At the Tribunal | |
Before
HIS HONOUR JUDGE RICHARDSON
MS V BRANNEY
MR G LEWIS
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
LORD JUSTICE MOORE-BICK
For the Appellant | MR PAUL CADDEN (Representative) European Lifestyles Office Sefton Park Road Toxteth Liverpool Merseyside L8 OWN |
For the Respondent | MR THOMAS H JOHN (of Counsel) Messrs Campbell Law Solicitors Technology House 151 Silsbury Boulevard Milton Keynes MK9 1LH |
SUMMARY
PRACTICE AND PROCEDURE: Bias, misconduct and procedural irregularity
UNFAIR DISMISSAL: Reasonableness of dismissal
Appeal dismissed. No error of law in the Tribunal's reasoning and no bias or procedural irregularity. Appeal misconceived; costs awarded.
HIS HONOUR JUDGE RICHARDSON
The background facts
The Tribunal's reasons
"We find that Ms Guillen and Mr Cadden genuinely believed that Mrs Lucas had committed the alleged acts of misconduct and that the statements that were obtained provided grounds which were reasonably capable of sustaining that belief. We were, however, more troubled by the investigations upon which the dismissal was based."
(1) The incident occurred at 8.30am; Mrs Lucas called the doctor at 9.00am after a period of observation of about half an hour.
(2) Rhoda was a person who fell frequently, as noted in her Care Plan.
(3) There was no protocol or standing instruction as to what the response of staff should be when a resident fell.
(4) Ms Guillen gave evidence that when she dismissed Mrs Lucas she did so in the belief that Rhoda had been screaming with pain. However none of the statements described Rhoda as screaming, though one statement referred to her as having shouted when her shoe was put on.
(5) Immediate calling of a doctor or ambulance was not considered necessary by the home manager Ms Thursby who had seen Rhoda at 8.45am.
(6) Immediate calling of an ambulance was not considered necessary by the GP when alerted at 9.00 am.
(7) On the specific question of calling an ambulance, the Tribunal found that this would only be appropriate if it had been obvious to Mrs Lucas at 8.30 am that Rhoda's hip was broken. The Tribunal stated that it found that it was not obvious to Mrs Lucas at that time that she was dealing with a fractured hip. (We would add that, although the Tribunal discusses the calling of an ambulance, the dismissal letter referred to calling a doctor).
(8) Ms Guillen accepted that whilst residents do unfortunately sometimes fall in care homes it is not always appropriate to call a doctor. She said that whether it was appropriate to call a doctor would depend on the circumstances and that it could be within the range of reasonable responses to wait 30 minutes before doing so.
(9) Neither Ms Guillen nor Mr Cadden asked to look at the Care Plan and the Risk Register to inform themselves of the relevant background – namely that Rhoda was a person who fell frequently.
(1) Mrs Lucas herself said that she did a top to toe examination including looking to see whether one leg was shorter than the other.
(2) The Company proceeded on the basis that no such examination had taken place "presumably as the subsequent X ray had revealed a fractured hip".
(3) The Company obtained no medical evidence that the conclusion was a reasonable one based on the type of fracture.
(4) There were three people present when Rhoda fell. The Company did not go back to them to obtain specific evidence on the extent of the examination carried out by Mrs Lucas.
(5) Neither Mrs Guillen nor Mr Cadden asked to see the accident report to help resolve the disputed version of events.
(6) Therefore –
"We further observe that neither Mrs Guillen nor Mr Cadden asked to see the accident report to help resolve the disputed version of events. Given the seriousness of the charges and the importance to Mrs Lucas in there being a fair conclusion on the reasonableness of her actions between 8.30 am and 9.00 am on the day in question, we find that Ms Guillen should have gone further than merely reading statements that had been volunteered. She should have spoken individually with those witnesses with whom Mrs Lucas disagreed and put to them Mrs Lucas's version of events. In the absence of such steps having been taken by Ms Guillen, they should have been taken by Mr Cadden."
(1) Ms Guillen considered that it was irrelevant that Rhoda was attention seeking and considered Mrs Lucas's conduct in describing Rhoda in these terms to be appalling.
(2) However, it was Mrs Lucas's case that, far from being a flippant or uncaring comment, it was relevant to note that Rhoda was attention seeking.
(3) Evidence to support Mrs Lucas's comment was available in Rhoda's Care Plan. Neither Ms Guillen nor Mr Cadden asked to see the Care Plan.
(4) Before reaching the conclusion that Mrs Lucas's conduct was appalling Ms Guillen and Mr Cadden should have investigated the facts more carefully.
"In the circumstances described above, we find that the Respondent did not carry out as much investigation into the matter as was reasonable in all the circumstances of the case. Further, having regard to the lack of investigation and the unresolved issues, we find that dismissal was outside the rage of responses open to a reasonable employer. Mrs Lucas had an unblemished record. She had implemented unpopular reforms in the care home. There was no compelling evidence that she had failed to examine Rhoda properly, whilst she did cause Rhoda to be observed for 30 minutes after her fall, after which the doctor was called and the doctor's advice was acted upon. For these reasons we find that Mrs Lucas's dismissal was unfair."
Bias and irregularity
Factual complaints
Legal approach
Application for Costs
"34A When a costs or expenses order may be made
(1) Where it appears to the Appeal Tribunal that any proceedings brought by the paying party were unnecessary, improper, vexatious or misconceived or that there has been unreasonable delay or other unreasonable conduct in the bringing or conducting of proceedings by the paying party, the Appeal Tribunal may make a costs order against the paying party.
(2) The Appeal Tribunal may in particular make a costs order against the paying party when-
(a) he has not complied with a direction of the Appeal Tribunal;
(b) he has amended its notice of appeal, document provided under rule 3 sub-paragraphs (5) or (6), Respondent's answer or statement of grounds of cross-appeal, or document provided under rule 6 sub-paragraphs (7) or (8) ; or
(c) he has caused an adjournment of proceedings.
(3) Nothing in paragraph (2) shall restrict the Appeal Tribunal's discretion to award costs under paragraph (1).
[The Appeal Tribunal heard further submissions on the question whether and in what amount an order for costs should be made]