Appeal No. UKEAT/0144/09/LA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 14 December 2009

Before

HIS HONOUR JUDGE McMULLEN QC

MS K BILGAN

MRS M MCARTHUR FCIPD

THE NORTH WEST LONDON HOSPITALS NHS TRUST (APPELLANT)

MS L BOWATER (RESPONDENT)

Transcript of Proceedings

JUDGMENT

For the Appellant
MR BEN COOPER (of Counsel)

Instructed by:
Messrs Cater Leydon Millard Solicitors
18c Milton Park
Abingdon
OX14 4RP

For the Respondent
MR DESHPAL PANESAR (of Counsel)

Instructed by:
Messrs Thompsons Solicitors
Congress House
Great Russell Street
London
WC1B 3LW

UNFAIR DISMISSAL: Reasonableness of dismissal

While assisting in the restraint of a patient admitted to A&E, the female Claimant senior nurse sat astride his naked genitals and made a lewd comment for which she was dismissed. The majority Employment Tribunal Judgment of unfair dismissal and 25% contribution was set aside as perverse and the minority Judgment was substituted. The majority failed to apply the approach in London Ambulance Service NHS Trust v Small [2009] IRLR 563 CA for it did not focus on the material available to the management, and their opinion of this conduct, at the time of dismissal, and irrelevantly invoked its perception of how the general population would view the conduct. Minority Judgment upheld.

1. This case is about unfair dismissal of a health care professional. 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 Respondent in those proceedings against the Judgment of an Employment Tribunal sitting at Watford over four days in, respectively, January and November 2008, under the chairmanship of Employment Judge Mahoney. An explanation has been given for the gap between those dates, and no issue arises. The Reasons and the Judgment were reserved and given on 27 November 2008. The Claimant and the Respondent were represented, respectively, by Mr Deshpal Panesar and Mr Ben Cooper.

1. The Claimant claimed unfair dismissal; the Respondent contended it dismissed her fairly for gross misconduct. The Tribunal, by a majority (Employment Judge Mahoney and Ms S Hamill, Mr D Sagar dissenting) upheld the Claimant's case and found she was unfairly dismissed. The majority went on to consider whether she had contributed to her dismissal by her conduct, and held that she was 25 per cent to blame. The judgment of Mr Sagar on that issue was that she was, if unfairly dismissed, 75 per cent to blame.

1. The Respondent appeals against both liability and remedy. Directions sending the appeal to a full hearing were given by HHJ Richardson in chambers.

1. The relevant provisions of the legislation are not in dispute. They are Employment Rights Act 1996 section 98(1) and (2), which provide for an employer to show the reason for dismissal, and in this case it is common ground that it was conduct of the employee. Thereafter, section 98(4) deals with fairness, and provides as follows:

"(4) … the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

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

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

Contribution is dealt with in section 123(1) and (6). The Tribunal does not cite this, but it is common ground that a deduction on a percentage basis would be made if there were blameworthy conduct. The Tribunal does not cite section 98A which deals expressly with procedural fairness. Where there has been a procedural defect, a dismissal which would otherwise be unfair is fair if on a balance of probabilities the Respondent would have dismissed the Claimant fairly in any event.

1. The facts have been summarised by Mr Cooper on behalf of the Respondent in a way which is criticised by Mr Panesar as being sensationalist. The Claimant, a female Senior Staff Nurse, aged 30 with four years' qualified experience, was employed by the Respondent at Central Middlesex Hospital in North West London. She was dismissed for gross misconduct. The conduct took the form of making a lewd sexual comment while straddling the naked genitals of a vulnerable, fitting man of 31. We refer to these as the restraint issue and the comment. The majority of the Tribunal held that that was an unfair dismissal. The central complaint by Mr Cooper is that this is one of those rare decisions which was perverse, since the conclusion defies logic and common sense, and was the product of reasoning by the majority which included irrelevant factors.

