Appeal No. EAT/582/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 20 May 1993
	Judgment delivered on 24 January 1994

	Before

	HIS HONOUR JUDGE HAGUE QC

	MR A FERRY MBE

	MR J A SCOULLER

RIVERSIDE HEALTH AUTHORITY	APPELLANTS

MRS M CLARKE	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR ANTHONY WHITE
(Of Counsel)
	Messrs Hextall Erskine & Co
	28 Leman Street
	London
	E1 8ER

For the Respondent	MR KEITH KNIGHT
(Of Counsel)
	Messrs Ponsford
	Devenish Tivendale & Mundy
	58 High Street
	Wimbledon Village
	London
	SW19 5EE

	JUDGE HAGUE QC:  This is an appeal by the Riverside Health Authority against the decision of an Industrial Tribunal sitting at London (South) and entered in the Register on 23 August 1991.  By their decision, the Tribunal found that the Employee, Mrs Monica Clarke, had been unfairly dismissed by the Health Authority.

	Mrs Clarke had been employed by the Health Authority for over 25 years.  During that time there had never been any suggestion that she had failed in her duties in any respect, and she was a highly regarded and trusted employee with considerable responsibilities.  In August 1990, she was a Senior Clinical Nursing Manager (Nights) at Charing Cross Hospital.  She was the most senior Nursing Manager on duty on the night of 11/12th August.  Following events which occurred that night, and after a disciplinary hearing, Mrs Clarke was summarily dismissed for "gross misconduct".

	The Health Authority's Disciplinary Procedure which was referred to in Mrs Clarke's written employment contract, divided "misconduct" into three categories "minor", "serious" and "gross".  Paragraph 20.3 defined "gross misconduct" as follows:
"Gross misconduct occurs when an offence has taken place which is seriously detrimental or prejudicial to the service.  Gross misconduct substantiated will warrant dismissal for a first time offence.  Dismissal without notice should be used only in cases of gross misconduct.  Examples of gross misconduct are:

(i)wilful disobedience or neglect of duty in a matter which may be seriously detrimental to the service"
The remaining examples of "gross misconduct" in paras (ii) to (v) relate to dishonesty, violence, wilful damage and deliberate sexual or racial harassment;  they are not relevant to the present case except in so far as they illustrate the sort of conduct which is regarded as "gross misconduct".  The procedures in respect of the three categories of misconduct are set out in paragraph 23 of the Disciplinary Code, and paragraph 23.3.2 provides:   
"If an allegation of gross misconduct is substantiated, dismissal with or without notice may take place.  Any mitigating circumstances should be taken into account before a decision is made."
	The facts which gave rise to Mrs Clarke's dismissal were as follows.  Charing Cross Hospital had a bone marrow unit containing 4 beds, 3 of which were occupied on the night in question.  The patients were all post-operational, and 2 were ambulatory.  Such patients have to be monitored constantly, and if their condition changes it is essential that swift action is taken.  As Mr White, Counsel for the Authority stressed, it was therefore essential that the unit had the full attention of a competent nurse.  However, on that night the nurse in charge was Nurse O'R.  She suffered from multiple sclerosis and was liable to fits.  Her condition was known to Mrs Clarke, but Mrs Clarke had had no responsibility for putting her in charge of the bone marrow unit.  That had been done by the daytime Clinical Manager.  The bone marrow unit adjoined a surgical unit, which that night was staffed by Nurse Roberts and Nurse Spickett.  Sister Lowthorpe was the sister in charge of the floor on which the two units were situated.  She was a Grade F nurse of some 7 years experience.

	From about 1.00 am onwards, Nurse O'R became unwell and started to have fits.  Nurse Roberts and Nurse Spickett comforted her.  At 4.50 am Sister Lowthorpe was in Mrs Clark's office about to make a report, when she was telephoned and told that Nurse O'R had had a fit.  She relayed that information to Mrs Clarke.   Mrs Clarke told her of Nurse O'R's condition and liability to fits and asked her to go to the bone marrow unit and investigate.  By the time Sister Lowthorpe got there, Nurse O'R was in the office of the unit with Nurse Roberts.  Nurse O'R told Sister Lowthorpe that she felt alright and did not want to go home or to go to casualty.  Sister Lowthorpe returned to Mrs Clarke's office.  At 5.20 am, following another telephone call, Sister Lowthorpe went to the bone marrow unit again at the request of the nurses to see Nurse O'R who had had another fit.  Mrs Clarke instructed Sister Lowthorpe to let her know if a replacement nurse was needed.  Nurse O'R refused to see a doctor but Sister Lowthorpe stayed with her.

