United Kingdom Employment Appeal Tribunal

Appeal No. UKEAT/0109/15/DA

 

 

EMPLOYMENT APPEAL TRIBUNAL

FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE

 

 

At the Tribunal

On 17 December 2015

 

 

 

Before

HER HONOUR JUDGE EADY QC

MR P GAMMON MBE

MR H SINGH

 

 

 

 

 

PENNINE CARE NHS FOUNDATION TRUST APPELLANT

 

 

 

 

 

MR F MUNDANGEPFUPFU RESPONDENT

 

 

Transcript of Proceedings

 

JUDGMENT

 

 

 

 

 

 

 

 

 

 

APPEARANCES

 

 

 

 

 

For the Appellant	MR STEFAN BROCHWICZ-LEWINSKI (of Counsel) Instructed by: Messrs Hempsons Solicitors 16th Floor City Tower Piccadilly Plaza Manchester M1 4BT
For the Respondent	MR JOSEPH ENGLAND (of Counsel) Instructed by: Messrs Leslie Charles Solicitors Wilson’s Business Park Unit 21-22 Monsail Road Manchester M40 8WN

 

 

SUMMARY

UNFAIR DISMISSAL - Reasonableness of dismissal

UNFAIR DISMISSAL - Polkey deduction

 

Unfair Dismissal - Conduct Dismissal - Polkey

The Respondent’s reason for the dismissal was based on three separate incidents of misconduct. 

 

On the first, the Respondent used the label of “physical assault” to characterise the charge against the Claimant.  The ET found this was not the accurate label for the conduct in fact relied on by the Respondent and considered that rendered the dismissal unfair. 

 

On the Respondent’s appeal against that conclusion, although it would be wrong to place undue focus on the label used by an employer, in this case the ET had not lost sight of the questions it had to consider in terms of fairness for the purposes of section 98(4) ERA 1996.  The Respondent had taken the view that there was a physical assault regardless of the circumstances (the Claimant had accepted he accidentally touched the patient’s neck for a matter of seconds, whilst trying to defend himself from an attack) and the ET considered this led it to unduly constrain its consideration of the circumstances, and thus to fail to carry out a fair investigation, and may have led the Claimant to respond differently to the charge against him.  The ET did not focus solely on the label but reached permissible conclusions on the issues that went to the fairness of the Respondent’s reliance on this factor.  It was not for the EAT to interfere; the appeal would not be allowed on this basis.

 

Similarly, on the safeguarding issue relied on by the Respondent, the ET concluded the Respondent had failed to investigate matters going to the central point of the Claimant’s response and that rendered this unfair.  That was, again, a permissible view on the material before the ET, and the EAT could not interfere with its conclusion in this respect.

 

As the Respondent had relied on all three incidents as constituting the reason for the dismissal, given the EAT’s conclusions on these two matters, the appeal against the ET’s decision on liability - the finding of unfair dismissal - must fail.

 

On the third matter relied on by the Respondent, however, the EAT did consider that the ET had erred.  This was the charge that the Claimant had failed to comply with a reasonable management instruction by failing to work his shift on an alternative ward immediately after the “assault” incident referred to above.  The ET had needed to first assess whether the Respondent had given a reasonable instruction in these circumstances.  That did not (as the Respondent contended) simply depend on what the employer said; the ET had been entitled to take into account the broader context.  On the other hand, it was insufficient for the ET to simply say that the reasonableness of the instruction was “questionable”.  Furthermore, the ET had apparently applied a test of what a reasonable employer would do, which was not the correct question.  The range of reasonable responses allowed that a reasonable employer might dismiss fairly even in circumstances where another employer might have decided not to do so.  This rendered the ET’s conclusion on this third matter unsafe.  Although this did not undermine the ET’s finding of unfair dismissal, the point was not wholly academic as it was relevant to the Polkey issue (see below).  It would thus be remitted to the same ET for rehearing on this point.

