Appeal No.	EAT/0273/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Sitting at:  CARDIFF CIVIL JUSTICE CENTRE
2 Park Street, CARDIFF CF10 1ET

	At the Tribunal
	On 7 March 2001

Before
THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT) 
MRS R A VICKERS
MR G H WRIGHT MBE

MR MICHAEL ASHLEY T/A CRUSADER MEDICAL CARE	APPELLANT

MRS SUSAN PAMELA HATHERLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR STEVEN DONOGHUE
(of Counsel)
Messrs Hugh James Ford Simey
Martin Evans House
Riverside Court
Avenue de Clichy
Merthyr 
Tydfil CF47 8LD	
For the Respondent	MR WILLIAM STRUTHERS
Solicitor
Royal College of Nursing
Welsh Board
Tymouth
King George V Drive East
Cardiff CF4 4XZ	

 THE HONOURABLE MR JUSTICE LINDSAY (PRESIDENT):

1.	We have before us by way of the full hearing, the appeal of Mr Michael Ashley trading as Crusader Medical Care (although in some of the papers, the Appellant is described as St Alban’s Nursing Home).  It is in the matter of Mrs Susan Pamela Hatherley v Crusader Medical Care.  Today, the Appellant, Crusader, is being represented by Mr Steven Donoghue and Mrs Hatherley by Mr William Struthers.  The chronology of the matter is that on 16 June 1999 Mrs Hatherley presented an IT1 for unfair dismissal and what she called “notice monies”.  She had been employed from December 1996 to June 1999 as a nurse.  She said in her statement in support of the application:

“In March 1999 I had 3 days holiday, on my return home I had a message to ring the Home’s Manager, Mr Reade.  When I rang him he told me that I was suspended on the ground that I had put a patient to bed against his (the patient’s) wishes.  On Friday 17 March I attend a disciplinary meeting with Mr Read, and my RCN representative.  Before I attended the interview I had not received any details about the alleged offences.  At the meeting Mr Reade refused to give details about the alleged offences, would not say which patient was involved and would not say what his evidence was.  Because of this I was not able to defend myself.  At the end of the meeting Mr Reade told me that I was dismissed with immediate effect on the grounds of gross misconduct.”

And she says:

“I consider my dismissal was unfair for the following reasons:

	a)	The Respondent failed to investigate the matter adequately;

b)	The Respondent could not have held a reasonable belief that I was guilty of misconduct on the basis of the enquiries;

c)	The disciplinary enquiry was not procedurally fair as I was not given details of the charges against me;

	d)	The sanction was out of proportion to the alleged offence.”

2.	On 30 June 1999, the Nursing Home lodged its IT3, its Notice of Appearance.  The employer said that previously in, October 1998, Mrs Hatherley was given what was alleged to have been a formal written warning for the same type of offence as that in the current case namely, of her putting a resident to bed against that resident’s wishes.  They said that there had been, on 4 March 1999, yet another such complaint as the present issue.  They said there had been an investigation into it, that the complaint had been held to be well founded and that Mrs Hatherley was told of her dismissal and of the right to appeal.  They said the Respondents had been fair.  On 22 November 1999 and 15 December 1999, there was a hearing at Cardiff.  The Tribunal was under the Chairmanship of Mr G Prichard.  On 18 January, the unanimous decision of the Tribunal was sent to the parties and it was, so far as relevant, that the Applicant was unfairly dismissed.  The Applicant was also wrongfully dismissed, but no separate award was made.  The Respondent was ordered to pay compensation of £2,925.38.  

3.	On 28 February, a notice of appeal was received from Crusader.  On 13 June 2000 there was a preliminary hearing at the Employment Appeal Tribunal and, of the three broad grounds of appeal, two only were permitted to go to the full hearing.  The one that was barred from going further was an allegation as to procedure.  It had been said that the Tribunal had been wrong in the view that the employer had erred in for a time not disclosing to Mrs Hatherley the identity of the patient whom, it was said, had been put to bed against his will.  That leaves two grounds which are open to Mr Donoghue and they are, very broadly speaking, firstly, that the Tribunal had been perverse in substituting its own view for that of the employer in not recognising that the employer believed, and had reason to believe, that there had been an offence amounting to gross misconduct and thus an offence justifying and even requiring summary dismissal.  The second was that there was perversity in that the Tribunal, in the circumstances which the Appellant alleges, should have held there to have been a fair dismissal.

