United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	Mr Robert Kellar (of Counsel) Instructed by: Messrs Richard Hutchinson & Co Solicitors 9 College Street Nottingham NG1 5AQ
For the Respondent	Mr W Alexander (Representative) Derbyshire County Council Welfare Rights Service Long Close Cemetery Lane Ripley Derbyshire DE5 3HY


 


Summary

Very unusual case. The Employer was almost totally disabled; the employee was his carer. The employer believed that their essentially close and intimate relationship had broken down; and he did not wish the carer to continue; she was dismissed. The Tribunal found that some other substantial reason had not been made out and that the dismissal was procedurally unfair. Held that the Tribunal had applied the wrong test to the ascertainment of the reason for the dismissal and had failed to take into account the true nature of the facts in deciding unfairness. Remitted for rehearing by fresh tribunal.


 


HIS HONOUR JUDGE BURKE QC

1. This appeal arises from an unusual and far from straightforward unfair dismissal claim which the Employment Tribunal, sitting at Nottingham and chaired by Mr James, resolved in favour of the employee, Ms Calvert. The employer, Mr Hutchinson, challenges that decision, sent to the parties with written reasons on 17 January 2006, as having been reached in error of law. Mr Hutchinson was, at the date of the hearing before the Tribunal, 28 years old. He suffers from muscular dystrophy and is very seriously disabled; he receives disability living allowance and severe disability allowance; he is unable to carry out almost all physical activities without assistance, as the Tribunal found. In paragraphs 2 and 3 of his witness statement, which was put before the Tribunal, he said this:-

"(2) Due to my disability the majority of my time is spent in bed; everyday I have to go on the Rife machine for half an hour. This machine relieves some of the pain that I constantly suffer from. If I am having a good day then I will get up and spend 2 or 3 hours in the afternoon in my motorised wheelchair before going back to bed again.

(3) As a result of my disability it is necessary for me to have a carer who helps with my day-to-day needs, such as washing, getting dressed and even going to the toilet, in other words everything as I cannot do anything on my own except play on my playstation when somebody places my hand over the joypad. The only other thing I can do for myself is to drink through a straw when someone places the straw in my mouth."