 

On the ET’s decision to make no reduction under Polkey, the appeal would be allowed.  Whilst finding that the Respondent’s reason for dismissal had encompassed all three incidents, at earlier stages in its reasoning the ET had accepted that each, taken separately, might still be relevant at the remedy stage.  That seemed to imply that it had accepted this was the correct approach at the Polkey stage and its later refusal to consider such a reduction did not explain this apparent inconsistency.  Moreover, the findings on the individual incidents seemed to allow that there might have been a fair finding of misconduct on the part of the Claimant and it again appeared inconsistent for no Polkey reduction even to be considered in these circumstances.  The appeal would be allowed on this question and the matter remitted to the same ET for reconsideration.

 

HER HONOUR JUDGE EADY QC

 

Introduction

1.                  This is our unanimous Judgment.  In it, we refer to the parties as the Claimant and the Respondent, as below.  The appeal is that of the Respondent against a Judgment of the Manchester Employment Tribunal (Employment Judge Hill, sitting alone on 14-17 October 2014; “the ET”), sent to the parties on 22 December 2014.  Both parties were represented by different counsel before the ET to those who appear before us today.  By its Judgment the ET upheld the Claimant’s claim of unfair dismissal; the Respondent appeals.

 

2.                  A preliminary issue was raised as to whether we should permit the Respondent to put before us the decision of the Nursing & Midwifery Council (“NMC”) in respect of the Claimant, made subsequent to the ET’s decision.  As we are concerned with a decision of the ET and the NMC is a different body - looking at different questions and applying different criteria - we took the view that it was better to consider the arguments on appeal first without reference to the NMC’s decision.  We understand from the Respondent that the NMC’s decision might go to one of the incidents relied on by it, namely the allegation that the Claimant failed to comply with a reasonable management instruction.  Given our finding on that point (see below), we do not consider this is a matter to which we need to return, although it might be something that the Respondent would seek to put before an ET at a subsequent hearing.

 

The Background Facts and the ET’s Findings

3.                  The Claimant was a qualified nurse (having qualified in 2008), employed by the Respondent from 17 February 2003 until his dismissal on 2 July 2013.  At that time he was working as a Band 5 nurse caring for acute mental patients. 

4.                  The matters relied on by the Respondent as justifying the Claimant’s dismissal were threefold: (1) physical assault of a patient, (2) refusal to follow a reasonable management instruction, and (3) failure to safeguard a patient.

 

5.                  The physical assault charge related to an incident on 26 February 2013 during which a patient (“Patient D”) alleged that the Claimant had attacked him, holding his arm and then his neck.  The Claimant’s position was that Patient D had in fact attacked him, the Claimant, and in responding instinctively and in self defence he may have touched Patient D on the neck/throat area.  Following that incident the on-call manager decided the Claimant should move to another ward, something he did not wish to do, in part because of the stressful incident with Patient D and in part because he had previously suffered racial abuse from a patient on that other ward.  Taking the view that the patients had been given their medication and would be sleeping, the Claimant left his shift, thus leaving the other ward with no qualified member of staff on duty.

 

6.                  Whilst investigating these matters the Respondent received a further complaint relating to the Claimant from another patient, “KM”.  This related to an incident where the Claimant had witnessed KM masturbating.  As she was seen as a suicide risk, KM had been on one-to-one observations.  The Claimant accepted that when he had been on duty and thus observing KM, he had believed that she had masturbated albeit he had not seen or heard anything.  Given that KM was not said to be sexually inhibited, he had not understood this was something he had to document.  This was, however, added as a charge against the Claimant, raised as a safeguarding issue in that he had not counselled or advised the patient against a sexual act in his presence and thus “exposed a vulnerable patient to a serious breach of her privacy, dignity and wellbeing of a sexual nature”.  KM’s original complaint had been rather more extensive and when questioned about her allegations the Claimant had responded that she was like a “woman scorned”.  The ET considered this showed a lack of professionalism.

 

7.                  On investigating the incident with Patient D, the Respondent determined that the Claimant had breached managing violence and aggression (“MVA”) techniques by placing his hand on Patient D’s neck. 

 

8.                  Ultimately the Respondent considered that all three charges outlined above were made out against the Claimant and the appropriate sanction was dismissal.  That decision, with some differences in detail, was upheld on appeal.

 

9.                  As the ET found, in reaching the decision to dismiss the relevant manager had considered everything in the round, specifically referencing the seriousness of the Claimant’s actions given that these involved more than one patient.  The Respondent could not say what would have happened had there been only one or two acts of misconduct (if it had not found the Claimant guilty of all three acts, or if the ET found the dismissal was not fair in respect of each of the three charges in question).  That being so, the ET considered it would amount to an error of substitution if it were to speculate as to what decision the Respondent would have reached if only one or two charges had been found proven against the Claimant.  On the other hand, the ET indicated this was a matter that might be relevant at any remedy stage.

 

10.              On the basis of the three charges taken together, the ET accepted that the Respondent had made good its reason for dismissing the Claimant, namely gross misconduct.  As more than one act of gross misconduct was relied on, each constituent part was relevant to the test of reasonableness (GM Packaging (UK) Ltd v Haslem UKEAT/0259/13). 

11.              On the assault charge, the ET concluded that the Respondent’s decision was unfair.  Noting that during the disciplinary proceedings the Claimant was charged with “physical assault of a patient”, the ET found it significant that the Respondent had not made a finding as to whether the Claimant made an unprovoked attack on Patient D, but limited its finding as follows: “you did as alleged … you put your hand against the patient’s throat”.  The ET’s assessment of the Respondent’s finding in this respect is crucial to the issues raised on the appeal in relation to this incident, and it is worth setting out its analysis, as follows:

“62. … It was alleged that the Claimant had assaulted a patient.  The Claimant responded to this charge.  He said he was acting in self-defence.  He said that he had not had the MVA training and that it was an unexpected attack and his reactions were instinctive.  In effect the Claimant admitted that he had put his hand out and that he accepted that it may have touched the patient’s throat but he was defending himself against a charge of assault.  It was clear during the evidence that the Respondent did not seem to be interested in whether it was self-defence or an actual assault.  It would appear to this Tribunal that there is a crucial difference between accidentally putting your hand on someone’s throat and assaulting someone.  It maybe that (as alluded to by the Respondent) that in responding inappropriately to the situation that the Claimant found himself in was in it self [sic] an act of gross misconduct.  But this was not put to the claimant at the time.  This was not investigated.  The investigating officer clearly states in her management report for the disciplinary panel that she considers that the Claimant had physically assaulted the patient and that this amount [sic] to gross misconduct.  If the panel found that the claimant had not assaulted the patient it would have been reasonable to have communicated this to the claimant and an alternative charge put to him.  The Claimant may have concentrated his defence on other aspects rather than trying to prove his innocence in respect of the assault charge.  In particular the Claimant was not up to date with his MVA training which the Respondent was well aware of due to his medical condition and due to the lack of investigation into this aspect the respondent did not make a finding on whether it was reasonable for the claimant to have acted in the way that he did. …”

 

12.              The ET further considered that the Respondent had carried out an unfair investigation in this regard.  There had been no effort to look for evidence that may have proved the Claimant’s innocence and there was a failure to approach all potential witnesses to the incident or to properly consider all of the witness statements.

 

13.              On the charge of failing to follow a reasonable management instruction, while accepting that the Claimant had left his shift, and thus left the ward without a qualified member of staff, the ET considered that the mitigating circumstances - the Claimant’s previous clean record and his allegation of past racial abuse by a patient on the ward, together with the more immediate incident with Patient D - were not properly taken into account.  It was “questionable” whether the instruction was reasonable, and the ET concluded that “a reasonable employer would not have dismissed in those circumstances”.

 

14.              On the safeguarding incident involving patient KM, the ET noted that the Respondent had not accepted the patient’s account but had broadly accepted the Claimant’s version of events, concluding that, even on his own account, he had failed to safeguard the patient in that he did nothing to prevent her from engaging in sexual behaviour in his presence.  The ET considered the investigation of this matter was flawed; in particular, there was evidence that the Claimant had done no more than follow accepted working practices at the time.  On the other hand, the ET allowed that the Claimant had shown a lack of professionalism when the charges were levelled against him, albeit it considered that it was likely that this would not have amounted to gross misconduct but rather misconduct attracting some lesser sanction.

