United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS CORINNA FERGUSON (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN
For the Respondent	MR CHRIS PURNELL (Employed Counsel) Plumstead Community Law Centre 105 Plumstead High Street Plumstead London SE18 1SB


 


SUMMARY

Unfair Dismissal – Reasonableness of dismissal

Unfair Dismissal – Contributory fault

Conduct UD. ET substituted their view for that of employer in holding no reasonable investigation and dismissal sanction unreasonable. Whole matter (including contribution if it arises) remitted to fresh ET for rehearing.


 


HIS HONOUR JUDGE PETER CLARK

1. The principal question in this appeal, brought by Queen Elizabeth Hospital NHS Trust against the Judgment of an Employment Tribunal sitting at London (South) chaired by Mr D N Milton and promulgated with reasons on 8 May 2006, is whether the Tribunal impermissibly substituted their own view for that of the Trust, the employer of the Claimant, Mary Ogunlana, as to what would have been a reasonable investigation by the Trust into an allegation into misconduct on the part of the Claimant, and in particular drawing its own conclusions from such investigation, as opposed to applying a range of reasonable responses test to the investigation carried out by the Trust leading to its decision to dismiss the Claimant.
2. The Tribunal concluded that that dismissal was unfair but that the Claimant had, by her own conduct, contributed to that dismissal to the extent of 25 percent. That finding is also challenged by the Trust.

Background

3. The setting for this case concerns an incident, split by the Tribunal into two separate phases covering a period of less than half an hour during the night shift of 11/12 August 2005 in the Maternity Unit of the Trust's Hospital in Woolwich, South London. On duty that night were Priscilla Avotri, Midwife in charge, Victoria Aigbirio, Bank Midwife, Abiola Odanye, D-Grade Nurse, and two health care assistants, A-Grade HCAs, the Claimant and Sandy Barker.
4. The allegation against the Claimant, taken from the management statement of case prepared by Anna Shasha, who carried out an investigation into the incident leading to disciplinary proceedings against the Claimant (Ms Barker was also dismissed) was that an argument took place between the two HCA's containing a degree of shouting. Ms Avotri intervened and took Ms Barker into the staff room in order to calm the situation. During that discussion the Claimant came into the room with her fists raised and again a heated discussion and argument started between the two HCAs. Ms Avotri thought that a physical fight may start and placed herself between the two women. Ms Odanye was then asked to take the Claimant away, which she did.
5. Ms Shasha prepared that summary based on interviews and statements with and from the Claimant and Ms Barker, Ms Avotri, Ms Odanye, Victoria Aigbirio, Beatrice Plange, a Midwife who came upon Ms Barker after the incident was over, and Sue Siemens, who relayed a conversation she had with a patient who said she was "amazed to see staff members arguing."
6. A disciplinary hearing took place on 4 November 2005 before Dr Simon Henley-Castleden, General Manager, assisted by Human Resources Manager Jean Martin. The management case was presented by Ms Shasha. The Claimant attended, represented by a friend Abbey Akinoshun. Ms Shasha called two witnesses, Ms Avotri and Ms Odanye. The Claimant also gave evidence.
7. Having considered the matter, Dr Henley-Castleden summarily dismissed the Claimant by a letter dated 14 November. His stated reasons for dismissal were as follows:

"I believe that you poked Sandy Barker and were aggressive in your attitude to her in the argument that happened outside room 4. I believe you were threatening to Sandy in the treatment room. I do not feel you have any insight into how your behaviour and attitude impacts on other people, and specifically the effect that you were having on Sandy on the night in question. You have not acknowledged that you did anything wrong, nor have you shown any remorse."

8. In his view the Claimant was guilty of gross misconduct, amounting to a breach of trust and confidence between employer and employee. Against the decision to dismiss the Claimant exercised her right of internal appeal. The appeal hearing took place before an appeals panel on 24 January 2006. The panel considered each ground of appeal and, for the reasons given in the note of that hearing which is before us, dismissed the appeal.

