1. I refer to the parties as the Claimant and Respondent as below. This is the Full Hearing of the Claimant's appeal from a Judgment of the Southampton Employment Tribunal (Employment Judge Salter sitting alone, on 9 and 10 July 2015; "the ET"), sent to the parties on 10 August 2015. Representation before the ET was as it has been before me on this appeal.

1. By its Judgment the ET rejected the Claimant's claim of unfair dismissal. She appeals, contending the ET failed to apply the correct test, laid down in the cases of ILEA v Gravett [1988] IRLR 497 EAT, A v B [2003] IRLR 405 EAT and Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA, or, alternatively, reached a perverse conclusion. The Respondent resists the appeal, essentially relying on the ET's findings and reasoning.

1. The Claimant was employed by the Respondent as a Healthcare Assistant ("HCA") from 11 August 1989 until her summary dismissal on 15 September 2014. Her dismissal related to an incident occurring on her shift overnight on 3-4 February 2014, when a patient complained that the Claimant had been abusive to her and effectively assaulted her when she had asked for a morphine top-up for her pain. The initial complaint was taken by the ward sister, the patient in question having been observed to be very tearful by a doctor on shift during 4 February 2014. It is recorded in a manuscript statement made by the patient as follows:

"I … feel I have to put this complaint in about a member of staff … The staff [member's] name is Barbara. I think she is Polish, with blondish curlyish hair. …"

1. Having described how a doctor had earlier advised that she should ask for bonus morphine for her pain, the patient related what had taken place on 3-4 February 2014:

"Late evening on 3rd February 2014 my morphine ran out again, I told two nurses one small, with dark hair, and one called Barbara, with blonde curlish [sic] hair. I was yet again crying in agony. Both nurses chose to ignore me and ignored my requests of needing pain relief urgently, due to how [severe] the pain was. They chose to do things, that were not urgent, and also started doing tasks, like getting a drink, for other patients who asked after and whilst I was crying in pain asking for pain relief.

They chose to do things instead of deal with my pain. The dark haired nurse came to me after an hour, and told me I had to say please, if I wanted pain [relief], and how she could not just get it and how she would have to go to another ward to get it. I said to her the Doctor promised that [this] would be on stand by and that I would not suffer like I had earlier that day. She said to me "what am I supposed to do about it" I said it was unacceptable, her whole attitude was she [couldn't] care, and was not bothered about me and the pain I was in. After an hour of crying and begging for pain relief, the woman (female) nurs [sic] Barbara came through my curtains that had been pulled around my bed, she moved the side table by my bed, put her hand to my face to cover my mouth and told me to shut up! I said to her I was not going to shut up, and I needed pain relief, and told her the Doctor had promised this would not happen again. Her face she [leant] right up to my face. I told her I would report this, and she said "report it"!

Later on the brown haired nurse came in, finally gave me the morphine. Then she argued with me about the pain [I] said I was in. By this time I was shocked, exhausted and feeling threatened. Not long after the brown haired nurse came and apologised. [Too] little [too] late. Barbara was cold + threatening."

1. Following this complaint, the Claimant was suspended pending an investigation and gave her own response, essentially denying the allegations. There was an investigation meeting with the Claimant in May 2014 and a report produced that referred to her previous employment history and recent other complaints, but did not suggest that any previous disciplinary finding had been made. The report also referenced the patient's other allegations, said to be being dealt with separately. In detailing the investigatory steps undertaken it was stated:

"A statement has been taken from the patient, the other nurses on duty and Barbara [the Claimant].

The other nurses on duty that night knew nothing of this incident. The patient hadn't brought it to their attention, although they were aware that the patient had been in some pain, had been in some discomfort and was dissatisfied with the delay in providing pain relief."

1. Under the heading "Findings and Evaluation", the report continued:

"It has not been possible to cross reference the patient's allegations with any of the other statements.

Taking into account Barbara's previous employment history, which includes two similar complaints from patients, it is probable that this event occurred as described by patient X."

