United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS KIRTI JERAM (of Counsel) Instructed by: Community Integrated Care Ltd Legal Services Old Market Court Miners Way WIDNES Cheshire WA8 7SP
For the Respondent	MR ALASDAIR HARDMAN (of Counsel) Instructed by: Messrs John Henderson & Co Solicitors 8 Bank Street DUMFRIES DG1 2NS

SUMMARY

UNFAIR DISMISSAL

Majority of the Tribunal found that the procedures were unfair. The investigation was inadequate and accordingly the conclusion that the employee had committed misconduct was not based on reasonable grounds. The employment judge dissented. The employer's appeal was upheld. The EAT found that the majority had essentially substituted their view for that of the employer. There was plenty of evidence from which the employers were justified in concluding that the claimant had admitted committing the misconduct in issue. In the circumstances further investigation would have been superfluous. The conclusions of the majority were not sustainable in law.

A finding of fair dismissal was substituted.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is an appeal against the decision of the Employment Tribunal which found that the claimant had been unfairly dismissed. The decision was reached by a majority of the Tribunal, the employment judge (Mrs J Cape) dissenting.
2. The claimant (as she was below and as we shall continue to call her) was employed from 26 November 2003 until 11 August 2006 as a support worker at a care home for elderly people run by the appellant. Her line manager was Mrs Helen Cruickshanks, who was a Service Manager.
3. On 19 July 2006 Mrs Cruickshanks received a statement from a second year student nurse, Ms Lisa McMath, who had just finished a placement at the home. This was part of her course of study. She reported that she had heard the claimant using very offensive language towards one of the lady residents at the home, Mrs B. Mrs B was 95 years of age and suffered from severe dementia. Ms McMath reported that the claimant continually swore at this lady, telling her to "shut up you stupid cow". She also said that the claimant used expletives repeatedly while working at the care home.
4. Mrs Cruickshanks took advice from the company's human resources department, and as a consequence sought an interview with Ms McMath to obtain more details. That was not possible, but she took a statement over the telephone which Ms McMath subsequently approved and signed. Ms McMath essentially repeated what she had said in her original complaint, observing that the claimant used the "f" word regularly in her everyday conversation and that she had said to Mrs B "shut up you fucking stupid cow."
5. Mrs Cruickshanks considered that there was a prima facie case of verbal abuse of a resident which constituted gross misconduct under the appellant's disciplinary rules. She told the claimant that she was being suspended pending an investigation into the allegation which she formulated as "neglect of a service user through verbal abuse". The claimant was asked for her comments and at that point she said she had nothing to say. She was invited to write out a statement but declined to do so.
6. Mrs Cruickshanks then spoke to two other members of staff who regularly worked with the claimant. One of these women, Mrs Benson, was the Assistant Services Manager. She noted that others had complained about the claimant's language. The other was Mrs Devlin, a Senior Support Worker. She said that she had had to tell the claimant to mind her language on several occasions and that the claimant frequently swore in front of residents.
7. Mrs Cruickshanks convened a disciplinary hearing. The charge was that the claimant had neglected a service user through verbal abuse. Statements from Ms McMath, Mrs Benson and Mrs Devlin were enclosed in the letter notifying the claimant of the hearing. She was told that she had a right to be accompanied by a work colleague or trade union representative. She attended the meeting and was represented by the union representative, Ms Pam Parker. The witness statements were read out to the claimant but she said nothing and left it to her union representative to speak on her behalf.
8. The union official noted that the complaint had not been made by Ms McMath for some eight days after the alleged incident and that the claimant had been allowed to work shifts in the interim. It was also contended by the claimant that she never worked on her own with the relevant resident but that two carers were needed. However, Mrs Cruickshanks rejected that from her own knowledge. The claimant also pointed out that the allegation was that she had spoken in this way to the resident on 11 July but, in fact, she had not been working on that date.
9. The claimant was then asked specifically whether she denied using the foul language read out to her. According to the notes of the meeting she said "No - I'm not saying I didn't say it - hands up."
10. Mrs Cruickshanks then adjourned the hearing to reflect on matters. According to the Tribunal, she put considerable weight on the fact that the claimant had admitted to having used the language in issue. It was language used to a 95 year old suffering from dementia, and Mrs B was a vulnerable resident who had to be protected. Mrs Cruickshanks recognised that there was an error in the date but did not consider that that was material in view of the claimant's admission.
11. Mrs Cruickshanks was also satisfied that it was highly unlikely that anybody else would have overheard the requisite conversation because two members of staff worked as a pair in each wing of the care home and it made sense to Mrs Cruickshanks that Ms McMath would have been capable of over hearing the claimant but that no-one else would.
12. Mrs Cruickshanks accepted that the incident could not have occurred on the 11 July. However, she confirmed that the claimant and Ms McMath were working together on 10 and 14 July. In the light of the admission that the words had been used, she did not consider that the date was of any materiality. She concluded that the claimant should be dismissed. This was on the basis that the procedures provided that gross misconduct would always result in dismissal unless there were sufficient mitigation circumstances. One of the specific examples of gross misconduct included "neglect or ill-treatment of the service users, including physical or verbal abuse".
13. Mrs Cruickshanks then notified the claimant that she would be dismissed for gross misconduct. She later wrote to the claimant on 10 August, confirming this in writing, and enclosing notes of the disciplinary hearing. The claimant was not, however, asked specifically to agree these. As we have said, the notes included a reference to the fact that the claimant had admitted using the offensive words.
14. The claimant then signed and submitted a letter of appeal drafted by her union, in which she stated this:

"Whilst I cannot condone what I did, I am asking you to take into account the stress I have been suffering over the eight month period has had an effect on my work practices."

The stress she referred to was of being a mother of a young baby.

15. The claimant then submitted two further letters. In the first she said she wished to appeal on grounds that she was not working on 11 July when the alleged incident took place. In the second she said that the basis of her appeal was to be found in these two further handwritten letters. She did not wish to rely upon the alleged stress which had been the focus of the case which her union was seeking to advance on her behalf.
16. The appeal hearing was fixed for 6 September. That was adjourned because the union representative could not attend. However, by this stage the claimant had become unhappy with her representative. She felt she was being pressurised into putting forward domestic difficulties as the reason for her misconduct. She instructed a solicitor and obtained advice. There were some further delays before the appeal was heard because the manager due to hear the appeal, Mrs Worsley, had to attend hospital.
17. A central ground of the appeal was that Mrs Cruickshanks had both carried out the investigation and conducted the initial disciplinary hearing. This was alleged to be an unfair procedure. In addition, it was said that Mrs Cruickshanks had ignored the fact that the claimant was not on duty on 11 July. Finally, it was submitted that her previous three years good work record and clean disciplinary record should have mitigated the sanction; dismissal was not reasonable in the circumstances.
18. The appeal hearing was conducted on 17 October. The claimant was accompanied by a colleague, Ms Jamieson. It was again made plain that she did not wish to rely upon the grounds of appeal advanced in the union's letter. There was some dispute as to whether she had expressly asked for the letter to be ignored altogether, or whether she had merely indicated that she did not want to rely on the arguments advanced on her behalf by the union in that letter.
19. The Tribunal accepted that a note was accurate and that the claimant had merely indicated that she did not wish to advance the grounds of appeal which had been put forward by her union. Accordingly, Mrs Worsley said that she had excluded from her consideration any difficulties that the claimant may have had with her child. However, Mrs Worsley took the view that she could take into account the admission that the claimant had made in the letter to the effect that she had used the words in issue and that this could not be condoned.
20. At the appeal hearing the claimant contended for the first time that she had not sworn at the particular resident, although she accepted that she did from time to time swear in the home. Her position was not altogether consistent, however, even then. When it was put to her that the witnesses had said that she had sworn before residents she accepted that she must be wrong to contend otherwise. She also said that she could not remember swearing at the residents, and appeared to be saying at one stage that she was denying having said the words because that was what her solicitor had advised her to do.
21. Following the appeal hearing Mrs Worsley checked with Ms McMath about the dates and Ms McMath confirmed that the incident had happened on Monday 10, and not 11 July.
22. On 20 October 2006 Mrs Worsley notified the claimant that the appeal had been unsuccessful and that the decision to dismiss should stand. In particular, she noted that it was entirely in accordance with the disciplinary procedures for the investigating officer to chair the disciplinary hearing. She did not think that there was any materiality in the student nurse getting the date wrong. She was fully satisfied that the claimant had sworn at or in the vicinity of Mrs B. She had admitted as such in the disciplinary hearing, and again in the letter of 20 August 2006. There was also evidence that she swore in front of or in the vicinity of other residents. This was serious gross misconduct and the mitigating circumstances were not sufficient to justify the imposition of a lesser sanction than dismissal.

The hearing before the Tribunal.

