United Kingdom Employment Appeal Tribunal

BAILII case number: [1995] UKEAT 584_95_3110

Appeal No. EAT/584/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 31 October 1995

THE HONOURABLE MR JUSTICE MUMMERY (P)

MRS E HART

MRS R A VICKERS

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MRS M SMART          APPELLANT

EAST CHESHIRE NHS TRUST          RESPONDENTS

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellant MR M KNOWLES

(Representative)

Personal Advisory Services

1 Howey Lane

Congleton

Cheshire CW12 4AE


 


MR JUSTICE MUMMERY (PRESIDENT): This is the preliminary hearing of an appeal against the decision of the Industrial Tribunal held at Manchester on 2 December 1994 and 3 March 1995. In extended reasons notified to the parties on 13 April 1995 the Tribunal unanimously decided that Mrs Smart was not unfairly dismissed by the East Cheshire NHS Trust and that, therefore, her complaint of unfair dismissal failed.

Mrs Smart made an application to the Chairman of the Tribunal for a review. That application was made on her behalf by her representatives, Personnel Advisory Services. The application was based on a detailed letter submitted to the Chairman. On 11 May 1995 the Chairman referred to the document attached to Mrs Smart's representative's letter, referred to the power of review which the Tribunal had under Rule 11(1) of the 1993 Rules of Procedure and stated this:

"I can find nothing in the reasons presented which fall within any of those grounds. In essence, the applicant's representative is suggesting that the Tribunal's decision was perverse or one which no reasonable Tribunal, properly directed as to the law, would have reached. That is a matter which should be dealt with by way of appeal rather than review."

He refused the application as, in his opinion, it had no reasonable prospects of success.

The appeal route was, therefore, followed. A notice of appeal was served on 23 May 1995 and the grounds of appeal, amplified in a letter of 13 June 1995, are succinctly stated in paragraph 6 of the notice of appeal:

"the industrial tribunal erred in law in that it misapplied the guidelines of the leading case of British Homes Stores Ltd v Burchell [1980] ICR 303, the summary of the argument that this mis-application occurred being contained in the reasons for request for a review."

The purpose of the preliminary hearing, on which Mr Knowles has represented Mrs Smart, is to decide whether or not the appeal raises a point of law which is reasonably arguable. If it is a point of fact or if it is a legal point that is not reasonably arguable, there is no point in the appeal proceeding to a full hearing. This Tribunal's jurisdiction is limited to appeals on points of law.

Mr Knowles presented a very clear and succinct statement of the grounds on which his client wishes to argue that this decision is erroneous in law.

The background to the case is that Mrs Smart was a nursing assistant, employed from April 1974 until her dismissal on 9 August 1994 by the East Cheshire NHS Trust and its predecessors. She was employed at a hospital. Her complaint of unfair dismissal, presented on 26 August 1994, was that she had been unfairly dismissed due to misinterpretation of a set of circumstance involving an altercation with a patient who fell to the floor with no injury.

The NHS Trust contested the claim and said that Mrs Smart was dismissed for misconduct. She was summarily dismissed from her post as a nursing assistant at Parkside Hospital on 9 August following a disciplinary hearing held in accordance with the Trust disciplinary procedure. There were representatives at the hearing and the dismissing officer, Mr Grundy, considered all the representations and made the decision to dismiss on the basis of evidence presented. Mr Grundy found that Mrs Smart assaulted a patient at Parkside Hospital and failed to promote the safety of the patient and that constituted misconduct within the meaning of the disciplinary procedure of the Trust. The application for unfair dismissal was, therefore, resisted on the grounds that there had been a thorough investigation, a fair hearing and a decision reached in accordance with the disciplinary procedure and on the evidence.

An appeal against the decision to dismiss failed.

What is the error of law in this decision? The decision sets out the findings of fact. It describes, in sympathetic detail, the extremely difficult circumstances under which Mrs Smart worked at Parkside Hospital with patients suffering from varying degrees of psychiatric difficulties or illnesses. The Tribunal refers to the evidence of a number of occasions on which persons at work in the Hospital had been subjected to abuse and aggression from patients. Mrs Smart gave evidence herself of how on numerous occasions over the years she had been hit, punched, scratched, had her hair pulled and subjected to other instances of violence, all of which occur only because of the unfortunate and unintentional state of mind of the patients involved.

