Appeal No. UKEAT/0542/08/LA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 3 April 2009

Before
HIS HONOUR JUDGE PETER CLARK
MR A HARRIS
MR B M WARMAN

CENTRAL & NORTH WEST LONDON NHS FOUNDATION TRUST	APPELLANT

MR B ABIMBOLA	RESPONDENT

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR KEITH MORTON
(of Counsel)
Instructed by:
Messrs Radcliffes LeBrasseur Solicitors
5 Great College Street
Westminster
London  SW1P 3SJ	
For the Respondent	MR JAKE DUTTON
(Solicitor)
ieLaw Solicitors
Nova Building
Herschel Street
Slough 
Berks  SL1 1XS	

SUMMARY
UNFAIR DISMISSAL:  Reinstatement/re-engagement
Order for reinstatement made.  The Employment Tribunal failed to take into account relevant factors in the exercise of their discretion.  Appeal allowed; reinstatement order set aside.

HIS HONOUR JUDGE PETER CLARK
1.	The parties in this matter, which has been proceeding before the Watford Employment Tribunal, are Mr Abimbola, Claimant, and Central & Northwest London NHS Foundation Trust, Respondent.  This is an appeal by the Respondent against an order for the Claimant’s reinstatement made by an Employment Tribunal chaired by Employment Judge Metcalf following that Employment Tribunal’s finding that the Claimant was unfairly dismissed from his employment by the Respondent.

Background
2.	The Claimant was employed by the Respondent or its predecessor as a Band 5 Psychiatric Nurse at Hillingdon Hospital from 1 February 2000 until his summary dismissal on grounds of alleged gross misconduct on 5 March 2007.  He then had some 22 years experience as a Psychiatric Nurse.  

3.	On 23 May 2007 he presented his complaint of unfair dismissal to the Employment Tribunal.  The claim was resisted and came on for a liability hearing before Employment Judge Metcalf’s Tribunal on 25, 28 and 29 April 2008.

4.	The alleged incident which precipitated his dismissal occurred during night duty at the hospital on 12/13 June 2006.  

5.	A patient (MG) who had been compulsorily admitted to the hospital under section 3 of the Mental Health Act 1983, described by the Tribunal as a big man and quite strong, became agitated and refused to take his medication.  It seems that he was armed with a kitchen fork.  He was restrained by members of the nursing staff including the Claimant.  Two security officers declined to become involved in that exercise.  However they both claimed that the Claimant held the patient in a headlock; something which he, supported by the other nurses, denied.  It appears that a degree of tension existed between the Respondent’s employed nursing staff and members of the security staff, who were supplied by outside contractors.  

6.	Disciplinary proceedings against the Claimant ensued.  Staff and the two security officers were interviewed during an investigation conducted by Linda Burgess.  She recommended disciplinary proceedings which then took place.

7.	Meanwhile on 12 July the Claimant had been suspended from duty in connection with a separate allegation of assault on a patient on that day.  In relation to that second allegation he was given a final written warning on 9 October.  His suspension then continued in relation to the index incident.  A disciplinary hearing was held on 31 January and 15 February 2007.  He was dismissed by letter dated 5 March.  The reason for dismissal was said to be that:

“he may have physically assaulted a service user on 13 June 2006 on Fray’s Ward at Hillingdon Hospital.”

An appeal hearing took place on 13 June;  his appeal was dismissed.  

8.	The Employment Tribunal correctly directed themselves as to the applicable law.  As this was a conduct related dismissal, the threefold Burchell test applied.  It was for the Employment Tribunal to decide, if they found that the Respondent had a genuine belief in the misconduct alleged, that is applying a headlock to the patient MG, based on reasonable grounds following a reasonable investigation, whether both substantially and procedurally the sanction of dismissal fell within the range of reasonable responses.  In particular, in determining whether the Respondent had acted reasonably in dismissing the Claimant, the Employment Tribunal directed themselves in accordance with the approach of the Employment Appeal Tribunal in  A v B [2002] IRLR 405 (Elias J presiding).  An even-handed approach is necessary on the part of investigators where a serious offence of a criminal nature was, as here, involved.  If proven, it would be extremely difficult for the Claimant to find fresh employment as a psychiatric nurse.  A similar approach was taken by the EAT in ILEA v Gravett [1988] IRLR 497, the case of a swimming instructor employed by a local authority and accused of indecent exposure and indecent assault on a 13 year-old girl at the Leisure Centre at which he was employed.  

