Appeal No. EAT/185/91

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 21st January 1993

	Before

	THE HONOURABLE MR JUSTICE KNOX

	MR J R CROSBY

	MR K GRAHAM CBE

LONDON BOROUGH OF GREENWICH	APPELLANTS

MRS C GARRAWAY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR J E PARROTT
Assistant Director of Personnel
London Borough of Greenwich
Peggy Middleton House
50 Woolwich New Road
London SE18 6HQ

For the Respondent	Ms C KING
Employment Officer
Lewisham Racial Equality Council
48 Lewisham High Street
London SE13 5JH

	MR JUSTICE KNOX:  This is an appeal by the London Borough of Greenwich, which I will call the "Local Authority" from a decision of the Industrial Tribunal sitting at London (South) on the 5th and 6th July 1990 and the 29th January 1991, sent to the parties on the 12th March 1991, that the Respondent before us, Mrs Garraway, was unfairly dismissed.  This dismissal occurred after a disciplinary board which was constituted by the Local Authority after hearing evidence found some, but not all, of various charges of misconduct, on the part of Mrs Garraway, to be established.  The events which led to that state of affairs were briefly as follows.

	Mrs Garraway was employed as a Night Care Assistant at Bryceson Home for the Elderly in Charlton, which is managed by the Local Authority.  There were two nights in October 1989 when it was claimed that there were incidents, the details of which now do not matter for the purposes of this judgment, which caused the elderly residents of that home unnecessary distress, and on the latter occasion, amounted to serious ill-treatment of that resident.  Three residents were involved on the first occasion and one only on the second.

	The first occasion was reported to the Senior Services Manager, a Mr Weir, six days after it happened by the Unit Manager and he, Mr Weir, set investigations in train and interviewed the residents concerned.

	The Industrial Tribunal recorded the fact that it was assured and that it accepted that the residents concerned were not mentally confused.  The investigations led Mr Weir to decide that there should be a disciplinary hearing and specific charges were sent to Mrs Garraway under cover of a letter of the 17th November. By that time Mr Weir had learnt of the second incident on the 20th October and that was included among, and indeed formed the most serious of, the charges in that letter of the 17th November.

	There was then a disciplinary hearing on the 5th December 1989 but that was adjourned because an objection was taken to the use of the statements from the elderly residents which had been taken by Mr Weir and they were re-taken, again by Mr Weir, but this time in the presence of a union representative, between the 5th, and certainly before the 18th, and it would appear before the 11th December.  The disciplinary hearing was re-constituted or continued on the 18th December 1989 with the benefit of those re-taken statements and it continued also on the 3rd January 1990.  The disciplinary panel then considered the matter and decided on the 8th January 1990 that some of the charges were proved and some of them were not proved.  But the decision taken by the Assistant Director of Social Services was that those that were proved were serious misconduct which merited summary dismissal.  This decision was conveyed to Mrs Garraway in a letter of the 8th January 1990.  Mrs Garraway was told of her right to appeal to a committee of councillors.  She exercised that right and there is no issue before this Tribunal regarding that further appeal which it is accepted was properly carried out.  Equally no procedural criticism was made of the original disciplinary hearing itself.

	The Industrial Tribunal found that the case was a difficult one, and that is a feeling that we all share.  The situation is essentially, of course, a difficult one for a Local Authority which has onerous responsibilities both to look after elderly residents in their homes and see that they are not maltreated, but it also has important and serious responsibilities towards its own employees to see that they are not dismissed otherwise than for adequate cause.  The difficulties are compounded of course in relation to the care of the elderly at night, which is something which is necessarily done by limited numbers of people, and with a very limited amount of direct supervision.  On no view, therefore, is this a simple matter.  

	The Industrial Tribunal found, first of all, that if the charges were found proved it was clearly proper for the Local Authority to dismiss Mrs Garraway.  That means, of course, that there is no issue as regards the penalty that was imposed.  Secondly, it found, as I have already mentioned, that the residents in question were not suffering from mental disability, in the sense of mental confusion, although they did say this, in paragraph 13 of their decision:
"Having regard to the fact that all these residents are elderly and although we were assured and accept that they were not mentally confused it does leave something of a question mark over the value of their evidence."

It may not be entirely certain what that phrase means but we treat it as meaning that although there was no mental confusion the evidence of the residents was something which was, perhaps, less compelling than evidence to the same effect from other persons might have been.  The final and critical conclusion that the Industrial Tribunal reached was that the investigations carried out by the Local Authority did not satisfy the Industrial Tribunal and that more was required before the Local Authority could be satisfied, on the basis of reasonable investigation, that Mrs Garraway was behaving in the way alleged.  The Industrial Tribunal then said this:
"We appreciate that this causes difficulties for the respondents because unless a care assistant is caught red-handed, and this is going to be difficult particularly at night, it is extremely difficult for them to assemble the evidence.  Our view, however, is that having regard to the seriousness of the allegations and the fact that if established they would inevitably and justifiably mean the dismissal of the applicant, the respondents ought to have proceeded with more care."

