Appeal No.	EAT/1398/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 16 June 1998
Judgment delivered on 27 November 1998

Before
HIS HONOUR JUDGE PETER CLARK
LORD DAVIES OF COITY CBE
MR K M YOUNG CBE

MRS SUSAN McKAY	APPELLANT

DORSET COMMUNITY NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

Revised

	APPEARANCES

For the Appellant	MR P JENNINGS
(of Counsel)
South Somerset Citizens Advice Bureau
Petters House
Petters Way
Yeovil
Somerset
BA20 1SH	
For the Respondents	MR SHAH
(of Counsel)
Messrs Wansborough Willey Hargrave
Solicitors
St Swithun’s House
Winchester
Hampshire
SO23 9WP	

	JUDGE PETER CLARK:	This is an appeal by Mrs McKay, one of two applicants before the Southampton Employment Tribunal (Chairman: Mr D N Cowling) sitting over five days in February and April 1997, against that tribunal’s decision, promulgated with extended reasons on 24th September 1997, dismissing her complaint of unfair dismissal against her former employer, the respondent Trust.

The Facts
In the light of a submission made by Mr Jennings on behalf of the appellant that the tribunal was wrong to make its own findings of fact, as opposed to considering whether the respondent held an honest belief, based on reasonable grounds following a reasonable investigation that the appellant was guilty of misconduct leading to her dismissal, and the upholding of that decision on appeal, we shall deal with the background on the basis of the relevant material before the respondent.

	The appellant was an experienced qualified nurse who was employed by the respondent as an E Grade Staff Nurse at Forston Clinic, an acute psychiatric hospital. Her employment with the respondent and its predecessors commenced on 18th June 1979 and was terminated by dismissal effective on 28th March 1996.

	At the relevant time she worked at night on Mintern Ward, which provided in-patient treatment for patients of both sexes aged 18-65 years.

	The material events occurred on the night shift of 7th-8th February 1996. On that night there were five qualified members of staff on duty on the ward; three Grade E nurses, the appellant, Mrs Anderson (her co-applicant before the Employment Tribunal) and Mr Stacey and two Grade D Nurses. Mr Stacey was the shift leader.

	Of the patients on the ward that night we are concerned with two. The first, patient S, a young man of 18, who was well-known to staff, having been admitted to the Clinic on a number of occasions. His most recent admission had been on 4th September 1995 and he had remained a patient since that date. His notes revealed that he frequently absconded, had caused damage to property, was known to abuse illegal drugs and was thought to be an HIV risk; he was sexually disinhibited with questionable sexual practices. He had, according to Mrs Anderson’s evidence to the Employment Tribunal, been known to enter people’s rooms to see what he could steal.

	The second, patient J, was a young woman of 23 who had been admitted to the ward on 4th February 1996 for the first time with a very short history of mental illness. Her behaviour was described as disinhibited and overactive.

	At about 10 p.m. on 7th February  the appellant and Mrs Anderson were dispensing medication. J refused to take her drugs and knocked them over the appellant, giggling and saying “I’ve made her all wet”.

	At about 4.30 a.m. the following morning the appellant saw S leave J’s room. The appellant said that as he came out he said “thank you”. She heard J murmur something. She did not check J, but looked in and saw her curled up asleep.

	Later that morning the appellant mentioned the incident to Mr Stacey and to those coming on shift. That report was recorded in J’s Nursing Notes.

	Subsequently an Untoward Incident Form was completed. At lunchtime on 8th February S was spoken to. He said that he and J were alone in her room for hours; initially they had just talked then he got into bed with J and they had full sexual intercourse.

	On the following day a key nurse who had built up a relationship with J, Mr Humphries, spoke to her about the matter. She told him that S had spent a number of hours with her but would not say whether or not sexual intercourse had taken place.

	Thereafter, Mr Stacey was suspended pending an investigation on 12th February. On 13th February Ms Lloyd, a Personnel Manger with the respondent and Ms Gray, a nursing professional and manager of the Blackdown Clinic, were appointed to carry out an investigation into the incident. Their Report, dated March 1996, was entitled:

“Report on the investigation into an alleged failure in a duty of care to patients, JB and SA, both of whom were on Level II Specialling.”

Specialling
The Special Observation Policy at Forston Clinic provided for two levels of supervision of patients by nursing staff; Level I required that the patient was kept under constant 24 hour supervision. A nurse is allocated to be with the patient at all times. Level II required that the patient is observed every 15 minutes. A nurse is allocated to this duty and is responsible for finding and observing the patient every 15 minutes to check on his or her welfare.

	In the course of the investigation Ms Lloyd and Ms Gray looked at the relevant records and interviewed all staff on duty that night as well as the ward manager. Two interviews were carried out with each member of night staff except Mr Stacey, who was seen once. What they said was reduced into writing and signed by the staff member. The appellant’s written statement is dated 7th March 1996.

	The consistent picture which emerged from all interviews including those with the appellant, was that Mr Stacey had delegated the task of Level II specialling of both S and J to the appellant and Mrs Anderson jointly.

	Having set out their findings as to what had happened, the investigators expressed their Conclusions in this way:

“5.0 CONCLUSIONS
5.1	A duty of care did exist for patients ‘J’ and ‘S’. Furthermore, they were both on Level II specialling - 15 minute observations.
5.2	This duty of care was not met in that the 15 minute observations were not carried out by those delegated this duty, namely S/N McKay and S/N Anderson.
5.3	The shift leader, Brian Stacey, did not ensure this was carried out.
5.4	There was a failure in the duty of care in that nursing staff did not persist in trying to persuade ‘J’ to take her prescribed medication. Not having her medication may have made her more vulnerable to exploitation by being disinhibited and less aware of her “normal” behaviour.
5.5	There was a failure of duty by the shift leader in allowing three staff to take their break together, thus leaving unsafe staffing levels on the ward.”

	As a result of the report the appellant and Mrs Anderson were suspended pending a disciplinary hearing by letter dated 14th March. The appellant was warned that dismissal was a possible consequence. On 22nd March a disciplinary hearing took place in the case of Mr Stacey. He was given a final written warning and transferred to the day shift, with a loss of night shift premium.

	On 28th March a disciplinary hearing was convened in respect of both the appellant and Mrs Anderson before Mr Cole, the Service Area Manger, Southern Sector and Mr Archer, the General Manager. Mrs Anderson was represented by a full-time trade union official and the appellant, who was not a member of the union, was accompanied by another member of staff, Jan Matthews. We pause to observe that under the respondent’s disciplinary procedure at the disciplinary hearing stage the employee was entitled to request the presence of a colleague or trade union representative. However, following the letter of 14th March 1996 the appellant had consulted solicitors, Cousins, Combe & Mustoe [‘the first solicitors’], who had written to Mr Cole on 19th March.

	The disciplinary hearing proceeded in this way. Initially all parties were present, including Ms Gray and Ms Lloyd. They were questioned by all parties as to the way in which they conducted their investigation. They then left the hearing along with Mrs Anderson and her representative. The disciplinary panel then heard the appellant’s account. She accepted that both she and Mrs Anderson had been delegated responsibility for Level II specialling. She claimed that this had remained the case until they had both taken their meal break at about 12.30 a.m. and after returning from their meal break the appellant claimed that the responsibility for continuing the Level II observations were solely that of Mrs Anderson. The appellant could not confirm that any discussion had taken place with any other member of staff as to which member of staff should be responsible for Level II specialling or which patient. It was her claim that Mrs Anderson was responsible for Level II specialling at the time when the incident had taken place. At about 4.30 a.m. when the appellant had seen S leaving the bedroom of J she was sitting in a chair opposite J’s bedroom. She had not seen S enter J’s room and she did not question S in relation to why he had entered J’s room. She did not make any written record in either the notes of patient S or J of what she had seen. She indicated regret at having reported the incident verbally to staff arriving on the morning shift because if she had not done so there would not have been a disciplinary hearing. After she had given her version of events she left the hearing and Mrs Anderson returned with her representative. She agreed that at the start of the shift she had been delegated joint responsibility for Level II specialling with the appellant. She maintained that the appellant was responsible for Level II specialling following the meal break and that she was responsible for Level II specialling when the incident had taken place. The disciplinary panel also heard evidence from both the appellant and Mrs Anderson regarding the failure to administer medication to J and a failure to make any assessment of the increased risk which might result there from.

