United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MS KATHERINE NEWTON (of Counsel) Instructed by: Messrs Beachcroft LLP Solicitors 100 Fetter Lane London EC4A 1BN
For the Respondent	MS ALTHEA BROWN (of Counsel) Instructed by: Messrs Thompsons Solicitors Congress House Great Russell Street London WC1B 3LW


 


SUMMARY

Unfair dismissal – Reasonableness of dismissal – Contributory fault

Nurse doing second job which involved her working excessive hours – Tribunal found that dismissal was not a reasonable sanction having regard to a number of specific mitigating factors but reduced her awards by 30% - Held: (1) that the Tribunal had not applied the wrong approach or substituted its own decision for that of the employer and that its decision was not perverse; and (2) that the reduction of 30% was on the low side but not to the extent that it could be said to be wrong in law.


 


THE HONOURABLE MR JUSTICE UNDERHILL

INTRODUCTION

1. The Claimant – the respondent to these appeals – is a nurse. In 2005 she was working for the Appellant, to which we will refer as "the Trust", as a grade E staff nurse at St. George's Hospital in Hornchurch in Essex. St. George's is a rehabilitation unit, mostly for elderly patients. She had been employed by the Trust or its predecessors for over fifteen years. She worked a 37½-hour week. In April 2005, the Trust learnt that she had for at least the previous four months been working regular night shifts at a nursing home run by a company called ANS. Following a disciplinary investigation she was summarily dismissed on 4 July 2005, essentially on the basis that her work for ANS meant that her overall working hours were so excessive as to give rise to a risk to patients. An internal appeal was unsuccessful, and her dismissal was confirmed on 23 August 2005.
2. By a decision sent to the parties on 22 May 2007 an Employment Tribunal sitting at Stratford held that the Claimant's dismissal was unfair. We will return to the basis of that decision in due course. The issue of remedy was considered by the same Tribunal at a subsequent hearing; and by a decision sent to the parties on 20 July 2007 the Claimant was awarded compensation in the sum of £39,044. That figure incorporated reductions of 30% in both the basic award (pursuant to sec. 122 (2) of the Employment Rights Act 1996) and the compensatory award (pursuant to sec. 123 (6) of the Act). The Trust appeals against both the decision on liability and, with regard to the remedy decision, the quantum of the discount for "contributory conduct": it contends that even if the decision on liability should stand the Claimant should have received a nil award, or in any event that her award should have been subjected to a far more substantial reduction than that which the Tribunal imposed.
3. Before us, as also before the Tribunal, the Claimant has been represented by Ms. Althea Brown of counsel and the Trust by Ms. Katharine Newton of counsel. We are grateful to them both for their helpful submissions.

THE FACTS

THE CLAIMANT'S CONTRACT

4. Working hours. The Claimant was contracted to work a shift pattern at St. George's. The shifts in question ran either from 8 a.m. to 3.30 p.m. (the early shift) or from 1.30 p.m. to 9 p.m. (the late shift). As we have said, her total weekly hours were 37½.
5. Other work. Para. 23.1 of the Claimant's terms and conditions of employment is in the following terms:

"You are not precluded by this contract of employment from accepting other employment outside your normal working hours. However, such other employment must not in any way hinder or conflict with the interest of your work with the Trust. The Working Time Regulations 1998 impose a limit on the total number of hours or working hours which your employer(s) may require you to work, which is an average of 48 hours a week over a 17 week period. A worker may agree to work in access of the average 48 hours, but this may only be done by way of an individual opt-out agreement. If you are in any doubt as to the advisability of accepting other employment, you should consult with your Line Manager as appropriate."

6. It was accepted before the Tribunal that the Claimant's terms and conditions also included by incorporation various written policies of the Trust. The Health and Safety Policy included the following statement:

"All staff, regardless of their position, have a duty to themselves, to all other colleagues, and to any others who may be affected by their actions, to work in a safe manner. In particular, all employees must … avoid any actions that might constitute a danger to themselves or others."

The Policy on Compliance with the Working Time Directive stated as follows:

"All workers have an obligation for their own and others' health and safety. This includes avoiding working excessive hours, which make individuals unsafe for duty. This may particularly apply to workers who have multiple contracts. Managers will be responsible for ensuring that the 48 hours working time limit is adhered to."

7. We pause to observe that those terms and policies taken together do not contain any very firm guidance as to the limits on employees' right to work elsewhere. There is reference to the 48-hour limit in the 1998 Regulations but also to the right of an employee to opt out of the application of that limit. Employees are reminded of their obligations to avoid working "excessive hours" in a way which might make them "unsafe for duty" but are given no guidance as to how that is to be applied in practice. There is reference to managers being responsible "for ensuring that the 48 hours working time limit is adhered to"; but there seem to have been no procedures in place for ascertaining what outside work employees were doing or establishing whether such work involved a breach of the Regulations (including monitoring whether an employee had opted out), or whether in any event the hours worked were such as to make him or her unsafe for duty. Employees are told that they can consult their line managers, but they need only do so if "in doubt".
8. Disciplinary Procedure. The Trust's Disciplinary Policy and Procedure contained examples of offences which would normally be treated as gross misconduct. These included:

Negligence. Any action or failure to act which threatens the health and safety of a patient, member of the public or colleague, or causes acceptable injury, loss or damage.

