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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> NHS 24 v Pillar (Reasonableness of Investigation : Procedural Unfairness Polkey deduction) [2017] UKEAT 0005_16_2104 (21 April 2017) URL: https://www.bailii.org/uk/cases/UKEAT/2017/0005_16_2104.html Cite as: [2017] UKEAT 0005_16_2104, [2017] UKEAT 5_16_2104 |
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Appeal No. UKEATS/0005/16/JW
EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF
At the Tribunal On 21 April 2017
THE HONOURABLE LADY WISE
![]() |
NHS
lang=EN-US style='letter-spacing:-.25pt'>
24
APPELLANT
MRS PATRICIA FRIEL PILLAR
RESPONDENT
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JUDGMENT
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ã Copyright 2017
APPEARANCES
For the Appellant Mr Jeremy Lewis
(of Counsel) Instructed by :
NHS
Scotland
Central Legal Office Anderson House
Breadalbane Street Bonnington Road Edinburgh
EH6 5JR
For the Respondent Mr Stephen Smith
(Solicitor)
Archibald Sharp, Solicitors 270 Dumbarton Road Glasgow
G11 6TX
UNFAIR DISMISSAL: Reasonableness of Investigation
Procedural Unfairness Polkey deduction
The claimant, a nurse practitioner, was dismissed by
reason of gross misconduct after a third serious Patient Safety Incident (PSI).
The first two such incidents had not been treated as disciplinary matters and
the Tribunal decided that inclusion of details about them in an investigative report prepared for
use by the dismissing officer fell foul of the “ reasonable investigation”
requirement in British Home
Stores v
Burchell 1980 ICR 303. The Tribunal also found that a lack of
transparency in the respondent’s
dealings with the claimant at an early stage following the last PSI, together
with the inclusion of the previous
PSIs in the investigative report
separately rendered the dismissal unfair.
The Tribunal’s decision on these matters was inconsistent with its own findings that the fact of the previous PSIs was relevant and that dismissal had been a reasonable outcome on the basis of the material before the dismissing officer and was also perverse. It was novel to complain that an investigation was too thorough; Burchell is directed primarily at the inadequacy of an investigation. The claimant had been given no expectation either way on whether any previous PSIs would be taken into account should there be a repeat. In the absence of a cross appeal on the fairness of the dismissal taking account of relevant previous incidents, the Tribunal’s decision that it was unfair to include information about those incidents was irrational.
On procedural unfairness, the Tribunal had found a single procedural defect (in addition to the inclusion of previous PSIs in the investigation report) at an early stage after the incident and had erred in moving straight from that finding to a conclusion that it also rendered the dismissal unfair, without taking account of the whole context, including its own findings on the fairness of the dismissal. No attempt had been made to assess the seriousness or otherwise of the procedural defect identified. This was a further error that had led the Tribunal to reach a perverse decision on the issue.
A third ground of appeal in relation to the Tribunal’s failure to assess the likelihood that the claimant would have been dismissed in any event was academic as a result of the decision reached on the first two grounds.
Appeal granted and a finding that the dismissal had been fair substituted.
1.
The
claimant, Mrs Pillar,
was employed by the respondent,
NHS
24,
as a Nurse
Practitioner between 29 July 2002 and 18 September 2014 when she was dismissed
by reason of gross misconduct. She succeeded in
a claim of unfair dismissal against the respondent, although the compensation
award was reduced by 70% to take account of her contribution to the dismissal by her own actions. The
Employment Tribunal (Employment Judge Claire McManus) heard evidence and
submissions over several days between June and September 2015 and issued a
lengthy judgment on 5 October 2015. The respondent appeals against that
decision. Before the Tribunal the claimant was represented by Mr M Cameron,
solicitor and at the appeal by Mr Stephen Smith, solicitor. The respondent was
represented at the tribunal by Ms k Henderson, solicitor and before me by Mr Jeremy Lewis of Counsel. I will for convenience refer to the parties as claimant and respondent
as they were in the Tribunal below.
2.
The
respondent is part of NHS
Scotland
and delivers telephone and online care services to people across the country,
24
hours a day, every day. The claimant was at the material time a band 6
graded Nurse Practitioner. Her work involved taking telephone calls from
members of the public and triaging
them, which involved taking a decision on the most appropriate clinical outcome
for the relevant patient in terms of
location and time for next step care. The outcome of the decisions taken by a
Nurse Practitioner such as the claimant can range from simply giving advice
over the telephone through to making a 999 emergency call for an ambulance. The
remit of such a practitioner is not
to diagnose or ascertain the cause or origin of
the presenting symptoms, but to evaluate the symptoms as described and
decide on the appropriate level of outcome.
3. The Tribunal made findings in fact about the scope of the claimant’s responsibilities and the process initiated where a concern is raised about the care given to a member of the public (referred to as service user) by the service. These are contained at paragraph 7(e), (f) and (g) if the judgment. The claimant’s dismissal arose out of an incident in December 2013, regarded by the respondent as a Patient Safety Incident ( “ PSI”). The circumstances are narrated in the judgment as follows ;-
“ 7(h)……..the claimant had been contacted by a man who had described symptoms consistent with him having a heart attack. The claimant had directed him to a Primary Care Emergency Centre ( “PCEC”). This is an out of hours GP service where a patient can be examined by a GP. The patient had a heart attack ( myocardial infarction). A 999 call was made for this patient from the PCEC. The Management Case noted the circumstances of the December 2013 PSI …as follows :-
‘Details : 50 year old Gentleman presenting with chest pain who following Clinical Assessment by PP was referred to PCEC. Gentleman experienced a Myocardial infarction.
Preliminary Issues re. above incident :
Red Flags not taken into account by PP when decision making. PP failed to take action on the following 12 Chest pain Red Flags : 50-year-old male
Chest Pain Arms Sore Arms Weak
Breathing Worse
Pain in the Breast bone, central, right in middle Tingling in Arms
Pain in Jaw
Sudden onset of pain Cold
Sweaty
Short of Breath
Record Keeping not in line with NMC Code of Conduct or
NHS24
Best Practice
(i) The term ‘Red Flag’ is common terminology for Nurse Practitioners for a described symptom which may be important. Nurse Practitioners should be aware of the importance of a ‘red flag’ and ask careful questions around it. The claimant does not dispute the fact of the patient call in December 2013, the content of the call, that the triage outcome of the call ought to have been a 999 call and that her call record does not properly document the algorithm during the call. The claimant admits that she committed a clinical error by not directing this patient to a 999 outcome. The claimant had previously demonstrated that she was a competent and experienced Nurse Practitioner, familiar with the respondent’s processes and procedures, who knew how to appropriately and safely manage calls.”