1. The incident took place at 8.00pm on 11 July 2006 in the Accident and Emergency Department. The nursing team was under the control of Charge Nurse Lee. The medical care was in the hands of Dr Tong. A patient, D, was admitted with the assistance of two members of the London Ambulance Service. He is a strong young man. Dr Tong directed the nursing staff to place him on a trolley, he apparently being assisted on foot into the department.

1. The Claimant was leaving her shift. She had stayed on to assist; it is not contended that she was doing anything other than attempting to help. The Tribunal described the incident:

"4.8 It was clear to the Claimant and a colleague of hers, who was also leaving work, that the nursing team had lost control of restraining patient D. He was extremely strong, his fitting was causing him to be violent towards the nursing team and Dr Tong was desperately trying to give patient D an injection of diazepam to calm him down before he injured himself or inflicted injury on the nursing team. To do this, Dr Tong required the nursing team to remove patient D's trousers and underwear so that he could gain access to administer a shot of diazepam into patient D's buttocks. The trousers of patient D were therefore removed leaving his bottom half naked. Although a hospital gown was placed over him, this was soon brushed off by the erratic movements of patient D.

4.9 Diazepam was then injected into patient D but it had no effect. Dr Tong then suggested that by attempting to restrain the patient, they may be exacerbating his hostile behaviour. In those circumstances, the advice he gave to the nursing team was to release whichever limb or part of patient D's body each member of the team was holding. However, once this happened, patient D attempted to climb off the trolley and, in particular, turned himself over from lying in a prone position to lying in a supine position, thereby exposing his private parts to full view by the team.

4.10 The Claimant and her colleague had come to assist with the restraint of patient D. Restraining the patient was particularly hampered by reason of the size of the trolley with its sides in position, thereby preventing the restraint team from getting a good grip on a particular limb of patient D. (In retrospect it would have been much easier to have restrained patient D if had been held down on the floor.)

4.11 By this time, Dr Tong was desperately trying to administer a further injection, this time 4mg of lorazepam, and was leaning over the patient's torso but was unable to administer the injection because of the patient thrashing around. Patient D was kicking his legs and flailing his arms.

4.12 It was at this point that the vital incident relevant to this case took place. The Claimant was at the bottom of the trolley, attempting unsuccessfully to hold down patient D's ankles. So she climbed on to the end of the trolley and sat herself astride his ankles. This was at a time when the patient D was in the prone position. When patient D turned himself over into the supine position, he managed to kick the Claimant between her legs and lifted her up so that she then landed astride patient D's naked genitals. That action of the Claimant allowed sufficient time when patient D was being restrained for Dr Tong to administer the further injection which eventually caused patient D's hostile behaviour to subside. At no time during the incident was patient D capable of understanding what was going on or what had been said."

1. It took some time (six weeks) for an allegation to surface that, while straddling the patient, the Claimant said this: "It's been a few months since I have been in this position with a man underneath me". Interviews were conducted by Ms Winn for the purposes of establishing the circumstances of the incident. A medical practitioner, Dr Wilson, reported to Ms Winn that the Claimant had made a similar comment to her while they were together in the washroom, shortly after the incident. Ms Winn interviewed Charge Nurse Lee. The Tribunal found no attempt was made to locate Dr Tong. Ms Winn came to the conclusion that the Claimant had been guilty of two relevant acts of misconduct, which were put in the following way:

"4.17.1 That she had used an unacceptable and unprofessional method of restraint on the patient D and

4.17.2 that whilst straddling patient D, who was naked, she had made a remark to the effect: 'it has been a few months since I've been in this position with a man underneath me'."

1. There was a case to answer because Ms Winn considered that the incident had occurred in the A&E Department, where it could have been witnessed by a relative or a member of the public. Ms Winn was alert to the problem that the Respondent had no proper training document in relation to restraint of a difficult person. The Claimant's employment is regulated by a contract which incorporates the Code of Professional Conduct of the Nursing and Midwifery Council. This makes the Claimant personally accountable to ensure that she promote and protect the interests and dignity of patients, and at all times maintain appropriate professional boundaries in the relationship she has with patients (see clauses 2.2 and 2.3).

