United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Applicant	MR S BROCKWICZ-LEWINSKI (Of Counsel) Messrs Shah Solicitors 168 Greenford Road Sudbury Hill Middlesex HA1 3QZ
For the Respondent	MR R HAWKER (Representative) Employment Law Consultant 34 Primrose Drive Foxholes Hertford Herts SG13 7TG


 


JUDGE PETER CLARK

1. This is an appeal by Mrs Mbeledogu, the Applicant before the Stratford Employment Tribunal, against that Employment Tribunal's remedies decision promulgated on 4 February 2000, the Employment Tribunal having earlier found in a liability decision promulgated on 5 November 1999 that she was unfairly dismissed by the Respondent, Tamaris (England) Ltd. Extended reasons were given for both those decisions.
2. The Applicant has been a nurse for 40 years. She was employed by the Respondent as a carer for the elderly at their Ross Wyld Nursing Home from July 1998 until her dismissal on 12 January 1999. The reason for dismissal, said to relate to her conduct, was given by the Respondent as:

"Physically violent behaviour to a resident."

3. The incident leading to her dismissal occurred in the early morning of 21 November 1998. The Applicant was on duty at the Home, together with two other carers, referred to as Margaret C and Maureen H. It seems that a 76 year old frail resident, Mr G, rang the bell for attention. The Applicant responded to the call. On her account given to the Respondent, the Applicant asked him to return the bell cable. Assisted by Maureen H she retrieved the cable. There was blood on his hands.
4. Disciplinary proceedings followed. Mr G was interviewed by Staff Nurse Cattermole. His account was that the Applicant used her full weight to prise the bell out of his hands. He was left bleeding. Nurse Cattermole herself saw the aftermath of the incident. She was shocked to see a Nursing Assitant, Madelaine Newton, washing blood off Mr G's hands, his arms and under his nose. She saw two long lacerations at the back of his right hand, a deep cut on the left ball of his thumb and scratches on his fingers, according to the account she gave to the Respondent.
5. The Employment Tribunal found that the Respondent carried out a wholly inadequate investigation. The Applicant was not shown witness statements collected by the Respondent, nor was she told the gist of what was said against her. The Respondent had not taken a further statement from Maureen H, her original statement lacking the necessary detail.
6. Based on that inadequate investigation the Applicant was dismissed. That dismissal, found the Employment Tribunal, was unfair, applying the well-known Burchell test. The Respondent had not carried out a reasonable investigation and thus did not have reasonable grounds for their belief that the Applicant had been guilty of the misconduct alleged.
7. When it came to remedy, the Employment Tribunal asked themselves the question raised in Polkey v A E Dayton Services Ltd [1988] ICR 142, namely whether a proper investigation would or might have resulted in the Applicant retaining her job. They concluded (Remedies Reasons, paragraph 4) that even if the Respondent had interviewed Maureen H and Margaret C, there was a 50% chance that the Respondent would have dismissed the Applicant for using more force than was reasonable, in the circumstances, to take away the bell push from Mr G.
8. That finding forms the principal submission by Mr Brockwicz-Lewinsky in this appeal. He argues that, in the absence of any evidence before the Tribunal as to what Maureen H would say about the incident itself, the Employment Tribunal was speculating as to what would have been the outcome had a proper investigation been carried out. Maureen H did not give evidence before the Tribunal. We do not accept that that lacuna in the factual evidence before the Tribunal rendered their finding impermissible as a matter of law, our jurisdiction being limited to correcting errors of law.
9. At the liability hearing the Applicant had access to all the reports and witness statements prepared during the internal investigation but not then revealed to the Applicant. Further, the Employment Tribunal heard from Margaret C and Nurse Cattermole, in addition to the relevant Managers, Mrs Voltzenlogel and Ms Myatt. They heard also, of course, from the Applicant herself.
10. Based on that evidence they were able to find as a fact that the Applicant did use more force than was reasonably necessary in taking the bell push away from Mr G. (Remedies Reasons, paragraph 5).
11. In these circumstances we have no difficulty in finding that the Polkey deduction of 50%, arrived at by the Employment Tribunal, was a permissible conclusion for the Employment Tribunal to reach on the material before them.
12. Secondly, Mr Brockwicz-Lewinsky faintly argued against the Employment Tribunal's further finding that the Applicant had contributed to her dismissal by her own conduct, to the extent of 25%. Again we think that finding was within the proper exercise of the Employment Tribunal's judgement, given the specific finding of fact at paragraph 5 of their reasons, to which we have just referred.
13. Finally, various errors, in one case mathematical, and in two other respects in principle, have been pointed not in the Employment Tribunal's calculation of loss. If the correct approach, as approved by the Court of Appeal in Digital Equipment Co. Ltd v Clements (No. 2) [1998] IRLR 134 is taken, it seems that the Employment Tribunal over-calculated compensation by £571.52. However, there is no cross-appeal and Mr Hawker does not seek to challenge the Employment Tribunal's final award.
14. In these circumstances we shall simply dismiss the appeal and affirm the remedies decision made by the Employment Tribunal.