United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR W BROWN (of Counsel) North Lewisham Law Centre Ltd 28 Deptford High Street London SE8 4AF


 


MR JUSTICE MORISON (PRESIDENT): The purpose of this hearing is to determine whether the appellant has shown an arguable point of law in a Notice of Appeal filed on her behalf against a unanimous decision of an Industrial Tribunal held at London (South). The tribunal's decision runs to some eight typescript pages and was sent to the parties on 11th May 1998 following a two day hearing.

Ms Springer was employed as a residential care officer by the respondents, the Harding Housing Association, since 10th April 1991. That Association provides accommodation in three homes for the deaf. She is of Afro-Caribbean ethnic origin. One of the residents who was identified by the Industrial Tribunal as a young man who they called PD, was not only deaf but lame and also to subject epileptic fits, although he was not mentally retarded. The applicant was his key worker and as such had prepared for him a care plan. Part of the care that he was afforded as a resident was the taking of medication to control or contain his epilepsy. For one reason or another, he ran short of those tablets. It is Ms Springer's case that she then took steps to procure tablets for him from another source. However, it would appear that those tablets did not arrive and the boy had an epileptic fit probably on the night of 22nd/23rd July 1997. Ms Springer was on duty on 23rd July on the morning shift. It would have been her responsibility to have woken the boy up and she left her shift at 3.30 p.m. on that day being replaced by a male care worker. He did not try and make contact with the boy until 6 p.m.. When he did find him he was in distress with dried blood on his face. He told the care worker that he had had epileptic fits on the Tuesday night which had caused him to fall and strike his face and breaking his nose. He said he was very frightened and very self-conscious and therefore had hid himself in his room all day until he had been discovered. He apparently told Mr White at the time that no one else had on checked on him.

The respondents, very naturally, were concerned about this and decided to institute an inquiry. Ms Springer's case was that she had indeed visited him at 7.30 a.m. on the Wednesday morning, 23rd July, when she found him to be well. She also said that she had seen him around in the house on a number of times during the day when he was also well, and that therefore, his injury must have occurred after she had gone off duty and that the responsibility for what happened, if anybody's, was that of the male nurse who took over from her.

The person in charge of the particular house also met with Ms Springer and the named boy and during the course of that interview it appears that certain things may have been said which tended to suggest that Ms Springer was right in her recollection. However, the tribunal found that the house matron did not report the contents of that interview to the investigating officer, nor did the applicant herself or her representative volunteer any such information to the disciplinary hearing.

Following the initial enquiries there were two charges brought against Ms Springer. Firstly relating to the medication; and the second one described as the next and more serious charge, that she failed to make contact with the boy at 8 o'clock in the morning as his care plan required which resulted in him not being found until 6 o'clock with serious injuries requiring hospital treatment.

Ms Springer was told of these charges by letter. A disciplinary hearing was convened on 18th August 1997, when Ms Springer exercised her right to be accompanied by her trade union representative. The disciplinary panel comprised the Chief Executive and the Property Services Director. The management case was presented. The male care worker gave evidence. The boy had written a letter which was read out. Ms Springer also gave her explanations to the panel. It was her case still that she had in fact checked the boy at 7.30 a.m. and had seen him around during the day, and that she had last seen him very shortly before she left her duty, when he was unharmed. The tribunal went on:

"25. Crucial to any finding by the Respondent was the evidence of PD [the boy]."

The people conducting the investigation were not happy to base their findings on his letter. That may be that his letter showed some confusion about dates. Having regard his disabilities, and the fact that he was profoundly deaf, they recognised that communication with him would be difficult but would have to take place with 'signing'. They wanted expert opinion also as to whether his memory would have been impaired as a result of the fits which he unquestionably had had. But the medical advice was that the fits had been caused by a failure to take the epilepsy tablets and that his memory would have been affected in the minute or so before the fits and that at the most for an hour afterwards. On that basis, no doubt the investigating panel saw no reason to believe that the boy's evidence would not be of assistance. They interviewed the boy using an interpreter or signer, and the boy confirmed the case advanced by Mr White and advanced on behalf of the Company, namely that Ms Springer did not see him at any time on the Wednesday; that she failed to wake him up in morning; that she habitually failed to do so when she was on duty; that although he could not recall the exact time of his fits, it was dark at the time, and that he did not leave his room at anytime during that day until he was found by the male nurse, no doubt because he was self-conscious about the injury which he had sustained. He confirmed that he had taken no tablets for three days by that Wednesday.