23. Some of the grounds simply repeated what had been advanced before the appeal panel, namely that Mrs Cruickshanks should not have carried out the disciplinary hearing and the initial investigation; and that there were unreasonable delays in hearing the appeal. In addition, the claimant submitted that the reason for dismissal had never properly been established. There was no basis for forming a reasonable belief of misconduct given in particular that the minutes of the meeting before Mrs Cruickshanks had never been agreed. It was contended that the claimant had merely admitted to swearing in front of co-workers at the breakfast table and not in front of residents. It was unreasonable in the circumstances for Mrs Cruickshanks or Mrs Worsley to act on the assumption that the claimant had admitted making the abusive statements. As to the letter which had been drafted by the trade union with respect to the appeal, it was submitted that it was wrong for the employers to take that into account at all given that the claimant has sought to distance herself from it.
24. The company contended that they had carried out such investigations as were reasonable in all the circumstances, particularly since the claimant herself had admitted both at the hearing and in the appeal letter that she had used the offending words. In addition, the other witness statements indicated a propensity to use language of this kind in front of residents. The sanction of dismissal was justified: the business of the company was to care for vulnerable and defenceless persons and any conduct which undermined that fundamental objective could not be tolerated.
25. The Tribunal referred to certain well known authorities such as British Home Stores Ltd v Burchell [1978] IRLR 379, British Leyland UK Ltd v Swift [1981] IRLR 91 and Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 and reminded themselves that they should not substitute their view for that of the employer. The Tribunal unanimously concluded that it was not unfair for Mrs Cruickshanks both to carry out the investigation and conduct the initial disciplinary hearing; nor did they accept that the delay in the appeal was unreasonable. Thereafter, however, the Tribunal divided. The majority concluded that the procedure was unfair for other reasons. The investigation had not been reasonable and therefore the genuine belief that the claimant had committed misconduct was not in the circumstances a reasonable belief.
26. Weight was put on the judgment of the EAT in A v B [2003] IRLR 405, which was to the effect that where there were allegations of misconduct against care workers, and the circumstances were such that the decision to dismiss would almost inevitably prevent the employee obtaining any other employment in that sphere of work, then the investigation had to be of a higher standard than might otherwise be required.
27. The majority identified a number of errors, not all of which were apparently advanced by the claimant. They did not think that the disciplinary charges in the letter convening the original disciplinary hearing were sufficiently clear; the allegation had to be deduced from the attached statements. These were in part directed at the general tendency of the claimant to swear in front of the residents rather than focussing on the particular incident. In those circumstances it was unreasonable to infer that the claimant had admitted to the particular incident as opposed to making an admission of swearing in general. They took the view that it was not reasonable for the employers to rely upon Ms McMath's evidence. She should have been interviewed face to face; that would have disclosed the error made in the date and raised doubts about her evidence. The majority also put weight on what Mrs Devlin had said in her evidence before the Tribunal itself, which was that she had not heard the claimant swear in front of residents. This was not what she had said in the written statement, and this might have emerged if Mrs Devlin had been required to make a further statement.
28. The majority also accepted the claimant's evidence in preference to the appellant's witnesses where the evidence conflicted. She had before them consistently denied that she had sworn at Mrs B. In particular the majority preferred the view that the staff would work in the same area, so that there might have been others who might have been expected to hear any untoward comments. Further, a reasonable employer would have totally ignored the union's letter, including the apparent admission contained within it. Finally, Mrs Worsley ought not to have accepted the minutes of the disciplinary meeting when it had never been agreed.
29. The majority recognised in terms that they must not substitute their view for that of the employers but for the various reasons just outlined they concluded that:

"a reasonable employer could not reasonably form the belief which the respondent did that she had committed the act complained of."

30. The employment judge was in the minority. She emphasised that the question was whether the range of reasonable responses test was satisfied. The employment judge posed the following question:

"A key consideration for the Tribunal in this case was that of reasonable belief. The reason for dismissal was conduct, that is that the claimant had verbally abused Mrs B as Ms McMath had alleged. The respondent formed a belief in the claimant's guilt on the basis of admissions which they believed she had made at the disciplinary hearing, and in the letter of 20 August where she said that she could not condone what she had done.

Dealing with the admission at the disciplinary hearing first of all, was it reasonable for the employer to believe that she had admitted to swearing at Mrs B saying to Mrs B" Shut up you fucking stupid cow" rather than, as the claimant contended before us, to swearing at the breakfast table?"

