Appeal No. UKEAT/0479/08/DM

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 23 February 2009
Judgment handed down on 27 March 2009

Before
HIS HONOUR JUDGE McMULLEN QC
MS K BILGAN

WEST LONDON MENTAL HEALTH NHS TRUST	APPELLANT

DR S SARKAR	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR MARK SUTTON
(of Counsel)
Instructed by:
Messrs Capsticks Solicitors
77/83 Upper Richmond Road
Putney
London SW15 2TT	
For the Respondent	MS SUE SLEEMAN
(of Counsel)
Instructed by:
Messrs Russell Jones & Walker Solicitors
Swintons House
324 Gray’s Inn Road
London WC1 8DH	

SUMMARY
UNFAIR DISMISSAL:  Reasonableness of dismissal
An Employment Tribunal erred as it focussed upon a decision made by the employer to negotiate a settlement under a procedure leading to a lesser penalty than dismissal.  The procedure broke down and at a fair and reasonable hearing the disciplinary panel decided to dismiss the Claimant.  The Employment Tribunal wrongly substituted its view for the employer’s in deciding the matters put against the Claimant did not justify dismissal.  The Employment Tribunal while misdirecting itself on the burden of proof under ERA s98(4) did not actually apply that misdirection when it made the decision on the reasonableness of the dismissal.

HIS HONOUR JUDGE McMULLEN QC
1.	This case is about unfair dismissal.  The judgment represents the views of us both.  Exceptionally, the case was constituted under s28(3) of the Employment Tribunals Act 1996 with Ms Bilgan alone, who is appointed from the panel of persons experienced in industrial relations as a representative of workers, due to an unforeseen event.  The parties’ informed consent was obtained.  Members drawn from either panel are persons experienced in representing workers or employers yet represent no-one when they sit, pursuant to their judicial oath.  It was explained to the parties that the practice to be adopted was that if we divided in our opinion, the appeal would fail.  Happily we reached a joint conclusion.

2.	We will refer to the parties as the Claimant and the Respondent.

Introduction
3.	It is an appeal by the Respondent in those proceedings against the judgment of an Employment Tribunal chaired by Employment Judge Barrowclough sitting at Reading over seven days, registered with reasons on 20 April 2008.  The Claimant was represented by Ms Sue Sleeman and the Respondent by Mr Mark Sutton of Counsel.  The Employment Tribunal summarised the issue as follows:

“1.1	…By his claim, filed on 5 November 2007, the Claimant Dr Sarkar alleges that he was unfairly dismissed.  The Respondent Health Trust accepts that the Claimant was their employee for a period of nearly six years; and that they summarily dismissed him on 6 August 2007.  The Respondents assert that their reason for so doing was misconduct, a potentially fair reason; and that they acted reasonably in all the circumstances treating it as sufficient to justify dismissal.  Although the case lasted a number of days, the applicable legal principles are clear and well established and were not in dispute before us.  Assuming that the reason for dismissal was misconduct (and there was no challenge to that contention), then, to validate their decision to dismiss the claimant, the Respondents must show that they had a genuine belief that the Claimant was guilty of misconduct; that there were reasonable grounds for such a belief; that they conducted an appropriate investigation into the relevant circumstances before reaching that view; and finally that dismissal was within the range of reasonable responses open to them in all the circumstances.”

As we will show, that paragraph contains errors.

4.	The Tribunal upheld the Claimant’s claim but reduced any compensation to be awarded to him by 25 per cent on account of his blameworthy conduct.  The Respondent appeals.  Directions sending this appeal to a full hearing were given in chambers by HHJ Birtles.

The legislation
5.	The relevant provisions of the legislation are found in s98 of the Employment Rights Act 1996 as follows:
“98    General

(1)		In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a)	the reason (or, if more than one, the principal reason) for the dismissal, and
(b)	that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

(2)	A reason falls within this subsection if it—

(a)	relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do,
(b)	relates to the conduct of the employee.
[(ba)	is retirement of the employee,]
(c)	is that the employee was redundant, or
(d)	is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment.

(4)		Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(a)	depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and 
(b)	shall be determined in accordance with equity and the substantial merits of the case.”

6.	An award of compensation may be reduced on account of conduct which is considered to be culpable: s123, not the subject of an appeal.

The facts
7.	The Tribunal introduced the parties in the following way:

“2.1	The Respondent trust operates from a number of different sites; that with which we are most concerned being Broadmoor Hospital, which is a high security unit specialising in Forensic Psychiatry.  The trust employs approximately four thousand staff and has an annual turnover of £242 million.  In addition to Broadmoor Hospital, there are medium and low secure units in eight London boroughs.  There are a number of separately staffed regional units at Broadmoor Hospital, known as “directorates”.  The London directorate, in which the claimant was employed, comprises nine wards, including the High Dependency Unit (“HDU”), to which were assigned the Claimant and Dr Psyzora.  There are seven or eight full-time Consultant Psychiatrists within the London directorate, assigned to individual wards, and working towards a capped case load of twenty patients spread over two wards.  The wards themselves contain between ten and twenty beds.  There are fifteen beds in the HDU; and twenty in the rehab ward.  Patients in Broadmoor Hospital are some of the most dangerous in the country, with severe psychiatric disorders; and the HDU deals with the most seriously ill patients, who require round the clock monitoring and care.  Patients are cared for through a multi-disciplinary team approach comprising Psychiatrists, Psychologists, Social Workers and Occupational Therapists.  It is obvious that the working environment in which the Claimant and his colleagues operated was and is very stressful and difficult, due to the nature of both the institution and its patients.