Being Unfit for Duty. Through the effect of drink or illegal drugs, or by being asleep on duty, unless authorised to be so (e.g. stand-by or sleep-in duties).

The Procedure provided that disciplinary offences constituting gross misconduct "would normally result in summary dismissal without notice", although exceptionally "where there are strong mitigating circumstances" a final written warning might be given.

THE CLAIMANT'S WORK FOR ANS

9. The Claimant had been working for ANS since at least December 2004, although she was on leave from both jobs for all or most of February 2005. At ANS she worked a "waking night shift" – that is, a shift during which she was obliged to remain awake throughout the night – for four or five nights a week. Formally, the shift ran from 8 p.m. till 8 a.m. with a one-hour rest break. However, she told the Trust during the disciplinary procedure – and the Tribunal found that the Trust accepted (or should have accepted) – that she was in practice able where necessary to make informal arrangements under which she could get two or three hours' sleep within her contracted hours for ANS (and, it seems, start late or leave early when she had to).
10. During the period from 20 December 2004 to 11 April 2005, there were ten occasions on which the Claimant worked a late shift for the Trust followed by a night shift for ANS. More significantly from the Trust's point of view, there were nine occasions when she worked a night shift for ANS followed by an early shift for the Trust. On such occasions she would have been working for over 19 hours, with the benefit only of ordinary statutory breaks and the two or three hours sleep during her ANS shift to which we refer above. There were three occasions on which she worked a late shift for the Trust followed by a night shift for ANS followed by an early shift for the Trust – that is, a continuous period of 27 hours – but her evidence to the Trust was that these occasions were unplanned and occurred only because ANS were unexpectedly unable to find anyone else to work the shift in question.
11. Another way of analysing the hours that the Claimant worked over this period is that her working hours (though including, as we understand it, the informal periods of sleep to which we have referred) varied between 78 and 109 hours per week. The Reasons contained no more particular breakdown; but we think it can be inferred that the higher figure was exceptional and that the average was closer to the lower figure.
12. It is self-evident, and the Tribunal found, that these were seriously excessive hours, whether looked at as weekly totals (and even if 78 hours is more typical than 109) or by reference to the patterns of hours worked on particular occasions. There was bound to be a risk that while working at the Trust – particularly, but not only, when working an early shift immediately following a night shift for ANS – the Claimant would be so tired that she was significantly more likely to make mistakes of a kind which could impact on patient care. It is right to say, however, that there was no evidence either that any such mistake had in fact occurred or even that the Claimant had appeared to be tired or otherwise was performing to an unsatisfactory standard. She was asked in the course of the disciplinary procedure whether she accepted that what she had been doing was wrong and created a risk to patients. Her answers were somewhat equivocal. At various points she did accept that what she had been doing might not have been right and that to work in excess of 19 hours consecutively was excessive. But she also maintained throughout that she was able, because of the sleep which she could get at ANS, to have sufficient rest to avoid her performance being impaired and the safety of patients being compromised.
13. The Claimant did not allege that she had told the Trust about her work for ANS. But she did say, and the Tribunal appears to have accepted, that she had in the past told a Mrs. Evans (the Director of Older Persons Services, who had since left) about a previous "second job" that she had had.

THE DISCIPLINARY PROCESS

14. The Claimant was suspended on 28 April 2005. There was a disciplinary meeting on 4 July 2005, following which the initial decision to dismiss was made. At that point, the Trust does not appear to have accepted her evidence as to the opportunities which she had to sleep while at ANS. She appealed to a panel comprising Mr. Simon East, the Director of Finance, Mr. Khalil Ahmad, the Head of Clinical Governance, and Ms. Rhonda Ware, who was the Public Health Strategist for the Trust but was also herself a registered nurse. It was Mr. East's evidence that, understandably, Ms. Ware's views on the seriousness of the Claimant's conduct carried particular weight with the panel because of her nursing experience. In the course of the appeal hearing the Claimant said that the particular circumstances that had made her take the job with ANS had passed and that she would be prepared to give up all other employment for the future. The appeal was dismissed; but, as we have noted, the Tribunal held that the panel appeared to accept the Claimant's evidence about the hours that she actually worked and was able to sleep. Subject to one point which we identify below, it is common ground that the procedures followed were fair.