31. The employment judge was of the view that the respondent's belief was in all the circumstances a reasonable one. The claimant had always clearly understood the case she had to answer and it was never part of her case that she had not. Indeed, she told Mrs Worsley in terms that she fully understood the case against her. This was confirmed by the nature of her defence which was that she could not have said those words on the day initially identified because she was not on duty.
32. Further, it was entirely reasonable for the employer to conclude that the claimant had used the offensive language. It was also perfectly appropriate for Mrs Worsley to have regard to the letter, and also the notes of the disciplinary hearing which the claimant had not sought to correct. At no stage was it suggested that the notes of the meeting were inaccurate, and the justification for accepting them as accurate was implicitly confirmed by the admission in the letter which the union had sent on her behalf. The admission before Mrs Cruickshanks could not sensibly be interpreted as an admission to swearing in general since that was not the allegation being made against her. As to the appeal letter, it was reasonable for Mrs Worsley to conclude that the claimant was not distancing herself from the whole letter for she never did say that it should be entirely excluded. Further, she did not deny using the offending words until the appeal hearing and even then she said that she was only doing so because her solicitor told her to do so.
33. The employment judge also concluded that even if the claimant had wanted the letter to be ignored, a reasonable employer could rely upon it, given that it was a statement made voluntarily - an admission made by the claimant, who had had the benefit of union advice. No explanation was given as to why that statement would have been made in a letter signed by the claimant if it were untrue. It was not alleged, for example, that the union pressurised her to make the admission. That was a point made before the Tribunal but it had not been put to the employers that this was the case. The employment judge did not think that the original error in identifying the date was material, given the admission.
34. As to the contention that there would have been two carers with the resident, the employers were entitled to accept the understanding of Mrs Cruickshanks, who was a highly experienced manager. This was particularly so given that the claimant had not been able to identify who the other person was. Moreover, there were a number of witnesses before the Tribunal that two carers would only be required for Mrs B if there was a particular problem.
35. The employment judge considered that A v B was plainly distinguishable on a number of grounds, but in particular because in that case the claimant had always vehemently denied the allegations against him whereas here there was every reason to conclude that she was admitting them.

The grounds of appeal.

36. The appellant has advanced a number of grounds of appeal. First, it is alleged that the majority in various ways failed properly to apply the reasonableness test in section 98(4) of the Employment Rights Act 1996. Although ostensibly recognising that it was not for the tribunal to substitute its view for that of the employer, this is precisely what the majority did. Moreover, they asked whether the investigation was reasonable in the abstract, without any recognition that the degree of investigation depended upon whether it was reasonable to form the view that the claimant had admitted the wrongdoing. Finally, the majority appear to have assumed that the burden was on the employer to show that they had acted reasonably in all the circumstances whereas the burden of proof with respect to section 98(4) is neutral.
37. Second, as an aspect of substituting their own view, the majority made an assessment of the evidence adduced before the tribunal itself rather than asking whether a reasonable employer could have reached the conclusion that these employers did. They relied, for example, on their assessment of the evidence which the witnesses gave before them, and the comments of Mrs Devlin to the effect that contrary to her statement, she had not heard the claimant swear in front of residents.
38. Third, it is said that if there was no misdirection, then the majority reached a perverse conclusion in finding that the employers had no reasonable grounds for believing that the claimant had used the offensive words in issue. Given her clear admissions both before Mrs Cruickshanks and in the letter of appeal, it was plainly open to a reasonable employer to conclude that the misconduct had been committed. It was fanciful to believe that the claimant had just admitted to swearing in general. The employers were manifestly entitled to say that there was no significance in the date; they were entitled to conclude that Ms McMath had simply got the date wrong but that in essence her account was accurate and truthful. The approach of the employment judge was correct and the criticisms of the majority were unfair and unsustainable.
39. The claimant submits that the majority expressly reminded themselves that they must not substitute their view for that of the employer and it must be assumed that they acted in accordance with that self direction. There was some confusion as to whether the complaint was the allegation of specific abuse of Mrs B or swearing generally in front of residents. In the circumstances the majority was entitled to say that a reasonable employer could not properly treat the admissions as an acceptance that the specific words had been spoken to Mrs B. This was denied at the appeal hearing and it was unreasonable thereafter for Mrs Worsley to assume that the words had been spoken. The Tribunal was entitled to say that thereafter she should have carried out further investigations and not simply assumed that the misconduct had been committed. The question of reasonableness is essentially a question of fact; there was no error of law here.

Conclusions.