4. One of the most important issues in the case was the extent, if any, to which it was proper to take into account previous PSIs involving the claimant but which had not been the subject of disciplinary action. There had been two previous PSIs involving the claimant’s triage decisions, together with one formal complaint and a second informal complaint. The first of those PSIs had occurred in August 2010 and had also involved a patient presenting with cardiac symptoms and had an inappropriate outcome in that the claimant had referred the patient to a PCEC, where the patient had then suffered a cardiac arrest. On that incident and the way it was dealt with by the respondent the Tribunal made the following findings ;-
“(j)……….The circumstances
of the August 2010 PSI are also that the claimant ought to have triaged the
call to a 999 outcome. The primary issues identified in the August 2010 PSI
were that the claimant had failed to thoroughly explore red flags which were cardiac
symptoms and had failed to utilise the algorithm appropriately, including the
documentation in the algorithm. These failures were regarded by the respondent
as being ‘very
similar’ failures to those displayed by the claimant in the
December 2013 PSI. No disciplinary proceedings had been initiated against the
claimant following the August 2010 PSI. The claimant had been placed on an
eight week Development Plan following the August 2010 PSI. Her identified
development needs included improving her clinical knowledge of cardiac care to
ensure safe and efficient outcomes and efficient use of algorithms to challenge
and support decision making. She successfully completed that Development Plan
and was put back on line. At no time prior to her dismissal was the claimant
made aware by the respondent that a repeat by her of similar conduct would be
regarded by the respondent as lack of clinical competence and/or misconduct.
……The responsibilities on the claimant as set out in the NMC Code of Conduct do
not detract from the fact that the claimant did not know and could not
reasonably have been aware that a repeat of similar circumstances to those
which had occurred in the August 2010 PSI would be likely to be regarded by the
respondent as gross misconduct. The claimant had a clean disciplinary record
prior to the instigation of the disciplinary proceedings which led to her
dismissal.”
5. The second PSI involving the claimant was in July 2012. The circumstances were quite different to the PSI of August 2010 and the subsequent incident of December 2013, but there were again concerns about the claimant’s decision making and she was again taken off line and undertook a development plan. As the Tribunal found, neither of the previous PSIs had been treated as disciplinary matters.
6. The inclusion of the previous incidents in a Management Report sent to the disciplinary hearing was found by the Tribunal to have been significant. Its reasoning in relation to this issue, which is central to the appeal, is expressed as follows at paragraphs 81 – 82 of the judgment ;-
“The Tribunal considered the reasonableness of the investigation carried out by the respondent. The Tribunal considered this question with regard to the range or band of reasonableness. This question of reasonableness is more usually considered in the context of an argument that the investigation carried out by the employer prior to dismissal was too narrow. In this case the Tribunal considered the reasonableness of the investigation having included matters other than the claimant’s conduct in the December 2013 PSI. The tribunal considered whether it was within the band of reasonableness for the respondent to have included in the investigation ( as set out in Caroline Spence’s Management Case) detail of the previous PSIs and other incidents in which the claimant had been involved. As part of her investigation, Caroline Spence had listened to the calls of all PSIs which the claimant had been involved in. The Tribunal did not accept that the details of those previous incidents required to be included in the Management Case. The Tribunal accepted the claimant’s’ representative’s submission that it was not appropriate to include these previous matters in the Management case, where those matters had not themselves been the subject of disciplinary proceedings. The information on training, coaching and support provided to the claimant following those previous incidents is relevant to the investigation into her conduct in the December 2013 PSI. Information on the training and coaching
provided to the claimant could have been set out in the Management Case without reference to the details of the previous
incidents. That would have
been reasonable and would have
served the purpose of providing the
relevant information to the decision maker. It was not reasonable to include in the Management Case the information
on the claimant’s conduct in the other incidents. The inclusion of the detail of the previous
incidents in the Management
case was material to the decision to dismiss. The Tribunal concluded that the
investigation was not within the
band of reasonableness. A reasonable
investigation onto the claimant’s conduct in
the December 2013 PSI would not have included investigation of the claimant’s conduct in previous
incidents which had not themselves been the subject of disciplinary proceedings. Following Sainsbury’s
Supermarkets Limited v
Hitt [2003] IRLR 23, applying the objective standard of the reasonable employer, it was plainly
reasonable to make material reference to incidents in the past which had not been the subject of disciplinary procedure. It could not be said that the investigation
was reasonable in all the circumstances.
7.
The
Tribunal went on to consider the reasonableness of the decision to dismiss
on the basis of the available material. It expressed the following view
style='letter-spacing:-.8pt'> ;-
82. The Tribunal noted the distinction made in BHS v
Burchell between
the two tasks of
(1) investigating whether the conclusion of management was a reasonable one on the basis of information which they had before them and (2) whether in
assembling that material management had carried out a reasonable investigation. Donna
O’Boyle’s decision was within the band of reasonableness based on the
material before her, but the
inclusion of the detail of the previous PSIs and other incidents
in the Management case was not reasonable and was material to the outcome,
being the decision to dismiss. The
Tribunal considered whether the decision to dismiss was within the band of reasonable responses. The Tribunal had some difficulty with this. The Tribunal
took into account the guidance in Sandwell & West Birmingham Hospitals
NHS
Trust
v
Westwood UKEAT/0032/09 at paragraph 113 that gross misconduct involves
either deliberate wrongdoing or gross
negligence. It was not the respondent’s position that the claimant had engaged
in deliberate wrongdoing. The
Tribunal considered whether it was reasonable of
the respondent to regard the claimant’s conduct as having the character of gross misconduct on the facts before it. The Tribunal was mindful not to fall into the error of substitution of its own
view
for
the
view
of the employer. The
Tribunal’s difficulty was that the
respondent had relied on the
claimant having done ‘
very
similar conduct’ in the August 2010 PSI but
that that ‘
very
similar conduct’ had not led
to any disciplinary proceedings, far less been considered to be gross negligence. The claimant had not been told that a repetition of similar behaviour would be regarded as gross
misconduct. The Tribunal noted the Respondent’s position that had the
December 2013 PSI been an isolated
incident it may not have been
reasonable for the respondent to treat that matter as a disciplinary matter.