4.	With that background we go to the extended reasons.  At paragraph 3, we find this:

“The reason for dismissal given by the Respondents is misconduct and it is characterised as gross misconduct.  The Applicant is said on 4 March to have put a patient, Mr John McCarthy, in his room to go to bed without his wanting to go to bed at that stage.  The characterisation of this as gross misconduct was actually common ground between the parties or potentially common ground.  In a serious case of directly contravening a patient’s wishes that this would constitute a very serious error of anybody in the nursing profession.  It denies that patient’s fundamental human rights.  The Applicant was quick to admit the importance of the principle involved in this case.”  

The Tribunal then mentioned the nursing home’s inconsistency with respect to this particular type of offence.  They held that Mr Ashley, the manager of the nursing home, had himself previously done something similar without being dismissed.  They held that Mrs Hatherley had had a previous oral warning.  They say:

“Following that, on 10 October 1998, the Applicant was formally warned for the same sort of conduct.”

And a little later they said:

“The Applicant accepts that it was a verbal warning.”

5.	It is impossible, as it seems to us, to develop that in to some material form of inconsistency on the employer’s part as that would require there to have been evidence that someone else who had first received a recent oral warning had not been dismissed on repeating the offence, a matter that is not mentioned by the Tribunal and which we have no reason to suppose was given in evidence.  We thus can attach no weight to inconsistency on the nursing home’s part.  The Tribunal, of course, heard evidence about the events of 4 March 1999.  Something along these lines happened:

“A rather timid patient, Mr McCarthy, when actually being taken out of his wheelchair in his room and put into bed by the care workers who were responsible for that particular task, was found to be distressed and upset.  He said to the care workers that he had not wanted to come up to bed but had wanted to stay downstairs.  He had not gone back down he said as he was frightened of  ‘rocking the boat’ and of getting the care workers into trouble with Mrs Hatherley, ‘who had understood that he wanted to be taken upstairs’.”

6.	That is what the Tribunal held in that respect.  Mr McCarthy, it seems, was asleep by 7.40pm in the evening so the sending to bed, if such it was, was plainly very early.   The Tribunal heard evidence, it seems, from seven witnesses and they gave evidence that Mr McCarthy was very distressed on the day.  It is said by Mr Struthers that the evidence was unimpressive.  What the Tribunal says is this:-

“We cannot wholly discount the evidence that we have heard today and on the previous day of this hearing from Fiona McCourt, Beverley Smith, Zoe Evans and Mr Matthew Reade and three case workers to the effect that Mr McCarthy was very distressed.  We also heard evidence from Mr Vincent Ashley, the manager of the home who subsequently interviewed Mr McCarthy and found him to be very distressed about this very thing.”

So there is a finding that the manager of the home had himself interviewed Mr McCarthy and found him distressed at the event.  The Tribunal then turned to what they held had happened.  They said in their paragraph 7:

“We need to make a finding on the matter.  It may be that Mr McCarthy was asked by the Applicant whether he was ready to go upstairs.  We think it is likely, because the Applicant is quite a strong character and potentially a stern manager both of staff and patients, that this might have been asked in a way in which he felt that he could hardly say ‘no’.

7.	The Tribunal then turned to the procedural consideration which we have touched on earlier, namely whether Mrs Hatherley had known, by the time of the disciplinary hearing and in good time for it, who was the patient of whom it was said that she had sent him unwillingly to bed.  It is difficult to know what to make of this as the Tribunal does make any detailed findings and queries whether the procedure was such as to undermine the employer’s belief.  But the Tribunal does not in terms say that there was a procedural defect which was truly such as to put Mrs Hatherley at a real disadvantage that was not capable of being overcome or was not overcome.  We are left with incomplete findings as to the procedural side of things.  At the disciplinary hearing Mrs Hatherley advanced the case that she had not done anything against Mr McCarthy’s wishes and that he was not upset.  

8.	The Tribunal, as we have seen, indicated that they made findings and they said in their paragraph 9:

“We find as a fact at the hearing that Mr Reade, as is borne out by the Applicant’s evidence and by Mr Richard Jones’s notes of the hearing, did say words to the effect that Mrs Hatherley’s position in the home was untenable.  That is because there was evidence from no less than three staff in written form to the effect that she was guilty of this serious offence and that it was culpable and wrong.  For that reason the Applicant was dismissed forthwith by Mr Reade.  She was paid no notice pay because the offence was thought to be so serious.”

