Appeal No. EAT/1189/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 7 December 2001

Before
HIS HONOUR JUDGE D M LEVY QC
MR S M SPRINGER MBE
MR K M YOUNG CBE

ASHWORTH HOSPITAL AUTHORITY	APPELLANTS

MRS D ROE	RESPONDENT

Transcript of Proceedings

JUDGMENT

______________________________________________________________________________

	APPEARANCES

For the Appellants	MR TIMOTHY PIT-PAYNE
(of Counsel)
Instructed By:
Messrs Mace & Jones
Solicitors
19 Water Street
Liverpool
L2 ORP	

For the Respondent	
MR KEVIN McNERNEY
(Representative)
Regional Legal Officer
Royal College of Nursing
Raven House
81 Clarendon Road
Leeds
LS2 9PJ

JUDGE D M LEVY QC:

1.	This is an appeal from a decision of an Employment Tribunal sitting in Liverpool on 13 and 14 March 2000 and 2 May 2000.  The Tribunal considered a claim of unfair dismissal brought by Mrs Deborah Roe (“the Respondent”).  She had been summarily dismissed from her employment as a nurse at Ashworth Hospital by Ashworth Hospital Authority (“the Appellant”) on 20 September 1999.

2.	The Tribunal found that the dismissal was unfair but that there was contributory fault on the part of the Respondent.  The decision was promulgated on 10 August 2000.  The Extended Reasons do not show the representation at the hearing below.  We were told that a member of the Union represented the Respondent and a solicitor represented the Appellant.  We understand that after the hearing, written submissions were sent to the Tribunal on which there were no oral arguments.  In this appeal, Counsel have ably represented the two sides.  In essence, Mr Pitt-Payne on behalf of the Appellant, submits that the Tribunal applied the wrong test as to whether the dismissal was unfair and came to the wrong decision.  Mr McNerney contends that the decision applied, perhaps not very clearly, the right test but, at any rate, the decision was right.

3.	The relevant facts are hardly in dispute.  The Authority is the legal entity responsible for running Ashworth Special Hospital and for employing the staff who work there.  It is one of three special hospitals in England.  The others are at Broadmoor and Rampton.  Statutory authority of the existence of the special hospitals is provided by section 4 of the National Health Service Act 1977.  Under this Act it is the duty of the Secretary of State for Health to:-

“Provide and maintain establishments (in this Act referred to as“special hospitals”) for persons subject to detention under the Mental Health Act 1983 who in his opinion require treatment under conditions of special security on account of their dangerous, violent or criminal propensities.”

4.	The Tribunal did not give a detailed account of the hospital’s work, which it took to be well known.  It accepted it was an establishment which:-

“by reasons of those it has responsibility for is bound to be subject to rules and procedures of a kind which would not be applicable elsewhere.”

Some, though not all, of the patients at Ashworth suffer from  personality disorder.  The Tribunal in this case had detailed evidence from Mr Peter Melia, the Acting Clinical Governance Manager of the Appellant, about the special difficulties faced by those who work with such patients.  In the summary of that evidence, the Employment Tribunal said:-

“Particular emphasis was placed upon the exploitative nature of such patients and a need, therefore, for clear boundaries to be established between staff and patients suffering from this particular type of disorder.  Mr Melia expressed the view that “if a member of staff becomes a friend of a personality disorder patient this is the first stage of a two-way collusive relationship which the patient will almost inevitably seek to exploit”.”

5.	The circumstances of the Respondent’s dismissal are likewise not in dispute.  They are found in the findings of fact set out in numbered subparagraphs of paragraph 7 of the Extended Reasons.  The material facts were these.  The Respondent was a registered nurse.  She was absent from her work with the Appellant through ill-health from 22 March 1999 onwards.  The events which led to her dismissal on 7 June 1999 took place during that period of absence.  She had maintained contacts with colleagues and learned that a patient, referred to in the Extended Reasons as “GW”, was to go on approved leave of absence to Southport.  He was a man of 65 years of age.  The reason for his detention was sexual offences of a serious nature.  He was suffering from a personality disorder.  An approved leave of absence entails a detailed procedure including a Home Office permission with a risk assessment of the visit and firm arrangements of what is to take place during the day.  There are two documents which we have seen, one the detailed procedure and the other the contract for leave of absence request by the patient.  On the day in question which was 7 June 1999, GW’s birthday, a trip to Southport was proposed on which he was accompanied by two escorts, a staff nurse, Joan Hull and a nursing assistant, Paul Carr.

6.	On that day, the Respondent met GW and his escorts in Southport.  The Tribunal accepted that the meeting took place with forethought and not accidentally.  The Respondent gave GW a birthday card and a present consisting of a T-shirt bearing the legend “Alcatraz Psycho Ward Out Patient”.  