2.2	The Claimant was appointed as a substantive Consultant Psychiatrist based at Broadmoor Hospital on 1 February 2003.  He had been working there in other capacities since August 2000.  The Claimant has worked and was trained in both India and the USA, and is an accredited Specialist Psychiatrist [in] the UK, the USA, and India.  His medical career spans a period of twenty-two years; and he is or has been a member of the Department of Health’s “Clear Boundaries” Project and of the General Medical Council’s Fitness to Practice Panel.  Prior to the events with which we are concerned, he had an unblemished disciplinary and clinical record.  Dr Sarkar fairly accepted in his evidence to us that as a Consultant Psychiatrist, he had a duty and responsibility to lead by example in terms of his conduct, working relationships, and teamwork within the London directorate and in what we have already described as an inevitably stressful environment.”

8.	The other actors in the drama are either the Claimant’s colleagues or managers at Broadmoor Hospital, Crowthorne, Berkshire.  Dr Andrew Payne is the Claimant’s Clinical Director; Dr Elisabeth Fellow-Smith, the Medical Director of the Trust; Mr Sean Payne is Executive Director Forensic Services, who had conduct of the early stages of the matters.  A disciplinary panel consisted of Mr Ian Kent, Executive Director of Local Services, Dr T Barns, Executive Director and Mr T Roberts, from another Trust.  An appeal panel to hear the Claimant’s appeal consisted of Mr T Pearson, who is a non-executive director of the Trust, Mr S Crawford, the Chief Executive of the Trust, and Mr Alan Cater of ACAS.  Dr Janet Ballard is engaged in occupational health, both of whom commented upon the Claimant’s medical condition.  Then finally is the group of complainants, who are Dr Anna Manners, Consultant Psychologist; Dr Estelle Moore; Ms Fiona Clark, the lead Psychologist at Broadmoor; Ms Anne Marie Sloman, Occupational Therapist; Dr Natalie Psyzora and Mr Mark Ashby, Service Director. Mr Kelvin Cheatle and Mr Alan Wisheart are in the HR Department.  A further complainant Dr Bhattacharjee was mentioned but is taken no further here.  

9.	The Respondent has procedures of a very sophisticated nature.  There is a disciplinary procedure dealing as one would expect with investigation, disciplinary hearing and appeal hearing together with a range of sanctions for indiscipline.  There is a bullying and harassment policy; this too sets out a procedure to be followed where allegations are made.  There is also a procedure by which issues at the workplace may be resolved by negotiation and agreement.  This is the Fair Blame Policy (“FBP”).  A good deal of the argument before us concerns the Employment Tribunal’s treatment of the FBP, which we say at the outset seems to have taken on a disproportionate aspect.  The FBP does not apply to clinicians but it was adapted and applied in this case.  In relevant part it provides as follows:

“1	Introduction
A ‘fair blame’ approach to dealing with matters which might otherwise have been dealt with under the formal Disciplinary Policy reflects a desire on the part of the Trust and the trade unions to move towards a philosophy of personal responsibility, where mistakes are openly acknowledged, individual and organisational learning takes place and changes are made to behaviour and systems to avoid such errors in the future.  On this basis, the Trust and trade unions have agreed in partnership, a 12 month trial of a Fair Blame Policy to deal with relatively low level breaches of conduct or performance standards.  This will not alter the existing responsibilities on managers and supervisors to continue to use best practice and other Trust policies to manage conduct and performance and serous matters will continue to be dealt with under the formal Disciplinary Policy.  The Fair Blame Policy will deal with appropriate matters of performance and conduct which are do not constitute potentially serious or gross offences.
The Fair Blame Policy will apply cross the Trust for all employees (other than doctors) from 1st April 2007 to 31st December 2007.  It will be subject to joint review during January 2008 to determine whether the pilot has been successful and whether it should be implemented on a permanent basis either in this form or as amended following joint discussion and agreement.  The Trust and the trade unions recognise the potential benefits of a ‘fair blame’ approach and are committed to the success of the pilot.
2	Interface with the Disciplinary Policy
This Policy is part of the Trust Disciplinary Policy for the trial period.

