United Kingdom Employment Appeal Tribunal

BAILII case number: [1996] UKEAT 528_95_1006

Appeal No. EAT/528/95

EMPOLYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 10 June 1996

HIS HONOUR JUDGE J HULL QC

MR T C THOMAS CBE

MRS P TURNER OBE

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THE DORSET TRUST          APPELLANTS

MRS D BARNETT          RESPONDENT

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Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised


 


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APPEARANCES

For the Appellants MR W EMERSON

(of Counsel)

Messrs Woodford & Ackroyd

Solicitors

The Director Generals House

Rockstone House

Southampton

Hampshire

SO15 2EP

For the Respondent MISS L LITCHFIELD

Messrs Avis & Cutmore

Solicitors

1613 Wimborne Road

Kinson

Bournemouth

Dorset

BH11 9AP


 


JUDGE J HULL QC: This is an appeal to us by The Dorset Trust against a decision of the Industrial Tribunal sitting under the Chairmanship of the late Mr Waud, given on 27 March 1995. The Tribunal had sat at Southampton and they had decided that the employers, The Dorset Trust, had unfairly dismissed Mrs Doreene Barnett, a Care Assistant in their employment.

The Dorset Trust is, we understand, a non-profit making organisation with 18 residential homes for elderly people. A number of those are in Bournemouth and it was with one of those that the Tribunal was concerned, Draper House in Bournemouth.

Mrs Barnett, the Respondent to the appeal, had been dismissed on 12 August 1994 for alleged misconduct. She was first employed on 22 May 1992. There was an incident or perhaps incidents, with which we are not in any way concerned, and it is not suggested that those played any part in her dismissal. What caused the dismissal were events on 24 July 1994. For an account of those we cannot do better than refer to the decision of the Industrial Tribunal itself, which is a fairly short one and I must go through substantial parts of it.

The Tribunal refer to the Applicant taking up employment. She is a lady in middle age. They say that:

"3 When commencing work, she was provided with a contract of employment, together with the rules that applied to all staff. The philosophy of the Respondents was most commendable, in our view. Each resident was to be treated with sympathy, understanding, and his or her dignity was to be respected. In particular a resident was not to be treated as a child, or subject to an assault or a threat of violence. Nor should a patient be sworn at, or inappropriate language be used."

They then referred to one other matter to which they did not attach any importance in this connection. They continue:

"5 On 24 July 1994, a resident, Miss Mills aged 80, was in the residents' lounge when she wet herself. Mrs Legg, a domestic worker, who sometimes helped as a carer, took a mop and bucket to clean the floor, but this caused embarrassment to Miss Mills. The Applicant told Mrs Legg to stop, and to assist her to get Miss Mills to the disabled toilet. With some difficulty, they got her there.

6 There is a dispute as to what followed. In a statement made by Mrs Legg on 25 July 1994 [the following day] ... inter alia she said this:

`At about 11 a.m. one of the residents noticed Doris Mills was wet ... When we got to the toilet, we helped Doris undress and Doreene said to Doris, `What have you done you little fucker'. She then proceeded to hit Doris very hard on the bottom. Doris reacted by hitting back at Doreene knocking off her glasses.

Doreene soon shouted for Avril [the Team Manager] complaining that Doris had been aggressive towards her by knocking off her glasses and slapping her face.

Later on, Doris was sat outside in her wheelchair. Doreene [the Respondent] commented, `Did you see Doris knock off my glasses?'. I replied, `You did hit her behind rather hard. You must expect to get hit'. Doreene replied, `You won't tell the office will you, I'll lose my job'.

When I went home I talked about it with my husband as I was distressed it could have been my mother. I decided I would report it next day'."

So that was Mrs Legg's account of the matter in which she persisted. The Tribunal go on:

"7 Mr Jenkin, the Care Services Manager, received the complaint from Mrs Legg. It was initially described to him, and was later put into writing ... He interviewed the Applicant in the presence of Mrs Barbara Stanton, Deputy Home Manager. Inter alia, the Applicant said:

`When they were in the toilet Doris started urinating and laughing. She said she tried to turn her around, saying `Quick come on'. Doreene said she smacked her on the bottom to make her relax. I asked if anyone else was present, Doreene confirmed Pam Legg was.

