United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR SUTTON (of Counsel) Messrs Beachcroft Stanleys Solicitors 20 Furnival Street London EC4A 1BN
For the Respondent	MISS BEVITT (of Counsel) Francis Taylor Building Temple London WC4Y 7BY


 


JUDGE PUGSLEY: At the conclusion of our hearing, we announced that it was our intention to allow this appeal and direct that the case be remitted to a differently constituted tribunal, However, we decided to give our full reasons for that judgment on a later occasion.

On 7th, 8th, 9th and 12th December 1994 the Industrial Tribunal heard the applicant's case, and in a reserved decision, promulgated on 4th April 1995, the tribunal found that applicant had been discriminated against on grounds of race and had been constructively dismissed and such dismissal was unfair.

The factual background centres around events which occurred on the night of 11th/12th November 1992. The applicant was assigned to be in charge of Faith Ward. There were, according to the findings made at paragraph 14(2) of the tribunal's decision, some 25 beds on that ward of which 24 were occupied. The applicant had not worked on the ward since April 1990. Of the 24 patients, 14 were cardiac cases; seven asthmatic cases; five with diabetes; one with eczema; and one with abdominal pains. Six of the patients were in terminal condition and one died during that night. The only other nurse assigned was a Miss Linda Muirhead who was State Enrolled Nurse.

Certain matters are not in dispute. One of the patients was a Mrs M, who suffered from a diabetic condition. Dr Easty was on duty and she had written up details of medication to be administered. Both the applicant and Nurse Muirhead read Dr Easty's notes as indicating that Mrs M was to be given 120 units of Insulatard. It is common ground that 120 units of Insulatard is an abnormally high level dosage, and that this fact was known to the applicant. While this medication was being administered Dr Easty was on a ward round and enquired as to the amount of the dosage, Dr Easty said words to the effect that she had meant 20 units and the applicant withdrew the syringe.

Although this matter was to form the basis of the disciplinary action against the applicant, it is pertinent to note that it was not the sole matter. These other matters are mentioned only at paragraph 15(3) of the decision in which it is stated:

"(3)The other allegations made against the Applicant (ie. the allegations apart from the Insulatard administration and the related charges of failure to report and the alteration of records) would not by themselves had resulted in a disciplinary hearing against the Applicant."

The comprehensive nature of the allegations made against the applicant is set out in a letter to her of 3rd December 1992 and is to be found at page 151 of the tribunal bundle. Apart from the allegations surrounding the attempt to administer this dose of Insulatard, there was another allegation concerning the recording of the patient's glucose reading and a morning dose of insulin. In addition, there was a claim that another patient on the same ward claimed that she had not received her morning diuretic injection, although it had been signed that it had been given. It was alleged that the applicant had admitted that it had not been given despite her earlier assertions that it had.

After the disciplinary hearing on 23rd December 1992 the Director of Administration and Operations, Mr Boakes, wrote to the applicant stating that in his view she had been guilty of gross professional misconduct. He stated that whereas normally he would have no option but to dismiss her from the post of Night Sister and report the matter to the UKCC, in view of the mitigating evidence put forward he had decided not to terminate her employment, but to give her a final written warning which would be placed on her personal file for a period of 12 months and to demote her from her post of a Grade G Night Sister to an E Grade staff post working within the night pool with no provision for the protection of earnings. The full terms of this letter are set out at page 208 of the bundle of documents.

Thereafter it would seem from paragraph 7 of the decision that the applicant did not return to work on the due date of 17th January 1993. She went on sick leave and at no stage returned to work at the hospital. She sent in various sick notes although there was an issue as to whether her husband had notified the hospital initially as to her inability to return to work due to sickness.

This is a case in which the appellant makes a number of criticisms as to the findings of fact upon which the decision is based. Without at this stage dealing with those matters it suffices to say that the applicant wrote a letter indicating that she was resigning due to ill-health and a later letter saying she was resigning due to her employer's actions.

The tribunal found that both the race discrimination complaint and the unfair dismissal complaint were established and they set out their findings in paragraph 16 and 17. In paragraph 16 the tribunal stated as follows:

"16. The Race Discrimination complaints.

