ON APPEAL FROM the EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE BIRTLES sitting with two Lay Members
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE KITCHIN
| CRAWFORD AND ANR
|- and -
|SUFFOLK MENTAL HEALTH PARTNERSHIP NHS TRUST
Mr Peter Wallington QC (instructed by The Law Offices of Richard Hemmings) for the Respondent
Hearing date : 13 January 2012
Crown Copyright ©
Lord Justice Elias :
"..the patient, JE, was observed in the dining room…seated in a chair near to a table with one bed sheet tied around the upper part of JE's body and the chair and one bed sheet tied around the lower part of the chair encircling the arms of the chair. The sheet around the lower part of the chair was securing the chair to the table."
"This treatment did not afford the patient, JE, dignity and respect, safety and security, and is a serious breach of good practice."
"The treatment of patient, JE, was not reported by you nor was any attempt made by you to release patient, JE, from this situation."
"Any verbal or physical assault on a patient … arising out of employment with the Trust"
Paragraph 7.12 states that:
"Contravention of professional codes of practice is professional misconduct."
Paragraph 7.6 is also relevant to this appeal. It identifies as misconduct:
" any act or failure to act which affects the health and safety of a patient, member of the public, …."
"The allegation of tying patient, JE's, chair to the table is admitted by yourself and not disputed. This is mechanical restraint and not a form of restraint recognised anywhere in Trust policies or procedures nor in national protocols or guidelines. It is clear that patient, JE, did have a sheet surrounding the upper part of his body and evidence suggests that this would only stay in place by securing the sheet. This is inappropriate restraint."
The relevant law.
"It is for us to consider whether the employer had an honest belief in the misconduct alleged and that that belief was based upon reasonable grounds after having carried out sufficient investigation. It is not for us to determine on the evidence that we have heard whether we believe the misconduct had occurred. The Tribunal views the matter through the eyes of a reasonable employer. Provided that the actions of this employer fall within a range of responses by a reasonable employer, the Tribunal cannot interfere. It is also an exercise which is carried out when considering the penalty that follows from the employer's belief. It may be that the Tribunal would have imposed a different penalty but the sole question is whether the penalty applied by this employer was such that no reasonable employer would have applied such a penalty."
"…. There are occasions when a correct self-direction of law is stated by the Tribunal but then overlooked or misapplied at the point of decision. The Tribunal judgment must be read carefully to see if it has, in fact, correctly applied the law which it has said is applicable. The reading of an Employment Tribunal decision must not, however, be so fussy that it produces pernickety critiques, over-analysing of the reasoning process; being hyper-critical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid."
However, it should not readily be assumed that a tribunal has failed to follow its own directions. There must be a proper basis for an appellate court to conclude that the Tribunal has failed to follow its own self-direction; see Roldan, para 51.
The decision of the Employment Tribunal.
"a career-changing decision in that a reference to the relevant professional body can involve that nurse in being unable to gain other employment within the profession. It follows therefore that evidence of misconduct must be clear and cogent."
" We do not consider that a reasonable employer could properly have concluded that JE was tied to the chair with no attempt to release him when faced with the evidence of the two nurses and two healthcare workers who were present throughout as against the evidence given by a nurse who did not feel sufficiently strongly to report the matter or remonstrate immediately as her professional conduct code required and who had no more than a fleeting view of the circumstances, coupled with the lack of certainty as to whether there were two sheets or three."
"We also consider that a reasonable employer would have taken into account the content. Here was a patient who had prompted Ms Jeffrey to express concern about his medical treatment, who had caused significant difficulty in handling during the day shift when there were more nurses or carers on duty and where the admitted aim of the Claimants was to keep the patient safe by securing the chair in which he was sitting to prevent him from falling out of it. It is clear that he was regularly agitated and difficult. He was attached to a "drip" on a stand and too much movement would have caused difficulty for that equipment to function. There was a need for two nurses to attend to the administration of drugs and the needs of 16 other patients in a way which kept all of those patients safe. There was no allegation that there was any harm to JE and not suggested that the nurses or healthcare workers were doing anything other than attempting to keep him safe from himself and his restless aggression. …"
"For the above reasons, we do not consider that the Respondent had sufficient evidence based on an adequate investigation to ground their belief that the patient was tied to the chair by the Claimants and that no effort was made to release him and no reasonable employer could conclude that securing the patient's chair to the table was a physical assault as defined in their own PMA code. The decision to dismiss was therefore unfair. …"
"It is most unfortunate for these claimants that the respondents did not reinstate them as soon as the police investigation was concluded and then deal with them as was suggested in the investigation report by performance development review training and some disciplinary sanction."
The hearing before the Employment Appeal Tribunal.
i) It was alleged that notwithstanding that the Tribunal had properly directed itself in law, it had in fact substituted its view for that of the employer, both in concluding that there had been procedural defects, and in its finding that no reasonable employer could have concluded on the evidence that JE had been tied up as alleged by Ms Jeffrey.
ii) In any event, the appellants' representatives had had the opportunity on the internal appeal to challenge the fairness of the experiment conducted by Mr Mansfield without notice to them and in their absence. It is well established that defects at an initial disciplinary stage can be remedied on appeal: see Taylor v OCS Group Limited  ICR 1602. That was the position here.
iii) The Tribunal had wrongly concluded that there had been undue delay. There was no significant delay given initially the need to await the police investigations and the problems of securing the presence of so many witnesses on the same day.
iv) The Tribunal had wrongly stated that the Trust had failed to have proper regard to all the surrounding circumstances when, in fact, it was plain from the evidence before the Tribunal that the employers were alert to these matters. They had been relied upon by the appellants by way of mitigation. The dismissal letters said in terms that the mitigating features had been considered. The Trust were entitled to conclude that the offences were so serious that only the sanction of dismissal would do.
v) Mr Mansfield was ill and unable to give evidence to the Employment Tribunal but evidence was given by Ms Verzijl who was present throughout the disciplinary hearings and was privy to Mr Mansfield's thinking. She stated that Mr Mansfield had, in fact, considered that merely tying the table to the chair would of itself have constituted gross misconduct sufficient to justify dismissal. The Trust complains that the Tribunal failed to have any regard to that conclusion. It was obliged to consider whether dismissal for that reason would have been fair.
vi) Finally, it was asserted that in any event even if the dismissal could properly be found to be unfair, it was incumbent upon the Tribunal to apply the principles derived from the decision of the House of Lords in Polkey. This required the Tribunal to assess the chances that even if proper procedures had been complied with, the dismissal would have occurred in any event and would have been fair. The Tribunal had recognised in its decision that this was one of the issues it would need to address, but in fact it never did so.
The points relating to remedies.
Lord Justice Kitchin:
Lord Justice Laws: