United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr JASON GALBRAITH-MARTEN (of Counsel) Instructed by: Messrs Eversheds LLP Solicitors Cloth Hall Court Infirmary Street Leeds LS1 2JB
For the Respondent	No appearance or representation by or on behalf of the Appellant


 


SUMMARY

Practice and Procedure - Postponement or stay

Question of relationship between Employment Tribunal and Care Standards Tribunal, when both have jurisdiction relating to same alleged incident of misconduct. Should Employment Tribunal hearing be stayed pending determination of Care Standards Tribunal (assuming that the Claimant lodges an appeal to that Tribunal from decision of Secretary of State's)
 


THE HONOURABLE MR JUSTICE ELIAS

1. This is an appeal against the decision of a Chairman, Mr Robertson, not to stay the hearing of Mrs Muscolino's claim for unfair dismissal. The Appellant, BUPA Care Homes Ltd, were Mrs Muscolino's employers and they are the Respondents to the claim. They sought a stay pending the determination of an assessment of her suitability to work with vulnerable adults made initially by the Secretary of State and, if Mrs Muscolino were to appeal against his decision, pending an appeal being heard by the Care Standards Tribunal (CST) pursuant to the Care Standards Act 2000.
2. In fact, circumstances have changed since the Chairman made his ruling, for reasons I recount below. However, Mr Galbraith-Marten, for the Appellant, submitted that it would be undesirable for the matter now to be reconsidered by the Employment Tribunal in the light of the changed circumstances, and that I should give a ruling as to whether proceedings should be stayed pending a decision from Mrs Muscolino whether to appeal or, if she determined to do so, pending any appeal being heard. It seems to me that I am in as good a position as the Employment Tribunal to decide that matter and accordingly I accede to that request.
3. The background, so far as it can be gleaned from the proceedings, is briefly as follows. Mrs Muscolino was employed by BUPA at Bedford Residential and Nursing Home as a night Sister. On the evenings of 13 and 14 June 2005 the Home Manager of the employers, together with the Head of Care, made a routine but unannounced night visit. Their evidence was that they found the Claimant and two Care Assistants asleep. They observed them sleeping apparently for some ten minutes.
4. The employers have a policy which provides in terms that staff should remain awake at all times when on duty and that sleeping on duty will be considered an act of gross misconduct which made lead to dismissal. The employers went through various procedures and did dismiss Mrs Muscolino for gross misconduct. That was confirmed in a letter dated 7 July 2005. There was an appeal but that was unsuccessful, so Mrs Muscolino put in her claim for unfair dismissal. She did so, it has to be said, in relatively general terms. She has not specifically made any complaint about the way in which the employers carried out their procedures but she contends that the allegation of sleeping on duty is "wholly refuted by the Claimant". The claim further suggests that the dismissal for gross misconduct was "without foundation and was unfair."
5. In the normal way, of course, this matter would have been heard by the Employment Tribunal, but the employers contend that the situation has become more complicated because of the Care Standards Act 2000. This is designed to provide certain protection for vulnerable adults and children but it is only adults with which we are concerned here. It is not apparently in issue that Mrs Muscolino was a care worker within the meaning of section 80 (2) of that Act and that she was looking after vulnerable adults within the meaning of sub-section 6 of that section. The Act requires care providers – that is the employer in this case – to refer a care worker to the Secretary of State if certain conditions are met. One of these is where the provider has dismissed the worker on grounds of misconduct which harmed or placed at risk of harm the vulnerable adult: see section 82 (2).
6. Sub-section 82 (4) provides that if the information from the provider suggests it is appropriate for the worker to be included on the list, then the worker will be provisionally put on that list pending a determination of the reference in accordance with sub-sections (5) to (7). The effect of being put on the list is to prevent the worker from working with vulnerable adults. Sub-sections (5) to (7) provide that the Secretary of State shall invite observations from the worker and provider and, after having given consideration to these observations, will confirm or otherwise the worker's inclusion on the list. The worker will remain on the list if the Secretary of State is of the opinion:

(a) that the provider reasonably considered the worker to be guilty of misconduct (whether or not in the course of his employment) which harmed or placed at risk of harm the vulnerable adult, and

(b) that the worker is unsuitable to work with vulnerable adults.

7. Clearly, therefore, it is possible that an employee may commit a particular act of misconduct which places someone at harm but is nonetheless deemed overall to be suitable to work with vulnerable adults.
8. There is a right for the worker to appeal to the CST pursuant to section 86 (1) (a) of the Act. Section 86 (3) provides when the appeal should be allowed, and if it is allowed, then the employer is removed from the list. That provision is as follows.