9.	Mr Dutton, appearing for the Claimant before the Employment Tribunal as he does before us, accepted (a) that the Respondent had a genuine belief in the misconduct alleged, (b) that the Respondent had carried out a reasonable investigation (c) that if the Respondent had reasonable grounds for their belief then dismissal fell within the range of reasonable responses open to the Respondent and (d) that there was no procedural unfairness.  Thus the sole issue for the Employment Tribunal to determine at the liability stage was whether the Respondent had reasonable grounds for their belief.

10.	By their Liability Judgment dated 7 May 2008, in respect of which written Reasons were given on 30 June, the Employment Tribunal upheld the Claimant’s complaint.  They found that ‘the evidence was not sufficient to support a reasonable belief in the alleged misconduct’;  that is the Respondent did not have reasonable grounds for their genuine belief that the Claimant had held MG in a headlock.  Further, the Employment Tribunal was not satisfied that the Claimant had contributed to his dismissal by his own conduct.  

11.	Against the Liability decision the Respondent appealed.  That appeal was rejected on the paper sift under Rule 3(7) of the Employment Appeal Tribunal Rules by HHJ Ansell for the reasons given in the Employment Appeal Tribunal’s letter of 13 August 2008.  

12.	Meanwhile, on 5 August a remedy hearing took place before Employment Judge Metcalf’s Employment Tribunal at Watford.  As appears from their Remedy Judgment, with Reasons promulgated on 13 August 2008, the day on which the liability appeal was rejected on paper by Judge Ansell, the Employment Tribunal ordered the Claimant’s reinstatement by the Respondent as a Band 5 Psychiatric Nurse on a female ward at Hillingdon Hospital effective on 8 September 2008.  They further directed that he be paid arrears of salary and pension rights, less £900 pay earned by the Claimant working at a car wash between the date of dismissal and that of the Remedy Hearing and ordered an interim payment of £2,000.

13.	Against the Remedy Judgment the Respondent appealed by a Notice dated 30 September.  Following resolution of an issue as to whether this appeal was lodged in time in favour of the Respondent, I directed this full hearing on the paper sift on 15 December.

Reinstatement
14.	Although orders for reinstatement or re-engagement are the primary remedy for unfair dismissal, we believe that historically only about 3 per cent of successful unfair dismissal claims result in an order for re-employment in one or other of these forms.  By s114(1) of the Employment Rights Act 1996 (ERA), an order for reinstatement is an order that the employer shall treat the complainant in all respects as if he had not been dismissed.  That is precisely the effect of the Employment Tribunal’s order in this case.  Re-engagement, with which we are not concerned, requires the employer to re-employ the Claimant on comparable, but different terms from those which he enjoyed prior to dismissal.

15.	Employment Tribunals have a wide discretion in determining whether or not to order reinstatement.  It is essentially a question of fact for them.  However, they must take into account three factors under s116(1) ERA; (a) whether the complainant wishes to be reinstated, (b) whether it is practicable for the employer to comply with an order for reinstatement and (c) where the complainant caused or contributed to his dismissal whether it would be just to order his reinstatement.  

16.	In the present case the Claimant asked for reinstatement; he was found not to have contributed to his dismissal, therefore the sole mandatory issue before the Employment Tribunal was whether it is practicable for the Respondent to comply with an order for reinstatement.  

17.	As the Court of Appeal made clear in Port of London Authority v Payne [1994] IRLR 9, the scheme of the legislation involves a two-stage approach.  At stage one (the first remedy hearing) the Employment Tribunal must make some determination as to the practicability of reinstatement (per Neill LJ, paragraph 46).  However such a determination is provisional at that stage.  If the employer fails to comply with an order for reinstatement, at a second stage remedy hearing, in addition to making an ordinary compensatory and basic award for unfair dismissal, the Employment Tribunal shall also make an additional award of between 26 and 52 weeks pay unless the employer proves on the second occasion that reinstatement is in fact impracticable.  At that stage the Employment Tribunal will make a final determination of the practicability question (ERA s117(3)).  In reviewing the earlier Employment Appeal Tribunal cases, Neill LJ referred (see Payne paragraph 43) to a passage in the judgment of Browne-Wilkinson P in Timex Corporation v Thomson [1981] IRLR 522 where he said:

“At the (first) stage when the order to re-engage is being made, it is not in our judgment necessary for the Industrial Tribunal [now Employment Tribunal] looking at possible future events, to make a definite finding that the order for [in that case] re-engagement was practicable.  They must have regard to the question of practicability and if they are satisfied that it is unlikely to be effective, they will no doubt not make an order.” 

