms Hardwick, where the emphasis was on money
obtained permanently from the Trust apparently by deception or fraud.
36.
By this stage, the focus was not so much on that, as on the Appellant failing
to inform the Respondent that she was continuing to work for Ealing, thereby,
it was said, depriving the Respondent of an opportunity to consider whether,
given that she was obviously capable of some work whilst off sick, it might be
possible to redeploy her for the benefit of the Respondent, and no doubt the
Appellant herself, to some other work. The decision reached by the appellate
body followed that reasoning and they expressed themselves in the following
terms:
· “However,
the key issue for the panel remained your failure to inform management at the
Trust, while on extended sick leave, that you were still doing bank work for
Ealing PCT;
· The
Ealing job was different and lighter but, while the panel did not doubt that you
were unable to do your full job at Imperial, had the Trust been aware of the
fact that you were working elsewhere on lighter duties, it might have been able
to allocate you to a different role at Imperial rather than continuing to pay
you sick pay;
· As
it was, the Trust’s ignorance that you were doing the job at Ealing deprived it
of key information that might have enabled it to redeploy you.”
37.
They then went on to comment that she had ample opportunity to mention
that she was still working for Ealing; that the responsibility was on “you”,
the Appellant, “not just [as] a technical legal point, but as a matter of
common sense”. Then the decision concludes as follows:
· “The
panel could not accept that you did not realise that it was important to tell
the Trust, as your employer, that you were working elsewhere, and considered
that you had ample opportunity to make this fact known to them;
· The
panel was therefore satisfied that you had deceived the Trust. This did not
amount to a finding of fraud, but it constitute [sic] misconduct sufficient to
justify your dismissal.
· The
panel recognized that there were mitigating circumstances, especially
management’s failure to manage your sick absence properly; but, while taking
these fully into account, the panel could not find that they warranted a lesser
sanction than dismissal.”
Analysis of the documents
38.
The reference in the letter confirming the dismissal, though on a
different basis, to “not just a technical legal point” is a reference to a
specific term in the Appellant’s terms and conditions of employment; a term to
which the Tribunal had regard. It reads as follows and is under the heading
“Sickness absence”:
“If you are absent on sick leave, you are not expected to do
anything that is inconsistent with being unfit for your duties or which would
delay your return to work. This includes working for another employer without
the prior permission of your manager and taking part in inappropriate
activities likely to aggravate your condition. If it is found that you have
done something inconsistent with your absence on sick leave, this may result in
the suspension of sick pay allowance and/or disciplinary action.”
39.
We have the benefit, as did the Tribunal, not only of the statement of
terms and conditions of employment of the Appellant, but also documentation
setting out the sickness absence policy of the Respondent. It is of
significance, in our judgment, that nowhere in any of these documents is there
any hint that there is any practice, or any possibility, of someone who is off
sick being either requested, or required, to provide information which would
enable the Respondent to consider whether, during their sickness absence, they
might be deployed to do work which they were capable of doing, even though the
work which they were employed to do was outwith their capabilities whilst
sick. At its highest there is under paragraph 1, “Reporting absence”, the
following at 1.4:
“Employees should be asked to contact his/her Manager once per
week in order to maintain contact, and to update on progress.”
40.
It is equally plain that such obligation as there is, requiring an
employee only to work for another employer whilst off sick when they have first
obtained permission, is not there in order to furnish information with a view
to redeployment but is addressed to the question whether such other employment
may be inconsistent with their being unfit for their duties with the Respondent
- that is, evidence of malingering - or which would delay their return to
work. There is, in our judgment, no basis upon which the Respondent could reasonably
have believed that either of these concerns was in play in respect of the work the
Appellant was performing for Ealing. The evidence that they had from the GP was
that the work she was doing for Ealing was consistent with her continuing to be
unfit for her duties with the Respondent and would not in any way delay her
return to work.
41.
It is of significance, however, that the Respondent, in the letter of
decision on the appeal specifically made a finding that the Appellant had
sought to deceive them by withholding information which, it was said, she was
contractually obliged to provide. The Appellant, before the Tribunal, before
us, and, it would appear, in her response to the Respondent by way of appeal
against dismissal, acknowledged the existence of that contractual term but
stated that, though, at the time she went off sick, she knew she was carrying
on working with Ealing, she had looked at her contractual documentation,
including at this term, and had not thought that there was anything in it
which, in her situation, required her to ask permission of her manager to
continue working for Ealing whilst absent on sick leave.
42.