 

15.              The ET concluded that the dismissal had been unfair; the procedure was flawed and even though it was reasonable to conclude that there had been misconduct in some respects it was outside the range of reasonable responses to characterise these acts as gross misconduct and dismiss the Claimant.  In those circumstances, the ET considered it was inappropriate to make any reduction pursuant to Polkey v A E Dayton Services Ltd [1987] IRLR 503, although it made a reduction of 25% in respect of the Claimant’s contributory conduct.

 

The Appeal

16.              In respect of the assault charge, the Respondent contends that the ET focused on the label and failed to properly consider its treatment of the Claimant.  In so doing, the ET put form before substance and/or reached a perverse conclusion, alternatively substituted its finding for that of the reasonable employer. 

 

17.              More generally, on the question of fairness in terms of the investigation, the Respondent contends the ET’s conclusions adverse to it were perverse. 

 

18.              On the refusal to follow a reasonable management instruction charge, given the ET’s finding that this related to the Claimant’s leaving his shift and thus leaving the ward without a qualified member of staff, it was perverse/an error of substitution for the ET to find that no reasonable employer could have treated this as an act of gross misconduct justifying dismissal.

 

19.              Similarly, in respect of the safeguarding charge the Respondent contends that the ET impermissibly substituted its own view and/or reached a perverse conclusion. 

 

20.              Finally, on the ET’s refusal to make any Polkey reduction, that was an error of law and/or perverse given that the ET had not uniformly concluded that a finding of misconduct was outside the range of reasonable responses.

 

Submissions

The Respondent’s Case

21.              On the assault charge, the Respondent observes that the physical act for which the Claimant was disciplined and dismissed was putting his hand to the neck of Patient D, a vulnerable service user of the Respondent with mental health requirements.  That was something that was not and could not be regarded as an acceptable form of restraint; it was regarded by the Respondent as unreasonable and inappropriate force and accordingly labelled as a physical assault, but there was no confusion as to the substance of what the Claimant was being disciplined for.  The ET erred by focusing on its own interpretation of the label applied by the Respondent, defining “assault” as “unprovoked attack”, to the exclusion of the substance of the charge.  It then went on to form and apply its own view, thus observing:

“62. … It would appear to this Tribunal that there is a crucial difference between accidentally putting your hand on someone’s throat and assaulting someone. …”

 

22.              On the Respondent’s case, taking hold of the patient by the neck/throat was an act of assault, that being a no-go area.  The precise label used was not the issue; the substance of what was alleged was.  The question for the ET was whether the Claimant’s action could be excused in the circumstances, which included his claim that he acted in self defence.  That was an issue considered at the dismissal and appeal hearings but which the ET failed to consider because of its rigid application of its own definition of “assault”.  That approach constituted an erroneous substitution of the ET’s view for that of the Respondent and led it to a perverse conclusion.

 

23.              Turning to the ET’s finding on the investigation, it was perverse to find that this was unfair.  In support of this ground the Respondent relied on various extracts of the witness statement of the investigator, observing that many of the points made by the ET were not criticisms raised at the time by the Claimant.  Furthermore, it was highly significant that the Claimant himself had admitted to taking hold of Patient D by the neck.

 

24.              On the refusal to follow a reasonable management instruction, given the Claimant left a mental health ward with insufficient cover of qualified nurses, it was perverse of the ET to hold that it fell outside the range of reasonable responses to treat this as an act of gross misconduct.  It had apparently questioned the reasonableness of the instruction.  Although the finding on this was unclear, the ET failed to see the previous racial abuse allegation in context; where nurses in the Claimant’s position might be expected to encounter such challenging behaviour when working on mental health wards.  The Claimant had not said he was unfit for work after the incident with Patient D, he therefore had a continuing duty owed to the Respondent and his patients; by leaving his shift he acted in serious breach of that duty.  Further, by referring to the decision that a reasonable employer might have reached in this regard, the ET demonstrated that it had applied the wrong test, failing to allow for more than one reasonable response.

 

25.              On the safeguarding allegation, the Respondent contended that the ET appeared to judge its decision making based on the evidence given by the Claimant at the ET hearing rather than that provided at the time.  Specifically, its observation that, “… the Claimant did express regret and acknowledged his shortcomings”, must be contrasted with the Respondent’s evidence as to what it had understood to be the Claimant’s response.  Similarly, the criticism of the failure to investigate the general practice at the time failed to have regard to the evidence of the investigator herself that there was no such practice.

 

26.              On Polkey, the ET’s conclusion that there could be no reduction under this head was wrong in law, alternatively perverse.  It failed to take into account that the ET’s finding on the assault charge, for instance, had allowed that there might have been a fair finding of misconduct if the Respondent had investigated matters properly or had more clearly set out the charge.  Further, its finding of unfairness on the safeguarding issue had related to the investigation; there was still a substantive issue that might have justified a Polkey reduction.

 

The Claimant’s Case

27.              Generally, the Claimant objected that the appeal was an attempt to re-try the issues and factual determinations already made by the first instance ET.  An appeal from an ET to the EAT lies only on a question of law (section 21(1) of the Employment Tribunals Act 1996).  A question of fact made by an ET should be decisive (EAT Practice Direction 2013, paragraph 2.1).  To the extent that this was a perversity appeal, the Respondent had to meet the high test laid down in Yeboah v Crofton [2002] IRLR 634.  It would need to make good a case that the decision reached was one that no reasonable ET could reach, on a proper appreciation of all the evidence.  Here, the ET heard from four witnesses, including the Claimant, and had before it a bundle of some 362 pages.  Only a very limited extract of the Notes of Evidence had been put before the EAT.  The ET was best placed to determine the issues arising in this case, and the EAT had to be careful not to substitute its view for that of the ET.

 

28.              Furthermore, it was common ground between the parties that for the Respondent to succeed in overturning the ET’s finding of unfair dismissal, it had to succeed on its appeal in respect of each of the three incidents. 

 

29.              On the physical assault charge, the term “assault” was not merely a label but was material to the case and the ET was entitled to so find.  There was certainly no perversity in its conclusion in this respect.  The choice of the term “assault” characterised the conduct in question as a done thing in the Respondent’s eyes.  It demonstrated a lack of thorough investigation and, as the ET found, may have led the Claimant to present his case differently.

 

30.              The ET had found that the Respondent did not make a finding as to whether the Claimant had made an unprovoked attack on Patient D (the allegation made by the patient) but merely that the Claimant had put his hand against the patient’s throat.  The ET’s conclusion that the Respondent’s finding - effectively, a failure to restrain correctly - was qualitatively different to the allegation against the Claimant was not so wrong as to be perverse.  At paragraph 62 the ET highlighted this distinction first in terms of the differences between the allegation put to the Claimant and the reason for his dismissal but also secondly in terms of the wider problem that the Claimant’s explanation of self defence was not investigated; that informed the ET’s conclusions on this point.

 

31.              On the investigation, the ET was correct to observe that the Respondent had a duty to investigate things that might exculpate the Claimant (A v B [2003] IRLR 405 EAT).  By its use of the label “physical assault”, the Respondent may have failed to properly investigate issues such as the adequacy of the Claimant’s training.

 

32.              Turning then to the refusal to obey a reasonable management instruction, the appeal in this regard had to be put as a perversity challenge.  The ET had taken into account all of the relevant evidence, including the Respondent’s failure to investigate the racial abuse allegation, the failure to investigate the impact of the events on the Claimant and the questionable assertion that this was a reasonable management instruction.  Although the ET’s observation that a reasonable employer would not have dismissed in those circumstances might suggest an application of the wrong test, ultimately the EAT could be satisfied that the ET had taken the view, applying the correct test, that this was outside the range of reasonable responses.  Moreover, allowing that the ET ought to have conclusively found whether or not the instruction was reasonable - though that might be what it meant by “questionable” - it was still entitled to criticise the Respondent for its failure to investigate the considerations that weighed against the instruction and which led the Claimant to leave the shift in these circumstances.

 

33.              On the safeguarding issue, the Respondent relied on a selective passage from the ET’s Reasons where it said reference was made to the Claimant’s evidence before the ET.  In fact, the passage relied on referred to evidence the Claimant had given in the investigation process, not before the ET.  Taking the reasoning as a whole, it was apparent that the ET correctly considered all of the evidence and reached a permissible conclusion on the material before it.

 

34.              As for Polkey, the onus was on the Respondent to ensure the ET had all of the relevant evidence (Software 2000 Ltd v Andrews [2007] IRLR 568); the ET reached a permissible view given the material before it and the EAT was not entitled to interfere with the conclusion reached.  Accepting that the ET had allowed that a different labelling of the Claimant’s conduct might still have amounted to an act of gross misconduct, that still did not absolve the Respondent from putting the evidence before the ET that it would still have dismissed the Claimant for the conduct so described.  The difficulty for the Respondent was that it was putting its case on all three incidents and was unable to tell the ET what it would have done if it had not found all three to amount to gross misconduct.  Recognising that the ET seemed to suggest (paragraph 60) that this was something that could be revisited at the remedy stage, it could not be assumed that the ET lost sight of this when returning to the Polkey question.

 

Discussion and Conclusions

35.              We remind ourselves that the starting point in an unfair dismissal case has to be section 98 of the Employment Rights Act 1996, which allows that a reason related to an employee’s conduct can provide a fair reason for dismissal.  Whether is so will depend on the application of section 98(4), which provides:

“(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -

(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b) shall be determined in accordance with equity and the substantial merits of the case.”

36.              In conduct dismissals ETs obtain guidance from British Home Stores Ltd v Burchell [1978] IRLR 379 EAT, which lays down a three-stage test.  First, did the Respondent reasonably believe that the Claimant was guilty of the (mis)conduct in issue when taking the decision to dismiss (on which question the Respondent bears the burden of proof, in terms of demonstrating the reason for the dismissal and that it is a reason that is capable of being fair for section 98 purposes)?  Second, did the Respondent have reasonable grounds for its belief?  Third, did it carry out a reasonable investigation?  On the latter two questions, the burden of proof will be neutral as between the parties.  In asking these questions the ET must be careful not to fall into the error of substitution; that is, of substituting its view for that of the employer.  Rather, the test to be applied by the ET in determining the fairness or otherwise of the dismissal is that of the band of reasonable responses; a standard that applies not only to the actual decision but also to the process adopted by the Respondent in reaching that decision.  If the ET properly applies that test to findings of fact that were permissible on the material before it, then it will not be open to the EAT to interfere with its conclusions; indeed, the EAT must itself be careful not to engage in an error of substitution.

 

37.              The ET was here concerned with a conduct dismissal where the conduct in question did not arise from just one incident but related to three separate incidents.  No challenge is made to the ET’s approach in this regard.  It was common ground that, given the way the Respondent approached its decision making, it was not open to the ET to find that only one or two of those matters might have stood alone as representing the reason for the Claimant’s dismissal.  It had to consider all three.

 

38.              On the first matter - what has been described as the assault charge - the ET found this was rendered unfair by the Respondent’s use of the label “physical assault” to describe what was being alleged.  It went on to make further findings as to the unfairness of the investigation, but, as we read the ET’s reasoning, this all really flowed from the criticism of the Respondent’s use of what the ET saw as the wrong label.  We were also troubled by this matter and questioned whether labelling the charge as one of “physical assault” properly comprehended the actual circumstances in issue.  The incident in question might seem to be better described as a dynamic situation during which the Claimant had to defend himself and, in so doing, as he accepted, his hands came into contact with the patient’s neck or throat.  This perhaps picks up on the ET’s concern that it may be substantively different to charge an employee with physical assault, on the one hand, and a failure to respond appropriately to a situation such as that facing the Claimant (which the ET allowed might also be an act of gross misconduct), on the other.