1. The case was heard by Ms Mackie, Senior Nurse, complimented on her experience in nursing by the Employment Tribunal, and Ms Le Tissier, head of HR governance. The outcome of that panel, where evidence was given by the Claimant and other witnesses, was this:

"The findings of the panel are that your behaviour was:

* An act of gross misconduct in that you breached the Nursing and Midwifery Council code of professional conduct: standards of conduct, performance and ethics. As a result of these findings the panel drew the following conclusions:

Allegation 1

* That you failed in your duty of care to your patients and clients who are entitled to receive safe and competent care (NMC para 1.4).

* That you failed in your duty, in that you are personally accountable for ensuring that you promote the interests and dignity of patients and clients (NMC para 2.2).

Based on the evidence, the allegation is upheld and constitutes gross misconduct.

**

Allegation 2

* That you failed to behave in a way that upholds the reputation of the profession (NMC para 7.1).

Based on the evidence, the allegation is upheld and constitutes gross misconduct.

As a result of these conclusions, the decision of the panel is to summarily dismiss you. This decision has not been taken lightly and in considering the management case we considered that the [method of] restraint used by you was inappropriate and unacceptable in any situation but particularly with respect to this very vulnerable patient. The type of restraint used also placed the patient, you and your colleagues at risk. In addition, you made an unprofessional remark during this incident which was inappropriate and unprofessional ..."

1. Charge Nurse Lee was also disciplined, but he was given a first warning, which would lie on his file for six months. He was to be given further training and mentoring; and there would be further consideration given to a proper policy on restraint.

1. The Claimant appealed. This was heard by Ms Robb, who again attracts the compliments of the Employment Tribunal as being very experienced in nursing, Ms Francis, who was Divisional General Manager of Clinical Diagnostics, and Ms Doyle, interim Assistant Director of HR. Grounds were set out by the Claimant's trade union representative and they included that the sanction imposed was too severe. The appeal panel rejected the appeal, and said this:

"In arriving at this decision, the panel took into account the following:

* That you had a clear record before this matter

* That you recognised that you had made a serious mistake

* The panel acknowledges that restraint was needed to administer medicine, but that this was conducted in an inappropriate manner

* The Trust are in the process of creating a restraint policy which will be ratified at the next Patient Safety Committee

* Staff should have reported this clinical incident earlier and the panel have followed this up. I can confirm that appropriate action was taken with the responsible staff."

1. The Claimant contended that the decision to dismiss was unfair. As part of the material relating to his discipline, Charge Nurse Lee contended that a humorous comment was made by the Claimant, but he could not recall the words. The Claimant's case was that she had made a remark, but not the one which was found against her.

1. The Claimant's case as to the restraint was that she had ascended the trolley to assist in the restraint, had sat astride the patient's ankles, and had never been upon his naked genitals or any higher than his shins.

1. The Tribunal considered the law on misconduct dismissals as set out in British Home Stores Ltd v Burchell [1978] IRLR 379. The Tribunal gave itself this direction:

"7.2 … The employer must establish a reasonable suspicion amounting to a belief in the guilt of the employee in respect of the alleged misconduct at that time.

7.3 On a neutral burden of proof the Tribunal has to be satisfied that the Respondent had in its mind reasonable grounds on which to sustain its belief in the misconduct of the Claimant and that at the time the employer formed its belief it had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."

1. It then went on to import the standard direction in British Home Stores which is as follows:

"'What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. This is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.'"