THE TRIBUNAL DECISIONS

THE LIABILITY DECISION

15. The Tribunal begins the "Conclusions" section of the Reasons by considering whether the Trust had shown a "potentially fair" reason for dismissal. At para. 19 it says this:

"The hours that the Claimant worked during the period that was monitored are so numerous that we are satisfied that this led to a reasonable concern on the Respondent's part that the Claimant might not be able to carry out her duties in a safe manner. This is notwithstanding our conclusion that the Respondent either did or should have accepted the Claimant's evidence in relation to the actual sleep pattern, namely, that most nights she was able to get between two and three hours sleep in the course of a night shift at ANS. On this basis we conclude that the Respondents have shown a potentially fair reason for dismissal."

As we understand it, that finding goes rather further than merely deciding that the Trust had shown a reason for dismissal falling within sec. 98 (2) of the 1996 Act (being, plainly, "the conduct of the employee"): it was also a finding that such conduct was capable, depending on the particular circumstances, of justifying the Claimant's dismissal for the purpose of sec. 98 (4). That conclusion is self-evidently correct and is not challenged.

16. The Tribunal then turns to consider whether the decision was "procedurally fair". It makes, as we have already noted, a general finding that the procedural arrangements for, and conduct of, the disciplinary process and appeal were reasonable. It then considers and rejects two particular criticisms made on the Claimant's behalf. At paras. 24-26 of the Reasons, it turns to address "a third procedural matter" which had only arisen as a result of evidence given by Ms. Ware during the hearing. Paras. 30 and 31 of Ms. Ware's witness statement read as follows:

"30. When discussing the sanction with the rest of the appeal panel, as a professional registered nurse I struggled with being able to give only a warning for the Claimant's conduct. I felt that I could not condone what had taken place and the risks were high enough that I felt that it was appropriate to uphold the decision to dismiss. The Claimant's conduct posed an obvious risk to patients and the Claimant was experienced enough to know this.

31. We did consider whether a final written warning would have been sufficient but we did not think that this was enough given that conduct [sic] amounted to gross misconduct."

The Tribunal was concerned about that passage and raised it with her at the conclusion of her cross-examination. Paras. 25 and 26 of the Reasons are as follows:

"25. She was asked by the Tribunal whether that meant that it would have been condoning the Claimant's behaviour to have given a warning, since on the face of a warning is a sanction. She responded that she would have potentially created a risk if she not uphold the decision to dismiss, and she would have put herself in a compromising position if something went wrong in future that she could have prevented. Two members of the Tribunal had a note of this evidence in very similar terms, and the third member had not noted it. Although she was only one of three members of the appeal panel, Mr East's evidence was he placed great store by the opinion of Miss Ware in reaching a decision on the matter.

26. We consider that Miss Ware's oral evidence taken together with her witness statement suggests that she had closed her mind to the possibility that the appeal might have had an outcome other than dismissal. We have reached this conclusion with some anxiety as we recognise the danger of affording undue weight to a single remark. However, it was because of Miss Ware's statement that the Tribunal was prompted to put the question to her. Although this point only arose after Miss Ware had been cross-examined by Miss Brown, the point was highlighted by the Tribunal as a matter of concern, and Miss Newton was afforded an opportunity to re-examine on it. Not without some hesitation, we conclude that this was a procedural failing which rendered unfair what was otherwise in our view a thorough and quite properly conducted procedure. We wish to make it clear that we accept that Miss Ware acted in a manner which she considered to be the proper discharge of her duties as both a professional and an employee, and there is no suggestion of any bad faith on her part."

17. That is in our view a finding that the dismissal was unfair because Ms. Ware, being one of the decision-takers, had approached the appeal hearing with a closed mind. The Tribunal categorises that ground of unfairness as "procedural". We are not sure that that is the best description, but we need not discuss that point further at this stage. However, that was not the end of the matter. Para. 27 of the Reasons continues:

"We have considered as well at length whether dismissal fell within or without the range of reasonable responses available to the Respondent. On the one hand, acting in a manner creating a risk to the welfare of patients is included as an example of gross misconduct in the Respondent's disciplinary procedure, albeit expressed in terms of negligence. In addition, the disciplinary procedure states that only exceptionally will gross misconduct not result in dismissal. Against that contractual backdrop, we accept that we should be slow to criticise the Respondent for having followed its procedure. However, the issue of whether the Respondent acted reasonably in treating the reason as sufficient for dismissal cannot be answered solely by reference to the exceptionality criterion within its own disciplinary procedure."

18. The Tribunal then proceeds to identify "a number of factors pointing in the other direction", which, taken cumulatively, it regarded as taking dismissal outside the range of reasonable responses. We should set out the relevant paragraphs of the reasons in full:

"28. The first is the Claimant's length of service of 16 years. Considering the evidence of the Respondent's witnesses and both the letter of dismissal and the letter dismissing the appeal, it appears to us that little, if any, weight was attached to this. Second, there was no previous disciplinary history relied on as part of the decision to dismiss, in particular no previous warning in relation to overworking or hours worked.