" 86 (3) If on an appeal or determination under this section the Tribunal is not satisfied of either of the following, namely-

(a) that the individual was guilty of misconduct (whether or not in the course of his duties) which harmed or placed at risk of harm the vulnerable adult; and

(b) that the individual is unsuitable to work with vulnerable adults,

the Tribunal shall allow the appeal or determine the issue in the individual's favour and (in either case) direct his removal from the list; otherwise it shall dismiss the appeal or direct the individual's inclusion in the list."

9. So, whereas the focus of the Secretary of State's determination is whether a provider could reasonably take the view that the worker was guilty of the relevant misconduct, the CST must decide whether that misconduct has actually been committed. Of course it then has to go on to ask the question whether it was of a nature that harmed or placed at risk of harm the vulnerable adult and whether the individual was therefore unsuitable to work with vulnerable adults.
10. It is also pertinent to note sub-sections (4) and (5) of section 86. Sub-section (4) provides that where an individual has been convicted of an offence involving misconduct which harmed or placed at risk of harm a vulnerable adult, then no finding of fact on which the conviction must be taken to have been based may be challenged on appeal under that section. Sub-section (5) need not be set out, but suffice it to say that it envisages the possibility of civil proceedings before a matter is heard either by the Secretary of State or by the CST.
11. In this case, the application to adjourn was initially considered at the point when Mrs Muscolino had been put on the provisional register, but before any determination had been reached by the Secretary of State following observations from the parties. The Chairman refused the stay and the reasons - which were briefly summarised (and there was no criticism about that) - were that he did not agree that the Secretary of State's decision was likely to assist the Tribunal, or that the determination of the Tribunal would prejudice the Secretary of State's deliberations. Accordingly, he did not consider that it was in the interests of justice that proceedings should be delayed. However, on 24 April 2006 the Secretary of State confirmed that Mrs Muscolino should be placed on the Protection of Vulnerable Adults register. That was after this appeal had been lodged but before it was heard, so there is no longer the question of any potential prejudice to the Secretary of State and - pending an appeal to the CST - there has been a finding, a binding conclusion, that Mrs Muscolino should remain on the list, which prevents her from obtaining work in the care field. She has three months from that date on which to decide whether or not to appeal to the CST: see Schedule 5 to the Protection of Children and Vulnerable Adults in Care Standards Tribunal (Amendment) Regulations 2003. (There is in fact an extension of time which is sometimes permitted by Regulation 35 of those Regulations; it is not necessary to go into the details.)
12. This case raises some interesting and not altogether straightforward issues about the relationship between the Employment Tribunal and the CST when issues arise falling within the jurisdiction of both. I have heard representations on behalf of the employers from Mr Galbraith-Marten and I am extremely grateful for his assistance on this matter. Unfortunately, the Respondent to this appeal has not attended. Her lawyer has indicated that this is for simple reasons of cost, and of course I appreciate those difficulties. Nor is the Secretary of State before me to make representations about the position of the CST.
13. Mr Galbraith-Marten asked me to lay down some general guidance in relation to the issues which have arisen here, but I am reluctant to go further than I need to resolve the particular matter before me in circumstances where I have not had the opportunity of hearing argument from other interested or affected parties. I must deal with the particular issue, namely whether in circumstances where the worker has been placed on the list by the Secretary of State, it is appropriate for the Employment Tribunal claim to be stayed pending either the lapse of the relevant time for lodging an appeal, or - if one is lodged - until that appeal has been determined.
14. In considering this issue, it is necessary to focus on what impact the decision of the Employment Tribunal would have on the CST if the former were to be heard first, and vice versa. I start with the question of whether the CST would be prejudiced in any way if the Employment Tribunal were to consider the matter first. It should be noted that, as I have said, the CST is asking a different question to the Employment Tribunal. The Employment Tribunal focuses on the conduct of the employer and asks whether a reasonable employer, carrying out a reasonable investigation, could have reached the conclusion that this employer did. By contrast, the CST - unlike the Secretary of State - has to be satisfied that the individual was guilty of individual misconduct. It focuses therefore on whether the misconduct occurred rather than on whether a reasonable employer could have so concluded.
15. Of course, the CST also has to consider the question of suitability to work with vulnerable adults and that is never an issue which arises within the jurisdiction of the Employment Tribunal at all. It is, however, a matter of some potential significance for the Employment Tribunal because in the event of a finding of unfair dismissal, it would be likely to have some impact on compensation. The fact that the worker is unable to obtain future work in her chosen field may affect future loss if, as a consequence, she is unable to obtain as remunerative employment elsewhere, or at least without having to look for a job for a longer period of time.
