United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR G ALDOUS (of Counsel) Messrs Radcliffes Solicitors 5 Great College Street Westminster London SW1P 3SJ
For the Respondent	MR J CAVANAGH (of Counsel) Messrs T V Edwards Solicitors Park House 29 Mile End Road London E1 4PT


 


MR JUSTICE KIRKWOOD: The Riverside Mental Health Trust appeals against decisions by an Industrial Tribunal both as to liability and as to remedy on a complaint made to it by Miss Crawley.

The decision as to remedy was reached after the Industrial Tribunal, sitting at London (South), had heard the case on 7th and 8th May 1997. The extended reasons for their decision were sent to the parties on 3rd June 1997. The Industrial Tribunal decided that Miss Crawley had been unfairly dismissed. The decision as to remedy was reached after a further hearing on 2nd June 1997, with the reasons given on 16th June 1997. By its decision the Industrial Tribunal ordered Miss Crawley's reinstatement.

In the result we have reached a decision, by a majority, to allow the appeal as to liability. Having indicated that to Counsel, the appeal on the second question was not argued before us. The order as to reinstatement obviously cannot stand.

The appellant Health Trust provides mental health services in London. It runs the Gordon Hospital.

Miss Crawley held a senior nursing post in charge of the short-term admissions ward at that Hospital.

The following facts were found by the Industrial Tribunal:

"6. On 26 February 1996, a patient J was on the ward. She was an informal patient, that is she was not controlled by the provisions of the Mental Health Act 1959 restricting her movement or restricting her freedom of consent or refusal to the administration of drugs and any other treatment. She had a history of schizophrenic behaviour and on that morning she began to run up and down the corridors and even to the front door of the hospital shouting and threatening to put her head through a window. This appeared to be an empty threat, since the windows were unbreakable. The alarm was pressed which resulted in some seven staff being summoned from that ward and other wards and they managed to take the patient back into her room. Miss Crawley who was in charge at the time, took the view that J needed medication to calm her down. J had been prescribed some tablets to be administered at the discretion of the Nurse and Miss Crawley offered her some of the prescribed tablets. She refused these and after pressing her for some time, Miss Crawley said that if she did not take the drug orally, then she would be injected with a drug which would have a similar and quicker effect. J, as was her right, protested and she reminded Miss Crawley that she was an informal patient and could not be injected without her consent. Another Nurse, Mr Proctor, was present and he questioned whether J could be injected without her consent. Miss Crawley said that she had common law powers to inject in certain situations. Common law as explained by the Applicant seems to amount to this: that it would be a defence to an action for assault by a patient if a Nurse or a Medical Practitioner could show that the circumstances were such that it was justifiable to administer the drug to prevent damage to a patient or indeed to a third party.

7. However, in the circumstances in this hospital, we accept that it would not be right for a Nurse to do that by herself there and then, because at that hospital was a Consultant Doctor, a Senior House Officer and many other people who could be consulted before a Nurse took the extreme step of administering an unprescribed drug. An ampoule of the drug was taken from the fridge and was put onto a tray. Miss Crawley went to the corridor and saw a Doctor, Dr McCann. She called him in and she asked him to prescribe the drug which she would inject. He declined, demanding a further explanation as to why the drug was needed. Miss Crawley then left the room to find the Consultant for the Ward, Dr Holsten. She found him, they discussed matters together, Dr Holsten returned and between them they persuaded J to take the tablets voluntarily."

The Industrial Tribunal there refer to events on 26th February 1996. It was, in fact, on Friday, 29th February 1996 that the events occurred.

Those events led to a number of disciplinary charges being made against Miss Crawley which in due course came to be reduced to two. They were:

(1) On Friday, 29th February 1996 you threatened a patient who refused to take prescribed oral medication with an unprescribed intra muscular injection, stating that you could do this under common law.

(2) You were involved in drawing up an unprescribed intra muscular injection.

It was at all times the position of the Trust, in relation to the first of those charges, that the threat Miss Crawley made was one that, at the time she made it, she had in mind to carry out.