The Tribunal also had regard to the professional
views
on oath of the
respondent’s witnesses, including the
view
of Gill Stillie at the appeal. The
clear evidcne from the respondent’s
witnesses was that the conduct put
patients at risk. The Tribunal
considered the question of what may
be misconduct in accordance with Hamilton
v
Argyll and Clyde Health Board [1993] IRLR 99. The Tribunal concluded that
it was reasonable for the respondent to consider the claimant’s conduct to be
gross misconduct. Applying Tayeh
v
Barchester Healthcare Ltd [2013] EWCA Civ 29, 06 February 2013, on the material before her, which included
the information on the previous incidents,
given the potential risk to patient
safety, Donna O’Boyle’s decision to dismiss was within the band of
reasonable responses.
The Tribunal concluded ( at paragraph 83) that the claimant’s dismissal was an unfair dismissal because “ ..the investigation was not within the band of reasonableness.”
8.
The
Tribunal concluded also that the procedure adopted by the respondent was
unreasonable and expressed its view
on that as follows ;-
“84.
Following the approach of the Court of Appeal in Whitbread v
Hall [2001] IRLR 275, the Tribunal’s consideration of reasonableness
under section 98 (4) of the ERA included consideration of the reasonableness of the procedure used in reaching that
decision to dismiss. The Tribunal found that procedure not to be reasonable because
of the lack of transparency
to the claimant. It was not reasonable
for the claimant to be given the clear impression by the respondent that the outcome of the December 2013 PSI in terms of personal consequences of her
were set out in the Development Plan. Given the size and administrative
resources of the respondent, it was not reasonable for the respondent to give
no indication to the claimant that her conduct in the December 2013 PSI may
be regarded as gross misconduct until after her
successful completion of the
Development Plan aims. A relevant factor in this consideration was the acknowledged
seniority and experience of the individuals in the PSI Review Team appointed to investigate the December 2013 PSI.
The Tribunal therefore found that in addition to failing on the reasonableness of the investigation, on the application of section 98(4) the dismissal was separately an unfair
dismissal because of the lack of transparency to the claimant in the process applied. As mentioned in Whitbread
at paragraph 21, the Tribunal cannot ask itself whether the outcome of a fair procedure would have been the same. The Tribunal did not do this.”
9. The third aspect of the Tribunal’s decision relevant to this appeal relates to the extent of the reduction of the award made. The Tribunal’s decision on this is contained in paragraph 89 in the following terms ;-
“Having found
that the claimant’s dismissal was an unfair dismissal, the Tribunal
considered whether any compensation awarded to the claimant should be reduced under sections 121 - 123 of the ERA. The Tribunal applied Royal
Society for Prevention of Cruelty to Animals RSPCA v
Cruden [1986] IRLR 83.
There were no submissions that there
was justification for differentiation in any deduction between that applied to
the basic and to the compensatory award. The Tribunal considered that it was
appropriate to apply the same level of deduction
to both the basic and the compensatory award. The Tribunal considered whether
the claimant had contributed to her dismissal by her blameworthy conduct. The
Tribunal found that the claimant did contribute to her dismissal by her actions
in diverting from the algorithms without properly recording her reasons for doing so. That behaviour had led to her
dismissal. In the circumstances of the
case, the Tribunal considered that it was just and equitable to apply a
reduction of 70% to both the basic
award and the compensatory award. ”
10. In presenting the appeal for the respondent, Mr Lewis advanced three separate grounds. First, he argued that the conclusion that the previous incidents should have been omitted from the investigation and management report represented an error in law on the part of the Tribunal. Secondly, the Tribunal had erred further in finding that the respondent did not follow a fair procedure. Thirdly, the Tribunal had failed to consider or assess whether, and to what extent, a reduction to the compensatory award was to be made under section 123(1) ERA 1996 for the chance that the claimant would have been dismissed in any event even if a fair procedure had been followed.
11.
On the
first ground, Mr Lewis emphasised that the argument had to be understood
against a background of the Tribunal having accepted that the decision to dismiss fell within the range of reasonable responses open to the respondent given the potential risk to patient safety. This was unsurprising
given that the claimant’s conduct had put service users at risk. Accordingly,
if the first ground relating to the
investigation was to succeed, the dismissal would have been inevitable. It was
submitted that section 98(4) ERA is plainly
wide enough to permit consideration of an employee’s earlier misconduct as a
relevant circumstance giving context to a later decision to dismiss, even where a prior warning has
expired. Support for that proposition could be
found in Airbus ( UK)
Ltd v
Webb [2008] IRLR 309, a decision of the Court of Appeal. It was acknowledged ( in response to the issue being raised from the bench) that the Inner House of
the Court of Session in Diosynth
Ltd
v
Thomson 2006 SLT 323 had found that a dismissal that took
into account an expired warning was unfair. However, as the Court of Appeal had
clarified in Airbus, the
decision in Diosynth was
not authority for the proposition that the misconduct, in respect of which a final warning was given but has expired,
can never be taken into account as a
relevant circumstance. It would be wrong
to re-write section 98(4) as if it
set down a rule of law as
to what
can and cannot be taken into account. In any event,
there was a difference between giving an employee an assurance that something
would not be taken into account after a certain date and going back on that and
being silent, as in the present case. It was harsher to retract or seek to
extend an expired warning, as the employer had done in Diosynth and
Airbus, as something analogous to a “spent conviction”, if
wrongly included as a consideration, should be disregarded. Mr Lewis submitted
further that it would be wrong and even dangerous if decisions bearing on
public safety had to be made without reference to all the relevant facts, or
excluding consideration of matters which experienced professionals assess as
relevant to whether a safe service can be assured.
12.
The
Tribunal’s conclusions at paragraph 82 were said to be key to the challenge to the conclusion on unreasonable investigation. Having found
that it was reasonable of the
respondent to dismiss the claimant on the basis of the material before it, it was inconsistent or perverse or both inconsistent and
perverse to go on to conclude that the dismissal was unfair. The context was
that there was a final serious incident where patient safety was put at risk.
