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Appeal No. UKEAT/0351/09/DA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 13 April 2010

Before

HIS HONOUR JUDGE McMULLEN QC

MR D J JENKINS OBE

MR T STANWORTH

MRS A A PINTO (APPELLANT)

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GLOUCESTERSHIRE NHS PRIMARY CARE TRUST (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant MR AYOADE ELESINNLA (of Counsel)
Instructed by:
Race Equality Council for Gloucestershire
15 Brunswick Road
Gloucester
GL1 1HG

For the Respondent MS ALISON FRAZER (of Counsel)
Instructed by:
Messrs Bevan Brittan LLP
Kings Orchard
1 Queen Street
Bristol
BS2 0HQ

UNFAIR DISMISSAL – Reasonableness of dismissal

In the course of investigation into three disciplinary matters, for which a health care professional was given a final warning, other matters came to light. The Claimant did not challenge the evidence and consented to all the matters being considered together, which resulted in her dismissal. The Employment Tribunal did not err in finding dismissal was a reasonable response to the Claimant's conduct in putting patients at risk.

1. This case is about unfair dismissal and raises one point of Employment Tribunal procedure. It is the Judgment of the court to which all members appointed by statute for their diverse specialist experience have contributed. We will refer to the parties as the Claimant and the Respondent.

1. It is an appeal by the Claimant in those proceedings against a Judgment of an Employment Tribunal chaired by Employment Judge Olga Harper sitting over five days at Bristol, registered with Reasons on 1 June 2009 having been signed a month earlier. The Claimant is represented by Mr Ayoade Elesinnla, different counsel appearing below; the Respondent throughout by Ms Alison Frazer. We correct the record to show that. The Claimant claimed unfair dismissal; the Respondent contended it dismissed her fairly for gross misconduct having carried out a fair procedure.

1. The essential issues as defined the by Employment Tribunal were as follow:

"The Respondent contends that the Claimant was fairly dismissed by reason of conduct namely gross negligence in relation to her professional duties and therefore, following the guidance in the case of British Home Stores Ltd v Burchell [1978] IRLR 379, the issues for the Tribunal to resolve are:

(1) Did the Respondent have a genuine belief in the guilt of the Claimant?

(2) Was that belief reached on reasonable grounds following a reasonable investigation?

(3) Was dismissal within a range of reasonable responses?"

1. The Tribunal dismissed the claim. She appeals. Directions sending the appeal to a preliminary hearing were given by HHJ Pugsley and thence to a full hearing by Slade J and members.

1. The relevant provisions of the legislation are not in dispute. Employment Rights Act 1996 section 98 provides for conduct to be a potentially fair reason for dismissal; it is not disputed that that the Respondent discharged that duty. Thereafter, section 98(4) deals with fairness and provides as follows:

" … 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 employer, and

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

1. Procedurally the Employment Tribunal Rules 2004 require a Judgment of an Employment Tribunal to include written reasons which must set out: the issues, the findings of fact, a concise summary of the applicable law, how the findings and applicable law have been applied to determine the issue. The Employment Tribunal directed itself in accordance with Burchell.

1. The Respondent is an amalgamation of three NHS Trusts. It employs 3,600 people based in Cheltenham. The Claimant was employed on 23 November 1992 as a health visitor by the Bartongate Surgery in the main street in Gloucester. She had many years experience as a registered nurse and was very popular with patients, doctors and support staff. She was bound by the Nursing and Midwifery Council Code of Practice. It was a contractual term of her relationship with the Respondent that she abide by the standards set by that code which included keeping the records of patients, and other duties commensurate with being a nurse.

1. The actors in this drama include Dr Lush, who was a doctor at the Bartongate Surgery; Mrs Miriam Wilshire, who had been the Claimant's Team Leader for one year ending in 2006; Anne Fenton-Jones, who was a named nurse for child protection at Bartongate Surgery; Kath Morris-Edwards, appointed as an investigating manager who was overseen by Ms Cate Carrington-Green, who had no previous involvement with the Claimant; and Mr Stuart Sedgwick-Taylor, Assistant Director of Commissioning. All of the foregoing had something to say about the Claimant's work.

