United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR D R CALLOW (of Counsel) Rhondda Cynon Taf County Council Legal Department Municipal Building Llewellyn Street PENTRE Mid Glamorgan CF41 7XW
For the Respondent	MRS R E CLOSE (The Respondent in Person)

SUMMARY

UNFAIR DISMISSAL: Procedural fairness/automatically unfair dismissal

The tribunal found that a dismissal was unfair because the employers had adopted unfair procedures. In particular, they had relied on police witness statements in circumstances where they should have carried out their own inquiries. The EAT upheld the appeal on the grounds that although in form the tribunal had directed itself properly, in fact it had fallen into the trap of substituting its view for that of the employer. Finding of fair dismissal substituted.


 


THE HONOURABLE MR JUSTICE ELIAS (PRESIDENT)

1. This is an appeal against the decision of the Tribunal, which held that the claimant (as we will continue to call her although she is the respondent before us) had been unfairly dismissed.
2. The background is as follows. Mrs Close was employed as a care worker by the respondent council from 1987 until her dismissal on 21 October 2005. She worked with people with learning disabilities.
3. On the morning of 27 April 2003 the claimant had completed her night duty. A patient, for whom she was responsible, was found to have stopped breathing. He was resuscitated and taken to hospital, but died a week later. There were some concerns as to whether the claimant may have been responsible for this death. She was suspended pending police investigations on 9 May, but a medical investigation found that the patient had indeed had a pulse when the claimant went off duty and that the patient's death a week later was due to a heart attack.
4. The Police did not prosecute her but for reasons which are somewhat obscure, they continued their investigations into the matter until September 2005. However, the result of the suspension was that the claimant was placed on a list for the protection of vulnerable adults, which meant that she could not be employed as a carer until the matter had been resolved and she had been found suitable to do carer work.
5. On 23 May 2003 the Council wrote to the claimant setting out other charges relating to work performance, time keeping, and attendance. The claimant was invited to a disciplinary hearing on these matters on 1 September 2005, that is, some two and a half years after the initial suspension. The delay was because they could not carry out their own investigations whilst the police investigations were still ongoing. The allegations raised by the Council at this stage were of inappropriate care, poor attendance and time keeping and misusing equipment. The inappropriate care principally involved allegations of sleeping on duty and swearing in front of patients. These allegations were made against the claimant in the witness statements which had been provided for the policy enquiry.
6. There was an initial investigation carried out by Ms Alison Cade prior to the disciplinary hearing. She took no separate statements from witnesses, but selected as evidence to put before the hearing references relating to the charges from the witness statements obtained in the police investigation. The witnesses were asked by Ms Cade whether they had anything to add to their statements, but in fact none of them did. (Mrs Close complained that this was not done until Ms Cade had already determined that there was a case to answer. That was not perhaps ideal, but it was done before the disciplinary hearing took place.) In her opening to the disciplinary hearing, which was produced in advance to Mrs Close, Ms Cade identified eight members of staff who had alleged that they saw Mrs Close sleeping when she was supposed to be on the waking shift. Two were selected for attendance at the disciplinary hearing; a Mr Llewellyn and a Miss Louise Thomas, and they were questioned by the claimant's union representative.
7. The disciplinary hearing was conducted by Mr Gatis, the Acting Divisional Director of Community Care. Mr Gatis had regard to all the police witness statements and also heard evidence from Mr Llewellyn and Miss Thomas. Each said that they had seen the claimant take a quilt and a pillow and settle down on the settee to sleep while on night duty.
8. The claimant gave evidence. She accepted that she had indeed settled down on the settee with a duvet and pillow but this was because it was cold. Her case was that all staff did this. However, she denied that she had slept when she should have been awake. The Tribunal noted that neither Mr Llewellyn nor Miss Thomas knew that the claimant was actually asleep. Mr Llewellyn apparently told the panel that the claimant did use bad language and he thought she "had a problem with language" though he did not give any evidence of precisely what had been said. Miss Thomas said that she had heard bad language on one occasion, though not in front of the patients. The claimant denied that she had sworn in front of service users.
9. Mr Gatis preferred the evidence of Mr Llewellyn and Miss Thomas to that of the claimant. He noted that their evidence confirmed what was in the police statements from other witnesses. He concluded that the claimant had indeed slept on duty and had sworn in front of patients. He also found that her attendance and timekeeping failures constituted dismissible matters, as did her misusing equipment. He decided that she should be summarily dismissed for gross misconduct.
10. There was what appears to have been a relatively detailed appeal procedure which was invoked here by the appellant. This was conducted by a panel of councillors and took much the same form as the earlier hearing. The same witnesses were called, as was Mr Gatis. Surprisingly, there is no reference to the appeal at all in the tribunal's decision. The panel upheld the appeal with respect to some of the grounds, but not with respect to finding that there had been inappropriate care arising in particular from sleeping on duty, and improper swearing before patients.
11. The claimant's case was that she had been made a scapegoat for the death of the patient; in effect she was questioning whether the reason given for the dismissal was genuine and alleging that they were trumped up charges. The Tribunal, however, rejected that there was any lack of good faith in the decision by Mr Gatis to dismiss. They accepted also that the employers had genuinely believed that the reason was misconduct, namely sleeping on duty, and swearing in front of patients. However, they were not satisfied that the employers had acted reasonably in all the circumstances in so concluding. They recognised that the test was whether the enquiry fell within the band of reasonable responses, but they held that it did not. Their reasons for so finding are set out in the Tribunal's decision at paragraph 10(iii), which is as follows:

"…at time of dismissal the Respondents did not have reasonable grounds for believing that Mrs Close had committed the alleged conduct in that:-

(a) they relied on police witness statements which related to a totally different matter, arising out the death of a patient which was not related to sleeping on duty or use of bad language;

(b) there was no evidence before the Tribunal to suggest that the disciplinary panel enquired as to which of the police statements on which they relied had been tested by cross-examination in Court, if any;

(c) The investigating officer's query of witnesses whether they had anything to add to their police statements did not constitute reasonable investigation into charges that were unrelated to the death.

(d) The oral evidence on which the disciplinary panel relied did not suffice to constitute reasonable investigation in that neither Mr Llewellyn nor Miss Thomas were invited by Mr Gatis to explain how it was that they knew Mrs Close was asleep and not merely snuggling to keep warm under the quilt; there was no query as to why, as a light sleeper, Miss Thomas should have heard Mrs Close if she was awake.

(e) There was no evidence to suggest that the Respondents considered the possibility that derogatory remarks about Mrs Close may have been made by the police witnesses in order to deflect any suggestion of blame away from themselves in the serious situation arising from the death."

The reference in (b) is apparently to the fact that there was a trial of the manageress of the home for manslaughter. The tribunal is therefore suggesting that the Council should have had regard to whether the statements had been tested in the course of that trial.

12. A very significant feature of the tribunal's criticism was the use of police witness statements. The employers contended that they had acted reasonably in relying on such statements. They referred to the decision of the EAT in Harding v Hampshire County Council (EAT/2005). In that case a social worker was dismissed by his employers for, inter alia, improper sexual behaviour with a child. There had been a detailed investigation by the police which had not, however, resulted in any criminal prosecution. The employers relied heavily upon the statements provided in the course of that investigation. It was submitted on behalf of the employee that this was unreasonable; Hampshire Council should have carried out investigations of their own rather than simply adopting and relying on the material provided by the police. The employment tribunal rejected that argument and the EAT (HH Judge Burke QC presiding) held that they were entitled to do so. The EAT observed that whether and when it will be reasonable to rely on such investigations is a matter of fact depending on the particular circumstances. Sometimes the police investigation will have been very detailed, sometimes much less so, perhaps having been broken off at an early stage.
13. The Tribunal did not accept that this was an analogous case because whereas in Hampshire the police statements related to the very same issue for which the claimant was being disciplined; here the witnesses were giving their evidence with respect to a wholly separate and distinct investigation relating to manslaughter. In the circumstances it was inappropriate and unreasonable for this employer to rely upon the police reports as heavily as they did. The effect of the decision was that the claimant would not only lose her job but would be unable to obtain employment in the area of her chosen career. Accordingly, the Tribunal found that the dismissal was unfair.