It was clear that a warning would not be sufficient
and that further training was not a viable
alternative to dismissal. Central to the Tribunal’s reasoning (at paragraph
81) was the idea that details of the training provided after the past incidents
could have been given to the panel. However, that would have withheld from the panel that the training had been
provided following an issue that now formed part of a repeated pattern. The fact that previous incidents had taken
place was relevant material as part of the background information required by
the respondent in deciding how to
deal with the December 2013 PSI. The principal reason for the dismissal was the
December 2013 conduct which was found to be a lack of clinical competence (paragraph 79). There was no “totting up” exercise. Further, the previous
incidents provided relevant background context and any suggestion that
decisions bearing on service user safety should be made without reference to the full context was unsound and
dangerous. For the disciplinary panel only to
be told that the claimant had
previously received training in relation
to cardiac symptoms without seeing
that this had occurred following a previous PSI that could be regarded as
very
similar would give a wholly inadequate
and misleading picture against which to assess the risk of a recurrence of a failure to provide a
safe service. The Tribunal had failed to explain
adequately why matters that could properly be
taken into account by the dismissing officer as bearing on patient
safety could not be regarded as proper
matters to include at the investigatory stage. It seemed that the tribunal was
concerned with the fact that the previous incidents had not been subject to
disciplinary action, but had failed to balance that fact against the importance of all matters that could have a bearing on the assessment of
patient safety being put before the disciplinary hearing. Despite directing
itself as to the range of reasonable responses, the Tribunal had
slipped into substituting its assessment of what the investigation should
exclude, rather than assessing whether the respondent could have reasonably
concluded that previous incidents were relevant material to put before the disciplinary hearing in the light of the concern as to patient
safety.
13.
The
decision of the Tribunal in this case was a novel one, the usual
complaint being of inadequate investigation. Here the Tribunal concluded that
too much information had been gathered and included. The Tribunal had failed to have
regard to the differing roles of the investigating officer and the
dismissing officer within an organisation such as that of the respondent. The role of the dismissing officer was to
consider the material before her and as already pointed out, on that material
dismissal was within the range of reasonable
responses. She would have been unable to reach a proper
view
without having all of the
relevant material. The problem with the Tribunal’s approach was that it treated the investigation as a separate
hermetically sealed entity. The reasonableness of an investigation was relevant only where it resulted in an absence of proper
information being put forward to the disciplinary stage. As the Court of Appeal had found in Orr
v
Milton Keynes Council [2011] ICR 704 where an employer
delegates the functions of investigation and decision on dismissal the person
whose knowledge or state of mind is for the purpose of section 98(4) the state
of mind of the employer will be the dismissing officer. Where the functions were
split the investigating officer or officers simply had to do all that could
reasonably be expected. In the present case that involved the provision of all
relevant material to the disciplinary hearing.
14. On the second ground that the tribunal had erred in finding that the respondent did not follow a fair procedure by reason of lack of transparency to the claimant, Mr Lewis submitted that two errors had been made. First, that in its focus on the chronology of events, ( ie that prior to the disciplinary process the claimant was given the impression that the personal consequences for her were as set out in the development plan) the tribunal had failed to consider, or at least give reasons for rejecting, the respondent’s explanation for the timing of the claimant being informed that the PSI might be regarded as gross misconduct. Secondly, paragraph 84 of the judgment illustrated that the Tribunal had moved directly from procedural unfairness to overall unfairness. On the first point, the Tribunal had accepted that in instructing a PSI report followed by a development plan the respondent had been following its usual practice and that the purpose was to facilitate learning not apportion blame ( paras 7 and 11). The trigger for the disciplinary investigation had been a concern raised by the claimant’s line manager about the risk to patient safety in her going back on line. A review of the evidence took place and a decision to escalate the matter to senior personnel resulted, which explained why the disciplinary process had not started earlier. The facts found did not support a conclusion that Mr Watson (who did not give evidence) had not been candid with the claimant. There was no finding about when he developed concerns about her returning on line and in any event, once he had those concerns he had to take them seriously in the interests of patient safety. In any event Watson was neither the investigating nor dismissing officer and therefore not strictly relevant on the issue of procedural unfairness The finding as to not specifically explaining to the claimant the nature of the fit and proper purpose test was on the Tribunal’s own account a “minor factor” to which it was not apparent the claimant had had any regard.
15.
The
second and fundamental point was that the Tribunal had erred in assuming that procedural defect was
sufficient to create an unfair dismissal The Tribunal had misunderstood the
approach required by Taylor v
OCS Group Limited [2006] IRLR 613 in
terms of the relationship between procedure and substance. In that case the
Court of Appeal had made clear (at paragraph 48) that the Tribunal should
consider the procedural issues together with the reason for dismissal as they
have found it to be, because the two issues impact one each other. Only after
considering both issues can the Tribunal decide, in a case where they have
found a procedural defect, whether that defect is sufficiently serious to
render an otherwise reasonable dismissal unfair. The respondent’s submissions
to the Tribunal on this point had had reflected the correct test ( at paragraph
36 of the judgement). The case of Sharkey
v
Lloyds Bank plc
UKEAT/0005/15/SM provided a recent reiteration of the correct approach
by Langstaff P. Instead of following the correct approach the Tribunal in this case had moved directly from finding that there was a procedural
failing (limited to the lack of transparency already dealt with) to the conclusion that the dismissal was
unfair, rather than considering whether, taking all other factors into account,
the delay in informing the claimant
of how her actions were being treated rendered the whole process unfair. The
Tribunal ought to have noted what it found
to be a procedural defect and then considered, amongst other
matters, (i) that it had not resulted in prejudice to the claimant in terms
of being able to address the
allegations, (ii) that there had been a thorough investigation and a fair
hearing and no lack of transparency
during that process, (iii) that the
serious nature of the concerns for patient safety was such that the only
alternative to putting the claimant back on line was to investigate and act on
those concerns, (iv) that there was a clear finding
that there would be a risk to
service users if the claimant was to
return to her role and (
v)
that the
respondent had provided an explanation for the timing in relation to commencing the disciplinary process. Once those
factors were considered it was clear
that the only procedural defect identified could have no bearing on the substantive decision about the fairness of the
dismissal. It was so clear that this single defect could not alone result in an unfair dismissal that no
reasonable Tribunal could have reached the same decision and so it was perverse.
16.
