United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR C BEALEY (Consultant) Instructed by: Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB
For the Respondent	MR A ELESINNLA (Of Counsel) Instructed by: Messrs Bermans Solicitors Pioneer Buildings 65/67 Dale Street Liverpool L2 2NS

SUMMARY

Tribunal Counsel to find unfairness where anonymous allegation not put to employee in disciplinary hearing but referred to its dismissal letter.

Polkey/contributory behaviour should have been considered by Tribunal.


 


HIS HONOUR JUDGE ANSELL

1. This is the hearing of an appeal against the finding of unfair dismissal. It follows a hearing which took place before a Plymouth Employment Tribunal on the 17 August 2004, the Decision itself being promulgated on the 9 November. This appeal takes place following leave given at a Preliminary Hearing on the 8 April 2005 chaired by His Honour Judge Clark. Judge Clark identified 3 issues certainly on the topic sheet as follows. The Birchell finding based on the relevant factors or factors contrary to evidence, contributory behaviour not addressed and credit only given for half incapacity benefit contrary to the recently decided case of Morgans v Alpha Plus Security [2005] IRLR 234.
2. The background facts are that Mr Crisp worked as a domestic assistant for the Respondent Nursing Home, today's Appellants and he became a care assistant from the 19 August 2002 being dismissed on the 5 December 2003. The Appellants operate the Merafield View Nursing Home. That nursing home along with all others is subject to inspection by the National Care Standards Commission. His background disciplinary behaviour was generally good although in October 2002 he had received a verbal warning after a disciplinary investigation. In December 2002 there were unsubstantiated allegations but a record was nevertheless kept on his personnel file for a period of 1 year.
3. On the 16 October 2003 an anonymous complaint was made to the Commission relating to the Respondent. The NCSC advised the Home that they had received a complaint to the effect that the Respondent had been involved in an incident in the lounge with a male resident and had been observed telling him to wipe his mouth with a napkin. According to the allegation the resident's mouth was full of blood and saliva and the note made of the complaint recorded by the Tribunal suggests that the victim had been hit. The matter was reported to the Matron, Mrs Charles and Mrs Phillipson, the then Deputy Matron, who investigated the matter. The Claimant was seen. He was formally informed of the brief nature of the allegation and thereafter he was suspended. The employers then decided to write to all members of staff asking them to write a short statement setting out their views and experiences of working with the Respondent. A number of statements were received. Some spoke well of him. Others were neutral but 11 statements were received which were adverse to him and in particular one of them came from the care worker Hayley Davies. Her statement given on or about the 17 October stated that on 3 September 2003, 6 weeks earlier, she had seen the Respondent ill treating one of the residents, a Mr B. The facts of that incident did not appear to be the same as the anonymous complaint which had been reported to the Commission.
4. The other adverse statements spoke in general terms of occasions when the Respondent had sworn at and had been abusive to residents. The residents involved included Mr B but there were other residents included in the allegations. On the 20 November an investigatory meeting was held. The Respondent was given the11 statements in preparation for that meeting. It also now appears that contrary to a finding made by the Tribunal he was also given the other statements of the other witnesses. The Police had also intervened and in due course a prosecution was commenced. We need not refer to that matter any further as far as this case is concerned.
5. The conclusion reached by Mrs Phillipson was that there was a case to answer. A disciplinary hearing was convened. The Respondent had denied the incidents particularly that on the 3 September although admitted that jokingly he had said something to Mr B about washing his mouth out with soap. This referred to one of the incidents that Hayley had alleged. The disciplinary hearing took place and at the conclusion Mrs Charles, the dismissing officer, found that he was guilty of the matters alleged and the appropriate penalty was dismissal.
6. The letter of dismissal stated that the matters of concern were:

"an anonymous allegation made to the National Care Standards Commission accusing you of physical and verbal abuse towards a patient in your care and a number of disparaging statements about the standard of care that you have been providing."

The letter then went on to record that the Respondent had alleged that his colleagues had conspired against him and made the allegations to discredit him but that idea was rejected by Mrs Charles. In due course there was an appeal before Mr Brien who confirmed the dismissal. Before Mr Brien the Respondent had raised a number of issues and in particular had suggested that his colleagues or former colleagues may well have made up these matters against him because he had made complaints against them previously. Mr Brien rejected that suggestion but according to Tribunal did not make any independent inquiry about that suggestion.

7. In paragraph 23 the Tribunal set out a number of reasons why they felt that the employers had not acted fairly in relation to their investigation. Firstly they criticised the Appellants for failing to give the Respondent any information as to the progress in relation to the Police investigation and in particular the nature of the anonymous allegation made to the Commission and the outcome of the Commission's investigations. They did not criticize the employers for failing to interview the residents particularly as they were elderly and vulnerable. They criticised Mr Brien for failing to investigate the suggestion admittedly made for the first time before him that the staff members were acting in retaliation. Then they erroneously found that the Respondent had not been given the statements which supported him. The Tribunal in conclusion in paragraph 23 then said this:

"Most importantly, however, the allegation that Mr B had blood and saliva in his mouth, leading to the suspicion that the applicant had hit him was never put to him although it was known to Mrs Charles and had led to his suspension. The cumulative effect of these failures is, in judgment, to render this an unfair dismissal,"

