Appeal No. EAT/822/94

	EMPLOYMENT APPEAL TRIBUNAL
	58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

		At the Tribunal
		On 7 June 1995

	Before

	HIS HONOUR JUDGE C SMITH QC

	MR R H PHIPPS

	MRS P TURNER OBE

LIFECARE NHS TRUST	APPELLANTS

MRS S BRADBURY	RESPONDENT

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	MR C J HEAD
(Consultant)
Irenicon Ltd
Business Counsel
April Court
Sybron Way
Crowborough
E Sussex TW6 3DZ

For the Respondent	MR I WRIGHT
(of Counsel)
Messrs Ormerod Wilkinson
  Marshall
10 High Street
Croydon CR9 2BH

	JUDGE SMITH QC:  The Appellants, Life Care NHS Trust, appeal against the decision of an Industrial Tribunal sitting at London (South) on 3 May 1994 whereby the Industrial Tribunal held that Mrs Bradbury, a nursing ward sister employed by the Trust, had been unfairly dismissed by the Trust on 23 August 1993.  At a remedy hearing held in November 1994 the Industrial Tribunal refused to order re-instatement or re-engagement but made a compensatory award and a 25 percent reduction thereof due to contributory fault pursuant to s.74(6) of the 1978 Act.

	The matter is a difficult one and an anxious one having regard to all the circumstances and we are very conscious of what a serious matter it is for both sides.  

	The dismissal occurred in consequence of an incident which happened at the Trust's hospital at Coulsdon Road, Caterham on 23 July 1993 whilst the Respondent was on duty in a ward at the hospital which contained at the time about 26 or 27 patients, of whom all were suffering from severe learning disabilities.  On that date a report was made by a number of witnesses to a Mrs Vickers principally by a Mrs Horney, a supervisor of the activities department, to the effect that she and other staff had witnessed Mrs Bradbury at about 9.15 am or 9.20 am that morning throw a chair at Michael B, a patient in the ward.  Michael B was plainly and unfortunately a severely retarded adult with a mental age of three with severe learning difficulties.  There is no doubt at all on the findings of the Industrial Tribunal that he was behaving in a thoroughly aggressive, alarming and violent manner in the ward on that particular morning prior to the incident.

	Mr Cole and Miss Lander, other staff, confirmed Mrs Horney's statement.  Statements were taken that day from the witnesses and from Mrs Bradbury and in due course, in accordance with procedure laid down in the contract between the parties, a disciplinary hearing took place before Mr Buchanan, the deputy hospital manager.  I should say that the statements which were taken revealed allegations of pushing of Michael B by Mrs Bradbury and the chair-throwing incident.  As I say, there followed the disciplinary hearing on 25 August 1993 at which Mr Buchanan heard evidence from five witnesses altogether to the incident and the Respondent.  We have seen a note that was made of that hearing.  As a result of the hearing, Mr Buchanan, the acting manager of the hospital, concluded that he was satisfied that the Respondent had pushed Mr Michael B, a client in her care, and had thrown a chair at him.  He considered that this amounted to gross misconduct on the part of the Respondent and, accordingly, concluded that the Respondent should be summarily dismissed.  That decision of his is set out in the letter of dismissal which is dated 25 August 1993.  In the third paragraph of that letter Mr Buchanan states:

		"I informed you that in my opinion the evidence you provided in your defence was not acceptable and therefore your actions constituted gross misconduct and I therefore had no alternative but to summarily dismiss you."

There was then a reference to the appeal procedure which I need not go into.  It is right to say that, as recorded by the Industrial Tribunal, the Respondent exercised her right to appeal against the decision but her appeal was dismissed.

	The Industrial Tribunal reviewed all those facts in much greater detail in their decision and they held that the dismissal was unfair on grounds which they stated in paragraphs 30-32 of their decision.  Those paragraphs, of course, speak for themselves.  However, paragraph 30 can perhaps be summarized in this way:  that the Industrial Tribunal did not believe that the Appellants' conclusion that gross misconduct had taken place was consistent with the evidence heard by the Appellants, in other words, by Mr Buchanan.  In the Industrial Tribunal's view the statements of the witnesses were inconsistent and contained discrepancies and the Industrial Tribunal considered that the Respondent's statement was, as they put it:

		"far more consistent"

with what had taken place than those of the witnesses.  Thus the Industrial Tribunal considered that there was insufficient evidence to justify the finding of gross misconduct.  The Industrial Tribunal had found in paragraph 23 that the oral evidence given was inconsistent with the written statements and noted, seemingly in a critical way, that the three eye witnesses had discussed the incident together after leaving the ward and before they reported it to Mrs Vickers.  