On the
third ground, Counsel submitted that it was
common ground between the parties that the tribunal had not dealt with the argument on Polkey
deduction. While the Reasons (at paragraph 89) referred to reduction under
section 121 – 123 ERA 1996, in fact
the Tribunal had focused only on reduction for contributory fault. There was no discussion at all of the likelihood of dismissal in any event or even whether there could
have been a fair dismissal without
reference to the previous incidents.
While the Tribunal stated that it was
applying RSPCA v
Cruden [1986] IRLR 83 that decision was concerned with reduction for contributory
fault and in particular whether there had been an error in not reducing the basic award to nil consistent with the contribution
decision on the compensatory award. A Polkey deduction would not
apply to the basic award. It was
clear from the Tribunal’s decision to apply
the same reduction to both the basic
and compensatory awards that it had
given no consideration to Polkey. In the event that
the respondent succeeded in the
first ground of appeal, it would
have followed that the claimant was fairly dismissed, thus no issue of compensation would arise. Even
if the finding that it was procedurally unfair could stand, it was inevitable on the facts found that
the claimant would have been
dismissed and so the compensatory award would fall to be reduced by 100%.
17. As a preliminary matter Mr Smith for the claimant pointed out a rather unfortunate typing error towards the end of paragraph 81 of the Tribunal’s judgment where the negative “not” was missing from the conclusion about making reference to past incidents. Clearly it should read “…it was plainly unreasonable to make material reference to incidents in the past which had not been the subject of disciplinary procedure”. Mr Lewis confirmed, helpfully, that he agreed that this was clearly an omission and that the sentence should read as suggested by Mr Smith.
18.
The
first focus of submissions on behalf of the claimant was that the EAT should always
be slow to interfere with the detailed decision of an Employment Tribunal
that had followed the requirement to identify the issues, make findings in fact, identify the relevant law
and state how that law has
been applied to those findings in order to decide the issues contained in Rule 62 of the Employment Tribunals ( Constitution and Rules of
Procedure) Regulations 2013. The judgement should be read as a whole and where, as here, the
respondent asks the EAT to find that the Tribunal’s reasoning was perverse
there is a very
high hurdle to be overcome – Salford Royal
NHS
Trust
v
Rolden [2010] ICR 1457, per Elias LJ at para 51. Reference was made to some of the established
authorities on the issue of the proper approach for an appellate Tribunal in
cases of this type. In Bowater
v
Northwest London Hospitals Trust
[2011] EWCA Civ 63, Longmore LJ had emphasised, in a conduct dismissal where the EAT had overturned the decision
of the Tribunal as perverse and the
Court of Appeal had reinstated the first instance decision, that it was important that the EAT pays proper
respect to the decision of the Employment Tribunal to whom Parliament had entrusted the responsibility of making decisions in relation to the
fairness of dismissal. Further, in Brent London Borough Council
v
Fuller [2011] ICR 806 the Court of Appeal reiterated that an appellate
body must be “… on its guard against making the
very
same legal error as the tribunal stands accused of making. An error will occur if the
appellate body substitutes
its own subjective response to the
employee’s conduct. The appellate body will
slip into a similar sort of error if
it substitutes its own
view
of the
reasonable employer’s response for the
view
formed by the tribunal without committing error of law or
reaching a perverse decision on that
point.” The
decision also supported the proposition that the judgement must be looked at in the round and that an overcritical analysis of specific passages would not necessarily
result in success for an appellant.
Appeals of fact should not be dressed up as legal points. Reference
was made also to the EAT decision in Arriva
Trains Wales
v
Conant UKEAT/0043/11/LA and the opinion of the
Inner House in Sneddon
v
Carr-Gomm Scotland Limited [2012] IRLR 820. In the latter case, the
court had emphasised (at para 18) that the question ( in a conduct dismissal) whether in all the circumstances the reasonable employer would regard
the investigations carried out as adequate is
essentially one for the ET as a specialist first instance tribunal.
Support could be found for the
proposition that a generous interpretation ought to be given to a
tribunal’s reasoning rather than taking too
technical a
view
of its decision in the UK
Supreme Court decision in Hewage
v
Grampian Health Board [2013] SC ( UKSC) 54 at
para 26. Finally, in BS
v
Dundee City
Council [2013] SC 254
the Inner House had reiterated that it was
well established that an investigation may be relevant to fairness and that the
opinion on such matters of an ET as a specialist first instance tribunal should
be
respected.
19. Responding specifically to the first ground of appeal, Mr Smith submitted that when the ET judgment was considered as a whole, it was clear that the tribunal had set out the relevant law ( paras 8-17), and made appropriate reference to the relevant authorities at paras 80 – 84 as part of its discussion of the evidence and submissions on this issue. There are detailed findings in fact in the issue of the investigation and a record of the competing submissions on whether the investigation had been reasonable. It was clear from paragraph 66 that the tribunal was well aware that the inclusion of the previous incidents in the Management Report had been material to the outcome. Paragraph 82 set out the different stages of investigation and decision on dismissal and the Tribunal had not failed to distinguish between those different stages. The case of Burchell made clear that the reasonableness of the investigation and the issue of dismissal being within the range of reasonable responses were separate aspects of deciding whether a dismissal was unfair. There could be no doubt that an unreasonable investigation was sufficient to render a dismissal unfair. While it was accepted that there was on the face of it a logical difficulty between saying on the one hand that the information shouldn’t have been before the decision maker but on the other that a dismissal based on that information was not unfair, the Tribunal had explained why it considered it unfair for the information in question to be before the decision maker and that was enough. It was the respondent who was being inconsistent in trying to support a decision not to discipline for similar misconduct in the past while trying to argue that repetition of that conduct should be treated as gross misconduct.
20.
