United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR PAUL CAPE (of Counsel) Instructed by: Mr T P Urwin Director of Administration & County Solicitor Northumberland County Council County Hall Morpeth Northumberland NE16 2EF
For the Respondent	MR THOMAS LINDEN (of Counsel) Instructed by: Mr D Cockburn Messrs Pattinson & Brewer Solicitors 30 Great James Street London WC1N 3HA


 


MISS RECORDER ELIZABETH SLADE QC: This is an appeal by Northumberland County Council ['the Council'] from the decision of an Employment Tribunal sitting in Newcastle-upon-Tyne that the Council had unfairly dismissed Mr Burt.

1. In a careful and thorough decision the Employment Tribunal set out its findings of fact which are summarised as follows.

(1) At the date of his dismissal on 5th March 1998 Mr Burt was employed by the Council as a Unit Manager at Beaconhill Children's Home, Cramlington which was operated by the Council's Social Services Directorate.

(2) Beaconhill is a short-term six-bedded unit with an additional emergency bed, which accommodates children under the age of 15 with behavioural problems. Mr Burt had thirty years' experience in childcare work, twenty years of which was as an employee of the Council.

(3) Mr Burt's dismissal arose out of an incident at Beaconhill on the evening of 7th January 1998 during which he was alleged to have used inappropriate force in dealing with Child A, a 14 year old boy. Barry Purdy, a level 3 residential social worker, who had been with Mr Burt and Child A, told a colleague, Ms Murray, soon after the incident that Child A was making allegations of undue force, and that he thought the complaint was a valid complaint. On 9th January Mr Purdy told Mr Rhodes, Service Co-ordinator, about the incident. Mr Rhodes informed his superior officer, Mr Ross, who suspended Mr Burt.

(4) On Monday 12th January Mr Ross, the Children's Services Manager (Family Support and Placement), appointed Ms Rathbone as investigating officer under the Council's disciplinary procedure. Ms Rathbone examined files and documentation and interviewed various witnesses including Child A, Mr Purdy and Mr Burt. On 30th January she completed her report, to which notes of seven interviews were attached. She noted that there were a number of discrepancies regarding the incident relating to Child A on 7th January and was of the view that these should be considered at a disciplinary hearing.

(5) A disciplinary hearing was held on 5th March 1998 by Mr Ross. Both Mr Burt and Mr Purdy gave evidence. At the conclusion of the disciplinary hearing, Mr Ross decided to dismiss Mr Burt and announced his decision. This he confirmed in a letter to Mr Burt in the following terms:

"… In summary the allegations concerned your use of inappropriate force in dealing with a situation involving a young person in the care of the County Council.

In response to the allegations, you totally denied that you had used force in the manner described and contended that you had simply ushered the young person from the room and through the doorway into the hall. You also suggested that one of your staff who testified to having witnessed your alleged misconduct was lying and offered the opinion that he may have done so because he was anti-establishment or because he disagreed with certain aspects of your professional practice.

At the conclusion of the interview I advised you that having considered all the information, on the balance of probabilities, I had concluded that you had:-

i. responded in a totally inappropriate manner and had assaulted a young person in the care of the County Council;

ii. misrepresented the events of the night in question in the record book and by doing so had sought to conceal the incident;

iii. sought to question the integrity and honesty of a junior member of your staff by stating that he was lying in his recollections of the incident.

I advised you that given your position as Unit Manager I had no alternative but to consider you to be guilty of gross misconduct and to dismiss you from your post with effect from 5 March 1998. I now confirm that decision."

(6) Mr Burt exercised his right to appeal by letter dated 14th March 1998, in which he made a number of points including:

"Mr Purdy's account had not been corroborated by the boy"

The hearing of the appeal took place on 15th May before a sub-committee of five members of the Council assisted by the Assistant Director of Personnel. The Staff Appeals Sub-committee heard oral evidence including that of Mr Burt and Mr Purdy. The sub-committee announced its conclusion that:

"… the decision taken at the Disciplinary Hearing was correct. Therefore, the Appeal is not upheld."