	That was the first ground upon which the Industrial Tribunal held that the dismissal was unfair.

	The second and separate ground upon which the Industrial Tribunal held the dismissal to be unfair is that contained in paragraph 32 and is expressed in this way:

		"Furthermore, it appear clear that the Respondents [the Appellants before us] did not take into account the Applicant's previous good record, nor her length of service of 19 years but treated the act complained of in isolation and as gross misconduct which they considered automatically entitled them to summarily dismiss.  That of course is not the case.  Even if gross misconduct had occurred still in such circumstances due consideration should be given to the employee's past record and length of service."

So that they were there holding that it was unreasonable for the employer, the Appellants before us, not to take into consideration the Applicant's previous good record and her length of service before coming to their decision as to what the proper penalty or sanction was.

	At a remedy hearing, as we mentioned earlier, held on 23 November 1994, the Industrial Tribunal, although they said they had "every sympathy for the Respondent", did not order re-instatement or re-engagement but awarded compensation exceeding the maximum sum of £11,000 even after deducting 25 percent from the compensatory award, which the Industrial Tribunal found to be an appropriate deduction.  They expressed themselves in this way with regard to that aspect of the remedy hearing in paragraph 7: 

		"The Tribunal considered whether or not the Applicant contributed to her dismissal.  Whilst we have found that her conduct did not justify dismissal we do believe that the Applicant must take some responsibility for her ultimate dismissal and we will put her contribution at 25%."

	It does appear, therefore, that the way in which the Industrial Tribunal looked at the question of contribution was in the light of their conclusion that the conduct did not justify dismissal and had not been, in fact, gross misconduct.  That is a matter of some importance in the light of our conclusions, which I shall express shortly.

	That is the background to this unfortunate and difficult case.  Put shortly, the submission of the Appellants are, firstly, that the Industrial Tribunal misapplied the British Home Stores v Burchell test, as I shall call it by way of shorthand, that being a reference to the very well known and important decision of British Home Stores Ltd v Burchell [1978] IRLR 379 a decision of the Employment Appeal Tribunal, which I shall refer to a little later on in rather more detail.  The submission is that if the Industrial Tribunal had applied that test properly to the evidence before them they were bound to have concluded that the Appellant employers reasonably believed that the Respondent had been guilty of gross misconduct.  Accordingly, as the other side of that coin, so to speak, it was submitted that their decision that there was not sufficient evidence of gross misconduct before the Appellants was wrong and clearly wrong.  Whether one categorizes it as perverse does not matter, it was plainly wrong.

	The second submission of the Appellants was that the offence which the employers reasonably believed to have taken place, namely, pushing Michael B and, more particularly, throwing a chair at Michael B was so serious that even assuming that the Appellants did not consider the Respondent's record and length of service, it was still reasonable to dismiss.

	Those were the submissions made by the Appellants dealing with the two grounds upon which the Industrial Tribunal found the dismissal to be unfair.

	The submission of the Counsel for the Respondent was, first, that the Industrial Tribunal, on  a proper reading of paragraph 30, did apply the case of Burchell and were entitled to find that the employers held an unreasonable belief that the Respondent had committed gross misconduct by pushing Michael B and throwing a chair at him.  

	The second submission made on behalf of the Respondent was that the Industrial Tribunal, having found as a fact that the Appellants had failed to take into account the Respondent's record and length of service, were entirely justified in concluding that the dismissal was unfair on that basis.

	Those were the rival submissions that were made to us in outline.  We have considered carefully those submissions.  We have noted that, in our judgment, a proper and careful disciplinary hearing took place before Mr Buchanan.  It appears to us to be apparent from the note of the hearing which was before the Industrial Tribunal that Mr Buchanan had in mind the discrepancies in the evidence such as they were.  We do not consider it necessary to set out the details of the statements that were made by the various witnesses and to compare them with the evidence that they gave in any detail for the purposes of this judgment.  There were several persons, as we have already mentioned, who had seen part at least of what had happened on that morning.  All of the witnesses, except the Respondent and a Miss Susan Tawson, who supported the Respondent's account, spoke both of the Respondent pushing Michael B and of her throwing a chair in his direction.  There were certainly some discrepancies as to whether the chair had simply been thrown towards Michael B or whether it had been deliberately thrown at Michael B.  These discrepancies are referred to in more detail by the Industrial Tribunal and have been helpfully put in the form of a schedule, the accuracy of which is not challenged, by Mr Head, who appeared for the Appellants.