	Having heard from both the appellant and Mrs Anderson the panel considered the matter and set out their findings and conclusions in a note. Their conclusion read as follows:

“CONCLUSIONS
As a result of all the information obtained and in consideration of all the other issues the panel concluded that there was a failure in duty of care and in particular that [the appellant] had failed in her responsibilities to ensure that level II specialling was carried out.
In particular the evidence lead the panel to conclude that as a trained nurse, [the appellant] had failed to act in such a way as to promote and safeguard the interests of patients S. & J. by-
	failing to assess the vulnerability of those patients
	failing to pursue medication of those patients
	failing to undertake level II specialling in accordance with Trust policy
	failing to investigate a potential incident
Consideration was given to potential course of action, however given the severity of the incident and the extent of those failures the panel therefore had no option than to dismiss [the appellant].”

	By letter dated 1st April from Mr Cole the appellant was dismissed on the grounds of Serious Professional Misconduct with three months pay in lieu of notice. Mrs Anderson was also dismissed.

	Both appealed internally against their dismissal. The appeal panel consisted of Mr Thomer (Executive Director), Mrs Dupont (Non-Executive Director) and Ms Sheena Naughton (Director of Personnel). Ms Naughton alone of the panel members gave evidence before the tribunal. At this stage both the appellant and Mrs Anderson were entitled to be and were legally represented. The appellant instructed new solicitors Clarke Willmott & Clarke [‘the second solicitors’].

	Before the appeals were heard a procedural point arose. The respondent intended to hear both appeals together. Mrs Anderson objected to that course. Her objection was accepted and the appeals were heard separately; the appellant’s on 29th April, which occupied the whole day and Mrs Anderson’s on 5th June. No decision was taken by the appeal panel until after both hearings had been completed.

	At this stage events took a new turn. The appellant produced a written statement in which she declared that a conspiracy had taken place to which she had been a party. She now asserted that only Mrs Anderson had been delegated Level II specialling duties by Mr Stacey on the night in question, not the appellant. She was put under pressure to maintain the line that it had been a shared responsibility. She had therefore lied to the investigators and the disciplinary panel in saying that she and Mrs Anderson jointly shared responsibility for specialling S and J.

	The appeal panel received that new version from the appellant and it was put to the other staff involved, including Mrs Anderson. All disagreed with the appellant’s new account. The panel tried to get to the truth of the matter.

	In her written proof of evidence Ms Naughton said that the panel felt incapable of concluding that the appellant’s new version of events was correct because they had no other evidence at all to support it. She maintained that position during evidence in chief. In cross-examination she said that the panel was not satisfied that everybody was telling the truth. They therefore decided to look at each case, that of the appellant and Mrs Anderson, to decide whether or not to uphold the dismissal of each on their own account. They decided to do so. In relation to the appellant’s new version, Ms Naughton said that the appellant’s account was plausible, but there was no evidence to support it. In answer to Mr Jennings in cross-examination she conceded that she felt incapable of concluding that the appellant’s new statement was incorrect.

	Both appeals were dismissed. In the case of the appellant Mr Thomer wrote to her on 7th June 1996 in these terms:

“I refer to the Disciplinary Hearing that took place on Wednesday, 5th June, 1996.
We have considered the four issues in the letter of dismissal dated 1st April 1996, these being that you were dismissed on the grounds of Serious Professional Misconduct in that you
	Failed to assess the vulnerability of specific patients under your care
	Failed to pursue medication of patients S and J
	Failed to undertake Level II specialling in accordance with Trust policy
	Failed to investigate a potential incident.
We have considered each one of these failings individually and all four collectively. We have also considered points upon which you based your appeal. We have received a welter of information and a lot of conflicting accounts of the full events of the night of 7th February 1996.
We have also considered in your case the new evidence and alleged sequence of events and have tried to elicit clarity in the many inconsistencies that have been put before us.
Having taking all this into account we have decided, as a panel, to uphold the decision of management taken on 28th March 1996 to dismiss you from the employment of the Trust.”

The Employment Tribunal decision
The tribunal concluded that the reason for appellant’s dismissal related to her conduct. That finding is not challenged on appeal. The question is whether or not the respondent acted reasonably in treating that reason as a sufficient reason for dismissal. Employment Rights Act 1996  s. 98(4).

