Appeal No. UKEAT/0891/04/DA & UKEAT/0892/04/

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 11 March 2005
Judgment delivered on 9 May 2005

Before
HER HONOUR JUDGE WAKEFIELD
MR R LYONS
MR J MALLENDER

MR M L ADETUNJI	APPELLANT

CYGNET HEALTHCARE LTD	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR J BRYANT
(Of Counsel)
Instructed by:
Messrs Owoyele Dada & Co
Solicitors
Suite 336
99-103 Lomond Grove
London
SE5 7HN	
For the Respondent	MR D PRESTON
(Of Counsel)
Instructed by:
Messrs Brooke North
Solicitors
Crown House
Gt George Street
Leeds
LS1 3BR	

SUMMARY

Practice and Procedure and Race Discrimination

Issues as to extent of fact-finding role of Employment Tribunal and as to hypothetical comparator at various stages of events.

HER HONOUR JUDGE WAKEFIELD

1.	This Decision concerns two appeals by Mr Larry Adetunji against respectively a decision of an Employment Tribunal sitting at Stratford by which his complaints of race discrimination and unfair dismissal were dismissed and a Decision of the same Tribunal by which he was ordered to pay to the Respondent, Cygnet Health Care Ltd the sum of £10,000 which represented part of the costs of defending the complaints on the merits.

2.	The background facts are very fully set out in the Decision sent to the parties with Extended Reasons on 10 May 2004 following a four day hearing on the merits of the complaints in the previous month.  For the purposes of this appeal, those facts may be brought more briefly stated:

(i)	The Appellant, who is Nigerian by origin, commenced employment with the Respondent on 20 September 1999 as a Nursing Support Worker.  Many of his fellow employees were Zimbabwean.
(ii)	On 20 July 2002 the Appellant was sent home early from work in consequence of which he made a formal objection to the Respondent but did not complain of race discrimination or victimisation;

(iii)	On 21 July 2002, a patient on the intensive care ward where the Appellant was working assaulted a nurse.  The alarm was activated and the Appellant and other nurses attended the patient to ensure no repetitions.  Two of those nurses, one being Zimbabwean, subsequently claimed to have seen the Appellant slapping or hitting the patient around the head in the course of these events.  Only one of these nurses initially reported the matter to a line manager and the Appellant was in consequence spoken to by the manager but told that no formal complaint was being pursued and that the matter would be taken no further;

(iv)	However, the Appellant subsequently requested that the allegations of assault be further investigated, his intention in so doing being to make a complaint against his accusers so that action would be taken against them;

(v)	In the event, the matter was reported higher up the management line, the Appellant was suspended from duty, meetings and investigations took place and finally there was a disciplinary hearing at the conclusion of which on 17 October 2002 the Appellant was dismissed for gross misconduct, that being an assault on a patient;

(vi)	An internal appeal was unsuccessful.  

3.	Before the Employment tribunal, the Appellant’s complaint of race discrimination was put on the basis that as a Nigerian he had been less favourably treated than would be fellow employees who were Zimbabweans.  The sending home from his shift on 20 July, the failure to deal properly with the ensuing grievance, the making of false accusations against him by fellow employees and his subsequent dismissal on the basis of those accusations were all relied on as examples of less favourable treatment.  

4.	So far as the complaint of unfair dismissal was concerned, the Appellant alleged that the pre dismissal investigation was not reasonable nor fairly conducted and that the appeal hearing was merely a review of the earlier decision which did not remedy the defects the disciplinary procedure.

5.	The Employment Tribunal concluded on the complaint of race discrimination as follows in paragraphs 35 and 36 of the Extended Reasons:
“35     Dealing firstly with the Applicant’s claim in race discrimination, the Applicant has never pointed to an actual comparator.  A hypothetical comparator must be someone who is not Nigerian who was accused of assaulting a patient.  The Applicant does not, in the Tribunal’s view, even establish a prima facie case and establish primary facts from which inferences could be drawn by the Tribunal.  His claim therefore in race discrimination must fail.  He relies on the incident on 20 July and just before when his shift was cancelled and he was subsequently sent home.  There is nothing in his own written grievance about the incident to do with race.  The Tribunal is satisfied, as already stated, that that grievance about that grievance was dealt with informally by his line manager.
36     Regarding the dismissal itself, the Applicant has not shown in any way whatsoever that he was treated less favourably than any actual comparator.  He has not satisfied the Tribunal that a hypothetical comparator, namely a non Nigerian (or Zimbabwean) allegedly involved in assaulting a patient would have been treated any differently by this Respondent.”