29. Third, it was known to the Respondent that the Claimant had other employment. The Respondent's policy on compliance with the working time directive states at paragraph 5.3 states that it is a management responsibility to ensure that the working time limit was being adhered to. It is agreed that there was no monitoring of staff known to have second jobs outside the hospital, in contrasted to the monitoring of the hours of bank nurses in the hospital. We recognise that the force of this point is diminished by the fact that the Claimant was in herself in breach of clause 23.1 of the contract of employment by not having opted out, but nonetheless we consider that the absence of monitoring on the Respondent's part is relevant in determining whether it acted reasonably in dismissing.

30. Fourth, we consider that it relevant that the Claimant was dismissed not because of what had happened, but rather for creating a risk that something might happen. There was no injury or harm to patients or staff, and no suggestion that a situation of actual or imminent danger had arisen. Nor was it suggested that the Claimant was being disciplined for having been unfit for duty on any particular occasion. In the typical case of gross misconduct, say, theft, fighting, or drinking at work, the conduct itself is wrongful. In the case all the Claimant did was carry out her duties, not wrongful in itself. This conduct itself did not have any injurious effect, but rather was wrongful because it gave rise to the risk of injury.

31. In our view it must be a relevant factor whether the conduct giving rise to the risk was likely to continue. At the appeal hearing the Claimant stated that she would have been willing to give up all work outside the hospital had the matter been discussed with her. Miss Newton pointed out fairly that it cannot be sufficient for an employee simply to assert that he will not do it again, since then dismissal for a first offence could never be fair. However, we consider that in this case the Respondent had good reason to suppose that the Claimant would not work excessively in future. At the appeal hearing the Claimant stated that the personal circumstances which had led to her working excessive hours no longer obtained. This was simply asserted by her, but it was not probed or challenged by the Respondent. She amplified this before the Tribunal, and we found her evidence credible. In addition, by the time of the appeal the Claimant stated that she was working only one shift at ANS, that is, was roughly in compliance with the Working Time Directive. The Respondent could have verified this easily, since it had already exchanged information regarding the Claimant's hours with ANS. Further, unlike any other forms of misconduct, the risk of a recurrence could be monitored by the Respondent, whose policies required it to do so. Then Respondent does not appear to have concluded that the Claimant was likely to continue to work excessive hours were she not to be dismissed.

32. The final consideration we identified as relevant to sanction might be perhaps equally well be understood as a procedural criticism. In our view if an employee is to be dismissed not for what has happened, but rather for creating a risk that something might happen, then it is incumbent on the employer to satisfy itself of the degree of risk by means of an adequate risk assessment. For example, if an employee in a rush to leave work were to knowingly leave a drawing pin face up on the floor, that behaviour would create a risk to health and safety. But in our view it could not reasonably argued that his justified dismissal, both because the risk would not be great, and because the consequence of the risk materialising would be unlikely to be serious.

33. In this case there was no admission by the Claimant as to the degree of risk; indeed throughout the disciplinary proceedings she maintained that she was getting enough rest so that patient welfare was not compromised. The Respondent's assessment of risk appears to have been simply a matter of what it perceived to be substantial. As the Claimant pointed out, there was no suggestion that her hours of work impacted on her own health, and the attendance record in the bundle establishes that she was only off three days in the two years to February 2005. Further, the fact that the Claimant's behaviour over a substantial period of time did not give rise to any situation of actual or imminent danger might itself suggest that the Claimant was getting sufficient rest, either because she had an unusual constitution or for some other reason. The Respondent does not appear to have addressed how the degree of risk was to be assessed."

19. The Tribunal then concludes, at para. 34:

"Having regard to those considerations, we conclude that dismissal in this case was not within the range of reasonable responses open to the Respondent, albeit we accept it falls close to the borderline. Accordingly, for this reason, as well as for the procedural reason discussed above, we find that the dismissal was unfair."

This was thus explicitly a distinct basis for the Tribunal's finding of unfairness, independent of the "procedural" point set out at paras. 16-17 above.

20. The six factors relied on by the Tribunal as enumerated in paras. 28-33 of the Reasons are not at every point very clearly expressed; but we will defer for the present any attempt to elucidate them: see paras. 26-31 below.

THE REMEDY DECISION

21. The only aspect of the Tribunal's remedy decision with which we are concerned is that relating to "contributory conduct". As to that, the relevant passage in the judgment reads as follows:

"9. It appears to be agreed that the issue is to be approached in the same manner for the purpose of the basic award and the compensatory award. Miss Newton submitted that contribution should be assessed at 100% because the dismissal was attributable solely to the Claimant's admitted breach of contract. Miss Brown submitted that no reduction should be made because the Claimant's conduct was not culpable or blameworthy.