It is for the Applicant to prove her case of discrimination on a balance of probabilities. The relevant guidance in the approach to race discrimination complaints are to be found in King v Great Britain - China Centre [1991] ICR 516, CA and NWTRHA v Noone [1988] ICR 813, CA. The Tribunal finds that there was less favourable treatment of the Applicant. No other nurse had been disciplined in similar circumstances. The disciplinary sanctions were hard and outside the range of sanction in the Respondent's disciplinary procedures. The Further and Better Particulars produced by the Applicant ('A' pages 27 to 44) shows that white nurses employed by the Respondents have been treated far more leniently in the past. Dr Easty who is white was treated far more leniently that the Applicant in relation to the altering of the drug chart. There was less favourable treatment also in relation to Mr Boakes decision on 18 February 1993 to initiate the disciplinary investigation. That decision was part and parcel of the immediate past history. After careful consideration, weighing up all the factors in the balance, the Tribunal draws the inference that the less favourable treatment was on the grounds that the Applicant's race. It is the Tribunal's unanimous decision that the Respondent discriminated against the Applicant on 22 December 1992 and 18 February 1993 contrary to section 1(1)(a) and 4(2)(c) of the Race Relations Act 1976. She was subject to a detriment in relation to the Respondent's acts leading upto and including the dismissal and the dismissal itself were acts of racial discrimination.

17. The unfair dismissal complaint.

The Respondents did not carry out any investigation between 18 January 1992 and 18 February 1993. Had they done so, the Applicant might well have been able to show that she had followed the procedures as she understood them or that there were mitigating factors for her failure to do so. The Applicant did not consider that there were such failures. There is no dispute that she had been genuinely ill. That factor was not given sufficient consideration. She should have been given the opportunity to rebut the allegations. Furthermore, the Applicant discovered around the same time that her salary would be reduced by a greater sum than she had been led to believe would be the case. Her union representative expressed his dismay and called upon Mr Boakes to reconsider. She was entitled to form the view that her position had been undermined by the Respondent's actions. The letter of 18 February 1993 was the last straw. The Respondent by their treatment of the Applicant, viewed against the background of the disciplinary hearings, the demotion in grade and punitive reduction in salary which were outside the disciplinary procedures, had broken the duty of mutual trust and confidence in the employment relationship between the Applicant and the Respondent. The less favourable and unfair treatment entitled the Applicant to consider that her situation was untenable and that she had no option but to resign. It is the Tribunal's unanimous decision that the Respondent constructively dismissed the Applicant within the meaning of section 55(2)(c) of the Employment Protection (Consolidation) Act 1978, as amended and the said dismissal was unfair within the meaning of section 57 of the 1978 Act."

In the grounds of appeal the appellants set out a number of occasion in which they allege that the tribunal made findings of fact which were unsupported by the evidence. We are extremely grateful to the highly professional way in which Counsel for the respondent has analysed these matters and has on a number of occasions accepted that the contention is well-founded, though on certain matters she understandably seeks to place a gloss on the finding. Without dealing with all these matters in a totally comprehensive way, the position may be summarised as follows:

(a) Paragraph 1.1 of the grounds of appeal recites that at paragraph 14(1) of the decision the Industrial Tribunal found that the respondent has "blameless disciplinary record" and that she had been subject to no findings of misconduct. The evidence was that the respondent had been disciplined for misconduct in 1985 in relation to a drug administration error, including unauthorised alterations to drug records, features common to the respondent's misconduct in the instant proceedings. It is contended that the respondent when giving her evidence had initially stated that the finding of misconduct had been reversed upon appeal, but subsequently when called upon to produce the relevant documentation had conceded that this was untrue and that the sanction only resulted on appeal, the substantive finding of misconduct remaining undisturbed.

The respondent concedes that that finding that Mrs Kumi had a "blameless disciplinary record" was unsupported by any of the evidence before the tribunal and was not accurate. However, it was contended that Mrs Kumi could be treated as a person with a clean disciplinary record in that the previous incident was long "spent".

(b) Ground 1.2. In paragraph 15(2) of the decision, the Industrial Tribunal found that the appellant failed to carry out a sufficient or adequate investigation of the respondent's claim that she had spoken to a male person in the belief that he was a doctor and that such person had told her to administer the dosage of Insulatard as prescribed. The appellants point out that the tribunal failed to have any or any sufficient regard to the evidence there was that the applicant herself had at one stage identified the doctor to whom she spoke as Dr Furlong. The respondent points out that there was an issue as to this. It is right to say there is no finding of the fact of the tribunal as to the evidence there was that the applicant had in fact purported to identify someone as having authorised the giving of that large amount of Insulatard.