The
issue on this first ground was the restriction on information that should form
part of an investigation. The Tribunal had considered both perspectives of
employer and employee. While the previous PSIs were, Mr Smith conceded,
relevant to the issue of how to
approach the December 2013 incident, it could
not be ignored that when those
earlier incidents had occurred and training subsequently given, the claimant had not been told of any possible consequences for her of
being involved in the same conduct
again. Mr Smith agreed with Mr Lewis that the case of Diosynth Ltd v
style='letter-spacing:1.35pt'> Thomson 2006 SLT 323 was not directly in point on the facts because in that
case the employee had actually received a warning that had expired. However, he
contended that the claimant in this case was in a stronger position than the
claimant in Diosynth. If an expired warning cannot be a
determining factor in a decision to dismiss then surely conduct not treated as
a disciplinary matter at all could never be such a factor. If it is clear that
the pattern is important, then the employer cannot rely on something never
treated as misconduct. It was further submitted that the Court of Appeal
decision in Airbus ( UK) Ltd
v
Webb [2008] IRLR 309 could not be
regarded as authority that the employer can take any and all information into
account, there must be limits to that. While the respondent had emphasised
their legitimate need to ensure public safety, they had found themselves in the
current situation through their own processes. Had they included the earlier
PSIs as disciplinary matters at the time, the Tribunal would have had no basis
for regarding the investigation of this PSI as unfair. With something as
complex as treatment of someone with a suspected heart attack, an employer had
to give the employee fair notice of how any alleged misconduct would be
dealt with. Mr Smith submitted that the Tribunal’s conclusion
on the unreasonableness of the investigation was one it was entitled to reach
on the evidence and that the reasons given were proportionate to the
significance of the issue.
21.
Turning
to the second ground, again Mr Smith
submitted that the judgment had to be read as a whole. The Tribunal had not
only discussed the procedure adopted at paragraph
84. Reference was made to it in the findings in fact from pages 10 -16 and 20 – 27 (both part of para 7). The
competing submissions on this issue had also
been properly recorded and (at para 40) there was a specific record of
the respondent’s submission that any procedural defect in this case was not such as to
make the dismissal unfair.
The finding behind the statement about a lack
of candour on the part of Mr Watson was at para 7(u) where the tribunal
found that when the claimant had asked Joe Watson on 27 February (2014) when
she would be going back on line, Mr
Watson had said he would make enquiries. This was in the context of the respondent having
given the claimant the impression that the consequences for her of the PSI
were undertaking a development plan. The
lack of transparency found by the tribunal was prevalent throughout the early
period of the investigation. Mr Smith submitted that this was a case where the
procedural defects had tainted the whole process of dismissal. The Tribunal had
referred to the case of Fuller
v
Lloyds Bank [1991] IRLR 336 relied on by the respondent. Detailed
reasons were given as to why it considered that the respondent’s
actions were not reasonable. Specific comment is
made on the seniority and experience of those involved in the decision-making process. It was
acknowledged that the Tribunal had not analysed
the substance of the decision to dismiss
as well as the procedure in deciding
whether the procedural defect had resulted in
an unfair dismissal but the case of Fuller was before them
and the respondent had not really disputed that a serious procedural defect was
enough to render the dismissal unfair.
Account had to be taken of the conclusions expressed at paras 85 – 87 of the judgment, which also related to the overall
procedure, rather than the more limited focus of the respondent’s argument on
paragraph 84. The lack of transparency coupled with the unreasonable
investigation taken together amounted to such a serious procedural breach that
the tribunal was entitled to find the dismissal unfair as a result.
22. On the third ground, Mr Smith pointed out that if the respondent’s arguments on the first two grounds were rejected, then there could never have been a fair dismissal of the claimant. It was therefore implicit in the judgment and reasonable to assume that, but for the unfairness of the investigation and the procedure there was no prospect that the claimant would have been dismissed. It was accepted that the tribunal had not explicitly addressed the Polkey deduction issue and that a reduction had been made under section 123. If it was considered necessary for Polkey to be mentioned specifically, a remit should be made back to the same Tribunal.
23. This was a difficult case for the Tribunal. The stakes were high for both sides; the claimant’s established career as a nurse was in jeopardy and the respondent has onerous responsibilities to operate a service that ensures, to the best of its ability, the safety of its users. There was no dispute between those who appeared before me that, as a specialist first instance finder of fact, the Tribunal is entitled to considerable respect. I acknowledge the tract of authorities relied on by Mr Smith and bear in mind that a generous interpretation of the Tribunal’s reasoning is more appropriate than a technical or over critical analysis. However, this is not a case in which there is a general attack on the way the tribunal approached matters. There are three discrete points taken by the respondent that must be considered against the backdrop of the other unchallenged material findings of the Tribunal. I will deal with each in turn.
24.
style='font:7.0pt "Times New Roman"'>
The
focus of the first ground of appeal
involves consideration of the long established
approach to misconduct dismissals set out in
British Homes Stores
v
Burchell 1980 ICR 303. In that case the Tribunal was found to have
fallen into error by becoming
confused by failing to understand the
two distinct tasks of “….investigating whether the
conclusion of the employers
was a reasonable conclusion on the
basis of the material which they had
before them and whether, in assembling that material, the employers had carried out
the sort of investigation
which a reasonable employer could have
regarded as sufficient” ( page 308, per Arnold J).
It is noteworthy in my
view
that the focus of the
investigation stage in Burchell
and in the relevant subsequent
authorities, has been on the sufficiency of the investigation. There are numerous examples of cases where it is alleged that an employer failed to conduct an adequate
investigation and so caused unfairness such that a dismissal had to be regarded as unfair. A good recent example can be found in the case of Sneddon
v
Carr-Gomm Scotland Ltd
[2012] IRLR 820 where a limited investigation of the employee’s alleged
misconduct was found to be unreasonable by the Tribunal, which found that a reasonable
employer would have taken time to go back to
a potential witness and explore matters more fully. In allowing an
appeal against the EAT decision to the
contrary, the Inner House specifically referred to this branch of the Burchell as a test of “
sufficiency of investigation”, the
exercise being to examine whether that investigation had been adequate when
judged by the standards of the
reasonable employer ( para 15, per Lord Eassie giving the opinion of the court). Against that background it is noteworthy
that in the present case the
Tribunal characterised this stage of the Burchell test as being whether in assembling the material in
question management had carried out
“…a reasonable investigation” (ET para 82) as
opposed to an investigation that could be regarded
as sufficient, although it had recognised
(at para 81) that the context of an argument about investigation is usually that it is too narrow. Mr
Lewis submitted that in fact it was novel to find that an investigation was unreasonable on the basis that it gathered too much information rather
than too little and I am unaware of
any examples where including too much information in an investigation has been said to fall foul of the Burchell test and none
was put before me at the hearing.
While I do not rule out that there may be cases where an overzealous or
otherwise unfair investigative process could fall foul of the test, the
starting point is that the Burchell
test insofar as it relates to the investigative stage is directed at the sufficiency of that investigation. In this case there is no suggestion that the investigation
was not comprehensive and thorough; the complaint is that the report produced at the end of it contained too much detail of previous
incidents for which the claimant had not been
disciplined.
