United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MR NICHOLAS BOOTH (of Counsel) Messrs Hempsons Solicitors Clarendon House 9 Victoria Avenue Harrogate HG1 1DY
For the Respondent	THE RESPONDENT NEITHER PRESENT NOR REPRESENTED


 


JUDGE BYRT QC: This is an appeal from a decision of the Industrial Tribunal sitting in Leeds. That decision was promulgated on 8th July 1997 and by that decision the tribunal unanimously held that the employee, Mr Armstrong, had been unfairly dismissed. It is against that decision that the employers appeal.

The facts are as follows. Mr Armstrong was employed by the appellants as an auxiliary nurse for a period of some seven or eight years up until the date of his dismissal on 13th November 1996. He worked on what is known as Ward 1 of the Castleford & Normanton District Hospital. That was a ward for the elderly suffering from dementia and who were mentally infirm. Vulnerable members of the community one might say.

On 4th July 1996, Mr Armstrong, himself, reported a patient, identified in the extended reasons as NP, as suffering from a laceration inside the mouth and a large swelling on the left side of the face. The patient was seen by the appropriate doctors at the hospital and it was decided that she should be sent to the accident and emergency hospital at the Pontefract General Infirmary. There were no staff witnesses to that particular incident. The only person who claimed to know what happened was another patient, identified as HP.

On 4th July, she, having been near to the patient NP at about the time she would have sustained her injuries, was asked as to whether she knew what had happened. She told Staff Nurse Huby that NP had not fallen and no one had hit her.

On 7th July she told two nursing auxiliaries that on 4th July Mr Armstrong had forced NP to drink when she had been reluctant to do so, and had put his hands on her face. This allegation involving Mr Armstrong was then reported to senior management, and an enquiry was set up straightaway conducted by Mr Senior and a Bobby Booth.

As I understand it they were both in a managerial position at the Castleford & Normanton District Hospital. The result of their speedy and, I think one might say, somewhat cursory enquiry, was that they concluded that it was not possible to say how the patient NP had sustained the marks on her face and body.

Having reached their conclusion, events took a turn when on 13th July relatives of the patient NP contacted the hospital and made complaints to the effect that they had received an anonymous call on 10th July indicating that a male member of Ward 1 staff had caused the injuries to NP.

There was a meeting between the relatives and Mr Senior, accompanied by Ruth Unwin. As a result of what they were told on that occasion, the Area Manager South, Mr Cronin, got involved and he ordered a fully fledged enquiry into the circumstances of what happened. He appointed Mr Senior to spearhead that enquiry, assisted by Joanne Waterhouse, who was an assistant manager at the hospital.

During that investigation it became apparent that there were a number of other allegations cropping up about the conduct of Mr Armstrong as an auxiliary nurse. At the initial stages of enquiry, Mr Armstrong's representative asked for an adjournment of the investigations on 12th September. That was granted, and, thereafter, a Mr Whelan took up the main burden of carrying out the investigation. He investigated both the circumstances surrounding the injuries sustained by the patient NP on 4th July, and he then followed up in greater detail the further allegations that were now cropping up about Mr Armstrong in his work as an auxiliary nurse.

The allegations being made were being made by the ward staff themselves. They told of Mr Armstrong's foul and abusive language to patients. There was a suggestion that he tripped a patient up so that she fell to the floor; another that he roughly grabbed at a patient; and the allegation that he was task orientated and rushed patients in the performance of various duties; and it was said that his attitude towards the patients varied dependent upon who was on duty as the staff nurse in charge of the ward on a particular day. Generally, it was assessed that he was noisy and non-caring in his approach to the patients.

At a preliminary stage or halfway stage of those investigations, Mr Senior had meetings with Mr Armstrong, that was on 29th August and again on 30th September. Mr Armstrong resolutely denied that he was responsible for NP's injuries; he also denied all further allegations, except one which was minor, something to do with another nurse, but does not directly involve us in this case.

The result of Mr Whelan's investigations was a substantial report dated 5th November 1996. We have a copy of that report, together with all its annexes, which incorporate all the written statements taken from the witnesses. As a result of that report, on 5th November 1996, Mr Armstrong was written a letter in which he was charged with two substantive offences; one relating to the injury to NP on 4th July; and the other, relating to his misconduct as an auxiliary nurse in his handling of patients on the ward.