(c) Ground 1.3. At paragraph 15(4) of the decision, the Industrial Tribunal found that there was no evidence to show that the in similar circumstances the appellant had previously taken any disciplinary action against any member of the nursing staff.

It is contended that in making such a finding, the Industrial Tribunal failed to have any or any sufficient regard to the evidence of the appellant's chief nurse, Mr Colin Boakes, that on previous occasions when a nurse had been found to have altered the signed record of another nurse, the sanction had been one of summary dismissal, or to the evidence of both Mr Boakes and Sister Fortune that they had not previously encountered a catalogue of drug errors comparable with those revealed in the instant case.

The respondent to the appeal concedes that there was evidence from Mr Boakes that on previous occasions when a nurse had been found to have altered a record she had been dismissed. It is also accepted that Miss McMillan and Sister Fortune gave evidence that they had not previously encountered a comparable catalogue of drug errors. However, the point is made that there was evidence that in dealing with other drug errors the Trust had not taken disciplinary action.

(d) Ground 1.4. In paragraph 15(5) of the decision, the Industrial Tribunal found that the appellant failed to give sufficient consideration to the following "mitigating factors":-

(i) that the duty doctors and Nurse Muirhead knew of the error;

(ii) that the Sister Chaston, when eventually informed of the drugs error by the respondent, did not immediately report the matter to her superior;

(iii) that the ward was busy.

The appellant contends that the Industrial Tribunal failed to give sufficient regard to the fact that none of the above mentioned fact was relevant to the issue whether misconduct had occurred, nor was such contention advanced by either party during the course of the hearing.

Further, the respondent herself conceded during her evidence that she had committed misconduct in connection with the events of 11th and 12th November 1992, both as regards to drugs administration and the amendment of another nurse's signed records. The appellants therefore contend that in the circumstances, there was no evidence to support the finding by the Industrial Tribunal.

The respondent concede that the three mitigating factors identified in paragraph 15(4) were not relevant to the issue whether misconduct had occurred, and that Mrs Kumi had conceded that she had committed misconduct by amending another nurse's records. She points out however that such finding was relevant to the finding in paragraph 15(8) that the Trust failed to give sufficient consideration to the mitigating factor.

(e) Ground 1.5. At paragraph 15(5) of the decision, the Industrial Tribunal found that Mr Colin Boakes failed to consider whether the delay in reporting the drugs error had an "innocent or sinister explanation". If the effect of such finding is that Mr Boakes failed to inquire whether such delay was excusable, such a finding is unsupported by any evidence before the Industrial Tribunal or is, in the alternative, perverse.

It is argued that the evidence before the Industrial Tribunal included, in particular the notes of the appellant's disciplinary hearing, showed that detailed consideration was given to the opportunities available to the respondent for reporting the drugs error to her superior. Furthermore, no contrary contention was advanced by the respondent at the hearing before the Industrial Tribunal.

The respondent accepts that detailed consideration was given at Mrs Kumi's disciplinary hearing to the opportunities available to her for reporting the drugs error to a superior and that the Industrial Tribunal's finding that Mr Boakes failed to consider whether delay in reporting had an innocent or sinister explanation is unsupported by any evidence, or in the alternative, is perverse. However, it is submitted that that finding was not relied upon by the Industrial Tribunal and gives rise to no misdirection on the law.

We do not propose to go through all the other instances in which it is contended that the findings of fact made by the tribunal were rested on no evidential basis. It suffices to say that this a rare case in which in our view it is clear that the decision as to the tribunal rests on various findings of fact that the respondent accepts the tribunal were not entitled to make on the evidence before them. However, the respondent argue that the fact that the tribunal has made findings of fact which were unsupported by the evidence or are perverse, does not mean that the tribunal misdirected itself in law and the appeal should not therefore be allowed.

The skeleton arguments of both parties recognise that the Employment Appeal Tribunal's jurisdiction is limited to correcting errors of law and that so long as the Industrial Tribunal has directed itself properly and fairly on the facts and that there is not an error in law, their decision should not be overturned. Moreover, repeated decisions have deprecated the practice of subjecting tribunal decisions to minute analysis or assuming by not expressly mentioning some point, a tribunal has necessarily overlooked it.

