United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR CARLOS DABEZIES (Representative) Citizens Advice Bureau 140 Ladbroke Grove London W10 5ND
For the Respondents	MR DAMIEN BROWN (of Counsel) EEF Broadway House Tothill Street London SW1H 9NQ


 


MR JUSTICE KIRKWOOD: This is an employee's appeal against the dismissal, by an extremely experienced Industrial Tribunal at London (North), of her complaint of unfair dismissal. The decision was registered on 18 January 1996.

The Appellant was up until her dismissal employed as a domestic at St Mary's Hospital. She had been there since February 1986. Originally her employer was Mediclean Ltd. In the Spring of 1994 the contract was taken over by the Respondent, Taylorplan Services Ltd. The Appellant's employment was regarded as continuous.

On 10 May 1994 Dr Poznanski heard what sounded like a loud shouting match going on between a domestic, the Appellant, as it turned out, and an elderly patient on the ward. He went to investigate. He found it was the Appellant shouting at the patient who was not responding to her. It had been going on for over a minute. The doctor told the Appellant not to shout at the patient. The Appellant let off a further salvo of abuse at the patient. The doctor again told her to stop. This time she did so and walked away. A few minutes later the Appellant went into the doctor's room, where Dr Poznanski was, and started berating him. The thrust, this time, of what she had to say was apparently to do with her own health.

This matter came to the notice of Ms Njie, the Respondent's Deputy Contract Manager, and from there to Mrs Pursglove, who had ultimate management responsibility for the Appellant. Meetings were held on 16 May 1994, which included the Appellant, and she was suspended on full pay. A disciplinary hearing was held on 1 June 1994. The Appellant was represented at it by a union representative. The Appellant was dismissed summarily for gross misconduct. She wished to appeal in accordance with the established disciplinary procedure and in that regard the Industrial Tribunal has recorded what happened:

"17 ... The Respondent's disciplinary procedure provided the Applicant with a right of appeal against the decision to dismiss her, which she exercised. The Applicant's then representatives called on the Respondents to make available at the hearing of the appeal the witnesses who had furnished statements. Unfortunately, by the time that could be done the Applicant had been admitted to hospital and she then had to travel abroad to deal with some domestic business. The result was that the appeal procedure invoked by the Applicant was not exhausted at any time prior to the hearing of this case.

18 Mr Dabezies submitted that the Respondents had acted unreasonably in denying the Applicant a right of appeal, but we reject that submission. We are satisfied that the Respondents at no time denied the Applicant a right of appeal, but rather took the view that they should not pursue the appeal until a hearing date had been assigned for these proceedings. In all the circumstances of the case the conclusion which we have reached is that the Respondent's conduct in relation to the appeal either alone or in combination with any other factors in the case, did not render the dismissal unfair. ..."

We note, incidentally, that the Appellant made her application to the Industrial Tribunal on 12 August 1994.

The Industrial Tribunal's findings, beyond what I have already mentioned, will sufficiently appear as I deal with the grounds of appeal, but it is sufficient to say that no point is taken before us as to the absence of a concluded appeal procedure.

The Appellant has been represented in this appeal before us and we have listened patiently to sustained and detailed submissions. We have individually and collectively been at pains to search for any valid ground to interfere with the decision of the Industrial Tribunal. We cannot interfere, however, unless we are satisfied that the Industrial Tribunal made a material error of law or reached a decision of fact which no reasonable Tribunal could have reached, on the evidence before it, or on any reasonable inference to be drawn from that evidence.

The first ground of appeal is that the Industrial Tribunal erred in law in finding that the employer had adequately considered alternatives to dismissal. We were referred to passages in the Industrial Tribunal's Extended Reasons. Firstly, the passage from the evidence of Ms Njie, as to the course of the disciplinary meeting, when Liza Pursglove told the Appellant that she had no choice but to dismiss her without notice, due to her attitude towards the patient and the medical staff involved, which was classed as gross misconduct.

The second passage to which we were referred is this:

"11 ... Mr Dabezies also submitted that the evidence establishes that the Respondents failed to consider whether to give the Applicant a final warning, as an alternative to dismissal. Mr Dabezies based that submission on the evidence given by Mr Njie in the course of cross-examination that when Mrs Pursglove discussed the matter with her after hearing the evidence, she made no mention of giving the Applicant a final written warning."

