United Kingdom Employment Appeal Tribunal

APPEARANCES

 

For the Appellant	MR COLIN SINCLAIR (Representative)
For the Respondent	MR FRANCIS SCOON (Representative) RBS Group Mentor Services 2nd Floor – 1 Hardman Boulevard Manchester M3 3AQ


 


SUMMARY

UNFAIR DISMISSAL

The Claimant, a staff nurse of long experience, was dismissed by the Respondent after she had delegated the administration of a drug to a care assistant in the Respondent's care home; the care assistant gave the drug to the wrong patient. In breach of the Nursing and Midwifery Council's guidelines, the Claimant neither recorded nor reported the drug error (which caused no harm and was unlikely to do so). The Employment Tribunal found that her dismissal for her admitted breaches of the guidelines and her failure to appreciate the seriousness of what had occurred fell within the band of reasonable responses.

Held: on appeal (i) that the ET had not failed to consider either the Claimant's case that the Respondent had dismissed her for economic or other reasons and used the incident as a pretext or the other elements of her case (ii) that it was not the task of the ET or the EAT to decide whether the dismissal was fair (iii) that the ET had correctly applied the law and (iv) that perversity was not demonstrated. Fuller and Yeboah applied.


 


HIS HONOUR JEFFREY BURKE QC

Introduction

1. This is an appeal by Ms Bryant, the Claimant before the Employment Tribunal, against the judgment of that Tribunal, sitting at Manchester, presided over by Employment Judge Sherratt and sent to the parties with written reasons on 22 December 2010.
2. By that judgment the Employment Tribunal found that Ms Bryant had been fairly dismissed for gross misconduct. By this appeal Ms Bryant seeks to overturn that judgment in the favour of her employers, Sage Care Homes Limited. We will refer to Ms Bryant as "the Claimant" and Sage Care Homes Limited as "the Respondents", as they were before the Tribunal.

The facts

3. The essential facts as found by the Tribunal were these. Ms Bryant had, at the time of the hearing, almost 40 years of service as a registered nurse; she was a registered mental health nurse, registered as such with the Nursing and Midwifery Council ("NMC"), and had worked mainly in private hospitals and other institutions for the past 25 years before her dismissal, as a staff nurse. Her professionalism, the Tribunal found at paragraph 1 of their judgment, had never previously been brought into question. So she had a record to be proud of.
4. She was employed in 2005 at the Respondent's Belmar Nursing Home in Lytham St Anne's. She was the senior nurse there and stood in for the manager in the manager's absence; hers was a responsible position. She was, as a registered nurse, subject to policies and procedures as to nursing laid down by the NMC. She would also have been subject to relevant policies of the Respondents if they had been in force at Belmar; but the Tribunal found although the Respondent's regional manager, Ms Williamson, who investigated the allegations of misconduct against the Claimant and made the original decision to dismiss, believed that those policies had been introduced at Belmar (see the dismissal letter and also her witness statement), they had not been so introduced, as a result of the failure of the previous manager to do so.
5. On 6 June 2009 the Claimant had been carrying out the drug round, dispensing medication to patients from a trolley. She told Angela Parkinson, an unqualified care assistant, to give medication - "Maxolon", a sedative - to Mr A together with a cup of tea; Miss Parkinson gave the medication to a different patient while giving the cup of tea to Mr A. Although Miss Parkinson, in a witness statement for the subsequent disciplinary proceedings, said that the Claimant had told her to give the medicine to the other patient, the disciplinary proceedings did not go forward on the basis that the Claimant had misdirected Miss Parkinson but on the basis that she had given her the correct directions which Miss Parkinson failed to follow; and the Tribunal took the same view.
6. An hour or so later, Mr A came to the office and asked for his medication. The Claimant spoke to Miss Parkinson; and the error was revealed. The Claimant, however, took no action in respect of what is commonly described as the "drug error" beyond keeping an eye on the recipient patient to see if she was affected by being given a dose of medication which she was not supposed to have had. She told Miss Parkinson not to worry, it was only a mild sedative. She discussed what had happened with the other qualified nurse on duty who appeared to be content with the situation or at least to leave it to the Claimant.
7. As it turned out the other patient suffered no ill effects. However, someone informed the Care Quality Commission of what had happened; and the CQC informed Ms Williamson. As a result witness statements were taken from relevant witnesses; and what the Tribunal found to be a full investigation was conducted. The Claimant was asked to explain what had happened; she was then suspended on full pay by a letter which said:

"On 6^th June failed to follow correct drug procedure, you let other individuals administer drugs, you did not report a drug error and failed to seek to medical advice following the drug error."

8. No reference was made in that letter to the Respondent's internal policies.
9. There was a disciplinary hearing a week later, on 23 June. The Claimant had been offered representation by a friend or trade union official but did not take up that offer. She explained the facts as we have set them out. Ms Williamson took her through the NMC procedures, to which we will refer below. The Claimant admitted that she knew them. The Claimant said that she relied on the capabilities of Miss Parkinson; asked what she should have done once the error had been discovered, she said that she knew that the error was not harmful and that her experience and judgment in not reporting it or seeking medical advice should be regarded as sufficient. She admitted that she was wrong; but she had not acted intentionally and thought that she was qualified to make a judgment.
10. Ms Williamson, at the end of the hearing, put four allegations to her, that she had failed to follow the correct drug procedure, had given prescribed medication to a senior carer to administer, had failed to report the incident and failed to seek advice following it. The Claimant admitted all four allegations. She said that she did not realise that she had to report the incident and did not believe in wasting a doctor's time; there were no side effects; and it was not necessary to do so.
11. Ms Williamson decided that the Claimant should be dismissed for gross misconduct; the dismissal letter reads, in its relevant parts, as follows:

"Dear Emily,

Further to the Disciplinary Hearing held on 23^rd June 2009 at which you declined your right to be accompanied, I am writing to confirm your summary dismissal from the Company.

The purpose of the above hearing was to give you an opportunity to provide a satisfactory explanation for the following areas of misconduct which the Company considered to be of the gravest and utmost severity.

Failure to follow the correct drug procedure, allowing others to administer drugs on your behalf, not reporting a drug error and seeking to follow medical advice following a drug error.

At the hearing you said that you agreed that all of the above had occurred. After careful consideration I find your explanation wholly unacceptable because you acknowledge you did not follow the correct procedure but continually attempted to justify your actions and even stated you would admit this in a court of law. This constitutes extreme breach of Company Procedures, and wilful neglect of client well being. I find your actions amount to Gross Misconduct.

As a consequence, therefore, I have no alternative but to summarily dismiss you from the Company. This means that you are not entitled to notice or pay in lieu of notice.

Your date of dismissal is, therefore 23^rd June. Your P45 and any monies owing to you including holiday pay and outstanding wages will be forwarded to your home address.

Finally, you have the right of appeal against your Dismissal. If you wish to exercise this right, you should write to Teresa France, c/o Belmar Nursing Home within 5 working days stating your reasons."

12. The Claimant appealed. In her letter seeking an appeal hearing she wrote about her record and experience and, as to the incident facts, said, at page 141:

"I do know the drug procedure, although I am still unclear about part of allegedly not following the drug procedure. Regarding the fact that I did not record the error, I apologise in that but I did not think of putting it in the Accident Book, as apparently I was supposed to. I take responsibility in that."

13. Her appeal was heard by Teresa France, manager of a different home and also a registered nurse, on 6 July 2009. The Tribunal set out the course of the appeal hearing in detail at paragraphs 29 and 30 of their judgment. Her appeal was unsuccessful.
14. The Tribunal set out the essential part of Ms Williamson's evidence to them, at paragraph 36 in these terms:

"In Ms Williamson's view the only possible outcome for the claimant's conduct involving breach of the NMC's standards in failing to report and record was dismissal. The claimant did not say she knew what she had done. She felt she had experience to make the judgement on her own. On this basis she did not consider anything other than dismissal. Ms Williamson had investigated numerous drug errors in her time with the NHS as an A&E Manager so it was not something she did not understand. In her view, any nurse would have known what she was doing was wrong. The claimant showed on insight. The claimant believed her experience and judgement were enough but as a nurse you are not allowed to make such a judgement. She did not feel that the claimant showed any insight into matters. If she knew what she should have done then it would have been different."

The NMC

15. The NMC has a Code of Conduct which requires that nurses must be able to be trusted with the health and well-being of those in their care, they must be open, honest, act with integrity and uphold the reputation of the profession and must be personally accountable for acts and omissions in practice and always able to justify their decisions.
16. The NMC have also produced a document called, "Standards for Medicines Management" which applied at the relevant time. In the introduction that document said that its purpose was:

"To set standards for safe practice in the management and administration of medicines by registered nurses…"

17. It said that the document provided:

"The minimum standards by which practice should be conducted."

18. Standards 17 and 19, as set out in that booklet, permitted a registered nurse to delegate the administration of medication to a competent care assistant but stated that such nurse remained responsible for such delegation. Standard 24 provided as follows:

"Standard 24: Management of adverse effects

As a registrant; if you make an error you must take any action to prevent any potential harm to the patient and report as soon as possible to the presciber, your line manager or employer (according to local policy) and document your actions. Midwives should also inform their named supervisor of midwives."

The Tribunal's decision

19. It was not in dispute that no record of the delegation to Miss Parkinson of the administration of the sedative to a patient not intended to receive it had been made; and it was not in dispute that the Claimant had not made any report of that error to a doctor, her line manager or to the Respondent more generally.
20. Having found the facts, the Tribunal set out the law in concise and accurate terms at paragraphs 66 to 68 and then set out their conclusions which were, in summary; 1) there was before the Tribunal an attack on the bona fides of the dismissal; it was the Claimant's belief that the employers were using what had occurred as a pretext for getting rid of her. The Tribunal found at paragraph 69 that that was not established and that the reason for dismissal was the Claimant's conduct; 2) the Claimant was dismissed for four mistakes which were put to her at the disciplinary hearing and have been identified above. Of those the first (failing to follow the correct drug procedure) was a summary of the others and not a freestanding error. However, the internal policy which prohibited delegation of drug administration was not in place; and therefore such delegation was not a ground on which the employers could rely. If that was all that there was against the Claimant, the Tribunal would have found the dismissal to have been unfair; for the evidence was that it was the practice at Belmar for care assistants to administer medication under the supervision of qualified staff, see paragraph 73 of the judgment and paragraphs 18 and 29 of the notes of Ms Williamson's evidence; but 3) the Claimant was always subject to the NMC standards; and she had been admittedly guilty of breaching those standards; she did not record what had happened and did not report it, see paragraph 80 of the judgment.
21. At paragraph 81 the Tribunal referred to Ms Williamson's view that the Claimant did not have insight into her failures.
22. At paragraph 83 the Tribunal referred to the Claimant's long and unblemished career and said this:

"This is indeed a good record but in terms of taking it into account the view of Phillippa Williamson was that notwithstanding her long career the claimant lacked understanding and insight. In her view, any nurse would and should have known what was wrong. In the light of this we note that it is not our place to substitute our views for that of the employer and here a qualified nurse was judging the actions of another qualified nurse against the professional standards applicable to both of them. It is not for us to interfere with that view."

23. At paragraph 84 the Tribunal asked whether the decision to dismiss fell within the range of reasonable responses and replied to their own question in these terms:

"84. Finally, we must ask was the decision to dismiss within the range of reasonable responses? We note that the NMC decided not to pursue an allegation of professional misconduct to consider whether or not the claimant was fit to practice but this decision is very different from the decision we have to take as an Employment Tribunal. We are charged with considering whether the dismissal was fair in the particular circumstances of this case. Whilst we have considerable sympathy with the claimant, who seems to have worked long and hard in difficult circumstances under poor management, we take the view that the decision to dismiss her was within the band of reasonable responses and therefore fair following a failure to comply with her code of professional conduct in not reporting a drug administration error, the claimant having accepted that any breach with regard to drug administration would be serious.

85. The respondent is open to criticism in this case for not have its own policies and procedures in place and for relying upon them in part to dismiss the claimant but we are unable to get away from the absolute obligation of the claimant to abide by the rules of her professional body and it is that failure, and that failure alone, which makes the dismissal within the band of reasonable responses in this case."

The law

24. We do not need to set out the Tribunal's self direction as to the law, in paragraphs 66 to 68 of their judgment, which has not been the subject of any criticism.
25. We need, however, to say something about the role of the Employment Appeal Tribunal. In recent years there has been more than one decision in which the Court of Appeal have had to consider the extent to which, in a case in which the reasonableness of the dismissal is the central issue, an Appellate Tribunal can intervene where the Employment Tribunal has correctly directed itself as to the law. The latest of these is Fuller v London Borough of Brent [2011] IRLR 414. The facts of that case are, for present purposes, unimportant. The employers dismissed the employee for misconduct. The Tribunal found that the employers had a genuine belief in the misconduct alleged and, as the Court of Appeal said, there had been a reasonable investigation. The real issue was whether it was reasonable to dismiss for the misconduct alleged. The Tribunal found that no reasonable employer would have dismissed the employee for a one-off incident of misconduct. The EAT reversed that conclusion, on the basis that the Tribunal had impermissibly substituted its own judgment for that of the employer. The Court of Appeal restored the Tribunal's decision.
26. Mummery LJ, with whom Jacob LJ agreed, said at paragraphs 27 to 30:

"27. Unfair dismissal appeals to this court on the ground that the ET has not correctly applied s.98(4) can be quite unpredictable. The application of the objective test to the dismissal reduces the scope for divergent views, but does not eliminate the possibility of differing outcomes at different levels of decision. Sometimes there are even divergent views amongst EAT members and the members in the constitutions of this court.

28. The appellate body, whether the EAT or this court, must be on its guard against making the very same legal error as the ET stands accused of making. An error will occur if the appellate body substitutes its own subjective response to the employee's conduct. The appellate body will slip into a similar sort of error if it substitutes its own view of the reasonable employer's response for the view formed by the ET without committing error of law or reaching a perverse decision on that point.

29. Other danger zones are present in most appeals against ET decisions. As an appeal lies only on a question of law, the difference between legal questions and findings of fact and inferences is crucial. Appellate bodies learn more from experience than from precept or instruction how to spot the difference between a real question of law and a challenge to primary findings of fact dressed up as law.

30. Another teaching of experience is that, as with other tribunals and courts, there are occasions when a correct self-direction of law is stated by the ET, but then overlooked or misapplied at the point of decision. The ET judgment must be read carefully to see if it has in fact correctly applied the law which it said was applicable. The reading of an ET decision must not, however, be so fussy that it produces pernickety critiques. Over-analysis of the reasoning process; being hypercritical of the way in which the decision is written; focusing too much on particular passages or turns of phrase to the neglect of the decision read in the round: those are all appellate weaknesses to avoid."

27. He also said, at paragraph 31:

"The ET got off to the right start by asking the correct question: "Was this belief founded on reasonable investigation in all [the] circumstances?" Although the ET expressed concerns about some aspects of the investigation by Ms Addington and said that they felt that it would have been wiser for the school to have appointed as investigator a more neutral party felt, they said that the investigation was exemplary in relation to the other witnesses. It is true that the ET did not directly answer the question which it asked. It should have specifically answered its own question. Although it did not, there is no real basis for doubting that it held that the investigation was reasonable and that that conclusion was not vitiated by subjectivity or substitution."