In Meek v City of Birmingham District Council [1987] IRLR 250 Bingham LJ said at 251, at paragraph 8:

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which had led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises; and it is highly desirable that the decision of an Industrial Tribunal should give guidance both to the employers and trade unions as to practices which should or should not be adopted."

The Industrial Tribunal's reasoning for finding race discrimination is set out in paragraph in 16 of their decision and has already been set out in full. Evidence of disparate treatment can be cogent and, at times, conclusive evidence of racial discrimination. Yet, in this case, it is conceded that many of the primary facts upon which the tribunal seeks to draw that inference are not supported by the evidence before the tribunal. For example, it is accepted by the respondent that the Industrial Tribunal were not entitled to compare Dr Easty's treatment with that of Mrs Kumi for the purpose of the 1976 Act. The finding that no other nurse had been disciplined in similar circumstances is, it is conceded, unsupported by evidence since it is accepted by the respondent that there was evidence on a previous occasion when a nurse had found to have altered a record she had been dismissed.

Although we totally endorse those submissions made to us concerning the limitation of this tribunal's power to intervene, we consider it is imperative that in cases of discrimination a tribunal should find its primary facts with sufficient clarity and comprehensiveness for the parties to see why an inference of discrimination has been drawn. We do not consider that this decision meets the requirements set out by Bingham LJ in the Meek case.

The tribunal had the benefit of written submissions by Mr Sutton on the issue of constructive dismissal before it reached its decision. Those submissions can be summarised thus:

(a) The applicant resigned from her employment on grounds of ill-health; although dated 1st February 1993, her letter was received by the respondent on or about 26th February 1993 and treated as a valid and effective notice of termination.

(b) Subsequently by a letter erroneously dated 22nd February 1993, but written on the applicant's own evidence after she had received Anne O'Neill's letter dated 26th February 1993, and received by the respondent on 9th March 1993, the applicant for the first time indicates her resignation was inspired by "continuous harassment and victimisation". It was contended on behalf of the employer that having resigned on clear grounds unassociated with any alleged repudiation of contract on the part of the employer, it was not open to the applicant as a matter of law to contend that she was constructively dismissed and the well-known case of Walker v Josiah Wedgwood & Sons Ltd [1978] IRLR 105 EAT was cited for that proposition.

At paragraph 2(9) of the decision the Industrial Tribunal found that the applicant's letter, erroneously dated 1st February 1993, was sent on either 22nd or 27th February 1993. This, it is said, is a finding of fact which was contrary to the evidence and unchallenged by the applicant at the hearing.

It is conceded on behalf of the applicant, the respondent to this appeal, that the finding of fact that Mrs Kumi's letter dated 1st February 1993 may have been sent on 27th February 1993 was contrary to the evidence, unchallenged by Mrs Kumi or otherwise, that Miss O'Neill's letter dated 26th February 1993 was written after receipt and an acknowledgement of Mrs Kumi's letter dated 1st February 1993.

The whole basis upon which the matter was being put by the employer at the tribunal was defeated by a finding of fact by the tribunal which is wholly unsupported by the evidence and which was not the subject of any challenge at the Industrial Tribunal. Moreover, it is accepted by the respondent that the letter of 18th February 1993 did not "charge" the respondent as suggested by paragraph 15(10) of the decision.

The decision just does not deal with the contention that the applicant having resigned on grounds of ill-health could not at a later stage contend that she had been constructively dismissed due to continuous harassment and victimisation.

We are not suggesting that necessarily this argument would succeed. It would depend on the tribunal considering all the issues in the case, but least we consider that it having been raised, it is a matter which should at least feature in the decision of the Industrial Tribunal.

We have come to the view that there are so many primary issues of fact which it is conceded were made either without an evidential basis or in defiance of such evidence as there was, that this case is one that should be remitted to a differently constituted tribunal in order to determine the matter afresh. We are well aware it is a case of some antiquity and we have reached the decision we have with a heavy heart. But in our view the decision of this Industrial Tribunal fell short of the necessary minimum which is required to allow the parties to know why they have won or lost, and for a higher court to see whether there is any misdirection as to law. We do not consider it as a case where we should substitute our own decision because so much would depend on the primary findings of fact.