16. If the Employment Tribunal reaches its decision, then as Mr Galbraith-Marten accepts, that would not be binding on the CST. Section 86 (4), which we have outlined, indicates that findings of fact which must be taken to have formed the basis of a criminal conviction will be binding. However, it is clear both by inference from that section, and also, I think, by an authority to which my attention was drawn by Mr Galbraith-Marten, namely Hill v Clifford [1907] 2 Chancery, 236, that it does not apply to civil proceedings.
17. Although any finding of the Employment Tribunal may be admissible in evidence before the CST, it would not be binding upon it. That must in any event be right because, as I have said, the Employment Tribunal is focusing on whether the employer could reasonably have reached the conclusion that he did, rather than whether the misconduct was committed. Mr Galbraith-Marten submits that, nonetheless, there may be circumstances where the Employment Tribunal will in fact go further and indicate that the worker has indeed committed or not committed the misconduct alleged. That may occur if the question of contributory fault arises or, he submits, if the employer seeks to rely on what is now section 98 (A) (2) of the Employment Rights Act which permits an employer to contend that even in circumstances where there have been procedural errors - if procedures had been properly complied with - then he still would have determined to dismiss and that would have been reasonable. If the employer is able to establish that within the terms of section 98A, then the dismissal is rendered fair.
18. Mr Galbraith-Marten suggests that accordingly there could well be circumstances where the Employment Tribunal does express views on the question which is one of the very issues which the CST has to determine, namely whether the misconduct was committed. I accept that that is possible, but it seems to me that it by no means follows that even in applying section 98A (2), the Tribunal would necessarily reach any conclusion as to whether misconduct was committed in fact. What it has to ask under that section, whose precise scope is in doubt - see the conflicting decisions of this Tribunal in Alexander v Bridgen Enterprises Ltd [2006] IRLR 422 and Mason v The Governing body of Ward End Primary School [2006] IRLR 432 - is whether the employer would have come to the same view even if he had gone through the procedures, and whether he would have been acting reasonably in reaching that view. There has to be evidence which enables a Tribunal to reach a conclusion about that. It is not permitted to speculate in the absence of cogent evidence which gives it a proper basis to determine what might have been. Even though it has the evidence, and where section 98(A) (2) is raised, it is by no means going to be the case in all circumstances, it seems to me, that the Tribunal will have to reach any conclusion as to whether the misconduct was actually committed. Indeed, frequently it will not need to do so. I do not think that it would be any real prejudice or embarrassment to the CST in relation to the issue of whether misconduct has been committed.
19. The other determination which the CST has to make is whether or not there is a risk to vulnerable adults. Plainly, as I have said, that is not a matter for the Employment Tribunal and therefore, any ruling by the Employment Tribunal cannot embarrass the CST in any way about that. That Tribunal with its own specialist knowledge will be able to reach a verdict on that matter. So whilst I recognise that there is a risk of some embarrassment - if the Employment Tribunal were to express the view that the employee had not committed the conduct in question and the CST, whilst giving weight to that, came to a different view - that is not, in my opinion, a likely outcome and in any event, it is something that only arises if the Respondent herself chooses to pursue the matter before the CST. If she wishes to pursue both her independent claims, then insofar as there is any conflict in the decisions, that is a matter which, if it causes her to feel aggrieved, is a consequence of her having determined to pursue proceedings down both channels.
20. I now consider the question the other way round. If the CST were to reach a conclusion first, then although the determination as to whether she could properly work with vulnerable adults would be binding on the Employment Tribunal, the finding that she had committed misconduct would not.
21. That seems to follow from the case to which I have made reference, namely Hill. In that case, the terms of certain partnership deeds provided that the partnership could be determined if either partner was guilty of "professional misconduct". The General Medical Council (GMC) had determined that Clifford's name should be struck off the Register of Dentists on the grounds that he had been guilty of conduct "which was infamous or disgraceful in a professional respect," within the meaning of the Act. The question was whether that finding of the GMC was admissible in an action between the partners. The Court of Appeal concluded that the order was admissible as prima facie evidence of the fact that Cliffords were guilty of acts "infamous or disgraceful in a professional respect" but it was not conclusive evidence of that fact. However, the order was conclusive evidence of the fact that the defendant's name had been erased from the Register: see in particular the observations of Sir Gorell Barnes at page 252.
22. In my judgment it follows that any conclusion that Mrs Muscolino should be on the list would be conclusive evidence that she could not work with vulnerable adults, but the facts on which that conclusion were based would be evidence, but not conclusive evidence, which could be adduced before the Employment Tribunal. I accept that any finding that she should not remain on the register, would, as I have said, mean that the Tribunal could not fix compensation on the basis that she might thereafter obtain employment in that field.