The grounds of appeal

14. The essential ground of appeal is that the Tribunal, although ostensibly applying the correct test as to whether a reasonable employer could have adopted this procedure, has in fact substituted its own view for that of the employer. The Tribunal had erred in asking itself whether further steps could have been taken in the course of the hearing and investigation, whereas the only question is whether the procedure actually carried out was reasonable in all the circumstances.
15. It was also contended that if and in so far as the Tribunal adopted the right test, then their conclusion was plainly perverse. It is said that no reasonable tribunal could have concluded that the approach of the employers here was outwith the band of reasonable responses. However, Mr. Callow, counsel for the Council, realistically recognised that this ground added nothing to the substitution argument. If the tribunal was entitled to conclude that the procedures were unfair, then in our judgment there is no independent irrationality ground that can be pursued.
16. More specifically, with regard to the allegation of substitution, it is submitted that the tribunal erred in concluding that the Hampshire case could be distinguished in the way the Tribunal sought to do. It is true that the potential charge in the criminal proceedings was manslaughter, but in the course of that investigation the police were in fact focusing upon the quality of care habitually provided by the claimant. In any event, they specifically raised with the witnesses the issue of sleeping on duty and swearing, and there was no justification for assuming that the evidence given with respect to those matters was unreliable simply because the issues had been raised in the context of a wider manslaughter investigation. It is submitted that here there was plainly extensive investigation by the police taking place for over two years; the witness statements were comprehensive, and there was no reason to suppose that they did not fairly represent the testimony of the witnesses, particularly since the witnesses had confirmed their accuracy. These statements were properly considered by the Council; they were entitled to draw appropriate inferences from them. Accordingly, the observations made by the tribunal in the interrelated points made in paragraphs 10(iii)(a) and (c) set out above were unjustified.
17. The Council further submits that the observations made by the Tribunal in paragraphs (b),(d) and (e) in particular demonstrate a tribunal which is asking itself what more might have been done rather than whether what was done was reasonable in the circumstances. The steps therein identified were additional steps that could have been taken, but there was no proper basis for assuming that a reasonable employer should have taken them. As to para. (b), there was no reason why the Council should have considered whether the witness statements had been tested in cross examination. It was not suggested by the claimant or her representative that the evidence subsequently given at trial by any of these witnesses so departed from the statements as to make those statements unreliable. Similarly, it was unrealistic to say, as the tribunal do in para (d), that the employers should have questioned the many witnesses who said that the claimant was asleep so as to elicit from them how they knew that. With respect to the point raised in (e), it was never suggested that the witnesses would have been making up their evidence to shift blame for the incident away from themselves. There was no reason why that assumption should have been made.
18. Moreover, if and to the extent that the Tribunal was saying that there should have been no reliance on written statements at all, and that the witnesses should have given evidence orally, the Council emphasises that it is quite common for untested statements to be relied upon in internal disciplinary proceedings. It is not generally a breach of the principle of fairness to refuse an employee a right to cross-examine witnesses at his or her disciplinary hearing. There are many authorities supporting this proposition, including Ulsterbus Ltd v Henderson [1989] IRLR 251, a decision of the Northern Ireland Court of Appeal, and two decisions of the EAT, Voluntary Hostels Group v Horn [EAT/603/01; Nelson J presiding] and Santamera v Express Cargo Forwarding (t/a IEC Limited) [EAT780/01; Wall J presiding].
19. In the last of these cases Wall J said this:

"Section 98 of the [ERA 1996] and the case decided under it and its predecessors do not, of course, require the dismissing employer to be satisfied on the balance of probabilities, that the employee whose conduct is in question has actually done what he or she is alleged to have done. In a dismissal based on conduct, it is sufficient for the employer to have a genuine belief that the employee has behaved in the manner alleged, to have reasonable grounds for that belief and to have conducted an investigation which is fair and proportionate to the employer's capacity and resources. The employer has to act fairly, but fairness does not require a forensic or quasi-judicial investigation, for which the employer is unlikely in any event to be qualified and for which he, she or it may lack the means… These considerations, we think, explain why, in the workplace investigation of misconduct, cross examination of complainants by the employee whose conduct is in question (or even confrontations between them) are very much the exception. Whilst, in order to be fair, it is incumbent on an employer conducting an investigation both to seek out and take into account information which is exculpatory as well as information which points towards guilt, it does not follow that an investigation is unfair because individual components of an investigation might have been dealt with differently, or were arguably unfair …"

20. The employers submit that in this case, looking at the matter in the round, there was simply no proper basis for finding that the procedures were unfair. There was no complaint by the claimant that she was not able to challenge the evidence against her. Nor had she alleged that the procedure adopted by Mr Gatis was intrinsically unfair. There was no request to cross-examine any particular witness whose statement had been relied upon. These witnesses had each confirmed that they stood by their original witness statements and it was otiose and unnecessary to require the employers to take fresh statements. Mr Gatis had preferred the evidence of the Council's witnesses to that of the claimant and had accepted that the claimant was asleep. That was plainly a justifiable inference to draw in the circumstances, particularly given the number of witnesses testifying to that fact. There had been an appeal process which was plainly not a rubber stamp since it upheld the appeal in part.
21. Finally it was also suggested that apart from any other considerations, the tribunal failed to have regard to the appeal process and to ask itself if this appeal might have put right such defects as there may have been in the hearing before Mr Gatis. However, Mr Callow accepted that this was of no real significance in the circumstances of this case since the appeal was conducted in essentially the same manner as the original hearing, and therefore if the former was procedurally unfair, those defects were not remedied by the latter.
22. The claimant, who represented herself before us, submits that the Tribunal's conclusion was one which was open to it on the evidence. They properly directed themselves in law and reached a conclusion which they were entitled to reach. The procedure was plainly unsatisfactory and the tribunal was entitled to expect an employer to do more than this employer did. It is not for the EAT to second guess the tribunal's conclusion. Mrs Close also made some observations that the statements of the witnesses had altered over time, but in our view that is not really material since that frequently happens and it was their final statements which they were asked to confirm. She also made some additional criticisms of the initial investigation by Ms Cade, but they did not reflect criticisms found by the tribunal.

