The claimant, who was a nurse with previously 18 years unblemished service, was found to be asleep on duty and was dismissed summarily. The Employment Tribunal found that the employer had carried out a reasonable investigation and reached a tenable conclusion that the claimant was guilty of gross misconduct and found that she was fairly dismissed. They then went on to consider wrongful dismissal. They ruled that it was most likely the claimant was asleep but that it was perhaps momentarily that she had gone to sleep and that this had happened while she was waiting for a difficult patient to settle down.  They also decided that she did not deliberately intend to go to sleep. They went on to find that those facts in the context of over 18 years unblemished service were insufficient to entitle the employer to dismiss her summarily and accordingly they found that the decision to dismiss amounted to a wrongful dismissal which entitled her to damages for loss of notice pay for 12 weeks. Both claimant and respondent appealed.

The EAT allowed both appeals. On the unfair dismissal the ET had not expressly considered whether dismissal was "within the range of reasonable responses" and in particular the relevance of the claimant's long service and good record.  On wrongful dismissal the ET had made two apparently contradictory statements as to whether the respondent had been entitled to dismiss summarily for repudiatory breach. 
____________

Appeal No. UKEAT/0207/12/ZT

EMPLOYMENT APPEAL TRIBUNAL

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

At the Tribunal

On 19 February 2013

Before

HIS HONOUR JUDGE SHANKS; MS K BILGAN; MR T STANWORTH

CAMDEN & ISLINGTON NHS FOUNDATION TRUST (APPELLANT)

BOAFO (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR DAVID CUNNINGTON (of Counsel)

Instructed by:
Capsticks Solicitors LLP
1 St George's Road
Wimbledon
London
SW19 4DR

For the Respondent
MR JAKE DUTTON (Solicitor-Advocate)

Waldegraves
Ealing House
33 Hangar Lane
London
W5 3HJ

CONTRACT OF EMPLOYMENT – Wrongful dismissal

UNFAIR DISMISSAL – Reasonableness of dismissal

The Employment Tribunal found that the Claimant was fairly but wrongfully dismissed following a disciplinary matter and awarded 12 weeks pay for loss of notice. Both sides appealed. Both appeal and cross-appeal allowed and the matter remitted to the same ET. On the unfair dismissal the ET had not expressly considered whether dismissal was "within the range of reasonable responses" and in particular the relevance of C's long service and good record. On wrongful dismissal the ET had made two apparently contradictory statements as to whether R had been entitled to dismiss summarily for repudiatory breach.

1. We have heard this morning an appeal and a cross-appeal against a decision sent to the parties by the London Central Employment Tribunal as long ago as 28 July 2011. That decision dismissed the Claimant's claim for unfair dismissal but allowed her claim for wrongful dismissal. The Respondent below, the employer, appeals against the wrongful dismissal finding and the Claimant cross-appeals against the rejection of a finding of unfair dismissal.

1. The Claimant started work on 17 February 1992 as a nursing assistant with the employer which is now the Camden and Islington NHS Foundation Trust. She was working at Queen Mary's Hospital and at that hospital she had worked on Harmony Ward for ten years. That ward is described in the Judgment at paragraphs 15 and 16; it had 11 patients, all aged over 65 who had psychiatric and physical difficulties, some with dementia.

1. It was a rule that the nurses working on that ward should check the patients every 30 minutes. It was also made clear to the nurses that there could be unannounced visits at any time during the night. There was a disciplinary procedure which made it clear that the Respondent reserved the right to summarily dismiss an employee found to have committed an act of gross misconduct, although it is right to say that the list of examples of gross misconduct did not include sleeping on duty, for which the Claimant was ultimately dismissed.

1. There was an unannounced visit made onto Harmony Ward by a Miss Thompson and a Mrs Traynor at 2.45 am on 9 July 2010. They found the Claimant and a colleague of hers asleep in the patients' TV lounge. They reported that they had found the Claimant and her colleague in that state and said that she was fast asleep, on a sofa, covered with blankets, in the dark with the TV on and the volume turned down.

1. The disciplinary hearing in relation to that did not take place for some reason until 13 December 2010, although that does not form a part of any complaint at this stage. Miss Thompson and Mrs Traynor, among others, gave evidence to the disciplinary hearing and the panel decided that the allegations against her had been substantiated and she was summarily dismissed for gross misconduct.

1. Although the Tribunal Judgment does not expressly say so it is implicit, and I think accepted on all sides, that the Respondent through whoever held the disciplinary hearing accepted the version of events given by Thompson and Traynor, namely that the Claimant and her colleague were fast asleep, lying down in the dark; in other words that they had deliberately gone to have a sleep during their night shift.

