Appeal No.	 EAT/681/99

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 21 October 1999

Before
HIS HONOUR JUDGE PETER CLARK
MR A E R MANNERS
MR R SANDERSON OBE

SPECIALITY CARE PLC t/a HILL HOUSE NURSING HOME 	APPELLANTS

CHARLES PHILLIP HANCOCK	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellants	MR J S MARSH
(Consultant)
Legal Personnel & Management Services Ltd
Merchant House
1-7 Leeds Road
Windmill Bridge
Shipley
West Yorkshire
BD18 1BP

		

	JUDGE PETER CLARK:	

1.	The first issue raised in this appeal is whether the Nottingham Employment Tribunal, hearing the male applicant’s complaint of unlawful sex discrimination, fell into error in their choice of a comparator for the purposes of s.1(1)(a), read with s.5(3) of the Sex Discrimination Act 1975 [‘the Act’].

2.	The factual background was that the applicant, who had some 35 years experience as a nurse, took employment with Speciality Care at their Hill House Nursing Home in Lincolnshire in January 1997. He was summarily dismissed on 11th September 1997. He claimed that that dismissal was an act of unlawful discrimination on the grounds of his sex.

3.	The particular event which led to his dismissal occurred on 26th July 1997. On that day he observed one of the residents at the home, Miss P behaving in a way which suggested that she was suffering from physical illness or self-induced trauma. She was severely mentally impaired. He suspected that she had a urinary tract infection and asked a female care assistant, Mrs Ward, to accompany him whilst he examined the patient. During that examination, using a gloved hand: 

“(iii) … he briefly inspected the external genitalia. He placed his index finger on the external urethral meatus, turned away from Miss P and discreetly ascertained by smell the presence of any odour characteristic of cystitis or vaginal infection. He could not obvious abnormality and was able to help settle Miss P for the night. He made no record of the examination in Miss P’s notes.”

	We interpose that it was accepted on behalf of Speciality Care that the mere failure to record that examination in the patient’s notes would not of itself have led to his dismissal.

4.	In due course it was reported to Ms Clargo, the General Manager, that concern had been expressed about the applicant’s treatment of residents; particularly the incident concerning Miss P, and another occasion was mentioned when it was said he examined a patient Mr C’s penis by pulling back his foreskin and shining a torch down it.

5.	In short, disciplinary proceedings followed, culminating in his dismissal for the incident which took place on 26th July 1997.

6.	On 22nd September 1997 he presented his complaint of sex discrimination to the Employment Tribunal.

7.	At a directions hearing held on 18th June 1998 it was noted, in a subsequent letter from the Employment Tribunal to the parties dated 22nd June, that:

“1.	The Applicant’s case is that he suffered less favourable treatment by being dismissed by the Respondent. He maintains that a female nurse, in similar circumstances, would not have been dismissed.”

8.	In a decision with extended reasons promulgated on 13th April 1999, following hearings held on 14th and 15th January and 11th, 12th and 16th March, the tribunal considered who was the appropriate comparator for the purposes of ss. 1(1)(a) and 5(3) of the Act. On this issue they received the following submissions. 

9.	For the applicant it was submitted that he was treated less favourably than an female nurse would have been in similar circumstance. It was submitted that he did not contravene any UKCC guidelines, as the tribunal found. It was not possible for patients to be nursed exclusively by nurses of the same sex. Female nurses routinely carried out procedures of the same level of intimacy as that carried out by the applicant on male patients.

10.	For the respondents, Mr Marsh submitted that it was not appropriate for the applicant to compare himself with a female nurse engaged in dressing, washing and bathing a male patient or with a female nurse undertaking an enema for a male patient. It was the submission on behalf of the respondents that a female nurse carrying out a vaginal examination in similar circumstances to that carried out by the applicant on Miss P would also have been dismissed. Such a comparator was an hypothetical comparator. We are told there was no evidence either way on what would have happened to a female nurse in those circumstances.