10. We do not accept either of these positions. In our view the Claimant did or should have realised that she was working excessive hours, and that she should have made the Respondent aware of the hours she was working. This conduct is blameworthy. However, we accept that she acted as she did in a context in which many nurses working for the NHS also had second jobs. She did not believe that she was presenting a risk to patients, and she intended that she would only work such long hours temporarily. We also note that the Respondent made no effort to monitor the hours working by nurses outside the NHS, despite being aware that such employment was widespread. In the circumstances, we consider that a reduction of 30% of both the basic award, and the compensatory award is appropriate."

THE APPEALS

LIABILITY

22. The pleaded Grounds of Appeal are four-fold:

(1) The Trust alleges that, despite purporting to do so, the Tribunal failed to apply the "range of reasonable responses" test and fell into the familiar error of substituting its own decision for that of the Trust.

(2) Even if that general criticism is wrong, it is said that the decision that the Trust's decision to dismiss was unfair was perverse or otherwise wrong in law. In this connection a number of particular criticisms are advanced of each of the six factors relied on by the Tribunal at paras. 28-33 of the Judgment (as set out at para. 19 above).

(3) The Tribunal's approach to Ms. Ware's evidence is said to have erred in law in various respects.

(4) The Tribunal is said to have found for the Claimant on a basis which she had not herself advanced.

We will consider those grounds in turn.

(1) "Range of reasonable responses"/substitution

23. The law in this area was authoritatively stated by the Court of Appeal in Foley v. Post Office [2000] ICR 1283 and is very familiar. We need not re-state it here. We would only point out – what is sometimes overlooked – that in Foley Mummery LJ emphasised that the "range of reasonable responses approach" is not equivalent to a test of perversity – see at p. 1292 D-E.
24. In the present case the Tribunal referred expressly to the correct test (see para. 27 of the Reasons): it did not refer in terms to Foley, but it did not need to. Ms. Newton pointed to various phrases in the following paragraphs – such as "in our view" and "we consider" - in which the Tribunal expressed its own view on particular aspects of the issues; and she submitted that these showed that it had failed to follow its own self-direction. We see nothing in this. In giving reasons for concluding that dismissal is outside the range of reasonable options in a particular case a tribunal is bound to express its own opinions on issues relevant to that judgment – that is indeed part of its job - but the fact it does so does not by itself evidence "substitution": that only occurs if it can be seen that it has treated the dispositive question as being whether it would itself have dismissed the employee rather than whether the employer acted reasonably in doing so. Cases where such an approach is evident on the face of the reasons are nowadays rare because the lesson of Foley has been well learnt. That does not mean that tribunals do not sometimes subconsciously stray from the path which they claim to be following; but that can generally only be demonstrated by showing that their decision is so plainly wrong that they must have succumbed to the temptation of substitution. In such cases submissions that the tribunal has misdirected itself by failing to follow Foley are in truth simply a way of presenting less provocatively what is in reality a submission that the decision was perverse; and it is in the interests of clear thinking that that is recognised. In our view that is the case here. Ms. Newton's fundamental submission was that the Tribunal's decision that dismissal was not a reasonable sanction in the circumstances of the present case was a decision to which no reasonable employment tribunal could have come. That overlaps, if indeed it is not co-extensive, with her "ground (2)"; and we will accordingly consider it in that context.

