Appeal No. UKEAT/0432/08/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 19 February 2009

Before
HIS HONOUR JUDGE RICHARDSON
MR K EDMONDSON JP
MRS J M MATTHIAS

EAST RIDING OF YORKSHIRE COUNCIL	APPELLANT

MRS S COWTON	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR COLIN BOURNE
(of Counsel)
Instructed by:
East Riding of Yorkshire Council
Legal Services
County Hall
Beverley
East Riding of Yorkshire 
HU17 9BA	
For the Respondent	MR JASON SEARLE
(of Counsel)
Instructed by:
Messrs Rollits Solicitor
Wilberforce Court 
High Street
Hull
East Yorkshire
HU1 1YJ	

SUMMARY
UNFAIR DISMISSAL:  Reasonableness of dismissal
Unfair dismissal – majority decision – majority found dismissal to be unfair only because employer treated other employees in a different way.  
Held:  majority substituted their own judgment on this issue instead of applying “reasonable responses” test.  Finding that dismissal was not unfair substituted.

HIS HONOUR JUDGE RICHARDSON

1.	This is an appeal by the East Riding of Yorkshire Council from a Judgment of the Employment Tribunal chaired by Regional Employment Judge Sneath dated 15 August 2008.  The Tribunal held, by a majority (the Employment Judge dissenting) that Mrs Sheila Cowton had been unfairly dismissed.  There was a finding that Mrs Cowton contributed to her dismissal by her conduct; her compensation was reduced by 70 per cent.

The facts

2.	Mrs Cowton was employed as a care worker at the Millside Nursing Home in Driffield.  She had more than 10 years’ service there. The residents of the home are adults with severe disabilities.  

3.	At the end of 2006 and at the beginning of 2007 there were concerns about the standard of care which Mrs Cowton was offering to residents.  She was taken through the Council’s capability procedure – first informally and then, when she did not achieve the required standard, formally.  She was subject to observation and assessment, including observation and assessment of the feeding of residents.  At a meeting on 4 May 2007 she was told that she had proved her capability but she was warned that if similar issues arose in the future they would be dealt with under the Council’s disciplinary procedure.  She said there would be no repetition and she would not let her standards slip.

4.	One of the residents at the home was a lady, who for these purposes will be called CE, who needed assistance with eating and drinking.  An assessment had been carried out on her by a speech and language therapist.  There was a specific recommendation that all food should be puréed to dropping consistency.  Like all other residents, CE had a care plan and a folder, written in the first person, entitled “This is me”.  The folder and care plan referred to the assessment and set out in express terms in more than one place the requirement for CE’s food to be blended.   

5.	On 12 June 2007 a staff nurse at the Home noticed that CE had coughed.  She made enquiries about CE’s feeding.  She learned that Mrs Cowton had recently fed her a potato cake which had been mashed with a fork, not blended to a purée.  Mrs Cowton was interviewed.  She accepted that she had made a mistake and that she should have blended the food.  When interviewed by her manager she said that CE had had mashed food before; but it was common ground that CE should not eat food which was mashed – there was a risk of choking and vomiting.

6.	The matter was reported to the Council’s human resources department.  An investigation was held.  In the course of the investigation another care worker revealed that she and other care workers had always fed the residents potato cake in the same way – that is, mashed rather than puréed.  Later another care worker wrote saying the same.

7.	Following the investigation Mrs Cowton was invited to a disciplinary meeting to face an allegation that she had given a resident a mashed meal instead of a puréed meal as specified in her care plan, causing her to choke and putting her at risk of choking and further complications.  At the disciplinary meeting she was not able to offer a satisfactory explanation as to why she had not followed the instruction in the care plan to blend the food.  She did not say she had simply been following practice, although there was by this time evidence from two care workers of the practice of mashing potato cake.

8.	The decision to dismiss was made by Ms Rhodes.  Her letter of dismissal reads as follows:

“That on the 12th June 2007 you knowingly served food of a mashed consistency, instead of a pureed consistency, to a resident of Millside Nursing Home who has clear dietary needs consisting of a pureed diet.
It was believed that your actions were not undertaken with any malicious intent.  However, you were clear that you were aware of the risks of failing to blend the food and following the care plan and the possible fatal consequences to the person for whom you were responsible.  Nothing more could reasonably have been done to assist you to maintain the acceptable standards of care expected of you and determined during a period of formal capability assessment, which you yourself acknowledged.  Whilst it was acknowledged that the investigation had caused you to consider your actions there was no evidence given at the hearing to give me confidence that if you return to work in a position of such responsibility that there would not be a repetition of a similar nature and my primary concern has to be the health, safety and well being of those in our care.”