1. The Claimant and her colleague had also given evidence at the disciplinary hearing that she had been resting but not sleeping between the hours of 2.30 am and 2.40 am, after dealing with a very difficult patient. She and her colleague denied that they had been lying down, denied that they were covered in blankets and denied indeed being asleep at all. The Claimant gave evidence to similar effect before the Employment Tribunal.

1. The Employment Tribunal found that the employer had carried out a reasonable investigation and reached a tenable conclusion that the Claimant was guilty of gross misconduct and found that she was fairly dismissed. They then went on to consider wrongful dismissal and in that context they found at paragraph 71 "on an objective analysis of the evidence" that the Claimant was indeed most likely asleep but that it was perhaps momentarily that she had gone to sleep and that this had happened while she was waiting for the difficult patient she had given evidence about to settle down. They also decided that she did not deliberately intend to go to sleep, that she was not lying down, she was not covered in blankets and that the two managers who had come into the room had misinterpreted what the position was.

1. They went on at paragraph 73 to find that those facts in the context of over 18 years unblemished service were insufficient to entitle the employer to dismiss her summarily and accordingly they found that the decision to dismiss amounted to a wrongful dismissal which entitled her to damages for loss of notice pay for 12 weeks.

1. There is, of course, no reason whatever in principal why an Employment Tribunal should not find a wrongful dismissal proved but an unfair dismissal not proved but, as we say, both sides in this case have appealed.

1. Dealing first with the employer's appeal which relates to the question of wrongful dismissal, the appeal really revolves around the relationship between paragraph 69 and paragraphs 70 to 73 of the Judgment.

1. At paragraphs 64 to 68 the Tribunal correctly set out the law as to wrongful dismissal (although it is accepted that it is not correct to say that the employee has to commit a deliberate breach of contract in order to be found to be in repudiatory breach as there may be cases of serious or gross negligence which can amount to a repudiatory breach). Having set out the law at paragraphs 64 to 68 they then went on at paragraph 69 to say this:

"We find that the Respondent was entitled to dismiss the Claimant for gross misconduct given the seriousness of being found asleep whilst on duty and particularly when responsible for the care and safety of vulnerable adults. However we note that this is not a defined act of gross misconduct within its Disciplinary Procedure. We have found her dismissal to be fair."

1. Then at paragraph 70 they say:

"We then considered whether this conduct amounted to a repudiatory breach of contract allowing the Respondent to dismiss the Claimant summarily and in particular whether the conduct in question was deliberate."

It is not disputed that whether or not the conduct was deliberate was a relevant factor in considering whether it amounted to a repudiatory breach of contract allowing the Respondent to dismiss her summarily and it is not disputed that at paragraph 70 the Tribunal asked themselves the right question.

1. Then at paragraphs 71 and 72 the Tribunal make findings of fact about what actually did happen when the Claimant was found in the patients' TV lounge; we have already mentioned those findings of fact. At paragraph 72 they say:

"We take into account that the Claimant had over 18 years' unblemished service, clearly took her job and her responsibilities seriously and had never been accused of misconduct before. We find it unlikely that she would have acted in a deliberate manner so as to go to sleep and jeopardise her job and her career."

On the basis of the findings at paragraphs 71 and 72 they then say at paragraph 73 without any further analysis:

"We therefore find that the Claimant was wrongfully dismissed and is entitled to damages for breach of contract in respect of the 12 weeks' statutory notice claimed less income received during that period."

1. The employer says that the finding at paragraph 69 is determinative of the question of wrongful dismissal. Once the Tribunal say, "we find the Respondent was entitled to dismiss for gross misconduct given the seriousness of being found asleep whilst on duty on duty" and so on, they have found in effect that the employer was entitled to dismiss summarily and therefore her claim for wrongful dismissal must fail. But that rather ignores what they say at paragraphs 70 to 73 which, had they stood alone, would have provided clear justification in our view for upholding the wrongful dismissal claim.

1. On the other hand, we cannot ignore paragraph 69 and we cannot ourselves sufficiently explain it away. Mr Dutton sought to explain it by saying that it was a reference back to the findings in relation to unfair dismissal and in that context he particularly relied on the last sentence of paragraph 69; he also relied on the fact that at paragraph 70 the Tribunal say, "we then considered whether this conduct amounted to a repudiatory breach…" and on the fact that in paragraphs 64 to 68 and paragraph 70 the Tribunal were asking themselves the right questions. He accepts that the presence of 69 at that point in the Judgment is unhappy, but he says that the Tribunal can in effect ignore it or read it as relating to unfair dismissal only.

