United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR P CAPE (of Counsel) Wansbroughs Willey Hargrove 241 Glossop Road Sheffield S10 2GZ
For the Respondent	MR C CIUMEI (of Counsel) Director of Legal Services UNISON 1 Mabledon Place London WC1H 9AJ


 


JUDGE J HULL QC: This is an appeal to us by the Community Health Sheffield NHS Trust in respect of an incident at Middlewood Hospital, that is a hospital for people who are serious and long-term disadvantaged by mental illness and, no doubt, there are lots of special difficulties associated with that part of their task. The Respondent is their employee, Ms Glenys Rose. She is a lady in middle age. She is an enrolled nurse. She had worked at Middlewood Hospital since 1972 (and apparently, before that, intermittently) and she said her present employment began then.

There was a patient, who has been referred to as "PT", at the hospital. He had been there for many years; quite plainly, a difficult and dangerous man. He suffered from a grave illness of course. He had been in Broadmoor for substantial periods and, among many other things we have heard, he had assaulted a number of members of the staff and he had the unpleasant habit, apparently for indecent purposes, of lying around on the floor. All that, no doubt, is by no means unknown in these hospitals and we must bear in mind, in trying to look at the facts so far as we need to, that the task of nurses in hospitals like this and, no doubt, of doctors and other staff too, is an exacting one, calling for special qualities and experience and we certainly have no right whatever to judge their conduct from our own experience. That must be judged by those who know about these matters.

The incident which led to the proceedings with which we are concerned was this. On 1 November 1995 there was some minor disturbance. It might have been more serious. A patient had set fire to his bedding, the fire alarm went off, the Fire Brigade were called and the patient PT, after these matters had been attended to, or while they were being attended to, was lying on the floor, just beside the cashier. The cashier that day, a lady called Nazim Parvase, was either about to hand out cash or was engaged in that, and a number of patients were there and it appears that PT was there for that legitimate purpose, although he had no particular business to be lying on the floor.

What was alleged was that Ms Rose approached PT, as he was lying on the floor, and kicked him more than once, telling him to get up and move on, to get out of the way as he was lying in front of the fire doors, apparently. There was no doubt that she was quite entitled to ask or persuade a patient not to behave in this way and in particular on this occasion. There is no doubt that she had no business to kick him. She kicked him more than once. It was not a vicious assault in the sense of being sustained, or apparently intended to cause serious harm or anything of that sort, but she did kick him. It was not just a gentle tickle with her toe. This was seen by Mrs Parvase, who reported the incident.

The patient, who as I say was a dangerous and violent man, apparently did not respond violently to this assault, as it undoubtedly was, if Mrs Parvase was right, nor did he report any injury, nor apparently was any injury discovered. So it was an assault, but fortunately not one which had serious consequences. Mrs Parvase reported the incident and it was enquired into.

Ms Rose throughout protested her innocence. She had done no such thing. She had not assaulted the patient. It was, of course, therefore for the employers to inquire into the matter and then, as a result of their enquiries, to reach conclusions and to take such action as they thought right. There was an enquiry. It was held by a senior nurse, a Mrs Stojak. She was not merely a senior nurse, but a person in a senior managerial position, the Director of Specialist Mental Health and therefore, of course, she had the added advantage of knowing a great deal about nursing patients like this, as well as having managerial responsibilities. She, having heard the matter, felt obliged to accept what was said to her by Mrs Parvase, although it was not corroborated. Of course it did not have to be. She was therefore obliged to reject what was said to her by Ms Rose, because Ms Rose continued to deny that she had done any such thing. Mrs Stojak, having concluded that there was an assault by kicking the patient, a serious matter, clearly improper, clearly contrary to the recognised disciplinary rules of the hospital, decided to dismiss Ms Rose summarily and did so.

Ms Rose complained to the Industrial Tribunal. She asked for reinstatement. She categorically denied kicking. The Respondents put in their Answer, saying that she had been dismissed for gross misconduct. The Industrial Tribunal sat for two days at Sheffield under the chairmanship of Mr Williams, with two industrial members, on 13 May and 28 June 1996 and on 15 July 1996 they promulgated their decision. They said that Ms Rose had been unfairly dismissed. They said she was 50% to blame for what had occurred and, in due course, reduced her compensation. She had ceased to ask for reinstatement.

The Appeal by the hospital is against that finding of unfair dismissal and we have had the assistance of Counsel; to both gentlemen, Mr Cape and Mr Ciumei, we are extremely grateful for their analysis. We have to look at the decision of the Industrial Tribunal and see what was said. The criticism put forward by Mr Cape, on behalf of the hospital, was that this was a perverse decision, that it is clear that the Industrial Tribunal were substituting themselves for the employer and saying what they made of the matter, what they would have done. Furthermore, they took into account a number of quite irrelevant matters.

So we have to look at the decision of the Industrial Tribunal and read it fairly. We have been told, and we accept entirely, that the Court of Appeal has said that we are not entitled to go through it with a fine tooth-comb, to pick up any little blemish. What we have to do is to look at it fairly and sensibly and say, "Did this Tribunal, in fact, properly apply the law?". They are the sole judges of fact. We have no right to interfere with their findings of fact.

The Tribunal set out the matters to which I have referred in considerably more detail. They set out what Mrs Parvase had seen. She was called by the Hospital Trust and gave her evidence. It is small wonder that the Tribunal, having heard Mrs Parvase's evidence, thought it right to say what they thought of it, and they did. She said she had seen the Applicant kick PT several times, though not violently or with full force. They were more than a nudge. So that was what Mrs Parvase had told them and they set out the facts about the disciplinary hearing and they record (and this is absolutely essential to their decision) that there were no criticisms of the fairness of the procedure, the notice given of the hearing, the way the hearing was conducted, the presence of the union officer who was able to help Ms Rose and the way in which Mrs Stojak attended to the evidence, assisted as she was by another member of management.

Then they say, in paragraph 6:

"Throughout her interviews and at the hearings themselves the applicant [Ms Rose] emphatically denied touching PT with her feet. She did not and would not have done such a thing to a client, she said. She also argued that she could not have done it in any event because of back problems. Further, she would not have acted in that way because of PT's propensity to violence. Mrs Parvase was equally clear that Ms Rose had kicked PT."

Then the Tribunal come to the essential part of their decision, in paragraph 7:

"Mrs Stojak told the tribunal that she listened to what was said but believed Mrs Parvase. She was satisfied that Ms Rose, despite her protestations, had kicked PT more than once. With that being so she concluded that that was gross misconduct and decided to dismiss the applicant instantly. She never considered any other option whatsoever. She admitted this. The applicant appealed unsuccessfully."

And then they set out the submission that this was far too harsh a sanction. No reasonable employer would, or should, have meted it out, and the Applicant pressed on the Industrial Tribunal her long period of unblemished service which she said was not taken into account properly or at all.

Then the Tribunal say, again in a way which is not criticised, in paragraph 9:

"We have no doubt that Ms Rose was dismissed as she was because she was believed to have kicked PT whilst he was on the ground."

The Tribunal set out the repeated denials of Ms Rose. They set out section 57(3) of the Act of 1978 which then applied and they say, in paragraph 10:

"We have no doubt as to the reason for dismissal and can accept that in most normal circumstances it would be a sufficient reason in itself for dismissing an employee. The sub-section however goes further. We have to decide whether in treating the reason as being sufficient the respondent acted reasonably in all the circumstances and whether the respondent acted in accordance with equity and the substantial merits of the case. ... We are quite able to accept that the respondent had enough evidence to reasonably conclude that, contrary to the applicant's own assertions, she did indeed kick PT whilst he was on the floor. Mrs Stojak was perfectly entitled to come to this conclusion and believe Mrs Parvase, a clear and consistent witness with no axe to grind."