1. It then said this:

"7.5. The correct approach for a Tribunal when applying s. 98(4) ERA, is to consider whether the Respondent's decision to dismiss the Claimant fell with the band of reasonable responses to the Claimant's conduct which a reasonable employer could adopt. Moreover, it is not for the Tribunal to substitute its own view for that of the Respondent. [Foley v Post Office and HSBC Bank (formerly Midland Bank) [2000] IRLR 827]."

1. It cited further authorities: the fairness of a procedure must also at each stage fall within a range of reasonable responses for an employer in these circumstances (see Sainsbury v Hitt [2003] IRLR 23 CA).

1. The Tribunal addressed itself to an argument based on disparity of treatment as between Charge Nurse Lee and the Claimant, as being relevant only in three limited circumstances, to which we will return (at para 47).

1. The majority turned to fairness. Its reasons are as follows:

"8.2 The majority considered that the Claimant's dismissal was substantively unfair because the Tribunal is satisfied that Mrs Robb, by her decision to deprive Ms Mackie of any information relating to the disciplinary charge against Charge Nurse Lee, deprived her of carrying out as much investigation into the matter as was reasonable in all the circumstances and, in particular, deprived her of seeing clearly the initial view of Charge Nurse Lee in relation to the incident on the trolley. The majority also consider that Ms Mackie did not take sufficient steps to locate Dr Tong. As it was clear that he appeared to be working for the NHS, the Tribunal considers he could easily have been located had Ms Mackie or the HR Department of the Respondent, made an effort to find him.

8.3 Further, the majority consider that the decision to dismiss the Claimant fell outside the band of reasonable responses which a reasonable employer could adopt. Firstly, in respect of restraint, the Tribunal considers that the primary responsibility for the failure to restrain patient D lay partially with the Respondent in failing to have in place a proper restraint policy, partially with Dr Tong in requiring the nursing team to restrain patient D on a trolley rather than on the floor and finally with Mr Lee, the charge nurse in charge of the nursing team in failing to point out to Dr Tong that he was unable to restrain the patient and in failing to make any criticism whatsoever to the Claimant when she first got on to the trolley to assist. So far as the comment is concerned, the majority are of the view that to consider such a comment made in the circumstances in which it was made, is sufficient in itself to deprive a nurse of her career in nursing, cannot possibly be within the band of reasonable responses. In the majority view, no reasonable employer would have failed to take into account the mitigating circumstances, namely that

(i) the Claimant had not been trained in restraint processes by the Respondent (that is, the Respondent was to blame for this aspect of the matter).

(ii) she had volunteered to help, having finished a 12 hour shift, when she would have been perfectly entitled to walk out the door, the possible consequences of which may not bear thinking about.

(iii) the comment was made at the end of a very stressful experience, working on the front line of a crisis situation.

(iv) the comment was directed at the Claimant, not specifically at the individual patient.

(v) at worst the comment can be described as lewd but a large proportion of the population would consider it to be merely humorous.

(vi) although it was made in an area to which the public could be admitted, no member of the public was, in fact, present.

(vii) the Claimant had a clean disciplinary record.

8.4 In summary, the conclusion of the Tribunal is that the investigation, bearing in mind the potential effect on the Claimant's future nursing career, was not reasonable in the circumstances."

1. The majority held that the circumstances of Charge Nurse Lee were truly parallel, and since he had got (what the parties agree should be corrected to) a first warning, there was unfairness in treatment.

1. Having dealt with what the Tribunal introduced as substantive unfairness, it then turned to procedural unfairness in failing to carry out a proper investigation. It held that if the steps cited as defects under its heading of "Substantive unfairness" were translated into procedural unfairness, and were omitted because the Respondent got the procedure right, the Claimant would have survived, there being no chance that she would have been dismissed. Contribution (25 per cent) is dealt with in just 20 words.

1. The minority judgment was this:

"12 Although the decision to dismiss the Claimant could be considered to be harsh, it could not be considered to be outside the range of reasonable responses available to a reasonable employer in the circumstances. It was, so far as the minority was concerned, just within the range of reasonable responses. In those circumstances the dismissal was substantively fair. The Claimant's comment was a lewd comment which is not acceptable in any circumstances where a nurse is working in an area to which the public have access."