1. Disciplinary matters first came to light in May/June 2007. This followed the National Inquiry, set up in the wake of the murder in 2000 of Victoria Climbie, so that local authorities and other agencies were required to carry out a joint area review of individual files of children, including those on the Child Protection Register.

1. The Claimant's records were found to be wanting and Ms Fenton-Jones carried out an investigation. The three matters she investigated were: whether the Claimant amended records after the event; failing to keep contemporaneous records of one child who was on the Child Protection Register; and holding patients' records at her home.

1. Throughout the Claimant's challenge on these matters she was represented by a fulltime officer of her union Amicus. The Claimant appeared before a disciplinary panel which found very significant failings in her practice. The outcome of the panel included a final written warning on the Claimant's record for two years.

1. The background matters which were available to this panel caused Mr Sedgwick-Taylor, who conducted the decision#making, to make a report. Two further matters required investigation. In simple terms, more was unearthed about the Claimant's record-keeping and her clinical practice than had been revealed at the first disciplinary panel.

1. An investigation conducted by Ms Morris-Edwards led to a procedural decision by the Claimant. She was given the option of having a full hearing on what now became five matters: the original three the subject of an appeal being welded into the subsequent two. A decision was made upon advice to have a single hearing incorporating the old and the new allegations. The new allegations consisted of seven examples of clinical practice which put patients at risk. At the same time a further investigation was going on into a particular child ("the paragraph 15 child") who was the subject of a court report. The Claimant at this time being suspended, her colleagues could not prepare a court report for care proceedings because of the absence of proper records taken by the Claimant.

1. The investigation by Ms Morris-Edwards was comprehensive and a detailed report was forthcoming. The evidence presented to the second disciplinary panel was not challenged by the Claimant. She had not really challenged the first set of proceedings either. The second disciplinary panel came to the conclusion in the light of the five matters that she should be dismissed. In approaching its decision, the Tribunal found the reasons of the Respondent were these:

"16 […] The evidence of the witnesses was not challenged by or on behalf of the Claimant. The appeal panel considered the Claimant's mitigation but considered that the evidence against the Claimant was compelling. The panel considered her failings were so serious that dismissal was the only appropriate sanction.

[…]

18 We therefore conclude that the three stage test in the British Homes Stores Ltd v Burchell have been fulfilled. We have asked ourselves whether dismissal fell within the range of reasonable responses. We conclude that it does, as the serious omission so far as record keeping was concerned reflected on the Claimant's clinical practice and would have put children at risk. Whilst there may have been some management failings in policing rigorously the requirement for record keeping, this would not absolve the Claimant who as a professional nurse has her own responsibility under the NMC code of conduct to ensure accurate and timely recording. In the light of the seriousness of the Respondent's findings and the impact that it had, or might have had, and bearing in mind that the Claimant was an experienced professional who would have been well aware the requirements to keep accurate good records, dismissal, we find falls within the range of reasonable responses. The Claimant was not unfairly dismissed and the claim is dismissed."

1. The Tribunal applied Burchell and found that the three issues which it had to decide indicated a positive response to each. Then the seriousness of the failures by the Claimant justified a decision falling within the band of response of a reasonable employer faced with the circumstances.

1. In commendably succinct submissions, Mr Elesinnla has gone to the nub of his case. He makes three short points. The first is a reasons challenge. Tribunal failed to consider and to make findings upon what is described at the mitigation, emerging from the comments made by Dr Lush and Ms Wiltshire. This material is relevant not just to mitigation but to whether there has been a proper investigation.