2. The facts set out in those paragraphs were not in dispute before the Tribunal. It is not in dispute and follows from what we have just read out that the assistance which Mr Hutchinson required included assistance for intimate personal activities. Obviously, Mr Hutchinson needed and no doubt still needs a carer; and arrangements for the provision of care were made by social services; the cost of care was met by the Benefits Agency.
3. Ms Calvert became Mr Hutchinson's carer or principal carer in January 2002; it is not in dispute that she was employed by Mr Hutchinson. We are told that it is current policy for the agencies concerned with the provision of care to recognise the autonomy of a disabled person by making arrangements whereby that person is the employer of the carer. Whether that policy should be sufficiently wide in its operation to include as employers those who are almost totally disabled, as in this case, is not for us to say; there is no suggestion that Mr Hutchinson had any experience or training in or knowledge of the obligations imposed by law upon or of the requirements of good practice expected of an employer; but we are told that the local authority provided some supervision.
4. It hardly needs to be said that the relationship between an employer as disabled as Mr Hutchinson and his carer has to be based on complete trust and confidence. There was evidence before the Tribunal from both Mr Hutchinson, as set out in his witness statement, and from Ms Calvert, as set out in a letter written by her, dated 27 June 2004, which was part of the evidence before the Tribunal but to which the Tribunal did not refer, that the relationship between Mr Hutchinson and Ms Calvert was, to put it shortly, becoming frayed prior to the events of 18 to 22 May 2004 which led directly to the end of that relationship. Ms Calvert said in the third paragraph of that letter, "Not surprisingly a slightly uneasy atmosphere had begun to prevail and areas where there was a conflict of interest such as with holiday entitlement required me to tread carefully"; and she described the events of 18 to 22 May 2004 as "the culmination of a number of months of mounting criticism regarding the quality of the attention which I was paying to Mark". Mr Hutchinson described a number of incidents which had occurred prior to that culmination.
5. The Tribunal, at paragraph 3.4 of their decision, in their findings of fact said "the relationship between the Claimant and the Respondent proceeded satisfactorily for more than 2 and a half years, there does not appear to have been any disagreement or complaint between them, other than purely trivial matters which could be expected to arise in a relationship such as that between a carer and a severely physically handicapped individual".
6. Mr Kellar, on behalf of Mr Hutchinson, submitted that the Tribunal nowhere in their findings of fact set out the full nature of Mr Hutchinson's disabilities and that, in the context of those disabilities and the essential nature of the relationship between Mr Hutchinson and his carer, the Tribunal could not properly regard the history prior to the events of 18 to 22 May as trivial. While he did not put this point forward as a freestanding ground of appeal, we agree that it would have been preferable if the Tribunal had described the full nature of Mr Hutchinson's disabilities and made findings as to the earlier history of the relationship between Mr Hutchinson and Ms Calvert because such findings, in the context of the disabilities, might have affected their view of what subsequently occurred.
7. That relationship came to an end over a period of 4 days, between 18 and 22 May. On 22 May Ms Calvert was dismissed summarily by Mr Hutchinson's mother, who was no doubt acting, as she saw it, in the best interests of her son and was admittedly acting on his behalf.
8. The Tribunal correctly directed themselves, at paragraph 2(1) of their judgment, that they had to decide what was the reason or principal reason for the dismissal, was that reason a potentially fair reason, was the dismissal for that reason and had Mr Hutchinson acted fairly in all the circumstances.
9. There was limited factual dispute between the parties as to the events of those final days Mr Hutchinson's account was that, on 18 May, Ms Calvert asked him about holidays due to her, sick pay and by whom she was employed, Mr Hutchinson or his mother. He suggested that she should speak to his mother; but the opportunity for such a conversation did not arise. Ms Calvert left a note for Mr Hutchinson's mother who arranged that Ms Whittingham of the local authority should come to the house to discuss those issues with Ms Calvert. On the next day Mr Hutchinson told Ms Calvert of this arrangement. On 20 May it was Mr Hutchinson's case that, after he had been on the Rife machine, Ms Calvert said to him "have you got a problem with me being here". He asked her "why"; and she said "just lately it's been one thing after another"; she became irate and said, in a nasty way, that she did not want Ms Whittingham to come. Mr Hutchinson was reduced to tears by the way Ms Calvert had treated him and felt that the mutual trust between them had gone. As a result he told his mother that he did not want Ms Calvert to be his carer any more; and thus his mother so informed Ms Calvert. Mr Hutchinson accepted that his mother had mistakenly told Ms Calvert that she, Ms Calvert, had shouted at Mr Hutchinson and later corrected that incorrect allegation.
10. Ms Calvert's account was that there had been a discussion between herself and Mr Hutchinson on 19 May about her holiday entitlement and that Mr Hutchinson had become agitated and argumentative as a result. She was prepared to discuss those issues with Mr Hutchinson's mother and left a note for her; but the opportunity for a discussion did not arise until the next day. On 20 May, after Mr Hutchinson had been on the Rife machine for thirty minutes, he buzzed her to take him off the machine; she was puzzled because, in the previous week, he had insisted that she should take him off the machine after a shorter period and asked him why he had decided to stay on the machine for thirty minutes. As a result, she said, he had become agitated and said that he would stay on the machine for as long as he wanted. He referred to the forth-coming discussion with Ms Whittingham. Ms Calvert said it was not a major issue and Ms Whittingham need not be involved; but Mr Hutchinson became more agitated and asked her to fetch his mother which she did; and then, on 22 May she was told by Ms Hutchinson that she was dismissed for shouting at Mark.
11. The Tribunal found that, on 18 May, Ms Calvert mentioned to Mr Hutchinson that she needed to discuss with his mother details of holiday due and sick pay and to satisfy herself, as to the identity of her employer, since she had always dealt with such matters through Mr Hutchinson's mother, rather than with Mr Hutchinson. No such conversation took place with Mr Hutchinson's mother, but it had been agreed that Ms Whittingham would come and discuss the issues; arrangements were made for Ms Whittingham to attend of which Mr Hutchinson informed Ms Calvert on the next day. As to 20 May, the Tribunal's findings of fact are set out in paragraph 3.8 of the judgment as follows:

"3.8 On the morning of 20 May 2004 the Respondent's mother was unavailable to discuss the question of holidays. On that same morning the Respondent was assisted onto a piece of equipment known as 'the Rife machine' which he used for pain relief. The Respondent buzzed the Claimant after 30 minutes for assistance to remove him from the machine. The Respondent had been on the machine for a longer period than was usual and, indeed, a short time previous to this date he had complained that the Claimant had not been up to remove him from the machine quickly enough. The Claimant asked why he had decided to stay on the machine for 30 minutes and the Respondent responded in an agitated manner stating it was his responsibility as to how long he stayed on the machine and he would stay as long as he wanted. The Respondent also told the Claimant that he had arranged for Annette Whittingham to speak to her about the holidays. The Claimant replied that it was not a significant issue, that it was not necessary for Ms Whittingham to be involved and she indicated that the appointment could be cancelled. The Claimant offered to cancel the appointment herself. At this point the Respondent became more agitated and asked the Claimant to fetch his mother. The Respondent's mother discussed matters with the Respondent but on that occasion said nothing further to the Claimant."