8. The appeal seeks to analyse that paragraph and suggests that the overall conclusions made by the made by the Tribunal were incorrect. Before us it has been submitted eloquently by Mr Bealey that the issue of whether or not information was given as to the progress in relation to the Police investigation and the Commission's investigation was really irrelevant to the issue of the employee's conduct and could not be said to affect the fairness of the decision that was taken.
9. He criticised the Tribunal for bringing into the melting pot the issue of the failure to supply the exculpatory statements which is now conceded was wrong. On the issue of Mr Brien failing to make any further enquiries about the new allegation retaliation it is submitted by Mr Bealey that first of all Mr Brien was entitled to come to a view that this was a matter raised very much at a late stage, had not been raised in this way before the matron and therefore was being used in the sense of the smoke screen to avoid the effect of the dismissal and in particular he argued that before the matron a similar allegation was raised that the employees had conspired against him and that if he was making that allegation before the matron at that stage why had he not suggested that at that stage that it was done in retaliation. He therefore submitted that Mr Brien was entitled not to investigate it further and that therefore that was not a defect within the appeal procedure.
10. Mr Bealey conceded that within the dismissal letter the anonymous complaint was mentioned and should not have been because the employee was not given an opportunity of dealing with that complaint in detail before either the matron or the appeal hearing. However he argued that the Tribunal had over emphasised the importance of that failure because erroneously they had connected that incident with Mr B the victim of matters that were referred to by other witnesses particularly Hayley Davies. We spent some time within this hearing to try and find out precisely why the Tribunal attributed Mr B as a victim of the anonymous complaint. Mr Elesinnla has suggested that it arose because that is the way that the employee had dealt with it both in his statement and more particularly at the hearing, he suggested that the Respondent had alleged that Hayley was the anonymous complainer to the Commission.
11. We have looked at the employee's statement and there is no suggestion in statement that he linked the Hayley complaint to the anonymous complaint. There is a difference of opinion and recollection between the 2 representatives as to how Mr Crisp dealt with that matter before the Tribunal. However, at the end of the day it seems to us that the core of the Tribunal's decision, leaving aside the other reasons they give is the failure to have put this allegation put to Mr Crisp if the employers then went on to mention it in their dismissal letter. Further in mentioning it in the dismissal letter they put it at the top of their list of complaints. When they were listing matters of concern in the letter the anonymous allegation is the first of the 2 matters to be raised. It is described in detail as an allegation of physical and verbal abuse contrary to the 11 complaints about which they heard more evidence which the employer simply described as a "number of disparaging statements" the Tribunal's criticism of the employers elevating this anonymous allegation and using it to such a high degree within the dismissal letter is in our view not weakened or minimised by the fact that a number of the subsidiary reasons that they have indeed fallen away.
12. Having said that, it seems to us that their particular complaint in relation to the failure to give the Claimant information about the Police or the Commission's investigation does make sense when this linked to the anonymous allegation. It seems to us that those two should be read together. That was the intention of the Tribunal's decision. We accept that they made a mistake in relation to the allegation that the supporting statements had not been disclosed. We see nothing wrong in the making a criticism as far as Mr Brien was concerned. It was open to them to take a view on the evidence that Mr Brien should have investigated the additional matters even if it was to the extent of speaking to the witnesses briefly and coming back and saying that he had looked into the matter. It was a criticism in our view that was open to the Tribunal taking the view as they did of what a reasonable employer would have done in the circumstances.
13. It seems to us therefore that although some criticisms can be made of paragraph 23 the substance of the Tribunal's conclusions particularly in relation to the anonymous complaint have validity and it seems to us that they were not perverse and therefore that decision as to unfairness must stand. On the issue of contributory behaviour, in our view this was clearly a case in which even if no submissions had been made, the Tribunal were bound to raise issues of Polkey and contribution in a case where there were other serious allegations leaving aside the anonymous complaints of poor behaviour on behalf of the employee concerned.
14. However, it goes further than that because although the Chairman in a letter says he has no note or recollection of these issues being raised we are quite satisfied that Mr Bealey did raise the issue of contributory behaviour and indeed his recollection is supported by his reminding us of the authority that he actually used at the time when making submissions to the Tribunal. We are satisfied therefore that matter was raised and demanded an answer from the Tribunal and we are left in no doubt that we should remit the matter back to the same Tribunal for them to deal with issues of Polkev and contributory behaviour.
15. Finally, the issue of whether half or all of the invalidity benefit should have been deducted from the gross losses submitted by the employee. This issue has been a subject of conflicting decisions from the EAT for some time but as we indicated at the outset of this Decision has now been resolved as a result of the Decision in Morgans which clearly sets out that the full amount of benefit has to be deducted. We are told that before the Tribunal Mr Elesi
16. nnla made formal submissions as to whether it should be fifty per cent or hundred per cent. Mr Bealey was uncertain, had not the relevant authorities to hand and it seems the Tribunal itself was also uncertain and reached as it were a consensus decision that fifty per cent was the appropriate amount.
17. Mr Elesinnla argues before us that we should not allow an alteration to that amount since in effect it would allow the employers to have the benefit of a change in the law that has occurred since the Tribunal Decision was reached. However, we do not view it as a change in law. There was uncertainty beforehand. They were conflicting decisions which as we have indicated now have been resolved. It seems to us that we should follow that decision and allow the full amount to be discounted. There is unfortunately some uncertainty of the precise mathematics involved and so what we have proposed to do is to remit this issue back to the same Tribunal with a direction that they should allow the full amount of the incapacity benefit with the precise amount to be agreed between the parties or alternatively the subject of a Tribunal Decision. Therefore for the reasons that we have indicated and in the limited way that we have allowed this appeal is allowed.