Crawford & Anor v Suffolk Mental Health Partnership NHS Trust  EWCA Civ 138
Appeal against EAT decision to remit claims of unfair dismissal to a fresh Tribunal. The appeal was allowed in part in that the findings of unfair dismissal were restored, but the matter remitted to the same Tribunal to consider the issue of a Polkey reduction.
The claimants were dismissed when they were reported by a colleague to have tied a patient, who had dementia and exhibited aggressive behaviour, to a chair. The claimants admitted that they had tied the chair to the table, but that they had merely placed a sheet across the patient – he had not been tied to the chair. The respondent investigated the incident, which included an experiment conducted by the dismissing officer to determine whether or not, on the balance of probabilities, the patient had been tied to the chair. They concluded that he had and dismissed the claimants for gross misconduct. The ET upheld the claims of unfair dismissal, saying that 1) they did not consider that a reasonable employer could properly have concluded that the patient had been tied to the chair when faced with the evidence; 2) a reasonable employer would have taken into account the context, namely the difficulty in handling the patient safely; and 3) the dismissing officer relied heavily and, in their view, impermissibly on the evidence of his experiment. Compensation was reduced by 25% due to the claimants' contribution to their own dismissal, namely tying the chair to the table which was not a recognised practice. The respondent appealed, arguing that the ET had substituted their opinion for that of the employer, and the EAT agreed, remitting to a fresh Tribunal.
In this appeal, counsel for the claimants submitted that the EAT had actually fallen into the trap identified by Mummery LJ in Fuller that "appellate courts should no more substitute their view for the first instance court than that court should substitute its view for the employer." Elias LJ agrees that the ET had been entitled to conclude that there had been two procedural errors and that, following Roldan, they were also entitled to look carefully at the procedures as the claimants' careers were at stake. Further, while there were errors in the reasoning by the ET they did not undermine the finding of unfair dismissal. He then considers the issue of contribution and finds that the ET should have considered Polkey and remits the case to the same Tribunal to consider that point. In a footnote he also makes observations about the "knee jerk reaction" of suspending staff under investigation.
Case No: A2/2011/1051/EATRF
Neutral Citation Number:  EWCA Civ 138
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the EMPLOYMENT APPEAL TRIBUNAL
HIS HONOUR JUDGE BIRTLES sitting with two Lay Members
Royal Courts of Justice
Strand, London, WC2A 2LL
LORD JUSTICE LAWS
LORD JUSTICE ELIAS
LORD JUSTICE KITCHIN
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CRAWFORD AND ANR (Appellant)
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SUFFOLK MENTAL HEALTH PARTNERSHIP NHS TRUST (Respondent)
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Mr Robin Howard (instructed by Attwells Solicitors LLP) for the Appellant
Mr Peter Wallington QC (instructed by The Law Offices of Richard Hemmings) for the Respondent
Hearing date : 13 January 2012
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Lord Justice Elias :
- The appellants, Mrs Crawford and Mr Preston, were both nurses employed by the respondent Trust until their employments were terminated on 13 March 2009. The reason for their dismissals was alleged gross misconduct arising out of the way in which they handled a patient known as JE on the evening of 22 September 2008.
- Following a complaint about the handling of that patient they were suspended and indeed the police were notified of potential criminal offences. There was an investigation, leading to disciplinary proceedings, and the whole process took some 6 months before their ultimate dismissal.
- They lodged a complaint to the Employment Tribunal that they had been unfairly dismissed, and that was successful. The Trust in turn successfully appealed to the Employment Appeal Tribunal (HH Judge Birtles presiding) who overturned the ET decision and remitted the matter for a fresh determination by a different tribunal. The appellants now seek to restore the decision of the Employment Tribunal.
- The essential facts are as follows. The Westgate Ward at the West Suffolk Hospital in Bury St Edmunds is an admission and assessment ward where patients are admitted from home or from residential care or other hospitals. The patients are principally suffering from depression, anxiety or dementia.
- On the night of 22 September 2008 the two appellants, together with two health care workers, were the only staff taking care of 17 patients. It was clear from the handover notes from the previous shift that particular difficulties had been experienced in relation to the handling of JE. He was 87 and suffered from dementia. On the day in question he had been agitated, aggressive, hitting things, spitting, swearing, throwing drinks, kicking and punching, and generally requiring particularly close attention. It was noted that the safe handling technique used by the staff on the previous shift had caused skin tears on his arms to be opened. Medication had to be administered forcibly because he was refusing both food and medicine.