The Decision of the Tribunal

2. The Tribunal found that the reason for the dismissal was "that it related to the applicant's conduct, an admissible reason within section 98(2) of the Employment Rights Act 1996."
3. It was common ground before us that the reason for Mr Burt's dismissal was the Council's belief that he had assaulted Child A as described by Mr Purdy. The Tribunal then considered the fairness of the dismissal, having regard to the provisions of section 98(4). It posed itself the following question:

"… could a reasonable employer on the basis of the investigation be satisfied on the balance of probabilities that the applicant was guilty of this assault on Child A. And had the Council carried out a sufficient investigation." [Decision, paragraph 35.]

4. Whilst criticising Mr Ross for not interviewing Child A himself (decision, paragraphs 40 and 42), the Tribunal held at paragraph 44:

"The matter was carefully investigated, and save as have indicated above, we are satisfied that the Disciplinary and Appeal Hearings were properly carried out. But the ultimate question seems to us to be whether the evidence was sufficient to justify a reasonable employer taking a reasonable view that, on the balance of probabilities, the applicant had assaulted Child A."

5. In answering this question, the Tribunal referred to three matters in particular. First, its view that Child A's evidence did not indicate that he was held by the neck or thrown to the ground. Rather he said he was pushed. Second, its view that there must be doubts about Mr Purdy's evidence. Third, Mr Ross's statement that had Mr Burt admitted the matter, he might have escaped with a final written warning. At the heart of the Tribunal's reasoning was its view that

"there must be doubts about Mr Purdy's evidence in respect of the actual incident" … and that "Given those doubts we do not think that a reasonable employer would have concluded that, on the balance of probabilities, the applicant was guilty of a "precipitous assault" on the body, justifying a finding of gross misconduct."

The Tribunal therefore found that the dismissal of Mr Burt was unfair.

The Grounds of Appeal

6. Although subdivided into six, the Notice of Appeal raises, essentially, two grounds of appeal. First, the Council contends that the Tribunal erred in law in applying the standard of proof of the balance of probabilities in testing the reasonableness of the Council's belief that Mr Burt had assaulted Child A as Mr Purdy had alleged ['the first Ground of Appeal']. Second, the Council contends that the Tribunal erred in law or acted perversely in holding that a reasonable employer would not have concluded that Mr Burt was guilty of a "precipitous assault" on Child A, justifying a finding of gross misconduct ['the second Ground of Appeal'].
7. Three bases were advanced before us for the second Ground of Appeal. First, that the Tribunal misunderstood the evidence contained in Child A's statement, second that the Tribunal substituted its own evaluation of Mr Purdy's evidence rather than considering whether the Council's evaluation of his evidence was reasonable. Third, that the Tribunal erroneously considered that an answer given in evidence by Mr Ross to the effect that had Mr Burt "admitted the matter, he might have escaped with a final warning" was capable of supporting an inference that the matter that was found by the employer to be proven was of insufficient gravity to merit dismissal.

First Ground of Appeal

8. Paul Cape, on behalf of the Council, contends that the Tribunal erred in testing the reasonableness of the Council's belief that Mr Burt had assaulted Child A against the standard of a balance of probabilities. He submits that a lower standard applies where the conduct complained of relates to employment for which unimpeachable integrity is required. In support of this arrangement he relies upon an observation in Lees v The Orchard [1978] IRLR 20 at page 21 paragraph 8 referred to in Harvey on Industrial Relations and Employment Law and Practice. Tom Linden on behalf of Mr Burt, contends that this criticism cannot be made as on this issue the Tribunal adopted the approach suggested to it on behalf of the Council. At paragraph 31 of its Decision, the Tribunal records:

"Mr Hesselberth [on behalf of the Council] submitted that Mr Ross had had to decide what, on the balance of probabilities, were the true events of that evening."

This was an approach urged on the Tribunal by the Council in written submissions. Moreover, the balance of probabilities was the standard that Mr Ross, who conducted the disciplinary interview, set himself. In the letter of dismissal he wrote:

"At the conclusion of the interview I advised you that having considered all the information, on the balance of probabilities, I had concluded that you had:…" [Decision, paragraph 25.]