(2) Perversity

25. As we have noted, the Trust's detailed submissions under this head (both in the grounds and as amplified in Ms. Newton's clear and helpful skeleton argument) focus primarily on the six factors which the Tribunal identified at paras. 28-33 of the Reasons. We will consider these in turn.
26. (1) Length of service (para. 28). The Tribunal's point is self-explanatory as far as it goes. However, Ms. Newton says at para. 30 of her skeleton argument that the Trust's witnesses had given evidence that they had "taken into account" the Claimant's length of service, and she submitted that if the Tribunal intended to reject that evidence it was obliged to give reasons for doing so. We have not been given an agreed (or any) note of exactly what the witnesses in question said – as in principle we should have been – but even on the basis that Ms. Newton accurately summarises the effect of their evidence we can see no error of law here. This was not a case in which the Tribunal was rejecting the witnesses' evidence on a discrete issue of primary fact. It was making a composite finding that, taking into account all six factors which it identified, dismissal was unreasonable. It was not obliged to, and indeed could not (since such matters are not susceptible to objective measurement), assess precisely the weight which the Trust's decision-takers had attached to each such factor: it could only say that, taking them as a whole, dismissal fell outside the range of reasonable options. A strict purist might for that reason have said that it was unnecessary for the Tribunal to make the kind of observation which it did here; but in any event it was in effect saying only "it is likely, in view of the unreasonable decision made, that part of the reason was that the Trust put too little weight on the Claimant's length of service". We can see nothing wrong in such an observation, which does not involve "rejecting" the Trust's witnesses' evidence that they "took into account" her length of service.
27. (2) Good disciplinary record (including absence of any previous warning for working excessive hours) (para. 28). This too is self-explanatory. Ms. Newton observed that the disciplinary procedure gave the Trust an express power to dismiss for a first offence in a case of gross misconduct. But the fact that an employer has such a right as a matter of contract does not – as the Tribunal correctly observed in para. 27 of the Reasons (see para. 17 above) - mean that it is always reasonable to exercise it.
28. (3) Inaction on the part of the employer (para. 29). The Tribunal's reference is apparently to the Claimant's evidence that she had told Mrs. Evans about a previous "second job" (see para. 13 above). In our view it was entitled to take the view that that fact put the Trust on notice that there might be an issue about whether she was working excessive hours and triggered the requirement to monitor referred to in the "Policy on Compliance with the Working Time Directive" (see para. 6 above): as it found, no such monitoring had taken place. Ms. Newton submitted that that was an irrelevant consideration: the only thing which mattered was that the Claimant had worked excessive hours. The Claimant was evidently at fault in that she had failed to disclose the hours worked, and it was unreasonable to find the Trust to blame for her default. We do not accept this submission. Of course the Claimant was at fault, as the Tribunal expressly acknowledged. But it does not follow that in considering the range of reasonable disciplinary responses to that default the Trust's own (albeit secondary) failure to put in place a system to prevent employees working excessive hours was irrelevant: it should be understood that we are not saying that it was in any way decisive, but it was a legitimate matter to take into account.
29. (4) The fact that nothing had in fact gone wrong (para. 30). Ms. Newton submitted that the effect of this paragraph was that "because the Respondent was unable to point to a particular patient who had been harmed … this somehow meant that the risk had not existed". That is, with respect to her, a plain misreading of what the Tribunal was saying. We accept that the Tribunal's distinction between whether the Claimant had done something "wrongful in itself", as opposed to "wrongful because it gave rise to the risk of injury", may be over-elaborate; but the underlying point is simple, namely that the case for dismissal would have been stronger if her performance had in fact been found to be adversely affected by the excessive hours she was working – and still more if an injury had actually happened. We emphasise that the Tribunal was not saying – and certainly we do not – that dismissal would only have been fair if some actual harm to patients had been shown to have occurred or to have been imminent. We have no difficulty in conceiving of cases where dismissal of a nurse who had been working excessive hours would be reasonable even where no actual or imminent harm to patients were demonstrated. But the Tribunal was saying no more than that the fact that this was a "mere risk" case was a relevant factor.
30. (5) "Not likely to continue" (para. 31). The Tribunal's reasoning on this point is self-explanatory. Ms. Newton again submitted that whether the Claimant was likely to work excessive hours in the future was "irrelevant". We cannot agree. No doubt it was not decisive, but it was plainly a factor that could properly be taken into account.
31. (6) "Risk assessment" (paras. 32-33). At para. 35 of her skeleton argument Ms. Newton submitted that it was "common sense" that "a nurse who has not had enough sleep is at risk of making mistakes in patient care" and asked rhetorically what kind of risk assessment the Tribunal was suggesting should have been carried out. She was quizzical about the suggestion that the Claimant might have had "an unusual constitution". We have some sympathy with this submission. Ms. Newton's general proposition seems attractive at first sight; and we cannot see that it was necessary or appropriate for the Trust to try to test whether the Claimant had some idiosyncratic tolerance of sleep deprivation. A "risk assessment" in ordinary usage tends to mean a structured assessment of some future risk, which is plainly not relevant here. However, we think that inapt phraseology may have obscured what the Tribunal was trying to say in these two paragraphs. As we understand it, the Tribunal's real point was simply that the evidence before the Trust tended to suggest that the excessive hours worked by the Claimant had not in fact affected her performance to the extent that might be expected, and might not therefore have created a "substantial" risk of harm to patients; and that in those circumstances it could not simply be presumed that there had indeed been such a risk. That point seems to us to be a reasonable one. It is easy to sloganise about "risk" and "safety" as if they were absolutes or at least objectively measurable. But they are not: risk and safety always involve questions of degree. In a variety of contexts judgments have to be made as to whether a particular situation gives rise to a greater risk, or a lower level of safety, than is acceptable. (And judgments may change: cf. the recent changes of attitude to the acceptability of the risks inherent in junior hospital doctors working hours every bit as long as those worked by the Claimant in the present case.) In the context of the present case, the judgment that the Trust had to make was whether the risk to patients created by the long hours worked by the Claimant was (taken with the other factors) sufficiently great to justify her dismissal. If the Tribunal formed the view, as it did, that the Trust approached that judgment simply by applying a blanket rule that any risk was unacceptable rather than by trying, however approximately, to assess the degree of risk that had actually arisen, it was legitimate for it to regard that as a defect in the Trust's approach.
32. Having digested these particular points, we have attempted to stand back and make an overall judgment as to whether the Tribunal's decision was perverse. We do not believe it was. The Claimant had no doubt acted wrongly and foolishly in working the hours that she did, and in not telling the Trust what she was doing; but we see nothing irrational in the Tribunal taking the view that dismissal – as opposed to, say, a final written warning – was an excessive sanction for her misconduct. We do not wish to be misunderstood. It is not the effect of our judgment that dismissal for a first offence of working excessive hours can never be fair. On the contrary, we can easily conceive of cases where it will be. But it depends on the particular facts. There were a number of factors in the present case, which the Tribunal took care to enumerate, which tended to reduce the seriousness of the offence; and when all those factors were taken together the decision which it reached was in our view open to it in law.