- Ms Paula Jeffrey, a very experienced staff nurse, had been concerned about the way in which JE had been treated on the day shift. She wrote a report immediately after the shift to the matron saying that JE was being cared for in "a less than best way", that he had required on occasions 2 to 1 observation for safety reasons, and that as a result the other patients had only their basic needs attended to. Ms Jeffrey was on her way out of the ward, having written this report, when she noticed night staff in the dining room surrounding a chair in which JE was sitting. She said he was restless and trying to get out of the chair. She noticed that the chair was secured to a dining room table by a sheet or two and that there was another sheet across his stomach. She says that she was shocked by this although she did not say anything to the nurses at the time. This was on a Monday evening. Surprisingly, she did not make any complaint about this until she next came on shift on Thursday 25 September when she reported to the Ward Manager, Mrs Helen Jackson, what she had witnessed on that previous Monday.
- Mrs Jackson sensibly asked Ms Jeffrey to make a statement as soon as possible, and Ms Jeffrey did. Mrs Jackson contacted the Human Resources Officer and also discussed the incident with her Line Manager, Ms Sue Howlett. Mrs Jackson and Ms Powell from Human Resources saw the four members of staff, including the two appellants, on the following day. They were asked about the incident and were suspended pending further investigations. The reason for the suspension was the "alleged assault of a client on Westgate Ward on 22 September." Mrs Jackson was plainly shocked by the alleged actions. She raised the matter with certain hospital consultants, including the patient's own consultant, but they were far more sanguine about it. It appeared to cause them little concern; Mrs Jackson noted that they were not "shocked, angry or even mildly emotional about the allegation". She felt that they were not treating the incident seriously enough.
- On 30 September the Vulnerable Adult Protection Committee, Strategy Meeting met and they determined that the police should investigate the incident. All this involved some delay in the hospital's investigation since it was resolved not to take matters further until the police had responded. On 30 October the police informed Mrs Jackson that their investigations had been completed and, not surprisingly, they concluded that no further action would be taken. At that point the internal investigation was instituted but the terms of reference were not given to the claimants until 1 December. They were then amended a short time later, in part at the instigation of the union representatives acting for the appellants. As a result the scope of the investigation extended beyond the incident itself. The investigators were asked to identify the policy and practice for the care of clients on the ward, particularly during the night; and also to determine whether there had been a breach of confidentiality by any of the named employees.
- The persons asked to investigate were Ms Sue Tiller, PA to the Service Development and Business Manager, and Mrs Cox, a retired service manager for Older People's Services. They interviewed the four members of staff against whom the allegations had been made. They also interviewed Ms Jeffrey and Mrs Jackson. The investigation was concluded in January 2009. They found that the chair was tied to the table and that attempts were made to secure the patient to his chair with a sheet, although they did not say that they had been successful. They recommended that the incident be dealt with under the Trust's disciplinary policy. They also, however, recommended that areas of development for the individuals should be identified, and appropriate training should be provided.
- There was a disciplinary hearing which began on 9 March before the Service Manager for Rehabilitation and Recovery, Mr Mansfield. He alone was to make the decision as to what, if any, disciplinary sanction should be imposed. It was agreed that there should be separate hearings for each member of staff, taking place over four successive days. A number of witnesses were called and they were all present on the day Mr Preston's case was under consideration, but by agreement with Mrs Crawford's union representative, only Ms Jeffrey and Mrs Jackson attended her hearing.
- The allegations against each of the appellants were as follows:
"..the patient, JE, was observed in the dining room…seated in a chair near to a table with one bed sheet tied around the upper part of JE's body and the chair and one bed sheet tied around the lower part of the chair encircling the arms of the chair. The sheet around the lower part of the chair was securing the chair to the table."
- It was then asserted that:
"This treatment did not afford the patient, JE, dignity and respect, safety and security, and is a serious breach of good practice."
"The treatment of patient, JE, was not reported by you nor was any attempt made by you to release patient, JE, from this situation."
- This treatment was alleged to be a breach of the Nursing and Midwifery Code of Professional Conduct; gross misconduct under paragraphs 7.4 and 7.12 of the respondent's Disciplinary Procedure; and a contravention of the Trust's Code of Conduct and the Prevention of Management Aggression Policy. In Mr Preston's case it was also alleged that as shift co-ordinator, he was ultimately responsible for the care and treatment of JE.
- Paragraph 7.4 of the Disciplinary Rules provides that gross misconduct includes:
"Any verbal or physical assault on a patient … arising out of employment with the Trust"
Paragraph 7.12 states that:
"Contravention of professional codes of practice is professional misconduct."
Paragraph 7.6 is also relevant to this appeal. It identifies as misconduct:
" any act or failure to act which affects the health and safety of a patient, member of the public, …."
- The appellants accepted that they tied JE's chair to the table. However, they denied tying him to the chair with the sheet across his chest.