	At 6.20 am, Nurse O'R had another fit of a serious nature.  At 6.30 am, Sister Lowthorpe spoke to Mrs Clarke and asked for a replacement nurse.  Mrs Clarke arranged for Nurse Hanrahan to relieve Nurse O'R.  Sister Lowthorpe arranged for a friend of Nurse O'R's to take her home, but before this could be done Nurse O'R had another fit.  Sister Lowthorpe and Mrs Clarke agreed that Nurse O'R should see a doctor, and Mrs Clarke telephoned the accident and emergency department and arranged for the Registrar to see Nurse O'R there.  However, Nurse O'R, who on the evidence was clearly a determined and forceful personality, adamantly refused to go.

	There was then a discussion between Mrs Clarke and Sister Lowthorpe which became of considerable importance and to which we will return.  As a result, Sister Lowthorpe gave Nurse O'R a message from Mrs Clarke that she (Mrs Clarke) would herself come and take her to see the Registrar, but that offer was refused by Nurse O'R.  Mrs Clarke never herself visited the bone marrow unit or saw Nurse O'R.

	At the end of the shift at about 8.00 am, Mrs Clarke handed over to her daytime counterpart, Sister Skinner, and told her about Nurse O'R's illness.  Sister Skinner arranged for a doctor to go and see Nurse O'R, and went herself to the unit where she found Nurse O'R on a mattress on the floor of the nurses' room difficult to rouse.

	The events of that night were later reported to Miss Dorman, the Director of Nursing and In-Patient Services and the "Dismissing Officer" under the Health Authority's Disciplinary Procedure.  Written statements were taken from all concerned except Nurse O'R.  Miss Dorman decided to hold a disciplinary hearing on 21 August and suspended Mrs Clarke (and also Sister Lowthorpe) in the meantime.  There was a "Management Statement of Case" dated 21 August (and so presumably not available until at or shortly before the disciplinary hearing), under the name of Miss N Flanagan, the Deputy Director of Nursing and In-Patient Services.  The complaints against Mrs Clarke and Sister Lowthorpe were therein stated as follows:
"	MANAGEMENT STATEMENT OF CASE

On Saturday the 11th August, 1990 an agency nurse, Miss Stella O'R, was on night duty in the Bone Marrow Unit.  During the span of the shift Miss O'R became ill and had a number of grand mal epileptic fits which rendered her unconscious, incoherent and certainly not in a position to carry out her role as the nurse in charge of the patients in the Bone Marrow Unit.

This nurse was then cared for in an inappropriate clinical area requiring a significant amount of nursing care and causing her nursing colleagues on 6 South Ward to be very concerned and worried about her throughout the remainder of the shift.

During this time Miss O'R was cared for in the office which is a non-clinical environment.  As this had put considerable pressure on the clinical staff it resulted in putting both the nurse at risk and subsequently putting the patients in two clinical areas, 6 South and the Bone Marrow Unit, at risk due to a lack of nursing care.

During this period Sister Lowthorpe visited the ward and by her action condoned the situation of caring for an ill nurse in an inappropriate area and putting excess pressure on the ward nursing staff resulting in reducing their attention to patient care.

On the night of the 11th August Clinical Nurse Manager responsible for the management of the hospital did not visit the ward and did not take any action which indicated that she appreciated the seriousness of the situation as far as the nurse's health was concerned and the implications as to the responsibility of the hospital in this situation, and most importantly did not demonstrate that she was in control of the situation.

