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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Henly Homes Ltd v. Simmons [2001] UKEAT 1472_00_2603 (26 March 2001) URL: http://www.bailii.org/uk/cases/UKEAT/2001/1472_00_2603.html Cite as: [2001] UKEAT 1472_00_2603, [2001] UKEAT 1472__2603

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APPEARANCES

 

For the Appellant	MR M WEST (Advocacy Manager) Peninsula Business Services Ltd Riverside New Bailey Street Manchester M3 5PB


 


JUDGE PETER CLARK

1. This is an employer's appeal against a decision of the Truro Employment Tribunal, promulgated with extended reasons on 10 October 2000, upholding the employee, Mrs Simmons' complaint of unfair dismissal and awarding her compensation of £14,374. It may be significant in the context of this appeal that the hearing before the Tribunal took place on 28 July 2000 when, we are told by Mr West, the Tribunal delivered its oral judgement on the case.
2. The facts, briefly, are that the Applicant was employed by the Respondent, Henly Homes Limited as an Enrolled Nurse at the Holywell Bay Nursing Home. At the home were patients with mental disabilities. One such patient then aged 70, who had been institutionalised since the age of 12, was known to be difficult and violent.
3. On 29 August 1999 an incident occurred during which the patient wrapped herself around the Applicant's legs and bit her firmly on the right calf, causing significant injury. As a result the Applicant summoned assistance and with others succeeded in moving the patient from the lounge to her bedroom. The patient sustained some friction burns. The Applicant did not report the incident, not the injury to herself, taking the view that it was all in a days work with this patient. The Respondent took a different view when they learned of the matter. They carried out an investigation which included interviewing and taking statements from the Applicant and the care assistants involved in the episode. As a result the Applicant was summarily dismissed. A subsequent internal appeal failed.
4. The Tribunal found that the reason for dismissal related to the Applicant's conduct, a potentially fair reason. They then turned to consider the application of Section 98(4) of The Employment Rights Act 1996 . Their findings on this aspect of the case are set out at paragraph 11 of the extended reasons. They found that an investigation was carried out but it was inadequate to found a reasonable belief that misconduct had taken place. They found that the Respondent concentrated on the written statements of the Applicant and the care assistants and failed to understand the circumstances in which she and her colleagues were working at the time. They found that it was unreasonable for the Respondent to conclude that the Applicant had committed an act of gross misconduct. The dismissal was unfair.
5. We have mentioned the date of this hearing. Three days later the Court of Appeal delivered their judgement in the case of Post Office v Foley; HSBC v Madden (2000) IRLR 827, expressly disapproving certain observations made by Mr Justice Morison, then President in Hadden v van Den Burgh Foods Ltd (1999) IRLR 672 see particularly, per Lord Justice Mummery at paragraph 9. Although Hadden is not mentioned in this Tribunal's reasons, we think it is arguable, as Mr West submits, that this Tribunal fell into error by substituting their own judgement on the facts of the case for that of the employer, following the approach of Mr Justice Morison in Hadden, paragraph 24. If so, they fell into error in the light of the subsequent Court of Appeal judgement in Foley. Alternatively, submits Mr West, they have not made clear in their reasons what approach in law they did take. See Meek v Birmingham City Council (1987) IRLR 250.
6. In these circumstances we shall allow the matter to proceed to a Full Hearing. It will be listed for half a day, category B. There will be exchange of skeleton arguments between the parties not less than 14 days before the date fixed for the full appeal hearing. Copies of the skeleton arguments are to be lodged with this Tribunal at the same time. There are no further directions, in particular, this is not a case in which Chairman's notes of evidence are necessary.