	In our judgment these discrepancies were really no more than the kind of differences in detail that might be expected from those doing their best to describe an event of this nature.  There certainly was evidence, particularly from Miss Lander, that the chair had been thrown deliberately at Michael B.  The Respondent's account was that she had not thrown a chair at all but simply used a chair to block or intercept a chair which was being thrown at her by Michael B.  Plainly this explanation was rejected by Mr Buchanan.  

	It is in the light of that summary that we have had to consider whether the Industrial Tribunal have misapplied the Burchell test in all the circumstances.  We remind ourselves that the Industrial Tribunal certainly had Burchell in mind because in paragraph 29 of the decision the Tribunal specifically reminded itself of the British Homes Stores Ltd v Burchell test.  We have found it helpful to remind ourselves yet again of the relevant parts as we interpret them to be of what Mr Justice Arnold said and we read from the first column of page 380:

		"What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, there must be established by the employer the fact of that belief;  that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.  It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.  It is not relevant, as we think, that the Tribunal would itself have shared that view in those circumstances.  It is not relevant, as we think, for the Tribunal to examine the quality of the material which the employer had before him, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being `sure' as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter `beyond reasonable doubt'.  The test, and the test all the way through, is reasonableness;"

	There is another passage which is of assistance to us and that is at page 381, second column, just below 19.  Referring, of course, to the particular circumstances of that particular case, it is in these terms:

		"they [meaning the Tribunal] embarked upon an independent evaluation of the evidence, not for the purpose of seeing whether management could reasonably have drawn the conclusion which management in fact drew, but whether that was by an objective standard a correct and justifiable conclusion."

	That was where the Industrial Tribunal went wrong in that particular case and in our judgment it is quite clear from what Mr Justice Arnold said in Burchell and, of course, from the approach that Mr Justice Browne-Wilkinson set out in Iceland Frozen Foods Ltd v Jones [1982] IRLR 439, which the Industrial Tribunal also correctly referred themselves to in paragraph 28 of their decision, that an Industrial Tribunal must only evaluate the evidence which was before management at the disciplinary hearing in order to decide whether the employer was acting reasonably in forming the belief that gross misconduct had occurred.  They must not do so in order to judge for themselves, that is to say, the Industrial Tribunal, or by some objective standard that gross misconduct had, in fact, occurred.  That is a vital distinction in this particular branch of the law in our judgment.

	Examining paragraph 30 and, indeed, paragraph 23, but particularly paragraph 30, in the light of those principles of which we have reminded ourselves, we are satisfied that the Industrial Tribunal did fall into the error which the Burchell decision sought to guard against.  In our judgment they were, in effect, independently evaluating the evidence for themselves and making their own decision in regard to it.  In our judgment, had they looked at the matter correctly, in accordance with the principles which we have attempted to set out, they would have been bound to conclude that the Appellants had acted reasonably in forming the belief that the Respondent had been guilty of gross misconduct.  In our judgment, an employer, provided he is acting in good faith and provided, of course, he carries out a proper investigation and a fair investigation, is quite entitled to decide which evidence he accepts and which evidence he rejects in forming his belief as to what has occurred and, in our judgment, that is what happened here because we repeat that in our judgment there were no more than minor discrepancies between the statements and the evidence of the witnesses and between the evidence being given by the respective witnesses.  Similarly, there was nothing sinister in our judgment about the three persons, who had seen something of what had happened, discussing the matter together before they reported it.

	Accordingly, on that ground, we find that the Industrial Tribunal was wrong in law in holding that the dismissal was unfair since, in our judgment, they misapplied the Burchell test and reached a wholly unreasonable conclusion as a result.

	However, the matter does not rest there, of course, because the Industrial Tribunal found as a fact that the Appellants before us did not take into account the Applicant's previous good record nor her length of service of 19 years and that, in our judgment, is a finding of fact, which the Industrial Tribunal were fully entitled to reach on the evidence before them.  Although, of course, the question is one of reasonableness in all the circumstances and not contractual obligation when one is considering this question as to what factors an employer should take into account before deciding what the sanction should be, we do note here that under the terms of the contract between the parties it is provided in a document which is headed "Code of requirements for staff" under the Appellants' name, and which is plainly a contractual document, in paragraph 7.3, after "summary dismissal" has been defined, as follows:

		"It must be clearly understood that gross misconduct will normally lead to summary dismissal.  However it should also be understood by all staff and managers that every case of suspected misconduct has to be fully investigated in accordance with the Disciplinary Procedure and judged on its merits.  The decision as to whether a particular act is viewed as gross misconduct and deserving of summary dismissal is therefore not automatic."

There follows, as a matter of record, in paragraph 7.4 a non-exhaustive but illustrative list of examples of gross misconduct, including subparagraph (6):

		"Assault upon, or aggressive, insolent or abusive behaviour towards any client, member of the public or employee."