The disciplinary hearing on those charges was heard by Mr Murphy, Service Director, on 5th and 21st June 1996. Mr Murphy heard a good deal of evidence and detailed notes were taken of it. He found the charges to be established and he made findings to that effect; and findings of a wider nature relevant to dismiss.

Miss Crawley appealed and her appeal was heard on 1st November 1996. The appeal hearing upheld the dismissal though noted that there had been a great deal of contradictory evidence regarding the actual drawing up of the syringe of medication, but that that was not material to the fundamental issue.

Miss Crawley applied to the Industrial Tribunal. In the light of what the appeal panel had said, the Trust did not rely before the Industrial Tribunal upon the second of the two charges, namely the involvement in drawing up an unprescribed intra muscular injection.

The Industrial Tribunal heard oral evidence from Mr Murphy but made no findings about that at all. It heard none of the witnesses to the events of 29th February 1996 (those who had given evidence to Mr Murphy) except for Miss Crawley. It made no findings on her evidence either. If any of the evidence that the Industrial Tribunal heard weighed with it in making its decision, it gave no indication to that in its extended reasons. So we can only proceed on the basis that it did not.

The Industrial Tribunal reminded itself of the provisions of s.98 of the Employment Rights Act 1996 and of the decision in British Homes Stores v Burchell [1978] IRLR 379. Having quoted from that case the Industrial Tribunal said:

"3. It was agreed by the parties that the second of those factors was the one we had to consider namely, that the employer should show that he had in his mind reasonable grounds upon which to sustain his belief in the Applicant's misconduct."

It is implicit in that, and in the extended reasons as a whole, that the employer did establish the fact of its belief and that it did believe it. What was in issue before the Industrial Tribunal, and solely in issue, was whether the employer had in its mind reasonable grounds upon which to sustain that belief.

In deciding the question, the Industrial Tribunal made clear in its extended reasons that it examined closely the notes of the evidence that was given to Mr Murphy. From that we have said, and what appears on the face of the extended reasons, it is clear to the majority of us that we must approach this appeal on the basis that the Industrial Tribunal founded its decision on the reading and understanding of those notes and that alone. Although we were told that both Mr Murphy and Miss Crawley, in their evidence to the Industrial Tribunal, were taken through those notes of evidence, there is nothing in the extended reasons at all to show that any decisive matter emerged. The decision of the Industrial Tribunal was in these terms:

"19. We examined very carefully the record of the Hearing before Mr Murphy. We looked particularly at the evidence of Mr Proctor and Mr Moore and we looked particularly at all the answers which the Applicant had given and we have come to the conclusion that there were no reasonable grounds upon which Mr Murphy could have concluded that what was said was a threat. We have further come to the conclusion that the actions of the Applicant and indeed answers to questions, indicated that she would not have administered the drug without the authority of a Doctor. She said as much when questioned by Mr Murphy. Moreover, Mr Proctor observed that when she went out of the room, she was going to seek the authority of a Doctor and in those circumstances we find it unreasonable for Mr Murphy to conclude that uninterrupted that she would have administered that drug. She did not in so many terms say to the patient "I will inject you" she said "unless you take these tablets , then you will be injected". That is not a threat that she herself would and we find that it is not justifiable to draw the conclusion that uninterrupted, she would have administered the drug.

20. ... It cannot be that it was there as evidence that she was going to go ahead and do it. In those circumstances we find that this dismissal is unfair."

The grounds upon which the appellant challenges the decision of the Industrial Tribunal are that a careful reading, as a whole, of the notes of the evidence that Mr Murphy heard shows that there was ample evidence before him upon which he, if so minded, could reasonably and properly make the material findings that he did. Consequently, the employer clearly had in his mind reasonable grounds to sustain its belief.

Accordingly, Mr Aldous for the appellant, submitted that the Industrial Tribunal had fallen into the classic error of attempting to determine for themselves whether Miss Crawley had threatened to inject the patient with an unprescribed unauthorised intra muscular injection against her consent and without lawful reasons and excuse, rather than deciding whether the appellant, by Mr Murphy, had reasonable grounds for holding such a belief.

