Appeal No.	 EAT/353/98

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On  1 May 1998

Before
HIS HONOUR JUDGE PETER CLARK
MR E HAMMOND OBE
MRS D M PALMER

MR C WEYMOUTH t/a SUTTON MILL RESIDENTIAL HOME	APPELLANT

MISS E CROWLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING - EX PARTE

Revised

	APPEARANCES

For the Appellant	MR A DIAMOND
(Representative)
Peninsula Business Services Ltd
Stamford House
361/365 Chapel Street
Manchester
M3 5JY	

	JUDGE PETER CLARK:	This is an appeal by the employer, Mr C Weymouth t/a Sutton Mill Residential Home, against a decision of the Norwich Industrial Tribunal sitting on 5th January 1997 that the employee, Miss Crowley was unfairly dismissed. The tribunal went on to find that a deduction of 25% should be made from the resulting compensatory award, but that no such deduction should be made from the basic award in respect of Miss Crowley’s contribution to her own dismissal. That distinction is challenged in this appeal and although as a matter of law it is open to the Industrial Tribunal to differentiate between the two awards when assessing contributory fault we note that the respondent employee, through her solicitors’ letter to this tribunal dated 27th April 1998, does not seek to uphold the distinction drawn in this case, and concedes that the basic award should also have been reduced by 25%.

	Turning to the appeal on primary liability, the tribunal found that the respondent, who had been summarily dismissed for gross misconduct from  her employment as a care assistant at the appellant’s residential care home, was dismissed by reason of her conduct, following a reasonable investigation and that the appellant genuinely believed that the misconduct had taken place; however, the tribunal went on to find that the appellant’s conclusion that the respondent was guilty of gross misconduct was not justified by the evidence, and that a reasonable employer would have felt that disciplinary action short of dismissal would have been more appropriate.

	Having listened to the submissions of Mr Diamond on behalf of the appellant, we have come to the conclusion that the appeal against unfair dismissal ought to proceed to a full hearing on the following points:

(1)	did the Industrial Tribunal substitute its own view of the evidence before the appellant for that of management. See Iceland Frozen Foods v Jones [1983] ICR 17.

(2)	did the Industrial Tribunal confuse the question of conduct for the purposes of the unfair dismissal legislation with the concept of wrongful dismissal in a breach of contract claim.

(3)	did the Industrial Tribunal misdirect itself in law by considering what a reasonable employer would do in the circumstances, rather than to apply the range of reasonable responses test, recently affirmed by the Court of Appeal, that is to say, if one reasonable employer would dismiss and another not, the dismissal will nevertheless be fair as falling within the range.

	On those grounds we allow the matter to proceed.

	Mr Diamond has advanced a further ground of appeal under the heading of public policy. He submits that any inappropriate handling of patients by care assistants in residential homes for the elderly ought to be regarded so seriously that if dismissal follows it must inevitably be fair as a matter of public policy.

	We reject that bold proposition. In our judgment it will always be a matter of fact and degree for an Industrial Tribunal to determine whether or not dismissal for such a reason is reasonable in all the circumstances.

	The case will be listed for a full hearing marked for half a day. Category C. There will be exchange of skeleton arguments between the parties, copies to be lodged with this tribunal not less than 14 days before the date fixed for the full appeal hearing. There are no further directions, save for this; it will be for the full Appeal Tribunal to determine whether or not, should the matter arise, that the appeal against the finding of no deduction for contribution against the basic award be set aside and a finding of 25% contribution be substituted. It is not our practice to allow appeals in whole or in part by consent without the matter first being considered independently by this Appeal Tribunal. See EAT Practice Direction paragraph 13(4).