7.	The Appellant heard of the meeting.  On 25 June 1999, Mr Harrop wrote on its behalf to the Respondent stating that an investigation would be necessary of six allegations of misconduct which it was suggested had arisen out of the events of 7 June.  They were:-

“1.	Whilst off duty and without authorisation you, with forethought, joined the team escorting patient GW on a rehabilitation trip to Southport on 7 June 1999.

2.	Without regard for the L.O.A. Procedures, you knowingly encouraged the escorting staff to deviate from the itinerary thereby risking a breach of security and safety.

3.	In breach of Hospital Procedure you gave a patient a gift and a birthday card whilst on the escort trip.

4.	You knowingly compromised the integrity of patient GW and his relationship with his responsible clinical team by advising him to lie with regard to how he came by the gift and the card to protect your self interest.

5.	You requested that the escorting staff bring food into the hospital for your husband, thus demonstrating a complete disregard for the importance of the escorting role.

6.	By your actions, as outlined above, you knowingly compromised the integrity of the escorting staff.”
8.	The investigation which Mr Harrop had anticipated followed.  The Tribunal in its findings stated that it took no issue with the diligence and thoroughness with which that investigation was conducted and that a great deal of time and effort was obviously expended on the process.  

9.	Following the investigation, on 15 September 1999 there was a disciplinary hearing at which the six allegations which we have set out were considered.  The hearing concluded that allegations 1, 2, 3, 5 and 6 were found to be proven and that allegations 1,2 3 and 6 represented gross misconduct.  They recommended that the Respondent should be dismissed with effect from 20 September 1999.  There was an appeal hearing on 4 November 1999 from that decision, the decision to dismiss was upheld.  We have been shown the notes of the Appellant hearing.  From those notes it is clear that it was not the guilt of the Respondent which was essentially in dispute but what was the appropriate penalty for it.

10.	The last numbered paragraph of the Extended Reasons is paragraph 8.  It runs for some three pages in unnumbered paragraphs.  The opening words are:-

“Applying the relevant law to the above facts the findings of the Tribunal are as follows.”

The Tribunal then in the Extended Reasons set out the law as they understood it and then applied their understanding of the law to the facts to reach their conclusion.  It is right that at the time the Tribunal was considering its decision, the case law as to unfair dismissal cases involving misconduct, was in a state of some uncertainty following the decision of the EAT in Haddon v Van den Bergh Foods Ltd [1999] ICR 1150.  It was trite law that in deciding whether a dismissal for conduct was fair or unfair an Employment Tribunal had to ask itself whether dismissal was within the band of reasonable responses open to a reasonable employer.  That test had been set out by the Employment Appeal Tribunal in a judgment of a panel headed by Browne-Wilkinson J in Iceland Frozen Foods Ltd v Jones [1983] ICR 17.  In Haddon, the EAT purported to discard that test.  In Midland Bank PLC v Madden [2000] IRLR 288 in a judgment given by a panel headed by Lindsay J, the EAT recognise the conflict between Haddon and the earlier authority and indicated that the least violence to existing precedent would be caused if that test, although a determinative one, was always accompanied as Haddon suggested, by a reminder of the words of the Statute.  The Tribunal in its judgment set out the headnote in the Madden case but do not appear from the judgment to have considered the text of it itself.  The uncertainty provoked by the decisions in Haddon and Madden have since been resolved by a decision of the Court of Appeal in Foley v Post Office [2000] ICR 1283.  There, the Court of Appeal reaffirmed the range of reasonable responses test.  As we have said, the present case was decided before the decision in Foley but it is in the light of the decision in Foley that we really have to consider what is the appropriate approach.

11.	Foley certainly re-affirms that the first question to be asked is whether the employer has established that the reason for dismissal was a reason related to his conduct within the meaning of section 98 (2)(b) of the Employment Rights Act 1996.  “Reason for dismissal” in this context means a set of facts known to the employer or a set of beliefs held by it which causes it to dismiss the employee, see Foley at 1290 E to F.

Secondly, if the employer satisfies this requirement, the Tribunal must go on to assess whether the employer has established reasonable grounds for its belief that the employee was guilty of misconduct and whether it had carried out as much investigation into the matter as was reasonable in all the circumstances, see Foley at 1291 B to C.  These matters relate to the reasonableness of the dismissal and not to establishing what was the reason for the dismissal, see Foley at 1288 A to B.

Thirdly, in assessing whether a decision to dismiss was reasonable or unreasonable, the “band or range of reasonable responses” approach remains binding on Employment Tribunals, see Foley at 1287 E to H.  Members of the Tribunal must not consider whether they personally think the dismissal is fair and must not substitute their decision as to what was the right course to adopt for that of the employer.  Their proper function is to determine whether the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted, see Foley 1292 H to 1293 A.

