United Kingdom Employment Appeal Tribunal

APPEARANCES

 

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:

1. This decision is a majority decision. The Chairman and one of the members form a majority, the other member forms the minority. This is an appeal against a decision of an Employment Tribunal held at Liverpool on 22 November 2000. The decision was sent to the parties on 21 December 2000. By the decision the Tribunal held that Mr Barr, the Applicant and Respondent before us, had been unfairly dismissed but assessed his contributory fault at 75%. I should say there is a cross appeal by Mr Barr in which he challenges that figure of 75%.
2. The circumstances are these – Mr Barr was for 28 years a nursing assistant, he was employed at the time of his dismissal at the Guild Community Healthcare NHS Trust. That was in the Secure Services Department. His employment started in March 1972 and his dismissal was on 27 April 2000. It arose out of an incident on 12 March 2000 in the Fairoak Ward. A patient, Mr Critchley, who was an unpredictable and sometimes violent man, jumped in the air karate style. He did this on a number of occasions; it was near where Mr Barr was sitting. The patient's foot came fairly close to Mr Barr's face. When Mr Critchley, the patient, came down his cigarettes fell out of his pocket. As he stooped to pick up his tobacco and then started to stand up again he was assaulted by Mr Barr, who muzzled him from behind by putting his arm across Mr Critchley's mouth. As result of this Mr Critchley sustained a small cut to his lip.
3. Mr Critchley was someone who was well known to Mr Barr. Mr Barr had received updated training in control and restraint procedures. The procedure he adopted was not an approved control and restraint procedure. Mr Critchley complained, Mr Barr was suspended, an investigation was carried out, and there is no criticism of the investigation.
4. Mr Barr made 2 statements. The first of those statements made the day after the incident indicated that the incident was purely banter and play fighting and there was no malicious intent. In the second statement Mr Barr sought to change his ground pretty substantially and said in the material paragraph this:

"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."

5. A disciplinary hearing took place, at the conclusion of which Mr Barr was dismissed. He was represented by a union official and no criticism is made of that hearing, save as to the outcome, namely the decision that he should be dismissed. He appealed against that decision and the decision to dismiss was upheld. On the appeal the appropriateness of dismissal being the relevant sanction was raised. There was no oral or documentary evidence available to the Employment Tribunal as to what consideration was given by the panel to that issue and their decision was summarised in 2 lines without reasons being given. At the original disciplinary hearing, Mr Swann who chaired it and the 2 other members considered what had occurred and considered that it amounted to gross misconduct.
6. It was said to be gross misconduct under the Guild Community Healthcare's Disciplinary Rules and Procedure, which provides so far as material as follows:

"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.

7. When the matter came before the Employment Tribunal, Mr Barr did not appear. It was only the NHS Trust, the employer, which appeared and the Tribunal appears to have considered the documents with care and to have rigorously examined Mr Swann who gave oral evidence. The facts as I have outlined them hitherto are the facts as found by the Tribunal. The Tribunal then went on and considered whether in the particular circumstances of the case the decision to dismiss the Applicant fell within the band of reasonable responses which a reasonable employer might have adopted. They considered Iceland Frozen Foods v. Jones; Post Office v. Foley and HSBC Bank v. Madden. They then expressed the conclusions as follows:

"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."

8. The Tribunal then went on and assessed Mr Barr as being 75% at fault and that was a decision in which all three members agreed. In agreeing that the compensatory award should be reduced by that proportion.
9. On behalf of the employer, it is said that the Tribunal erred in law because it is said they committed the fault which the Tribunal could committed in the case of British Leyland v. Swift to which we were referred in it the then Master of the Rolls, Lord Denning, said this at paragraph 11:

"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.