	As to that the tribunal found that there was no unfair disparity of treatment in the penalties meted out to the appellant (and Mrs Anderson) and Mr Stacey. They found that both applicants had been given every opportunity to state their cases. They directed themselves in accordance with the well-known Burchell test. They acknowledged that the reasonableness of the dismissals had to be judged by looking at the whole disciplinary process, including the internal appeal procedure. Overall, they concluded that in each case dismissal fell within the range of reasonable responses open to the employer.

The Appeal
Mr Jennings has developed his submissions in support of the appeal by taking us through a painstaking analysis of the evidence and setting that against the tribunal’s findings and conclusions with a view to satisfying us that the overall conclusion of fair dismissal was perverse in the legal sense. Mr Shah has responded blow for blow. We shall resist the temptation to embark on the same course. That is not our function. The question for us is, first, is there any patent misdirection in law on the face of the tribunal’s reasoning; secondly, if not, can the decision looked at as a whole be characterised as perverse, as that term is defined by Mummery J in Stewart v Cleveland Guest (Engineering) Ltd [1994] IRLR 440, paragraph 33? As to perversity we bear in mind the approach expressed by Mustill LJ in Campion v Hamworthy Engineering Ltd [1987[ ICR 966, 972, that on further appeal the question for the Court of Appeal is not whether the reasoning of the EAT is right, but whether the decision of the Employment Tribunal is right, in the sense that it is not so demonstrably wrong as to be beyond reason. In these circumstances we shall confine ourselves to those points in the argument which we consider require specific mention in this judgment.

	First, the contention that in upholding the fairness of the dismissal the tribunal looked only at the disciplinary panel’s reasons for dismissal and not the appeal panel’s approach based on the appellant’s change of story. Mr Jennings has argued that it was not open to the internal appeal panel to rely on a fresh ground for dismissal at the appeal stage. Having considered the evidence given to the tribunal by Ms Naughton we are satisfied that the appeal panel did not do so. It was faced with a new version of events from the appellant, inconsistent with her previous account. The appeal panel did not feel able to reject that new version out of hand, although it conflicted with the evidence of all other witnesses and did not quite ring true, according to Ms Naughton’s evidence. Faced with this state of affairs the appeal panel asked themselves whether, on that new account, they would allow the appellant’s appeal against dismissal. They decided that they would not. Accordingly they upheld the disciplinary panel’s decision to dismissal. The tribunal plainly had in mind the fact that the appellant had changed her story (reasons paragraph 25) and that they should consider the appeal procedure in judging the overall reasonableness of the decision to dismiss (paragraph 35). Accordingly we reject this submission.

	Second, the disparity argument. The tribunal were careful to direct themselves as to the guidance to be found in Paul v East Surrey District Health Authority [1995] IRLR 305, approving, per Beldan LJ at paragraph 34, the dictum of Waterhouse J in Hadjiannou v Coral Casinos Ltd [1981] IRLR 352, paragraph 25, that such an argument should be scrutinised with particular care. On analysis the tribunal found that the circumstances of Mr Stacey and of the applicants were not truly comparable. The responsibility for looking after J fell on the applicants, who were well qualified and experienced nurses, notwithstanding that Mr Stacey was nominally in charge that night.

	Third, the general allegation of perversity. It is not the purpose of this appeal tribunal to entertain a minute examination of the factual issues before the Employment Tribunal. Mr Jennings has taken us through the four conclusions reached by the disciplinary panel forming the basis for the dismissal; the report of the investigators; the basis for the respondent’s assumption that sexual intercourse had taken place between S and J and the procedures adopted by the respondent throughout the disciplinary process. The points which he made are essentially points for the industrial jury. They were considered and weighed by the tribunal below in reaching its overall conclusions. 

	In our judgment the tribunal’s reasoning adequately sets out the necessary findings of fact; the self-directions in law are correct; it reached a permissible conclusion. The respondent had reasonable grounds for believing and did believe that the appellant had misconducted herself in the respects found by the disciplinary panel. It carried out a reasonable investigation, giving the appellant every opportunity to know the charges against her and to state her case. The appeal panel was entitled to uphold the decision to dismiss even if they were to accept the appellant’s new story, which they doubted. The tribunal was entitled to find that dismissal in this case fell within the range of reasonable responses. In these circumstances we have reached the conclusion that no error of law had been made out in this appeal and it must be dismissed.