Conclusions.

23. We are unanimously of the view that the Tribunal did here fall into the errors identified by the appellant's counsel. The police had obtained a significant number of witness statements which identified allegations of inappropriate behaviour, including sleeping on duty and unacceptable language in front of patients. The claimant had a full opportunity to challenge that evidence and indeed to cross-examine two of the witnesses who were called to give oral evidence at the disciplinary hearing. In our judgment it could not be said that any reasonable employer would have started the investigation again from scratch. Indeed, in a case such as this where the police witness statements were made much closer to the time of the alleged misconduct, there was every reason to suppose that they would have been more reliable than statements taken almost three years later. Nor was it unfair not to call all the witnesses. As the authorities referred to above demonstrate, it is not generally incumbent on an employer to allow cross examination of witnesses. To some extent that was permitted here since two witnesses were called, but the failure to make all the witnesses available for cross examination could not in our view render the dismissal unfair.
24. We do not accept that it is a legitimate to distinguish the Hampshire County Council case on the grounds that the statements made to the police were in relation to a different investigation. First, it seems that the quality of care was very much an issue in the criminal investigation. More importantly, we accept that where certain specific matters are raised and dealt with in a witness statement on the grounds that the evidence may be relevant to a subsequent trial, and these statements are confirmed, it is irrelevant that the focus of the criminal investigation was different. As Mr Callow pointed out, to some extent it will inevitably be different where criminal proceedings are being considered. Furthermore, we do not see how it can be a point of criticism that the witnesses were asked whether or not they wished to confirm the statements they had made to the Police. That was simply an additional safeguard to ensure that they had no second thoughts. It would perhaps have been desirable for them to have been asked to confirm the particular matters in their statements which were the subject of the disciplinary process, but in our judgment it cannot be said that any reasonable employer would necessarily have adopted that approach. We are fully satisfied that it was not outside the band of reasonableness for this employer to choose not to carry out his own independent questioning on these very same matters but instead to rely on police statements..
25. Similarly, we do not think it was incumbent upon a reasonable employer to assume that the allegations from the witnesses may have been made in bad faith, or for the improper purpose of deflecting criticism from themselves, since that was not an argument being advanced by the claimant. This is particularly so given the number of the witnesses involved, some of whom would presumably have had no connection with the particular incident at all.
26. Nor do we accept that any reasonable employers would have required concrete evidence from the witnesses to explain why it was they were satisfied that the claimant was actually asleep. It was plainly the genuine impression of these witnesses that the claimant was asleep. Thereafter, once their evidence was accepted, it was a reasonable and proper inference for the employers to draw that she was indeed asleep. This is particularly so given that some of the witnesses do in fact provide some circumstantial evidence to support their testimony, such as the claimant setting her alarm clock and being woken by it.
27. In short. we are satisfied that although properly directing itself in form, the tribunal has in fact descended into the arena and substituted its view for that of the employer as to how the procedure should have been conducted. We are reinforced in this view by a consideration of the decision of the Court of Appeal in Foley v Post Office [2000] ICR 1283. In that case the Court inferred that the tribunal in that case had substituted its view for that of the employer because it was "evident from the tenor of their views…on the quality and the weight of the evidence" (per Lord Justice Mummery, p.1295A). In that case the employers were criticised for finding that the employee had been involved in fraudulent behaviour given the lack of precise dates when this was alleged to have happened; and in the absence of any step taken by the employer to consider whether other members of staff may have had a reason for acting dishonestly. The Court considered these criticisms to be unjustified. In our view the approach of the tribunal in that case is similar to the emphasis placed by the Tribunal in this case on the lack of any proof that the claimant was asleep, and the failure to consider whether other witnesses may have had their own motives for lying in their witness statements.
28. In our judgment the approach of these employers fell within the band of reasonable responses, and the tribunal erred in holding otherwise. The Council obtained evidence based on the witness statements; they confirmed that the witnesses still stood by those statements; they allowed cross-examination of two of those witnesses; and they assessed the evidence of the witnesses they heard, and concluded that they were more reliable than the claimant. That is essentially what the employers have to do in circumstances of this kind. The Tribunal rejected the contention that the employers had acted in bad faith or produced trumped up charges against the claimant. The Tribunal has wrongly become embroiled in assessing the quality and weight of the evidence. That is not their function. In those circumstances we think the appeal must succeed.

Disposal

29. It follows that since our conclusion is that the procedures adopted by the Council were fair, and the Tribunal was not entitled to find otherwise, the finding of unfair dismissal cannot stand. Accordingly we uphold the appeal and substitute a finding of fair dismissal.