As to the dismissal the Tribunal's findings, at paragraph 3.9, are in these terms:

"3.9 The 21 May 2004 was a Friday and the Claimant did not work on that day. On the morning of Saturday 22 May 2004 the Respondent's mother contacted the Claimant and informed her that she was dismissed. The reason given was that she had shouted at the Respondent. It was in a subsequent telephone conversation the Respondent's mother clarified that there was no allegation of shouting to the Respondent but not until 17 July 2004 did the Claimant receive any written notification as to the reasons for her dismissal. In that letter it was confirmed that the Claimant had been dismissed after "your outburst on that Thursday which left Mark shocked and upset." Subsequently, and after the Claimant had filed her application with the Employment Tribunal, the Respondent's mother wrote to her on 30 November 2004 stating the reason for ending the employment was "On Thursday 20 May Mark was very upset about the way in which you treated him. He was reduced to tears. After you left Mark asked me to let you know that you were no longer welcome in his home and that he did not want you to care for him any more. The relationship between you had broken down."

12. The case for Mr Hutchinson was that the reason for dismissal was some other substantial reason, namely the breakdown of trust and confidence between the parties, which breakdown was attributed by Mr Hutchinson to the actions of Ms Calvert. It was submitted that the relationship between Mr Hutchinson and his carer was even more intimate and personal than that of husband and wife and that the relationship could not endure if there had been a breakdown in the essential complete degree of trust, whatever was the cause. Thus there was a potentially fair reason for the dismissal; and dismissal for that reason was fair, Ms Calvert's case was that there was no good reason for the dismissal, that it had been wrongly alleged against her that she had shouted at Mr Hutchinson and that her dismissal was, in any event, unfair.
13. The Tribunal's conclusions as to unfair dismissal, are set out concisely in paragraphs 5.1 and 5.2 of their judgment in these terms:

"5.1 The Tribunal has considered this matter very carefully and accepts that the relationship between a carer and a disabled person is very different to that of an ordinary employment relationship. In addition the Tribunal accepts that the nature of that relationship is based upon personal trust and is more susceptible to breakdown than possible ordinary employee/employer relationships are. However, the Tribunal has had to consider how it is alleged this relationship has broken down. The issues between the parties appear to relatively insignificant and of the nature of issues that could be resolved with a measure of consultation and co-ordination. No attempt was made to do this by the Respondent.

5.2 Accordingly the Tribunal finds that the acts or matters complained of by the Respondent do not amount to 'some other substantial reason' within the meaning of Section 98 of the Employment Rights Act. Further, and in addition, both contractually and as a matter of law the Claimant was entitled to procedural fairness. It is clear from the facts and matters given to the Tribunal that no procedure was adopted by the Respondent in this matter. The Claimant was summarily dismissed without being informed of the matters upon which the Respondent relies before the Tribunal. The dismissal was in reliance of facts and matters which were withdrawn as true statements prior to the matter coming before the Tribunal; namely an allegation that the Claimant had shouted at the Respondent. The absence of any procedure in this matter makes the dismissal procedurally unfair as well."

14. At paragraph 5.3 the Tribunal concluded that Ms Calvert was not guilty of any contributory conduct. They then said this

"It follows that we are satisfied that had a proper procedure been adopted the Tribunal was still satisfied that the substantial unfairness would have rendered the dismissal unfair."

