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At the Tribunal | |
Before
HIS HONOUR JUDGE J R REID QC
MR D A C LAMBERT
MISS S M WILSON CBE
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
Revised
For the Appellant | MR N PORTER (of Counsel) Instructed By: Messrs Mace & Jones Solicitors 14 Oxford Court Manchester M2 3WQ |
For the Respondent | MR G MAHMOOD (of Counsel) Instructed By: Messrs Napthen Houghton Craven Solicitors 7 Winckley Square Preston Lancashire PR1 3JD |
JUDGE J R REID QC:
"This Mr Critchley said he had lost weight and was as fucking fit as I was when he first came here. He then proceeded to jump in the air in a kickboxing fashion, as I was still sat down I felt the draft of his actions around my eyes and nose. When he landed on his feet he seemed to bend over, at this stage I feared another attack on my person. I moved forward to try and get my hands on his back and chest to try and prevent him from jumping again. At this stage Mr Critchley informed me he had bit his lip. I was a bit confused as to whether I had caused this. I feel sure he did this whilst in the air throwing his head back."
"An employee who commits any of the following offences will be dismissed unless through mitigating circumstances
9. Ill treatment, physical or verbal abuse and/or deliberate acts of harassment against patients, employees or any other persons. Including acts motivated by sex or race, during the course of one's employment or on the Trust's premises."
The panel found an assault, found that there was gross misconduct as I have said and Mr Swann told the Employment Tribunal that the final decision was strongly influenced by the 2 conflicting statements made by the Applicant which with the Applicant's overall approach in defence of the allegations gave grave concern as to his capability to acknowledge his inappropriate behaviour, learn from the situation and perform his duties professionally and effectively in the future. As a result of that the panel had no confidence in his capacity to continue in the post of nursing assistant and, despite taking into account his length of service and unblemished record, dismissed him summarily.
"11. The view of one member of the Tribunal is that a reasonable employer would have dismissed the Applicant after taking account of all the facts known to the Respondent at the time of the dismissal or at least he could not say that a reasonable employer would not have dismissed the Applicant given the fact the admitted assault on a patient which could not be tolerated. The view of the majority of the Tribunal on the other hand is that dismissal was not within the band of reasonable responses, not withstanding the assault was not disputed. That was not the sole reason for the Respondent's decision to dismiss the Applicant. Mr Swann's evidence as to the panel being "strongly influenced" was considered significant but an irrelevance to the decision to dismiss. The 2 members did not accept that a reasonable employer would have been so influenced. That resulted in the decision to dismiss being based partly on a different separate reason to the original offence i.e. the assault on a patient. The latter was an isolated incident after 28 years of unblemished service by the Applicant. The second statement was recognising its potential effect, could not be construed as misconduct meriting summary dismissal nor even justifying the reliance or weight put on it by the Respondent's panel, either alone or in conjunction with the assault. The majority view of the Tribunal is that a reasonable employer would not have regarded dismissal as the reasonable sanction in the circumstances of this case."
"The first question that arises is whether the Industrial Tribunal applied the wrong test, we have had considerable argument about it, they said; "a reasonable employer would in our opinion have considered that a lesser penalty was appropriate." I do not think that that is the right test, the correct test is was it reasonable for the employers to dismiss him. If no reasonable employer would have dismissed him then the dismissal was unfair, but if a reasonable employer might reasonably have dismissed him then the dismissal was fair. It must be remembered that in all these cases there is a band of reasonableness within which one employer might reasonably take one view another quite reasonably take the different view. One would quite reasonably dismiss the man the other would quite reasonably keep him on. Both views may be quite reasonable, if it is quite reasonable to dismiss him then the dismissal must be upheld as fair even though some other employers may not have dismissed him."
