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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Look Ahead Housing and Care Ltd v Chetty & Anor (Unfair Dismissal : no sub-topic) [2014] UKEAT 0441_13_2305 (23 May 2014) URL: https://www.bailii.org/uk/cases/UKEAT/2014/0441_13_2305.html Cite as: [2014] UKEAT 441_13_2305, [2014] UKEAT 0441_13_2305 |
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At the Tribunal | |
On 21 February 2014 | |
Before
HER HONOUR JUDGE EADY QC
(SITTING ALONE)
APPELLANT | |
(2) MRS B EDUAH |
RESPONDENT |
Transcript of Proceedings
JUDGMENT
For the Appellant | MS ELAINE BANTON (of Counsel) Instructed by: Levens Employment Cromwell House 14 Fulwood Place London WC1V 6HZ |
For the First Respondent For the Second Respondent |
MR JACK FEENY (of Counsel) Instructed by: Pattinson & Brewer Solicitors 4th Floor 11 Pilgrim Street London EC4V 6RN MR NICK SCOTT (Representative) Free Representation Unit Ground Floor 60 Gray's Inn Road London WC1X 8LU |
SUMMARY
UNFAIR DISMISSAL
RACE DISCRIMINATION
In the case of the First Claimant, the Employment Tribunal had made (unchallenged) findings that the Respondent had not established a fair reason for the dismissal and had no reasonable grounds for the reason it had relied on. The Respondent's arguments on appeal failed to engage with these conclusions, which undermined both its case on unfair dismissal but also on discrimination.
In the Second Claimant's case, the Tribunal's findings of fact in respect of the race discrimination claim were not susceptible to challenge and undermined the Respondent's arguments in respect of the unfair dismissal case.
Generally, the Employment Tribunal had not erred in its approach to construction of a hypothetical comparator. Applying Ahsan v Watt [2008] IRLR 243 HL, the Tribunal had been entitled to look at the Respondent's treatment of other white employees, albeit that they were not strict comparators, in determining how a hypothetical comparator would have been treated in like circumstances.
Both liability appeals dismissed.
HER HONOUR JUDGE EADY QC
Introduction
The background facts
"...The person supervising the medication had to ensure that the following were in the resident's file:
a. a medication chart – which contained details of the person and the medication being taken, dose/frequency and guidance for use;
b. a medication profile form 1 which had the resident's photo attached, details of the GP and any other medical professional who is involved with that particular resident, details of medication, frequency/dosage
c. an M9 form which records any changes in medication and which is signed off by the relevant GP."
"The management and administration of prescribed medication must always be conducted in a way to ensure the safety of service users and staff. When there is any doubt do not give out medication; stop and ask a manager."
"C.2.1 All transactions must be recorded:
a) accurately
b) clearly and legibly
c) at the time administered
d) only on approved forms...
e) signatures must be recorded, alongside initials.
f) records must be signed only by the person responsible (never sign for medications given by somebody else where you were not present or to corroborate an action that has not been seen."
"Do not administer any medication where there is any discrepancy between 2 or more records....
C.9.1 – Administration of medication may only be undertaken by staff trained and authorised in our medications policy and procedure, and assessed competent to do so.
...
C.9.18 – Staff must observe that medication has been swallowed by person receiving it before signing confirming it has been administered."
"Any change (i.e dose, type, or time) in prescribed medication can only be authorised by a doctor."
"Ms Morton had already had all the training and had signed to confirm this. She had been through the observation part of the training where she witnesses a colleague give meds to a resident and checks and signed the relevant form. As manager of the project, [Ms Morton] was the senior manager...throughout the incidents considered in this case."
"...it would be reasonable for Ms Morton to be considered to be trained in and familiar with the Respondent's medication policy."
"She was not told that under no circumstances should this be done. So she gave G...her meds without the chart. Once [the First Claimant] came into work, she signed the charts as people came in for their meds."
"47. ...She did not speak to anyone about it. Instead, as she was familiar with [G's] meds she checked the medication to make sure that it was all there and intact. [G's] meds were all clearly marked and were either in a blister pack or in a dosette box. The dosage for each day would be clearly set out and it would be obvious from the dosette box if the day's meds had already been taken. [The Second Claimant] decided that even though there was no M9 in the file that it was unlikely that [G's] medication had altered. She concluded that if there had been a change of medication it would have been communicated at handover at the beginning of her shift.
48. At the time that [the Second Claimant] administered [G's] meds none of the managers were present at the project. She knew from reading the activity book that one of [the] junior managers had gone to [G's] GP surgery to get a new M9 form signed and once that was obtained the medication chart would be signed and put in the folder. She tried to get [G] to wait for all this to occur but [G] refused and said that she wanted her meds as she was going out. We find that [the Second Claimant] was not confused or unsure about the situation and that she believed that the meds had not changed. They were 'in date'. [G] was not due for a review...