3	Preliminary Investigation
The manager commissioning the investigation (the ‘Commissioning Manager’) should agree with the Chair of Staffside that the alleged case of misconduct or poor performance could appropriately be dealt with under the Fair Blame Policy and initiate a Preliminary Investigation by appointing an Investigatory Officer.  A similar approach in principle to that outlined in the Disciplinary Policy should apply in relation to the investigation.  The Preliminary Investigation must be completed and the report submitted to the Commissioning Manager within 4 weeks.  The Investigatory Officer will be provided with sufficient resources, access to staff and cooperation from the employee and their representative to enable the investigation to be completed in accordance with this timescale.  A template for the investigatory report will be available through the appropriate HR Manager to assist the Investigatory Officer.
If at any stage during or afters the completion of the Preliminary investigation it becomes apparent that the alleged misconduct is more serious than originally envisaged, the Commissioning Manager will discuss the matter with the Chair of Staffside with a view to dealing with the matter fully under the formal provisions of the Disciplinary Policy.
4.	Agreement to a ‘Fair Blame’ Review
One the Preliminary investigation Report has been completed, the Commissioning Manager will determine whether there is a case to answer and the potential seriousness of the offence.  Provided the Commissioning Manager concludes that the matter is not a potentially serious or gross offence, they will offer the opportunity to the employee for the matter to be dealt with through a ‘Fair Blame’ review.  The Commissioning Manager will send a copy of the investigatory report to the employee along with a standard letter setting out the options available (template attached).  The employee will have 5 working days from receipt of the letter to indicate their agreement to a Fair Blame Review otherwise the matter would then be subject to the full Disciplinary Policy.  The employee may, at this stage comment in writing on the investigatory report and submit this to the Review Panel for consideration.
5	Review Panel
A Review Panel should be appointed consisting of the Commissioning Manager and an HR Manager (provided they have not been directly involved in the Preliminary Investigation) and a Convenor or appropriate Staff Representative (not from the employee’s trade union).  This Panel would meet to review the Preliminary Investigatory Report and any response from the employee to agree the outcome.  Where necessary, the Review Panel could decide to invite the investigating officer and/or employee to a meeting to clarify any appropriate matters.  No other people would be permitted to attend this meeting.  The Panel will determine the outcome in writing to the employee and the investigating manager within 2 weeks of receiving the investigatory report.

6	Action to be taken by the Review Panel
The Review Panel can take the following actions:
a)	determine that no further action should be taken;
b)	determine that there has been misconduct or poor performance and apply a disciplinary sanction
c)	make other recommendation to the employee and/or the management.  This might include support to the employee or their colleagues through training, mentoring, coaching or supervision.  Changes could be recommended on matters of local practice, Policy or working arrangements.  Recommendations could also be made to the Trust to review systems, processes or policies.
…
7	Sanctions
The Review Panel have the authority to award disciplinary sanctions set out in the Disciplinary Policy up to the level of a first written warning, to be placed on file for 12 months.
8	Appeal
There is no right of appeal against the decision of the Review Panel.”

10.	It should be noted that the FBP is found within the disciplinary policy.

11.	Between September 2006 and 29 January 2007 the Respondent received complaints from at least five of the complainants alleging that the Claimant’s conduct left them “vulnerable and intimidated” which they found “harassing and distressing”.  Terms of reference were drawn up pursuant to the bullying and harassment policy and on 16 February 2007 these were disclosed to the Claimant.  He agreed to cease clinical work and to work from a different site away from those who were making the complaints.  During the course of the investigation on 30 March 2007 the Claimant acted in an arrogant and aggressive manner towards a security guard at the gates of the hospital.  On 4 April 2007 the Claimant made a complaint about Fiona Clark, herself a complainant.  The complaint was made to Ms Clark’s professional body the British Psychological Society.  On 25 April 2007 a report was completed and the Tribunal recorded the conclusion:

“2.14	… It appears evident that Dr Sarkar has acted inappropriately on a number of occasions during a fixed period of time.  He has accepted this.  It is the view of the investigation team that these actions do warrant the instigation of the disciplinary process; however it must be considered whether the disciplinary process will resolve the current issues.  …As there are issues of concern relating to behaviour or concerns about the functionality of Dr Sarkar’s team, it may be advisable to consider a referral to NCAS…consideration will have to be given as to how and where Dr Sarkar is placed after his return to work and what initiatives are taken forward to ensure that such concerns to not arise in the future.  It is the view of the investigation team that it is difficult to understand how he can return to work with the same team given that relationships have deteriorated to such an extent.”