Thirdly, this passage:

"12 ... In relation to the question of whether a written warning was considered, we note that Ms Njie gave evidence that Mrs Pursglove expressed the view that dismissal was the only appropriate sanction. We think it is implicit in that evidence that Mrs Pursglove must have considered the alternatives to dismissal, which would, of course, have been well known to her."

The argument is that the Industrial Tribunal had difficulty over any finding on this aspect, since Mrs Pursglove was not available to attend its hearing and did not do so, nor is there any contemporary note of the disciplinary hearing. Accordingly, it submitted, that there is no evidence of adequate consideration.

We are satisfied that the degree of consideration given by an employer to the range of possible disciplinary sanctions available to it, must depend on the particular circumstances of each case. If, in his judgment, the misconduct established is of a very grave kind, the employer cannot reasonably be expected to ponder the range of lesser sanctions. It all goes to the question of reasonableness. If, as plainly and understandably happened here, the employer took an extremely serious view of the Appellant's conduct, its consideration of the range of possible outcomes may have been more cursory than would have been reasonable in a less serious case. It is a matter of commonsense.

The Industrial Tribunal found that the employer was perfectly entitled, within the band of reasonableness, to reach the conclusion it did reach and the absence of evidence of consideration of lesser outcomes is not significant in the circumstances of this case. We reject the argument that the Industrial Tribunal was in error.

The second ground of appeal is that the Industrial Tribunal erred in law in finding that the employer was entitled to treat the Appellant's conduct as gross misconduct. The argument is that there was a single act and that act was not "such as to show the servant to have disregarded the essential conditions of the contract of service".

Furthermore, it said, any disobedience by the Appellant was to the doctor, who had no contractual authority over her, and therefore does not count. Reference was made to the decision of the Court of Appeal in Law v London Chronicle Ltd [1959] I WLR 698. That is an old wrongful dismissal case on very different facts from the one before us. The Industrial Tribunal did not explore the implied conditions of the Appellant's contract. This was, however, conduct manifestly to the actual or potential detriment of an elderly and inform patient in hospital.

The subsidiary point on this ground of appeal is that conduct of the type carried out by the Appellant is nowhere to be found in the employer's disciplinary procedure. In that procedure there is set out, by way of example, the classification of offences that may lead to one or other disciplinary sanction and those range from dismissal, on the first occasion, to a verbal warning on the first occasion and dismissal on the fourth. The types of offence are put into four categories. Examples are given of offences in each category. They are in Category 1, Category 2, Category 3 and Category 4. Having set out examples, the procedure continues with these words:

"The offences listed above are merely examples and are not intended to be an exhaustive list and each case will be decided on its merits. "

The Industrial Tribunal dealt with the argument on behalf of the Appellant in this fashion:

"13 Mr Dabezies' most powerful submission was, perhaps, that the Respondents were not reasonably entitled to regard the Applicant's conduct as constituting gross misconduct. In support of that submission Mr Dabezies referred to two disciplinary procedures, both of which may have been of relevance. The first is the disciplinary procedure which governed the Applicant's employment before the Respondents became her employers. The second disciplinary procedure is the procedure which has been adopted by the Respondents. Without referring to either procedure in detail, it is sufficient to say that neither of them deals specifically with conduct of this kind. Mr Dabezies submitted that the complaints against the Applicant ought not to have been treated as gross misconduct, particularly having regard to the Applicant's length of service and her medical condition.

14 It might be thought that the action taken by the Respondents against the Applicant was harsh and, indeed, we have considerable sympathy for her. That, however, is not the issue before the Tribunal, and we have come to the conclusion that, in all the circumstances of the case, the Respondents were entitled to treat the Applicant's misconduct as amounting to gross misconduct. The Applicant shouted at a patient for a period in excess of a minute. We take the view that that behaviour on the part of the Applicant manifested a serious loss of control. We also have borne in mind that the victim was a vulnerable person, namely an elderly and infirm patient on a medical ward. It is also clear from Dr Poznanski's statement that the Applicant's conduct involved an element of disobedience to a direct instruction given by a doctor on a ward and it is also apparent from Dr Poznanski's statement that after a short interval the Applicant went to the doctor and remonstrated with him. Finally, we have borne in mind that, on any view of the evidence, there were no grounds for believing that a similar incident would not occur again in the future.

