Appeal No.	EAT/1080/97

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 24 November 1997

Before
THE HONOURABLE MR JUSTICE LINDSAY
MRS R CHAPMAN
MRS T A MARSLAND

MR S HOLDEN	APPELLANT

WEST BERKSHIRE PRIORITY CARE SERVICE NHS TRUST	RESPONDENTS

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS A BEVITT
(of Counsel)
Messrs Ratcliffe Duce & Gammer
Solicitors
49-51 London Street
Reading
RG1 4PS	

	MR JUSTICE LINDSAY:     We have before us as an ex-parte preliminary matter an appeal in the case of Mr S.J. Holden against the West Berkshire Priority Care Service NHS Trust.  

	There was a hearing on 16 June and 11 July 1997 that led to a decision of the Industrial Tribunal under the chairmanship of Mr N. Adlem at Reading.  That was promulgated on 11 August 1997 and was that the Applicant, Mr Holden, was not unfairly dismissed.  That was a reserved unanimous decision.

	It is necessary to remind ourselves, briefly, of the nature of an enquiry by the Industrial Tribunal in a misconduct case where there has been, as there was here, a previous disciplinary hearing before the employer and an appeal.  The notable case in this area is the Burchell case and it supposes, or proposes, a three-stage test.  Did the employer truly believe that there had been misconduct of the kind with which the man or woman is charged?  Was there an adequate investigation into that allegation of misconduct and, thirdly, after the investigation, were there nonetheless reasonable grounds to sustain a continuing belief in the employer that the person in charge was, indeed, guilty of misconduct.  That is the Burchell test.

	Then one moves on to the statutory provision which requires one to look, in all the circumstances of the case, to see whether the response of the employer was a response that is open to a reasonable employer in the circumstances as they were understood to be.  Here, Mr Holden, in his grounds of appeal, sets out a number of grounds which we will have to deal with.  In his Appellant’s skeleton argument the first ground that is relied upon is a ground of alleged inconsistency of treatment.

	Miss Bevitt, who has appeared to good effect on Mr Holden’s behalf, argues that the dismissal was unfair because the Trust, the employer, had treated another employee in a similar position differently.  Before the Industrial Tribunal the employer had submitted that the details of the other employee’s case were not known and also that the other employee’s case could, in any event, have been distinguished.

	The nature of the other case was that the Trust had failed to dismiss a porter who had taken photographs of a patient in an undressed state, who visited his lodgings following a party.  The Respondent’s argument had been that the details of the case relating to the porter were not within the knowledge of the Respondent’s witnesses except that they were able to distinguish the case and that the photographic evidence had been destroyed and no witness statement was available.  That was the way in which the Industrial Tribunal recorded the Respondent’s case on the point.

	It is quite true that there is no express finding in the reasons of the Industrial Tribunal dealing with inconsistency of treatment.  But, for all that there is no express finding, at finding H on page 11 the Industrial Tribunal concludes:

“(h)  The decision to dismiss the applicant rather than provide written warnings was within a range of responses open to the respondent.  The Tribunal accepted that the respondent had come to a belief that the trust in the relationship had irretrievably broken down not only as a nurse but also as a telephonist who had contact with patients.”

	So there is no express finding as to the unimportance or relative unimportance of consistency, but, for all that, there is a finding of the respondent employer’s activity being within the range of responses open to an employer.  

	It is difficult to know how much to make of consistency.  Plainly, arguments on the point will vary very greatly from case to case and here consistency is complained of, not against a whole pattern of a number of preceding cases from which a consistent practice or policy can be discerned but simply from one single incident, the non-dismissal of the porter who had taken photographs of a patient in an undressed state who had visited his lodgings following a party.  There is no allegation that some declared policy on the employer’s part had been departed from and there is no series of cases building up a consistent practice from which there was later departure.  There is simply the one case.  Moreover, consistency is but one of many factors leading to a conclusion whether a response is reasonable or unreasonable.

	We have been taken by Miss Bevitt to the cases of Procter v British Gypsum Ltd [1992] IRLR 7 and Cain v Leeds Western Health Authority [1990] IRLR 168.  In each case there had been previously a plurality of instances from which it was alleged the employer departed and each of them is very much a case that has to be examined in relation to its own facts.