- In the course of Mrs Crawford's hearing, she gave an explanation as to how the sheet had been wrapped around JE's chest. In order to test this evidence, Mr Mansfield and the senior HR adviser, Ms Verzijl, went to the relevant chair and Ms Verzijl sat in the chair while Mr Mansfield attempted to wrap the sheet around her in the manner described by Mrs Crawford. They did not believe that it could have been wrapped in the way she explained. Neither Mrs Crawford nor her representative were informed that this experiment was being undertaken.
- Mr Mansfield found that each of the allegations was proved and the appellants were notified in what were, for the most part, identical letters dated 12 March. The letters gave further particulars of his findings as follows:
"The allegation of tying patient, JE's, chair to the table is admitted by yourself and not disputed. This is mechanical restraint and not a form of restraint recognised anywhere in Trust policies or procedures nor in national protocols or guidelines. It is clear that patient, JE, did have a sheet surrounding the upper part of his body and evidence suggests that this would only stay in place by securing the sheet. This is inappropriate restraint."
- The letters went on to say that the appellants had failed to report the incident and "nor was there any attempt made by you to release patient JE from the situation." Mr Mansfield concluded that the actions constituted an assault in breach of paragraph 4 of the Disciplinary rules; negligence contrary to paragraph 6 (although this was not in fact one of the charges); and professional misconduct under paragraph 12. The letters also stated that Mr Mansfield had taken into consideration the plea of mitigation, without spelling out precisely what had been raised in that plea.
- The appellants appealed internally and the appeal was heard by a panel consisting of Mr Bolas, the Director of Nursing, Mr Clarke, Director of Specialist Services, and Mr Hulme, a non-executive Director selected because of his background in human resources. As Mr Bolas confirmed in his witness statement before the Employment Tribunal, the function of the appeal panel was to review Mr Mansfield's decision to determine whether it was a fair and reasonable decision. It was not, therefore, a rehearing coming to a fresh determination. No witnesses were called and Mr Mansfield presented management's case.
- The appellants contested the fairness of the proceedings; they alleged that there had been an inadequate investigation, that the facts were not sufficiently substantiated, and that the sanction of dismissal was unfair and unreasonable. It was alleged that undue weight had been given to the evidence of the complainant staff nurse, Ms Jeffrey.
- Mr Mansfield confirmed to the appeal panel that he considered the act of tying the chair to the table was a form of restraint and a form of assault, as well as being an act of negligence. He accepted Ms Jeffrey's account of the way in which the patient had been tied by a sheet because her evidence had been consistent throughout.
- The appeal panel also concluded, on the balance of probabilities, that the patient had been tied in the chair as alleged. They said that they could not otherwise understand why a third sheet would have been used. They did not refer to Mrs Crawford's explanation, which was that the purpose was to make JE feel as though he were in bed, the other patients being in bed at this time.
- Mr Bolas said in evidence that having heard the various representations, the panel was satisfied that there had been a thorough investigation reaching a fair and reasonable decision.
- The letter rejecting the appeal stated that the act of restraining JE had been against the Trust's policy and the Mental Health Act Code of Practice and constituted physical assault. It concluded that the actions of the appellants constituted a complete break down of trust and confidence. The panel was also critical of the failure to seek further advice about how to restrain JE and of the failure to make a report of the restraint.
The relevant law.
- The basic legal principles are not in dispute. Ever since the seminal case of British Home Stores v Burchell  ICR 303n (as modified to the extent that the burden of proof has since been amended by legislation) it has been recognised that it is for the employer to satisfy the tribunal that he dismissed for a potentially fair reason. Thereafter, the tribunal has to determine whether the employer acted reasonably in treating that reason as sufficient to dismiss the employee. It is accepted by the Trust that the following self-direction given by the Tribunal accurately reflects the law:
"It is for us to consider whether the employer had an honest belief in the misconduct alleged and that that belief was based upon reasonable grounds after having carried out sufficient investigation. It is not for us to determine on the evidence that we have heard whether we believe the misconduct had occurred. The Tribunal views the matter through the eyes of a reasonable employer. Provided that the actions of this employer fall within a range of responses by a reasonable employer, the Tribunal cannot interfere. It is also an exercise which is carried out when considering the penalty that follows from the employer's belief. It may be that the Tribunal would have imposed a different penalty but the sole question is whether the penalty applied by this employer was such that no reasonable employer would have applied such a penalty."
- The Tribunal reminded itself on numerous occasions throughout its decision that it must not substitute its own view for that of the employer.
- Moreover, as I observed in the Court of Appeal in [Salford Royal NHS Foundation Trust v Roldan]()  IRLR 722 paragraph 13, it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as is the case here, the employee's reputation or ability to work in his or her chosen field of employment is likely to be affected by a finding of misconduct. The court was approving a passage to that effect in A v B  IRLR 405.