They then made suggestions as to what, in their view, ought to have been the actions of a reasonable employer.  They preface that observation with the statement:
". . . we do not wish it to be thought that we are substituting our own view for that of the respondents . . .

The two suggestions that they made were that the complaints by the residents should have been the starting point and would have raised a suspicion against Mrs Garraway and that in those circumstances either a special watch should have been kept on her by somebody in authority, taking on temporarily the duties of Night Care Assistant, so that she could be observed or secondly, by the imposition of spot-checks at the home, during the night, in order to gauge what her activities actually were.  They repeat their opinion that the investigations did not measure up to the standard that ought to be expected of the reasonable employer, particularly where the inevitable consequence of a finding that the Applicant has done the acts complained of will mean her summary dismissal for gross misconduct.

	So far as those two practical suggestions are concerned it is neither the function of this Tribunal, nor we would suggest, the function of an industrial tribunal to give detailed suggestions as to how a business, or activity, of a Local Authority, should in detail, be conducted.  We would therefore limit our observations on that score to saying that the processes suggested would, particularly in the view of the Industrial Members of this Tribunal, have been significantly more appropriate to a case where the employee was failing to perform his or her duties with proper competence, so that monitoring became desirable, than to a case where, what was in issue was one or more acts which, if proved, constituted gross misconduct, where the process of monitoring can necessarily only apply in relation to future gross misconduct and cannot be of any assistance in deciding whether the original alleged acts of gross misconduct have, or have not, in fact been committed.  The effect of the view that was expressed by the Industrial Tribunal is, as we understand it, and we did not understand Ms King, who appeared for Mrs Garraway to dispute this, that the Industrial Tribunal's analysis of where the Local Authority fell short, was that it was premature to institute the disciplinary proceedings that were instituted without there being more evidence to support the charges.  That is, essentially, a matter of judgment for the Industrial Tribunal to make and it is in that context that one turns to see what is the basis upon which this appeal is launched before this Tribunal.

	The Notice of Appeal is entirely unambiguous in putting the case as one where it is claimed that the Industrial Tribunal's decision was perverse.  That is what paragraph 1 of the Notice of Appeal says:
"The grounds upon which this appeal is brought is (sic) that the Industrial Tribunal erred in law in that the decision was perverse.  It was one which no reasonable tribunal, directing itself properly on the law could have reached, and was one which was obviously wrong."

There is then reference to well known authorities on the subject of perversity and finally, at the end of the Notice of Appeal, it is summarised by saying:
"We therefore consider the decision of the Tribunal to be perverse."

There is, therefore, no doubt at all but that this case has been put on the basis of perversity fairly and squarely.  As to the authorities on that subject we refer to the decision in East Berkshire Health Authority v. Matadeen [1992] IRLR 336, which contains an analysis of the authorities on the subject.  The passage to which we were referred is in the headnote setting out what Mr Justice Wood said on that occasion, it reads as follows at page 336:
"Thus, even on factual findings of an Industrial Tribunal, the EAT can interfere if the members are satisfied in the light of their own experience and of the sound practices in the industrial field that the decision is `not a permissible option', per Lord Donaldson MR in Piggott Bros v. Jackson; or that it is `a conclusion which offends reason or is one to which no reasonable Industrial Tribunal could come' or `so very clearly wrong that it just cannot stand', per May LJ in Neale v. Hereford and Worcester County Council"

and then I pass over a passage which was not relied upon by Mr Parrott on behalf of the Local Authority.  Mr Justice Wood went on:
"However, the occasion upon which the EAT can interfere with the decision of an Industrial Tribunal on the ground of perversity is likely to be very rare.  EAT members should caution themselves against so doing and, in particular, be careful not merely to substitute their own views for those of the Tribunal.  They cannot interfere merely because they disagree.  They cannot interfere even if they feel strongly that the result is unjust.  However, in that latter case, it may be that on careful analysis the decision flies in the face of properly informed logic."

That last sentence is a reference to the category upon which Mr Parrott did not rely and I need not deal with that aspect of the matter further.  What was said in support of the proposition that there was perversity here were really three points taken by Mr Parrott.  The first was that the Industrial Tribunal had taken the view that the evidence of the residents, which was the evidence upon which disciplinary tribunal acted, was effectively invalidated because of the age of the persons concerned.  We doubt whether that is, in fact, a justifiable conclusion.  I have already read the passage that deals with the Industrial Tribunal's views about the value of those persons' evidence and it is, we think, fair to say that there was some process of discounting because of the age of the complainants but it would, in our view, be an exaggeration to say that the Industrial Tribunal regarded the evidence as invalidated, or set aside, simply because of the age of the complainants.  True it is that the Industrial Tribunal formed the view that that evidence of those people, who are by definition, elderly, was not enough and there is no doubt about that, but that is a good deal short of saying that there was something indicative of perversity in the attitude that I have quoted from the Industrial Tribunal's decision.