12.	The approach taken by the authors of this report which included Mr Wishart, in conjunction with other managers, was that discussions would open to see if the matter could be resolved through the FBP.  Meetings were held on 4 and 11 May at which proposals and counterproposals were put but no agreement was reached.  At the final meeting on 17 May agreement was reached to the Respondent’s requirements which included a formal written warning, that the Claimant continue to consult the Occupational Health Department and that he move within the Trust to a different directorate.  At the end of that meeting at which the Claimant was represented by his BMA colleague, Dr Fellow-Smith said that she would report the Claimant to the General Medical Council.  As the Tribunal found, this would inevitably rupture the agreement for it was unacceptable to the Claimant.  This was a new requirement not previously ventilated.  The circumstance in which this arose was an exchange of email the previous day, 16 May 2007.  The first is from Mr Wishart to Dr Fellow‑Smith:

“Subject:   S Sarkar
Just to let you know that I have just spoken to Fiona Clark who has advised she has received further correspondence from the BPS.
Apparently Dr S has sent the letter of 4th of April to Sean re Fiona to the BPS.  He did so on Friday 11th of May.
This is in essence is another complaint she will have to deal with.
Although the BMA advised me last week that he has finished with his letter writing/external complaints, he has not.
Fiona is extremely distraught and was in tears when we spoke.  She asked how much more will she have to deal with and what are we doing to protect/help her against all this.
She advised she is seeing her union rep for advice this afternoon. My worry is that she will start action against the trust for allowing this to happen.  In essence she can advise she is being victimised by Dr S as she has made a complaint about him.”

13.	The second is from Mr Cheatle who had also been copied into the above email who says this:
 “I think this is yet another example of Sameer trying to manipulate the situation; everybody around him appears to be acting with integrity – he is not.  We have a duty of care to the other staff too.
My view is that the fair blame deal should be withdrawn; he has breached his exclusion terms (twice) and lied to us on this issue.  I have no doubt he was the course of the conjecture relayed to me yesterday.  He is causing damage to his colleagues, let alone his own career.
I think we should now proceed to a disciplinary hearing with Sameer being suspended – he cannot be trusted to act reasonably any longer and one must question who his next target will be.”

14.	The way in which this email traffic was disclosed reflects very badly on the Respondent but not, as Ms Sleeman was careful to point out, on its lawyers.  It emerged on day 2 of the hearing; undoubtedly it should have been disclosed in response to specific requests made well in advance by the Claimant.  The Tribunal made the following finding:

“3.7	There is also the strong suspicion that the “Fair Blame” discussions, which could only have resulted at most in a first written warning for the Claimant, were intentionally frustrated by Dr Fellow-Smith by means of the very late introduction of the (almost inevitably unacceptable) requirement for a GMC reference.  On the limited evidence before us, we think it likely that those suspicions are well founded.  Whilst we appreciate the difficult position in which the Respondent found themselves in the light of Mr Wishart’s email of 16 May, the situation was, at least in part of their own making, in that they had suggested and adopted the “Fair Blame” discussions; and in our judgment they could not reasonably sabotage those discussions and then proceed down the disciplinary route of alleged gross misconduct.”

15.	The allegation of intentional frustration of the process by Dr Fellow-Smith and her sabotage of it was never made at any stage in the proceedings.  While heartily condemning the late disclosure of this email, the highest Ms Sleeman put it in her written submissions was that:

“The primary motivation for the change in the Respondent’s attitude was attributable to Mr Cheatle’s having lost patience with the Claimant as a consequence of his having made a complaint against Ms Fiona Clark.

16.	The Tribunal found that the exchange of email on 16 May 2007 caused Dr Fellow-Smith on 17 May 2007 to impose the requirement that there be a reference to the GMC.  That inevitably caused the Claimant to reject a negotiated solution through the FBP and instead to “take his chances with the disciplinary hearing”.  The Claimant was suspended from work on 30 May 2007.  

17.	On 30 and 31 July 2007 a disciplinary hearing was conducted.  As far as is relevant to the appeal, the charges included the five complaints already considered under the FBP together with two additional complaints.  These are known as the “car park incident” on 30 March 2007 (see above) and the “Mark Ashby incident” on 24 May 2007.  The outcome of the disciplinary hearing was the Claimant’s summary dismissal recorded by letter on 6 August 2007:

“Re:  Disciplinary Hearing 30th/31st July 2007
I am writing further to the above hearing held under WLMHT’s Disciplinary Procedure, D4.  I am advising that the Panel upheld the management statement of case alleging gross misconduct as described in the Trust Disciplinary Policy, and you are therefore summarily dismissed from your employment with WLMHT as of today’s date.
In particular the Panel upheld the following allegations in relation to gross misconduct as set out in 8.4.1 of the Trust’s Disciplinary Policy:
a)	Repetitive minor or serious offences
The Panel concluded that your behaviour at the Ward Clinical Team Management meeting on the 21st September 2006, your behaviour at the Directorate Clinical Improvement Group meeting on the 20th December 2006, your behaviour during the car parking incident on the 30th March 2007 and your conduct during the telephone conversation with Mark Ashby fell into the above category.
b)	Bullying and / or harassment
The Panel concluded that your treatment of Anna Manners, Fiona Clark, Ian Hodsdon, Dr N Pyszora fell into the above category in that the panel believed you bullied, intimidated, threatened and ignored these colleagues on a number of different occasions causing severe distress.  It was also the view of the Panel that you have continued to harass Dr Anna Manners during the time of the investigation and during the lead up to the disciplinary hearing.
Also the “I hate you” note passed to Anne-Maria Sloman during a Trust business meeting fell into the above category.
Having heard the evidence at the disciplinary hearing the panel were satisfied that the allegations described should be considered as gross misconduct due to the nature of the allegations and the number of incidents reported.
Such actions by you fell well below the standard of conduct expected by a member of staff at the Trust, particularly a senior member of the Clinical Team.  It was clear to the panel that you actions affected the way the clinical team functioned and also how you functioned as a senior member of that team.
As we agreed I did discuss your case with Dr Ballard on the 6th August 2007.  During the conversation she acknowledged that the previous months had placed you under considerable stress, but did not offer any further mitigation for your actions.  Dr Ballard’s testimony did not therefore change the initial findings of the Panel.
You have the right to appeal the decision of the Disciplinary panel.  You must do so in writing to the Director of Human Resources within three weeks of receiving notice of this decision.”