9.	No other care worker apart from Mrs Cowton was dismissed or disciplined for feeding CE or any similar patient with mashed potato rather than puréed potato.  There is no finding by the Tribunal as a whole concerning what happened to other care workers.  In his minority reasoning the Employment Judge says that other care workers were counselled (rather as Mrs Cowton’s earlier bad practice had been addressed) and practices changed so that potato cake was puréed in the kitchen.

10.	The Tribunal as a whole made careful findings as to the basis upon which Ms Rhodes distinguished the case of Mrs Cowton from that of other care workers who mashed the potato.  These are set out in paragraph 21 of the Tribunal’s reasons.

“21.	Her conclusion on the evidence was that the claimant’s case should be distinguished from that of the other care workers, who had adopted a practice of not pureeing potato cake, because the claimant alone had been taken through the capability procedure and, accordingly, should have known better.  The claimant gave the impression to Yvonne Rhodes that she could not be trusted not to behave in a similar way in the future and substitute her own judgment as to how something should be done, rather than follow the care plan.  She came to that view because the claimant had demonstrated herself capable of following care plans and yet, on this occasion, shortly after being signed off as capable, had lapsed.  In the view of Yvonne Rhodes, that meant that the claimant could not be trusted in future.  That involved a breach of trust and confidence so as to justify a label of gross misconduct on the claimant’s conduct of 12 June.”

11.	Mrs Cowton appealed against the decision to dismiss her.  The appeal was dismissed.

The Tribunal’s reasons

12.	After making its findings of fact, on which we have already drawn, the Tribunal made appropriate reference to section 98 and 98A of the Employment Rights Act 1996.  In paragraph 26 it summarised impeccably the issues which arose, for the purposes of section 98(4) when determining whether a dismissal such as this was or was not unfair.  The Tribunal dealt with section 98A in terms which are not the subject of any appeal.  The Tribunal found that the disciplinary process was procedurally fair.  

13.	At this point the Tribunal diverged in view.  The majority members reasoned as follows.

“29.	Turning to the majority judgment in respect of the substantive issue of unfair dismissal, the non-legal members would have had no difficult finding the dismissal fair had the claimant been the only care worker who had mashed the resident’s potato cake.  In these circumstances, she would be the only one not following the care plan and her offence would have been compounded by the capability procedure that she had been taken through.
30.	The non-legal members find that the decision to dismiss was out with the band of reasonable responses because the respondent had evidence that other care workers had fed mashed potato to residents in respect of whom their care plans stipulated that all food should be blended to a pureed consistency.
31.	They find as a matter of inference from the evidence of Michelle Strathearn and Sandra O’Hara that some members of management, if not the staff nurse Pamela Johnson, would have been aware of the practice and yet had not taken steps to enforce adherence to care plans.  Those members do not accept that the claimant was in a different situation to that of her care worker colleagues by virtue of having been taken through the capability procedure because all of them had put residents at risk by mashing potato cakes and should have known better.
32.	Further, those members find that the respondent did not conduct as much investigation as was reasonable in the circumstances because they did not interview the other care workers to establish the extent of the practice.  For example, there was evidence that the claimant had coughed the previous day.  It is part of Pam Johnson’s statement in her investigatory interview.  In context, the coughing the previous day and on 12 June led her to suspect that feeding procedures were not being adhered to, as indeed it proved to be the case for the claimant.  Be that as it may, the non-legal members find that a wider enquiry of the other care workers would have disclosed the extent of the practice and underlined the unfairness of treating the claimant differently.”

14.	The Employment Judge took a different view.  His reasoning is set out in paragraphs 33‑37 of the Tribunal’s reasons.  We need not repeat it here.  Suffice it to say that he considered the Council to have carried out an investigation and reached a conclusion which was within the range of reasonable responses.

Submissions

15.	On behalf of the Council, Mr Bourne submits that the reasoning of the majority members demonstrates that they have applied the wrong test when considering whether the conduct of Mrs Cowton could be distinguished from other care workers.  He submits that the Tribunal has substituted its own view for that of Ms Rhodes rather than asking whether the view of Ms Rhodes was a reasonable view.  Alternatively, the majority has failed to give adequate reasons for the decision reached.  Further or alternatively, the decision of the majority was perverse.  He referred us to cases on the question whether a Tribunal should find a dismissal unfair on the ground that others were treated differently: see Hadjioannou v Coral Casinos Ltd [1981] IRLR 352 and Paul v East Surrey District Health Authority [1995] IRLR 305.  He submits that in fact the Council treated other care workers in the same way as Mrs Cowton, because they were first given an opportunity to improve before being disciplined.  He further submits that no further investigation was required because there was already ample evidence that other care workers fed mashed food.  He submits that a finding of unfair dismissal should be substituted.