- Of course, the mere fact that there has been an appropriate self-direction will not preclude an appellate court from finding that there has been an error of law if it is satisfied that the Tribunal has, in fact, failed to act in accordance with that self-direction. As Lord Justice Mummery observed in [Brent London Borough Council v Fuller]()  ICR 806 at para 30:
"…. There are occasions when a correct self-direction of law is stated by the Tribunal but then overlooked or misapplied at the point of decision. The Tribunal judgment must be read carefully to see if it has, in fact, correctly applied the law which it has said is applicable. The reading of an Employment Tribunal decision must not, however, be so fussy that it produces pernickety critiques, over-analysing of the reasoning process; being hyper-critical 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."
However, it should not readily be assumed that a tribunal has failed to follow its own directions. There must be a proper basis for an appellate court to conclude that the Tribunal has failed to follow its own self-direction; see Roldan, para 51.
The decision of the Employment Tribunal.
- The Tribunal noted that the Trust were dealing with two very long serving nurses who had no disciplinary record and against whom no malicious intent was alleged. They also observed that the dismissal of a qualified nurse in these circumstances could be what they described as:
"a career-changing decision in that a reference to the relevant professional body can involve that nurse in being unable to gain other employment within the profession. It follows therefore that evidence of misconduct must be clear and cogent."
- The Tribunal was critical of the delays in this case, some six months from suspension to dismissal.
- The Tribunal accepted that the genuine reason for dismissal was misconduct and that the issue on which they had to focus was whether the dismissal was reasonable "measuring the actions of the Respondent against the yardstick of a reasonable employer."
- The Tribunal began by commenting that any period of suspension should be for the minimum period, and that six months put a lot of unnecessary pressure on the appellants. It also observed how the precise allegations had altered as the internal processes developed. For example, the internal investigators found that there were attempts to tie JE to the chair but the final allegation was that he had been the subject of physical assault
- The Tribunal then identified five specific errors in the manner in which the disciplinary process was handled. They go to the heart of this appeal. First, the Tribunal concluded that some of the findings of Mr Mansfield were simply impossible to sustain even on his own findings. For example, he appeared to believe that tying the chair to the table was itself a physical assault. Likewise, the respondent accepts that the finding of negligence is also wrong. There is no evidence of that, and in any event it was never one of the charges which the appellants were facing. It is accepted by the Trust that these conclusions could not be sustained.
- Second, the Tribunal identified two procedural defects in the procedure adopted by Mr Mansfield. The first was the failure to obtain the very first written statement from Ms Jeffrey which she provided at the behest of Ms Jackson who had asked her to put in writing her concerns. It was noted that in certain respects this statement, arguably at least, departed from the way in which her evidence had been presented at the disciplinary hearings. For example, she said that patient, JE, had continued to move about in the chair and that the sheet around the abdomen was removed whilst she was watching him. The Tribunal noted that had this observation been drawn to Mr Mansfield's attention, it might have caused Mr Mansfield to reconsider his finding that "Nor was there any attempt made by you to release patient, JE, from the situation".
- Third - and the second procedural weakness identified by the Tribunal - was the carrying out of the experiment on the chair without any notification to the appellants or their representatives that this was being done. The Tribunal commented that Mr Mansfield had relied upon this "heavily and in our judgment impermissibly."
- Fourth, the Tribunal concluded that no reasonable employer could have reached the decision that JE had been tied to the chair. It put the point as follows (para 48):
" We do not consider that a reasonable employer could properly have concluded that JE was tied to the chair with no attempt to release him when faced with the evidence of the two nurses and two healthcare workers who were present throughout as against the evidence given by a nurse who did not feel sufficiently strongly to report the matter or remonstrate immediately as her professional conduct code required and who had no more than a fleeting view of the circumstances, coupled with the lack of certainty as to whether there were two sheets or three."
- Finally, it formed the view that the employers had not properly taken the context into account (para 49):
"We also consider that a reasonable employer would have taken into account the content. Here was a patient who had prompted Ms Jeffrey to express concern about his medical treatment, who had caused significant difficulty in handling during the day shift when there were more nurses or carers on duty and where the admitted aim of the Claimants was to keep the patient safe by securing the chair in which he was sitting to prevent him from falling out of it. It is clear that he was regularly agitated and difficult. He was attached to a "drip" on a stand and too much movement would have caused difficulty for that equipment to function. There was a need for two nurses to attend to the administration of drugs and the needs of 16 other patients in a way which kept all of those patients safe. There was no allegation that there was any harm to JE and not suggested that the nurses or healthcare workers were doing anything other than attempting to keep him safe from himself and his restless aggression. …"
- For all these reasons, therefore, the Tribunal concluded that the dismissal was unfair. It summarised its conclusions as follows (para 51):
"For the above reasons, we do not consider that the Respondent had sufficient evidence based on an adequate investigation to ground their belief that the patient was tied to the chair by the Claimants and that no effort was made to release him and no reasonable employer could conclude that securing the patient's chair to the table was a physical assault as defined in their own PMA code. The decision to dismiss was therefore unfair. …"
- The Tribunal was, however, critical of the appellants for failing to report what they accepted were unusual arrangements. It was for this reason that it reduced the compensation by 25%.