10. That ground of appeal therefore failed and had matters stopped there it could not have been said that there was any perversity in the decision that was then reached. Unfortunately, so far as the view of the majority of the Tribunal is concerned the matter did not stop there.
11. Whilst the minority takes the view that when one applies a broad brush to the whole of the decision one cannot say that the decision was one to which the Tribunal could not properly have come. The majority take the view that the Tribunal erred in law. What the Tribunal had to look at was a case where an employee had committed an assault which on the face of it was gross misconduct. There is nothing in the decision which indicates that the Tribunal took any other view. They found the assault was proved. It was not a matter which was in dispute. Such an offence was gross misconduct was under paragraph 1.3 of the Disciplinary Rules & Procedures to which I have already referred, an offence for which Mr Barr was liable for dismissal unless there were mitigating circumstances. The Tribunal appear to have misunderstood Mr Swan's evidence in the passage which I have already read, which I will now re-read:

"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."

12. What Tribunal appear to be saying - and this is where it fell into error - is that the dismissal was not a dismissal for the assault but was a dismissal for two offences, one the assault and secondly the disingenuous second statement and the attempt to mislead the disciplinary hearing as to what had occurred. That in our judgement is an error because the true position was that the dismissal was because of the assault. That was the reason for dismissal but there were mitigating circumstances. In considering what those mitigating circumstances were, Mr Swan and his colleagues looked at, in particular the 28 years of unblemished service on the one hand and on the other hand, the second statement which Mr Swan described as being detrimental towards the patient in question and which sought to implicate other staff by reference for alternative view of events. Because that statement and Mr Barr's overall approach in defence of the allegation gave the panel grave concern as to his capability to acknowledge his inappropriate behaviour to learn from the situation or perform his duties professionally and effectively in the future. Those matters then had to be balanced in considering the mitigation against the undoubted worth of Mr Barr's long and hitherto unblemished service. What the Tribunal have in our judgment done is to fail to identify the two different strands to the panel's decision, namely one, that there was something which merited dismissal unless there were factors to be taken into account by way of mitigation and the other, the various balancing factors in the mitigation.
13. The second statement was not, contrary to what the Tribunal said, an irrelevance to the decision to dismiss. The mitigation of a person admitting their error is always a factor in determining whether or not the offence is something for which they should be dismissed. Most recently this was spelt out by Mr Recorder Underhill in Tesco Stores v. Othman-Khalid where he said at paragraph 7:

"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."

14. Similarly Lord Justice Griffiths as he then was, at the end of paragraph 27 said:

"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."

15. In these circumstances it seems that the majority that what happened here was that the Tribunal erred in law because they misconstrued what had occurred and they failed to consider (as they should have done) the undoubted relevance of Mr Barr's reaction and his inaccurate and disingenuous attempt to divert blame from himself. In our judgment, had they approached the matter properly, they would have inevitably come to the conclusion that the penalty of dismissal was a penalty which was within the reasonable band of responses because there was an undoubted and undisputed assault constituting gross misconduct and because the original disciplinary panel and the body which heard the appeal from that were entitled to take the view which they did and were entitled when weighing the extent of the mitigation to come to the conclusion which they did. In those circumstances we take the view, by a majority, that although the decision to dismiss may have been a harsh one given Mr Barr's lengthy period of service, previously unblemished, it was a decision which was within the band of reasonable responses and which the Tribunal, had it properly directed itself, would have concluded within the band of reasonable responses.
16. Accordingly, the substantive appeal against the finding of unfair dismissal is allowed. It follows from that that the remaining ground of appeal and the cross appeal relating to the proportion, if any, to be deducted from the compensatory award of compensation no longer arise. We should say however, that we take the view that the decision that the Tribunal reached on the basis that there was an unfair dismissal, namely that contributory fault was assessed at 75% is unimpeachable and we disagree with the submissions made by both Appellant and Respondent who were united at least in this in saying that that figure of 75% was perverse.
17. It follows therefore that the appeal will be allowed. We do not find it necessary to remit the matter for a re-hearing and a decision that Mr Barr was fairly dismissed will be substituted for the decision of the Tribunal.