18.	The Claimant appealed on three grounds:
“(1)	Against the evidence on which the panel decision was made.  I will argue that evidence that shows a pattern of professional and reasonable conduct was ignored by the Panel, especially in relation to the impact on team functioning.
(2)	Against the level and severity of the disciplinary action.  This is the first time in an unblemished career that my personal or professional conduct has been called into question.
(3)	Against the procedure that was followed.  The Trust did not adjourn the hearing dates (despite my repeated requests that they should do so) to accommodate certain witnesses for me, who were not available.”

19.	At an appeal hearing on 19 September 2007 where evidence was called, the Appeal Panel upheld the disciplinary panel’s decision.

20.	The Tribunal apparently addressed itself to the test for misconduct dismissals set out in BHS v Burchell [1980] ICR 303 EAT.  Although not expressly citing the three stage test the language of the Tribunal’s judgment seems to record it in part.  The original Burchell test is as follows:

“First of all there must be established by the employer the fact of that belief that the employer did believe it;  secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief and, thirdly we think that the employer at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters we think who must not be examined further.  It is not relevant, as we think that the Tribunal would themselves have shared that view in those circumstances.”

21.	Rejecting the Claimant’s contentions that the procedure adopted was unfair and that the terms of Burchell had not been met, the Tribunal found that the Claimant admitted some of the harassment allegations and for a range of reasons the Respondent “could properly and reasonably conclude that the Claimant was guilty of misconduct and that they did so believe”.  The Tribunal then looked at the investigation and held that “a fair and appropriate disciplinary procedure was adopted”.  The process was fair, conscientious, not prejudiced or biased, comprehensive, thorough and cannot be criticised.  The Tribunal alluded to what it regarded as a “significant” feature of the case which was that the Claimant had had an intimate sexual relationship with Dr Manners which broke off in December 2007 and that the Panel may not have looked fully at the context in which the dispute between him and her arose.  Yet no criticism was made of the Panel.  The same can be said of the dispute between the Claimant and Ms Fiona Clark, with cross allegations being made.  Again no criticism was made of the Respondent.  Those findings correspond to stages 1, 2 and 3 of the Burchell test.  

22.	The real issue in the case is the Tribunal’s finding on the decision to dismiss.  Since this has been the subject of intense argument before us we will reproduce the Tribunal’s finding in full:

“3.5	Was the sanction of dismissal within the range of reasonable responses?  We think not.  We are well aware that it is not for us to substitute our judgement for that of the Respondents, and that the range of reasonable responses open to them is necessarily very wide.  However, it seems to us entirely clear on the evidence we heard that the main charges against the Claimant were those initially introduced in the original Terms of Reference (p.120/121). Which were the subject of what can really only be sensibly described ass protracted negotiations in May 2007.  These discussions took place, we are satisfied, within the context of the “Fair Blame” Policy, as indeed the Respondents’ own contemporaneous notes confirm.  Whilst, strictly speaking, that Policy may not have specifically applied to medical staff such as the Claimant, the adoption of its principles must, we consider, necessarily imply that, in the Respondents’ own estimation, the misconduct alleged was of a relatively minor nature.  Once discussions in accordance with the “Fair Blame” Policy had been initiated, following a specific agreement with the Claimant’s BMA representative, the most severe sanction or outcome that could have resulted was a formal written warning, together with other agreed outcomes, including redeployment to another directorate, thereby sidestepping/avoiding the staff previously affected.  We do not understand how or accept, that, merely because the “Fair Blame” discussions were discounted, these same offences can somehow properly come to be regarded as matters of such a grave and serious nature as to constitute gross misconduct and lead to summary dismissal.  It is, we think, no answer to say that, because bullying and harassment can, at least in principle, be characterised as gross misconduct under the Respondents’ disciplinary procedure, they can rightly be characterised in this case, since all the relevant matters and information concerning the Claimant’s behaviour were fully known to the Respondents in May 2007 when the “Fair Blame” discussions were initiated.  The only additional or subsequent matters raised against the Claimant (to summarise, the parking incident; his conversation with Mark Ashby; and his email to Dr Bhattacharjee), cannot, in our judgement either individually or cumulatively amount to gross misconduct, within the parameters of the Respondents’ disciplinary procedure.  Mr Kent confirmed in his evidence to us that these matters were (as indeed we find) of a relatively minor nature.  Additionally, we do not in fact find that there was anything in the Claimant’s email to Dr Bhattacharjee or his conversation with Mr Ashby which could, objectively, be properly described as reprehensible or blameworthy.  The Claimant may well have expressed himself unwisely and perhaps robustly;  but he cannot sensibly be described as behaving threateningly, in relation to the inappropriate parking, and whilst we accept the Claimant was probably rude, aggressive and unhelpful, this too is a minor incident, and should be seen in the context of a lengthy suspension, whereby the Claimant was effectively prevented from undertaking his normal professional duties for a protracted period, and the inevitable stress, worry and frustration that this would cause.”