	The second point was, in our view, a more powerful one and that was that the effect of the Industrial Tribunal's decision was that, as Mr Parrott put it, the complaints should be effectively set aside unless further evidence of wrong doing, not relating to the original complaints, should be forthcoming as a result of the monitoring processes suggested by the Industrial Tribunal, and in those circumstances this could not possibly be right because it would follow that there could be no disciplinary proceedings in relation to the original complaints.  I have already indicated that it does, in our view, follow that if a monitoring process was embarked upon it would cease to be possible to commence disciplinary steps and procedures against the employee concerned in relation to the original alleged offences and to that extent there is force in the criticism.  But again, of course, it is a matter of judgment as to how far the evidence that the Local Authority had was sufficiently reliable for it to be within the band of reasonable responses of an employer to institute the disciplinary proceedings that were instituted in this case.  It is not for us to say whether we agree with the view that was formed on that subject by the Industrial Tribunal because that is not our function and it does not, in our judgment, come within that very exceptional category that is dealt with in the East Berkshire Health Authority v. Matadeen and the other authorities of which we were referred to Piggott Bros & Co Ltd v. Jackson & Ors [1991] IRLR 309, during the course of Ms King's submissions.  That, we wish to emphasise particularly, does not lead to the conclusion that this decision can be used as authority for the proposition that a Care Assistant can only be dismissed for gross misconduct if caught red-handed and we would wish to guard, most emphatically, against any such conclusion.  It is not our function, as we see it, to substitute our view for what is or is not adequate evidence for the institution of disciplinary procedures against Care Assistants.  We recognise that there is a difficult and onerous responsibility cast upon this Local Authority and other local authorities in similar situations to protect the residents in their respective homes and it is their obligation to see, where the circumstances are appropriate, that disciplinary proceedings are taken against persons against whom allegations are made of misconduct.  The question whether the circumstances warrant such disciplinary proceedings is, of course, a matter of judgment upon which industrial tribunals have to make up their mind and as this case shows it is by no means an easy thing to do.

	We therefore, while saying that this is not a case which measures up to the requirements, which are very stringent, of the law regarding perversity in an industrial tribunal, wish not to be understood to suggest that this is, therefore, any sort of authority for translating what is actually a factual decision into a proposition of law regarding the standard of proof that has to be established before disciplinary proceedings can properly be instituted inside a local authority organisation.  This is simply a decision on the facts of a particular case and is of no assistance in the generality of other cases.

	The third and other point that was made was that the inappropriateness of the suggested steps for monitoring the future performance of Mrs Garraway was of itself indicative of the fact that the decision itself was a perverse one.  As already indicated we do see the force of the criticism but it is a pure question of fact, although many might think that the likelihood of a Care Assistant misbehaving in the presence of a senior officer from the organisation immediately beside her, would be minimal.  Nevertheless, these are purely practical questions which cannot, in our view, add up to a justification for a finding that the Industrial Tribunal's decision is perverse.

	Those were the reasons that were principally adduced in support of the perversity argument.  There was also mention of what Mr Justice Arnold said in British Home Stores Ltd v. Burchell [1978] IRLR 379 at page 381, where in relation to that particular decision, he said of the Industrial Tribunal:
"they embarked upon an independent evaluation of the evidence, not for the purpose of seeing whether the employers could reasonably have drawn the conclusion which the employers in fact drew, but whether that was by an objective standard a correct and justifiable conclusion.  And moreover the tribunal were led into examining the matter from the point of the standard of proof which could be derived from the matters which had been stated, which were known to the employers, in order to see whether the conclusion was justified."

If we had been persuaded that the Industrial Tribunal in this case had itself assumed the role of deciding whether or not the charges against Mrs Garraway were established we would have reversed the decision, not on the basis of perversity, but on the basis that the wrong legal question had been addressed.  But there are grave difficulties in that course.  First of all the point is not taken in the Notice of Appeal.  Secondly, although there are some indications supporting the submission, particularly in the fact that there was an adjournment, after the parties had closed their cases, by the Industrial Tribunal to enable other witnesses to be called for the purpose of finding out:
"What might, or might not be their recollections of what had happened"

nevertheless, we do appreciate that the Industrial Tribunal applied its mind, not to the question, did Mrs Garraway commit the offences charged or not, but to the question whether the Local Authority carried out sufficient investigations from which they could, as reasonable employers, come reasonably to the conclusion that she had committed such of the offences as the disciplinary tribunal were able to accept on the evidence before them had been committed.  That is, obviously, a different question from deciding itself whether or not Mrs Garraway had actually committed the offences.

	We therefore, although we found the case one of very considerable difficulty, are unable to find that the stringent requirements of the law regarding perversity are satisfied and on that basis we have to dismiss this appeal.