25.
Separately,
it is
in my view
appropriate to distinguish between including information in an investigation report on the one hand
and relying on past conduct in determining
a dismissal on the other. It is the
latter issue that gave rise to the
argument in both Diosynth Ltd
v
Thomson 2006 SLT 323 and Airbus (UK) Ltd
v
Webb [2008] IRLR 309. In
Diosynth, an expired written warning had been critical in the
employer’s decision to dismiss the employee. It is clear from the opinion of
the Inner House that it was the false expectation created by the expiry of the
time limit that rendered it unfair. The court expressed matters ( at para
24)
as follows ;-
“…it was a contravention of the principle of fairness for an employer to put a time limit on a warning and then take it into account as a determining factor in a dismissal of an employee for a misdemeanour after the expiry date. An employee had a reasonable expectation that the employer meant what he said.”
In Airbus, the Court of Appeal distinguished Diosynth on the basis that the expired written warning had been relied on as the principal reason for the dismissal. In Airbus the fact of the previous misconduct, the fact that a final warning had been given in respect of it and the fact that the final warning had expired at the date of the later misconduct were all held to be circumstances relevant to whether the employer acted reasonably or unreasonably in dismissing the employee. One of the ways in which Mummery LJ reconciled the perceived difference between the approach of the Inner House in Scotland and the English Court of Appeal was to point out that ;-
“… Diosynth is not authority for the general proposition of law that the misconduct, in respect of which a final warning was given, but has expired, can never be taken into account by the employer when deciding to dismiss an employee, or by a tribunal when deciding whether that employer has acted reasonably or unreasonably. It did not decide that the earlier misconduct and the expired warning are irrelevant circumstances of the case or are irrelevant to the equity and substantial merits of the case. It did not decide that the dismissal is necessarily unfair if account is taken of the expired warning. That would be difficult to reconcile with the flexible approach indicated by the broad terms of s.98(4)”.
In the present case, the consequence of the previous PSIs having been dealt with in the way that they were was that the claimant had no expectation either way in terms of the details of them being relevant or irrelevant to any future investigation into her conduct.
26. The passages cited above illustrate that the issue of fairness to an employee in taking into account (either as a principal reason or otherwise) past misconduct in the decision to dismiss is a contentious area and that the specific facts of each case will require close examination to see whether the employer acted unreasonably. The crucial difference in this case is that the claimant does not contend that the Tribunal’s decision that the dismissal was fair on the basis of the material before the dismissing officer was wrong or contained an error in reasoning. There is no cross appeal challenging the conclusion ( at paragraph 82) that “… on the material before her, which included the information on the previous incidents, given the potential risk to patient safety, Donna O’Boyle’s decision to dismiss was within the band of reasonable responses”. Mr Smith clarified, for the avoidance of any doubt that it was conceded on behalf of the claimant that the previous incidents were relevant to the issue of how to approach the December 2013 conduct and that the conclusion of the Tribunal that the dismissal was, on that relevant material, within the band of reasonable responses, not challenged. It remained the claimant’s position that the Tribunal was correct to conclude that the dismissal was unfair because the detail of the previous incidents should not have been included in the report following the investigation. The emphasis was on the treatment of those earlier incidents at the time as matters that could be resolved by training and development, with the claimant not being put on notice that they could subsequently be treated as disciplinary issues.
27.
Having
considered matters carefully, I have reached the view
that Mr Lewis is correct in contending that it was
both inconsistent and perverse for the Tribunal to conclude that material acknowledged as relevant to the
investigation should have either been excluded from the report sent to the
dismissing officer or redacted such that the details of previous PSIs were
removed, while at the same time finding that a dismissal based on that
information was within the band of reasonable
responses. Exclusion of the relevant
material by the investigating officer would have been a serious omission given
the background of risks to patient safety. It was for the
dismissing officer to decide how to
treat that background information and to decide
whether it would be fair to
rely on it, to any extent, in deciding
whether to dismiss the claimant. Mr Smith argued that if it is clear that the pattern is important, then the employer cannot
rely on something never treated as misconduct. That argument ignores the
difference between the investigative stage and the decision to dismiss. The
investigating officer was not relying on the previous incidents with a
view
to supporting a decision to dismiss. The purpose of the
investigation was to gather all
relevant material so that the officer making the decision to dismiss could decide all factors
pertinent to the issue of dismissal.
Whether to rely to any extent on past
conduct was a matter for the dismissing officer who required to make
that decision based on the material before her. In the absence of any challenge to the reasonableness of her decision and the extent to which she
relied on the information provided about past incidents, it is irrational to nonetheless find the dismissal to be unfair due to the
comprehensive nature of the material with which she was provided. In other
words, unless it could be said that the previous incidents should
never have been a factor in the
decision to dismiss, there was no rational basis to exclude details of them
from the investigation report. As a
subsidiary point, the Tribunal’s reasoning on this first issue is a little unclear. While the decision illustrates obvious
unease with the inclusion of previous incidents in the investigative report because the claimant had not been disciplined for them, such unease is in my
view
an insufficient basis on
which to base a decision that an
investigation was unfair in the Burchell
sense. The Tribunal fails to articulate clearly why the details of previous incidents constituting relevant
information for the dismissing office to deal with as she saw fit should have been withheld from her.
28. I conclude that, it having been conceded that the material was relevant to the investigation and there being no challenge to a decision to dismiss that placed reliance on that material, the Tribunal erred in concluding that the inclusion of that material in the report of itself rendered the dismissal unfair. That was not a conclusion it was entitled to reach on the unchallenged findings in fact. I will address the other two grounds of appeal before explaining the impact of my decision on disposal.
29.
The
second ground of appeal concerns the
issue of whether procedural defects can be separated
out from the substance of a decision to dismiss
or whether both must be considered
before deciding whether a procedural defect is sufficiently serious to render an
otherwise reasonable dismissal unfair. The respondent contends (i) that the
Tribunal failed to consider properly the respondent’s explanation for the
timing of the claimant being told that the latest PSI might be regarded as
gross misconduct and (ii) that the
Tribunal leapt straight from finding a procedural irregularity to a conclusion that the dismissal was
separately unfair on that basis (para 84). I consider
that there is no real
substance in the first of these
points. The Tribunal had the respondent’s explanation before it but was persuaded that more could have
been done to convey earlier to the
claimant how the later PSI was being regarded.