23.	Having made the decision that the dismissal was unfair the Tribunal acceded to an argument from the Respondent that there was contributory fault and made this finding:

“3.11	We are satisfied that the Claimant did behave in a culpable and blameworthy manner.  That behaviour includes not only his admitted acts and misconduct (which we have set out above in these Reasons) but also conduct that we find amounts to a campaign against Fiona Clark, arising out of her unwillingness to reassess the allocation of Psychological resources to HDU, and her subsequent refusal or inability to discuss and explain the reasons why.  Whilst we accept that the Claimant was entitled to an explanation, and that he did not receive one, we find that he thereafter conducted himself towards Miss Clark in a combative and disproportionate manner which was wholly inappropriate for someone of his seniority and responsibilities within the hospital.  This included instituting the so called “whistle-blowing complaint”, and subsequently his formal complaint to Ms Clark’s professional body, the British Psychological Society.  All of this conduct, in our judgment, contributed to and played a part in the Claimant’s dismissal – self evidently so, in the light of our findings of fact.”

Discussion and conclusions
24.	We will deal with the legal principles to be applied in this case as we discuss the submissions on the three grounds of appeal.

Misdirection
25.	It is common ground that paragraph 1.1 of the Reasons contains a misdirection for the Tribunal places the onus of proving the three matters there set out upon the employer.  The Tribunal expressly refers to Burchell without any qualification.  In 1980 the burden of proof hitherto imposed upon employers to prove a reason and its fairness was restricted to the former.  As long ago as Post Office Counters v Heavey [1989] IRLR 513 this position was made clear for as Wood P and Members said referring to, for example, BHS v Burchell:

“14.	As the Court of Appeal has indicated on many occasions, the correct direction for a Tribunal to give itself is to use the actual wording of the statute, and to remind itself that there is no burden of proof on either party.  A “neutral” issue is indeed strange to those brought up with our adversarial system.  It is not for the employer “to show”, nor for the Tribunal “to be satisfied” – each of which expressions indicate the existence of a burden of proof.”

It follows that the express use of the word “must show” harks back to the law prior to 1980 and has not been current in the succeeding 29 years.  The same could be said of “validate”.  However, the majority of this passage relates to the Burchell test which, as we have shown, the Tribunal found the Respondent had passed.  So the real criticism is as to the final sentence dealing with the range of reasonable responses.  This comes from the approval of Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 EAT by the Court of Appeal in Post Office v Foley [2000] ILR 827 CA which requires the starting point to be the words of s98(4) themselves and then the determination by the Tribunal of whether in the circumstances the decision to dismiss fell within the band of reasonable responses which a reasonable employer might have adopted.  

26.	In our judgment a tribunal which does not start with the words of the statute is always at risk of getting the test wrong.  Misdirection can be corrected if the EAT finds that the decision was unarguably right notwithstanding the misdirection: Dobie v Burns International Security Services (UK) Ltd [1984] IRLR 329.  Alternatively, a misdirection can be rescued by a correct direction elsewhere within the body of the judgment: Jones v Mid‑Glamorgan County Council [1997] IRLR 685 CA.  We hold there is a further lifeboat:  just as a correct direction can be vitiated by its misapplication to the facts, a misdirection can be rescued by what appears to be correct application of the law to the facts.  In this case, paragraph 3.5 of the judgment, addressing reasonableness, does not include any direction as to the burden of proof.  The Tribunal asks “was the sanction of dismissal within the range of reasonable responses? We think not.”  It does not reach back to its self-direction on the burden of proof.  The finding that matters were “entirely clear” shows that resort was not necessary to the burden of proof.  And when the finding on reasonableness is placed against the finding in relation to blameworthy conduct (para. 3.11) the Tribunal there uses the words “we are satisfied”, quite properly, to show that it had found as a fact that there was blameworthy conduct for the purposes of s123 of the Employment Rights Act 1996.  That argument has to be addressed by an employer to the tribunal and the tribunal must find the facts and reach a conclusion on the balance of probabilities. The Tribunal has thus recovered from its misdirection and this ground of appeal is dismissed.