A disciplinary hearing was set up for 12th November, and over the course of two days, Mr Cronin who conducted the hearing, heard the evidence that had been collated by Mr Whelan, as well as hearing Mr Armstrong himself. Mr Armstrong was represented throughout this hearing.

As a result of the hearing, lasting two days, Mr Cronin decided that Mr Armstrong was guilty of both the charges levelled against him. In coming to that conclusion, he stated that he preferred the evidence of the witnesses who were called by the employers, which included that of the patient HP, rather than the denials of Mr Armstrong. In other words, he made an assessment of the credibility of the witnesses, as opposed to that of Mr Armstrong himself, and preferred the evidence of the witnesses.

The result of the enquiry was that Mr Armstrong was dismissed.

There was an appeal on 29th and 30th January 1997 in the form of a complete rehearing, lasting the two days. Once more, Mr Armstrong was represented. The decision of the appeal board was that the dismissal should stand, and that was an unanimous decision.

Mr Armstrong's case throughout has been that there was no proper investigation carried out by Mr Whelan. Whether that merely related to the later allegations made or whether that contention included the allegations relating to 4th July is not clear, but that was the substance of his complaint, that there was no proper investigation carried out by Mr Whelan. It was asserted that he was only interested in finding out material that pointed to his guilt and did not take account of points which were favourable to his cause. It was also said that the allegations that came forward from the ward staff were essentially based upon certain members dislike of him. It was said that in coming to that decision, their decisions, both at the disciplinary hearing and subsequently the appeal, the adjudicators were greatly influenced by their findings in relation to the later charges when considering how they should decide the charge relating to the incident on the 4th July.

The Industrial Tribunal sought to apply the case of British Homes Stores v Burchell [1980] ICR 303. They had no difficulty in deciding that Mr Armstrong was dismissed by reason of conduct. That conduct related to the incidents on 4th July and the other later allegations made by the ward staff. The Industrial Tribunal were satisfied that the appellants had a genuine belief, so far as their findings were concerned about Mr Armstrong's conduct. The tribunal was satisfied that the employer's disciplinary procedures were fair. They were satisfied that the conduct which the employers had purported to find proved in this case, would in itself have justified a reasonable employer dismissing Mr Armstrong. But what they said was that there were not satisfied it was reasonable for the employers to have found the charges proved against him.

So far as the later charges are concerned, they say that in relation to those there was no proper investigation, they accepted the submissions made on behalf of Mr Armstrong. They set out in their extended reasons that statements were taken from the staff; that Mr Armstrong was asked to comment upon the allegations being made by the ward staff; and that he had denied those allegation. But, they say, that the investigations were not carried further, nothing more was done and Mr Armstrong was charged, and in their view, quite unreasonably. They said that lack of proper investigation flawed the decision of the disciplinary hearing that Mr Armstrong was guilty of these later charges. For that reason, therefore, his dismissal was unfair.

They then in fact considered the matters relating to the charges concerning the incident on 4th July. The Industrial Tribunal came to the conclusion that having made this adverse decision relating to the later allegations, there was an assumption that Mr Armstrong was the person responsible for causing injury to the patient NP on 4th July. They say that it is inconceivable that the employers did not make that linkage between the later allegations and those relating to the incident on 4th July.

Today, Mr Booth has appeared on behalf of the employers. The respondent, Mr Armstrong, is not here, nor is he represented, and he has indicated that he had nothing by way of further submission to make other than those which were contained in the extended reasons of the Industrial Tribunal.

Mr Booth criticises the Industrial Tribunal's decision in two respects. He says that so far as concerns the second charges concerned relating to the later allegations made by the ward staff, the suggestion that there had been no proper investigation, does not bear inspection. He said once the ward staff making these allegations had been interviewed and statements taken from them, and Mr Armstrong's comments invited in respect of those allegations, what more was there that a reasonable employer could have done. Of course one bears in mind that the disciplinary hearing which follows such an investigation is part and parcel of the overall investigation. If there were any defects in Mr Whelan's investigatory procedures, there was ample opportunity at the disciplinary hearing, and indeed in due course at the rehearing on the appeal, for any such defects to have been discovered by way of cross-examination and challenges of that sort. But essentially what Mr Booth says is that the industrial Tribunal's criticism of that investigatory procedure is totally unfounded. However, what is more important from our point of view as a reviewing tribunal, Mr Booth says there were no grounds spelt out in the extended reasons which warranted such a finding that there had been no proper investigation.