The Tribunal held that the nursing home had a genuine belief in the event of misconduct having occurred.  They said:

“We have no doubt that the reason for dismissal was conduct related and that the Respondent had a genuine belief in it.”

But then they go on:

“But we query whether the belief was a reasonable one in view of the procedure adopted.”

And then they set out the procedural matter that we have touched on.  So the Tribunal queried the procedural side and queried whether the defect on the procedural side undermined the Respondent’s genuine belief that the events of misconduct had occurred and they continued:-

“The flaws were more than merely procedural.  As a matter of substance the Tribunal found that the evidence against the Applicant should have been treated with more care.  All the evidence of the staff against her fundamentally comes back to Mr McCarthy himself because they are all reporting what Mr McCarthy said to them.  The only exception to that is the evidence of Fiona McCourt who said that whilst sitting in the lounge she heard the Applicant not asking Mr McCarthy if he wanted to go upstairs.  It is always difficult proving a negative.  It she heard Mrs Hatherley not asking that means that she should have heard the entire conversation between Mrs Hatherley and Mr McCarthy to know for sure that she had not asked.  We doubt that was the case.  We repeat our finding that we think on the balance of probabilities that she did ask but it may have been perceived by Mr McCarthy as being a request he could hardly refuse.  What was unfair was that Mr Reade dismissed the Applicant because her position had become untenable because her subordinates had unanimously given a very damning account of her conduct.  It would have been hard for them to work together again.  This approach diverted attention away from the evidence itself and was not reasonable.”  

That is the end of paragraph 11.  It is a puzzling passage.  It was not in fact a case where all came back to what Mr McCarthy had said to the staff.  The staff would have been able to observe his distress (if it was observable, that is to say if there really was distress) quite apart from anything that he said.  Seven within the team said that he was distressed.  Mr Ashley, the manager who subsequently interviewed him, found him to be very distressed.

9.	Miss Fiona McCourt’s evidence, that she had heard Mrs Hatherley not asking Mr McCarthy whether he wanted to go upstairs, only makes sense if in response to an allegation by Mrs Hatherley that she had asked Mr McCarthy if he did want to go upstairs.  The Tribunal, of course, as the master of fact, was perfectly entitled to doubt that Fiona McCourt had, indeed, heard the whole of Mrs Hatherley’s conversation with Mr McCarthy.  But what the Tribunal should have been concentrating on is whether the nursing home manager, at the end of the disciplinary hearing, had been furnished with reasonable grounds to dismiss after having conducted a reasonable enquiry and not with what its, the Tribunal’s, own views were on different evidence and at a different time.  It does not follow from the fact that the Tribunal doubted Miss McCourt in November and December 1999 that the nursing home should have done so too in March 1999, on different evidence and at a  different time, or that the nursing home had been unreasonable in failing to doubt her or not investigating further.  The Tribunal is here, as it seems to us, substituting what it would have found to be the facts and as reasons deriving from facts found rather than looking into matters as it should have done.

10.	The Tribunal should have been looking into what was the nursing home’s view in March of 1999, whether that view was supported by evidence then available to the nursing home and whether there had been an adequate enquiry or investigation that had disclosed such evidence.  The Tribunal, in referring to the passage we have quoted that there was evidence from no less than three staff in written form to the effect that Mrs Hatherly was guilty of this serious offence and that it was culpable and wrong does not make it at all clear whether they were discussing evidence as it had been in March of 1999 or evidence as it appeared to them at the hearing in November and December 1999.  This substitution is, as it seems to us, a real error or law.  The Tribunal had looked at what the position was on the evidence before it, but they should have reflected on what the position had been and they should have made findings in respect of what the position had been at the disciplinary hearing.  Three of the staff had written to the effect that Mrs Hatherley was guilty of a serious offence and that what she had done was culpable and wrong.  Whether they had provided those written statements by the time of the disciplinary hearing or not is not a matter on which the Tribunal makes any finding, nor even, if those matters were not by then reduced to writing, whether the staff had indicated that orally.  

11.	The manager, we know, had investigated and found the Mr McCarthy was very distressed.  We know that Mrs Hatherley had been given informal warnings against the same practice earlier.  We know that Mrs Hatherley had been given a formal oral warning against the practice earlier.  We know that it was common ground (or “potentially common ground”, whatever that means) that this type of conduct could be gross misconduct.  It is not clear whether Miss McCourt’s evidence was within the three written statements, even if they were available by the time of the disciplinary hearing, or outside the three written statements, or whether she had given the evidence orally to the management by the time of the disciplinary hearing.  It may be that her evidence that Mr McCarthy had not been asked by Mrs Hatherley whether he wanted to go to bed was a factor that had already come out by the time of the disciplinary hearing.  If it had, there is no investigation by the Tribunal as to whether it should have been or could have been believed by the management when it was then given or should even then have been doubted, as the Tribunal later doubted it.