What was said on this ground of appeal on behalf of the Appellant was that when one looks at the last sentence of paragraph 11 of the decision, the majority view of the Tribunal is that a reasonable employer would not have regarded the dismissal as a reasonable sanction in the circumstances of this case. The Tribunal were applying the wrong test because they didn't ask themselves the appropriate question namely whether the response fell within the band of reasonable responses which a reasonable employer might have adopted. In our judgment that ground is a bad ground. That is a view shared by all members of the Employment Appeal Tribunal. One has to look at the entirety of the decision and if one looks at the entirety of the decision where the Tribunal have made it perfectly clear that they were aware of and were seeking to apply the Band of Reasonableness Test. In our judgment it cannot be said that the last sentence shows a wrong application of the law. What they were doing was perhaps infelicitously reiterating what they had already said earlier on in the paragraph namely that the view of the majority of the Tribunal was that dismissal was not within the band of reasonable responses notwithstanding that the assault was not disputed.
"That, i.e. assault was not the sole reason for the Respondent's decision to dismiss the Applicant. Mr Swan's evidence as to the panel being strongly influenced was considered significant but irrelevance to the decision to dismiss."
and then further on:
"The second statement while recognising its potential effect could not be construed as misconduct meriting summary dismissal nor even justifying the reliance or weight put on it by the Respondent's panel, either alone or in conjunction with this sort."
"On one reading of paragraph 14 of the Reasons the Tribunal took the view that it was not open to the Appellants to take into account these "unsatisfactory responses" on the part of the Respondent because the only reason for the dismissal was the theft itself. If that was indeed its view, then it seems to us, with respect, plainly wrong; and this self-misdirection may explain what is otherwise a surprising result. Where an employee charged with substantive misconduct makes a dishonest attempt to exculpate himself, that is plainly one of the circumstances that fall to be considered in deciding whether it was reasonable for the Appellant to treat the misconduct as sufficiently serious to justify dismissal: it does not have itself to be categorised as the, or indeed a, reason for dismissal. There may, depending on the circumstances, be a great difference between how it is reasonable to treat an employee who makes a full and frank confession and how it is reasonable to treat an employee who continues to deny the misconduct in question."
That is doing no more than reiterating what was said in British Leyland v. Swift (1981) IRLR 91. At paragraph 14 where Lord Denning said:
"Now it comes to us. It is my opinion that the Industrial Tribunal failed to take into account the conduct of Mr Swift when he was tackled with this offence. That is a very relevant consideration, which may influence any reasonable employer. I am not prepared to say that no reasonable employer would have dismissed him in the circumstances. On the contrary, it seems to me that many a reasonable employer in the circumstances would have thought it right to dismiss him."
Then similarly Lord Justice Ackner, as he then was, showing that the employee's reaction is a relevant factor, said at paragraph 21:
"What then accounts for this surprising decision - to put it bluntly - that no reasonable employer would have dismissed a person not only guilty of gross dishonesty, but a person who persistently and unrepentantly sought to lie his way out of the offence? The explanation is to be found in one paragraph, paragraph 12, where the Tribunal say: "The offence was a relatively minor one for which he has already been dealt with in the Magistrates Courts so far as the criminal aspect is concerned. Mr Swift is not employed in fiduciary capacity. There is no evidence that they have suffered in anyway as a result of this lapse in the interval between the conviction and it being brought to their notice. The penalty should obviously be related to the offence and we consider that the employers have over-reacted. It seems to be quite clear that in justifying their surprising conclusion to which I have referred, they have confined their attention to the offence. They have not done that wholly accurately because the offence which they say was dealt with by the magistrates was an offence based upon the assertion of facts, neither the employers nor the Tribunal accept it as being correct."
He then goes on and deals with the facts of the offence and carries on:
"If they had taken into account the subsequent conduct I feel they would have reached another conclusion, a conclusion with a reasonable employer had at least the option to dismiss an employee in those circumstances if the employer was so minded."
"For myself, I agree, for the reasons given by my Lord the Master of the Rolls and Lord Justice Ackner, that the answer is to be found in the fact that, when they came to consider the fairness or otherwise of the dismissal, they appear to have concentrated exclusively on the mitigation factors affecting the employee, and entirely disregarded the very serious breakdown in trust which must have arisen from this employee persisting in a lying explanation of his conduct."