16.	On behalf of Mrs Cowton, Mr Searle submits that the decision of the majority discloses no error of law.  The Tribunal gave itself a correct self-direction in law.  The decision of the majority was reasoned.  It did not substitute its own view for that of the employer.  There is no difficulty in seeing why the majority reached the conclusion they did: its decision is not to be impugned for lack of reasons.  It was not a perverse decision. 

Conclusions

17.	At the outset we remind ourselves that an appeal to the Employment Appeal Tribunal lies only on a question of law.  The Appeal Tribunal is concerned to see whether the Employment Tribunal has applied correct legal principles, given sufficient reasons and reached a permissible (that is, not a perverse) conclusion.  The Appeal Tribunal is also concerned, where a decision is by a majority, with the reasoning of the majority.  Only if there is an error of law in the reasoning of the majority will the Appeal Tribunal intervene.  

18.	In considering the reasoning of the majority, the starting point is to note that if Mrs Cowton had been the only person to have mashed the potato cake the majority would have had no difficulty finding the dismissal fair.   It was the disparity of treatment with other care workers which caused them concern.

19.	Arguments based on disparity ought to be scrutinised with particular care by Tribunals.  In Hadjioannou v Coral Casinos [1981] IRLR 352 the Appeal Tribunal accepted that evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case that it was not reasonable on the part of the employer to visit the particular employee’s conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances.  However the Appeal Tribunal sounded a note of caution.  At paragraph 25 Waterhouse J said:

“… tribunals would be wise to scrutinize arguments based on disparity with particular care …there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument.  The danger of the argument is that a Tribunal may be led away from a proper consideration of the issues raised by section 57(3) of the Act of 1978.  The emphasis in that section is upon the particular circumstances of the individual employee’s case.”  

20.	The approach set out in Hadjioannou was endorsed by the Court of Appeal in Paul v East Surrey Health Authority [1995] IRLR 305 at paragraphs 34 -35, 38 and 41.

21.	At the end of paragraph 31 the majority reasoned that they 
“..do not accept that the Claimant was in a different position to that of her care worker colleagues by virtue of having been taken through the capability procedure because all of them had put residents at risk by mashing potato and should have known better”

22.	This reasoning betrays a clear error of legal approach on the question whether the position of other care workers could be compared to that of Mrs Cowton.  The question for the Tribunal was not whether they themselves formed the view that Mrs Cowton was not in a different position.  The question was whether Ms Rhodes was reasonable in forming the view that Mrs Cowton was in a different position.  The well known “band of reasonable responses” test applied to that question.  Nothing in the reasoning of the majority expressly asks the correct question or answers it.  

23.	In our judgment if the majority had asked the question whether it was reasonable to treat Mrs Cowton as in a different position from other care workers, having in mind the guidance in Hadjiannou, the answer would have been plain.  There was a critical difference in their positions.  Mrs Cowton had been the subject of prior complaint in consequence of which she had been taken both informally and then formally through a capability procedure.  She had been expressly warned that any further issues would be dealt with under the disciplinary procedure.   Where, as here, an employee is dealing with highly vulnerable patients, there comes a point where an employer is entitled to take the view that an employee cannot be trusted not to behave in a similar way in future.  

24.	To our mind if the majority had asked the correct question they would have been bound to find that it was reasonable to treat Mrs Cowton as in a different position to that of her care work colleagues.

25.	Once granted this conclusion, we think the other ground which the majority gave for holding the dismissal unfair also falls away.  The majority found that the Council did not carry out as much investigation as was reasonable in the circumstances because they did not interview other care workers to establish the extent of the practice.  From the perspective of the majority, this was because wider enquiry would have disclosed the extent of the practice and underlined the unfairness of treating Mrs Cowton differently.  But Ms Rhodes was well aware that she was not treating Mrs Cowton the same way as other care workers.  The question as we have seen was whether she was reasonable in making the distinction she did.

26.	For these reasons we think that the majority of the Tribunal erred in law when they held that the dismissal was unfair because Mrs Cowton was treated differently from other care workers.  If they had applied the law correctly they would have been bound to find that it was within the reasonable band of responses to treat her differently.  It is plain that, if Mrs Cowton’s case had stood on its own, the majority would have found her dismissal fair.  In these circumstances the right outcome is that a finding should be substituted that the dismissal was not unfair.  The appeal is allowed.