1. Secondly, there was a material irregularity. The Employment Tribunal allowed the Respondent to adduce evidence which had not been disclosed to the Claimant. It relates to the paragraph 15 child. This material was prejudicial and the Tribunal based its decision in part upon it.

1. Thirdly, the second disciplinary hearing was unfair and unreasonable. The opportunity was given to the Claimant to improve, following the final written warning, and the Respondent had jumped the gun by moving to a second wider investigation. The recommendations of the Sedgwick-Taylor report were never put into effect before the curtain went up on the second set of allegations. It is unfair for the Respondent to have decided in respect of the first three allegations that a final written warning for this misconduct was appropriate and to rehash them in further proceedings for which the sanction was dismissal.

1. Mr Elesinnla acknowledged that the issue was not whether the Claimant committed the acts of gross misconduct put against her. The issue simply was why they happened. It was submitted that as a healthcare professional findings such as this mean she would never work again and so the standard of investigation for this misconduct is very high. The Claimant had been ambushed at the Employment Tribunal by the adduction of the evidence in relation to the child.

1. On behalf of the Respondent it is contended that the challenge to the reasons in this case cannot get off the ground. The reasons have been set out in a way which is easy for the parties to understand and they are adequate, indeed they are clear. The material in relation to Dr Lush has been decided by the Employment Tribunal (at paragraph 5) which was that the doctors, including Dr Lush, did not have line management of the Claimant and, as to Ms Wiltshire, she had left in 2006 before the disciplinary matter. Nevertheless, her statement went to the appeal panel. This issue was not pursued in the claim form nor at the Tribunal

1. As to the Claimant's mitigation which is that she was overworked, the Tribunal considered the evidence available to the Respondent. This was comparison of the workloads of colleagues and although the workload was heavy, it was felt to be manageable. In other words, the Claimant was not at a disadvantage. Thus, the single response of the Claimant to was that she was overworked.

1. The allegations which were first put were the subject of an agreement by the Claimant that they should then be amalgamated into the second disciplinary panel, in exchange for the setting aside of the final written warning and the appeal. This was a complete solution.

1. The legal principles to be applied in this case emerge from the following authorities. A procedural point should not be allowed to be taken unless there had been compliance with Practice Direction paragraph 11, where orders are made for the adduction of material which does not emerge from the written reasons. Orders of the EAT should be obeyed and if not the point cannot be raised. Reasons should be such as the parties can understand but need not, in the graphic imagery of Lady Smith, be completed to the standard of Michelangelo (see McDonald v Free Presbyterian Church of Scotland UKEATS/0034/09/BI).

1. In misconduct, the guidance given by the EAT in Burchell is applicable and reasonableness applies to each of the three issues identified. There is no burden of proof in relation to the second and third issues. Where the allegation made against a professional is such as to be very serious a high standard of investigation is required, see A v B [2003] IRLR 405 where Elias J, as he then was, in the EAT said this:

"58. The standard of reasonableness

… the relevant circumstances do in fact include a consideration of the gravity of the charges and their potential effect upon the employee.

59. The lay members of this tribunal have no doubt from their own industrial experience that what would be expected of a reasonable employer carrying out, say, an investigation into a disciplinary matter leading at worst to a warning would not be as rigorous as would be expected where the consequences could be dismissal."

1. For a proper investigation to be conducted more has to be done than simply determining guilt or innocence and mitigation. Smith J, as she then was, said in Chamberlain Vinyl Products Ltd v Patel [1996] ICR 113 at 119B:

"Perhaps of greatest assistance to the employers is Lord Bridge of Harwich's brief summary of the employer's duty to be found in Polkey v A E Dayton Services Ltd [1988] ICR 142, 162:

"in the case of misconduct, the employer will normally not act reasonably unless he investigates the complaint of misconduct fully and fairly and hears whatever the employee wishes to say in his defence or in explanation or mitigation;…"

We do not understand Lord Bridge there to have implied that the employer's duty is to be strictly limited to hearing the employee's mitigation and that his duty of investigation is to be strictly limited to the issue of guilt or innocence. In the great majority of cases, that will be an adequate procedure but, in our view, there may be cases where some aspect of the background needs to be investigated in order to put the misconduct into proper context. In those circumstances, an industrial tribunal may, in our judgment, be justified in criticising the employer for failing to investigate a point raised in mitigation by the employee. We think that this is such a case where, on the view the industrial tribunal took of the facts, they were justified in so doing."

