United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MISS CATHERINE KNOWLES (of Counsel) Instructed by: Messrs Beechcroft LLP Solicitors 7 Park Square East Leeds West Yorkshire LS1 2LW
For the Respondent	MR KEVIN McNERNEY (of Counsel) Instructed by: Messrs Howells LLP Solicitors The Avery Building 15-17 Bridge Street Sheffield Yorkshire S3 8NL


 


SUMMARY

UNFAIR DISMISSAL

Reasonableness of dismissal

Burden of proof neutral under s.98(4) of the Employment Rights Act. Employment Tribunal wrong to apply burden on employer, applying Burchell as originally decided before Employment Act 1980 s.6 (see Boys & Girls v McDonald).

Reasonable investigation does not require employer to gather all available evidence.

Range of reasonable responses test; Employment Tribunal substituted own view for that of employer as to appropriateness of sanction of dismissal.

Appeal allowed. Result not plainly and unarguably right or wrong. Case remitted to fresh Employment Tribunal for rehearing

.


 


HIS HONOUR JUDGE PETER CLARK

Introduction

1. The parties before the Sheffield Employment Tribunal were Mr Crabtree, Claimant, and Sheffield Health and Social Care NHS Foundation Trust, Respondent. This is the Respondent's appeal against the reserved judgment of a Tribunal chaired by Employment Judge Howard, promulgated with Reasons on 7 May 2009, upholding the Claimant's complaint of unfair dismissal.

Background

2. The Claimant was employed by the Respondent as a staff nurse from 18 August 2000 until his dismissal effective on 4 January 2008. He worked on an acute adult mental health ward, Maple Ward. LH, a female, was an in-patient on that ward from 13 May until 9 July 2007.
3. On 17 August 2007 LH contacted a support worker on night duty at the hospital to complain that the Claimant had been sending her text messages since her discharge. That complaint was passed upwards through the Respondent's management structure, and on 21 August Mr Fairhall, Assistant Service Director, met with LH and made a note of what she had to say. On 17 September he met with the Claimant as part of his investigation. The Claimant admitted sending four to five texts to LH, but said these were only in response to messages sent by her.
4. At a second meeting on 26 October the Claimant told Mr Fairhall that he had arranged to meet LH in Sheffield, but thought better of it and did not show up for that meeting.
5. On completion of his investigation Mr Fairhall prepared a management statement of the case which was sent to the Claimant on 14 December, and to which the Claimant responded on 19 December.
6. A disciplinary hearing took place on 4 January 2008. The Claimant attended, supported by an officer from his trade union. Following that hearing he was summarily dismissed by letter dated 9 January 2008. That letter begins with, effectively, three allegations made against the Claimant:

"1. You privately had contact with a client of this service without informing your supervisors or managers, and the client was caused distress by this contact.

2. You provided the client with information or advice without informing or consulting with other members of the client's care team, and in a way which may have compromised the provision of safe and effective care of the client.

3. You acted contrary to NMC (Nursing and Midwifery Council) guidelines."

7. The reason for dismissal expressed in that letter was as follows:

"Your actions constituted the mishandling the care of the service user by giving advice not to seek treatment by the A&E department and negligence by failing to communicate your continued relationship with the client without communicating this to other professionals. You overstepped the boundaries expected of a registered nurse in your relationship with the client. I considered your previous good disciplinary record. The behaviour outlined above constitutes gross misconduct, and I therefore conclude that you should be dismissed from your post with immediate effect."

8. Against his dismissal the Claimant appealed. That appeal was rejected by a letter dated 1 May 2008.

The Tribunal Decision

9. We begin with the Tribunal's self direction at paragraph 5.1 of their Reasons under the heading "The Law":

"5.1 Misconduct is a potentially frail reason for dismissal under Section 98(2)(b) of the Employment Rights Act 1996. It is the employer that must show that misconduct was the reason for dismissal. The leading case is British Home Stores Limited v Burchell [1980] ICR 303, which spells out a threefold test. The employer must show that:

he believed the employee was guilty of misconduct.

he had in his mind reasonable grounds upon which to sustain that belief.

at the stage at which he formed that belief on those grounds, he had carried out as much investigation into the matter as was reasonable in all the circumstances."

10. The Tribunal further directed themselves, paragraph 5.2, that the employer's task was to gather all the available evidence, save where a fact has been clearly established.
11. They finally directed themselves, paragraph 5.3, as to the range of reasonable responses test, by reference to what they described as the leading case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439, EAT, Browne-Wilkinson P presiding.
12. In expressing their conclusions at paragraph 6, the Tribunal was not satisfied that the Respondent carried out as much investigation as was reasonable in the circumstances, paragraph 6.1. Further, the Tribunal was not satisfied (paragraph 6.6) that dismissal fell within the band of reasonable responses.