9. The Council had approached the question of whether Mr Burt had assaulted Child A on the basis of whether it was satisfied on a balance of probabilities that an assault had occurred. The Tribunal cannot be said to have erred in testing the Council's conclusions against the standard of proof it had set for itself.

The Second Ground of Appeal

10. The Statement of Child A

The Tribunal contrasted its understanding of what Mr Purdy had alleged Mr Burt had done to Child A:

"… held [him]by the neck" and "thrown [him] to the ground"

with its understanding that Child A had alleged he had been pushed. Paul Cape, on behalf of the Council, points out that the only account of events which was approved by Child A was the statement containing the addition signed by him on 28th January 1998. By the addition, Child A is recorded as having said:

"When he was pushed by Tom [Mr Burt] he grabbed hold of him between the arms and shoulders, and swung A round letting go."

Mr Linden accepted before us that the addition Child A made to his statement brought the accounts of Child A and Mr Purdy closer. However he maintained that there was no inconsistency between what the Tribunal found and the evidence of Child A which was before the Council.

11. In our view, the Tribunal summarised Child A's complaint in a way which was not open to it on the evidence as "he says he was pushed". In the statement which he approved, Child A alleged that he was grabbed, swung around and let go. The mistaken summary of the allegation was relied upon by the Tribunal to point up a degree of difference between the statement of Child A and those of Mr Purdy which the evidence does not warrant.
12. Mr Purdy's evidence

The principal basis for the attack by the Council on the Tribunal's decision that a reasonable employer would not have concluded that Mr Burt was guilty of an assault on Child A is that the Tribunal substituted its evaluation of Mr Purdy's evidence rather than considering whether the employer's evaluation was reasonable. The Council relies on dicta of Wood J in Linfood Cash & Carry Ltd v Thomson [1989] ICR 518 at page 523H approved by the Court of Appeal in Morgan v Electrolux Ltd [1991] IRLR 80 at page 91, paragraph 11, that:

"If a tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that the decision must be based upon logical and substantial grounds – good reasons."

13. On behalf of Mr Burt it is said that an examination of the question whether the employer had reasonable grounds for its view will necessarily involve some evaluation of the evidence before the employer at the time of the dismissal. There is no dispute between the parties as to the proper approach by a Tribunal to the question of whether an employee has reasonable grounds for his belief in an employee's misconduct, the second test in British Home Stores Ltd v Burchell [1980] ICR 303 at page 304D. The approach in that case was recently explained in Midland Bank plc v Madden [2000] IRLR 288. At page 292 paragraph 26 Lindsay P held:

"That test was described in Weddel Co v Tepper [1980] IRLR 96 CA by Cumming-Bruce LJ as most useful guidance – see p. 102, paragraph 33. Stephenson LJ found 'great assistance' in it – p.100 – and it has been employed countless times since. It does not require the tribunal unquestioningly to accept the employer's alleged reason, on the contrary, each of the three parts of the test requires an evaluation of the relevant evidence by the tribunal and, in each case that is an evaluation which can, on proper evidence, conclude contrary to the employer's assertions. In that sense a tribunal addressing s.98(1) and (2) is thus free to substitute its own views for those of the employer."

Leaving aside the question of whether the second and third elements of the Burchell test are confined to the issue of the reason for dismissal or whether they also deal with its fairness under the Employment Rights Act 1996, section 98(4) (see: W Weddel & Co Ltd v Tepper [1980] ICR 286 at page 297H), Arnold J in Burchell drew a distinction between the correct approach and the incorrect approach to evaluating evidence. At page 308E he stated that the Tribunal:

"… embarked upon an independent evaluation of the evidence, nor for the purposes of seeing whether the employers could reasonably have drawn the conclusion which the employers in fact drew, but whether that was by an objective standard a correct and justifiable conclusion."