The primary submission of Mr Cavanagh, for the respondent, was that the finding of an Industrial Tribunal cannot be overturned simply on the basis that the Employment Appeal Tribunal would have made a different finding; that the Employment Appeal Tribunal can only overturn such a finding if it is so unreasonable that no reasonable tribunal, properly directing itself in law, could have reached it. Furthermore, a perversity argument cannot be sustained in the absence of the Chairman's Notes of Evidence relating to all the material facts.

Mr Cavanagh helpfully referred us to Stewart v Cleveland Guest Engineering Ltd [1994] IRLR 440 and in particular to the passage in the judgment of Mummery J (P) at paragraph 33:

"This Tribunal should only interfere with the decision of the Industrial Tribunal where the conclusion of that Tribunal on the evidence before it is 'irrational', 'offends reason', 'is certainly wrong' or 'is plainly wrong' or ' is not a permissible option' or 'is fundamentally wrong' or 'is outrageous' or 'makes absolutely no sense' or 'flies in the face of properly informed logic'. ... The result is that it is rare or exceptional for an appeal to succeed on the grounds of perversity. The reason why it is a heavy burden to discharge is that it had been recognised by those with wide experience and practical wisdom that there are many factual situations arising in the field of industrial relations, including sex discrimination, in which different conclusions may be reached by different tribunals, all within the realm of reasonableness."

The Majority Decision

The majority recognises that it is an extremely rare thing for an appellate court to interfere with the finding of fact by the court or tribunal of fact. That is because the findings of fact almost always follow from the hearing of evidence during which the tribunal sees and hears the witnesses as to the facts and has the opportunity of evaluating the witnesses, what they say and the way say it, and of contrasting and weighing the one witness with the other, that is not available to the appellate court. Reliance upon written notes of evidence is a poor substitute indeed for actually hearing and seeing the witnesses.

The case before us, however, is unusual in that the Industrial Tribunal did not rely on any such opportunity or advantage to reach its decision. Indeed it was Mr Murphy who had the advantage of hearing and seeing the relevant witnesses. The Industrial Tribunal had no advantage whatever over this Employment Appeal Tribunal. What the Industrial Tribunal did and what we have been asked to do is to look at the employer's notes of evidence to see whether therein is reference to evidence upon which Mr Murphy could, if he accepted it, reasonably have come to the decision he reached. Even then, if our interpretation of the notes were in any sense an equivocal or borderline one, the conclusion of the Industrial Tribunal should plainly prevail. But if our view is clearly and unequivocally that the Industrial Tribunal was wrong, then we can and should so hold.

There is perhaps a clue to the importance to be attached to hearing and seeing witnesses in a short passage from Mr Murphy's letter of decision:

"... your manner and tone were such that when you told the patient of her choice following her refusal to take oral medication that was perceived as a threat by both the patient and other staff that witnessed it."

In its extended reasons at paragraph 19 the Industrial Tribunal rely on two particular pieces of the evidence that it said had been before Mr Murphy. The second of those was:

"Mr Proctor observed that when she went out of the room, she was going to seek the authority of a Doctor."

Both we, and Counsel, have looked in vain for that passage in the employer's notes of evidence. The nearest to it, indeed, comes from Mr Proctor's evidence. Mr Proctor described how Miss Crawley told the patient that if she did not take her oral medication then under common law she would be given IM medication. Miss Crawley and a junior nurse left the room. A SHO arrived and asked what was going on. Miss Crawley and the junior nurse were in the Clinic Room drawing up the medication. The SHO went to the Clinic Room and asked what was going on. Mr Proctor asked Miss Crawley what was the management plan for the patient. Miss Crawley said that she was going to give the patient IM medication under common law, Mr Proctor asked Miss Crawley if the patient was informal and she said that she was. Mr Proctor asked if the medication had been prescribed. Miss Crawley said that the IM medication was being given under common law and that that was how things were managed on that ward and that it was not Mr Proctor's ward so that he did not have to approve. Mr Proctor described some further exchange and then:

"Clare Crawley then left the room in an angry manner saying that she was going to find Doctor Hallstrom in an irritated way."

