United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR M TWOMEY (of Counsel) Messrs Russell & Co Solicitors 32 The Boulevard Crawley West Sussex RH10 1XP


 


MR JUSTICE KEENE: This is a preliminary hearing held so that the Appellant may show cause why this appeal should be allowed to proceed to a full hearing. What of course she is required to show is an arguable point of law which merits further consideration. It is an appeal from a decision of an industrial tribunal sitting at Brighton and dated 12 April 1996. That tribunal determined that the Appellant had not been unfairly dismissed.

The Appellant had been employed by the Respondents from April 1986 until 5 May 1994. She had worked for them part-time as a midwife at Crawley Hospital. She was dismissed by letter dated 4 May 1994. The Respondents admitted that they had summarily dismissed the Appellant, but argued that they were entitled to do so because of her conduct. The dismissal came about as the result of allegations concerning three women patients at the hospital known as Mrs Q, Mrs T and Mrs M.

On 3 April 1994 Mrs Q received a massive overdose of insulin causing acute hypoglycaemia. This was reported to Ms Marginson, the General Manager for Women and Child Care.

Two weeks later, on 17 April 1994, an incident occurred when another patient, Mrs T, delivered a still birth in the presence only of an inexperienced junior midwife. In essence, the Appellant should have been present at the time.

Then, on 19 April 1994, another instance was brought to the attention of Ms Marginson. It was suggested that the Appellant had failed properly to advise a patient known as Mrs M, regarding action necessary to control foetal distress and that the Appellant had then tried to cover up her mistake by falsifying records. As a result of that the Appellant was suspended from duty.

An investigatory meeting was arranged, which took place on 28 April 1994, at which the Appellant was accompanied by an officer of the Royal College of Midwives. According to the industrial tribunal's findings of fact, at that meeting the Appellant and her representative had a full opportunity to explain what had occurred in respect of each of the incidents. Ms Marginson, who conducted that investigatory hearing, had before her various witness statements and she made the Appellant aware of the contents of those statements. Nonetheless, Ms Marginson concluded that there were grounds for disciplinary action against the Appellant and therefore a disciplinary hearing was arranged for 3 May 1994, to be conducted by the Director of Nursing, Mrs Veronica James.

Prior to that disciplinary hearing, Ms Marginson wrote to the Appellant, confirming the result of her investigation and summarising the allegations in respect of the incidents which would be considered at the disciplinary hearing. The Appellant was, indeed, sent copies of the relevant witness statements. It was also confirmed to her that any of the three incidents might be regarded as gross misconduct, which could give grounds for dismissal, and the Appellant was sent a copy of the disciplinary procedure.

At the disciplinary hearing on 3 May the Appellant and her representative, according to the industrial tribunal's findings, were given a full opportunity of stating her case. Mrs James concluded as follows:

In the case of Mrs Q, she was a diabetic patient and it was judged appropriate to give an intravenous dose of insulin to her. The syringe pump was incorrectly set by the Appellant and was administering the insulin at a rate 100 times faster than intended. While it was accepted that the Appellant had not acted intentionally she had clearly made a very serious mistake, which should not have occurred in the first place and, even if such a mistake had occurred, it should have been noticed by the Appellant when the equipment was periodically checked during the administration of the insulin. The overdose had been extremely serious and could have compromised the health of Mrs Q and her unborn baby.

So far as the case of Mrs T was concerned, she had been admitted for delivery but previous medical examinations had revealed that her child was almost certainly dead. As the midwife who admitted the patient the Appellant was responsible for her care. It was concluded that she had made a serious error of professional judgement in failing to remain with the patient.

In relation to the patient Mrs M, there were signs of foetal distress and in such circumstances it should be a routine action for the midwife to arrange for the patient to lie on her side to see if this improved the situation. The Appellant, it was concluded, failed to follow this routine yet important procedure. To try to cover up her failure to properly advise and care for Mrs M, the Appellant inserted a false entry in the chronological document known as a partogram, to try to show that she had advised Mrs M to lie on her side, but that Mrs M had refused to do so.

At the end of the disciplinary hearing, Mrs James adjourned the matter to consider her decision. She telephoned Mrs M, who confirmed that she had no recollection of being asked to move onto her side and that, if asked, she would not have refused to do so.

