Appeal No.	 EAT/273/00

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 13 June 2000

Before
MR RECORDER BRIAN LANGSTAFF QC
MR A E R MANNERS
MR R SANDERSON OBE

MR MICHAEL ASHLEY t/a CRUSADER MEDICAL CARE	APPELLANT

MRS SUSAN PAMELA HATHERLEY	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING – EX PARTE

Revised

	APPEARANCES

For the Appellant	MR STEVEN DONOGHUE
(of Counsel)
Instructed by:
Messrs Hugh James Ford Simey
Solicitors
Martin Evans House
Riverside Court
Avenue De Clichy
Merthyr Tydfil
CF47 8LD	

	MR RECORDER LANGSTAFF QC:	Following a hearing at the Cardiff Employment Tribunal on 22nd November and 15th December 1999, the Employment Tribunal in extended reasons promulgated on 18th January 2000, resolved that the applicant/employee, Mrs Hatherley, had been unfairly dismissed and wrongfully dismissed and ordered that the respondent employer pay her compensation in a specific sum. It is agreed between the parties that the calculation of the sum was wrong. That forms no part of this intended appeal. We understand it will be resolved between the parties in the event that any further appeal does not succeed.

1.	The case arises out of an incident on 4th March 1999 when the employee, a nurse at a nursing home in Cardiff, put a patient to bed, it was suggested, against his will. She had had a previous warning, which she said was verbal in October 1998 about such a practice. Without being told who the patient was she was suspended whilst in Devon and came to a disciplinary hearing almost exactly a fortnight later on 17th March 1999, in order to answer complaints against her, for which she had been suspended, without any clear knowledge as to whom that incident related or what the substance of it was.

2.	At that hearing she was dismissed and the Employment Tribunal for three reasons took the view that that dismissal was unfair. Each of those three reasons is attacked before us today by Mr Donoghue on behalf of the appellant. The three reasons were firstly, that there were no material procedural inadequacies in failing to inform the employee of the identity of the patient. Secondly, he says that the Employment Tribunal were not entitled to reach the conclusion which they did in paragraph 9 and again in paragraph 11 of their judgment, that the employee was dismissed because her position in the home had become untenable. Thirdly, he says, that the Employment Tribunal were perverse in concluding that the incident was not capable of being gross misconduct in the face of the agreed position of both employee and employer that such an offence, that is putting a patient to bed against his wishes, is capable of being gross misconduct, because it is a fundamental interference with the liberty of that individual. The logic which the Employment Tribunal adopted, was that the employer had previously treated incidents such as this informally and therefore, had denied any particular seriousness and significance to them. 

3.	We consider that for the second and third of those reasons this appeal should be heard by a full Appeal Tribunal. For the benefit of that Tribunal let me say in a little more detail why we have come to that conclusion. First, there appears to be an inconsistency in approach by the Employment Tribunal. Having found as a fact at paragraph 9 that the employee was dismissed by Mr Reade because, in essence, three members of staff had signed complaints against her and she could not therefore show her face in the home again (I have put that colloquially), and having repeated that at paragraph 11, they also consider whether or not the case was gross misconduct. Indeed, they say in paragraph 10 that the reason for dismissal was conduct related and go through the tests which derive from British Home Stores Ltd v Burchell. It is not therefore clear which approach the Tribunal were taking and to what extent. It may be that they thought that because there were procedural difficulties, that because the employee had been suspended without knowing what the charges were and other employees asked to give evidence against her, that her position had, because of that procedure, been made untenable and that that was taken into account in dealing with a matter of misconduct in a way which it would not otherwise have been dealt with, given the previous track record. Although that may be one interpretation of what the Employment Tribunal concluded, it is not precisely what they say and this needs to be examined further. Thirdly, in dealing with the question to whether the conduct was gross misconduct, the Tribunal say at paragraph 13 that “only in a severe case is this gross misconduct because one has to be very sure that the nurse is acting against not only the patient’s wishes but also the patient’s interests.” Interposing there, they have made no findings of fact which demonstrate here that the patient’s interests were in any way other than by refusal of his wishes affected or prejudiced. The Tribunal continues:

“There will be cases where the two do not coincide and every case is potentially debatable on its facts. This case is such.”

	The meaning of this paragraph is obscure to us. 

4.	Next, in relation to the issue of misconduct, the reason given by the Tribunal for the necessity of drawing a distinction between gross and less serious misconduct is so that it is obvious to an employee that that particular conduct is so to be categorised. Yet when the matter came before the Employment Tribunal, this employee appears to have been entirely happy to agree that the offence was capable of being gross misconduct. The natural inference would be that she knew perfectly well on 4th March 1999 that it was capable of so being. If so, the apparent logic of the Employment Tribunal in paragraph 12 may very well fall away.

5.	We hope that those remarks may be of assistance to the Appeal Tribunal ultimately hearing this matter. It now falls for me to give directions.

6.	We consider that the Chairman’s Notes of Evidence are not necessary for the resolution of this appeal. The Notes of hearing to which reference is made by Mr Jones may and should be made part of an appendix to the bundle, but no further documentation I think is required. The hearing should take half a day. Skeleton arguments and any case law to be provided at least 14 days in advance. The case is to be listed as Category C.