49. [G] had diabetes, which meant that her blood sugar needed to be checked regularly and she would be at risk of serious ill-health if she spent a day without taking insulin. As she usually refused to take any other day of insulin, the morning dose before she left the project was the most important dose for her. Although the Respondent's case is that if [the Second Claimant] had called the managers at this point they would have been able to make [G] wait until the signed M9 form had been obtained, we question how easy that would have been as no-one had been able to persuade her to take a second dose of insulin..."
"Ms Morton was by now familiar with the Respondent's procedures and was aware that the forms were missing. She did not halt the process but allowed [G] to take her medication in the absence of the M9 and in breach of the Respondent's procedures."
"This suggested to us that without knowing all the facts the Respondent had already determined that [the Claimants] were to be the focal point of any investigation or action. The investigation was not into how such important paperwork had initially gone missing, or what had happened including what was Ms Morton's involvement or any other aspect of the incident. We find that five members of staff were involved at this stage: Ms Murphy, Ms Morton, [the First Claimant], John Duncan and [the Second Claimant] and yet they chose to focus only on the two black members of staff for that investigation at the beginning of the process before knowing all the facts. We find that this is a fact from which we can infer less favourable treatment on the grounds of race."
"67. At the time of the incident Leann was in the process of working out her notice as she was leaving the UK to live in Ireland. She did indicate in her meeting with Ms Atiror that she was willing to return to face disciplinary action if asked, as long as it was in the next three weeks. She had 16 working days left with the Respondent.
68. We find that it would not have been possible to conclude the investigation with that time as the Respondent needed to speak to [the first Claimant] as part of the investigation. When the investigation began she was off sick. The Respondent would have needed to conclude the investigation before they decided who to discipline and it would have been only then that any disciplinary action against Leann could have taken place.
69. ...following her interview, Leann is effectively out of the investigation. The Respondent made no attempt to discipline here as already stated and there was no evidence that they had written to her to inform her of the outcome of the investigation and that it was likely that she would have been disciplined had she remained employed..."
"...bordered on badgering...He did not allow her to complete her sentences but interrupted her so that he could make the same point."
"80...Although he stated that he had taken into account the rationale behind the Claimant's decision and the other mitigating factors, there was no list of things he did take into account. He does not appear to have given consideration to or addressed the point about [G's] health which the Claimant submitted was the main reason for her breaching the procedure and her consideration that she had properly weighed up the risks to the residents and the risk she exposing herself and the Respondent to by breaching the procedure. As these points were not mentioned in the letter of dismissal or in the meeting we find that it is unlikely that any real consideration was given to them before Mr Baldock arrived at the decision to dismiss...
82. The dismissal letter...stated that she was dismissed because the allegation that she had failed to follow or implement the Respondent's medication policy and procedures had been proven as she had given a service user medication without a medication chart in place and had failed to stop the administration of medication and seek advice from a manager. We find that what she did could be said to have been quite the opposite of that. She did breach procedure but she did it because she was concerned to maintain [G's] health and actually keep alive a seriously ill resident. We find that there does not appear to have been any recognition of this as a mitigating factor."
"88 ... By Tuesday 27 April Ann Green of the Respondent wrote to Ms Morton exonerating her from all involvement in the incident."
"86 Mr Baldock stated in [the First Claimant's] hearing that Ms Morton was being investigated but there was no evidence of any investigation being conducted at that time which looked at Ms Morton's involvement in the incident. We find that the obvious contradiction in her evidence was not picked up by the Respondent. We find that instead the Respondent chose to clear Ms Morton from any involvement when she was the manager of the project and ultimately responsible while at the same time they instituted disciplinary proceedings against her deputy who was not responsible for administering medication and had not been present when it was done. These are facts from which we can infer less favourable treatment to the Claimant on the grounds of her race.
...
90. Ms Green's letter sought perhaps to reassure Ms Morton that she did not have anything to worry about. We are not sure why this was a priority rather than having a thorough investigation of what we were told the Respondent considered to be a serious matter and for which they stated they have a strict adherence policy. We query also whether it was appropriate for Ann Green to conduct the later investigation... given that she had already come to the conclusion without any apparent investigation that Ms Morton had no responsibility in this incident.
...
94. We find that [the First Claimant] did sign [G's] medication chart for Tuesday 2 March even though she had not given or witnessed medication being taken by the resident. This was in breach of procedure. The Claimant was following Ms Morton's instructions.