18.	Subject to the caveat that the Employment Tribunal must make some determination, albeit provisional, of practicability at the first stage, we do not understand Neill LJ to have dissented from that statement of the law in Timex.  

19.	Of course, just as the actress Bette Davis could not be compelled to work for the Studio to which she was contracted (see Warner Brothers v Nelson [1937] 1KB 209) so an employer cannot, under this legislation, be forced to take back a former employee under a reinstatement order.  But if he does not do so he will be subject to the penalty of an additional award of compensation in favour of the Claimant.

20.	What does “practicability” mean in this context?  Practicable means more than possible.  For example, in Coleman v Magnet Joinery Ltd [1975] ICR 46, where re‑engagement of the unfairly dismissed employees, although possible, would have led to industrial strife, the Court of Appeal held that re-engagement was not practicable.  Further, loss of the necessary mutual trust and confidence between employer and employee may render re‑employment impracticable.  ILEA v Gravett is a relevant example.  There, having upheld the Industrial Tribunal’s finding of unfair dismissal on appeal, the Employment Appeal Tribunal (Wood P presiding) went on to consider the Industrial Tribunal’s order for re-engagement and at paragraph 21 (see below) set out the Respondent’s case on this issue, which at paragraph 23 the EAT accepted.  

“21.	The Tribunal ordered re-engagement and are criticised by the Appellant employer for what they submit is a wholly perverse decision upon all the facts of this case.  It is a possible view of that decision, but we do not seek nor do we need to go that far.  An essential finding in the present case was that the authority had a genuine belief in the guilt of the applicant.  It is said with accuracy that this is the largest education authority in the country and that it has a vast area to cover and a vast variety of posts into which the applicant could be fitted.  It is, however, a common factor in any of those posts that the applicant would have the care and handling of young children of both sexes.  Bearing in mind the duty of care imposed upon the authority and the very real risks should they depart from the highest standard of care, we take the view that this Tribunal failed adequately to give weight to those factors in the balancing exercise carried out in order to reach their decision on re-engagement.”

Pausing there, we accept Mr Morton’s submission that the duty on the Respondent in the present case for the care of vulnerable patients is not dissimilar from the duty on the education authority in the Gravett case.

21.	The order for re-engagement was set aside in that case; and since mutual trust and confidence is a two-way street we have noted the decision of the Court of Appeal in Nothman v London Borough of Barnet (No. 2) [1980] IRLR 65 cited by the Employment Appeal Tribunal in Wood Group Heavy Industrial Turbines Ltd v Crossan [1998] IRLR 680 (EAT(S)), paragraph 7, per Lord Johnston.  In Nothman, it was the employee, Miss Nothman, whose mistrust and lack of confidence in the Respondent due to her belief that she was a victim of a conspiracy within the employing authority, rendered reinstatement inappropriate in that case.

22.	More recently, in Wood Group, an Employment Tribunal‘s order for re-engagement was set aside where the Respondent genuinely believed that the Claimant was using and dealing in drugs in the workplace and had been guilty of clocking offences.  Although the dismissal was found to be unfair due to a lack of proper investigation and failure by the Respondent to follow a fair procedure, the breakdown in trust and confidence given the nature of the allegations and the employer’s genuine belief in them meant that it was impractical to order re-engagement (see paragraph 10).

The Appeal
23.	 Given that the Employment Tribunal was not required to make a final determination of the practicability question at the first remedy hearing stage and that the balancing exercise to be carried out by the Employment Tribunal between the interests of the Respondent on the one hand and the Claimant on the other is essentially one of fact, how can the Respondent successfully challenge this reinstatement order?  We cannot simply retry the question of reinstatement.  Whether or not we might have reached a different conclusion to that of the Employment Tribunal is nothing to the point and that is not the purpose of an appeal to the Employment Appeal Tribunal, whose jurisdiction is limited to correcting errors of law; and the general perversity ground, that no reasonable Employment Tribunal properly directing itself could have concluded that a reinstatement order was appropriate on the facts of this case, is a high hurdle for appellants see Yeboah v Crofton [2002] IRLR 634 and particularly, on the topic of re-engagement, the observations of Lindsay P in Clancy v Cannock Chase Technical College [2001] IRLR 331, paragraph 15.