11.	The tribunal decided that it was inappropriate for the applicant to compare himself with a female nurse carrying out an enema on a male patient and further rejected the contention that the appropriate comparator was a female nurse carrying out exactly the same vaginal examination on a female patient, as advanced on behalf of the respondents. Their reason for rejecting that comparison was that this was by definition an intimate procedure and it was legitimate, because it did not have the same connotations as arose where a nurse of the male sex conducted that examination on a female patient, to compare the position of a female nurse carrying out such an examination. In all the circumstances, the tribunal decided that the appropriate comparator was a female nurse examining the penis of a male patient where such examination involved the retraction of the patient’s foreskin.

12.	Pausing there, Mr Marsh submits in support of the appeal, first that the tribunal ought not to have chosen as the comparator a female nurse examining the penis of a male patient, but should have made the comparison with a female nurse carrying out the same vaginal comparison on a female patient. He submits that a cross-gender comparison on a male patient was inappropriate. We disagree.

13.	It seems to us that the comparator chosen by the tribunal was not so illogical as to amount to a perverse conclusion. We put this analogy to Mr Marsh in the course of argument. A woman is dismissed for having an affair with a man at work. That dismissal will be unlawful if a man having an affair with a woman at work would not be dismissed. See, for example, Brock Explosives v Montgomery IRLIB 448 (May 1992) a decision of this Appeal Tribunal. Mr Marsh accepted that, in those circumstances, a cross-gender comparison would be appropriate. In our judgment such a comparison is equally appropriate in this case.

14.	Secondly, he submits, in the alternative, that for the purpose of the comparison the male patient must have the same degree of mental impairment as the patient Miss P on the basis that it is necessary to show that the patient was unable to express consent to the procedure carried out by the nurse. We think that takes the matter too far and we are satisfied that the comparison which was in fact made by the tribunal was a comparison of two cases arising in similar circumstances.

15.	In making that comparison, the tribunal referred to the following evidence at paragraph 8 of their reasons:

“8.	The respondent admitted that between 1 April 1997 and 30 September 1997 Mr S, who had suffered a stroke and was frequently incontinent of bladder and less commonly of bowels, received intimate care from female nurses on ninety seven occasions. It also admitted that the applicant and female staff had to examine the penis of Mr C, who had had a stroke. This examination involved the retraction of his foreskin in order to check that the penis was not sore. It was significant that no action was even taken against the applicant in respect of his treatment of Mr C’s penis. No action was ever taken against a female nurse for treatment of Mr C’s penis although it was also admitted that this was frequently undertaken without any male nurse acting as chaperone.”

	In these circumstances, the tribunal found that there was conclusive evidence that the respondents had treated the applicant less favourably on the grounds of his sex than it would have treated a female nurse in similar circumstances treating a male patient.

16.	The third and final point taken by Mr Marsh in this appeal is that there was no evidence before it for the finding by the tribunal which is set out in the first sentence of paragraph 8 of their reasons, relating to Mr S. 

17.	We confess that we found it curious that, on the face of it, the tribunal had completely made up such a detailed piece of evidence, but what Mr Marsh tells us today is that there was evidence about Mr S, he had suffered a stroke, he did suffer from incontinence, but the evidence was not that he had received intimate care from female nurses on 97 occasions, although Mr Marsh accepts that the evidence may have been that on occasions, perhaps even numerous occasions, he had received such care. 

18.	It may very well be in these circumstances that the expression ‘ninety seven’ is a typographical error and what the Chairman intended to convey was that such care had taken place on numerous occasions or perhaps on a number of occasions. In any event, we are quite satisfied, having rejected the first two grounds of appeal, that this further point does not, of itself, provide an arguable point of law to go forward to a full appeal hearing. That error does not, in our judgment, appear to have had any material impact of the tribunal’s overall conclusion.

19.	It follows in these circumstances that there is no arguable point of law to go forward to a full hearing. Accordingly this appeal must be dismissed.