95. Ms Morton did not tell her line manager about the missing documents as soon as she became aware of it... She did not make a formal report to Luke Baldock... By contrast, [the First Claimant] had the matter reported to her by her line manager, which was Ms Morton, when she arrived for work on Monday 1 March. She volunteered to sort the matter out and the task was delegated to her. Ms Morton does not appear to have received any sanction for not reporting the matter as soon as she became aware. She also appears to have altered her version of events in [the First Claimant's] disciplinary hearing. She received no sanction for any of this. These are facts from which we can infer less favourable treatment on the grounds of race."
"...that Ms Morton and Mr Duncan were given oral warnings while the decision was taken to dismiss... both Claimants are facts from which we can infer less favourable treatment on the grounds of race."
The Employment Tribunal's Judgment and Reasons
"...even though the Respondent employed a majority of black and minority ethnic workers and agency staff at the project there was evidence that black staff were more harshly dealt with if there were issues of conduct in comparison to their white colleagues..."
"144.1 The decision to focus on the Claimants quite early on in the investigation, before all the facts were known when, at that stage what was known was that five people had been involved in the administering of medication...without proper documentation.
144.2 The Respondent's decision to institute disciplinary proceedings against [the First Claimant] who had no direct responsibility for administering medication and had not done so...while at the same time, exonerating her line manager who had overall responsibility for the project and who had personally administered medication in breach of the procedures.
144.3 The Respondent's decision even after finally conducting an investigation into the involvement of John Duncan and Joanne Morton that it was appropriate to issue the project manager, Ms Morton, with an oral warning which the Claimants remained dismissed."
The Tribunal concluded (para. 147) that:
"the Claimants both made a prima facie case that the decisions to dismiss them was based on or tainted by race."
"(a) She had not, as a matter of fact, breached the Respondent's procedures and it was not appropriate to hold her responsible for the operation of the medication policy while exonerating Ms Morton in this regard.
(b) It had been appropriate to investigate the First Claimant. It might also have been appropriate to discipline her for not taking care of the charge of the situation and resolving it.
(c) The Claimant had not, however, failed in her duties as the Deputy Manager and had not put the service user at risk.
(d) Ms Morton was not a proper comparator in the First Claimant's case as she (Ms Morton) was a more senior employee and should therefore have been held to have had greater responsibility.
(e) Notwithstanding Ms Morton's greater responsibility the First Claimant was treated more harshly."
(a) She had breached the Respondent's policy and it had been appropriate to institute disciplinary proceedings against her. The Respondent had a reasonable belief that she committed an act of misconduct which could be seen as gross misconduct.
(b) It was not convinced that the Respondent would have dismissed Ms Murphy had she remained in its employment; no action was taken in relation to Ms Murphy which could lead it to conclude that there was a real possibility this would have happened.
(c) In deciding whether dismissal was an appropriate response to the Second Claimant's misconduct, the Respondent had failed to consider her mitigation. Had it done so, it was unlikely that it would have been reasonable to summarily dismiss her for the gross misconduct found. The Respondent had failed to have regard to those mitigating factors because of the Second Claimant's race.
(d) Further, as compared to the Respondent's treatment of Ms Morton - who had similarly misconducted herself - the Second Claimant was treated more harshly.
(a) The Respondent did not have a reasonable belief that the First Claimant had committed acts of gross misconduct at the time of the decision to dismiss.
(b) The investigation was flawed in focusing on only the two Claimants when there were five employees involved.
(c) The appeal failed to rectify flaws in the dismissal process.
(d) Although there may have been a final written warning in existence, the Respondent's case had always been that the offences in question alone were sufficient and it was not seeking to rely on the cumulative effect of the written warnings to justify the sanction of dismissal.
(e) At most, the First Claimant's breach of policy was the signing the medication chart when she had not administered the medication to G. At the highest, that might be an act of misconduct not gross misconduct.
(a) That it had found that the Respondent had a reasonable belief in the Claimant's misconduct which could be considered to amount to gross misconduct.
(b) Nevertheless it considered the sanction imposed was unfair when comparing the Second Claimant's position to that of Ms Morton, who was guilty of the same offence and was the more senior employee.
The grounds of appeal and submissions
"BE [Second Claimant] She can't be dismissed anyway
JJ [Jo Jolley, Managing Director of the Respondent] Well actually that's not the case. If a person leaves us whilst something serious has happened they can either come back and participate or we can hear things in their absence. So it won't be a situation where we don't do anything, we will see the process through to the end with or without their participation but at the moment I don't believe it's complete"
Legal principles
"(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –
(a) the reason (or, if more than one, the principal reason) for the dismissal, and
(b) that it is either a reason falling within subsection (2) or some other substantial reason for a kind such as to justify the dismissal of an employee holding the position which the employee held
(2) A reason falls within this subsection if it –
(a) …
(b) relates to the conduct of the employee
…
(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 determination of the question whether a dismissal was fair or unfair depended on 'the reason shown by the employer' and the Tribunal could not have regard to matters of which the employee was unaware at the time of the dismissal, since it had to consider the conduct of the employer and not whether the employee in fact suffered any injustice, but since the amount of compensation to be assessed...had to be 'just and equitable in all the circumstances' the Tribunal in assessing that compensation may take into account of misconduct which came to light after the dismissal and reduced the compensation which would have otherwise to a nominal or nil amount."