15 Although each case of misconduct must be considered on its own facts, the conclusion which we have reached in this particular case is that the Respondents were entitled to treat this misconduct as a case of gross misconduct, that is, conduct which was repudiatory of the obligations in the Applicant's contract of employment in a fundamental respect. However, if the Respondents intend to provide services in hospitals, they may wish to consider adapting their disciplinary procedure to deal specifically with the sort of problems and disciplinary issues which may arise in this particular context."

What is said to us on behalf of the Appellant is that the Industrial Tribunal erred in law in not looking at the disciplinary procedures to find the nearest type of conduct referred to therein, so as to see whether this case fell by analogy into one category or another. Mr Dabezies particularly stressed on the Appellant's behalf that there is an example of an offence in the category under Section 2: Rudeness to Customers and that, he says, is the closest analogy. In reality, says Mr Dabezies what happened here was that the Appellant was rude to a customer and rudeness to customers is described in the Disciplinary Procedures as industrial misconduct meriting, on the first occasion, a written warning.

We unanimously reject that argument. The task of the Industrial Tribunal was to consider whether, in all the circumstances of this particular case, this employer was entitled to regard this conduct, by this Appellant, in the ward on 10 May 1994, as gross misconduct. That is what it did and we are unable to find any error in its approach.

The third ground of appeal is that the Industrial Tribunal erred in finding that the employer was entitled to disregard the Appellant's medical condition, or possible medical condition, in determining whether her conduct amounted to gross misconduct. They should, it is said, have investigated this possible mitigating factor and their failure to do so was a fundamental procedural error. The Industrial Tribunal's approach on this aspect is set out in their Extended Reasons from which I quote.

"11 The next criticism advanced by Mr Dabezies is that the Respondents failed to take into account certain material matters which a reasonable employer would have taken into consideration. The undisputed evidence is that the Applicant was suffering from fibroids and, indeed, later she needed surgery to correct that condition. According to the statement made by Ms Njie, the Respondents paid no regard to that matter on the basis that it was open to the Applicant to take sick leave if she needed to do so. Mr Dabezies also submitted that the evidence establishes that the Respondents failed to consider whether to give the Applicant a final warning, as an alternative to dismissal. ..."

I have dealt with the rest of that part of the finding.

In rejecting this submission the Industrial Tribunal said:

"12 ... It is not in dispute that it was open to the Applicant to take sick leave if she needed to do so and it was also not in dispute that the Applicant had done so on previous occasions. In our view, in those circumstances, the Respondents were entitled to take the view that the Applicant's medical condition did not excuse her misconduct, and was therefore not relevant."

Mr Dabezies then referred us to a general practitioner's sick notes of 16 and 20 May 1994 and to an Accident and Emergency report of 28 May 1994, all of which tend to show that the Appellant had a distressing complaint. But again, it is a question of what is reasonable in all the circumstances. Both the disciplinary hearing and the Industrial Tribunal considered the relevance of this material. It is impossible, in our judgment, to hold that the decision of the Industrial Tribunal on this aspect was perverse as Mr Dabezies has contended.

The fourth ground of appeal depends on an alleged discrepancy in the evidence. It is said that the disciplinary hearing was informed, not only by the contemporary report of Dr Poznanski, but also by a report from the patient. The complaint to us is that the Appellant was not shown the patient's complaint and had no chance to deal with it at the disciplinary hearing. There is in fact no evidence that a report from the patient was before that hearing.

The submission is based on two matters. First, that in response to a request for further and better particulars by the Industrial Tribunal, the employer's Personnel Manager, wrote somewhat equivocally, as we think, in these terms:

" ... please note that the act of misconduct which was the reason for the Applicant's dismissal was:

'Shouting at an infirm patient in response to the patient's request witnessed by a doctor and ratified by the patient. Both of these people issued statements'."

Secondly, it said, that a statement was indeed produced at the Industrial Tribunal. That document is in fact, in appearance, a scrappily written diary note for two days, 24 and 25 May 1994 that have no relevance to any dates that are material in this case.

Furthermore, and in any event, the core allegation to the disciplinary hearing was that of Dr Poznanski and his account of events on the ward on 10 May 1994 and was not challenged. That the Appellant behaved as described is not in issue. The matters the Appellant relied on at the disciplinary hearing and at the Industrial Tribunal (and before us) went to her medical condition as explaining that behaviour. Counsel for the Respondent rightly described this ground of appeal as "a red herring".

We have reached the firm and unanimous conclusion that this appeal is without merit and it is accordingly dismissed.