Was dismissal within the range of reasonable responses?
27.	A large part of the thinking behind the Tribunal’s finding is taken up with consideration of the FBP.  Mr Sutton contends the Tribunal was distracted by this.  It failed to look at the core question which was whether in all the circumstances the decision to dismiss fell within the range.  Mr Sutton contends that it was irrelevant to consider what had occurred at an earlier stage when FBP was in play.  Ms Sleeman contends that it is relevant to consider that the Respondent through certain of its officers at one stage considered the five complaints by practitioners and others against the Claimant were minor, and having been investigated through the bullying and harassment procedure, gave way to the FBP treatment.  Since the Respondent is indivisible, it is relevant to consider that acting through certain officers dismissal was not thought reasonable and yet later was.

28.	The first issue is “the circumstances” in s98(4).  There can be no doubt that all relevant circumstances must be considered.  In Airbus UK Ltd v Webb [2008] IRLR 309 CA, Mummery LJ held that an expired warning was relevant in considering dismissal of the same employee.  It seems to us that if an adverse incident, there a warning, is relevant, so is as Ms Sleeman puts it, a circumstance in the Claimant’s favour i.e. that certain officers regarded the material as minor.  

29.	The second issue is: whose decision is under scrutiny?  We reject the contention made by Mr Sutton that it is the decision maker at the date of dismissal.  In a sophisticated workplace such as this where a disciplinary process includes investigation, negotiation, disciplinary hearing and appeal, all material up to and including matters raised at the appeal are relevant in determining the fairness of the dismissal: see W Midlands v Tipton [1986] ICR192 HL and OCS Group v Taylor [2006] ILRL 613 CA.  To single out one aspect of the procedure without considering it in context of the whole is to commit an error.  In our judgment that is what occurred when the Tribunal focussed upon FBP.  

30.	This case was proceeding according to the bullying and harassment procedure through a disciplinary route.  It led to the full blown implementation of a disciplinary hearing and an appeal.  It was diverted temporarily by agreement through the FBP.  We think it is entirely laudable that there be such a policy so that matters may be dealt with relatively informally with a light touch.  At the same time, it cannot be said that once parties have engaged on resolution of a dispute through negotiation, they are precluded from raising the matter afresh within the formal tramlines of a disciplinary procedure.  That is what happened here.  Once the FBP broke down, for whatever reason, it was open to the Respondent to continue along the disciplinary procedure.  Just because officers at one level thought the problem could be resolved as a minor matter through the FBP does not mean that the full process of discipline was not available to it once negotiations broke down.  After all, the Respondent was not obliged to divert this into the FBP nor was the Claimant obliged to consider it.  Why should a party who considers it has a good case go to conciliation if by doing so it burns its boats on achieving resolution through the full disciplinary procedure?  

31.	Reliance on the FBP by the Employment Tribunal is confounded by its own finding which was this:

“3.8	Finally, whilst the disciplinary panel appears to have been aware that discussions towards possible resolution of all matters in dispute between the Respondents and the Claimant had taken place, it does not appear that they were aware of the provisions of the “Fair Blame” Policy, or to what misconduct it purportedly applied.”

32.	It was for the Claimant to make the claim which he now makes - that it was wrong for the employer once to have thought the matter to be susceptible merely to a warning to then move through a procedure which led to a dismissal - if that point had not been taken at the disciplinary hearing.  Nor, it appears, was the matter raised in the grounds of appeal for it was not said as it is now that it was wrong for the disciplinary panel or the appeal panel to form a conclusion to dismiss when those forming a view about the appropriateness of this case for FBP had not.  It is entirely understandable that the disciplinary panel would be told that a possible solution had been suggested and attempted.  But it was never said to the disciplinary panel that it was unfair to characterise these matters as dismissible when, at an earlier stage within the negotiating forum of the FBP, management had taken a lighter view.  Looking at the matter in the round as the Employment Tribunal was required to do, including all matters up to the appeal panel, it was distracted by the FBP.  The question for the Tribunal was whether the decision of the dismissing panel, informed as it was by such material as might have arisen at the appeal panel, was one which a reasonable employer could make in the light of the circumstances facing it.  The Employment Tribunal simply did not address this question, but looked no further than the inchoate decision of managers that the events forming the complaints within the bullying and harassment policy would be apt for resolution within a negotiated settlement.

33.	In any event, even if that view were correct, it failed to take into account the additional material not forming part of the FBP viz the parking incident and the incident with Mark Ashby.  The Tribunal characterised these as minor.  Even so, these two additional matters added to the five complaints would have to be considered in aggregate by the disciplinary panel, as they were, and the mere fact that in relation to the five a view had been taken that they were minor does not detract from the view taken by the disciplinary panel that the seven of them, two continuing after the charges, constituted a dismissible offence.  