That is the nearest we can find to a passage supporting what the Industrial Tribunal said. If that is the passage, then it is quite plain beyond debate that the Industrial Tribunal read or understood it completely out of its proper context.

That is, however, a detail although, to our mind, a significant one.

Mr Aldous took us through relevant parts of the notes of evidence heard by Mr Murphy in a fashion that not only highlighted particular answers but also placed them in the context of the evidence as a whole. That was a proper and necessary approach. Nor was it selective. It included, for example, the question to the very junior nurse, Mr Moore, whether Miss Crawley had threatened the patient and his answer "No".

Mr Cavanagh also took us through the notes of evidence, rather highlighting particular questions and answers that, he submitted, justified the conclusion that the Industrial Tribunal reached.

In addition to the very considerable help given to us by both Counsel, the majority have read and reread for themselves the notes of the evidence before Mr Murphy. It is not for this appeal tribunal - any more that it was for the Industrial Tribunal - to decide what happened on the ward on 29th February 1996. Nor is it for this tribunal to form its own view as to whether Mr Murphy reached the right conclusion. The question is whether there was evidence before Mr Murphy upon which he could reasonably held the belief that in fact he held.

It would be tedious and unnecessary to write into this judgment all the passages from the notes to which Counsel took us. But having considered the notes in their entirety and having heard argument about them, the majority are at a loss to understand how, on the material identified by it as relevant to its decision, this or any reasonable Industrial Tribunal could have reached the conclusion that this Industrial Tribunal reached; unless it be that, as Mr Aldous submitted, it approached the matter in a way that was, in law, the wrong approach.

The Minority View

In reaching their decision the Industrial Tribunal properly reminded themselves of the provisions of s.98 of the Employment Rights Act 1996; the well established principles in the case of British Homes Stores v Burchell [1978] IRLR 379.

In paragraph 19 of their decision the Industrial Tribunal reached clear findings of fact. It is regrettable that they did not set out in greater detail the reasons for their findings. But it is clear from the notes of evidence that were before them that this was a decision they were entitled to reach.

The Industrial Tribunal also heard evidence from both Miss Crawley and Mr Murphy and although they do not make specific mention of this evidence it must have played a part in the decision they reached.

In these circumstances, the Employment Appeal Tribunal should not overturn the Industrial Tribunal's finding, and especially as the Employment Appeal Tribunal did not have the Chairman's Notes of Evidence before it, as these would be essential in coming to an understanding of the Industrial Tribunal's decision.

In support of this view, Mr Cavanagh drew the attention of the Employment Appeal Tribunal to two cases Piggott Brothers v Jackson [1992] ICR 86 (CA) at pages 92A-93E and Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440 (EAT) at paragraphs 33 and 34.

In my view, the Employment Appeal Tribunal should not have overturned the decision without at least having the Chairman's notes before it.

The majority prevails so that, for the reasons given, the appeal is allowed.

We heard argument as to the consequences of that. The Trust must, in our judgment, be taken to have satisfied the second, as well as the first and third limbs of the Burchell test as identified by the Industrial Tribunal.

The question that then arises is whether the finding of unfair dismissal must necessarily be set aside. The issue that remains is whether, nevertheless, the decision to dismiss was, in the circumstances, outside the band of reasonable responses of an employer.

Mr Aldous submitted that, in the circumstances, such a response was plainly within that band. He may well be right. But we are conscious that the Industrial Tribunal did not reach the point of making findings or a decision as to that, because of its preliminary decision, although the question was raised before it on behalf of Miss Crawley. We are also conscious that we do not have the evidence before us, or any finding by the Industrial Tribunal as to such evidence. We conclude that the case must be remitted to an Industrial Tribunal to decide the question whether the dismissal was within the band of reasonable responses. That should not come before the same Industrial Tribunal but a differently constituted one.