The Respondent took the view, not only that that was a misconstruction
of the contractual term and that it did apply to her, but also the Respondent did
not believe her when she claimed that she had acted in good faith in not asking
permission. They did so on the basis that they thought it was common sense,
that if she was going to carry on working for Ealing whilst she was off sick
from her job at the Respondent she was obliged first to seek the Respondent’s
permission. The Respondent thought that it was such an obvious piece of common
sense that she could not have honestly thought that she was not obliged to seek
their permission.
43.
In our judgment, the Employment Tribunal was entitled to take the view
that, in all the circumstances of the case, the Respondent both had that
genuine belief and had reasonable grounds for it and that that was based on a
proper investigation. At the same time, however, it is clear to us that the
Tribunal itself made a finding of fact, which it recorded in paragraph 13 of
the decision, namely:
“The Claimant took the view that this did not apply to part time
midwives like herself who already had existing work with another employer. She
therefore decided that she did not have to ask her manager for permission to
continue to work for Ealing PCT while on sick leave from the Respondent.”
In our judgment that is a clear finding of fact by the Employment
Tribunal that the Appellant was not dishonest in failing to ask for
permission.
44.
The Tribunal went on to conclude, as we have, that the Appellant was
plainly and obviously wrong in her construction of that term of the contract. In
our judgment it is clear that it does bite in the situation that she found
herself in and there is no sensible basis for the contention that it only
applies to someone who is thinking of taking on new, second, employment during
her period off sick. It is applicable to that situation, but it is also
applicable to the situation the Appellant was in - where she already had second
employment - even though, as we have pointed out, she had not been under any
obligation to inform them that she had undertaken secondary employment unless to
do so would have put her in breach of the 48 hour per week limit under the
Working Time Directive.
45.
It is against that background that we have rejected the contention that
the Tribunal was perverse in coming to the conclusion, which it did, about the
Respondent’s reasonable belief in the Appellant’s dishonesty. But, equally,
the fact that the Employment Tribunal made a finding that she acted in good
faith enables us to be fully informed on the issue of contribution to which we
will return.
46.
In our judgment the decision of the appellate body, in the context of
this case, that dismissal was an appropriate sanction for what they had found
against the Appellant was, plainly, not a conclusion which was open to any
reasonable employer in the context of the situation which had developed. In
our judgment it is very clear that the level of management which took the
original decision to dismiss did so on a wholly different basis from that which
emerged before the appellate body. The original decision to dismiss focussed
on an alleged fraud perpetrated by the Appellant, apparently by claiming
£15,000-odd from the Respondent as sick pay whilst working for someone else.
It was both legally and factually misconceived, but, nonetheless, it was the
basis upon which a decision was taken summarily to dismiss the Appellant.
47.
By the time it came before the appellate body the following matters were,
or should have been, plain: first, the Appellant was permitted to take second
employment whilst working for the Respondent; second, she was under no
obligation to inform them that she was so doing; third, that the hours of the
two employments were mutually exclusive, that is to say her hours of work at Ealing
did not overlap with the hours of employment with Respondent; fourth, it was
permissible for the Appellant to be off sick from work for the Respondent
whilst, at the same time, being fit to continue her work with Ealing and continuing
to do so; fifth, in the circumstances which, by then, must have been apparent
to the Respondent, there was no question of the Appellant having obtained
statutory sick pay from the Respondent for hours during which she was working
for Ealing and, therefore, there was no basis for any contention that they had
suffered any loss; sixth, they were entitled to view her failure to ask for
permission to continue to work for Ealing as a breach of her contractual
obligation; seventh, they were entitled to form the view that she was not
acting in good faith in asserting her belief that she was not required to ask
for permission.
48.
However, there was no basis, whether in terms of their sickness
management policy, or their contractual documentation, or in any statutory
guidance, for any suggestion that, by failing to inform them, she was, in any
way, standing in the way of any scheme, or arrangement, or individual
consideration of her redeployment to other work which she might have been
capable of doing. There was simply no basis for such a view, other than what
was put forward by management at the appeal, no doubt in an attempt, after the
event, to salvage something from what, by that stage, had plainly been an
initially misconceived decision summarily to dismiss.
49.
It, therefore, follows, in our judgment, that, in these particular
circumstances, against that particular background, it was unreasonable for the
Respondent, at the appellate level, to have concluded that summary dismissal
for gross misconduct was a warranted sanction for what, by that stage, had
emerged was a minor deception, if, indeed that was what it was.
Conclusions
50.
It follows that, the Employment Tribunal having failed at all to address
that issue; and we, having addressed the issue, having available to us all the
relevant documentation, including the corporate arrangements for managing sick
employees to which we have referred; we are of the view that the last question
posed by BHS v Burchell, namely whether dismissal was a sanction
which was within a range of reasonable responses, should be answered in the
negative.