The law

9. After the EAT took what transpired to be wrong turns, first in Hadden v Van Den Burgh Foods Ltd [1999] IRLR 672, and later in HSBC v Madden [2000] IRLR 288, the Court of Appeal stated the law on conduct unfair dismissal cases definitively in Madden and Post Office v Foley [2000] IRLR 827. The House of Lords refused permission to appeal on the point in Beedell v West Ferry Printers Ltd [2001] ICR 965 note. The position is as follows:

(i) It is for the employer to show a genuine belief in the misconduct alleged, and that that belief was the reason for dismissal;

(ii) Having established that potentially fair reason for dismissal, it is for the Tribunal to determine, the burden of proof being neutral, whether the employer carried out a reasonable investigation and had reasonable grounds for that belief. In answering those questions the Tribunal must apply the range of reasonable responses approach. It must not substitute its view as to whether a reasonable investigation was carried out or whether there were reasonable grounds for that belief, for that of the Respondent employer;

(iii) A similar approach must be taken to questions of procedural unfairness (Sainsbury's v Hitt [2003] IRLR 23);

(iv) Finally the question is whether dismissal fell within the range of reasonable responses open to the employer.

The Tribunal's reasoning

10. The Tribunal found that the decision to dismiss by Dr Henley-Castleden, confirmed on appeal, was a genuine decision. He had a genuine belief on valid grounds and evidence. Mr Purnell has submitted that the Tribunal were at best ambiguous as to whether or not they found that the employer had reasonable grounds for that belief. In our judgment it is clear from paragraph 7 of their reasons that they found that it did. However, the Tribunal went on to find problems in the case focused on the issues of a) the reasonableness of the investigation, and b) the reasonableness of the penalty of dismissal.
11. Having reminded themselves of the Tribunal not substituting its own view of the facts for that of the disciplining manager and appeal panel (reasons paragraph 16), the Tribunal went on to consider whether the Trust's investigation could be criticised for not extending to taking statements from patients. They thought not (paragraph 17). They commented on the evidence of Miss Solomon, a patient on the ward at the relevant time, who was called by the Claimant before them. They thought that her evidence was "in broad terms probably correct" but went on to accept that they, the Tribunal, were not entitled to take it into account in so far as it was direct evidence of what actually occurred, particularly in relation to the Claimant's behaviour that night (paragraph 18).
12. Having correctly directed themselves as to the legal approach to be applied, the Tribunal then embarked on an analysis of the product of the Trust's investigation carried out by Ms Shasha. They found that Ms Shasha's brief summary of her interview with Miss Solomon, the patient called to give evidence before the Tribunal, was "distorted and incorrect". We infer, based on the evidence given to the Tribunal by Miss Solomon, which the Tribunal accepted (paragraph 19). They did not accept that it was valid at any stage for members and management to view what had occurred initially between the Claimant and Ms Barker as "an argument", although that was the expression used in a number of the witness statements obtained by Ms Shasha. In so finding they refer to the oral evidence of Miss Solomon, which they accepted, that it was a case of one member of staff, Ms Barker, swearing loudly at another member of staff, the Claimant, who was keeping reasonably calm (paragraph 21).
13. Having recognised the force of Ms Ferguson's submission that it was not for the Tribunal to carry out a forensic analysis of the statements of interviews to reach some kind of different conclusion to that reached by management, the Tribunal took the view that this was not a very complicated enquiry and that a simple logical approach to the exercise would have led to the conclusion that the two women were by no means equally guilty of gross misconduct as, in effect, the final judgment established. Pausing there, while both the Claimant and Ms Barker were found guilty of gross misconduct and both were summarily dismissed, we can see no sign that the Trust apportioned blame between them for the incident or indeed needed to.
14. Next, having said that it was not necessary for the Tribunal to carry out a blow by blow analysis, they then analysed the account given by Ms Avotri, finding (paragraph 24) that Dr Henley-Castleden ought to have found the greatest variation and distortion in her evidence. It was unreasonable for him to reach conclusions adverse to the Claimant based on Ms Avotri's various accounts (paragraph 33).
15. Further the Tribunal found that there was no validity in Dr Henley-Castleden's Judgment, accepting two pieces of evidence that the Claimant had poked Ms Barker. It was unreasonable for him to accept Ms Barker's evidence on this point, bearing in mind the uncontrollable temper Ms Barker was in at the time.
16. The Tribunal found also that Dr Henley-Castleden was not entitled to conclude that the Claimant "followed" Ms Barker and Ms Avotri into the treatment room, if she did so, they add. On the evidence before him he could only conclude that the principal reason why the Claimant had gone into that room was because she heard her name being shouted through the corridors (paragraph 38).
17. Based on these various findings the Tribunal concluded:

