United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellants	MS N JOFFE (of Counsel) Legal Services Royal Borough of Kensington & Chelsea Town Hall Hornton Street London W8 7NX
For the Respondent	MS I OMAMBALA (of Counsel) Legal Officer UNISON 1 Mabledon Place London WC1H 9AJ


 


JUDGE D M LEVY QC: Ms Pearson, the Respondent to this appeal, was an employee of the Royal Borough of Kensington & Chelsea, the Appellants. She was employed as a night care assistant in a residential home for the elderly.

On 8 May 1996 there was an incident in a ward where she was a senior care assistant. The incident has been dated in the Respondent's IT1 as 8 May 1995, an error compounded in the Appellants' IT3, paragraph 4.

As a result of that incident there was a disciplinary hearing which took place on 12 July 1996. That disciplinary hearing decided that the Respondent had been guilty of gross misconduct and dismissed her. There was an appeal from that decision, but the appeal was unsuccessful. The Respondent was dismissed on 18 August 1996 and made an application complaining of Unfair Dismissal to an Employment Tribunal on 10 October 1996. Her complaint was heard by an Employment Tribunal sitting at London (North) on 1 September 1997. The result of the decision was a holding that the Respondent had been unfairly dismissed.

From that decision the Appellants appealed by a Notice of Appeal dated 7 November 1997. Unhappily that matter did not come up for a preliminary hearing until 23 October 1998, when it was ordered that the matter should proceed to a full hearing. That hearing has taken place today. It is apparent that the hearing arises because of the way in which the Extended Reasons have been phrased. The basic facts are set out in paragraphs 1 - 10. In paragraph 8, where the Respondent is variously described as the Applicant and Ms Pearson, the conclusion of the finding of facts at the disciplinary hearing was:

It was clear from the evidence of Ms Schroder that [the Respondent] was not believed and it was also clear from the evidence that the panel concluded that [the Respondent] had neglected her duties during the night and as a result of that [a patient] had sustained these injuries."

Paragraph 11 - 16 follow a heading "The Law".

In paragraph 11, reference is made to the well known case of Burchell v British Home Stores. Paragraphs 12 and 13 read:

"12. We find that there was an investigation into the affair but there were inconsistencies arising from that investigation. The Respondents in dismissing the Applicant appeared to have taken into account the fact that the Applicant did not think that the injuries were very serious. Her view is substantiated by the doctor's report which was before the disciplinary panel at the time of the dismissal. The panel appeared to have been persuaded by the witnesses who saw Mr Wright on the morning of 8 May and took the view that the injuries were serious.

13. We then consider whether having made the investigation the Respondents had a reasonable belief in the facts as set out."

We presume these facts, as set out, include the last sentence of paragraph 8 set out above. The paragraph continues:

"It is clear that something untoward had happened during the evening and there was no explanation for the injuries that had occurred. However in concluding that this was not a reasonable belief in the facts to amount to gross negligence and gross misconduct we see that the [Appellants] did not act immediately to suspend the [Respondent] and remove her from the caring of these vulnerable old people. They let the [Respondent] and [another employee] remain for two months looking after these residents and we conclude therefore that if they had a reasonable belief in the facts as they now state them they would have immediately taken steps to ensure that the [Respondent] was not in a position to cause any further injuries to any other residents."

For the Appellants, Ms Joffe has submitted that the Tribunal has conflated two of the principles in Burchell together and also has referred us to the decision in East Berkshire Health Authority v Matadeen [1992] ICR 723, where Wood J, giving the decision of the Employment Appeal Tribunal, said at page 730:

"Secondly, in its decision the tribunal find that the reasons given by Miss Williams for not suspending the applicant were sound reasons but were not compatible with the management's argument that the conduct constituted serious misconduct justifying dismissal. If this were to be sound reasoning in industrial relations, it would follow, as was pointed out during submissions by the industrial members of this appeal tribunal, that employers would be minded to suspend at every juncture even though full investigation had not taken place. Suspension is undoubtedly a stigma, an indication that the employee is under suspicion and it seems to them that good industrial practice does not require suspension in every case. It would be extremely unwise, save in obvious cases, to draw any inference or conclusion from the suspension or a lack of suspension It would discourage management from treating employees with compassion and acting in a way which they thought was reasonable in the circumstances. It could be argued that the more serious the misconduct the more detailed should be the inquiry before reaching a final conclusion. The employers' disciplinary procedures indicates that suspension is a matter for discretion of management where serious misconduct is involved, consequently Miss Williams was, in any event, complying with that procedure." [Underlining added]

We think Ms Joffe is right when she says that the two stages of Burchell were conflated, but even if we are wrong in this, it seems to us that there could have been sound grounds for the Appellants, in the circumstances of this case, not suspending the Respondent immediately after the incident. Furthermore, it seems to us that the final sentence of paragraph 8 does not sit easily with the finding in paragraph 15 which reads, in one long sentence:

"15. We are aware that we should not substitute our own view for that of the [Appellants] but we conclude from the evidence that was before the [Appellants] that they did not have a reasonable belief in the facts and that on those facts they could not reasonably conclude that the [Respondent] was guilty of gross misconduct within their disciplinary code and therefore dismissal was not an appropriate remedy."

We point to the findings which we already referred to in paragraph 8 of the Extended Reasons. We also note that in the letter of 15 July 1996 at page 18 of our bundle, the Respondent wrote:

"In making a decision about a suitable penalty, the panel took into account that gross misconduct had been found proven as defined in the Council's Employee Disciplinary Code."

We do not have a copy of the Code before us, but the charges on which the Respondent was found guilty were these:

"1. That on the night of 7 May 1996, you failed to ensure satisfactory care was provided to Mr W a resident of Edenham Residential Home, and were negligent in the performance of your duties

2. That you failed to make a satisfactory written report relating to the injury sustained by Mr W, contrary to the requirements of your role."

It may well be that if those two counts were satisfactory proven in the circumstances of this case, the Appellants could have properly found that gross misconduct was proved. In those circumstances, the Employment Tribunal substituted its own views for that of a reasonable employer.

However, that is not the end of the matter. It is quite apparent that a question of disparity arises here in that an employee, senior to the Respondent, was punished less severely than was the Respondent. Furthermore, both of the employees seemed to have had (on the material we have seen at any rate) unblemished records. It may well be that, although there were grounds for the findings made by the Appellants, the penalty was too great.

In all the circumstances of this case, we do not think that the decision of the Employment Tribunal can stand. We think it necessary for the matter to be re-heard by a different Employment Tribunal, we hope as soon as possible.

We will therefore allow the appeal and remit this matter to be heard by a different Employment Tribunal at London (North).