12.	Whether whatever factor caused the Tribunal to doubt that evidence was already operative in March of 1999 does not appear at all.  The Tribunal should have enquired into whether there had been a reasonable investigation and if there had, whether factors that had emerged from the reasonable investigation were such that the employer was afforded tenable grounds for dismissal, grounds which were actually believed in by management.  The belief, as we have already noted, was found to exist, but instead, the Tribunal asked themselves in effect, whether they believed Miss McCourt and what they thought as to whether Mrs Hatherley had asked Mr McCarthy if he wished to go to bed.  That is an error of law.

13.	The Tribunal proceeded to look at gross misconduct.  They said this:

“We accept the agreed evidence of both sides that this offence is capable of being gross misconduct.”

And they continued:

“However the Respondent has undermined its own case in advance by having previously treated incidents such as this firstly informally and then with a lesser sanction than dismissal.  It is hard for them therefore to say it is gross misconduct.  In our view one of the essentials of gross misconduct is that is should be obvious to an employee that it is gross misconduct.  If it was obvious at the outset that this was a gross misconduct offence it became less so when the Respondent treated it in a lenient way.  The Applicant may have been lulled into a false sense of security.”

14.	Two comments emerge as to that.  There was, so far as we can tell, no evidence that the nursing home had ever treated a repeat of this offence after an earlier warning as other than gross misconduct.  Secondly, no authority is given for the view that misconduct is only gross if the employee knows it is to the point of that being obvious to him.  We are troubled by that; it would make it virtually impossible for a truly obtuse employee to be guilty of gross misconduct as he could always say with some degree of credibility that as, for example, stealing only goods of small value from a rich company would hardly harm the company, then the thief could not be guilty of gross misconduct, or that striking the foreman could not be gross misconduct because, after all, he had had it coming to him.  It is a view, which we could only accept if compelling authority was laid in support of it, and none is given.  Nor was there any finding that Mrs Hatherley was in fact lulled into a false sense of security.  In the absence of that, the point is speculation.

15.	The passages cited seem to be regarded by the Tribunal as steps in the reasoning towards their conclusion.  But, for the reasons we have mentioned they are, as it seems to us, in error and the error is one of law.  Mr Struthers says that this is mere intellectual musing and irrelevant to unfair dismissal but “lulling into a false sense of security” is irrelevant to contract hence irrelevant to wrongful dismissal and so, presumably, the Tribunal were addressing it in relation to unfair dismissal.  We cannot pretend that the passage is not there.  

16.	Next the Tribunal makes the reasonable point that a patient’s wishes and a patient’s best interests may not coincide.  They say:

“We also take into account the Applicant’s argument that in a severe case it could amount to abuse.  We would go further and say only in a severe case is this gross misconduct because one has to be very sure that the nurse is acting against not only the patient’s wishes but also the patient’s interests.  There will be cases where the two do not coincide and every case is potentially debatable on its facts.  This case is such.”

But there is no hint anywhere of any conflict between Mr McCarthy’s wishes and his best interests, either in the medical context or any other context.  The Tribunal had said:

“We accept that Mr McCarthy was asleep by 7.40pm whereas in the past he has sometimes been downstairs and still very much awake at  that sort of time.”

No medical ground appears why on 4 March 1999 he needed, in his own best interest, on medical or other grounds, to be sent to bed before 7.40pm.  So far as can be told, the conflict between wish and interest, which the Tribunal held existed when they said:

 “This case is such”,

was without any foundation at all in the evidence.  Again Mr Struthers invites us to say that the passage is obiter but, there it is.  We cannot pretend it is not there.  The Tribunal seem to regard it as a stage in their reasoning.  That too, as it seems to us, represents error of law.

17.	In the circumstances, we must allow the appeal and set aside the decision.  However whilst we recognise that this will disappoint both sides, we are not in the position to say that the only possible reasonable finding would have been or could have been that the dismissal was fair.  The story that emerges from the Tribunal’s extended reasons is not sufficiently clear to give us confidence that that was the only proper conclusion.  Accordingly, we remit the matter, but to a different Tribunal than before.