This put the health of Miss O'R in a very vulnerable position and as the patients were put at risk because the nurses were caring for Miss O'R, I consider the situation to have been managed totally inappropriately.  Subsequently the total management of the situation was negligent as it put the hospital at risk of being involved in litigation should anything more serious have occurred to Miss O'R or to any of the patients that were being cared for on 6 South Ward or the Bone Marrow Unit."
	There are two important points to be noted about this.  First, it is to be observed that this did not contain any express allegation of "gross misconduct" or "wilful" neglect of duty.  Secondly, there is no allegation that Mrs Clarke had refused a request from Sister Lowthorpe for assistance or had failed to respond to a request by her to come to the unit.  This is not surprising, because no such allegations appeared in the statement made by Sister Lowthorpe.  The only part of Sister Lowthorpe's statement relevant in this respect is concerned with Nurse O'R's refusal to go to casualty after Mrs Clarke had arranged for a Registrar to see her there, as to which (in paragraph 15) Sister Lowthorpe stated:
"I phoned Mrs Clarke and informed her of this.  Mrs Clarke said that she was tied up but to tell S/N O'R that she was asking her to go to Casualty."
Nevertheless, as will appear, the allegations that Mrs Clarke had refused a request from Sister Lowthorpe for assistance and had failed to respond to a request to come to the unit formed important factors in the Health Authority's subsequent decision to dismiss Mrs Clarke.   We think it is necessary for us to consider them in some detail.

	At the disciplinary hearing before Miss Dorman, detailed evidence was given as to the events of that night.  The notes of evidence taken contain the following relevant to the above allegations:
	(a) In the evidence of Sister Lowthorpe ("SL"):
(i)"IL-C [the RCN union representative] then asked SL if she felt she was acting without support/assistance to which she answered "no" " (P.23 of IT bundle)
(ii)"NF [Miss Flanagan] asked SL if she had at this time asked MC [Mrs Clarke] to visit Staff Nurse O'R.  SL replied "no".  At a later time SL had asked MC to visit Staff Nurse O'R.  MC had told SL that she was busy but gave SL a message for Staff Nurse O'R.  Staff Nurse O'R did not want to see MC and refused care.  The time was approximately 7.10 am/7.15 am.  SL continued by saying "Stella had a very forceful personality and if she did not want to see them, she did not want to see them.  Its as simple as that."  (P.25 of IT bundle)
	(b) In the evidence of Mrs Clarke:
"MC did not recall SL asking her to come to the ward, but could remember saying "I am tied up at the moment, nobody around to lock the door".  MC did not recall SL asking her for help but was not saying that SL had not asked for help." (P.28 of IT bundle).

	After an adjournment of approximately half an hour after the conclusion of the disciplinary hearing, which extended over two days, Miss Dorman announced her decision to take disciplinary action.  As regards Mrs Clarke, that was summarised in a typed Memorandum (P.35 of IT bundle).  Miss Dorman found that Mrs Clarke had failed to take the appropriate managerial action which was to remove Nurse O'R from the area and/or to ensure medical attention, had failed to ensure that patient care was not compromised by expecting nursing staff to care for a sick member of staff rather than their patients, and had failed to demonstrate that she had full managerial control over the situation.  The Memorandum contains the following paragraph:
"Knowing her past history and the fact that you had dealt with her before you made no attempt to see her despite Sister's request in order to get her compliance.  I am particularly concerned that you failed to respond to Sister Lowthorpe's request to go to the ward to see the situation for yourself."
	Miss Dorman found that there had been a neglect of duty which could be seriously detrimental to the service and that this constituted gross misconduct.  She concludes:
"As such I have no alternative under the disciplinary procedure other than to summarily dismiss you with effect from today."
	This decision was confirmed by a formal letter dated 14 September 1990, which includes the following:
"Sister Lowthorpe had requested that you go to 6 South to see Staff Nurse O'R who was refusing to go to Accident & Emergency.  You did not visit Staff Nurse O'R nor did you call a Doctor to attend to her.

.... Knowing Staff Nurse O'R's past medical history and the fact that you had dealt with her before, you made no attempt to see her despite Sister's request that you do so."
	Mrs Clarke appealed to an Appeals Panel under the Disciplinary Procedure.  Oral evidence was again given by witnesses.  The notes of Sister Lowthorpe's evidence contain the following:
"Sister Lowthorpe did speak to Mrs Clarke by telephone, and told her that Stella refused to go to casualty.  Sister Lowthorpe accepted that Mrs Clarke was tied up.  Sister Lowthorpe considered that Mrs Clarke had given her support, and that Mrs Clarke was concerned.  She confirmed that she kept Mrs Clarke informed of the situation." (Doc.R2 p.11)
"Ann Leedham [the RCN union representative] asked Sister Lowthorpe if she had asked help from Mrs Clarke at 6.30 am.  Sister Lowthorpe said no but that she had spoken to Mrs Clarke at about 7.10 am and suggested that maybe she should come up.  She was asked how she had asked this.  Sister Lowthorpe had said maybe if you come." (Doc.R2 p.12)
	The appeals panel decided that misconduct was adequately investigated and substantiated, and dismissed Mrs Clarke's appeal.  The panel's decision did not deal specifically with these allegations.

