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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Tayeh v Barchester Healthcare Ltd [2013] EWCA Civ 29 (06 February 2013) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2013/29.html Cite as: (2013) 131 BMLR 85, [2013] IRLR 387, [2013] EWCA Civ 29, 131 BMLR 85, [2013] ICR D23 |
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ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge David Richardson, Ms V. Branney and Mr D.G. Smith
UKEAT/0281/11/LA
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE HUGHES
and
LORD JUSTICE RIMER
____________________
ANITA TAYEH |
Appellant |
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- and - |
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BARCHESTER HEALTHCARE LIMITED |
Respondent |
____________________
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Daniel Tatton Brown (instructed by Croner Consulting Limited) for the Respondent
Hearing date: 9 November 2012
____________________
Crown Copyright ©
Lord Justice Rimer :
Introduction
A. Ms Tayeh's employment contract
'The disciplinary procedure is explained in the Employee Handbook. The purpose of the procedure is to achieve improvements in unsatisfactory conduct or performance by staff. In cases of gross misconduct or poor performance, the employee may be dismissed subject to a right of appeal.
The Company has an obligation to investigate cases of alleged professional misconduct and in certain circumstances may have to make a report to the NMC [Nursing and Midwifery Council].'
'1. Breach of safety rules and/or any action, which endangers the health or safety of residents/patients, visitors or work colleagues
5. Failure to administer to, or the mis-management of drugs in respect of, residents or patients
15. Falsification of timesheets and/or pay documentation
16. Falsification of the written records of the Company
17. Fraud or any other illegal offence committed against the Company'
'4. Continuously evaluate nursing care in accordance with the resident's needs and within the "named nurse" system. Ensure the named nurse system is kept up-to-date.
7. Ensure that documentation relating to the delivery of care is completed accurately, legibly and in accordance with company standards. Participate in the formal audit process at the request of the Home Manager.
8. Comply with the NMC Code of Conduct at all times and ensure processes are adhered to for the safe ordering, custody, storing, disposing and administration of all medication. Accept responsibility for the safety of medication in store and on the trolley during dispensing rounds.'
'1.3 You are personally accountable for your practice. This means that you are answerable for your actions and omissions, regardless of advice or directions from another professional
1.4 You have a duty of care to your patients and clients, who are entitled to receive safe and competent care.'
B. The facts
(a) The early morning of 2 December 2009
(b) The night of 10/11 February 2010
(c) The Plumb investigation
' Ms Plumb established that [Ms Tayeh] had read the admission assessment and movement sheet but was unable to answer the question why RF had been admitted and what her main problems and risks were. She said she had been very busy with so much to do. When asked if, after the handover, that is after 8.30 pm, she had checked on RF or spoken to the family, she had replied there was so much to do, implying that she had not. She was then asked if she had taken any observations after the fall or examined RF, to which [she] replied that she had not, but that she was aware that a doctor was coming. She said that she would normally obtain observations after a patient had fallen, but she had been very busy. She said that she had thought that Florence Baira, who was supervising that night, was available and had seen RF and had been present at the handover. When Ms Plumb asked [Ms Tayeh] why she had not made a clinical assessment of RF herself, [she] had said that she was busy attending to other residents. [Ms Tayeh] made reference to her interaction with the relatives . Ms Plumb then asked her about the transfer to the Royal Free Hospital, which occurred after doctors had visited RF and examined her. The decision was made to send her to the Royal Free by ambulance, and Ms Plumb asked [Ms Tayeh] if she had completed a transfer form. This is a [BHL] form, and Ms Plumb told [Ms Tayeh] that no transfer form had been completed nor had any "body map" been prepared. when Ms Plumb asked why she had not documented any care she had given to RF after her arrival on duty, [Ms Tayeh] replied that she had written in the notes what the doctor had done. This refers to the entry that [Ms Tayeh] made in the communication sheet for 23.20 . Towards the end of the interview there was this passage:
"I asked [Ms Tayeh] if at any time she had considered reviewing the situation or asking [Ms Baira's] advice, and calling an ambulance before the doctors arrived. [Ms Tayeh] replied no. [She] informed me that [Ms Baira] had stayed on the floor all night but had not assisted her when the doctors attended. [She] also informed me that the observations had not been done because they had been very busy getting information from Central Middlesex hospital where RF had been admitted from."
'[Ms Tayeh] was asked who did the medication round and [she said] that [Ms Baira] did it. Nevertheless [Ms Tayeh], when asked about paperwork, said that she was, between 8.30 and 11.20, preparing paperwork in relation to RF. When asked what paperwork, [she] replied that it was to do with medication. [She] provided an explanation about the absence of a transfer form. It was that she was told that [Ms Baira] had already obtained a transfer form and that she thought that [Ms Baira] would complete it. She subsequently found that she had not. Lastly, [Ms Tayeh] was asked about observations. [She] acknowledged that she should have done observations on RF and agreed that she hadn't done any. She said that she was not aware whether [Ms Baira] had done any and said:
" because of the preparation of the paperwork for the doctor, that's why I probably missed out it was not intentionally that we didn't do it."