1. The Respondent's case is prefaced by a submission based upon what Mr Cooper describes as the core facts in the findings of the Tribunal. The Claimant's case was she was at no stage straddling the groin or genitals of the patient. But Ms Mackie had found, in her panel inquiry and disciplinary hearing, that the Claimant had deliberately straddled his groin and held his torso. The Employment Tribunal had found that the Claimant had straddled the naked genitals of the patient, but this had occurred as result of him kicking her in the groin and moving her up.

1. Mr Cooper submits that finding is contrary to the Claimant's evidence as to her position. The Employment Tribunal did not focus upon what material was available to Ms Mackie, and as to whether a reasonable health care professional in the position of Ms Mackie and her panel could form the view, in these circumstances, that the matters put against the Claimant had been found.

1. Secondly, the evidence before the Tribunal was that Ms Mackie found that the comment had been proved. It is common ground, from a concession by Mr Panesar today, that the Employment Tribunal found that the comment had been made. It follows that it was made, as Ms Mackie accepted, while the Claimant was astride the naked genitals of D.

1. The central contention by the Respondent is that this judgment is perverse, in that irrelevant factors were considered, as well as perverse in the traditional sense, indicated by May LJ, "My goodness, that must be wrong" (see Neale v Hereford and Worcester County Council [1986] ICR 471, albeit tempered by the reservation on such robust statements set out by Lord Donaldson MR in Piggott Brothers and Co Ltd v Jackson [1991] IRLR 309 at 312. Mr Cooper contends the irrelevant considerations included attention to Charge Nurse Lee's disciplinary procedure, the invocation of what a large proportion of the population would think, and the conclusion that it would think that the comment was a humorous remark.

1. The inclusion of irrelevant factors is a matter to be considered under the heading of perversity (see Baynton v Saurus General Engineers Ltd [1999] IRLR 604, HHJ Peter Clark and members). Considering what a large proportion of the population would think is, Mr Cooper contends, to smuggle in the Tribunal's own view under the guise of an appeal to the general population. There was no evidence of what the general population would think, nor is there any treatment by the Tribunal of the evidence which was given, all in one direction, that as to both the position of the Claimant, and the making of the comment, was against all relevant professional standards, and a breach of contract contrary to the Code. The Tribunal had wrongly sought to set out a hierarchy of culpability for the events, and had wrongly included Charge Nurse Lee, when the circumstances were not truly analogous.

1. The Respondent had dismissed the Claimant for the principal reason of making the comment, for in her cross-examination Ms Mackie had accepted that a final written warning would have been given for the restraint issue, but she would have dismissed the Claimant in any event for making the comment. The Tribunal had been wrongly infected in its conclusions and had been distracted by comparisons with Charge Nurse Lee. Criticisms were made based upon the approach in London Ambulance Service NHS Trust v Small [2009] IRLR 563 CA, that the Tribunal majority has substituted its opinion for the view of a reasonable management.

1. There were subsidiary issues about the documentation provided to Ms Mackie, and as to the role of Dr Tong and a search for his involvement in the hearing. It was contended this was not identified as an issue and should not have been the subject of condign findings about him, contrary, for example, to the judgment I gave in West London Mental Health NHS Trust v Sarkar UKEAT 0479/08. It is a misdirection for an Employment Tribunal to address itself in terms of the BHS test without noting that the burden of proof had been removed from an employer and was neutral, and that to give an unadulterated BHS direction is a misdirection, unless the matter is rescued by findings elsewhere.

1. If the appeal were dismissed on the grounds of liability, it is contended that the findings as to contribution are so slight, the case must be sent back to the Employment Tribunal for it to consider giving reasons.