I asked Doreene how hard she smacked Doris. She replied, `As I would a baby's bottom'. Barbara asked Doreene whether she felt it was degrading to have hit Doris. Doreen (sic) agreed that it could be viewed as that but it wasn't her intention to do so. She went on to say `that it was only a smack'. I asked Doreene whether she thought it was dignified for a resident to be hit in the way she had treated Ms Mills. She replied that it wasn't. I asked whether Doreene was aware of residents rights. She said she looked after all her residents well and I could ask them if I wanted to check it out'.

8. He considered there was a case to be answered, and if proved on a balance of probabilities, then it could lead to dismissal. ..."

Then there was a letter informing her that there would be a disciplinary hearing to consider two allegations:

"`1 that on Sunday, 24 July 1994 ... you swore at a resident,

2 that on the same day you smacked a resident whilst in the toilet'.

9. When giving evidence, Mr Jenkin told us that he tried to speak to Miss Mills. He found that she would not communicate. She did not know who he was, and she might have thought that she was being investigated. She was not prepared to make a statement. He stated that she was `frail and confused'. Her next of kin, her sister Mrs Winifred Damen, who visited her twice a week, was not informed of the incident. No other serious attempt was made by the Respondents to obtain from Miss Mills her recollection of the events, if any.

10. Following completion of the disciplinary hearing, because of the seriousness of the offences, particularly those relating to residents' rights and dignity and of attitude and behaviour towards them, they considered that dismissal was the appropriate sanction. The Applicant was informed orally of the decision at the hearing. A letter in confirmation dated 29 July 1994 ... was sent to her. The reasons were:

`behaving in a way which could adversely affect the reputation of The Dorset Trust.

blatant disregard for an individual resident's rights to dignity and privacy

inappropriate attitudes, language, behaviour and tone towards a frail resident

a lack of awareness and unwillingness to recognise the consequence of your actions'."

Then they go on describe how she appealed internally and the internal appeal was unsuccessful.

They say in paragraph 13, as they start to consider the facts:

"13 One difficulty we have faced in this case is to find out the dividing line between what is acceptable conduct, and what is not. ... "

Pausing there and looking forward a little, one would have thought, on the face of it, that it was for the employers in the first instance to say what was acceptable conduct and what was not. It was their duty, of course, to be fair and their duty to look into the circumstances, but that is what the Tribunal said at that point and it may be an indication of why the Tribunal went on as they later did. They said as follows in paragraph 15:

"15 What was the position in the instant case? There were two conflicting stories. In essence, the Applicant was contending that she was doing her best for the patient in very difficult circumstances, and she thought that a gentle slap on the bottom would help ease the situation. She agrees that she did say, `For God's sake, Doris' but the circumstances were very difficult, the resident having urinated in the lounge, and continuing to do so before she would sit down on the lavatory seat. Would the words effect the dignity of the resident? A great deal will depend on the rapport that has been built up between carer and resident over the two or so years when the Applicant looked after Miss Mills."

Again, one would think a matter first and foremost for the employers (with of course the assistance of the employee) and not for the Industrial Tribunal itself. They go on:

"15 (sic) If Mrs Legg's evidence were accepted, there can be no doubt that the Applicant struck Miss Mills a hard blow out of anger and then used unacceptable language to her. Mr Cutmore has not suggested that that conduct would warrant anything other than a summary dismissal. On the other hand he contends that if the Applicant's case were correct, it might warrant a warning, but certainly not a dismissal."

So those were the rival contentions and (as I say) it was, of course, for the employer in the first instance to decide where the employer thought that the truth lay.

Then Mr Cutmore, the Solicitor, went on as follows (according to the Tribunal):

"16 He says that the Respondents were in error in failing to follow the duty adumbrated in the well known case of British Home Stores Ltd v Burchell [1980] ICR 303, EAT -

(i) the Respondents genuinely believed that the Applicant was guilty of gross misconduct;

(ii) there were reasonable grounds which could entitle them to come to that view;

(iii) they had made adequate and reasonable enquiries into the facts of the case;

(iv) it was within the reasonable response of the reasonable employer to dismiss on those grounds.

