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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Central & North West London NHS Foundation Trust v Abimbola [2009] UKEAT 0542_08_0304 (3 April 2009) URL: https://www.bailii.org/uk/cases/UKEAT/2009/0542_08_0304.html Cite as: [2009] UKEAT 0542_08_0304, [2009] UKEAT 542_8_304 |
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At the Tribunal | |
Before
HIS HONOUR JUDGE PETER CLARK
MR A HARRIS
MR B M WARMAN
APPELLANT | |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MR KEITH MORTON (of Counsel) Instructed by: Messrs Radcliffes LeBrasseur Solicitors 5 Great College Street Westminster London SW1P 3SJ |
For the Respondent | MR JAKE DUTTON (Solicitor) ieLaw Solicitors Nova Building Herschel Street Slough Berks SL1 1XS |
SUMMARY
UNFAIR DISMISSAL: Reinstatement/re-engagement
Order for reinstatement made. The Employment Tribunal failed to take into account relevant factors in the exercise of their discretion. Appeal allowed; reinstatement order set aside.
HIS HONOUR JUDGE PETER CLARK
Background
"he may have physically assaulted a service user on 13 June 2006 on Fray's Ward at Hillingdon Hospital."
An appeal hearing took place on 13 June; his appeal was dismissed.
Reinstatement
"At the (first) stage when the order to re-engage is being made, it is not in our judgment necessary for the Industrial Tribunal [now Employment Tribunal] looking at possible future events, to make a definite finding that the order for [in that case] re-engagement was practicable. They must have regard to the question of practicability and if they are satisfied that it is unlikely to be effective, they will no doubt not make an order."
"21. The Tribunal ordered re-engagement and are criticised by the Appellant employer for what they submit is a wholly perverse decision upon all the facts of this case. It is a possible view of that decision, but we do not seek nor do we need to go that far. An essential finding in the present case was that the authority had a genuine belief in the guilt of the applicant. It is said with accuracy that this is the largest education authority in the country and that it has a vast area to cover and a vast variety of posts into which the applicant could be fitted. It is, however, a common factor in any of those posts that the applicant would have the care and handling of young children of both sexes. Bearing in mind the duty of care imposed upon the authority and the very real risks should they depart from the highest standard of care, we take the view that this Tribunal failed adequately to give weight to those factors in the balancing exercise carried out in order to reach their decision on re-engagement."
Pausing there, we accept Mr Morton's submission that the duty on the Respondent in the present case for the care of vulnerable patients is not dissimilar from the duty on the education authority in the Gravett case.
The Appeal
(1) The Claimant's dishonest evidence as to his loss of earnings given at the remedy hearing:
At paragraph 7 of the remedy reasons the Employment Tribunal found that the Claimant's evidence at that hearing was, at times evasive and on one occasion perhaps even dishonest in that initially he said that he had not done a day's work since dismissal by the Respondent, but later in cross-examination accepted that he had done on average three days a week at a carwash for a period of ten weeks earning about £900.
It was submitted on behalf of the Respondent that such conduct in these proceedings caused a lack of trust on the part of the Respondent. The Employment Tribunal held that such evasiveness and dishonesty was not a relevant factor. The legislation, in their opinion, does not envisage such a matter being taken into account on the reinstatement question. Mr Morton submits that, first the Tribunal was not restricted to simply considering the three mandatory factors in s116(1) ERA, relying on the judgment of Neill LJ in Payne particularly at paragraphs 36 and 48, but that in any event loss of trust and confidence goes to the question of practicability under s116(1)(b) on the authorities.
Mr Dutton argues to the contrary by reference to an obiter remark by Lord Simon of Glaisdale in Devis v Atkins [1977] ICR 662, 684 C-D where his Lordship said
"Although there is, on the face of it, a discretion in the tribunal whether or not to order reinstatement or re-engagement, the fact that an employee was guilty of successfully concealed misconduct does not appear to be one of the matters which the tribunal can take into consideration."
and then refers to s71(6) and (7) of the Employment Protection Act 1975 precisely re-enacted in s116 ERA. We are not persuaded that Lord Simon's fears were well-founded. It is now settled law, see Wood Group and Nothman, that a breakdown in mutual trust and confidence is material to the practicability of a re-employment order. In our judgment, this dishonesty in giving evidence at the remedy hearing was material to the Employment Tribunal's consideration of whether or not to make a reinstatement order and ought to have been taken into account in the exercise of their discretion.
(2) The Final Warning.
Again, the fact that the final warning and underlying allegation of assault in July 2006 did not cause or contribute to the Claimant's dismissal for the June 2006 alleged incident does not, as the Employment Tribunal believed (paragraph 5) render it irrelevant to the re-employment question. On the contrary, in our judgment, it is relevant to the issue of trust and confidence and therefore practicability of reinstatement.
(3) The three unproven complaints of sexual misconduct made against the Claimant by female patients.
We are satisfied that, at paragraph 5, the Employment Tribunal chose to disregard those earlier unsubstantiated allegations on the basis that to take them into account would be to adopt an unjust "no smoke without fire" approach. In our judgment that wholly misses the point. The question is whether, taken cumulatively, this was a factor which undermined the Respondent's trust and confidence in the Claimant such as to require them to re-employ him in a female ward.
(4) The finding at the liability stage that the Respondent genuinely believed that the Claimant was guilty of the headlock incident.
This is not a point which was taken below, but Mr Dutton accepts that had it been taken, it would be a relevant factor for the Employment Tribunal to take into account, by reference to the cases of Gravett and Wood Group.
Conclusion
Disposal