1. In a well-ordered skeleton argument, Mr Panesar has put forward a very substantial number of points to rebut those set out in series by the Respondent in its appeal. Mr Panesar reminded us that there is a very high test: before we would allow an appeal on the ground of perversity; an overwhelming case must be made (see Yeboah v Crofton [2002] IRLR 634 CA). He urges a more rigorous and less dogmatic approach to perversity, as indicated by Lord Donaldson MR in Piggott than that of May LJ in Neale.

1. The Tribunal appreciated the evidence and recognised there were gaps in the Respondent's procedure. In particular, Mr Lee gave evidence to the employer, but not to the Tribunal, in relation to where he saw the Claimant. He did not see her astride D's genitals. Mr Panesar points out that this split decision does not indicate any more open gateway for an appellant than a unanimous decision. Indeed, the opposite is often the case. It indicates the considerable care put into the case during debate between the members (see Chief Constable v Kellaway [2000] IRLR 170 EAT).

1. The comparison with Charge Nurse Lee is apt. He was in control of the procedure for restraint and the Claimant was junior to him, and yet he was given a first warning; so she should have had some lesser penalty.

1. It is contended that the reason for dismissal was both of the findings by the Mackie panel, and that the principal reason was not, as now argued, the making of the comment. Mr Panesar argues that it does not bear the sexual meaning found by Ms Mackie, and he introduced an interesting interpretation of it. The Claimant does not now challenge the finding that the comment was made.

1. As to contribution, if the appeal were dismissed, the 20 words uttered by the Tribunal to deal with blameworthy conduct discharge the Tribunal's duty to give reasons for a finding, but if wrong about that, the matter should be remitted to this same Tribunal.

1. We prefer the submissions of the Respondent. We reject the contention that Mr Cooper has sensationalised the facts in this case. They are truly surprising. This is a Judgment of it must be said, "My goodness, that must be wrong". The majority did not focus on the central questions, which are: on the material available to Ms Mackie and including the appeal process, could a reasonable hospital trust have dismissed the Claimant? Was it within the band of reasonable responses?

1. Although the facts here are extreme, the Tribunal's errors, and the outcome, are similar to those we identified in comparable employment in Salford Royal NHS Foundation Trust v Roldan UKEAT0154/09. The Tribunal does not examine critically Ms Mackie's account, with a view to accepting or dismissing it. The reason for dismissal found by the Tribunal was "the conduct of the Claimant". It consisted of the inappropriate restraint and the making of the comment, each part of it being gross misconduct. It is true that the disciplinary inquiry and letter of dismissal spend more time in looking at the restraint issue. But Mr Cooper is right when he cites the answer given by Ms Mackie in cross-examination that she would have dismissed for the comment, regardless of the issue of restraint, for which she would have given a final written warning. That, it seems to us, is a reflection on the fact that there were inadequate policies and training to assist the Claimant in relation to restraint of a difficult patient. That required more attention. More people were actually involved in the restraint; there were four people plus Dr Tong, who was about to inject the patient, and Charge Nurse Lee.

1. There were issues of policy, practice, and patient safety. If the Claimant was on top of the patient, there was a risk of blocking his airways, and a risk to herself. It is understandable that more time was given to that. The response of Ms Mackie was that there was mitigation, as the Tribunal put it, by reason of the failure to have such policies and practices in place. That is simply a reflection on a decision made as to sanction. It was gross misconduct for the Claimant to place herself astride the naked genitals of this patient. It would not be visited with a dismissal, but a final written warning, because of the facts which Ms Mackie had learned.

1. However, the principal reason, in that it was the trigger but for which the Claimant would not have been dismissed, was the comment. It is not only inappropriate, it is of sexual innuendo involving sexual relations with a patient. The Tribunal was wrong to say that it was directed at the Claimant herself. Before Ms Mackie, there was material upon which she could hold that this was demeaning to the dignity of the patient, it was made in a clinical area in front of health care professionals. Members of the public, or the patient's family, might have heard it. It was regarded as a breach of the Code.