1. We do not feel able to go that far. We are not sure whether or not the Tribunal were muddled in their consideration of wrongful dismissal or whether indeed, as he says, at paragraph 69 they were referring to unfair dismissal. It seems to us that the only proper way forward is to allow the appeal and to send the matter back for re-consideration as to whether indeed on the findings at paragraphs 71 and 72 the Claimant was wrongfully dismissed bearing in mind, of course, the other point about the seriousness of being found asleep at all on duty when responsible for the care and safety of vulnerable adults.

1. Without going into it in more detail than is warranted at the moment, we would mention that we wonder to what extent the Claimant's unblemished service is relevant to the issue of wrongful dismissal in this case (although we recognise that in some cases past conduct can be relevant in wrongful dismissal case); in any event we leave the whole issue to the Employment Tribunal which will may wish to receive further submissions on the issue.

1. That brings us to the Claimant's cross-appeal and so far as that is concerned there is no challenge to the findings that the employer went through a proper process and reached an honest and reasonable conclusion about what the Claimant had been doing. At paragraph 56 the Tribunal state:

"When assessing whether the Burchell test has been met, the Tribunal must ask itself whether what occurred fell within the 'band of reasonable responses' of a reasonable employer. This has been held to apply in a conduct case to both the decision to dismiss and to the procedure by which the decision was reached."

In this case there is no challenge to the procedure, there is no challenge to the fact that the employer went through the Burchell process, but what is said that they did not consider whether instant dismissal as a sanction was within the band of reasonable responses.

1. On the face of the Judgment there is no reference to the Tribunal addressing the question of whether dismissal fell within the band of reasonable responses and the Claimant says that there was a very material factor which should have gone into that equation, namely the Claimant's record. We have already read from paragraph 72 in the part of the Judgment dealing with wrongful dismissal which gives details of her record and there is no doubt that at the Tribunal hearing the Claimant raised this issue: at paragraph 52.4 it is recited that one of the submissions made by the Claimant was that the Respondent employer did not consider her unblemished record of over 18 years good service. The Judgment does not record whether the Tribunal found that the Respondent did or did not consider those matters and, as stated already, there is nothing in the Tribunal Judgment to the effect that dismissal did or did not come within the band of reasonable responses.

1. Mr Cunnington, for the employer, really suggested that there was no need for any reference to the band of reasonable responses given the nature of the findings by the Respondent as to what the Claimant had done. We remind ourselves that the Respondent had found following the enquiry that she had deliberately gone to sleep in the middle of the night when she was on night duty as a nurse with some very vulnerable patients. It may well be that having considered everything the Tribunal would have found that, notwithstanding her record of 18 years good service, the only reasonable response was to summarily dismiss her. But that is a decision that ought to be taken by the Employment Tribunal, not by this Tribunal and they appear not to have addressed their minds to it in the way they should have. So, unfortunately, we also allow the appeal on unfair dismissal and we again remit the matter to the Tribunal to consider whether the Respondent took into account the Claimant's record at all and, if they did, whether their decision to dismiss was within the band of reasonable responses.

1. We should have mentioned earlier that there was a point raised by Mr Cunnington on the wrongful dismissal which was really to the effect that the findings at paragraph 71 were perverse in that the Tribunal, if it had looked at all the facts, could not possibly have found that the Claimant had simply dropped off. We unhesitatingly reject that ground of appeal; it seems to us that it may have been a generous finding of fact, possibly rather imaginative since neither party were actually putting it forward, but nevertheless there was material on which the Tribunal could make that finding and there is nothing perverse about it.

1. So having allowed both appeal and cross-appeal, we now have to decide exactly what order to make. After giving it quite a lot of thought we have come to the view that, if possible, the whole case should go back to the same Tribunal and that, whichever Tribunal it goes back to, that Tribunal will be bound by findings of fact already made after the original hearing. We think it would be unfair for such findings to be re-opened but there may be scope for further evidence: in particular, the Respondent may wish to give evidence as to its state of mind in relation to the Claimant's record when the decision was made to dismiss and there may evidence going to a Polkey reduction and to the question of contributory fault. On contributory fault there may not need to be evidence but only submissions; and there may be submissions as already mentioned about whether and how far the Claimant's record was relevant on the issue of wrongful dismissal. If possible, therefore, the case should go back to be case managed in the light of this decision by the Employment Judge that decided it and then listed to be heard by him or her with the same lay members.