1. The intensity of scrutiny changes when there has been an admission or no challenge to the evidence, see Royal Society for the Protection of Birds v Croucher [1984] IRLR 425. In an unfair dismissal case the focus must be upon the actions of the employer and what is regarded as fair in what the employer did, see London Ambulance Service v Small [2009] IRLR 563 CA. It is not open to the EAT to interfere when the material before the employer indicates that dismissal was within a range of reasonable responses. It is the material available to the employer and the employer's decision-making which is relevant.

1. In a case where different forms of disciplinary sanction have been suggested but not followed through, Sarkar v West London Mental Health NHS Trust [2010] EWCA Civ 289 is relevant. In that case disciplinary proceedings were channelled down a palliative conciliatory route but then when circumstances changed the Respondent exposed what would otherwise be a minor matter to be a dismissible matter. This was held to be unfair.

1. We prefer the arguments of the Respondent. We will take the procedural point first. It is alleged that the Claimant was ambushed in relation to the paragraph 15 child. We heard full argument before deciding whether to allow Mr Elesinnla to raise it. We have decided that it is wrong for him to do so. This is because clear tramlines were laid down by HHJ Pugsley in his order setting up the preliminary hearing on 12 August 2009, and then at the preliminary hearing by Slade J and members, indicating plainly to the parties that if they wish to raise a matter which was not clear from the reasons then a bilateral procedure was available to them, and, if they could not agree, then the Judge should be asked for her notes.

1. The point was flagged up immediately upon the Respondent's intervention in this case following permission being granted to Mr Elesinnla at the preliminary hearing to issue an amended Notice of Appeal. The Respondent's counsel said that further particulars should be forthcoming, citing authorities. That was not done. It is plain that there is a dispute between the parties as to what occurred at the Tribunal hearing. We cannot resolve this matter. We think it unfair on the Respondent for this matter to be adjudicated in the absence of a proper procedure being conducted in accordance with the orders made by two previous judges.

1. We are not in a position ourselves to get to the bottom of this but, having heard full argument on it, we consider that it has no prospect of success in any event on the material which has been presented to us. It will be recalled that it is said that documents were produced at the hearing which had not been disclosed to the Claimant, but as Mr Elesinnla told us on instructions at a hearing on 27 September 2007 to deal with the issue with the paragraph 15 child the records were disclosed to her.

1. The issue of what occurred and the defects in her reporting of the matters relating to this child were also the subject of the Morris#Edwards report and that was disclosed to the Claimant and her adviser. The point is one of case management which makes it the less likely that such a challenge will succeed (see Practice Direction paragraph 11).

1. The issue is misunderstood by the Claimant anyway. She considers that the criticism made of her is that she had failed to notice the squalor in which the child had been kept but, again, reading the Reasons of the Tribunal, this is a criticism of the Claimant's record-keeping which was squarely before the first and second disciplinary panels and is an illustration. It may be a stark example but it seems to us that it is only one of a number of files in which the Claimant's record-keeping fell below the relevant standards. So, we very much doubt that that point would go anywhere and we have made those additional observations in deference to the careful arguments put by Mr Elesinnla. It is not open to him to make this argument now.