She agreed no body examination was done on RF and she did not consider reviewing RF's condition.'
(d) The disciplinary proceedings
'1. In your role of Nurse in charge on this floor, you allowed residents bedroom doors to be wedged open with items of furniture.
2. You were observed to be wrapped in a blanket and asleep whilst on duty.
3. You also allowed 2 care assistants on your floor to sleep whilst on duty at the same time, resulting in no member of staff on that floor observing the residents to see to carry out duties in relation to the needs of the residents or identify problems/ carry out routine checks.
4. Falsifying documentation in relation to a peg feed due to start at 0600 hrs. You had recorded at 0300 hrs that the feed had been commenced at 0600 hrs.'
The hearing was also to consider 'a serious issue of neglect and failure in your professional duty of care towards resident [RF] on the night shift of 10th/11th February 2010, in that you failed to' (as also numbered by me):
'5. Make any assessment of this resident and carry out observations following a fall. The resident on assessment by a doctor was found to have obvious shortening and a diagnosis of a likely fracture and was sent to hospital.
6. You failed to raise or provide necessary [BHL] documentation for transfer to hospital.'
Ms Plumb's letter provided Ms Tayeh with the evidence upon which the case against her relied. It advised her that, if the allegations were found proved, 'it will be considered Gross Misconduct under the Company's Disciplinary and Dismissal Policy and your employment may be summarily terminated.'
'With regards to falsification of the peg feed documentation, you have admitted to completing this documentation prior to the event. You stated that this was a "mistake". I am satisfied that there was falsification of documentation at the point this was written as this had not taken place. Additionally I was concerned at your statement that you would have crossed this off if it did not happen as this would be a clear breach of nursing guidelines and acceptable practice.
With regards to the allegation of neglect of care towards a resident on 10th/11th February and failing to complete transfer documentation, you have admitted that you failed to carry out observations or any nursing interventions. You also admitted to relying of [sic] doctors documentation rather than completing the required [BHL] documentation. I am satisfied that your failures amount to serious neglect of duty on your part in respect of the care provided to this resident.'
Ms Garner's decision in relation to those findings was as follows:
'With regards to the final two bullet points above, the falsification of the peg feed and neglect of duties in relation to the resident on 10/11th February 2010, I consider your actions to be Gross Misconduct and having considered all alternatives I have decided to take the severest sanction an employer can take against an employee and to summarily dismiss you with effect from 11th March 2010. .'
Ms Garner advised Ms Tayeh of her right to appeal against her decision and explained the procedure for doing so.
C. The ET's reasoning and conclusions on Ms Tayeh's unfair dismissal claim
'24. We are unanimous that dismissal for the inaccurate peg feed documentation does not fall within the range of reasonable responses. [Ms Tayeh] was not suspended. She was not told about the matter. There was no supervision put in place to ensure that such a matter was not repeated, nor was she subjected to training. It is wholly inconsistent, in our judgment, for [BHL] to say in March 2010 that dismissal is justified for this matter alone, when they failed to take any of the indicated action [sic] at the time of the incident. We note that [Ms Tayeh] accepted that it was a falsification of a record, but when one looks at the other examples of falsification that appear above and below the entry marked, "falsification of the written records of the company" [in the Handbook: see my paragraph 7 above], it is clear that this matter is in a different category of seriousness from the types of gross misconduct which appear above and below it in that list. Furthermore, the seriousness of the making of a false record is tempered by the fact that, in this particular case, the situation could easily be checked between 3.00 am and 6.00 am. The patient could be checked to see whether there was any feed in operation through the peg system and the same could be done after 6.00 am. Even if [Ms Tayeh] had forgotten, despite her reminder to administer the feed at 6.00 am, the patient would be visibly without the feed and the matter could be rectified. This is quite different from making a record in advance of administering a drug which has to be taken by mouth. The feed would last several hours.'
'25. We all agree that it would not be within the range of reasonable responses to dismiss [Ms Tayeh] for the failure to complete the transfer form alone. It seems to us that [she] gave a good account of the reasons why the transfer form was not completed on this occasion and, furthermore, [she] did her best to provide documentation to accompany the patient with the ambulance crew to the Royal Free Hospital. It would not, in the tribunal's judgment, be reasonable for [Ms Tayeh] to have been dismissed for this matter alone.'