28. We adopt that guidance which is of value in the context of this case.
29. The original hearing before us came to an early halt when it became apparent that submissions being made on behalf of the Claimant were based on what it was asserted that Ms Williamson had answered in the course of cross-examination before the Tribunal; there being a dispute as to what she had or had not said, we adjourned the hearing so that the notes of her evidence could be put before us - as they have been. When Mr Sinclair, on behalf of the Claimant, began his submissions at the original hearing he submitted that paragraph 31 of Fuller "set the agenda" for the appeal and that, based on that paragraph, he was on the Claimant's behalf, "looking for fairness" It is important for us to make it clear that it is not our task, as an Appellate court, to decide what was or was not fair. Nor was it the Employment Tribunal's task so to decide. The Employment Tribunal's task, on the issue of the reasonableness of the dismissal, once a genuine belief in misconduct and a reasonable investigation had been proved, was to decide whether the dismissal of the Claimant fell within the band or range of reasonable responses and not whether it was fair. There are many misconduct cases, they are heard regularly by Tribunals, in which the Tribunal decides that an employee has been treated harshly and even that the members of the Tribunal would not, if it had been left to them, have regarded it as fair to dismiss; but they conclude that the dismissal fell within the range of reasonable responses open to the employers in the situation before them; and that conclusion embodies no arguable error of law. Still less is an Appellate court empowered to decide upon fairness; its task is that set out in paragraph 31 of Fuller, to look carefully at the Tribunal's judgment to see if the Tribunal has correctly applied the law. Without an error of law or perversity (which is of course an error of law) there can be no successful appeal.
30. Our task in this appeal is therefore, a limited one. It not being suggested that the Tribunal's self direction was other than wholly correct, it is to read the Employment Tribunal's judgment as a whole but carefully, to see whether the view that the Respondent's dismissal of the Claimant fell within the range of reasonable responses open to the Respondent was based on an error of law or involved an incorrect application of the law which the Tribunal said was applicable.
31. The arguments on behalf of the Claimant involved the contention that the Tribunal had come to conclusions which no reasonable Tribunal could have reached, i.e. had been guilty of "perversity". It is necessary to repeat what was said by Mummery LJ in Yeboah v Crofton [2002] IRLR 634 at paragraph 93, in these words:

"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan[1990] IRLR 27 at para 34.

The submissions on behalf of the Claimant

32. We need, at the start of this section of our judgment, to say a few words about Mr Sinclair who represented the Claimant before the Tribunal and has represented her again before us. He is not a lawyer; he was asked by a member of the Claimant's family to help her because he was familiar with the care home industry; he generously agreed to do so, probably not expecting that he would find himself in an appellate setting in London in late 2012. He has shown himself to be properly enthusiastic in the Claimant's cause; but at no time did he allow his enthusiasm to deflect him from presenting his submissions with care, good sense and courtesy. We are grateful to him and also to Mr Scoon, a consultant who appeared on behalf of the Respondent, for their submissions.
33. Although the Notice of Appeal ranges more broadly, Mr Sinclair put forward his criticisms of the Tribunal's under four heads which we will take in the order in which he developed them. Mr Sinclair's first and principal point was that, at the time of the dismissal, Ms Williamson knew or should have known that; 1) the Respondent's internal policies had not been put in place at Belmar; 2) the delegation of the administration of medication to care assistants took place as a matter of practice; 3) she had herself delegated in that way; 4) the drug error was unlikely to have any ill effects on the unintended recipient. Yet, he submitted, the disciplinary proceedings were carried through on the basis that the internal policies applied and that the Claimant had been guilty of a breach of those policies by delegating the administration of the sedative to Miss Parkinson on the relevant day; and the Respondent relied on those internal policies in support of the fairness of their dismissal. The Tribunal, it was submitted, failed to consider or analyse whether those facts supported the Claimant's case that the Respondent or Ms Williamson had acted with the improper motive of seeking to reduce costs after a period in which Belmar had performed badly under an ineffective manager; the drug incident was a pretext. If the Respondents had acted fairly and genuinely in the disciplinary proceedings, why assert and continue to assert that the Respondent's internal policies applied?
34. Mr Sinclair submitted that the existence of such motive was supported by the reference by Ms Williamson in the course of the disciplinary hearing to the involvement of the police and to a contemporary tape recording in relation to some earlier matter which was not the subject of any disciplinary process; he submitted that that must have occurred in order to upset or put off the Claimant as she sought to grapple with the disciplinary hearing. He graphically summarised his submissions in these terms: "It is the disingenuity of it".
35. Secondly, Mr Sinclair drew our attention to Ms Williamson's expressed view that the Claimant had shown no insight when she said that the drug error was not harmful and that she believed that her experience and judgment was sufficient; yet, Mr Sinclair submitted, she had admitted her failures to record and report the drug error from the start. She did not admit that she had erred in delegating the administration of the drug to Miss Parkinson and was justified in that course because the internal policies, which did not permit such delegation, were not in force; and the NMC guidance did not prohibit the delegation. In those circumstances, to represent the Claimant as lacking insight was unfair and contrary to the evidence.
36. Thirdly he submitted that dismissal for failing to record and report the drug error, when it was known that the error had caused no harm, was outside the acceptable parameters of decision making open to the Respondent.
37. These points were said, individually and cumulatively, to demonstrate that the Employment Tribunal's conclusions as to the fairness of the dismissal were perverse; and that general submission was supported, Mr Sinclair argued, by the fact that the Claimant's professional governing body, the NMC, decided that the Claimant did not have a case to answer before their Conduct and Competence Committee. The failure of the Claimant to abide by the rules of the NMC was the sole reason why the Tribunal concluded that the dismissal was within the band of reasonable responses; but that body decided not to proceed against her.