Now down to that point, there really is, and can be, no criticism of this Industrial Tribunal's approach to their duty. They go on to say:

"Having come to that conclusion she [Mrs Stojak] candidly acknowledged that her thoughts went no further. Having decided that Ms Rose had kicked PT, i.e. having come to that primary conclusion, it could only add up to gross misconduct and dismissal had to follow, almost as night follows day, as far as Mrs Stojak was concerned."

That was what Mrs Stojak told them. They had to decide whether that was fair, was that a reasonable way for the employer to carry on? They set out other material matters. They say:

" ... it was clear that Ms Rose, if she had kicked out, had done so in full view of everyone at a time when she was anxious to remove PT from his obstructive and potentially hazardous position in the corridor."

And they make a number of comments thereafter which are plainly indicative that they were forming their own views of the matter (I will come to those in a minute). First of all, to come to what seem to us to be the essential parts of their decision. They say this, in paragraph 11:

"Perhaps if Ms Rose had conceded that [her behaviour] to the respondent the respondent may have taken a different line and rationalised as to the particular circumstances but with the applicant having simply and categorically denied even touching the client with her feet the issue was viewed in a much starker light."

That is criticised by Mr Cape for the Authority. We think, on the contrary, this was a finding very favourable to the Authority. The Tribunal are fairly directing themselves about the effect that Ms Rose's denials must have had on the employer. They go on, in paragraphs 11 and 12:

"Once Mrs Stojak believed Mrs Parvase and disbelieved the applicant that was the end of it as far as she was concerned. If it happened it was gross misconduct and dismissal had to follow. Mrs Stojak made a comment which was, in our view, significant. As a nurse herself, no doubt used to upholding exacting standards of propriety, she found this one transgression to be enough in itself. She did, however, go on to say that 'as a manager' she could see that things were not necessarily quite so clear cut. Well, she was in this case acting in a managerial capacity. She was acting on her employer's behalf in determining the fate of someone who had served the respondent long and well over very many years without any disciplinary stain on her character. The applicant had denied the charge and had been found guilty. The decision was sent to her by letter. The respondent should, before deciding to dismiss her, have considered all the circumstances including the applicant's past record, background, timing of the incident, the severity or otherwise of the offence and consequences on everyone, not least the applicant herself. After all there had been a fire alert. Significantly the authority did not, as it was apparently required to do, inform the police or the nursing authorities nor did it examine PT properly, a man with a peptic ulcer, who ostensibly had been forcibly kicked in the stomach. The man himself had denied having been kicked when asked by the applicant's line manager though he had answered differently when first spoken to by Mrs Parvase.

The incident was certainly worthy of investigation and reprimand but the circumstances do not suggest that dismissal was inevitable. It may well be that had Mrs Stojak applied her mind to all the matters she should have taken into account she would have come to the same conclusion. The fact is that she never did apply her mind to them - she said so herself."

And they say, a little later, in paragraph 13:

"She did not look at the whole thing in the round. She did not consider the background, circumstances or Ms Rose's overall record."

Were they entitled to take that view? It was, in our belief, something which they were well entitled to do. They are required to look and see whether the employer has acted reasonably in all the circumstances. It is pressed upon us that this was an offence so serious that there could be, in effect, no value whatever in Mrs Stojak looking at matters of mitigation. That was not the view of the Industrial Tribunal. They regarded it as a serious matter, a matter which could well justify dismissal, but they expected the employer to look at all the circumstances and, we think, not merely were they entitled to take that view but, indeed, they were bound to. The employer is supposed to look at all the circumstances. It may be that the employer will say, "Well having regard to the seriousness of some behaviour, the suggestion of continued employment is out of the question, even by moving the person concerned; even a severe reprimand or a financial penalty, suspension without pay, or other matters of that sort, would not suffice. This employee has made it impossible for the employment to continue" - and if the employer has considered matters in that way, then that decision may well be quite beyond any criticism by the Industrial Tribunal, whether or not they would have reached such a decision themselves. But this Tribunal were looking at a matter which they were perfectly entitled to look at and, in our view, forming a conclusion which they were perfectly entitled to form.