'26 [Ms Tayeh] accepted that she was in charge of the floor and responsible for the care of the resident, RF. She clearly took responsibility for the patient, dealt with the relatives and later the doctors who arrived to examine her and she took responsibility for ensuring there was paperwork that accompanied the resident on her transfer to the Royal Free Hospital. Furthermore, [Ms Tayeh] admitted to [BHL] that she had failed to make observations in respect of RF. For those reasons the Employment Judge says that dismissal lies within the range of reasonable responses, particularly bearing in mind the accountability provisions in the Nursing and Midwifery Council Code of Conduct.'
27. The majority is of a different view. The reasons for their holding that dismissal does not lie within the range of reasonable responses in respect of this matter are these. First, Ms Garner, improperly in the majority view, included in the rationale for dismissing [Ms Tayeh] an alleged failure to carry out nursing interventions. This was not part of the disciplinary charge. The charge had referred to failure to make assessments of the resident and failure to carry out observations. It appeared to the majority that Ms Garner sought artificially to increase the seriousness of the charge so as to justify dismissal by including a reference to a failure to make nursing interventions, which had not appeared as an issue in the disciplinary action. The second matter was for Ms Garner to include in her rationale for dismissal, reference to the transfer documentation which, in the view of all the members of the tribunal, would not have justified dismissal. The third matter is that Ms Garner appears to have concluded that [Ms Tayeh] had failed to provide any mitigation. On the reading by the majority of all the documentation, that was not true. The fourth matter is that Ms Garner failed to investigate the mitigation that [Ms Tayeh] put forward. In this respect, the majority particularly refers to the possibility of confusion as to responsibilities as between Florence Baira and [Ms Tayeh] on the night in question, and the other limitations on the investigation described above at paragraph 17.
28. For these reasons, the majority holds the dismissal of [Ms Tayeh] to have been unfair. They say that for the failure to make observations, in the particular circumstances, dismissal did not lie within the range of reasonable responses.'
D. The EAT's reasoning and conclusion on the hearing of BHL's appeal
(a) The 'PEG feed' charge
'44. It must be remembered that BHL runs Care Homes for vulnerable and elderly people. It employs nursing staff. Such an organisation is dependent on the keeping of proper records as a check on the treatment which patients receive. It is entitled to expect that professional nursing staff will complete them accurately and that they will indeed be a record of treatment actually given. To make an entry deliberately in a fluid chart when no fluid is given is indeed to make a false record (contrary to [Ms Tayeh's] submission to us). [BHL] is entitled to take such a matter seriously; the Tribunal was not entitled to substitute its own view that a false medical record was less serious than a false time sheet or pay documentation. A false time sheet or pay documentation does not relate directly to the care of elderly or vulnerable people.
45. We would add that there is what appears to be a mistake of fact in paragraph 24 [of the ET's reasons]. The issue was raised with [Ms Tayeh] on 4 December and again on 30 December when her case was investigated.
46. For these reasons we do not think that paragraph 24 of the Tribunal's reasons can stand.'
(b) The 'failure to provide a transfer form' charge
(c) The 'failure to make observations' charge
'52. The thrust of the charge against [Ms Tayeh] is that while she was in charge of the floor in question over a period of nearly 3 hours a vulnerable and injured resident was not the subject of any proper observation. This is not a technical charge; it is not that nurses were looking after resident RF in other ways but failing to record observations. The charge is that RF was not being observed whether by making routine observations or in any other way (for example noting her condition when administering fluids or the like). To our mind the dismissal letter was doing no more than emphasising that nothing of any kind was being done to keep resident RF under proper observation during those 3 hours. It was not seeking to increase the charge against [Ms Tayeh]. In our judgment the majority was not entitled to conclude that there was any impropriety on the part of Ms Garner. It was not a permissible conclusion to draw from the letter in question.'
'54. It is indeed plain from the dismissal letter that Ms Garner did not consider there to be any real mitigation except length of service, which she specifically mentioned. The majority considered that there was potential mitigation in the relationship between [Ms Tayeh] and Ms Florence Baira; but (1) BHL did investigate what each of them said and did on the evening in question and (2) there can be no doubt that [Ms Tayeh] was in charge of the floor from 20.30 for nearly 3 hours when no observations were made upon the patient. If the majority had kept in mind the range of reasonable responses test (which applies to investigation as much as to other aspects of the Tribunal's inquiry see J Sainsbury plc v. Hitt [2003] ICR 111) we think it would inevitably have reached the conclusion that [BHL's] investigation and consideration of this issue was within the range of reasonable responses.'
'56. [BHL] was entitled to find that it was gross misconduct to make an entry upon a fluid chart recording the giving of a peg feed when no peg feed was given. Such conduct amounted to the falsification of a record; there was no good reason or even sensible explanation for it; it is certainly not a good reason or sensible explanation to make a false medical record as an aide mιmoire. In our judgment applying section 98(4) [of the Employment Rights Act 1996] it is plain that BHL was entitled to dismiss for it.