17 He acknowledges point (i) has been satisfied [that is to say genuine belief] (as well as point (iv)), [that is to say the reaction was within the reasonable response of a reasonable employer] but he [the advocate for Mrs Barnett] asserts that there were no reasonable grounds which would entitle them to come to the view they did because they had not made adequate and reasonable enquiries."

And then the Tribunal say something which, if it was originally said by the Solicitor, is clearly the ground of their decision:

"18 It was their failure [the employers] to look at the position through the eyes of Miss Mills that has brought about a miscarriage of justice. No thought was given as to how to best approach her. If she was frightened of Mr Jenkin even if he was accompanied by a member of staff, why not go elsewhere? The most obvious choice would be a social worker, or perhaps her own sister, who was her next of kin? If they had, what would have been the result."

There is one quite obvious comment to make on that, apart from the fact that it was for the employers and not for the Tribunal to say how the task was to be accomplished. There would, on the face of it, be very strong reasons against approaching either of these ladies.

So far as the resident, Miss Mills, was concerned, she had very possibly suffered a frightening, unpleasant and humiliating experience, starting with the unfortunate accident in the living room and going on thereafter to the humiliating behaviour to which she was subjected, and she was an elderly, confused lady. One would have thought that, if she had already shown unwillingness to speak to Mr Jenkin, there would be excellent reasons against sending anybody else to interrogate her on the subject.

With regard to her sister, if the sister was not aware of the matter, but the employers were dealing with it, it would seem to be asking for trouble to ask the sister, thus giving unwelcome publicity to something which, on the face of it, was likely to lead to serious damage to the Appellant's reputation if it got about. The protection of their reputation was one of the most legitimate objects of course in having disciplinary proceedings at all, as well as the protection of their residents. But that is, at any rate, what fell from the Tribunal.

Then the Tribunal go on to say something which would certainly incline a person to be wise after the event. They say as follows:

"19 The sister, Mrs Winifred Damen aged 74, has made a statement for the purpose of these proceedings ... She paints a very different story from that as found by the Respondents. ..."

We will not read the lady's statement, but the fact is that, as anybody can see who looks at it, (page 41 of Exhibit R1) it is an artistic document (if I may put it like that). No person could make a statement like this unassisted by a Solicitor or other person accustomed to the ways of courts, and it is a statement in which she says that the alleged assault had not been mentioned to her; that she is very surprised by that; she thinks that her sister had a good relationship with Mrs Barnett and so forth.

That statement was not obtained in time for the employers to have any regard to it. It was obtained five days before the Industrial Tribunal's hearing, quite clearly for the purpose of being put in and suggesting that the employers had not done their job. The Tribunal go on, after citing from Mrs Damen's statement at some length:

"21 It seems to us that it would be essential to get as much evidence on what actually happened as is reasonable in the circumstances. It protects each side and is particularly important in the field where these parties are working. A fuller picture will emerge which will enable a more informed judgment to be obtained. This is especially so where it is one person's word against another."

They then comment on certain matters which they say, in the event, had no affect on their decision and conclude:

"26 At the end of the day, we are satisfied that the Respondents failed to carry out adequate investigation in a crucial area. If they had, they might have preferred the Applicant's evidence. In consequence we find that the dismissal was unfair."

Mr Emerson makes a number of points about that. He says it is unfortunate that the Tribunal failed to refer to section 57 subsection (3) of the Employment Protection (Consolidation) Act, in its amended form and certainly, one would have wished that they had done so. Section 57 is in well known terms, but coming to subsection (3):

"(3) Where the employer has fulfilled the requirements of subsection (1), [to show the reason for which the dismissal took place] then, [and there are various matters which do not concern us] the determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and that question shall be determined in accordance with equity and the substantial merits of the case.]"

So on these questions of whether the employer acted fairly or unfairly, there is no longer any burden of proof. The Industrial Tribunal is to look as an enquiring jury (so to speak) at all the circumstances, and it is potentially misleading to refer to the earlier cases when there was a burden on the employer, which has now been removed by Parliament, because they, of course, express things in the terms appropriate to the statute as it was at the time and Mr Emerson says, it is unfortunate that the Tribunal did not refer to the statute in its amended form.