The conclusion of Mrs James was that the incident involving Mrs Q amounted to gross misconduct for which the only appropriate remedy was summary dismissal and that the incident involving Mrs M amounted to an indefensible breach of professional standards, constituting gross misconduct, which also justified summary dismissal. Having concluded that there were two acts of serious gross misconduct, which each alone would justify summary dismissal, Mrs James concluded that the only appropriate course of action was summary dismissal. In respect of Mrs T, she concluded that there was an error of professional judgement but, by itself, that did not justify dismissal.

On 4 May 1994 Mrs James wrote to the Appellant confirming the dismissal. In that letter the Appellant was advised that she had a right of appeal to the Trust Board, but in the event the Appellant did not exercise that right of appeal.

The industrial tribunal concluded as follows.

"8. The Tribunal was satisfied that the investigation carried out by Ms Marginson, including the investigative meeting of 28 April, had been carefully and fairly conducted in all respects and that it was reasonable for Ms Marginson to conclude that it was appropriate to organise a disciplinary hearing. The disciplinary hearing had then been conducted by Ms James and in every respect that hearing had been conducted fairly. Given the serious nature of the mistakes made by the Applicant the conclusion by Ms James that the only appropriate course of action was to summarily dismiss the Applicant was one that could be reached by a reasonable employer and it was difficult to envisage that any employer could have come to a different conclusion. The Tribunal are therefore satisfied that there was nothing unfair about the decision to dismiss the Applicant, or anything unfair about the way that the decision was taken, and that the Applicant's claim should therefore be dismissed."

That decision is now challenged on what are essentially two grounds: first of all, that of perversity of the tribunal's conclusions and secondly, on the basis of there being an error of law in failing to find procedural unfairness in the investigation of the treatment of Mrs M.

So far as perversity is concerned, it is submitted by Mr Twomey that first of all the Industrial Tribunal proceeded on a fundamentally erroneous factual basis in that it stated that the Appellant incorrectly set the syringe pump and that she had admitted that. Secondly, reference is made by the Appellant to paragraph 42 of the United Kingdom Central Council for Nursing, Midwifery and Health Visiting guidelines, which refers to the need to distinguish between cases where the error was the result of reckless practice and was concealed, from those which resulted from serious pressure of work and where there was immediate, honest disclosure in the patient's interest.

It was submitted that there was evidence that the Appellant did say that the patient was feeling funny, (that is to say not well) and that the Appellant had admitted her error when it was discovered that morning. Mr Twomey submits that those factors were not taken into account by the disciplinary hearing or by the industrial tribunal. He also emphasises that she did stop the pump at one stage, before the error was discovered, because the patient was saying that she felt ill and he contends that the disciplinary tribunal did not take into account her degree of negligence and did not expressly find whether she had been reckless.

In respect of Mrs M, that allegation was, as we have indicated, one essentially of the falsification of the records in a dishonest manner. Here, the submission made by the Appellant, relates to the question not so much of perversity as to procedural unfairness and we will come to that at a later stage in the course of this judgment.

The law, so far as dismissal for reasons of conduct is concerned, is well established. It is not for the industrial tribunal to decide whether misconduct has occurred and whether it was gross or not. Its task is to consider whether the employer has acted as a reasonable employer might act. In cases of misconduct it must ask itself whether the employer believed that the misconduct occurred, and had reasonable grounds for such a belief and that the employer had carried out as much investigation into the matter as was reasonable in the circumstances. That has been set out in, amongst other cases, the well known decision in British Home Stores Ltd v Burchell [1978] IRLR 379. Here, in the present case there was no challenge to the genuineness of the employer's belief as to the misconduct, but it is said in effect that it was perverse of the industrial tribunal to conclude that there were reasonable grounds for that belief and that there had been a reasonable investigation. We have referred already to the specific points relied upon by Mr Twomey in the course of argument.

So far as the submission that there was a fundamental factual error made both by the disciplinary tribunal and by the industrial tribunal is concerned, the position here was this. There clearly was an overdose in respect of Mrs Q and a massive one at that. There were really only two possible explanations for that occurring. First, there was the possibility of an error by the Appellant in setting the syringe pump at too high a level. The second possible explanation was that the pump itself was faulty. There was no evidence whatsoever of the latter, but there was evidence before the disciplinary hearing from Staff Midwife Durante that, when she came on duty, the pump was set at 50 millimetres per hour when it should be set at 0.5 ml per hour. In other words, there was clear evidence that it had been set at 100 times the appropriate level. Moreover, it was admitted at the disciplinary hearing, on behalf of this Appellant, that she had twice made errors in setting the pump. There was also evidence from a Dr Popovic that the Appellant had admitted that to her. Indeed, that is one matter which Mr Twomey has himself relied on this morning.