1. We then turn to the reasons point. As HHJ Serota QC and members said in Abiola v North Yorkshire County Council and ors UKEAT/0369/08, there is no need, time and again, for parties to copy the judgments in Meek v City of Birmingham District Council [1987] IRLR 250 and English v Emery Reimbold & Strick ltd and ors [2003] IRLR 710. His plea for some restraint on deforestation seems to have gone unheeded. So too, has Sedley LJ's in English (actually the Flannery part of the appeals), where he cited the cottage industry of barristers in always putting forward reasons challenges. We have ourselves noticed how this has become globalised.

1. Of course, the parties are entitled to reasons, but this was essentially an unfair dismissal case where there were very substantial, if not admissions, then certainly non-disputes about the material put against the Claimant. The preliminary hearing was obviously concerned that there were insufficient reasons but in our judgment this Judgment passes the Meek/English test. The Claimant's record#keeping was poor and there was no challenge to the evidence before the second disciplinary panel that her clinical practice put patients at risk. She can be in no doubt as to the reason why the Employment Tribunal dismissed her claim.

1. As to the failure to cite the evidence of Dr Lush, we accept the submissions of Ms Frazer above. The Tribunal, albeit in terse terms - "the doctors" - notes that Dr Lush has no knowledge of her record-keeping. Her principal mitigation, as it is put through him and through Ms Wiltshire - Ms Wiltshire by reason of her leaving the scene in 2006 - could not take the Claimant very far.

1. However, as a matter of substance the Claimant's contention that her workload was high has been dealt with by the Employment Tribunal. The officers investigating the misconduct were alert to the Claimant's thesis that her failings were due to her overwork but that was rejected by the employer. The Employment Tribunal was well aware of that issue and cited mitigation a number of times.

1. It follows that we do not consider that the failure specifically to dilate upon Ms Wiltshire's evidence which was before the second disciplinary panel vitiates this Judgment. We accept that where the charge against a healthcare professional may involve her losing her job, the standard of investigation is high, but in this case, as the Tribunal noted on several occasions, there was no challenge to the material adduced against her at the disciplinary panels. So, the Tribunal here has not overlooked the approach of the EAT in A v B.

1. Indeed, in the light of the Claimant's refusal to challenge the matters put against her, RSPB v Croucher comes into play. A limited amount of investigation is required in those circumstances. However, we reject as a matter of substance the contention that the investigation was not rigorous. There has been in the hands of the foregoing actors very careful investigation of the defects in the Claimant's record#keeping and in her clinical practice. This charge of failing to carry out as much investigation as is reasonable in the circumstances (see Burchell issue 2) is not made out.

1. It must be borne in mind following London Ambulance Service v Small that the central issue is for the employer to decide these matters. In the passages we have cited, where the Tribunal applies Burchell, it makes clear what information was available to the Respondent. This is a National Health Service Trust. It is for it to decide in the first instance whether there has been a breach of the code of conduct by a registered professional and whether the charges put against her amounted to gross negligence in accordance with its own rules. It is for it to decide what conduct puts patients at risk and not for an Employment Tribunal. The Tribunal did not lose sight of the division of responsibilities between the Respondent and itself, and the passages we have cited illuminate that.

1. Finally we turn to the submission made by Mr Elesinnla based on Sarkar. The case is not truly comparable. The Claimant, during the course of the investigation for one matter, was investigated for others. They came to light as a result of the first. In our judgment there is no unfairness here. The Claimant agreed to the consolidation of the first three with the second two matters. She waived her right, subsequently, to say that that was unfair, but in any event the Tribunal held that it was not unreasonable of the employer in those circumstances to go ahead after the consent initially given by and on behalf of the Claimant.

1. The Tribunal considered that the evidence against the Claimant was compelling, notwithstanding her mitigation and it must be borne in mind that the Respondent's second set of charges was of a different character and involved allegations of failures in at least seven respects in her clinical practice. That new matters came to the attention of the Respondent which required action does not meant it acted unfairly in, with her consent, deciding to investigate all at a disciplinary panel. In our judgment the comparison with Sarkar is misplaced.

1. For those reasons the appeal is dismissed.