Disingenuity

38. Charmingly as Mr Sinclair's arguments were put, we are not persuaded by them. He confirmed to us that he had made to the Tribunal the points about motive which he had made to us; but the Tribunal did not ignore them; they recorded at paragraph 44 the suggestion that the Respondent had an ulterior motive; but they said that nothing in cross-examination of the Respondent's witnesses provided any evidence of such motive. They considered previous incidents between the Claimant and the former manager at paragraphs 34 to 36. It is clear from the judgment, when read as whole, that they regarded the Respondent's witnesses, including Ms Williamson, as having pursued the disciplinary proceedings on a genuine basis. At paragraph 54 they said this:

"What was the reason for the dismissal? The employer says it was in relation to her conduct but the claimant suggests there was an ulterior motive although she does not know precisely what it was. He went on to suggest what they might have been but on the basis we have not found anything solid we shall not recite these matters."

39. And, at paragraph 69, the Tribunal said:

"In terms of the reason for the dismissal we find that the reason was one relating to the claimant's conduct. We have not heard any evidence as to ulterior motive that would allow us to come to any other conclusion."

40. It is correct that the Tribunal did not set out specifically the individual facts or arguments on which the case for an alternative motive was based; but it was not necessary in law for the Tribunal to do so; what they set out in the paragraphs to which we have referred was ample to meet the requirements for reasons set out in Meek v City of Birmingham District Council [1987] IRLR 250. None of Mr Sinclair's points could have compelled the Tribunal to find an ulterior motive. They are primarily based on the Respondent's, and in particular Ms Williamson's, continued reliance on the internal policies which, had as it turned out, not been promulgated at Belmar; but the notes of Ms Williamson's evidence reveal that, by the time she gave that evidence, she had appreciated that they had not or may not have been so promulgated; and that was accepted before the Tribunal by the Respondent; see paragraph 37. The Tribunal were entitled not to regard the facts upon which Mr Sinclair bases his argument as establishing the case that the Respondents were, in effect, being dishonest in going through the disciplinary process and in their resistance to the Claimant's claim on the basis of her conduct on the day of the drug error. Had it been the evidence that the Respondents knew that the internal policies had not been promulgated and that they were the only rules or principles as to drug administration which governed the Claimant's conduct, then the Tribunal might well have come to a different conclusion on this issue; but that was not the position; there was no doubt that the NMC standards did apply to the Claimant and that, although the internal policies could not be relied upon, the Respondents were entitled to regard the Claimant as having been in breach of the NMC principles by failing to record and report the drug error.
41. We should add that Mr Sinclair did not put forward the separate argument that the Respondent dismissed the Claimant for three breaches of their internal policies and should not have been able successfully to resist her claim on the basis of two breaches of the NMC standards. No doubt Mr Sinclair appreciated that such an argument would have failed; but because it is raised prominently in the Notice of Appeal we feel that, in fairness to the Claimant, we should say something about it. The two breaches of the NMC principles were established by precisely the same conduct which constituted the second and third alleged breaches of the internal policies. The Respondent failed on the delegation issue - delegation was permitted by the NMC standards; - and Ms Williamson admitted in evidence that she knew that delegation was permitted at Belmar; she said that the Claimant would not have been dismissed if the delegation was the only "point" (i.e. breach). It was open to the Tribunal to conclude that it was within the band of reasonable responses for the Respondent to dismiss for the two breaches which were admitted. At paragraph 75 the Tribunal said this:

"[…] we conclude that in this case the policies and procedures applicable to the claimant, as laid down by the NMC, were always in place and therefore the lack of policies provided by the respondent cannot be a reason to make her dismissal unfair."