	The Industrial Tribunal were satisfied that the hearing before Miss Dorman was fully and fairly conducted, and also expressed the view (in paragraph 32 of their Reasons) that "It 

would indeed have been gross misconduct if she [Mrs Clarke] had refused a request by Sister Lowthorpe for 

assistance."  But the Tribunal clearly considered that there had been no such refusal.  They said in paragraph 28 of their Reasons:
"One significant matter emerged in Sister Lowthorpe's evidence to the appeal hearing (R2 10 to 12).  Her evidence clarified and confirmed the applicant's contention that she had not "refused" to go to the ward.  The Tribunal are quite satisfied that the only context in which any suggestion was made that the applicant should go to see Nurse O'R. was in the context of her being able to persuade her to accept medical attention.  It has not been contended by the respondents that there was any refusal to a request by Sister Lowthorpe for "assistance" from the applicant.  That in the view of the Tribunal is a significant aspect of this case."
	Mr White disputed that there had not been such a contention by the Health Authority, but we think it is clear that no specific allegation of that kind was made (other than in the context of persuading Nurse O'R to accept medical attention).  The Tribunal further found (in paragraph 33):
"The applicant in her turn, the Tribunal are satisfied, was conscious of the strong will of Nurse O'R. and took what in hindsight has turned out to be a wrong decision, by deciding - as is the fact - that because no one can be forced to receive medical attention there was no point in her going to the scene."
	Mr White argued that Miss Dorman's important finding that Mrs Clarke had failed to respond to a request by Sister Lowthorpe to come to the ward was a finding she was entitled to make.  He said it was only by opening and reviewing the facts that the Tribunal was able to come to the conclusion that such a finding should not have been made.  He said that the Tribunal should only have asked itself whether there was evidence on which Miss Dorman could have made this finding and submitted that there was ample evidence.  He referred to British Gas -v- McCarrick [1991] IRLR 305 where the Court of Appeal at p.308 stated the applicable legal principles as follows:
"The decision for the Industrial Tribunal was whether, on the facts which were known or should have been known to the employers, they genuinely believed, on reasonable grounds, that the employee was guilty of the conduct of which he was charged. ...........
It was an error of law for the Industrial Tribunal to reopen the factual issues on the basis of which the domestic tribunal had reached its conclusion.  If the procedure had been faulty, that would have been a failure by the employer to act reasonably.  But on the evidence before the internal domestic body it was for that body to reach the decision of fact whether or not they were satisfied of the guilt of the charge .........."
Mr White said that the Tribunal had failed to follow that guidance and had fallen into the error of substituting their own view of the facts for those of the employer.

	We do not accept these arguments.  We consider that upon any fair consideration of the evidence (which we have set out in some detail), the Tribunal's finding that "the only context 

in which any suggestion was made that the applicant should go to see Nurse O'R. was in the context of her 

being able to persuade her to accept medical attention" was entirely justified, for there was no evidence to the contrary.  Similarly, we consider that even in that context there was nothing that could fairly be stigmatised as a "refusal" to go, and there was clearly no refusal to a request for "assistance" in any other context.  However genuine Miss Dorman's beliefs on these matters were, there was, in our judgment, no evidence to support them and consequently she had no reasonable grounds for them.