1. Thus it was that disciplinary proceedings were recommended. A disciplinary hearing duly took place on 12 August 2014, conducted by Ms Bull (the Respondent's Deputy Director of Nursing and Midwifery), at which the Claimant was represented by her trade union representative and at which she, continuing to deny the allegations made, suggested that the patient might have been hallucinating. The hearing was adjourned pending further investigations, to include contact with the patient, as well as seeking information concerning opiates and hallucinations. On 28 August 2014 the patient was contacted by telephone and apparently asked whether she was aware whether or not the staff on duty were trained nurses or HCAs, to which she confirmed her understanding that they were all nurses. The disciplinary hearing then reconvened on 3 September 2014, but no decision was reached at that point. Further contact was then made with the patient, this time by Ms Bull herself. It was said that the patient apparently confirmed her earlier statement. No record of that conversation was made, but it was referenced in a subsequent email, in which Ms Bull stated that she had then determined that the Claimant should be dismissed. That decision was communicated to the Claimant by letter of 15 September 2014.

1. The Claimant appealed against the decision, again represented by her trade union. There was an appeal hearing on 11 November 2014, conducted by a Ms Shobbrook (the Respondent's Director of Nursing), and subsequently a further meeting held with the patient, this time in the presence of the Claimant's trade union representative, who was permitted to ask questions on the Claimant's behalf. The Claimant points out that at this stage the patient added to her complaint, specifically now saying that the Claimant - not just the "brown haired nurse" - had told her she would have to say "please" and also alleging:

"… I also saw something terrible that evening. An old lady was sat on a commode for about 4 hours. It was terrible and the same nurses especially the blonde and dark haired ones ignored her."

1. The Claimant observes that these new allegations were not investigated and the appeal hearing was not resumed so she could point out the new discrepancies or seek further investigation. Her appeal was subsequently dismissed by letter of 24 November 2014.

1. The ET was satisfied that the incident of 3-4 February 2014 formed the factual basis for the Claimant's dismissal and the decision thus related to her conduct and was capable of being fair, for the purposes of section 98(1)(b) of the Employment Rights Act 1996 ("ERA").

1. Turning to the question whether the dismissal of the Claimant for that reason was fair, the ET considered first whether the Respondent had carried out a reasonable investigation. It concluded that no witnesses had been identified to the Respondent during the disciplinary hearing who were likely to be able to provide relevant evidence such that a reasonable employer, faced with the Claimant's position that the incident simply did not occur, could have adopted the Respondent's approach: not obtaining additional statements from the doctor, nurses or other patients on the ward at the time (see paragraphs 72 and 73). To the extent that written notes had been taken from investigatory discussions with other nurses and not supplied to the Claimant, that had been an innocent error by the Respondent and did not take the process outside the range of reasonable responses (see paragraph 75). As for the evidence from the patient, the ET considered that the Respondent had three documents setting out the complaint: the original statement; the email record of the telephone conversation; and the notes of the further meeting with the patient at the appeal stage, at which point the Claimant's union representative had the opportunity to ask questions (see paragraph 76). Although the patient had been spoken to after the disciplinary hearing and without putting that further conversation to the Claimant before the decision to dismiss was made, that did not render the decision unfair as: (1) the patient had simply confirmed her earlier account; and (2) that conversation was not taken into account at the appeal stage, at which point the Claimant's trade union representative had the opportunity to ask the patient questions (paragraph 77). The ET was satisfied that the Respondent had investigated the Claimant's suggestion that the patient had been hallucinating, of which there was no evidence, and had regard to the relevant material both before taking the decision to dismiss and at the appeal stage (paragraph 79). Overall, the ET concluded that the Respondent had carried out a reasonable investigation (see paragraph 87).