42. There was no error of law in that approach.

Insight

43. In our judgment, Mr Sinclair's argument fails to distinguish between the Claimant's admission of her failure to record and to report the drug error and her lack of understanding, as perceived by Ms Williamson, of the seriousness of those failures. The Tribunal recorded at paragraph 23 that, in the course of the disciplinary proceedings, the Claimant, when asked what she should have done when she realised the error, said that she knew it was not a harmful amount and she felt that she was qualified to make a judgment, in effect to decide for herself whether or not to follow the NMC principles; at paragraph 27 they referred expressly to the Respondent's reliance in the dismissal letter on the Claimant's putting forward, as the Respondent saw it, unacceptable justifications for her actions while formally accepting that the breaches had occurred. At paragraph 28 the Tribunal recorded Ms Williamson as having said in her evidence that the Claimant had shown no insight. They refer to this in their conclusions at paragraph 81. Again reading this part of their judgment as a whole, the Tribunal must be taken to have included the Respondent's belief in the Claimant's lack of insight as part of "the particular circumstances of the case" in paragraph 84 which led them to conclude that dismissal was within the band of reasonable responses, particularly when the claimant had herself, in contrast to her witness statement which said "I do not believe that I have done anything wrong" had admitted that any breach of the principles with regard to drug administration would be serious.
44. We can see no error of law in the Tribunal's approach to this aspect of the evidence; insofar as Mr Sinclair was putting forward a perversity argument, he has not succeeded in demonstrating to us that the Tribunal's conclusions were conclusions which no reasonable Tribunal could reach, let alone overwhelmingly so demonstrating.

No harm

45. It was not in dispute that no harm was likely to have come to the unintended recipient of the sedative as a result of the drug error. Ms Williamson said so in her evidence; and it had never been part of the Respondent's case that any harm had been caused to the patient. Dismissal was not based on any such harm but on the breaches of professional principles which the Claimant admitted and upon the Claimant's declining to accept that she had done anything wrong. The NMC standards did not require nurses to report and record a drug error only where harm was likely to or might have come to a patient as a result of the error or where harm was shown to have occurred. For obvious reasons, the principles apply across the board. Standard 24 requires a registrant in the case of drug error; 1) to take action, 2) to prevent any potential harm to the patient, 3) to report the error as soon as possible and; 4) to document the actions which have been taken. The second and third actions are not dependent upon there being potential harm; that has not been suggested.
46. Mr Sinclair did not submit that the Tribunal were unaware that the patient who received the drug given to her had come to no harm, or was not at risk; not was there any suggestion of risk to patient A. Mr Sinclair made the point about absence of harm in his closing submissions to the Tribunal; see paragraph 58.
47. At paragraph 76, the Tribunal said;

"We accept that no harm came to Mrs B when she ingested the drug that should have been given to Mr A but these facts do not go to the essence of the misconduct here which relates to a failure to follow the policies laid down by the NMC following a drug administration error. Whatever the seriousness or otherwise of the error in drug administration the policy to deal with it remains the same. The claimant herself regarded drug errors as serious."

48. It was for the Tribunal to weigh up, Mr Sinclair said, and assess the importance of these matters of fact; they did so. The conclusion which they reached was one which it was for them to reach, unless it was so unreasonable that no reasonable tribunal could reach it. Mr Sinclair put this point forward as, in effect, a freestanding perversity point; but it does not get close to demonstrating an overwhelming case that the Tribunal acted outside the bounds of reasonable assessment.

The NMC decision

49. About 16 months after the dismissal, the investigating committee panel of the NMC decided that there was no case for the Claimant to answer before their Conduct and Competence Committee. The NMC's letter of 3 November 2010 informing the Claimant of that decision said this, under the heading, "Reasons for Decision":

"The panel carefully considered the papers including the final report from the Nursing and Midwifery Council's investigating lawyers and the on-table-paper on behalf of the registrant. This allegation refers to a single one-off incident in a failing of drug administration and report. The panel noted the registrant's unblemished 44 year nursing career and the fact that no harm had come to the patient. The panel also noted that the working environment had poor standards, and that following the registrant's dismissal, she is no longer working in that environment.