The Reason for Dismissal

15. Mr Kellar submitted that the Tribunal, in paragraphs 5.1 and 5.2 of their judgment, had applied the wrong test in reaching the conclusion that the potentially fair reason relied upon by Mr Hutchinson, namely some other substantial reason of a kind such as to justify the dismissal of the employee, holding the position which the employee held, within Section 98(1)(b) of the Employment Rights Act 1996 was not made out. He submitted that, in this case, the Tribunal had confused the stage of considering whether the employer had made out the asserted reason for dismissal, with the stage of considering whether it was fair to dismiss for that reason. The first stage, he submitted, requires consideration not of objective facts but whether the employee genuinely believed in the reason which he put forward for the dismissal; the reason which was put forward in this case was capable of being a fair reason and should not have been considered on the basis of what were objectively the reasons for the breakdown between the parties, which were matters which went only to questions of reasonableness. He relied on the decision in Harper v National Coal Board [1980] IRLR 260, in which (in a very different factual context relating to the epilepsy of an employee and the effects of his epilepsy on other employees), the Employment Appeal Tribunal said, at paragraph 8 of their judgment:-

"Even if they did however, they had not excluded the alternative that the reason for this dismissal was some other substantial reason of a kind, such as to justify the dismissal of an employee holding the position which the Appellant held."

16. It was submitted on behalf of Ms Calvert that it was not sufficient to bring a case within section 98(1)(b), simply to show that the employer, for reasons of his own, regarded the reason as a substantial one. There must, it was said, be facts which indicated the employer was entitled to regard the reason as being substantial; reference was made in this connection to Hollister v National Farmers' Union [1979] IRLR 238. This proposition may be correct, but within certain limits. Obviously an employer cannot claim that a reason for dismissal is substantial if it is a whimsical or capricious reason which no person of ordinary sense would entertain; but if the employer can show that he had a fair reason in his mind at the time when he decided on dismissal and that he genuinely believed it to be fair, this would bring the case within the category of some other substantial reason; where the belief in the reason is genuinely held and, in particular, is not whimsical or capricious it may be a substantial reason, even in a case in which modern sophisticated opinion can be produced to suggest it has no scientific foundation.
17. Mr Kellar submitted that, in this case, the Tribunal had to consider only whether there was a genuine belief that it was fair to dismiss for the reason proffered, namely the total breakdown of the relationship between patient and carer, unless they determined that the reason given was whimsical or capricious; and the Tribunal, he submitted, had not approached the matter by applying that test.
18. It is not necessary for us to dwell at length on the law relating to the correct approach to the ascertainment of the employer's reason for dismissal in a case in which that reason is in dispute, or to the need for the Tribunal to distinguish in such a case between the first stage of determining the reason for dismissal and the subsequent stage of determining whether it was fair to dismiss for that reason. We have referred the parties to paragraph 15 to 21 of the recent decision of the Employment Appeal Tribunal in Hertz Ltd v Ferrao (EAT570/05 judgment delivered on 9 June 2006), in which the relevant authorities were reviewed. Mr Kellar adopted these paragraphs as part of his argument on this appeal and emphasised the importance of the quotation from the well-known case of Abernethy, subsequently adopted by the House of Lords in Devis v Atkins set out in those paragraphs. We agree with Mr Kellar that, in the case of a dismissal the reason for which is said to be some other substantial reason, it is necessary for the Tribunal to consider whether the employer genuinely believed in the reason proffered; but also it is necessary for them to consider whether the reason is one which is not whimsical or capricious, in the sense that it is one which no ordinary person would entertain, as set out in paragraph 8 of the decision in Harper v National Coal Board (1980) IRLR 260.
19. In this case the Tribunal did not consider whether Mr Hutchinson genuinely believed that the relationship between himself and Ms Calvert had broken down and could not be retrieved. They appear to have approached the task of ascertaining the reason for the dismissal not on the basis of considering whether it was genuinely believed conduct whimsical or capricious but on the basis of their own views as to why the breakdown had occurred (without making any finding in detail on the earlier history) and whether objectively the relationship could be repaired. It is in our judgment clear, on any reading of paragraph 5.1, of their judgment, linked to the forth sentence of paragraph 5.2 by the word "accordingly", that the Tribunal did not apply the right test and made the mistake in those paragraphs of confusing the stage 1 exercise of ascertaining the reason for dismissal with the stage 2 exercise of deciding whether or not it was fair to dismiss for that reason.
20. Mr Kellar sought to persuade us that, if the right test were to be applied, only one conclusion could be achieved by any reasonable Tribunal, namely that Mr Hutchinson did genuinely believe that the relationship between himself and Ms Calvert had fundamentally broken down and that his reason was not whimsical or capricious, in the sense that no reasonable person of ordinary sense would entertain it. Indeed we do not understand the genuineness of Mr Hutchinson's belief to have been in contest. We see considerable force in that submission; but we have reminded ourselves that we can only substitute our own view of what would have been the factual outcome on this issue had the correct test been applied if that outcome is plainly and unarguably right and that prima facie the Employment Tribunal is the only Tribunal which is charged with making findings of fact. It may very well be that an Employment Tribunal, applying the right test and, as it would have to do, considering the full history of this case and the full measure and extent of Mr Hutchinson's disabilities, would find it difficult to regard his reason as one which no reasonable person of ordinary sense would entertain; but this is ultimately, in our judgment, a factual issue to be decided by a Tribunal and not by us.