1. The ET then turned to the question whether the Respondent had reasonable grounds for its belief in the Claimant's misconduct, which included its own investigations and the fact that there were inconsistencies in the Claimant's account. It concluded that it had (see paragraphs 90, 93 and 94). Given the conclusion reached by the Respondent, the ET was further satisfied that the decision to dismiss the Claimant fell within the band of reasonable responses of a reasonable employer in the relevant circumstances.

The Claimant's Case

1. The Claimant submits it was apparent the ET had not had regard to the cases of ILEA, A v B and Roldan; certainly, it failed to apply the test laid down in those cases and/or reached perverse conclusions given the particular circumstances of this case. Specifically, the fact the nurses' statements were not disclosed to the Claimant impacted upon the fairness of the decision (see A v B at paragraph 83), not least as the evidence in question might have indicated whether the nurses overheard any interaction between the patient and the Claimant and/or might have had some relevance to establishing credibility in terms of the patient and her account. Related to that issue of credit, the ET had failed to have regard to the entirety of the original complaint - which had included allegations against others, not just the Claimant - and to the Respondent's failure to investigate the allegations against the other, brown haired, nurse. In similar vein, the ET had failed to give weight to the Respondent's failure to obtain statements from the doctor and other patients on the ward (see A v B at paragraph 79).

1. Further, the ET failed to give weight to the Respondent's failure to carry out a proper interview with the patient before the original decision to dismiss and to obtain notes of the post-disciplinary hearing telephone conversation with her and/or disclose those to the Claimant. In addition, there was a failure to properly test the patient's evidence at the appeal hearing; specifically, there was a failure to investigate her new allegations made at that stage.

1. Lastly, the ET erred at paragraph 92 of its reasoning in permitting that it was within the range of reasonable responses for the Respondent to place reliance on the Claimant's conduct at hearings within the disciplinary and appeal processes when the ET, itself having heard extracts from the recordings of the hearings in question, did not make a finding of conduct going so far as to show that the Claimant was "capable of assaulting and threatening a patient".

The Respondent's Case

1. The Respondent contends the ET made an entirely permissible decision; the appeal represents an attempt to reargue the case below. The ET's self direction on the law was flawless. The failure to refer to specific case law relied on by the Claimant did not give rise to an error of law of itself. Most importantly, the ET kept sight of that which was central, namely the statutory test laid down by section 98(4) (see Anandarajah v Lord Chancellor's Department [1984] IRLR 131 EAT). In any event, the ET referred to receiving the case law at the outset of the hearing (see paragraph 20) and could be taken to have had it in mind. Similarly, it expressly referenced the parties' submissions, which included citations from those cases. Moreover, the language used by the ET reflected that of the case law relied on by the Claimant; specifically, see its appreciation of Roldan at paragraphs 66 to 70 and 99 of its reasoning. If an ET has given itself a correct self direction as to the test it must apply, the EAT should be very slow to assume that it has then failed to apply that test. Ultimately, this was a perversity challenge, and the test that the Claimant had to overcome was a high one (see, for example, Lord Donaldson MR in Piggott Brothers & Co Ltd v Jackson [1991] IRLR 309 CA and Yeboah v Crofton .

1. As for the failure to provide the Claimant with copies of the nurses' statements, the EAT must be mindful of the dangers of re-trying the case (see Retarded Children's Aid Society Ltd v Day [1978] IRLR 128 CA, specifically paragraphs 15 and 17; Jackson; and Yeboah). The Claimant was failing to read the ET's Judgment in the round and to have regard to the unchallenged factual findings, specifically, that the Claimant and the patient were shielded from the rest of the ward behind a curtain and/or that no other staff were present on the ward; and also that the patient had given the name and physical description of the Claimant and neither the patient nor the Claimant suggested that there was anybody else present at the time, something that the Claimant's trade union representative had accepted (see paragraph 72). Further, when the ET made its finding that the failure to provide the nurses' statements to the Claimant did not render the dismissal unfair it can be taken to be making that point broadly, addressing the inconsistencies or credibility point as much as the specific incident involving the Claimant. The ET had seen those statements and had not considered there was any unfairness. In any event, there was no hard and fast rule that statements must be provided (see A v B at paragraph 83). Ultimately, the ET was entitled to conclude that the failure to provide tangential statements was not outside the range of reasonable responses (see paragraph 75 of its reasoning) and in this respect the case was distinguishable from Roldan, where the issue was whether the witness could have seen the incident in question and the failure to investigate that point went to the heart of the allegation. Here, the most that the Claimant could say was that the additional evidence from the nurses might be of peripheral relevance. Moreover, and again in contrast to Roldan, the Claimant's case had shifted. At the disciplinary hearing she suggested that the patient might have been hallucinating; she might not have had the nurses' statements, but she had the patient's statement and could have said the nurses needed to be questioned. Ultimately, the Respondent had been entitled to conclude their evidence would add nothing: if they denied the patient's account, that would still not answer the complaint made against the Claimant.