Secondly, in relation to the charge concerning the events of 4th July, Mr Booth criticises the Industrial Tribunal's finding of a linkage. He says that Mr Whelan's report demonstrates that he carried out an investigation of the events of 4th July separately and distinctly from those relating to the later charges; that whilst it was accepted that there was only circumstantial evidence against Mr Armstrong in connection with the events of the 4th July, there was an exhaustive analysis carried out by Mr Whelan as to what the probabilities were of how this patient had incurred her injuries. There is was only one realistic probability having regard to the timings and the people who were present in the ward at the time this patient must have sustained her injuries, and that was that it was Mr Armstrong who had caused them. But in addition to that demonstration which is apparent from scrutinising Mr Whelan's report, there is also the evidence of Mr Cronin's himself, who chaired the preliminary hearing on 12th and 13th November 1996. He said in evidence that he considered the allegations relating to 4th July and the later allegation as separate issues. And yet, Mr Booth says, the Industrial Tribunal came to the conclusion that charge 1 relating to 4th July was not considered on its own merits. He said that there was no proper foundation for the Industrial Tribunal to find the linkage they in fact claimed.

In order to investigate this matter, this tribunal, at a preliminary hearing, directed that the Chairman should indicate the evidence upon which the tribunal relied to substantiate this linkage. The answer that came back was that the inference was based on the totality of the evidence and the live witnesses called on behalf of the employers, namely Mr Whelan, Mr Cronin and Mr Mills. Apart from that, there was nothing specific alleged at all. In fact, of course, the observation one makes for good measure, is that Mr Cronin expressly and explicitly stated that the two charges had been sided separately.

So far as this tribunal is concerned, we accept the submission made by Mr Booth. With the greatest respect we feel that the Industrial Tribunal here has fallen into error in that they have reviewed the proceedings and at the end of the day have substituted their own views for that of the employer at each stage. A clue to this effect can be found in their findings at paragraph 4 of the extended reasons where they state that:

"4. ... where the evidence of the applicant conflicted with the evidence of the respondent's witnesses, the Tribunal preferred the evidence of the applicant."

Accordingly, they came to a conclusion, contrary to that of the disciplinary hearing and the appeal board, that they preferred Mr Armstrong's denials to that of the ward staff called before the disciplinary procedures, and rejected the analysis of the probabilities in preference to that of the evidence of Mr Armstrong. The proper question would have been whether a reasonable employer could have come to the conclusions they did on the strength of the evidence. That might of course be the case, notwithstanding that the Industrial Tribunal themselves might have come to a different conclusion.

In view of the absence of any particulars of what the proper investigations might have included, and in the absence of any express indication of the basis upon which the tribunal inferred the linkage between the second charge and the first charge, we feel that we have no alternative but to allow this appeal.

The question which then arises is to how this matter should be disposed of.

Mr Booth has invited us to substitute a finding of fair dismissal in place of the one found by the Industrial Tribunal.

We have approached this question with the greatest of care, being ever mindful that we must not straightforwardly supplant the judgment of the Industrial Tribunal with ours. Our responsibility here is that of a reviewing tribunal. However, in this instance, as a result of the directions of the Employment Appeal Tribunal at the preliminary hearing, we have the Chairman's Notes of Evidence of the live witnesses who gave evidence. We have all the witness statements that were collected by Mr Whelan, many of those witnesses not having been called before the tribunal, but whose statements were before that body. Accordingly, we are in as good a position as the Industrial Tribunal itself, to come to a conclusion as to whether the decision made on the facts by the employers in this matter were findings that a reasonable employer could have come to. Accordingly, we feel that there would be no purpose served in sending this matter back to a freshly constituted tribunal to hear this matter de novo, when, as I say, we are in a good and proper position to form a conclusion about the reasonableness of the employer's decision in this case. Accordingly, we will substitute are own finding for that of the Industrial Tribunal. In allowing the appeal, we hold that Mr Armstrong was fairly dismissed.