	We do not feel it necessary to depart from any principle that either of those cases points to in saying that the weight to be attached to consistency or inconsistency must depend very much on the facts of the instant case and here, where there is only one previous example and no declared policy departed from, it cannot be the case that consistency was a consideration of truly great weight and, although, the Tribunal came to their conclusion about the activity being here within the range of responses open to an employer, without their specifically dealing with the question of consistency, we do not feel able to say that no Industrial Tribunal, properly instructing itself, could have so concluded without expressly dealing with consistency.  In other words, we think very little of the consistency point.  

	It might be added also that here the argument of inconsistency emerged for the very first time not at the disciplinary hearing, not at the appeal hearing, but at the Industrial Tribunal hearing itself, which itself is likely to account for the fact that not as much weight was attached to it as might otherwise have been the case.

	Then a second broad head of appeal is perversity.  It is, of course, recognised by Miss Bevitt that it represents a considerable burden on any appellant.  It is a difficult case to sustain and here the case depends on a detailed examination of the letter of dismissal of 10 December 1996 where four reasons for dismissal are given.  The letter says:

“The reasons for your dismissal are that:
1.  You developed an inappropriate relationship with a female in-patient whilst working as a Bank Nursing Assistant on Henley ward;
2.  The situation [pausing there, that suggests a further reference to an inappropriate relationship] continued after the patient was discharged as an in-patient but became an out-patient, culminating in a sexual relationship.
This last issue is in direct violation of Section 128 of the Mental Health Act - with regard to relations between a male member of staff and a female patient.
3.  The use of physical and psychological coercion in the relationship caused the patient distress [one might, introducing words there, think that, too, was some indication of a form of inappropriate relationship].
4.  There was a breach of your tenancy agreement for exclusive occupancy under paragraph 6.15 in that the female patient stayed overnight at Caversham Hill Nurses Home on a number of occasions without the permission of the Accommodations Manager ”

	And again, that suggests the continuation of what might be regarded as an “inappropriate relationship”.  But the grounds of appeal very much rely on the fact that the Industrial Tribunal upheld, in part, the Applicant’s contention that the four heads of charge were not fully established.  The Tribunal accepted that, but whether the Tribunal accepted it or not, is not strictly material.  Going back to the Burchell case, one sees that there was a genuine belief in the employer in the accuracy of its findings; that was held to be the case at paragraph 7(a) of the Industrial Tribunal’s conclusions.  The enquiry that was occasioned by the charges was held to be, as a whole, carefully and meticulously followed and good and fair and dismissal was held to be within the range of reasonable responses

	In those circumstances, to seek to delve in detail into the findings seems to us not so much to be a working-out of the case of Meek v City of Birmingham District Council [1987] IRLR 250 on which Miss Bevitt relies, but rather is contrary to Meek where, at paragraph 8, Bingham LJ (as he then was) says:

“The parties are entitled to be told why they have won or lost.  There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court [the Court of Appeal] to see whether any question of law arises.”

	The parties are here told, in our view, sufficiently why they have won or lost.  Going on for a further quote from the Meek case, there is a reference there to the judgment of Donaldson LJ (as he then was) in UCATT v Brain [1981] IRLR 225, where he says:

“I think it would be a thousand pities if these reasons [referring to reasons of the Industrial Tribunals] began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis.  This, to my mind, is to misuse the purpose for which the reasons are given.”

	The Industrial Tribunal in a passage at (g) on the last page of their reasons says:

“Taking into account the nature of the Respondent’s business, its need to protect patients, a decision that the applicant had engaged in an inappropriate relationship did amount to gross misconduct within the terms of the contract.”

	So, notwithstanding that they felt that each of the four headings in the letter of 10 December was not “fully established”, they nonetheless held that there had been gross misconduct within the terms of the contract and, moreover, they held that the employer had (as I have quoted earlier) a genuine belief in the accuracy of its findings on that point.

	We do not feel able to say, having heard Miss Bevitt’s admirable argument, that no Industrial Tribunal, properly instructing itself, could have come to the conclusion to which it came.  It is not for us to say whether we agree or disagree, or would or would not have come to the decision; but if we ask ourselves whether no Industrial Tribunal, properly instructing itself, could have come to that conclusion, we have to answer that that is not the case.

	Accordingly, we do not see this as a proper case to go forward to a full hearing and we dismiss the appeal.