1. Next the Claimant complained that the ET failed to have regard to the entirety of the original complaint, which included allegations against others, not just the Claimant, and/or to the Respondent's failure to investigate allegations against the other nurse and to the complaint that the ET failed to give weight to the Respondent's failure to obtain statements from the doctor and other patients. First, there was nothing to suggest that the ET did not consider the entirety of the complaint; the mere fact that it did not expressly mention certain parts did not mean to say it did not have them in mind (see Day, paragraph 16). Indeed, it could be said that all of these points on credibility and consistency were addressed by the ET in its reasoning as to the reasonableness of the Respondent's belief (see paragraphs 88 to 95 of its reasoning). Second, it would be wrong to refer to the patient's statement as a complaint against three people when in truth it was a complaint against the Claimant: "I have to put this complaint in about a member of staff … Barbara". Third, the Claimant had to be able to show any alleged omission had led to a consequential error of law or incorrect finding of fact (see Chief Constable of Thames Valley Police v Kellaway ; this was wholly absent. Ultimately, the Claimant was complaining about the weight to be attached to parts of the evidence, but that was for the ET, not the EAT (Eclipse Blinds Ltd v Wright [1992] IRLR 133 CS at paragraph 14; and Chiu v British Aerospace plc [1982] IRLR 56 EAT at paragraphs 16 and 17). In reality, these complaints amounted to attempts to challenge permissible findings by the ET (see its finding that there were no witnesses to the incident involving the Claimant, paragraphs 72 and 73). There was no overwhelming case of perversity.

1. As for what was said to be the Respondent's failure to carry out a proper interview with the patient before the original decision to dismiss. That was not in the list of issues before the ET, but in fact the complainant was interviewed and procedural failings were found by the ET to have been rectified on appeal (paragraph 76). The same was true in respect of the complaint as to the Respondent's failure to obtain notes of the post-disciplinary hearing telephone conversation with the patient and/or to disclose those to the Claimant (see Taylor v OCS Group Ltd . The Claimant also complained there had been a failure to properly test the patient's evidence at the appeal hearing, but that had (1) not been put as an issue before the ET and (2) in any event the ET had regard to all of the evidence and reached a permissible view. The Claimant further contended that the ET failed to have regard to the Respondent's failure to investigate new allegations made by the patient at the appeal hearing, but the suggestion that the Claimant had instructed the patient to say "please" was addressed when the Claimant's trade union representative had the opportunity to ask questions, and whilst the allegation involving another patient, the elderly lady, was new it was not highlighted as such a major issue before the ET, and, in any event, the reasoning could be taken to have addressed this in the round: it had regard to the inconsistencies in the Claimant's own evidence and to the evidence against her and concluded it was reasonable for the Respondent to accept the patient's account (see paragraphs 93 and 94). Lastly, the complaint about the Respondent's reliance on the Claimant's conduct at hearings could go nowhere: the ET heard evidence from the Respondent's witnesses, tested under cross-examination, and, at the Claimant's instigation, tested that further against hearing the recordings and had reached a permissible view.