The true burden of the attack here is first of all to say this was a perverse decision. We do not think, having regard to all that we have been told, that it was a perverse decision. The other ground of attack is that the Tribunal were substituting their own judgment for that of the employer and most certainly there are passages which can be read, and were read, with great force, by Mr Cape, as entitling him to say that. We look at those passages and read some of the most striking of them. They say:

"It was clear from what we heard, more importantly from what Mrs Parvase told us she saw and heard, that at worst this was the applicant using her feet and kicking PT in the manner perhaps of a poke or a prod in order to raise him to his feet albeit in a quite inappropriate manner."

It was not a question for them of what they made of it. It was a question, of course, for the employer, for Mrs Stojak. It was what Mrs Parvase had said to Mrs Stojak and what Mrs Stojak made of it that mattered in considering whether the employer had acted fairly or not. Then there is the passage I read. The Tribunal there were saying, the employers did not call the police, did not have PT medically examined and so on.

What business was that of the Industrial Tribunal, one asks? It was for the employer to assess these matters. There are further passages in paragraphs 12, 13 and 14. I will not read them all. They say in paragraph 13:

"We do not believe, in the particular circumstances of this case that what she did amounted to gross misconduct nor, we believe, would any reasonable employer given the particular circumstances of this case."

It does seem to us there that this Tribunal were getting muddled and we must look and see why they were muddled. The reason is quite clear, that they were trying two things at once. First of all, they were having to decide whether the employer had acted fairly or unfairly and there they had to look at the employer's behaviour and not what they would have made of what the employee had done, but they were also trying the question of the contribution which Ms Rose had made to her dismissal. That was very important too and, no doubt, for that purpose the employers had called Mrs Parvase and so, of course, the Tribunal had to say what they made of her evidence.

So having decided that the employer was not acting fairly, in the person of Mrs Stojak, they then had to go on and, in fairness and justice, and say, "What do we make of the circumstances? What would have happened if all these matters had been taken into consideration?". Well, they say, looking at the behaviour, as we now are entitled to, of the Applicant herself, she had misbehaved. She had no right to kick the patient. And they say, "So far as we are concerned, we do not think it came up to gross misconduct", but they say, of course, it was for the employer to make up its mind about this.

It seems to us that they have managed to mix up the two decisions which they had to reach. We have no doubt they correctly applied their minds in saying that the employer had not gone as far as fairness required in considering all the circumstances, but they then allowed their subsequent consideration of the question of contribution to get mixed up with that. We think that if we were to say that this rendered their decision invalid we should be doing exactly what the Court of Appeal has told us not to do, going through it with a fine tooth-comb and, so to speak, making the worst of it, pulling out the worst bits in it and saying that the Tribunal made errors of law and that they had not explained to the parties how the parties came, as the case might be, to succeed or partly to succeed, or not to succeed at all.

We think, in all the circumstances, we should uphold this decision. It is not put before us by Mr Ciumei as a perfect decision. We think (if we may use this expression) that if you look at it in a sensible and commonsense way, it was a decision which conveyed what the Tribunal found and showed that they were making legitimate and lawful findings, in all the circumstances of the case. It goes without saying that a different Tribunal might have reached different conclusions on either of the questions of fact with which they were confronted. That is not a matter for us at all. It is not up to us, of course, to say what conclusion we would have reached.

We are satisfied that this Tribunal were entitled to reach the conclusions which they did. The conclusions are not perverse and read in a sensible way their decision does not disclose any error of law. Therefore, the appeal falls to be dismissed.

That is the decision of us all.