 

39.              Of course, the question of fairness for section 98(4) purposes does not depend upon an employer using a particular label; ETs are concerned with the substance not the label.  The question for it was whether there were reasonable grounds for the Respondent’s belief based on a reasonable investigation and reasonable process.  The grounds relied on by the Respondent here included the Claimant’s own admission during the investigation and disciplinary processes that he had put his hand against the patient’s throat.  The Respondent’s position was that - given that the neck and throat are seen as no-go areas - it would see this as a physical assault, whatever the circumstances.  It was not confused by seeing this as an attack by the Claimant; it was common ground that this was something that happened when he was defending himself.  That did not, on the Respondent’s case, excuse him putting his hand to the patient’s throat.

 

40.              We can see potential difficulties arising from the apparent threshold application of the label of “physical assault” in these circumstances, but we note that the ET was mindful that whether labelled as an assault or as a failure to respond appropriately it might be that an employer could still reasonably conclude this was an act of gross misconduct.  We think that exposes the potential flaw in overly focusing on the label used: regardless of the label, the actual facts in issue might still have amounted to misconduct such as to justify the dismissal.  The real issue here was whether the label used gave rise to any unfairness: did the Respondent thereby unduly restrict its consideration of the facts or lose sight of the actual facts it was having to judge?  Was the Claimant in some way misled as to the charge he had to address?  Did it lead the Respondent to fail to investigate matters relevant to its decision?

 

41.              We can see that the use of a particular label may well give rise to risks of unfairness in these and other respects and we consider that this is what the ET ultimately had in mind.  Thus, at paragraph 62, the ET’s reasoning moves from considering the label itself to looking at the possible impact of the use that label in the disciplinary process.  It was, we think, concerned that the Respondent adopted an all or nothing approach to the facts here.  Once the Claimant admitted touching the patient’s neck, the Respondent took the view that amounted to a physical assault, and that did not allow for any other way of seeing the issue.  The ET considered that impacted upon the scope and the reasonableness of the investigation and may also have affected how the Claimant responded.  That ultimately was a view we consider it was entitled to reach.

 

42.              We turn then to the refusal to follow a reasonable management instruction charge.  In order to assess whether this was capable of amounting to conduct such as to justify dismissal, the ET had to determine whether the Respondent had reasonable grounds for concluding that the Claimant had misconducted himself and, thus, whether or not the instruction in question was reasonable.  In its argument, the Respondent seemed to suggest that this was, in the circumstances, really a matter for it, as the employer: it had the duty to ensure adequate qualified nursing cover and was entitled to ask the Claimant to move to the other ward.  He was not entitled to unilaterally decide to leave.

 

43.              We would not accept that the question as to whether the instruction was reasonable was solely for the Respondent.  The requirement that the instruction be “reasonable” imports an element of objectivity and allows that an ET might disagree with the employer.  The difficulty here is that the ET said it was “questionable” as to whether the instruction was reasonable but failed to conclusively determine the point (see paragraph 69).  We consider that renders the conclusion on this point unsafe.  The ET seems to have focused on the Claimant’s mitigation without finding whether that actually meant the instruction was unreasonable. 

 

44.              Further, on the question of appropriateness of sanction the ET does seem to have slipped, applying a test of whether a reasonable employer would have dismissed in these circumstances.  The question was whether it was within the range of reasonable responses, allowing that one employer might have dismissed in circumstances where another would not do so.  That, we consider, also renders the ET’s decision unsafe on this point.

 

45.              In respect of the safeguarding charge, the Respondent contends the ET impermissibly substituted its own view and/or reached a perverse conclusion.  The substantive finding of unfairness on this point we consider is assessed by the ET at paragraph 74, where it identifies the flaws in the Respondent’s investigation.  The way in which the Respondent considered the Claimant’s conduct (and the error he made) is described at paragraph 31 in the findings of fact and the ET then goes on to consider the extent of the investigation.  The Respondent’s shortcoming, on the ET’s findings, was in failing to investigate the substance of the Claimant’s response to the matter charged against him.  The Respondent protests this was not precisely what the Claimant was saying during the internal disciplinary process, but we have been taken to the evidence of the investigator, and we consider that the substance of what the Claimant was saying was in fact clear and as the ET found.  The particular safeguarding incident in question arose from a situation that was not unheard of, and the Claimant, on his case, did nothing outside the normal practice.  Given the seriousness of the allegation (originally framed as one of sexual abuse), this warranted a more extensive investigation, and we are unable to see that the ET erred in reaching the conclusion that it did.