- The Tribunal did not in terms address the question whether even if the employers had been justified in finding the misconduct they did, the dismissal was outwith the range of sanctions which a reasonable employer could adopt, They did, however, give a hint of their thinking on this matter (para 51):
"It is most unfortunate for these claimants that the respondents did not reinstate them as soon as the police investigation was concluded and then deal with them as was suggested in the investigation report by performance development review training and some disciplinary sanction."
- There was a subsequent remedies hearing in which the Tribunal awarded Mrs Crawford £29,507.42 and Mr Preston £73,550.00. Those awards are not themselves the direct subject of appeal but they are of course contingent upon liability being established. The Trust did, however, submit to the Tribunal that even if it found the dismissal to be unfair, it had to consider whether any compensation should be reduced on the Polkey principle established by the House of Lords decision of that name (Polkey v AE Dayton Services Ltd. This requires a tribunal which finds a dismissal to be unfair to consider the chances that even if the employer had acted reasonably, the employee would have been fairly dismissed in any event. The compensation must be reduced to take into account that possibility. The Tribunal did not consider this issue.
The hearing before the Employment Appeal Tribunal.
- The Trust challenged the conclusion of the Employment Tribunal and advanced eleven detailed grounds which can, in my view, fairly be reduced to the following principal complaints:
i) It was alleged that notwithstanding that the Tribunal had properly directed itself in law, it had in fact substituted its view for that of the employer, both in concluding that there had been procedural defects, and in its finding that no reasonable employer could have concluded on the evidence that JE had been tied up as alleged by Ms Jeffrey.
ii) In any event, the appellants' representatives had had the opportunity on the internal appeal to challenge the fairness of the experiment conducted by Mr Mansfield without notice to them and in their absence. It is well established that defects at an initial disciplinary stage can be remedied on appeal: see Taylor v OCS Group Limited  ICR 1602. That was the position here.
iii) The Tribunal had wrongly concluded that there had been undue delay. There was no significant delay given initially the need to await the police investigations and the problems of securing the presence of so many witnesses on the same day.
iv) The Tribunal had wrongly stated that the Trust had failed to have proper regard to all the surrounding circumstances when, in fact, it was plain from the evidence before the Tribunal that the employers were alert to these matters. They had been relied upon by the appellants by way of mitigation. The dismissal letters said in terms that the mitigating features had been considered. The Trust were entitled to conclude that the offences were so serious that only the sanction of dismissal would do.
v) Mr Mansfield was ill and unable to give evidence to the Employment Tribunal but evidence was given by Ms Verzijl who was present throughout the disciplinary hearings and was privy to Mr Mansfield's thinking. She stated that Mr Mansfield had, in fact, considered that merely tying the table to the chair would of itself have constituted gross misconduct sufficient to justify dismissal. The Trust complains that the Tribunal failed to have any regard to that conclusion. It was obliged to consider whether dismissal for that reason would have been fair.
vi) Finally, it was asserted that in any event even if the dismissal could properly be found to be unfair, it was incumbent upon the Tribunal to apply the principles derived from the decision of the House of Lords in Polkey. This required the Tribunal to assess the chances that even if proper procedures had been complied with, the dismissal would have occurred in any event and would have been fair. The Tribunal had recognised in its decision that this was one of the issues it would need to address, but in fact it never did so.
- The Employment Appeal Tribunal accepted most, but not all, of these grounds. It did not consider that the comments on delay had infused the Tribunal's conclusion that the dismissal was unfair; and it rejected a distinct allegation that the Tribunal had set too high a standard of proof. However, it accepted the Trust's principal submission, namely that notwithstanding its self-direction, the Tribunal had in fact substituted its view for that of the employer.
- It relied upon a number of features of the decision in order to reach this conclusion. For example, it considered that the Tribunal erred in criticising the terms of reference of the investigation and that it should have focused on the disciplinary charges themselves, which were clear. More significantly, the EAT held that it was not open to the Tribunal to find that Mr Mansfield was not entitled as a reasonable employer to conclude that JE had been tied up in the way suggested by Ms Jeffrey.