He says that led them into the error which, he says, is the flaw in this entire decision. That, in effect, they substituted their own view for that of the employers. The duty of the Tribunal is not to say whether they would have dismissed or what facts they would have found. It is to say whether the employers acted within the range of options open to a reasonable and fair employer in the circumstances. The exact extent of their enquiries and, of course, the conclusions which they reach on them are matters for them. It is only if the enquiry is one which a reasonable employer would not have engaged in, because it is too short or too incomplete, or unfair in some other way, as for example if the employers refuse to hear an important witness who is tendered to them, or indeed refuse to hear the employee; refuse to let the employee know exactly what is alleged against him, or refuse to allow the employee to take advice from a friend or something of that sort, that the Tribunal would be well entitled to say, "That is not behaviour which any fair employer would engage in", what Mr Emerson says is that when you look at it, it is clear that the Tribunal were not looking to see whether the employers had behaved in one of the ways which would be open to fair-minded, reasonable employers in all the circumstances, but they were imposing their own views on that matter as if they were the employers.

Thus, for example, and this is perhaps the most important part of it:

"21 It seems to us [say the tribunal] that it would be essential to get as much evidence on what actually happened as is reasonable in the circumstances. ..."

But the employers had held an enquiry. At that enquiry, which was held very shortly after the incident on 25 July and the disciplinary hearing which followed on 29 July, they had heard Mrs Barnett; they had held the disciplinary hearing; they had interviewed Mrs Legg. Mrs Legg had said what she had to say in the presence of Mrs Barnett.

There is a record of the disciplinary hearing at page 6 of the Respondents' bundle of documents. When you look at it, it is clear that on paper (and I say this is only clear on paper) that Mrs Barnett was saying one thing and then another. According to the record she said, when Mr Jenkin, the Care Services Manager, read out the two allegations and asked Mrs Barnett to comment, that she did not hit Miss Mills; and this led her friend, her representative there, Miss Sarah Rawlings, to intervene and ask whether she could comment on behalf of Mrs Barnett and Miss Rawlings stated that Mrs Barnett had commented to her that she often "taps" residents to encourage them.

So this denial, apparently made by Mrs Barnett, was immediately qualified by her own representative and there were then admissions that there had been some physical striking, but it was of an innocent and not serious sort.

Mrs Legg repeated her story without varying it and, among other things, Mrs Legg repeated her story about how Mrs Barnett had told Mrs Frias-Robles, the local Manager, that Miss Mills had hit her across the face and knocked off her glasses. Is that simply an invention, or was Miss Mills indeed retaliating? The disciplinary enquiry went into this and matters of that sort were repeated frequently.

One asks oneself: "Why should not the employers, having looked into it with care, decide for themselves, having heard all this, whether they accepted what Mrs Legg said to them, or whether they thought, in view of what Mrs Barnett had said to them, that Mrs Legg was perhaps not telling the truth, or was mistaken, or was exaggerating?" There was plenty of material here, one would have thought, on which the employers could make up their minds. Should they have said to themselves, "Well we must go and talk to this lady's sister?". Of course, she was not there and was not alleged to have been there. Should they have said to themselves, "We will make further efforts to get something out of the old lady, Miss Mills, about all this?". Possibly they might have done, but is it really to be said that the employers were obliged to do that?

It seems to us that this Industrial Tribunal allowed themselves to be misled by the submission which was made to them. They made no reference to the amended form of section 57. They were referred to the case of Burchell and they then said that it was necessary for the most exhaustive enquiries to be made and clearly allowed themselves to be influenced by a statement which was made by Mrs Damen, not at the time of the enquiry by the employers or at the time of the appeal, but five days before their own hearing.

It seems to us that this Industrial Tribunal went astray in that way. They went beyond their duty of deciding whether the employers had behaved in the way which was open to them, one of the ways a fair employer could behave, and went on to say what, in effect, they thought was the way in which the employer should have behaved, basing themselves very much on the wisdom of hindsight, bolstered by this statement which was obtained so shortly before their own hearing.

In those circumstances, we think there has been an error of law by the Industrial Tribunal, and their conclusion cannot stand. If the Tribunal's decision has been vitiated, as we think it has been, by the mistake, then of course it is not our duty to form any conclusion about the matter and we say, subject to any further submissions made to us, that this case must be remitted to a Tribunal which must be differently constituted, so that the matter can be heard afresh.