51.
On that basis, therefore, not only do we uphold the appeal, we
substitute, for the finding that the dismissal was fair, a finding that the
dismissal was unfair.
Contribution
52.
We therefore turn to the question of contribution. Mr Moretto has
urged on us that we are not in a position to assess the quantum of
contribution, essentially because we have not heard all the evidence and, although
we have the witness statements, we do not have notes of cross-examination.
53.
In our judgment that is an unduly pessimistic view of our position. As
we have already indicated, this case very much turns on the documents. At the
heart of the question of contribution lies the question whether, in fact, the
Appellant was dishonest or was simply mistaken and wrong-headed. We would have
great sympathy with Mr Moretto’s submission if the Tribunal itself had
failed to make any finding on that issue, the Tribunal having the benefit that
we do not have of having heard all the evidence as well as reading all the
documents.
54.
However, as we have indicated, it is clear to us from the decision, and
in particular paragraph 13 to which we have referred, that the Tribunal,
having had regard to all the material which was before it, did come to a
finding on the question of its view of the Appellant’s alleged dishonesty. In
our judgment, the Tribunal came to a finding that she was not dishonest. The Tribunal
found that she genuinely believed that there was nothing in the contract of
employment which required her to seek the permission of the Respondent before
carrying on the employment with Ealing PCT, whilst claiming sick benefit for
sickness absence from the Respondent.
55.
In our judgment, we are in a position where we can assess the level of
contribution on the factual basis found by the Employment Tribunal, namely -
that the Appellant acted in good faith. We are in a position to judge, as the
Employment Tribunal was in a position to judge, whether or not the Appellant
was wrong in her view of her obligations under the contract. Her failure to
seek permission lay at the heart of the decision to dismiss which was
ultimately taken by the Respondent at the appellate level. For the reasons to
which we have already referred, in our judgment the Respondent was unreasonable
in imposing a sanction of dismissal. However, what informed that decision was
the Respondent’s view that she was wrong in her construction of her obligations
under the contract.
56.
A Tribunal, in considering the amount of any compensatory award, is
obliged to consider whether the dismissal, though unfair, was to any extent
caused or contributed to by any action of the complainant and it is under an
obligation to reduce the amount of the compensatory award by such proportion as
it considers just and equitable having regard to that finding (s.123 of the
1996 Act). There is a parallel provision under s.122(2) in respect of a basic
award.
57.
In our judgment, even accepting that the Appellant acted in good faith
in asserting that she was not obliged to seek the Respondent’s permission,
pursuant to that clause, it is - as we have already indicated - clear and
obvious that she was wrong about that. The provision is clear. It follows
that, loyal to the finding made by the Employment Tribunal that she acted in
good faith, we are obliged to conclude that she was, not only wrong, but
plainly wrong and wrong-headed in forming that view.
58.
It therefore follows that, whilst her level of contribution is by no
means as high as it would have been had the Tribunal found, on proper grounds,
that she was, in fact, dishonest, nonetheless her contribution to her own
downfall, given the wrong-headedness of the view which she had about the
contractual term, is such that her contribution is significant and by no means
negligible. In our judgment we are as well placed as the Employment Tribunal,
giving its findings of fact, to assess the level of that contribution and we do
so - at 30%. In our judgment we are in a position to make such a judgment and
it is just and equitable that we should do so.
Remission for undecided issues to be determined
59.
Without making any findings on the allegations of procedural
impropriety, it is clear from the material which is now before us, that there
are very considerable misgivings entertained, not only by the Appellant
herself and those who might be thought to have supported her, but also by more
impartial observers, over what happened before the Employment Tribunal. In
those circumstances, quite apart from the extra delay and inconvenience of
waiting for the same Employment Tribunal panel to be available, in our judgment
it would not be just and equitable, where there are these misgivings which have
not been resolved, for this matter to be remitted to the same Tribunal for the
remedies and award to be determined
60.
It follows that this matter must be remitted to a differently
constituted Employment Tribunal, for such issues as remain to be determined.
61.
In our judgment, the question of remedy and calculation of the basic and
compensatory awards and any other awards, against the background of our
findings: that the Appellant was unfairly dismissed; but that she made a
contribution of 30% to her dismissal, can properly be conducted efficiently and
in a cost-effective way by a differently constituted Tribunal.
62.
Accordingly, our final decision is that this matter be remitted for the
purpose of remedy and calculation of the award to a differently constituted
Employment Tribunal.