(3) Ms. Ware's Evidence

33. Since – see para. 19 above – the Tribunal's finding that dismissal was outside the range of reasonable responses was a distinct basis of its finding for unfair dismissal, our rejection of the Trust's challenge to it makes it unnecessary for us to consider this ground: even if Ms. Newton's submissions are right they cannot affect the overall decision. In those circumstances we will only say that we would not have found the point easy. We cannot see that the passage from Ms. Ware's witness statement which we set out at para. 16 would by itself justify a conclusion that she had approached the appeal with a closed mind. Plainly her answer to the Tribunal's question went rather further, but we are far from sure that even that answer, as recorded in the Reasons, betrayed an illegitimate approach. On the other hand, the Tribunal very properly reminded itself of the danger of putting too much weight on a single answer and evidently reached the conclusion that it did only after very careful reflection: we should be slow to second-guess its judgment in circumstances where we do not have the precise terms of Ms. Ware's answer and are ill-placed to assess its effect in the actual context in which it arose. We do not need to reach a final decision on the point, and we prefer not to do so.

(4) Basis not Advanced by Claimant

34. The Grounds of Appeal assert sweepingly that "the Claimant did not rely on any of the matters which led the Tribunal to reach the conclusion that it did". Ms. Newton in her skeleton argument put the point rather more modestly. She identified three points relied on in the Reasons which she said were not contained in the Claimant's written closing submissions – (1) "the alleged absence of monitoring on the part of the Respondents" (i.e. para. 29 of the Reasons); (2) "issues around the concept of risk and the failure to carry out a risk assessment" (paras. 30 and 32); and (3) "issues relating to the evidence of Miss Ware" (para. 26). She says that the Trust "had not been given an opportunity to address [these points], in particular issues around risk assessments". Ms. Newton's oral submissions to us under this head focused wholly or mainly on (3); but she accepted that the importance attached by the Tribunal to Ms. Ware's answer did not come "as a bolt from the blue" and that, although she had not addressed it in her written closing submissions she might have done in her oral submissions to the Tribunal. Ms. Brown's clear recollection was that Ms. Newton had been given the opportunity to deal with the point.
35. In view of our conclusions in relation to the earlier grounds of appeal, the dispute, in so far as there still is one, about "point (3)" is academic. For what it is worth, the material before us suggests that the Trust did in fact have a fair opportunity to address the Tribunal's concerns about Ms. Ware's evidence. As regards points (1) and (2), these were not, as we have said, addressed in oral argument and we are not sure to what extent they were still being pressed. We have in any event considered Ms. Brown's closing submissions in the Tribunal. It seems reasonably clear that the points in question were indeed made, even if (as often happens) they have been given a slightly different emphasis or focus in the Tribunal's Reasons; and thus that the Trust had a proper chance to deal with them. As regards point (3) – "in particular issues around risk assessments" - it seems to us that Ms. Newton's submission is based on the same (understandable) confusion about the Tribunal's reasoning as we have discussed at para. 31 above. If the Tribunal had in truth been making a point about "risk assessments" in the usual sense of that phrase, we can accept that she had no notice of such a point. But, as we have said, we think that the Tribunal's language tends to conceal the real point being made, namely that the Trust never considered how serious a risk the Claimant's working of excessive hours really posed.

Conclusion on Liability

36. We accordingly dismiss the appeal against the finding of unfair dismissal.

REMEDY

37. We should start by setting out the relevant statutory provisions. Sec. 123 (6) of the 1996 Act is in the following terms:

"Where the tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant, it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding."

Sec. 122 (2) reads as follows:

"Where the tribunal considers that any conduct of the complainant before the dismissal (or, where the dismissal was with notice, before the notice was given) was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any extent, the tribunal shall reduce or further reduce that amount accordingly."