In those circumstances, we can find no fundamental factual error upon which either the disciplinary tribunal proceeded or the industrial tribunal. It was perfectly clear what was being admitted on behalf of the Appellant at the disciplinary hearing by her representative and there was no apparent attempt by her to suggest otherwise in the course of that hearing.

Mr Twomey's second point about the case of Mrs Q in relation to perversity is that these various factors, to which we have already referred earlier in this judgment, were not taken into account by the disciplinary tribunal. The letter of 4 May 1994 in our judgment does make it clear that the disciplinary tribunal in the shape of Mrs James took all these matters into account. It expressly refers to the Appellant's admission of having made the errors. It clearly had in mind the UK Central Council guidelines, because it expressly found that there was no pressure of work upon the Appellant in this case leading to the error, and that is a relevant factor under the guidelines.

The scale of error was huge from the figures quoted in the letter of 4 May and that was clearly taken into account by the disciplinary tribunal. It is right that the tribunal does not expressly use the word "reckless" in that particular letter but, in our judgment, the dismissing body does not have to use that word as such, so long as it clear that it has applied the appropriate test. What Mrs James was clearly saying was that there were here gross errors in the setting of the syringe pump, and those errors were not subsequently noticed by the Appellant when she could have carried out her periodic checks.

The UK Central Council guidelines do not, to our mind, present simply two stark black and white choices for the employer in a case like this, but indicate the two ends of the spectrum between a range of different degrees of error which may occur on the part of an employee within the Health Service.

We can find nothing wrong in the way in which the disciplinary tribunal approached this matter, or in the way in which the industrial tribunal approached it. It seems to us that there was ample evidence for the tribunal to have come to the conclusion which it did in the case of Mrs Q and that in no sense can the decision at which the industrial tribunal arrived at in her case be categorised as one to which no reasonable tribunal, properly directing itself, could have come.

In those circumstances there can be nothing in the point of perversity.

We turn then to the allegation of procedural unfairness. This, as we have indicated, is said to lie in the fact that Mrs James did not put to the Appellant the information obtained from Mrs M that she had no recollection of being asked to move onto her side and that if asked, she would not have refused to do so.

It has been made clear by this appeal tribunal and by the Court of Appeal that the burden upon an employer in a situation such as this is to act fairly, but that it is not required to act with the full procedural rigour which would be expected of a court of law. As was said by Lord Denning in Ward v Bradford Corporation [1971] 70 Local Government Reports page 27 at page 35:

"We must not force these disciplinary bodies to become entrammelled in the nets of legal procedure. So long as they act fairly and justly, their decision should be supported".

That passage was endorsed and followed by this tribunal in the case of Rowe v Radio Rentals Ltd [1982] IRLR 177. The authorities make it clear that an Appellant, facing such charges, must know the case which he or she has to meet and the decision maker must hear the Appellant's case. The Appellant must have a proper opportunity to make out his or her case. In our judgment that happened in respect of Mrs Begg. No useful purpose would have been served by putting Mrs M's subsequent comment to the Appellant. There was patently a degree of conflict between the two of them. The Appellant had already said that she had asked Mrs M to turn on her side and that Mrs M had refused. That would presumably have remained her position had Mrs M's statement been put to her.

What the disciplinary tribunal did have before it was, first of all, a crucial piece of evidence in the shape of the retrospective attempt to insert an entry into the records without any dating of that retrospective attempt to show that it was done retrospectively. That in itself could properly give rise, so long as the Appellant was heard on it, to a conclusion that there had been dishonesty on the part of the Appellant. Secondly, the tribunal heard Mrs Begg herself and was entitled to take into account, not only the evidence she gave but her demeanour while she was giving that evidence. It is quite clear that the Appellant was not believed on her evidence as to why she had inserted that particular entry retrospectively.

In these circumstances we can see no procedural unfairness in the way in which the employer approached this matter, either at the stage of the disciplinary hearing or throughout. Nor do we see that there was anything in those aspects of the matter which prevented the industrial tribunal from arriving properly at the conclusion which it reached.

It must follow that there is no arguable point of law disclosed in this appeal and the appeal will therefore be dismissed at this preliminary stage.