1. The question is: could a reasonable employer facing these circumstances have dismissed? These must include the circumstances as found by the management, that is, the words used by the Claimant, what she was doing at the time and where it took place. The facts in both charges against her were upheld. In law, context is everything. Making that remark then and there was gross misconduct as the minority held.

1. We consider the Tribunal has wrongly substituted its opinion of what would have been reasonable. One example will suffice. This is the finding that the remark would be regarded by a large proportion of the population as merely humorous. That is, as Mr Cooper correctly submits, to take account of an irrelevant factor. The relevant standard, of which no account was taken, was how would this comment be treated by a reasonable NHS Trust, and was the decision to dismiss, when it was made, outside the band of responses of a reasonable NHS Trust in those circumstances?

1. In our judgment, they are to be considered by the Employment Tribunal in the light of the material available to the employer. Ms Mackie's evidence was clear and it was very substantially supported by the Tribunal. A reasonable employer could have done as her panel did. On that basis alone, this appeal must be allowed.

1. It is not strictly necessary but since we have had full argument on the secondary matter, we will deal with what Mr Cooper describes in his forceful submissions, very properly made, as "A litany of errors".

1. The first is the misdirection on the burden of proof. This Tribunal had not avoided the error by its correct citation (see 7.3 above), for it continues to place on the employer the burden of proving a reasonable suspicion and belief in guilt. That too, is a misdirection. The way in which it is put is that it complements the Tribunal's error in seeking to impose its own opinion on the proceedings, rather than examining the mind of the Respondent. There are more forceful points, but we do accept that this Tribunal misdirected itself.

1. The second issue is the comparison with Charge Nurse Lee. Their circumstances are not truly similar. The correct approach to parity cases was set out by the Court of Appeal, in Paul v East Surrey District Health Authority [1995] IRLR 305 CA. Beldam LJ said:

"34. 1 consider that all industrial tribunals would be wise to heed the warning of Waterhouse J, giving the judgment of the Employment Appeal Tribunal in Hadjioannou v Coral Casinos Ltd*

[1981] IRLR 352 where, in paragraph 25, he said:*

'We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that industrial tribunals would be wise to scrutinise arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant, and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a tribunal may be led away from a proper consideration of the issues raised by s.57(3) of the Act of 1978. The emphasis in that section is upon the particular circumstances of the individual employee's case. It would be most regrettable if tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation.'

35. I would endorse the guidance that ultimately the question for the employer is whether in the particular case dismissal is a reasonable response to the misconduct proved. If the employer has an established policy applied for similar misconduct, it would not be fair to change the policy without warning. If the employer has no established policy but has on other occasions dealt differently with misconduct properly regarded as similar, fairness demands that he should consider whether in all the circumstances, including the degree of misconduct proved, more serious disciplinary action is justified."

Agreeing, Sir Christopher Slade said:

"39. … in the light of the appeal panel's decision the industrial tribunal was not entitled to investigate the allegedly comparable cases for itself and to make its own findings as to what had actually occurred in those cases and itself to decide whether a comparison between the employer's treatment of the case of Mr Paul and that of the other employees concerned established inequitable treatment for the purposes of s.57(3) of the 1978 Act."

1. The circumstances facing the Respondent in respect of Charge Nurse Lee and the Claimant were not within any of the three categories defined by Beldam LJ. Charge Nurse Lee had been required by Dr Tong to place the patient on a trolley. Although Charge Nurse Lee was in charge of the nursing staff, it followed from the initial requirement of Dr Tong that he was taking orders, at least at that stage, from Dr Tong. Charge Nurse Lee did not apparently control the patient, but even if he did, he did not mount the trolley, sit astride the naked genitals of the patient or make a lewd comment.