- As to the Tribunal's conclusion concerning the experiment conducted on the chair, the EAT held that the Tribunal, in characterising the experiment carried out by Mr Mansfield as "impermissible", was effectively substituting their own view for that of the employer. In any event the EAT accepted the submission that in accordance with Taylor v OCS Group it was a matter that could have been cured on appeal if only the appellants or their representatives had identified it. The Tribunal had erred in failing even to consider that possibility.
- It also held that the Tribunal was not entitled to conclude that the first statement of Ms Jeffrey ought to have been considered by the Tribunal. The question the Tribunal ought to have asked itself, but did not, was whether the failure to obtain her first statement so vitiated the investigation that it was no longer a reasonable investigation.
- Initially, the appellants focused on the decision of the EAT and identified what were alleged to have been certain defects in its reasoning. Mr Wallington QC, counsel for the Trust, accepts that some of the reasoning might have been difficult to sustain, but he submits that in any event it is now well established that whilst respect will be given to any decision of the EAT, ultimately the decision under review is that of the Employment Tribunal. That has been the focus of the submissions before us.
- Mr Howard, counsel for the appellants, submits that there was no error in the Employment Tribunal's analysis. It properly directed itself and there is no justification for saying that it did not respect that self-direction. As Mummery LJ pointed out in Fuller, appellate courts should no more substitute their view for the first instance court than that court should substitute its view for the employer. The EAT fell into precisely the same error that Mr Wallington attributes to the Employment Tribunal: it stepped into the shoes of the Employment Tribunal.
- Mr Wallington broadly repeats the arguments advanced before the EAT. At the heart of these submissions remains the contention that the Tribunal fell into the trap which it recognised would involve an error of law, namely it substituted its view for that of a reasonable employer as to whether the investigation had been reasonable in all the circumstances, and in particular whether the Trust's finding that JE was tied to the chair was one which was open to a reasonable employer.
- On the central issue, in my judgment, the Employment Tribunal was entitled to conclude that there had been the two procedural errors which they identified.
- In this context I make the preliminary observation that in my view the Employment Tribunal was entitled, in view of the observations in Roldan, to look particularly carefully at the procedures given that not only the particular jobs, but also the ability of these appellants to pursue their chosen careers, were at stake. I reject a submission from Mr Wallington (which the EAT also rejected) that this involved the Tribunal applying too high a burden of proof. Furthermore, as I have said, it ought not lightly to be assumed that a tribunal which has properly directed itself, as this Tribunal did on numerous occasions, has ignored its own self-direction.
- Bearing these considerations in mind, it was in my view open to the Tribunal to conclude that in relation to one of the most fundamental issues before the Tribunal, namely whether the sheet had been tied round JE as alleged by Ms Jeffrey, the experiment carried out by Mr Mansfield was an unfair procedure. The Tribunal was entitled to conclude that it was a key part of the evidence on which Mr Mansfield relied. It would have been very easy for Mrs Crawford, together with her representative, to be present and to demonstrate what she alleged had occurred. I respectfully disagree with the EAT finding that the reference to the experiment being "impermissible" denoted a substitution mind-set. In my judgment, the Tribunal implicitly found that this failure with respect to a vital piece of evidence, meant that the procedures taken over all were rendered unfair. I think that it was entitled to reach that conclusion.
- Nor do I accept that the error was corrected as a result of the appeal hearing. It is for the employer to ensure that a fair procedure is adopted. It is true that the union representatives conducting the appeal on behalf of these appellants could have made a complaint about this procedural defect, and it does not appear as though they did. It is a matter of pure speculation whether the appeal panel would have remedied the wrong had their attention been drawn to it or what the outcome would have been if it had. In my judgment, however, it cannot be enough for an employer to say that although a fair procedure was not adopted, the responsibility for failing to remedy it lies at the door of the employee for failing to alert him to the error.
- In my view, the Employment Tribunal was also entitled to conclude that the second procedural defect identified, namely the failure to obtain the first statement made by Ms Jeffrey and make it available to the appellants, was a failure which a reasonable employer would not have made. Mr Wallington points out with some force that it is doubtful whether the statement would have affected in any significant way the conclusions of Mr Mansfield. He submits that reasonably read, the statement is entirely consistent with the later evidence given by Ms Jeffrey and in particular it suggests that JE was tied up as she later claimed in evidence. I will not set out the statement in full. Suffice it to say that Ms Jeffrey stated that the sheet was removed from the abdomen whilst she was watching. This would appear to be consistent with the view of the investigating committee that there was an attempt to tie JE to the chair but that he was not in fact tied up.