6.	So far as the complaint of unfair dismissal was concerned the Tribunal said in their paragraphs 37 – 40 of those Reasons:
“37 With regard to the claim for unfair dismissal it is for the Respondent to show the reason for the dismissal and that it was a potentially fair reason with in the legislation. The Respondent relies on the Applicant's conduct in assaulting the patient ME. The Tribunal must be satisfied that it had a genuine belief on reasonable grounds for that view. The Tribunal finds that it does. The Respondent had two witnesses who had provided statements confirming that they were in the room and saw the Applicant slap the patient. There was no evidence to support the allegation made by the Applicant that the investigation was in any way racially motivated. 
38 The Respondent must also satisfy the Tribunal that its genuine belief on reasonable grounds was formed after a thorough and reasonable investigation. The Tribunal finds that it did conduct a reasonable investigation. As stated, the Respondent had the two Witness Statements and also Witness Statements from the people from Hooper Ward who attended to restrain the patient. Two Preliminary Meetings were conducted with the Applicant at which he was given every opportunity .to state his case, as he was at the Disciplinary Hearing. The Applicant makes a lot of the fact that there was a failure to take a Witness Statement from Lucy and indeed obtained a Witness Order for her presence at the Tribunal to give evidence. This the Tribunal is satisfied does not go to the issues that it has to determine because it is quite clear and Lucy herself accepted in cross-examination, that she could not have witnessed what happened in the patient's room. It was never claimed by the Applicant until these proceedings that he attended to Lucy before he went into the patient's room, and certainly never alleged by him that he took her to the Nurses' Station. A lot has also been made of the fact that the patient was not questioned further and as already indicated at the outset of this decision the Tribunal refused an application for the release of the patient's notes. The Tribunal accepts that it was reasonable for the Respondent to accept that the patient could not remember what had occurred. As Mr Hoare emphasised, the Respondent had a duty of care to the patient and the Tribunal is satisfied that it would not have been reasonable nor appropriate to question the patient further.
39 There was we find a thorough appeal in this case. This appeal has been described by the Applicant's representative as "merely a review"; by the Respondent as a "complete re-hearing" the Tribunal would rather place the type of appeal somewhere in the middle. It was certainly an extremely thorough review although not a full rehearing. Mr Hoare was at great pains to examine each and every allegation raised by the Applicant and to satisfy himself that the matter had been thoroughly investigated and every concern raised by the Applicant covered. 
40 The Tribunal must also be satisfied that the decision to dismiss the Applicant was within the band of reasonable responses. It is not for this Tribunal to substitute for the decision of the employer what it would have done. There is not doubt to this Tribunal that an assault on a patient must justify summary dismissal. It therefore follows that the decision to dismiss was clearly within the band of reasonable responses. It follows from that conclusion that the Applicant's claim in unfair dismissal must also fail.”

7.	Both heads of complaint were therefore dismissed.  

8.	When the Notice of Appeal was first considered in this Employment Appeal Tribunal, no arguable point of law was identified.  At a subsequent oral hearing before a Judge sitting alone where that initial conclusion was further considered, the Appellant was given leave to amend the Notice of Appeal to include as further grounds that the Employment Tribunal:

“(i)	Erred in law in restricting the hypothetical comparator to a person not Nigerian who is accused of assaulting a patient 
(ii)	Erred in law in failing to make primary findings of fact concerning the allegations of assault, whether they were malicious, whether they were made on racial grounds and whether they were made in the course of employment
(iii)	Erred in law in concluding that no prima facie case had been raised.”

9.	Also in consequence of that hearing the Employment Tribunal was requested to clarify whether:

“(i)	They made any primary findings of fact as to what occurred on 21 July and as to the truth of a motive for the allegations of assault made against the Appellant;
(ii)	If they did not make primary findings of fact, why they did not?
...”

10.	In response to that request the Employment Tribunal has, by a letter dated 31 January 2005, stated:
“The Tribunal did not make any primary findings of fact as to what occurred on 21 July 2002 as it did not consider that it was necessary for a determination of the issues to do so.  In this respect the Tribunal was influenced by Qureshi -v- Victoria University of Manchester [2001] ICR 863 and other such authorities which have made clear that the Tribunal has to decide out of all of the factual information given what is directly relevant to the decision which it has to make.  It did not consider it necessary for the purposes of this decision to determine whether or not an assault of the patient had actually occurred.
With regard however to the truth of a motive for the allegations of assault made against the Appellant, the Tribunal would respectfully refer to the concluding sentence of paragraph 37 of the decision in which it was stated:
“There was no evidence to support the allegation made by the Applicant that the investigation was in any way racially motivated.””
The Tribunal therefore considers that it did consider the motivation and that a conclusion was reached.
3.     With regard to the clarification of the issues in this case generally, I have been reminded from an examination of my notes of the hearing that the Tribunal was somewhat hampered by the relatively poor quality of representation advanced on behalf of the Claimant.” 

11.	In oral submissions today, Counsel for the Appellant (who did not appear below) has largely concentrated on the three grounds of appeal added by the amendment already referred to.

12.	We have been persuaded that in order properly to determine the allegation of race discrimination based on what the Appellant said were false and racially motivated accusations of assault made against him by the two nurses, it was necessary for the Employment Tribunal to make primary findings of fact as to the truth of those accusations and as to the motivation of the accusers.  Their failure so to do was therefore an error of law.

13.	We have also been persuaded that when considering whether the Appellant had been discriminated against on racial grounds by the making of false accusations the appropriate hypothetical comparator was a Zimbabwean employed at the clinic.

14.	It is clear that this Employment Tribunal, clearly not greatly assisted by the then representative of the Appellant, fell into the error of confusing the appropriate comparator for this stage of their enquiry without for the latest stage, when they were asking whether the Respondent, in investigating the accusations, were treating the Appellant differently on grounds of race.

15.	These findings are sufficient for our conclusion that this appeal must be allowed, that the decisions of the Employment Tribunal both as to the merits and, as in inevitable consequence, that on costs, must be set aside and the matter remitted to be reheard by a differently constituted Employment Tribunal.