24.	The answer to that question, submits Mr Morton, relying on Wednesbury principles, is that in determining the remedy question this Employment Tribunal failed to take into account relevant factors and took into account an irrelevant factor in carrying out the balancing exercise in order to exercise its discretion.  He relies on the following features of the case.

	(1)	The Claimant’s dishonest evidence as to his loss of earnings given at the remedy hearing:  

	At paragraph 7 of the remedy reasons the Employment Tribunal found that the Claimant’s evidence at that hearing was, at times evasive and on one occasion perhaps even dishonest in that initially he said that he had not done a day’s work since dismissal by the Respondent, but later in cross-examination accepted that he had done on average three days a week at a carwash for a period of ten weeks earning about £900.  

It was submitted on behalf of the Respondent that such conduct in these proceedings caused a lack of trust on the part of the Respondent.  The Employment Tribunal held that such evasiveness and dishonesty was not a relevant factor.  The legislation, in their opinion, does not envisage such a matter being taken into account on the reinstatement question.  Mr Morton submits that, first the Tribunal was not restricted to simply considering the three mandatory factors in s116(1) ERA, relying on the judgment of Neill LJ in Payne particularly at paragraphs 36 and 48, but that in any event loss of trust and confidence goes to the question of practicability under s116(1)(b) on the authorities.

Mr Dutton argues to the contrary by reference to an obiter remark by Lord Simon of Glaisdale in Devis v Atkins [1977] ICR 662, 684 C-D where his Lordship said

“Although there is, on the face of it, a discretion in the tribunal whether or not to order reinstatement or re-engagement, the fact that an employee was guilty of successfully concealed misconduct does not appear to be one of the matters which the tribunal can take into consideration.”

and then refers to s71(6) and (7) of the Employment Protection Act 1975 precisely re‑enacted in s116 ERA.  We are not persuaded that Lord Simon’s fears were well-founded.  It is now settled law, see Wood Group and Nothman, that a breakdown in mutual trust and confidence is material to the practicability of a re-employment order.  In our judgment, this dishonesty in giving evidence at the remedy hearing was material to the Employment Tribunal’s consideration of whether or not to make a reinstatement order and ought to have been taken into account in the exercise of their discretion.  

(2)	The Final Warning.

Again, the fact that the final warning and underlying allegation of assault in July 2006 did not cause or contribute to the Claimant’s dismissal for the June 2006 alleged incident does not, as the Employment Tribunal believed (paragraph 5) render it irrelevant to the re‑employment question.  On the contrary, in our judgment, it is relevant to the issue of trust and confidence and therefore practicability of reinstatement.

(3)	The three unproven complaints of sexual misconduct made against the Claimant by female patients.

We are satisfied that, at paragraph 5, the Employment Tribunal chose to disregard those earlier unsubstantiated allegations on the basis that to take them into account would be to adopt an unjust “no smoke without fire” approach.  In our judgment that wholly misses the point.  The question is whether, taken cumulatively, this was a factor which undermined the Respondent’s trust and confidence in the Claimant such as to require them to re-employ him in a female ward.

(4) The finding at the liability stage that the Respondent genuinely believed that the Claimant was guilty of the headlock incident.

This is not a point which was taken below, but Mr Dutton accepts that had it been taken, it would be a relevant factor for the Employment Tribunal to take into account, by reference to the cases of Gravett and Wood Group.

Conclusion 
25.	In our judgment this appeal is well-founded.  The Employment Tribunal took too narrow a view of the reach of s116(1) ERA.  It deliberately excluded from the exercise of its discretion relevant factors (even if the fourth mentioned is excluded on the basis that the point was not specifically raised below).  In these circumstances, we are satisfied that the Tribunal fell into error.

Disposal
26.	Mr Dutton submits that even if, as we have found, the Employment Tribunal failed to take into account relevant factors, had they taken them into account the result would have been the same.  We disagree.  We prefer Mr Morton’s submission that, taking all those factors (and here we do include the fourth factor for this purpose) into account, it is clear that the Respondent could no longer be expected to trust the Claimant.  In these circumstances we shall allow the appeal, set aside the reinstatement order and remit this case to the same Tribunal for the purposes of assessing ordinary compensation, both the compensatory award and the basic award, unless agreement can be reached between the parties on those matters.