"First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case."
"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."
"We can summarise our view of the law as it stands, for the benefit of Tribunals who may later have to consider the relevance of an earlier warning. A Tribunal must always begin by remembering that it is considering a question of dismissal to which section 98, and in particular section 98(4), applies. Thus the focus, as we have indicated, is upon the reasonableness or otherwise of the employer's act in treating conduct as a reason for the dismissal. If a Tribunal is not satisfied that the first warning was issued for an oblique motive or was manifestly inappropriate or, put another way, was not issued in good faith nor with prima facie grounds for making it, then the earlier warning will be valid. If it is so satisfied, the earlier warning will not be valid and cannot and should not be relied upon subsequently. Where the earlier warning is valid, then:
(1) The Tribunal should take into account the fact of that warning.
(2) A Tribunal should take into account the fact of any proceedings that may affect the validity of that warning. That will usually be an internal appeal. This case is one in which the internal appeal procedures were exhausted, but an Employment Tribunal was to consider the underlying principles appropriate to the warning. An employer aware of the fact that the validity of a warning is being challenged in other proceedings may be expected to take account of that fact too, and a Tribunal is entitled to give that such weight as it sees appropriate.
(3) It will be going behind a warning to hold that it should not have been issued or issued, for instance, as a final written warning where some lesser category of warning would have been appropriate, unless the Tribunal is satisfied as to the invalidity of the warning.
(4) It is not to go behind a warning to take into account the factual circumstances giving rise to the warning. There may be a considerable difference between the circumstances giving rise to the first warning and those now being considered. Just as a degree of similarity will tend in favour of a more severe penalty, so a degree of dissimilarity may, in appropriate circumstances, tend the other way. There may be some particular feature related to the conduct or to the individual that may contextualise the earlier warning. An employer, and therefore Tribunal should be alert to give proper value to all those matters.
(5) Nor is it wrong for a Tribunal to take account of the employers' treatment of similar matters relating to others in the employer's employment, since the treatment of the employees concerned may show that a more serious or a less serious view has been taken by the employer since the warning was given of circumstances of the sort giving rise to the warning, providing, of course, that was taken prior to the dismissal that falls for consideration.
(6) A Tribunal must always remember that it is the employer's act that is to be considered in the light of section 98(4) and that a final written warning always implies, subject only to the individual terms of a contract, that any misconduct of whatever nature will often and usually be met with dismissal, and it is likely to be by way of exception that that will not occur."
"A person discriminates against another in any circumstances relevant for the purposes of any provision of this Act if—
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons;..."
The operation of the burden of proof in such cases was addressed at section 54A:
"(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent—
(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful …
…
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent—
(a) has committed such an act of discrimination …against the complainant, …
the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act."
"36. The discrimination which section 12 makes unlawful is defined by section 1(1)(a) as treating someone on racial grounds "less favourably than he treats or would treat other persons". … to summarise:
(1) The test for discrimination involves a comparison between the treatment of the complainant and another person (the 'statutory comparator') actual or hypothetical, who is not of the same sex or racial group, as the case may be.
(2) The comparison requires that whether the statutory comparator is actual or hypothetical, the relevant circumstances in either case should be (or be assumed to be), the same as, or not materially different from, those of the complainant: section 3(4).
(3) The treatment of a person who does not qualify as a statutory comparator (because the circumstances are in some material respect different) may nevertheless be evidence from which a tribunal may infer how a hypothetical statutory comparator would have been treated … This is an ordinary question of relevance, which depends upon the degree of the similarity of the circumstances of the person in question (the 'evidential comparator') to those of the complainant and all the other evidence in the case.
37. It is probably uncommon to find a real person who qualifies under section 3(4) as a statutory comparator. … At any rate, the question of whether the differences between the circumstances of the complainant and those of the putative statutory comparator are 'materially different' is often likely to be disputed. In most cases, however, it will be unnecessary for the tribunal to resolve this dispute because it should be able, by treating the putative comparator as an evidential comparator, and having due regard to the alleged differences in circumstances and other evidence, to form a view on how the employer would have treated a hypothetical person who was a true statutory comparator. If the tribunal is able to conclude that the respondent would have treated such a person more favourably on racial grounds, it would be well advised to avoid deciding whether any actual person was a statutory comparator."
Discussion and conclusions