- In any event, as the Tribunal noted, there are certainly matters in that statement which would have provided some further material which was capable of supporting the appellants' case and are inconsistent with the way in which Mr Mansfield perceived matters. Not least the statement seems wholly inconsistent with Mr Mansfield's observation that the staff "had taken no steps to remove JE from the situation" at least so far as any allegation of tying him directly to the chair was concerned, since the statement asserted that he had been freed. There was a proper basis for the Tribunal's conclusion that this was a failing in the process.
- I accept, however, that the Tribunal went too far in concluding that no reasonable employer could have preferred the evidence of Ms Jeffrey to that of the four members of staff. I would agree with the Tribunal that it is on the face of it a surprising conclusion for Mr Mansfield to have made, essentially for the reasons given by the Tribunal. But I do not think that a tribunal, properly directing itself, could conclude that no reasonable employer could have resolved the conflicting evidence in the way this employer did, provided at least that proper consideration was given to the potential weaknesses in Ms Jeffrey's evidence. The Tribunal was not in a position to conclude that there was no such consideration. The Tribunal's conclusion is in effect that the finding that JE had been physically restrained was a perverse assessment of the evidence. That is an extremely high hurdle which I do not think was surmounted here.
- The question then arises whether this error by the Employment Tribunal invalidates the finding of unfair dismissal itself. I do not believe that it does. I recognise that in some circumstances a finding of some legal error by the Tribunal may do so. For example, if a tribunal concludes that a dismissal is unfair for three grounds, two of which are relatively trivial and one of which is of real substance, then a conclusion that the finding with respect to the ground of substance is unwarranted will inevitably cast doubt upon the overall finding of unfairness. It could not reasonably be assumed that the same decision would have been reached absent the error. That, in my judgment, is not the position here. The procedural defects were, in my view, justifiably identified as failings which rendered this dismissal unfair; they carry significant weight in their own right quite independently of the erroneous conclusion about the assessment of the evidence.
- Mr Wallington submits that in any event the Tribunal had to engage with the evidence from Ms Verzijl that Mr Mansfield would have concluded that it was gross misconduct simply to tie the table to the chair. Since this was admitted misconduct, it was unaffected by the procedural defects. If the Tribunal had concluded that it was open to a reasonable employer to dismiss for this reason, then it should have found that there was no unfair dismissal.
- I have some reservations whether it is proper for the court to act on this evidence given that the decision letter itself does not seek to justify the dismissals on this independent basis. Furthermore, the appeal panel does not appear to have approached the matter on that alternative basis. But in any event, I accept the submissions of Mr Howard that that conclusion itself was based on the premise that the tying of the chair to the table constituted an assault on JE. As Mr Wallington accepts, it plainly did not. It no doubt prevented JE from leaving the chair, and indeed that was its purpose. Given that he was on a drip at the time, it was reasonable to want to keep him in the chair, even if the means used were inappropriate. I do not accept that the characterisation of the action of tying the chair to the table as an assault is simply an inept description, as Mr Wallington submits. It seems to me that it has pejorative overtones and would in all likelihood have coloured the way in which Mr Mansfield assessed the seriousness of this matter. The fact that Mr Mansfield also described the action as being negligent - although I accept that it is of little substance in itself, as Mr Wallington says - does nevertheless reinforce my impression that Mr Mansfield had misunderstood and exaggerated the nature of that particular alleged wrongdoing.
- Even if I am wrong about that, I do not think that it would have been open to a reasonable employer to dismiss members of staff with twenty years service simply for adopting this method for securing JE in his chair. It seems perverse to suggest that this is any more detrimental to his dignity than physically restraining him in other ways; one might have thought it less so. Moreover, the evidence showed that during the previous shift JE had been pinned to the chair in virtually the same way, save that instead of achieving this mechanically by tying the chair to the table, it was done by two nurses holding it there. To treat the one as permissible and the other as justifying the dismissal of employees with twenty years service, simply it seems because it is not an approach permitted by the procedures, is in my view clearly perverse. Mr Wallington suggests that this was different because with the physical restraint there were two nurses in the vicinity at all times to keep an eye on JE. But no-one has suggested that there were fewer than two nurses present when the evening shift took over; and it was never the basis of the charge against these members of staff that they were leaving JE inadequately supervised.
- As to the contention that the Trust did not properly have regard to the context, I accept Mr Wallington's submission that the evidence before the Tribunal suggests that they did. The mitigation had focused strongly on the particular difficulties the appellants faced both because of the attitude of JE and the need to balance caring for him with their obligations to the other patients in the ward. The dismissal letter says that consideration was given to the mitigating features, and Ms Verzijl confirmed in her evidence that this was so. In the light of that evidence I do not think that the Tribunal could properly conclude that there had been no regard to context.