1. Whereas those restraint techniques have been acknowledged by Ms Mackie as contributing to mitigation, the lewd comment is unalloyed. The Claimant made it, there was no excuse for it, Ms Mackie regarded it as unprofessional, and Charge Nurse Lee was blameless in that. Whatever hand he may have had in acquiescing in the Claimant's climbing on to the trolley, he had nothing to do with the Claimant's language. Those are very simple distinctions and the reason why the cases are not comparable. And so Charge Nurse Lee is a red herring.

1. The only issue to which he is relevant is whether material he adduced in his hearing could be exculpatory of the Claimant. But we have looked with care at the material which was available, and nothing has been shown to us of assistance to the Claimant. He did not hear the Claimant make the comment, and he did not see the Claimant on the patient's genitals. In those circumstances, the Tribunal has, as part of its thinking and findings, wrongly included a reference and self-direction to Charge Nurse Lee.

1. It has to be said that much of this case could be resolved by examining the evidence given by the Claimant herself. The Tribunal was bound to make a decision in relation to whether the comment was made for the purposes of contributory conduct under Employment Rights Act 1996 s 123. It is accepted now that the comment was made. That, of course, adds weight to Ms Mackie's finding that it was. What it means is a matter of interpretation in the circumstances. Ms Mackie was right.

1. As to whether she was in the position which Ms Mackie identified, that is, deliberately moving on to the patient's naked genitals and holding down his torso, again, the Claimant has not assisted herself. She says she was at all times on his ankles, but the Tribunal makes a finding that the Claimant got there by being kicked into that position. The only evidence came from Ms Onwadi, who indicated that she never saw the Claimant on the patient's genitals nor rise further than his shins. The Claimant, when asked about inherent dangers in the practice she was adopting, indicated that she placed no body weight on the patient, and there was no way that the patient could have pitched her forward. And yet the Tribunal found in her favour, that she was kicked on to his genitals. That too, appears to us to support the position that this was a finding without evidence. In any event, it is digging too deep into the facts, since we have already indicated that the correct test is to look at what was before the dismissing employer, and in the light of the material at the appeal.

1. As to Dr Tong, we agree with Mr Cooper that since this was not an issue identified by the Tribunal, criticism of Dr Tong or of the Respondent's failure to produce him, were not issues for the Tribunal to make decisions about. A criticism of a health care professional, without it being put squarely, should not have been made unless identified as a specific issue: see Sarkar. Notwithstanding that his absence may have been raised at the Tribunal, we pay careful attention to case management directions setting out the territory and the Tribunal has not identified that. There would be unfairness in making criticisms of the Respondent for its non-procurement of Dr Tong when that was not clearly flagged up, nor was the criticism which the Tribunal made of him professionally for failing to put the patient on the floor. There is no challenge to Mr Cooper's contention on instructions that, had that point been made, the evidence from his clients would be that the last place you put a patient like that is on the floor.

1. For those reasons, too, we would reject the submissions made by Mr Panesar, and hold that the majority erred in this case.

1. The issue is now for us to decide, and the options are to send it back to this or a different Tribunal for rehearing, or to decide the matter ourselves or by reference to the minority Judgment.

1. Setting aside the Judgment achieves the outcome the Respondent seeks. If we were to send this matter back and require an Employment Tribunal to focus on the material before Ms Mackie, in our judgment the only conclusion which the Tribunal could come to is that a senior manager in an NHS Trust, in the light of the admissions and findings in respect of the two disciplinary charges, could, within the band of reasonable responses, decide to dismiss.

1. The procedural shortcomings, wrongly described by the Tribunal as substantive, do not overcome the evidence of Ms Mackie that she would have dismissed for the comment, as to which, that no other material could be available. That is a complete answer to the case. The minority Judgment of Mr Sagar is correct. We agree with and uphold it. If we are wrong, we would anyway send the contribution issue back to the same Employment Tribunal as there are inadequate reasons by the majority. The appeal is allowed. Permission to appeal refused [reasons not transcribed].