38. The Trust's pleaded grounds of appeal on the issue of "contributory conduct" were summarised in Ms. Newton's skeleton argument as follows:

"The Respondent relies on four grounds of appeal against the Judgment on remedy in relation to the Tribunal's approach to the question of contributory fault. These are that the Tribunal:

(i) erred in failing to follow the principle set out in Parker Foundry Ltd v Slack [1992] IRLR 11;

(ii) erred in taking into account irrelevant factors in reaching its conclusion as to the appropriate reduction for contributory fault;

(iii) erred in failing to take into account relevant facts including those it had previously found in its Judgment on Liability;

(iv) erred in perversely reaching a conclusion that the reduction for contributory fault should only be 30%."

We will take those grounds in turn.

Ground 1

39. This ground depends in terms on what the Trust says is the effect of the decision of the Court of Appeal in Parker Foundry Ltd. v. Slack [1992] ICR 302. In that case the appellant employee had been involved in a fight with a fellow-employee and had been dismissed. The other employee received a lesser penalty because the employer believed that Mr. Slack had been the aggressor. The industrial tribunal held that Mr. Slack's dismissal had been unfair because of certain procedural deficiencies (primarily a failure to disclose to him the contents of the statement of an independent witness on which the employers had primarily relied in holding that he was the more at fault). However, it decided that his compensation should be reduced by 50% on the basis that he had been guilty of serious misconduct in participating in the fight (irrespective of whether he was the aggressor, as to which it made no finding). Mr. Slack contended that that finding was unjust having regard to the lesser penalty meted out to the other employee. The Court of Appeal held that broad considerations of justice of that kind were not relevant for the purpose of the exercise under secs. 73 (7B) and 74 (6) of the Employment Protection (Consolidation) Act 1978 (the predecessors to secs. 122 (2) and 123 (6)) of the 1996 Act). As Balcombe LJ put it, at p. 311 C-E:

"… subsection (6) is looking only to the causative or contributory conduct of the complainant as a ground for the reduction of the compensatory award to which the complainant would otherwise be entitled under subsection (1). The words "just and equitable" in subsection (6) … do not, in my judgment, entitle the tribunal to take into account matters other than the causative or contributory conduct as a ground for deciding the proportion by which the compensatory award is to be reduced."

(He went on to say that the same went for sec. 73 (7B).) Woolf LJ in his judgment (at p. 310 B-C) referred to a statement by May J. in Allders International Ltd. v. Parkins [1981] IRLR 68 to the effect that in applying the provisions in question:

"Questions relating to the employer's conduct as well as the employee's conduct are relevant to the question of fair or unfair dismissal. It is questions of the employee's conduct alone that are relevant to the question aye or nay should the loss be reduced by reason of some contributory fault [emphasis added]."

40. Ms. Newton submits that the effect of the principle stated in Parker Foundry v. Slack is that it was wrong in principle of the Tribunal to take into account several of the various factors identified in para. 10 of the remedy judgment, such as that many nurses working in the NHS have second jobs or that the Trust made no effort to monitor the extent of such working by nurses in their employment: those factors related not to her conduct but to that of other people. We do not accept that. The factors in question were plainly – and in our judgment reasonably - relied on by the Tribunal as factors relevant to the culpability of the Claimant's conduct: for example, the fact that many other nurses had such jobs but that the Trust did nothing to regulate the practice was obviously relevant in an assessment of the degree of her fault.

Ground 2

41. In her submissions before us Ms. Newton in effect rolled up this ground with ground 1: that is, she contended that the factors in question were irrelevant only because of what she said was the effect of Parker Foundry v. Slack. Our rejection of ground 1 thus means that this ground falls too.

Ground 3

42. The relevant factors which it is said that the Tribunal failed to take into account were enumerated by Ms. Newton in her skeleton as follows:

(i) the Claimant had worked on average between 78 and 109.5 hours per week and that she agreed what she had been doing was not right and might have been excessive.

(ii) her contract of employment incorporated the Respondent's policies, the contents of which she expressly stated that she had no obligation for her own and others' health which make individuals unsafe.

(iii) that the various policies available on nursing stations together with her contract would have given the Claimant a reasonable understanding of the requirements … not to work excessive hours.

(iv) that the Claimant was in breach of her own contract of employment.

43. There is no direct evidence that the Tribunal failed to take these factors into account. They were all obvious points on which it had already made findings in its liability decision and did not require to be spelt out again. In truth the Trust's submission is simply that its decision is so obviously wrong that it must have failed to take these factors into account (cf. para. 24 above) – in other words, a perversity allegation. We address that case below.

Ground 4

44. All three members of this Tribunal think it likely that if they had been required to decide what reduction should be made in the basic and compensatory awards in the present case to reflect the Claimant's conduct we would have reached a higher figure than the Employment Tribunal did. But it is necessary to remind ourselves that, not having ourselves heard the evidence, we are less well-placed than the Tribunal to make the assessment, which is necessarily of a broad discretionary character. We are not persuaded that, even if a 30% reduction was on the low side, it was so much too low that it can be characterized as perverse.
45. We accordingly dismiss the remedy appeal also.