23. Mr Galbraith-Marten suggested that an employer might seek to say that since the dismissal was unfair, then she should be able to recover compensation by virtue of being placed on the list because, but for the unfair dismissal, she would not have been placed on the list at all. He does not submit that that is a good argument but merely that it is a potential one. I have not heard full argument on that matter but I would have thought it extremely doubtful whether that claim was sustainable. The employers, as I have indicated, are under an obligation to notify the Secretary of State, once they dismiss a worker for alleged misconduct of this kind. The decision thereafter to place that employee on the register and then to confirm that decision is to be taken by the Secretary of State and not by the employer. Likewise, if the worker is kept on the register following an appeal, that is the decision of an independent Tribunal and not of the employer.
24. I very much doubt whether an employer would be liable in damages in those circumstances, given that the actions taken which debar the employee from obtaining employment in the chosen field are not the actions of the employer itself. In any event, the fact that dismissal is unfair, as I have said, does not demonstrate that the misconduct was not committed.
25. Finally, I note that even if this argument is sustainable, then it is sustainable now, as a result of the ruling by the Secretary of State and therefore it is not an argument that merely arises as a result of any determination by the CST. There is, of course the possibility that the Employment Tribunal would find the dismissal unfair and later the CST would remove the applicant from the register. It may be said that it is desirable that this should be known before the question of unfair dismissal is determined because of the impact on remedy which I have outlined. I accept that it would have some benefit but in my view it would not be sufficient on its own to justify a delay in permitting this employee to pursue her rights.
26. The other issue which the CST has to determine, as I have indicated, is whether misconduct has taken place. That again would not be binding on the Employment Tribunal but is likely to be admissible in the light of Hill. Mr Galbraith-Marten suggests that the CST is in a better position to consider whether misconduct has occurred than at the Employment Tribunal. It will typically question a wider range of persons than an Employment Tribunal would. That follows because it is looking at a different question; namely whether the misconduct actually occurred rather than focusing on the behaviour of the employer. He submits that it is preferable, for that reason too, that the matter should go to the CST first. As I have said, he also contends that where the employer relies on section 98 (2) of the Employment Rights Act then a finding that there was actual misconduct is going to be highly material to the question whether that defence can succeed. I have already indicated why I do not think that it would be in any sense conclusive of such a finding. It follows from that that I don't accept that a ruling by the CST which is against the employee, would be decisive of the hearing before the Employment Tribunal.
27. There would still, it seems to me, be an issue for the Employment Tribunal to determine, namely whether the employer was acting reasonably in all the circumstances and reaching the conclusion it did. Moreover, it is worth pointing out, as I have said, that there is no ostensible challenge to the procedures in this case, although I accept Mr Galbraith-Marten's point that this might well be the case when the nature of the claim is fully particularised. I should add that I have no evidence about how long it might be before the CST is to hear an appeal of this nature, if or when Mrs Muscolino chooses to lodge such an appeal and it would be wrong to speculate about that.
28. Bearing all these matters in mind, it seems to me that it is not appropriate at this stage to stay these proceedings in the way sought by Mr Galbraith-Marten. The CST is a specialist Tribunal focusing in particular on the question of vulnerability and whether the worker should continue work with vulnerable adults. No decision by the Employment Tribunal will affect that, assuming that the Employment Tribunal does in fact hear this matter first. The Employment Tribunal, I accept, will be faced potentially with the uncertainty of knowing whether the CST might change the picture with regard to remedies by finding that the employee should be allowed to work with vulnerable adults but I do not think that potential impact on remedy justifies delaying the employee's right to have the unfair dismissal claim heard by the appropriate Employment Tribunal. The Tribunal might choose to deal with that by deferring any remedies hearing but that would be a matter for it depending on the circumstances and the arguments before it at the material time. Nor do I think that the risk that the Employment Tribunal might make a finding on whether there has in fact been misconduct, which I consider unlikely and would not in any event bind the CST is such as to make it necessary in the interests of justice that the CST should hear matters first. If it were to do so, it would not preclude a future hearing before the Employment Tribunal in any event.
29. For these reasons, therefore, and given that there ought to be good reason to prevent an employee from pursuing her rights before the Tribunal, I conclude that a stay should not be granted and therefore the appeal fails.