Appeal No. EAT/1032/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 January 2000

Before
HIS HONOUR JUDGE C SMITH QC
MR I EZEKIEL
MRS T A MARSLAND

MR N CLAYTON	APPELLANT

PINDERFIELDS & PONTEFRACT HOSPITALS NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR K McNERNEY
(Representative)
Royal College of Nursing 
Raven House
81 Clarendon Road
Leeds LS2 9PJ	

HIS HONOUR JUDGE C SMITH QC

1.	We have before us an application upon which we give a ruling because we think it is just arguable, and we are going to allow it to proceed to a full hearing.  It is an application by Mr Clayton for leave to proceed to a full hearing of an appeal against the decision of an Employment Tribunal held at Leeds on 17th-19th May 1999, whereby the Employment Tribunal held that the Appellant had been fairly dismissed on the grounds of gross misconduct.  

2.	There are two grounds now taken before us, ably by Mr McNerney, who appeared on behalf of the Appellant before the Tribunal.  The first ground of appeal is that at the appeal hearing before the appeal panel, when Mr Clayton was represented by Mrs Woods, there was an application by Mrs Woods made to the appeal panel for evidence from the occupational health physician who has seen the Appellant to be introduced and it is clear from the findings of the Employment Tribunal that the panel refused to hear such evidence initially but that after consideration they said they would admit it, on condition that the Respondents could also admit new evidence, and we are assured by Mr McNerney, and we fully accept from him, that the new evidence was going to be by way of new charges being added to the charge sheet.  What then happened was that Mrs Woods, in the light of that condition being imposed upon the introduction on behalf of the Applicant of the occupational health physician’s evidence, did not pursue the point.

3.	The complaint that is now made against what is clearly an otherwise very careful decision is that, the Employment Tribunal did not deal with the argument that was addressed to them that that was a procedural defect in the appeal hearing which rendered the dismissal arguably unfair.  The decision is simply silent on that matter, there is no ruling one way or the other by the Employment Tribunal, when they came to consider section 98(4), in relation to this apparent procedural defect at the appeal hearing.  It would plainly have been open to the Employment Tribunal to have said, particularly following Post Office –v- Marney [1990] IRLR 171 and the judgment of Mr Justice Knox giving the judgment of the Employment Appeal Tribunal in that case, that the decision of the appeal panel not to admit the medical evidence was not such a defect as to show any flaw whatsoever in the decision to dismiss or affect the fairness of the decision to dismiss.  Had they so found, then there could have been no objection to the decision, but, in our judgment the Employment Tribunal arguably should have made a finding one way or the other when considering the issue of overall fairness, on this procedural defect, and so on that ground we allow the matter to proceed to a full hearing.  

4.	Secondly, one of the allegations against the charge nurse, Mr Clayton, was that, as an emergency nurse, practitioner, he had treated children under 5.  There were also other very serious allegations made against him relating to his treatment of those children, namely, the carrying out of an intravenous cut down and also the allegation that he had treated facial eye burns and high velocity facial injuries outside the guidelines.  However, one of the allegations against him was that he had treated children under 5 contrary to the guidelines.  In relation to that the Respondents themselves, the Trust, apparently relied upon a document, D1, which showed, so it is said, that other ENP nurses had been practising on children under 5 and therefore part of the argument for the Applicant was that he was being dismissed in relation to this charge for something which other people were doing.  

5.	Here again, in our judgment, it is arguable that the Tribunal ought to have dealt with and made findings in relation to that particular piece of evidence that was before the disciplinary panel and the appeal panel.  It is arguable that they should have made a finding in relation to that contention based upon the document D1.  Here again, it would have been open to the Employment Tribunal to have said that, having regard to the very serious allegations that did not relate to D1, and which were proved against the Applicant on the findings of the disciplinary panel and the appeal panel, that any failure of the panel and the appeal panel properly to assess D1 and put that into the balance, could not have affected the fairness in any way with regard to the dismissal.  But, in our judgment, the failure to deal with the point is an arguable ground of appeal.  We do not intend to give any support to this appeal with great respect to Mr McNerney.  We think it is a very difficult argument indeed and in our judgment it is only just arguable.  However, for the reasons we have stated, we allow this matter to proceed to a full hearing.  It will be marked category C and will take half a day.  A bundle of documents must be agreed for the hearing and the Chairman’s notes of evidence are ordered in relation to the evidence of Mr Peter Donelly and in relation to the evidence of the Appellant, Mr Clayton.