While it is perhaps
regrettable that the Tribunal went so far as
to find someone who had not given
evidence ( Mr Watson ) to have lacked candour when there was some dubiety about
the precise chronology of events, I am unable to
conclude that the view
reached was not one that the Tribunal was
entitled to reach on the evidence
led. The second point is far more
persuasive and I have concluded that the tribunal did err in law by failing to explore the context
of the procedural defect found and to move straight from identifying a
procedural defect to a finding of unfair
dismissal. In fairness to the
Tribunal it does not appear that the
decision in Taylor
v
OCS Group
Limited [2006] IRLR 613 was cited to it. The EAT
decision in Fuller
v
Lloyds Bank plc [1991] IRLR 336 was
before the Tribunal. But that case goes not further than to clarify that a
procedural defect can give rise to an unfair dismissal where either the defect
is of such seriousness that the procedure itself was unfair or where the results
of the defect taken overall were unfair, Knox J making clear that “…the actual defect has,
however, to be analysed in the context of what has occurred…” The subsequent decision in Taylor dealt with what was
perceived to be a conflict in authority about the extent to which subsequent
fair procedure could cure earlier defects. In addressing that the Court of
Appeal clarified the relationship between procedural fairness and the
substantive reason for the dismissal in the following way ;-
“…. It may appear that we are suggesting that ET’s should consider procedural fairness separately from other issues arising. We are not:, indeed it is trite law that s.98(4) requires the ET to approach their task broadly as an industrial jury. That means that they should consider the procedural issues together with the reason for the dismissal as they have found it to be. The two impact upon each other and the ET’s task is to decide whether, in all the circumstances of the case, the employer acted reasonably in treating the reason they have found as a sufficient reason to dismiss. “
It seems to me that the danger of treating procedural unfairness separately as the Tribunal
sought to do in this case is that it
can result in a failure to
assess the gravity of the procedural defect. If there is no real relationship between an unfair step in the procedure and the ultimate outcome,
the impact of that procedural defect may well
be far less than where an absence of any proper procedure led to substantive
unfairness. As Langstaff P put it in Sharkey v
Lloyds Bank plc
UKEATS/0005/15 “..procedure does not sit in a
vacuum
to be assessed
separately. It is an integral part of the
question whether there has been a reasonable investigation that substance and
procedure run together. The problem with the Tribunal’s approach in this case is that it regarded the inclusion of relevant background material in the investigative report and the
concern that the claimant had not been told early enough that the December 2013
PSI may be regarded as gross
misconduct as sufficient to render the dismissal unfair without any analysis
of the seriousness or otherwise of the perceived lack of transparency in terms
of prejudice to the claimant.
Separation of the procedural argument
from the substantive reason for dismissal resulted in the Tribunal omitting to consider its own finding that the decision
to dismiss was within the band of reasonable responses in deciding whether the identified
procedural defects were sufficiently serious as to render the whole process unfair. The Tribunal correctly
identified the potential risk to patient
safety as a central issue that resulted in the
decision to dismiss being reasonable
having regard to the available
material on the PSIs in which the claimant had been involved.
This is not a case in which the consequence of a defective procedure denied a claimant
of putting important mitigatory material before the dismissing officer or where an allegation of bias in the procedure has been made out. In failing to address
the issue of procedural unfairness in the context of everything that occurred,
the tribunal erred. Further, a conclusion that an isolated procedural flaw
during a period prior to the investigation that led to dismissal was sufficient
to render the dismissal unfair so ignored the Tribunal’s own conclusions on
other material issues that it was a perverse conclusion. Accordingly, the
respondent’s second ground of appeal also succeeds.
30. In light of the decision I have reached on the first two grounds, the third ground of appeal becomes academic. It is probably sufficient to record that, while not making any formal concession, Mr Smith acknowledged that the Tribunal had not addressed directly the issue of a Polkey deduction. In the event that I had not been with the respondent on the first two grounds of appeal, I would have remitted the issue of conducting the necessary exercise on the likelihood of dismissal back to the Tribunal for consideration. I accept Mr Lewis’ submission that the Tribunal misled itself on this aspect of the case by reference to the position on reduction for contributory fault.
31. The general conclusion that I have reached is that, while the Tribunal approached the difficult task it faced with great diligence and in a comprehensive manner, its failure to appreciate the significance of the now unchallenged finding that dismissal of the claimant was a reasonable outcome on the basis of the material available to the respondent, led to a perverse decision in the ways identified in the first two grounds of appeal such that its decision cannot stand. Both representatives addressed me on alternative disposals depending on which if any of the grounds of appeal succeeded. Mr Smith suggested that even if the respondent succeeded in the first two grounds of appeal, I should remit the case to a freshly constituted Tribunal for a full re-hearing. His argument was essentially that a successful claimant should not lose out completely as a result of errors of law on the part of the Tribunal. Mr Lewis contended that if there was to be any remit, it would have to be restricted to the issues on which the appeal had succeeded, otherwise the claimant would have a second opportunity to challenge the fairness of the decision to dismiss, the issue on which she had litigated unsuccessfully and not sought to challenge by way of cross appeal. His primary submission was that no remit would be required if his first and second grounds of appeal succeeded, but that if the second ground did not succeed he could see that a remit might be required.
32.
As I
have decided that Tribunal’s decision was inconsistent and perverse on the
matters raised in the first two
grounds of appeal, namely those relevant to the unfair dismissal outcome, the
issue is whether there is more than one possible outcome that
flows from my decision, in which
case I must remit, or whether, on proper application of the law to the findings in fact there is only
one conclusion possible, in which
case I can substitute the decision with that inevitable outcome. In deciding
this issue I must return again to the
unchallenged finding that the decision to dismiss
was a reasonable one on the basis of the available material. Having explained
that the decision on unfairness of the
investigation was inconsistent with that finding
and also perverse, I agree with Mr Lewis that the inevitable outcome is to substitute the finding of unfair dismissal with a finding that it was fair
and that Mrs Pillar’s claim fails. No issue of a remit then arises given the decision I have reached on the
second ground of appeal and the
issue of whether the claimant would
have been dismissed in any event
(the third ground) becomes irrelevant.
33. I am grateful to both representatives for their helpful submissions at the appeal hearing in this sensitive case.