34.	In any event, in our opinion the Employment Tribunal misjudged the impact of the 16 May 2007 email traffic.  This certainly did create new material which took the matter beyond the FBP.  The Employment Tribunal failed to construe this material as capable of affecting the earlier judgment of the managers that the earlier material was fit for FBP.  As a matter of fact this material caused the change of heart of Dr Fellow-Smith and caused her to report to the General Medical Council.  It is instructive to look again at the content.  It represents further material upon which Ms Clark would have to make representations, already herself having made complaints against the Claimant.  The effect of the Claimant’s complaint against Ms Clark to her professional body was to make her “extremely distraught”.  She appealed for help.  She was going to her union for advice.  In legal terms she saw it as victimisation by the Respondent through the agency of the Claimant for having made a complaint against him.  The view taken by Mr Cheatle of this and of two breaches by the Claimant of the order that he be excluded from the site was that the FBP was no longer appropriate.  

35.	On proper analysis this represents a view by the Respondent that the Claimant, despite his acknowledgement of blame, continued to be engaged in a process of harassment against Ms Clark.  As a matter of construction and of simple practicality, the FBP cannot work where there is admitted blame yet no determination to repent, as exhibited for example by further commission of the offences.  There were therefore sufficient grounds for the Respondent to withdraw from the FBP.  

36.	In our judgment the Employment Tribunal erred in its findings against Dr Fellow-Smith which were recorded above from paragraph 3.11.  This case was not put.  Even making allowances for the deplorable failure by the Respondent in its disclosure obligations, a personal attack against the senior medical regulator within the Respondent should have been formulated so that she could appear and answer it.  The Employment Tribunal may be right in its criticism of the Respondent for failing to call her but in the absence of a positive case against her, the Tribunal was wrong to make its findings that she intentionally frustrated and sabotaged the FBP.  That the FBP resolution aborted on 17 May 2007 was caused by the information given to Dr Fellow-Smith in the email traffic does not mean that an unfair decision was made or an unreasonable step in the procedure was taken.  Indeed, as we have cited above, the FBP contains a clause (paragraph 3) known as the escalation clause which deals with the ability to change track into the formal disciplinary procedure if circumstances require.  They plainly did as the email and the chronology make clear without any input from Dr Fellow-Smith herself.  We agree with the Employment Tribunal that it would have been better had she given evidence but she was not facing the kind of criticism which the Tribunal held against her for it had not been put at any stage in the proceedings before it.

37.	This ground of appeal is allowed.

Substitution of view
38.	In a very real sense this ground goes hand in hand with the previous ground.  In every case the employer will say that it is in the best position to judge what was reasonable for it to do in the face of the circumstances.  In the present case this assertion is not so self-serving.  It is unique as the Tribunal depicted it:  see the extract from paragraph 2.2 above.  The Claimant was a high ranking medical practitioner in a team of health care professionals who had admitted the material contained in complaints by a number of his colleagues.  Although as first suggested, there were no medical or psychiatric grounds for his behaviour, relationships had plainly broken down in the tight community in which he worked.  

39.	We accept the submission of Mr Sutton that the Tribunal in the latter part of paragraph 3.5 is seeking to explain away the Claimant’s conduct by reference to his exclusion from his normal profession.  This indeed is to substitute its view for that of management as to the seriousness of the incidents charged against him.  The Tribunal did the same thing in relation to the subsequent events which may be understandable in the light of the evidence of Mr Kent and yet the Tribunal did not take a holistic approach to the Claimant’s conduct.  Had it done so it would not have been able to substitute its view that managers had decided the first set of complaints was minor and the second set of complaints was minor to complete an equation that the whole of the complaint was therefore minor.  As we have said in relation to the second ground of appeal above, it is the conduct of the Claimant as a whole in the eyes of the Respondent judged against all of the material arising by the time of the appeal which is relevant.  

40.	Further, the findings in relation to contributory fault in paragraph 3.11 inevitably draw upon the material which was available for a finding of unfair dismissal.  The campaign against Ms Clark was continued up to the final meeting in the FBP.  Since the Tribunal found that was blameworthy conduct, and had, on the more rigorous standard required for a finding under s123, held that to have occurred, it is difficult to see how it could fault the Respondent’s response without in effect saying that it would have decided the matter differently.

41.	This ground of appeal is allowed.

Disposal
42.	Mr Sutton contends that this matter should be decided by us.  Ms Sleeman contends the matter should be sent to the same or to a different Employment Tribunal with a controlled remission.  In our judgment it could not be said that the response of the Respondent here fell outside the band of reasonable responses of an employer faced with the circumstances which were presented to it.  We set aside the judgment and substitute a finding that the Claimant was not unfairly dismissed.  If we are wrong about that disposal, it would not be right to send this matter back to the same Employment Tribunal having considered all the factors in Sinclair Roche & Temperley v Heard [2004] IRLR 763 since our criticism of its decision of reasonableness and substitution permeates its decision making and it would not be fair on it or the parties for it to decide the matter afresh or on a controlled remission even upholding as we do the unappealed findings.  

43.	The appeal is allowed.