Throughout her period of employment and notwithstanding the provocation which arises from such situations, she had never been the subject of any complaint by patient or patient's family. The NHS Trust confirmed that until this incident she had never been the subject of disciplinary action. She was regarded as a loyal, dedicated and caring nursing assistant, working in a difficult environment. She appeared before the Tribunal as an employee with an unblemished record prior to this incident.

The Tribunal set out the details of what occurred, and of the investigation of alleged misconduct by Mrs Smart in assaulting one of the patients in the hospital, a Mrs Dickson, and in contravening the rules of conduct by which the Applicant was bound i.e. failing to promote the well-being of the patient.

They refer to the investigation at the disciplinary hearing conducted by Mr Grundy, the Directorate Manager of Psychiatric Services and to the fact that Mrs Smart was represented by Mr Doyle, a full-time officer of her union, UNISON. That resulted in summary dismissal. An appeal heard on 10 October 1994 by a panel of the Trust Board, at which Mrs Smart was also represented by Mr Doyle, resulted in the dismissal of the appeal.

The Tribunal set out the dispute about the incident involving Mrs Dickson. On Mrs Smart's side, the case was that what had occurred was an accident and the details were given of Mrs Smart's account of how the accident occurred. The case against her was that it was a deliberate assault. The Tribunal correctly said, in paragraph 11 of the decision, that it was not their role to ascertain exactly what happened on the relevant date, 5 July 1994:

"Where misconduct is alleged as being a fair reason for dismissal ... the employer must establish a genuine belief in the misconduct alleged, such belief being based on reasonable grounds and following a reasonable investigation into the matters alleged ..."

Those are the guidelines laid down in the case of British Home Stores Ltd v Burchell.

The Tribunal's conclusions, on applying these guidelines, were that a thorough investigation had been carried out into the incident. Witnesses and potential witnesses had been interviewed, written statements prepared. Notwithstanding certain criticisms which were made by Mrs Smart's representative, the way in which the investigations were carried out, the Tribunal concluded that the investigations were reasonable.

The Tribunal also concluded that there were reasonable grounds to support the genuine belief of the NHS Trust that there had been misconduct on the part of Mrs Smart in the incident.

The Tribunal proceeded to apply the provisions of section 57(3) and concluded that the decision to dismiss Mrs Smart summarily was within the band of reasonable responses of a reasonable employer.

The Tribunal noted the difficulties facing a person such as Mrs Smart in dealing with patients like Mrs Dickson. The Tribunal went out of their way in paragraph 20 to express sympathy for Mrs Smart. They said:

"the Tribunal had a considerable degree of sympathy for the applicant, it equally had sympathy with the predicament of management in this situation. Furthermore, it is not part of the Tribunal's function to seek to impose its own decision for that of management in such a situation as this but simply to determine whether no reasonable employer could have come to the decision which this employer did."

We share the considerable sympathy expressed by the Tribunal for Mrs Smart. We have to observe, however, that on appeal on a question of law we have to decide the issue on the cold question, whether or not it has been shown that there is an error of law. We cannot decide cases on sympathy. The sympathy shown by one Tribunal might not be shared by another. The way to achieve certainty, consistency and justice in the administration of the law is to apply the rules.

In what respect, we ask, has this Tribunal failed to apply the rules of law correctly? Mr Knowles, in a clear, concise submission, made two criticisms of this decision. He accepted, correctly in our view, that he could not challenge the fact that the NHS Trust had the belief that there had been misconduct. What he criticised were, first, the conclusions of the Tribunal that there were reasonable grounds for that belief and, secondly, the conclusion of the Tribunal that there had been as much investigation into the matter as was reasonable in all the circumstances.

On the first point, he said that if you looked at the facts accepted on all sides as undisputed, you could not fail to come to the conclusion that there were no reasonable grounds for the belief that there had been misconduct. He highlighted the following points: that Mrs Smart was following hospital procedure in forbidding Mrs Dickson to leave the ward when the fire alarm rang; that it was Mrs Dickson who, immediately prior to the incident, assaulted Mrs Smart without provocation; that in 25 years of service with mentally-ill patients, of which Mrs Dickson was one, Mrs Smart had a totally unblemished record, despite having been assaulted on occasions and never having once retaliated; that, contrary to the hospital regulations, when the fire alarm rang, the Appellant, Mrs Smart, was the only qualified person left with 14 mentally-ill patients in the ward; that Mrs Dickson had herself informed the investigating officer that Mrs Smart had not assaulted her by pushing her to the ground; that a domestic auxiliary, Miss Heeks, present in the ward at the time, denied in writing on the day of the incident, that Mrs Smart had assaulted Mrs Dickson; and that another patient on the same ward, who was present when the incident occurred, Mrs Fernandez, informed the investigating officer both that she did not know if Mrs Smart pushed Mrs Dickson and that it was deliberate. Mr Knowles criticised the failure of the investigating officer to obtain evidence from any of the other 11 or 12 patients on the ward present during the incident. A statement was only obtained from Mrs Fernandez.