The employers were faced with a conflict. They chose to believe what the boy had said and to disbelieve what the applicant had said. Therefore they came to the conclusion that she had been guilty of conduct justifying dismissal and gross misconduct on the basis that she had committed a serious breach of duty and had not been truthful about it.

The Industrial Tribunal in relation to the unfair dismissal and wrongful dismissal allegations, said this:

"29. On balance, we accepted the facts as related by Mr Stanley and Mr Fox. We accept that the investigation was thorough and that it was within their discretion not to call PD to the hearing given his disabilities. Faced with the denial by the Applicant of PD's letter they took reasonable steps to interview him in the presence of an interpreter.

30. We are further satisfied that the facts they found were sufficient to justify a finding of gross misconduct and dismissal without notice. We therefore dismiss those applications."

The first point which was taken on behalf of the appellant by Mr Brown, in an argument which was fairly and ably presented to us, was that the Industrial Tribunal have failed to deal with a critical part of the submissions which had been made to them, namely that the examination of the boy by the investigating panel, taking place as it did without her or her representative being present, rendered the dismissal unfair, particularly when she had expressed the wish that the boy should be asked certain questions. She says that she should have effectively been allowed to cross examine or at least have the questions answered. He relied upon a passage in Harvey Volume 1 page 1515D, but we are bound to say that it does not seem to us that that passage sets out any legal principle. It is more a question of what is fair in the particular circumstances in each case.

It seems to us that it would be unfair to criticise the tribunal for not having dealt with this more fully than they did. This was a difficult case for the employers to deal with. The boy himself could be described as relatively severely disabled. He is not mentally disabled, but because of his epilepsy was kept at a place where perhaps he was not properly to be regarded as a natural resident. He was seen on the day of the incident itself by Mr White and the day after, and had obviously made a number of different statements, including his rather confused letter. In those circumstances, having regard to the sensitivities of the issues which had to be raised, we cannot say that the Industrial Tribunal has erred in law in its conclusion that it was reasonable to interview the boy in the presence of an interpreter, but without a cross-examination environment. That must have been a matter which the Industrial Tribunal had to weigh, because as Mr Brown told us, and we can well understand, it formed an important part of his submissions to the tribunal to say that the dismissal was unfair.

In the second submission, Mr Brown said that the respondents had effectively failed to make proper enquiries because they omitted to interview the house matron or the care home manager, as she is called, Claudia Cadette, and had failed to find out from her what the outcome was of her investigations with PD and the applicant, even though they knew or, must have known, before and during the disciplinary hearing, that she had made her own enquiries.

Again, it seems to us, that whilst there is force in the submission, the Industrial Tribunal have plainly considered that matter and have dealt with it in paragraph 29 when they accepted that the investigation was thorough. They also observed that nobody referred to Claudia Cadette's "investigation" and they found as a fact that in fact the employer did not know what she had discovered from PD at the date of dismissal. It seems to us that it is going too far to say that their conclusion, in relation to that matter, was perverse, although we can well understand that it would have featured as a major plank in the arguments advanced on her behalf at the hearing.

The final ground was one which we can deal with quickly, which was that the tribunal were effectively perverse or substituting its own judgment, or erred in law in some way, in concluding that even if they were entitled to say that she had broken her duty by not looking after the boy properly while in her case, that that was gross misconduct.

We disagree with that. It seems to us that knowing as she did that there had been a problem with the tablets, it was essential that she monitored him in a continuing way as was required by her own care programme. If she had failed to do those duties, then it seems to us that every reasonable employer would have been entitled to categorise that as gross misconduct. They can only operate a responsible home on the basis that their care workers are to be fully trusted both to carry out their duties and to honestly account for what has occurred when an investigation is carried out.

We understand the anxiety which the applicant feels in this case. It is always difficult when there is a serious allegation made against an applicant. We are sure that she still is confident of her own position. The fact is that all we can do is to interfere with the tribunal's decision if they have erred in law. We are satisfied in this case that they have not. I hope that Ms Springer will understand that we are not ourselves making any judgment about her capacity or capability as a care worker.