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	United Kingdom Employment Appeal Tribunal
You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> A v Crawley Horsham Health Service [1996] UKEAT 695_95_0210 (2 October 1996) URL: http://www.bailii.org/uk/cases/UKEAT/1996/695_95_0210.html Cite as: [1996] UKEAT 695_95_210, [1996] UKEAT 695_95_0210

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APPEARANCES

 

For the Appellant	MR PANFORD (of Counsel) Messrs Baron Grey Langtry House 441 Richmond Road East Twickenham Middlesex TW1 2EF
For the Respondents	MR BARRY (of Counsel) Messrs Donne Mileham & Haddock Frederick Place Brighton East Sussex BN1 1AT


 


JUDGE H J BYRT QC: This is an appeal against the decision of the Industrial Tribunal sitting at Brighton on 12 and 13 April 1995 when they unanimously decided that the Applicant, the Appellant before us, was fairly dismissed for sexual harassment of a female nurse.

The facts as found by the Industrial Tribunal are that the Appellant was a Senior State Enrolled Nurse of some 23 years experience with an impeccable record against whom no allegations of impropriety had previously been made. He was employed at an Assessment and Treatment Unit administered by the Respondents somewhere in the Home Counties.

On the night of 20 March 1994 he had been sharing the night shift with the complainant, who was an Assistant Nurse, himself being substantially the more senior of the two. It appears that the complainant had been on night duty for three nights and accordingly might understandably have been somewhat tired.

At about 2 o'clock or 2.30 in the morning, she was in the staff room watching television, as the Tribunal found, and the Appellant came in and said that he would allow the complainant to sleep if she would give him a cuddle. She declined. The Appellant then caught hold of her wrist, spun her round, sat her on his knee, placed one hand around her waist and passed the other up under her clothes and touched her breast. The complainant pulled away and told the Appellant to leave her alone. He replied "please yourself" and walked out.

At about 6.40 am Staff Nurse Uwins came in, as part of the day shift, and again, as the Tribunal found, the Appellant told the complainant that she could go home. The complainant said she would stay. In evidence she said she was concerned about what the Appellant would say to Mr Uwins relating to the evening incident if she left..

Later, both left the unit and, as the complainant was walking to her car the Appellant asked her if she was tired. She replied "Yes, I'm shattered", whereupon it is alleged the Appellant said to the complainant "Remember there's always a spare bed at my place". The complainant replied "You never learn".

At the end of it all, the complainant was in some distress. She went home, talked to her fiancée and told him what had happened. Thereafter, she told her mother too. As a result, her mother rang Mr Cheng, who was the Team Leader at the Unit, and together with the complainant she went down and saw him at about 9 o'clock that morning. The complainant told Mr Cheng the substance of what had happened without going into details or making any specific allegation. Mr Cheng warned her of the seriousness of making an allegation, that there would have to be an investigation, perhaps with serious consequences, and he advised her to go home and sleep on it. One must bear in mind that, at that particular stage, she had not been to sleep that night.

Her next duty was on 23 March. Mr Cheng again asked her whether she had made up her mind what she wanted to do and the complainant replied that she was still thinking about it. On 30 March, Mr Uwins was on duty and, seeing the complainant looking unhappy, asked if she was alright. The complainant apparently was on the point of tears. She began crying and then told him all about the incident in the early hours of 21 March. Mr Uwins explained to her the options she had. She took a little time to think about it again and ended up by saying that she wanted to make a formal complaint. So accordingly, on that day 30 March, she made a formal complaint to Miss Alison Dean, the Personnel Officer. Miss Dean consulted a Mr Bentley, the Director of Personnel and, as I understand it, a statement was taken from the complainant at that point.

The Appellant was then summoned to meet Mr Cheng and Miss Dean. He came together with a representative and was shown the complainant's written statement. The Appellant denied the allegation, but was told that he would have to be suspended from duty whilst the matter was investigated. He was warned that if the allegation was proven it could amount to gross misconduct, the sentence for which would be dismissal.

There was a disciplinary hearing on 12 April and at that hearing the Appellant was represented by a Miss Ashley, a full time officer of the Trade Union, UNISON. He made a written statement, which we are told he submitted to Miss Dean, who was presenting the case of the Respondents, some half hour before the commencement of the panel hearing. The defence it set out was that on the night of 21 March the complainant was tired and yawning. The Appellant had to tick her off for having her feet on the coffee table at one stage. At about 3 o'clock she had a blanket over her and although the Appellant called to her twice she did not respond. When eventually she did, she stood up dazed and nearly stumbled and, as a result the Appellant put out his hand to prevent her falling. At about 5 o'clock the Appellant claims he told the complainant that she really must, if she is going on night duty, have a good night's sleep during the day time. He said the complainant apologised and said she was sorry she had not been particularly conscientious during the night. That was the case he put forward.