- However, in my view nothing turns on this error so far as liability is concerned. The context has no bearing on whether the Trust complied with appropriate procedures. Its relevance goes to the question whether dismissal was in all the circumstances within the range of sanctions which a reasonable employer could impose. I would accept that if the Tribunal had concluded that dismissal was unreasonable because in imposing that sanction the employers had failed simply to have regard to the context then that would not have been a sustainable finding. That is not a finding which they made.
- In fact I suspect that the Tribunal may have been intending to say not that the Trust had failed to have regard to this context, but rather that having proper regard to it, dismissal was not within the range of reasonable responses. However, I have come to the conclusion that it would not be right to read the finding in that way, particularly since when the Tribunal summarises its conclusions at paragraph 51, it does not say that even if the findings of the employer were sustainable, dismissal was in any event a sanction which no reasonable employer could adopt.
- As to the other points, like the EAT I do not accept that the Tribunal made a finding that the delay rendered the dismissal unfair. There was merely what was in my view a wholly justified observation to the effect that six months suspension puts considerable pressure on staff. Mr Wallington, who has extensive experience of these matters, says that six months is far from unusual. That may be so, although I have to say that it is difficult to see why the investigation of a single incident of this nature should have taken so long. However, it is not referred to as a basis for the finding of unfair dismissal in the Tribunal's conclusions. Nor indeed is the Tribunal's conclusion that the charges were not clearly framed. As to that, I would accept Mr Wallington's contention that the charges as such were clearly framed, although even if JE was tied to the chair, it is not obvious to me that this could properly be said in the circumstances to have offended his dignity and respect, given that it was preventing him from repeating his earlier undignified conduct; nor is it easy to see why it should threaten his safety or security. One might have thought that the contrary was the case. These consequences were always merely asserted. However, it is not alleged that these findings of themselves render the decision unfair.
The points relating to remedies.
- I turn to the two final points relied on by Mr Wallington which relate to remedies. Neither was considered by the EAT because given that they found that there was no liability, the issues did not arise.
- First, Mr Wallington submits that even if the Tribunal had been entitled to find that the dismissal was unfair, it was obliged to consider what would have happened had the employers not erred in their approach. The Tribunal recognised that this was potentially a material matter for it to consider in paragraph 36 of its decision.
- In my judgment, Mr Wallington must be right. I can understand, however, why the Tribunal did not address that question. Having concluded that the finding that JE had been tied to the chair was not a sustainable finding for a reasonable employer to make, it did not have to address the Polkey question. On that analysis there was no basis on which the dismissal could have been considered fair.
- Since I have found that the Tribunal erred in concluding that no reasonable employer could have found that JE was tied to the chair, it follows that the tribunal ought to have considered the Polkey point. It has to decide whether the dismissal would have taken place even if fair procedures had been employed, and if so, whether such a dismissal would have been fair. If the conclusion is that the dismissal would not have been fair, even if it would or might in fact have occurred, for example because the sanction would have been outwith the range of reasonable responses, then there would be no justification for reducing compensation on this ground at all, and the compensation awarded by the Tribunal would stand. But if there was a chance that a fair dismissal might have occurred in any event, that must be factored into the assessment of compensation.
- Mr Wallington also suggested that the finding of 25% contributory fault was not properly reasoned and should in any event have been more. I do not agree. The reason why the Tribunal found contributory fault is clear, namely the failure to report the unusual restraining method. The choice of 25% is an exercise of judgment that does not warrant detailed explanation; it is a rough and ready figure to reflect the employees' fault.
- The appeal succeeds in part. I would restore the finding of unfair dismissal, but would remit the matter to the same Tribunal for it to determine, in the light of this judgment, whether it would be appropriate to reduce the compensation in accordance with the Polkey principles.
- This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established. As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council  IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee's best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him.
- I am not suggesting that the decision to suspend in this case was a knee jerk reaction. The evidence about it, such as we have, suggests that there was some consideration given to that issue. I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk; and perhaps they did.
- However, whatever the justification for the suspension, I confess that I do find it little short of astonishing that it could ever have been thought appropriate to refer this matter to the police. In my view it almost defies belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step. I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit. Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet "criminal" being applied to the employee's conduct. I do not think that requirement was satisfied here. No-one suggested that the appellants were acting other than in the best interests of JE and the other patients. The restriction was not essentially different to the physical restraint which had been carried out in the day shift. I can only assume that the relevant committee was influenced, as I suspect Mr Mansfield was, by the fact that technically tying JE to the chair was an assault, with the implication that this is a grave matter. But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed, and in my view the police should never have been involved.
Lord Justice Kitchin:
- I agree.
Lord Justice Laws:
- I also agree.
Published: 18/02/2012 14:01