	We turn to the wider aspects of the case.  The Tribunal found that the reason for Mrs Clarke's dismissal was her "neglect of duty in a matter which might have been seriously detrimental to the service".  The Tribunal then correctly went on to consider the criteria laid down by section 57(3) Employment Protection (Consolidation) Act 1978 as amended, i.e.:
"........ whether the dismissal was fair or unfair, having regard to the reason shown by the employer, [which] shall depend on whether [in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably in treating it as a sufficient reason for dismissing the employee;  and that question shall be determined in accordance with equity and the substantial merits of the case."
The Tribunal were satisfied that Mrs Clarke had made a serious error of judgment, but went on to comment that all concerned were split in their loyalties to a nurse suffering grave disability on the one hand, and their duty to the hospital and the care of the patients on the other,  and also that it was wrong of the Health Authority to have allowed Nurse O'R to be placed in so responsible a position in the light of her known condition.  The Tribunal then made their findings as follows:
"35.	The Tribunal were satisfied that Miss Dorman in considering the facts of this matter looked at the picture presented, saw "neglect of duty in a matter which was seriously detrimental to the Service" and classed this as gross misconduct, in all probability on the advice of her personnel manager because of the wording of the disciplinary procedure.  There does not at any stage appear to have been any serious consideration either of extenuating circumstances or mitigating circumstances.  Nor does there seem to have been anything like a proper weight given to the applicant's impeccable and long service to the respondents.

36.	The Tribunal are satisfied in this case that the respondents did not act reasonably.  The dismissal was unfair."
	It is not clear to us whether the Tribunal agreed that "neglect of duty is a matter which was seriously detrimental to the Service" amounted to "gross misconduct".  We doubt if they did, because on the Tribunal's findings the neglect of duty arose from an error of judgment, albeit a serious one, which can hardly be "wilful" as appears to be required by para.20.3(i) of the Disciplinary Procedure.  However, this is not a point of any consequence, because on any footing it is clear that the Tribunal found that the Health Authority acted unreasonably in treating it as a sufficient reason for dismissing Mrs Clarke.

	We consider that the Tribunal were fully entitled to come to that finding on the facts.  It appears that the reason Mrs Clarke was dismissed was because it was considered by Miss Dorman that, once a finding of gross misconduct had been made, she had "no alternative under the disciplinary procedure other than to summarily dismiss" Mrs Clarke (see pp 35 and 37 of the IT bundle), which is plainly wrong.  The failure to consider extenuating or mitigating circumstances or to give proper weight to Mrs Clarke's impeccable and long service may have stemmed from that erroneous view by Miss Dorman of her powers.  But whatever the reason, the Tribunal were clearly of the view that a reasonable employer would have considered all of them, and the Health Authority's failure to do so rendered Mrs Clarke's dismissal unfair.

	In our judgment, the Tribunal's findings made in this respect were findings of fact which the Tribunal were clearly entitled to make and were not perverse.  We cannot interfere with them.

	There is a further matter we must deal with, which arises in this way.  During the course of the hearing, the Tribunal indicated that they would deal with the issue of contributory fault under section 74(6) of the 1978 Act which had been raised at the same time as deciding on the fairness of the dismissal, and heard submissions from Counsel on that issue.  At the conclusion of the hearing, after a short adjournment, the Chairman announced that there would be no finding of contributory negligence against Mrs Clarke.  However, the Tribunal's Reasons did not deal with the issue, but the Chairman in a subsequent comment has explained that it was unnecessary to give reasons for the Tribunal not making a reduction in the compensation because they considered that Mrs Clarke's conduct had not caused or contributed to her dismissal.

	Mr White stressed that under section 74(6) the question is whether the conduct of the employee contributed to the dismissal, not to its unfairness.  He said that if there was improper conduct which was blameworthy it was open to the Tribunal to find that such conduct had contributed to the dismissal and reduce the compensation, and referred to Gibson -v- British Transport Docks Board [1982] IRLR 228.  He argued that the Tribunal, having criticised the conduct of Mrs Clarke, which clearly contributed to her dismissal, ought to have made a finding of contributory fault.

	However, what section 74(6) provides for is such reduction in the compensation as is "just and equitable".  This clearly gives the Tribunal a discretion in the matter.  In the present case, we consider the Tribunal by their decision, i.e. even ignoring the Chairman's subsequent comment, did not consider it "just and equitable" to make any reduction in Mrs Clarke's compensation.  That was a conclusion (in our view a very understandable one) which the Tribunal were entitled to come to, and does not contain any error of law.  We reject Mr White's argument that there should have been a finding of contributory fault.

	For this reason, we dismiss the appeal.