The hearing was chaired by a Mrs Lewis, who was the Clinical Director for Community Health Services and the case was presented by Miss Dean. Mr Bentley was present in order to ensure correct procedures.

At the end of the hearing on 14 April, the Appellant was informed the Disciplinary Panel had found he had harassed the complainant as she had alleged; that it amounted to gross misconduct and he would be dismissed with three months pay in lieu of notice. He was required to go at once.

The Appellant appealed to an internal panel. Three or four days before the hearing on 1 July he withdrew his appeal and instead applied to the Industrial Tribunal. After the hearing, which lasted some two days before the Industrial Tribunal, they came to the conclusion that the employers had a genuine belief that the Appellant had in fact sexually harassed the complainant, that their conclusion about that was reasonable, following adequate and reasonable investigation. They concluded that the Respondent's reaction in dismissing the Appellant was within that broad band of reasonable responses of a reasonable employer.

The Appellant now appeals on a point of law to this Tribunal and Mr Panford, who has argued his case, both before the Industrial Tribunal and before us today, makes four specific points. The first is he complains that three witnesses were called before the Disciplinary Hearing of whom he had no notice, and from whom he had no statements and, as a result, the Appellant and his representative were seriously disadvantaged.

This matter needs to be looked at a little more closely. The first of these witnesses was Mr Uwins. He was called to give evidence directly as a result of questions which had been asked by Miss Ashley, of her client. He answered her that he had never told the complainant on the morning of 21 March that she could leave early, thereby refuting any suggestion he had wanted the complainant out of the way in case she should say something to other staff who were coming in on the day shift. That answer was not reflected in the statement he had prepared for the Tribunal before the start of the case. The Respondents, quite naturally, in our view, thought it right to call Mr Uwins in order to see how he would respond, whether he would support what the complaint or the Appellant was saying. Mr Uwins supported what the complainant had said. In our view, there was nothing unfair about any of this. Mr Uwins was called to deal with a point which had arisen entirely as a result of Miss Ashley's questions.

The second witness was Mr Cheng. His evidence only became relevant because, in the course of questioning, Miss Ashley insinuated that the complainant was an unreliable worker. Accordingly, the Respondent took the view that it was only right Mr Cheng as team leader should have the opportunity of stating what he thought of the complainant's work. Again, it has to be said, that this evidence too came in by way of rebuttal. Miss Dean apparently had no intention of calling either of these two witnesses and their evidence only became relevant as a result of the Miss Ashley's cross-examination.

Then there was a third witness who was the complainant's mother. Her evidence was to the effect that in the early hours of the morning on 21 March the complainant was distressed, in other words in a condition which was consistent with the complaint that she had made against the Appellant. She was called, not because of any wish of the Respondents that she should be so; indeed they had no original intention of calling her. She was called at the request of Mrs Lewis, who was presiding over the disciplinary hearing. When she did give evidence, Miss Dean was asking questions of her, blind in the same way Miss Ashley was on behalf of the Appellant. Again, there is nothing inherently unfair in the fact that she was called. Indeed, criticism might have been made of the disciplinary hearing if she had not been called. Equally, we do not see that the failure to provide a statement from this woman was unfair to the Appellant. It is true that Miss Ashley in asking questions did not know what her answers would be, but she would have been perfectly within her rights at that point if she felt that she and/or her client were going to be disadvantaged by this evidence coming at this late stage, to have applied for an adjournment. Doubtless it would have been given.

In all the circumstances the Industrial Tribunal held that notwithstanding that the Appellant did not have statements in advance of these three witnesses, the rules of natural justice has been met in that he knew well before the case started the details of the offence with which he was being charged, that he was given reasonable opportunity to put forward his defence and that the hearing was conducted in good faith. In that the Industrial Tribunal came to the conclusions they did, we are of the view that their findings on this issue were reasonable.

But in addition to that, Mr Panford, who has argued the Appellant's case cogently and with persistence, put forward another line. He says that the disciplinary procedure of these Respondents was expressly or implicitly incorporated into the Appellant's contract of employment and that the procedure adopted at the hearing was in breach. We have considered that contention and do not think it sustainable. There has been no evidence what the express terms of the contract of this particular employee were; there has been no evidence of the matrix of facts which would give rise to any implication if its incorporation. So as to this first ground of appeal, we see no reason to disturb the Industrial Tribunal's finding.