He also pointed out that the evidence of Miss Heeks to the investigating officer made it uncertain whether Mrs Jones, who made the charge of misconduct against Mrs Smart, was actually in the ward at the time of the incident and was able to witness what actually happened.

Pointing to these facts and to authority, including the Linfood Cash and Carry v Thomson case as well as Burchell, Mr Knowles submitted that NHS Trust did not have any logical or substantial grounds or good reasons for the belief of misconduct on the part of Mrs Smart.

The second area of criticism was in relation to the investigation. This involves going over a number of the same points as relate to the reasonable-grounds point. Mr Knowles pointed out that all the patients on the ward were mentally ill in some degree. They were all available for questioning. Only two of them had been questioned by the investigating officer, tMrs Dickson herself and Mrs Fernandez. Mrs Dickson denied that the assault had taken place, but her denial was disregarded and Mrs Fernandez had given two different versions. First, that she did not know if Mrs Smart had pushed Mrs Dickson over. Then she had said that it was deliberate. The statement that it was deliberate was preferred by the investigating officer. That was the evidence of misconduct on which the NHS Trust acted. Mr Knowles submitted that it was not reasonable of the investigating officer to prefer the evidence of one mentally-ill patient to that of another. It was unreasonable to prefer part of Mrs Fernandez's evidence, which incriminated Mrs Smart, and disregard the part which said that she did not know if Mrs Smart had pushed Mrs Dickson. It was unreasonable of the investigating officer to collect evidence from only one of the 11 or 12 witnesses to the incident. It was unreasonable to justify the decision on the grounds that Mrs Fernandez volunteered her evidence. It was unreasonable of the investigating officer to rely on the evidence of Mrs Fernandez, given that it was part of the Ward Sister's evidence that Mrs Fernandez had a history of antagonism towards members of the staff.

Mr Knowles submitted that, given that only 1 out of 11 or 12 possible witnesses had been interviewed, the employer, at the stage at which he formed his belief of misconduct, had not carried out as much investigation as was reasonable in all the circumstances. On the basis of those two points, Mr Knowles submitted that this decision merits reconsideration and that the case should go forward to a full appeal.

Although we share the sympathy expressed by the Tribunal for Mrs Smart, we are unable, after careful examination of this decision, to conclude that there is any legal flaw in it. In our view, although Mr Knowles avoided using the term "perversity" or "irrationality", our view is that the Chairman of the Tribunal was right when he said, in refusing a review, that the essence of the criticisms Mr Knowles makes of this decision, is that it is one which no reasonable Tribunal could have reached. If we had been the Tribunal, we might, on this evidence, have come to a different conclusion and held that the dismissal was unfair. We would also point out that if we were the employers, the NHS Trust, we might not have taken the same action that the NHS Trust took in dismissing Mrs Smart. We emphasize, as the Industrial Tribunal itself emphasized, that we must keep to the role entrusted by Parliament. It is not our job, any more than it is the job of the Industrial Tribunal, to substitute our decisions for those of an employer, if those are decisions which a reasonable employer could come to in all the circumstances. It is not our job, as an Appeal Tribunal, with limited jurisdiction on points of law, to substitute our views for the views of an Industrial Tribunal which has heard the evidence, seen the witnesses give evidence and come to a unanimous decision on the merits of the case.

The fact is that, in this decision, the Tribunal addressed itself to the correct guidelines in Burchell, applied those guidelines to the findings of fact, came to a decision which involves making judgments on matters of fact and degree and then correctly applied section 57(3) to determine whether dismissal was a reasonable response in all the circumstances. We cannot find any legal flaw in that. We cannot find any perversity. A decision is not perverse simply because we, hearing the same evidence, might have come to a different decision.

We have gone out of our way to explain those matters in some detail because of the sympathy we feel for Mrs Smart, with a long unblemished record, faced with dismissal within such a short time of retirement. It is a matter for the NHS Trust to consider in the light of these remarks whether they wish to discuss the position any further with Mrs Smart or her representative. It is not a matter on which we are entitled to make any interference with the decision of this Industrial Tribunal. The appeal is dismissed, because the points raised in the appeal are not arguable points of law.