14. The Tribunal noted that Mr Ross considered that Mr Purdy presented his evidence in a neutral and credible way at the disciplinary hearing and that the Appeals committee must have accepted it. However the Tribunal considered that there were a number of questions regarding Mr Purdy's evidence and subsequent actions (or lack of action) which "inevitably raise some doubts as to his version of events given that it differs in such a material way from the account given by the boy." (Decision, paragraph 38). At paragraph 44 the Tribunal state:

"For the reasons we have indicated, there must be doubts about Mr Purdy's evidence in respect of the actual incident, although he may have been doing his best to recall what had occurred in the events in which he was also directly involved. Set against this was the fact that Mr Burt was a man aged 61, with a recent history of heart trouble, and against whom there had been no previous complaint of any kind. Given those doubts we do not think that a reasonable employer would have concluded that, on the balance of probabilities, the applicant was guilty of a "precipitous assault" on the boy, justifying a finding of gross misconduct. Doubts will remain and clearly some physical contact occurred."

15. Despite reminding itself that it must not substitute its own view for that of the Council, in our judgment, it did so. The Tribunal evaluated Mr Purdy's evidence not for the purpose of considering whether the Council could reasonably have accepted it, but in order to decide whether, in its view, that evidence should have been accepted. In making its assessment of Mr Purdy's evidence, the Tribunal placed considerable reliance on the perceived material difference between his account of the incident and that given by Child A. As we have held, the Tribunal misunderstood the evidence contained in the statement approved by Child A and therefore overstated the difference between the two accounts. Further, the Tribunal referred on several occasions to doubts about Mr Purdy's evidence. In our judgment these are references to doubts it had about Mr Purdy's evidence not to doubts it concluded that the Council should have entertained. For these reasons in our judgment the Tribunal erred in law in failing to consider whether the Council's evaluation of Mr Purdy's evidence was reasonable. Instead it undertook its own evaluation which was based, in part, on a misunderstanding of the evidence.
16. Consequences of an admission by Mr Burt

The Tribunal relied upon an answer by Mr Ross in cross-examination as evidence that there were doubts about Mr Purdy's account of the incident. At paragraph 44 the Tribunal observed:

"Doubts will remain and clearly some physical contact occurred. Moreover this view is perhaps reinforced by Mr Ross's statement that had the applicant admitted the matter, he might have escaped with a final written warning. It is hard to understand that if the applicant had in fact committed a serious assault on a boy in his care."

17. It is contended on behalf of the Council that the Tribunal erred in relying upon this answer by Mr Ross to infer that the incident was insufficiently serious to warrant dismissal. Reference is made to the dictum of Beldam LJ in Paul v East Surrey District Health Authority [1995] IRLR 305, at page 309, paragraph 36, that:

"The attitude of the employee to his conduct may be a relevant factor on deciding whether a repetition is likely. Thus an employee who admits that conduct proved is unacceptable and accepts advice and help to avoid a repetition may be regarded differently from one who refuses to accept responsibility for his actions, argues with management or makes unfounded suggestions that his fellow employees have conspired to accuse him falsely."

Mr Linden, on behalf of Mr Burt contends that Mr Ross's answer indicates either that the employer had doubts about the evidence against Mr Burt or, at least, about the seriousness of what had occurred.

18. In our judgment the doubts referred to which the Tribunal considers are reinforced by Mr Ross's statement that had Mr Burt admitted the assault, he might have escaped with a final written warning, are the doubts about Mr Purdy's evidence held by the Tribunal. For the reasons stated above, in our judgment, the Tribunal erred in relying upon its own doubts rather than considering whether the Council's evaluation of Mr Purdy's evidence was reasonable. Thus the Tribunal relied upon Mr Ross's answer to support its erroneous approach. Insofar as the Tribunal relied upon Mr Ross's answer to support an inference that the incident was not serious enough to warrant dismissal, in our judgment it erred in failing to recognise that just as the same conduct by different employees may reasonably be treated differently where the attitude of the employees to their misconduct differs so an employer's response to misconduct by an employee may reasonably vary according to the employee's attitude to that misconduct.

Conclusion

19. For these reasons this appeal is allowed and the finding of unfair dismissal is set aside. Mr Burt's originating application is remitted to a differently constituted Employment Tribunal for rehearing.