"a) that the investigation was flawed because the statements taken from witnesses slanted the whole approach towards an "argument" rather than, what plainly all the evidence was showing, which was that one person lost their temper in a very extreme, aggressive and unprofessional fashion, and the other person was placed in the difficult and awkward situation of having to deal with it. The investigation was flawed and the conclusion that the Claimant was guilty of serious or grave misconduct, either by way of language or physical conduct or behaviour generally was, unwarranted;

b) even if the entire Judgment of Dr Henley-Castleden set out in his dismissal letter was valid and reasonable, the Tribunal had reservations in the early stages of the case as to whether this was a borderline case. On what the Tribunal found ought, we emphasis "ought", to have been the conclusion as to the Claimant's involvement, they did not accept that amounted to serious or grave misconduct. There was no reasonable investigation, held the Tribunal. The gravity of the misconduct was over estimated. The penalty of dismissal was unreasonable."

The appeal

18. Ms Ferguson's principal submissions we indicated at the outset on behalf of the Trust is that the Tribunal fell into error by substituting its view for that of employer as to what would have been a reasonable investigation and what conclusions should be drawn from such an investigation. Taking that submission in two stages: first, what is the scope of the Tribunal's enquiry as to what amounts to a reasonable investigation? In our judgment it encompasses the enquiries made by an employer to ascertain, in a case such as this, precisely what happened. That involves interviewing not just the named protagonists but those who were present.
19. As we read the Tribunal's reasons it is not suggested that others ought to have been interviewed, particularly patients. However, somewhat inconsistently, Ms Moulla is criticised for providing a brief distorted and incorrect account of what the patient, Miss Solomon, who gave evidence before the Tribunal, could say. In fact Ms Moulla's statement at page 60 of the bundle does not purport to record an interview with Miss Solomon, if she be the patient in room 15 there referred to, merely a conversation which Ms Moulla had with that patient.
20. What it seems to us the Tribunal has done, wholly contrary to their self-direction, is to embark on an analysis of the quality of the evidence obtained so as to lead to their own view of the evidence, resulting in their conclusion as to what Dr Henley-Castleden ought to have found (see reasons paragraph 42). We cannot accept Mr Purnell's submission that the words "following a reasonable investigation" are to be inserted after the word "ought" in paragraph 42. In our view this is a classic example of impermissible substitution by the Tribunal in the first of the three situations posited by Rix LJ in Foley (see paragraphs 84 and 87). On this basis we uphold Ms Ferguson's principal submission. Mr Purnell we think correctly accepts that if that finding cannot stand nor can the Tribunal's further finding that the sanction of dismissal was unreasonable. That conclusion was reached on the basis that the Trust over estimated the gravity of the Claimant's misconduct, again in the subjective judgment of the Tribunal.
21. Ms Ferguson makes a separate attack on the Tribunal's finding of 25 percent contribution on the part of the Claimant, not least on the basis, we accept from her in the absence of contradiction by Mr Purnell on behalf of the Claimant, that there was no evidence before the Tribunal as to the Claimant's good employment record, which was a factor in the Tribunal's assessment of the Claimant's contribution. However, it is necessary at this point to consider the question of disposal.
22. Ms Ferguson asks us to allow the appeal and reverse the Tribunal's finding of unfair dismissal. We shall allow the appeal but not reverse the finding. We are unable to say that the result reached by the Tribunal was plainly and unarguably wrong. That, it seems to us, is a matter which ought to be remitted to a fresh Tribunal for rehearing. Initially Ms Ferguson invited us to remit only the fairness of the sanction of dismissal. On reflection she did not dissent from Mr Purnell's suggestion, which we adopt, that the whole question of unfair dismissal, including contribution both as to the compensatory and basic awards, if it should arise, be remitted to, we think a fresh Tribunal for a complete rehearing. That is the order which we make in this appeal.