57. Quite separately, in our judgment it is plain that [BHL] was entitled to find that it was gross misconduct to make no observations upon an elderly and vulnerable patient, awaiting the arrival of a doctor after a fall, over a period of nearly 3 hours.
58. It follows that the appeal will be allowed and a finding substituted that the dismissal was fair.'
E. The appeal to this court
'(4) In any other case where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)
(a) depends on whether in the circumstances (including the size and administrative resources of the employer's undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and
(b) shall be determined in accordance with equity and the substantial merits of the case.'
(The opening words 'In any other case' mean in a case other than one governed by the, here irrelevant, provisions of section 98(3A); and so section 98(4) was directly in point).
'35. once it is established that the employer's reason for dismissing the employee was a "valid" reason within the statute, the ET has to consider three aspects of the employer's conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employee was guilty of the misconduct complained of and, thirdly, did the employer have reasonable grounds for that belief.
36. If the answer to each of those questions is "yes", the ET must then decide on the reasonableness of the response by the employer. In performing the latter exercise, the ET must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to the ET's own subjective views, whether the employer has acted within a "band or range of reasonable responses" to the particular misconduct found of the particular employee. If the employer has so acted, then the employer's decision to dismiss will be reasonable. However, this is not the same thing as saying that a decision of an employer to dismiss will only be regarded as unreasonable if it is shown to be perverse. The ET must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The ET must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which "a reasonable employer might have adopted". An ET must focus its attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any internal appeal process) and not on whether in fact the employee has suffered an injustice. An appeal from the ET to the EAT lies only in respect of a question of law arising from the ET's decision: see s. 21(1) of the Employment Tribunals Act 1996.'
'Range of reasonable responses point
The employment tribunal then followed, as it was bound by authority to do, the approach in Iceland Frozen Foods Ltd. v. Jones [1983] 1CR 17 and held that, although it was of the view that the decision to dismiss was "harsh," it was not entitled to substitute itself for the employer and impose its "decision upon that of a reasoned on the spot management decision" (paragraph 23). Instead it asked, as required by authority, whether the dismissal was "within the range of reasonable responses for the employer to have dismissed the employee." It found that it was. That finding is not erroneous in law unless it can be characterised by an appellate body as one which no reasonable tribunal could have reached.
Perversity point
It was made clear in Iceland Frozen Foods Ltd v. Jones [1983] ICR 17, 25B D, that [what is now section 98(4) of the 1996 Act] did not require "such a high degree of unreasonableness to be shown that nothing short of a perverse decision to dismiss can be held to be unfair within the section." The tribunals were advised to follow the formulation of the band of reasonable responses approach instead. If an employment tribunal in any particular case misinterprets or misapplies that approach, so as to amount to a requirement of a perverse decision to dismiss, that would be an error of law with which an appellate body could interfere.
The range of reasonable responses approach does not, however, become one of perversity nor is it rendered "unhelpful" by the fact that there may be extremes and that (as observed in Haddon v. Van den Bergh Foods Ltd [1999] ICR 1150, 1160D) "Dismissal is the ultimate sanction." Further, that approach is not in practice required in every case. There will be cases in which there is no band or range to consider. If, for example, an employee, without good cause, deliberately sets fire to his employer's factory and it is burnt to the ground, dismissal is the only reasonable response. If an employee is dismissed for politely saying "Good morning" to his line manager, that would be an unreasonable response. But in between those extreme cases there will be cases where there is room for reasonable disagreement among reasonable employers as to whether dismissal for the particular misconduct is a reasonable or an unreasonable response. In those cases it is helpful for the tribunal to consider "the range of reasonable responses."
Substitution point
It was also made clear in Iceland Frozen Foods Ltd, at pp. 24G-25B, that the members of the tribunal must not simply consider whether they personally think that the dismissal is fair and they must not substitute their decision as to what was the right course to adopt for that of the employer. Their proper function is to determine whether the decision to dismiss the employee fell within the band of reasonable responses "which a reasonable employer might have adopted."
In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory reference to "reasonably or unreasonably" and not by reference to their subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not.'
'A summary of the allocation of powers and responsibilities in unfair dismissal disputes bears repetition: it is for the employer to take the decision whether or not to dismiss an employee; for the tribunal to find the facts and decide whether, on an objective basis, the dismissal was fair or unfair; and for the Employment Appeal Tribunal (and the ordinary courts hearing employment appeals) to decide whether a question of law arises from the proceedings in the tribunal. As appellate tribunals and courts are confined to questions of law they must not, in the absence of error of law (including perversity), take over the tribunal's role as an "industrial jury" with a fund of relevant and diverse specialist expertise.'
Lord Justice Hughes :
Lord Justice Pill :