 

46.              For those reasons, we agree with the Respondent on its appeal on liability only to the extent that it goes to the failure to follow a reasonable management instruction incident.  That, however, does not assist it on the overall finding on liability: we have agreed with the ET on the other two incidents, and it is common ground that would be sufficient for the finding of unfair dismissal.  Thus, the finding of unfair dismissal must still stand, and the appeal against the ET’s Judgment on liability, save in the respect we have indicated, is dismissed.

 

47.              We then turn to the ET’s refusal to make any Polkey reduction.  The Respondent contends that was an error of law and/or perverse given that the ET had not uniformly found that a finding of gross misconduct was outside the range of reasonable responses. 

 

48.              On this issue, we agree that there is a difficulty with the ET’s approach.  At an earlier stage of its reasoning (paragraphs 57 to 60) the ET allowed that the consideration of the separate incidents as individual acts of misconduct might well be a matter going to remedy, albeit that they could not assist the Respondent in that way on liability.  As Mr England accepted in argument, that seems likely to be a reference to the ET’s consideration of a reduction under Polkey.  It is then difficult to understand the ET’s failure to deal with the detail of this question when it came to considering the Polkey question at paragraph 77.

 

49.              Furthermore, we agree with the Respondent that the ET’s approach to this question seems inconsistent with its earlier conclusions.  If, for example, it was wrong of the Respondent to use the label of “physical assault” but, as the ET allowed (paragraph 62), an inappropriate response to the situation might still have been an act of gross misconduct, then was the ET not obliged to have regard to that possibility at the Polkey stage?  That a fair investigation, adopting the correct label, might have led to a fair dismissal was, we think, something that the ET had to consider at the remedy point of its Judgment.  Similarly, for example, on the failure to follow a reasonable management instruction, the ET’s findings again raised the question whether, if it was indeed a reasonable management instruction and even if there were other elements of unfairness, the Claimant’s behaviour might go to a question of a Polkey reduction.  And, again, on the safeguarding issue, the ET’s finding on the question of substantive fairness seems largely dependent on its finding that there was a failure to carry out a proper investigation; that would not automatically rule out a Polkey reduction. 

 

50.              For these reasons, we consider that the appeal against the ET’s conclusion that “no reduction pursuant to Polkey is appropriate” (paragraph 77) has to be allowed.

 

Disposal

51.              Having given our Judgment in this matter, we permitted the parties to make further representations on the question of disposal.  The Respondent accepts that on the Polkey issue, this is not a matter where the EAT could itself form a view; it would have to be remitted, and that should be to the same ET.  The Claimant agreed.

52.              On the question of the failure to follow a reasonable management instruction, the Respondent contended there could only be one answer to that question and the EAT should thus substitute its view for that of the ET.  The Claimant disagreed but in any event suggested that a conclusion on that point was academic given that the finding of unfair dismissal still stood.

 

53.              In our judgment, this is a matter on which the ET will need to reach a conclusion.  Although that will not impact on the ultimate finding of unfair dismissal, which remains in place, it will be relevant to its consideration of any Polkey reduction.  The determination of the reasonableness of the instruction is a matter of assessment taking into account both the Respondent’s case and the circumstances applicable on the evening in question, which would have included the Claimant’s mitigating circumstances.  That is not a matter where there is only one possible outcome, and thus it is not a matter appropriate for this EAT to decide.

 

54.              Given the agreement between the parties and having regard to considerations of proportionality and, more generally, to the factors set out in Sinclair Roche & Temperley v Heard and Anor [2004] IRLR 763, we agree that these questions should go back to the same ET, to the extent that is still practicable, for determination in the light of our Judgment.