12.	Turning to the facts of this case, so far as reason for dismissal is concerned, the Appellant’s case was that the Respondent was dismissed because it believed that four allegations considered at the disciplinary hearing had been made out.  The Employment Tribunal clearly accepted (1) that the Appellant believed that the Respondent had been guilty of the relevant misconduct and (2) that that belief was the reason for her dismissal.  It did not suggest otherwise.  As to the fairness of the decision, the Employment Tribunal made it plain that it thought a reasonable investigation had been carried out.  That appears from subparagraph 9 of paragraph 7.  It also clearly accepted that the Appellant had reasonable grounds for its belief that the Respondent had been guilty of the relevant misconduct.  It did not suggest otherwise, indeed, because of its finding of contributory fault it must have shared the belief that the Respondent had been guilty of misconduct.

13.	In our judgment, this is not really a case where there was any dispute as to what the Respondent had done or, indeed, as to whether it was wrong.  The question for decision was whether the penalty imposed by the Appellant for such misconduct was within the range of reasonable responses of an employer.  In the final sections of paragraph 8 the Tribunal seems to be considering whether dismissal was so harsh a penalty as to render the decision unfair.  We take the last lines on page 10 of the Employment Tribunal’s judgment:-

“The ultimate question to be asked, was the decision to dismiss a reasonable one?  Our considered view in the light of the above observations is that it was not.”

The Extended Reasons then discuss contributory conduct of the Appellant.  That paragraph commenced with the words:-

“Our ultimate concern is with the penalty, the penalty of dismissal which was imposed.”

14.	Mr Pitt-Payne has submitted to us that this is precisely the sort of situation that the range of reasonable responses test was designed to address.  There was a range of responses open to an employer faced with the Respondent’s conduct.  The Employment Tribunal listed some of the possible responses; suspension, demotion and transfer to another working area.  The issue was whether the range of responses, assuming it to be confined to reasonable responses, extended so far as dismissal.  Mr Pitt-Payne submitted that the Employment Tribunal did not apply that test.  They did refer to the headnote in Madden but in the final paragraph the Tribunal does not refer to the band or range of responses at all but merely states that the ultimate question to be asked was, was the decision to dismiss a reasonable one?

15.	Mr Pitt-Payne submits that if the Tribunal had had the advantage of reading the decision in Foley, it would not have been able to and would not have come to the view which they reached.  He submits that if they looked at the substance of the decision and not merely its language, the Tribunal was taking its own view as to whether or not it would have dismissed the Respondent and substituting that view for the view taken by the employer.  It took on itself to balance, on the one hand, the Respondent’s unauthorised intervention in the arrangements made for the outing and, on the other, her length of service and work record.  They treated the Appellant as a large institutionalised organisation in which management had become blinkered by their own narrow area of expertise.  It condemned the weight given to the previous incidents to which it had referred, indicating a propensity for the Respondent not to comply with procedures strictly.  In all of this, the Tribunal was essentially asking itself, “ what would we have done if we had been in the employer’s position?”  He submitted that the Tribunal was undoubtedly influenced by the rejection of the range of reasonable responses test in Haddon and by the partial acceptance in Madden of the criticisms directed to that case.  We think all those submissions are right.

16.	By contrast, Mr McNerney has submitted that if we consider the judgment in the round, the Tribunal was asking the question which was the one which ought to be understood to be applied prior to the decision in Haddon and the Tribunal did have in mind whether the dismissal was within the bands of reasonable responses open to a reasonable employer.

17.	We cannot accept that submission.  In our judgment, possibly because of the disorder in which the law was in at the time, the Tribunal did not ask the right question and, possibly as a result, did not come to a right conclusion.  What remains is what should be done in the circumstances.  

18.	Mr Pitt-Payne has submitted that the right answer for us is to quash the decision and substitute one of our own that the dismissal was fair.  In that connection he referred us to an unreported judgment from Scotland, Murray v Common Services Agency. The best reference we have is EAT/1224/00 and we understand the Appeal was heard in Edinburgh on 24 April 2001, that is after the decision of the Court of Appeal in Foley.

19.	In our judgment, bearing in mind proportionality, and the answer to the question which should have been posed which we think is clear, it would be right in the circumstances of this case for us to quash the decision and substitute a finding that the Respondent was fairly dismissed.  No one who has read all these papers cannot but have some sympathy for her but rules of an authority, certainly of an authority such as the Appellant and in circumstances such as those under consideration, have got to be observed.  The Respondent appears knowingly to have contravened them.  Despite her valuable services to the Appellant, in our judgment its response to her breaches of the rules was not one with which an Employment Tribunal should have concluded was unfair.

20.	In the circumstances we allow this appeal.