The next point taken is that the sentence of dismissal which was imposed upon the Appellant took no account of the way in which similar offences had been dealt with in the past. We are told by Mr Barry, who appeared on behalf of the Respondents (it has not been contested by Mr Panford) that the Industrial Tribunal had in front of it news cuttings from 1990 and 1992 in which similar complaints arising within the Respondents' jurisdiction had been reported and I understand that Mr Bentley (who was presenting the case for the Respondents before the Industrial Tribunal) had taken the trouble to set out in writing the details of those cases.

So the Industrial Tribunal had all the relevant facts and matters before them, but when they came to consider their decision they obviously considered the matter with care as is set out in paragraph 22 of their reasons. The conclusion that they came to was that, whilst it was incumbent upon the Respondents to consider alternative methods of dealing with this particular Appellant, they had no alternative but to dismiss him. They laid stress on the fact that it was unrealistic to think the Appellant could have been transferred to another section or division of the Unit without again his being in daily contact with female nursing staff. They would be at risk. The Tribunal found this decision of the employers to dismiss to be within that broad band response of a reasonable employer.

The third point made by Mr Panford is that when before the Industrial Tribunal he applied for Mr Bentley, the Respondents' representative to be called into the witness box to give evidence and produce the notes that he took of the proceedings before the disciplinary panel. The Chairman of the Industrial Tribunal, having heard Mr Panford's submission, refused the application.

Mr Barry, on behalf of the Respondents, has made plain that the request before the Industrial Tribunal Chairman was not that Mr Bentley should produce his notes, but that he should submit to cross-examination and he submitted that, in those circumstances, it was not surprising the Chairman of the Tribunal refused the application.

Looking at the matter on a wider scale, we find it surprising if the Appellant had wanted to make use of notes of what happened before the disciplinary panel, that their production had not been requested at an earlier stage. Mr Bentley had been present in an obviously conspicuous capacity at the hearing of the disciplinary panel. He had been there to advise it on the appropriate procedures and if he took notes it must have been seen that he was taking notes. Equally so, one would have thought that the Appellant's own advocate would have been taking notes and so in consequence if it had been thought that anything relevant would come out from a scrutiny of notes, the request should have been made before the hearing.

As it is, we are left with a criticism of the Industrial Tribunal Chairman for refusing to allow Mr Bentley to give evidence. We are not told of any disagreement between the parties as to what was said at the disciplinary hearing, or indeed, what use would have been made of the notes. Our view is that the Tribunal Chairman, placed in the position that he was in the middle of the hearing, was perfectly within his rights when he refused leave for Mr Bentley to be called.

Then there is the last and fourth point taken on behalf of the Appellant. It is it is said that the Tribunal erred in finding that the Respondents were not at fault in the way that they had carried out their investigation.

Miss Deans, in the course of being cross-examined at the Industrial Tribunal hearing, admitted that the decision to suspend the Appellant had been taken upon receipt of the complaint. She had seen no purpose would be served in carrying out a further investigation. Mr Panford says that the whole history should have been investigated by the Respondents before the decision to suspend was made. Whose work history was to be investigated is not quite certain, as to whether it be the Appellant's to show that he was a man of good character, or that of the complainant. So far as the Appellant is concerned, the Industrial Tribunal made plain they accepted he was a man of good character against whom no complaint had earlier been made.

The Tribunal dealt with this matter in paragraphs 12 and paragraphs 14 of their reasons. There was an obvious conflict of account between the Appellant and the complainant. Neither claimed that there was a witness to whom the Respondent should go to interview. The Unit was filled mainly with patients who are mentally unstable and whose evidence, in any event, would be unreliable. Using our common sense one stage further, we ask rhetorically, "What would be the price of trying to find a witness from amongst these patients when one would have had to tell them the circumstances of the complaint thereby running the risk of causing them distress, and at the end of the enquiry, the chances of finding a credible witness would have been next to nil.

We think that this matter was dealt with quite appropriately by the Tribunal in the paragraphs referred to and do not see that in coming to the conclusion that it did, it in any way erred. The Industrial Tribunal took the view that the employers had a genuine belief, that they had reasonable grounds for that belief which was formulated after they had carried out reasonable investigation, that is reasonable in the circumstances of this particular case. Thereafter, it considered whether there was any alternative to dismissal and it came to a conclusion which, having regard to the circumstances of the case, was within that broad band of reasonable response of a reasonable employer.

In all the circumstances we are satisfied that the test in Burchell's case was properly applied by the Industrial Tribunal and accordingly can see no grounds upon which we should disturb the findings of the Industrial Tribunal.

Accordingly this appeal must be dismissed.