Reasonableness

21. The Tribunal, having made the error which we have described in relation to the reason for the dismissal, did not in any detail address the issue of substantive fairness. It is true that, in the last sentence of paragraph 5.3, which is itself the last paragraph of their decision, they said that, had a proper procedure been adopted, the Tribunal would still have found that "substantial unfairness would have rendered the dismissal unfair"; but their reasons for that conclusion do not appear or clearly appear.
22. In considering reasonableness, the Tribunal's concentration appears to have been on procedural fairness. They decided that no procedure had been adopted and that, contractually and as a matter of law, Ms Calvert was entitled to procedural fairness.
23. We should add in referring to procedural fairness, that the new provisions of section 98(A)(1) and (2) of the Employment Rights Act 1996, introduced by section 34 of the Employment Act 2002, do not apply in this case.
24. We agree with Mr Kellar's submission that the Tribunal's approach to this issue too was flawed. The reference to contractual entitlement to procedural fairness must, in our judgment be a reference to the disciplinary procedure in the contract of employment which the Tribunal had summarised at paragraph 3(10); but this was not a dismissal for misconduct. Even if Mr Hutchinson's mother had been correct to say, as she did say to Ms Calvert, that Ms Calvert did shout at Mr Hutchinson, (which allegation, as we have already said, was withdrawn) the basis on which Mr Hutchinson sought to explain the dismissal was always one of total breakdown in the relationship between himself and his carer and was not conduct. The Tribunal appeared to have approached the question of procedural fairness as if this was a case of dismissal for misconduct.
25. Furthermore, whether or not that criticism is well founded, it was essential, in our judgment, for the Tribunal, before deciding the procedural fairness issue, to take express account of the fact that this was a wholly unusual case in which the nature of the relationship between the parties was regarded by Mr Hutchinson as having broken down and in which their continuing relationship could only exist if there was trust and confidence between them which would enable Mr Hutchinson to continue to allow Ms Calvert to continue as his carer. In addressing the question of procedural fairness, the Tribunal do not appear to have taken these very special facts and the very special circumstances of this case into account; and, in our judgment, in that way they also erred in law.
26. Mr Kellar sought to submit that, on the issues of both substantive and procedural fairness, we should substitute our own decision for that of the Tribunal and conclude that the dismissal was fair. He submitted that as a matter of practicality and common sense, it must be an essential precondition of any relationship between carer and patient, where the patient is so disabled as Mr Hutchinson is, that the patient should feel able to continue with the carer and that, once the patient has genuinely concluded that he cannot do so, the employment relationship simply cannot continue; there has been such a breakdown of relationships that the employment is bound to come to an end.
27. We agree that any Tribunal which comes to consider this case or another case like it will want to bear very much in mind that a case such as this is wholly exceptional, that a very careful assessment of the nature of the relationship required between patient and carer must be made and that a conclusion in such a case that the dismissal was procedurally or substantively unfair might be regarded as difficult to achieve. However, we repeat what we said earlier in responding to the similar submission made by Mr Kellar, on the issue of some other substantial reason. We, in the Employment Appeal Tribunal, are strictly confined in the circumstances in which, whatever our inclinations, we can substitute our decision on a factual issue for that of a Tribunal; and while we recognise the force of what Mr Kellar has said, we have come to the conclusion that, in relation to issues of fairness too, we cannot substitute our own view in this case.

Conclusion

28. Accordingly we allow the appeal and must remit this claim for rehearing. We have not heard any argument as to whether the remission should be to a different Tribunal or the same Tribunal. As we did not invite Mr Alexander, who has appeared on behalf of Ms Calvert, to address us on that issue and he has not done so, we will give him the opportunity in a moment to do so. We feel bound to say that it appears to us that this decision was one which was expressed in such a way that the only fair way forward, subject to anything Mr Alexander has to say, is that this remission should be for rehearing by a fresh Tribunal. The appeal is allowed on that basis.