	In our judgment it is clear from the contractual obligation in paragraph 7.3 that the decision to dismiss for gross misconduct should not be an automatic decision once the gross misconduct is proved as a matter of contract between the parties.  That is, of course, only one factor when we consider the reasonableness of the matter under s.57(3).  

	It is right also that we should refer in this context to the letter of dismissal of 25 August 1993 and the terms of the letter of dismissal, which I have already read, at page 25 in the second bundle.  I will read the relevant part once again:

		"I informed you that in my opinion the evidence you provided in your defence was not acceptable and therefore your actions constituted gross misconduct and I therefore had no alternative but to summarily dismiss you."

That, in our judgment, certainly reads as though it were an automatic decision to dismiss because gross misconduct had been proved in the sense that the employer reasonably believed that there had been gross misconduct.  

	No doubt very exceptionally in the most blatant of cases, an employer can reasonably take the view that no mitigating circumstances can possibly make any difference to the penalty he will impose but, in our judgment, this particular case does not fall into that category.  It is clear from authority and if a citation is necessary, although the case was not specifically referred to in argument, an example is Taylor v Parsons Peebles nei Bruce Peebles Ltd [1981] IRLR 119, that usually an employer to act reasonably must take into account a long period of service and good conduct.  Here the Appellants on the findings of the Industrial Tribunal did not do so.  

	Of course, we appreciate the great importance to the Trust of ensuring that clients or patients in their charge are not subjected to any risk.  We appreciate the paramount importance from their point of view and, indeed, from the point of view of the public of that aspect of the matter but, on the other hand, that is only one side of the coin.  There is also to be taken into account, in our judgment, as a matter of reasonableness and good industrial practice, the good and long record of service of the Applicant and that, in our judgment, is a matter which a reasonable employer, save in wholly exceptional circumstances, must take into account.  Indeed, we repeat, although this is by no means conclusive, that was the contractual position in any event between the parties here.

	We have reached the conclusion accordingly that on this basis, on this ground, the Industrial Tribunal were right in holding that the Applicant's dismissal was unfair simply and solely on the grounds set out in paragraph 32.  

	We have had to consider very carefully what action we should take in the light of the decisions we have reached with regard to this appeal.  We have concluded that the result must be that the matter will have to go back to the Industrial Tribunal so that the Industrial Tribunal can reconsider contributory fault under s.74(6).  In our judgment they plainly dealt with that aspect of the matter on the remedy hearing on the basis that the Respondent had not been guilty of gross misconduct.  In our judgment the matter must now go back to the same Tribunal in order that they can reconsider the question of contribution on the basis that the Appellants acted reasonably in concluding that the Respondent had been guilty of gross misconduct by pushing Michael B and throwing a chair at him.  In our judgment, having considered the way the Industrial Tribunal dealt with the matter in paragraph 7 of the remedy hearing, it is necessary that they reconsider this aspect of the matter in the light of our decision.

	We say no more about what conclusion they would reach with regard to contribution save to say that our decision relating to the reasonableness of the finding of the Appellants and the belief of the Appellants that the Respondent had been guilty of gross misconduct must put a different complexion on the degree of contributory fault but that must remain entirely a matter for the Industrial Tribunal.  

	The net result is that we allow the appeal to that extent only, namely, that the Appellants, if they choose so to do, and this must be a matter for them, of course, may require the Industrial Tribunal to reconsider, in accordance with our judgment, the matter of contribution.  It may be that the Appellants will not choose to take that course, but that must be a matter for the Appellants to decide in all the circumstances.  We, of course, do not compel any such result but that seems to us to be the fair and equitable way of dealing with this matter in the light of our judgment in what is a difficult case.  Should a decision be taken by the Appellants that they do wish, in accordance with our judgment, the Industrial Tribunal to reconsider the matter of contributory conduct under s.74(6) and I repeat for clarity, it is only under s.74(6) and not on any application of the "any difference" principle, not on any application of any argument to the effect it would have made no difference, then in our judgment notification should be given within 28 days to the Tribunal and, of course, to the Respondent that such a course is being put in train.  It is clearly in everybody's interest, in what is a very unfortunate case, that any such action if it is to be taken at all, should be taken speedily.

	Since the order that we are making is somewhat unusual we will hear the parties on it shortly.  However, I did raise it specifically in argument with Mr Wright that that would be the course which we would be taking should we be against him on the Burchell point but with him on the second point.  I understood at that stage, at least when I raised it in argument with Mr Wright and, really, with Mr Head, since he did not intervene in any way, that the course we have outlined in this judgment is the course which should be taken should the Appellants wish to pursue that aspect of the matter any further.