Taking all this into account, the panel believe that even if the allegation was proven, a reasonable panel of the Conduct and Competence Committee would not find the registrant's current fitness to practice to be impaired."

50. At paragraph 84 the Tribunal correctly took into account the NMC's decision as part of their consideration of the range of reasonable responses. They said:

"We note that the NMC decided not to pursue an allegation of professional misconduct to consider whether or not the claimant was fit to practice but this decision is very different from the decision we have to take as an Employment Tribunal."

51. In our judgment, there is no error of law and nothing untoward about that conclusion. The NMC did indeed have to discharge a very different function from that of the Respondent. They had to decide whether, in the light of the reported facts of 6 June 2009 and the whole of the Claimant's career, it was or could be appropriate to declare her unfit to practice and, in effect, thus prevent her from practising as a nurse anywhere for whatever period they regarded as appropriate. The Respondent, in contrast, had to decide whether the Claimant had committed misconduct by breaching professional guidelines and, if so, whether they should dismiss her from their employment.
52. The Tribunal had earlier pointed out that the Claimant's failure to record and report the drug error were admitted. It could not have been necessary for the Respondent to wait for the NMC to make a decision as to whether there had been such breaches; they were not in dispute; and (although the Respondent could not have known how long it would take) the NMC's investigating committee panel took over 15 months in which to reach a decision. The Respondents were entitled (and, probably, in practical terms obliged) to treat the admitted breaches of the Claimant's professional guidance as serious and to decide whether to dismiss or not on the basis of those breaches. It has not been suggested that the Respondent could or should have left the Claimant suspended for as long as it took for the NMC to reach a decision.
53. Further, as is clear from their letter to the Claimant giving reasons for their decision, the NMC, in deciding whether there was a case to answer, took into account the fact that the Claimant had been dismissed and was no longer working in the Respondent's business. It is not possible to speculate what the NMC would have decided had the Respondent not taken the course of dismissing the Claimant over a year earlier. The fact that an employee's professional body may subsequently have decided that the employee had no case to answer in respect of fitness to practice does not, in our judgment, support any argument that the employers were not acting within the range of reasonable responses in dismissing the employer for breaches of the NMC's guidelines. Were that not so, employers in cases such as the present might have felt obliged and might in the future feel obliged to await the outcome of the deliberation of such professional body; but in ordinary circumstances employers cannot be expected to do so; disciplinary processes are for the employer to conduct and to bring to a conclusion without delay. Although no reference was made to it during the course of the hearing we hope we can be forgiven for referring to the ACAS Code of Practice on Disciplinary and Grievance Procedures of 2004, which was applicable at the relevant time, which states as a core principle of reasonable behaviour in a disciplinary situation on the part of an employer that the employer should "deal with issues as thoroughly and promptly as possible".
54. The Tribunal were, for these reasons, entitled to conclude that the decision which the NMC made was one which was very different from the decision which the employer had to make or the Tribunal had to make.

Perversity

55. We have looked again at the points made by Mr Sinclair in order to consider whether, although each of them taken alone does not persuade us that the Tribunal erred in law, cumulatively they demonstrate that the Tribunal had reached a decision which was not that of a reasonable Tribunal or, to revert to the wording used by Mummery LJ in Fuller, the Tribunal have been shown to have misapplied their correct self directions on the law. In our judgment, there was no such error and no such misapplication; the Tribunal continued to apply the correct principles throughout their judgment; and it has not been demonstrated, still less overwhelmingly demonstrated, that they reached a decision which no reasonable Tribunal could have reached or that in concluding that the dismissal of the Claimant fell within the range of reasonable responses the Tribunal had fallen in to error. This was undoubtedly a sad case; and any reader of the Tribunal's judgment or of this judgment might well think that this was a hard case and that the Claimant had been harshly treated; but the Tribunal's function was not to consider whether or not those adjectives or adverbs were appropriate but to apply the test laid down by law; and they reached their decision, applying the correct test, in a manner which was open to them and was not perverse.

Conclusion

56. For these reasons the appeal must be dismissed.