The Appeal

13. The first point taken in this appeal by Miss Knowles is that the Tribunal misdirected itself as to the burden of proof. At paragraph 5.1 the Tribunal recite the threefold Burchell test: genuine belief on reasonable grounds following a reasonable investigation, taken from Arnold J's judgment in that case. But Burchell was decided before the alteration of the burden of proof effected by section 6 of the Employment Act 1980. I took the point as counsel before this EAT in Post Office Counters Limited v Heavey [1989] IRLR 515, and that submission was accepted by Wood P in that case (see paragraph 14).
14. I then set out the position in Boys and Girls Welfare Society v McDonald [1996] IRLR 129, paragraphs 21 to 28. Now 30 years after the 1980 Act, 20 years after Heavey, and 14 years after Boys and Girls, employment tribunals are still getting it wrong. Why? One possibility is that on a superficial reading of Mummery LJ's judgment in Post Office v Foley; HSBC Bank Plc v Madden [2000] IRLR 827, it might be thought that the Burchell test as stated by Arnold J must be literally applied in conduct unfair dismissal cases. That would be a misunderstanding. The first question raised by Arnold J: "Did the employer have a genuine belief in the misconduct alleged?" goes to the reason for dismissal. The burden of showing a potentially fair reason rests with the employer.
15. However, the second and third questions, reasonable grounds for the belief based on a reasonable investigation, go to the question of reasonableness under section 98(4) ERA and there the burden is neutral. To combine all three questions as going to the reason for dismissal, as did the EAT judgment in Madden is wrong, see Foley paragraph 10.
16. Despite Mr McNerney's best endeavours to persuade us that, looking at the Tribunal's reasons as a whole, the Tribunal did not in fact wrongly place the burden on the employer to establish or show that it had carried out a reasonable investigation, we are quite unable to read their self direction at paragraph 5.1 in any other way. That impression is compounded by their reference, both at paragraph 6.1 and 6.6, to their not being satisfied that the Respondent had carried out as much investigation as was reasonable.
17. We therefore uphold Ms Knowles' submission on this first ground of appeal.
18. We acknowledge that a misdirection as to the burden of proof is not necessarily fatal to the Tribunal's overall conclusion (see West London Mental Health NHS Trust v Sarkar [2009] IRLR 512, paragraph 26 per HHJ McMullen QC). However, in the present case we accept the further difficulty pointed out by Miss Knowles that at paragraph 5.2 the Tribunal states that the employer's task is to gather all the available evidence, save where a fact is clearly established. Again, in our judgment, that places too high an onus on the employer who is required only to carry out a reasonable investigation.
19. Miss Knowles further submits that the findings by the Tribunal as to the further investigation required of a respondent at paragraph 6.1, 6.2 and 6.3 are plainly unsustainable. The finding as to investigation ought to be reversed by this Appeal Tribunal. We cannot accept that submission, not least because Mr McNerney has persuaded us that the so-called A&E issue referred to at paragraph 6.3 and in their fact finding, particularly at paragraph 4.7, is at the very least an arguable point in the Claimant's favour before a properly directed Employment Tribunal on the reasonable investigation issue.
20. Separately, Miss Knowles submits that at paragraph 6.4 there is a distinct sense that contrary to their correct self direction at paragraph 5.3, the Tribunal has in fact substituted its own view as to the propriety of the Respondent's sanction of dismissal, rather than looking at the range of reasonable responses open to a reasonable employer. We accept that submission, particularly since, as Mr McNerney fairly acknowledges, the Tribunal has not there identified and placed in the balance this employer's rationale for imposing the sanction of dismissal, rather than some lesser penalty.
21. In these circumstances, we have concluded that this appeal must be allowed. We are wholly unpersuaded, either by Miss Knowles that the result is plainly and unarguably wrong, or by Mr McNerney that it is similarly right. Like the Court of Appeal in the recent case of London Ambulance Service NHS Trust v Small [2009] IRLR 563 (see paragraph 49 per Mummery LJ), we find it quite impossible for this Appeal Tribunal to decide liability in this case. The matter must be remitted for re-hearing by the Employment Tribunal, and having considered and rejected Mr McNerney's suggestion that it return to the same Employment Tribunal, we direct that the case be reheard by a differently constituted Tribunal.
22. Finally, Miss Knowles included in her appeal a complaint that this Tribunal failed to deal with the issue of contributory conduct on the part of the Claimant at the hearing. That point is now strictly moot, since the whole case is to be re-heard. Our only observation is that it is important for Tribunals to identify clearly at the outset of a hearing precisely what are the issues to be determined. In this instance, on remission, the Tribunal re-hearing this case must specify whether contribution and/or the Polkey question, if it arises, are to be dealt with at the liability or subsequent remedy hearing, if the claim of unfair dismissal succeeds.