40. We are unanimously of the view that arguments of the appellants are correct. Although the majority ostensibly recognised that they should not substitute their view for that of the employer, we are satisfied that that is what they did. In our judgment the key question was properly posed by the employment judge, set out at paragraph 30 above. If the employers were acting reasonably in concluding that the claimant had made the offensive comments, then no-one has disputed that the conduct amounted to gross misconduct and the dismissal was a sanction which a reasonable employer could properly impose.
41. In our judgment, it was plainly open to a reasonable employer to conclude that the abusive language had been used to Mrs B. Any reasonable employer could properly treat the comment made by the claimant at the original hearing as an admission to that effect. Although the minutes of the meeting were not specifically agreed, the claimant did not at any stage say that this misrepresented what she had said.
42. Nor in our view could it be said that an employer was acting unreasonably in treating her comment as an admission that she had used the specific words alleged, rather than an admission that she sometimes swore but not in front of residents. Indeed, given that the admission related to the "words read out to her", and that Mrs Cruickshanks had emphasised that the allegation she was focusing on was the alleged treatment of Mrs B, it is difficult to treat her admission in any other way. Any doubts would have been compounded by the letter of appeal drafted by the union but signed by her. Even if the claimant had sought to retract the whole letter - and the Tribunal agreed that this had not been stated in terms - it would still have been reasonable for an employer to treat the admission made in a letter signed by the claimant as genuine. Why should she say it if it were not true? If her case was that the union had pressurised her into admitting something which was untrue, this should have been asserted in terms to the employers, but it was not. In fact, even at the appeal hearing there was no unambiguous statement that the abuse of Mrs B had never occurred. Indeed, at one stage the claimant appears to have said that she was denying saying the words because her solicitor had advised her to do so.
43. Once the employers had what appeared to be a clear admission of the wrongdoing that limited the extent of any further investigation. As the Employment Appeal Tribunal observed in Boys and Girls Welfare Society v McDonald [1996] IRLR 129 (HH Judge Clark presiding) the degree of investigation required is limited where the fundamental facts are not in dispute. Whilst the claimant did somewhat obliquely put them in issue at the appeal hearing, if a reasonable employer could conclude that this did not create any real dispute, then it is an error for the majority to say that further investigation was necessary. The position would have been otherwise had there been a real issue on the facts. In the circumstances any reasonable employer could properly conclude that the error in the date was immaterial, and that no further investigations were required to establish the misconduct. We agree with the employment judge that in the circumstances the principles identified by the EAT in A v B are not applicable.
44. In our judgment, the reference by the majority to their assessment of the evidence given before the tribunal confirms that they substituted their view for that of the employer. The question is not whether they preferred the evidence of the claimant but whether a reasonable employer could in the circumstances have found that she had admitted the conduct in issue. We find that any reasonable employer could have done so and that it was perverse to find otherwise.
45. We do not accept that it was open to the majority to find that there ever was any real ambiguity about the allegations. At the very least it was always plain that the central allegation was the alleged mistreatment of Mrs B. It is true that Mrs Worsley also observed in the dismissal letter that the claimant had on other occasions sworn in the vicinity of residents - which in any event was a justified conclusion on the evidence before her - but that was not the key allegation the claimant faced. It was not open to the majority to find that she could have had any real doubt that she had to answer the charge of mistreating Mrs B. As the employment judge pointed out, her defence that she could not have done that on the date originally identified showed that she fully appreciated this.
46. We do not accept all the grounds advanced by the employers. In particular, we do not think that on a fair reading of the decision the majority did treat the employers as bearing the burden of proof. Even if they did, it is plain that they did not find against the appellants merely on the basis that they had not discharged that burden. Rather they did so because they did not think that the investigation had been reasonable in all the circumstances. It was not a marginal decision determined by a consideration of where the burden lay. However, the appeal succeeds on other grounds.

Disposal.

47. In our judgment, the employment judge analysed the case correctly and reached the only legitimate conclusion on the facts. Any reasonable employer could fairly have concluded that the claimant had admitted to using the offensive words to Mrs B. That established the offence of neglect of Mrs B by verbally abusing her, and that was gross misconduct for which dismissal was a permissible sanction. The majority fell into the trap of substituting their view for that of the employer. In any event their conclusion that there were no reasonable grounds for inferring guilt was perverse in the circumstances. The only proper conclusion was that the dismissal was fair. Accordingly, the appeal succeeds and we substitute a finding of fair dismissal.