East Surrey District Health Authority v Paul [1993] UKEAT 328_91_0405

EAT
East Surrey District Health Authority v Paul
[1993] UKEAT 328_91_0405 · 1993-05-04
MR JUSTICE WOOD (PRESIDENT): Mr Paul on the date of his dismissal on the 12th February 1990, was employed as a Charge Nurse on night duty at Earlswood Hospital, Redhill, Surrey. His employers were the East Surrey District Health Authority. This hospital catered for mentally disturbed patients. It is a substantial hospital with some 21 wards, some 430 residents and a staff of about 25.Mr Paul had been employed since May 1972 by the Authority, that is some 18 years up to the date of his dismissal, and his history showed no material reprimands or warnings.He alleged in his Originating Application that he had been unfairly dismissed and that he had been discriminated against on the grounds of his race. The particulars of his complaint were short: that no reasonable employer would have dismissed him in similar circumstances; that the decision of the dismissing officer was perverse; that there was an unfair comparison between his case and that of other employees who had not been dismissed, and also there was a question of the medical aspect, the hypoglycaemia; he was diabetic; but that matter is not now pursued.The hearing took place before an Industrial Tribunal over two days in March 1991. The Tribunal found in favour of Mr Paul that he had been unfairly dismissed and that he had been the subject of racial discrimination, direct discrimination under Section 1(1)(a) of the Race Relations Act 1976 . The Health Authority now appeal.In essence the Industrial Tribunal found that the reason for Mr Paul's dismissal was his conduct. They found that the procedure was satisfactory and that the employers were entitled to reach the conclusions which they did on the evidence that was available to them. But they found unfairness in that the decision to dismiss, when compared with other instances in which other employees had been involved, was such as to render the decision unfair.The law on this particular aspect is not difficult; it really is pretty clear; it is the application of the law which involves difficulty. May I say that it is in this aspect, in particular, that the lawyer welcomes the assistance and the views and experience of the lay members, in this case as in many of the others that have come before this appeal tribunal. There are, in fact, some four or five cases which set out the principles quite clearly. The first is The Post Office v. Fennell [1981] IRLR 221, it is not necessary, in my judgment, to repeat the facts of the case. The Court of Appeal were considering the wording of Section 57(3) of the 1978 Act at a time when the burden of proof was on the employer, and

Lord Justice Brandon giving the leading judgment in the Court of Appeal says this at paragraph 12:

"It seems to me that the expression `equity' as there used comprehends the concept that employees who misbehave in much the same way should have meted out to them much the same punishment, and it seems to me that an Industrial Tribunal is entitled to say that, where that is not done, and one man is penalised much more heavily than others who have committed similar offences in the past, the employer has not acted reasonably in treating whatever the offence is as a sufficient reason for dismissal."
The third judgment was given by the President of the Family Division, as he then was, Sir John Arnold, who had previously sat here as a

Judge at the EAT, and in paragraph 22 he says this:

"We agree with the Tribunal's ultimate approach and the alternative contention of counsel for the employee, that even though there may have been misconduct on the part of an employee, and even though the employers may satisfy an Industrial Tribunal that they have acted entirely reasonably in ascertaining the relevant facts and in applying their grievance procedure, nevertheless there must be consistency between decisions by the employers and that it is open to an Industrial Tribunal to classify as unfair a dismissal which demonstrates inconsistency on the part of the employer, even though in every other respect the employer's actions have been reasonable."
Shortly thereafter a panel of this Tribunal, under the Chairmanship of Mr Justice Waterhouse, in the case of Hadjioannou v. Coral Casinos Ltd [1981] IRLR 352, looked again at this principle. The facts again are not necessary for the principle and we turn to paragraph 25 where the learned Judge says this:
"We accept that analysis by counsel for the respondents of the potential relevance of arguments based on disparity. We should add, however, as counsel has urged upon us, that Industrial Tribunals would be wise to scrutinize arguments based upon disparity with particular care. It is only in the limited circumstances that we have indicated that the argument is likely to be relevant and there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a Tribunal may be led away from a proper consideration of the issues raised by s.57(3) of the Act of 1978. The emphasis in that section is upon the particular circumstances of the individual employee's case. It would be most regrettable if Tribunals or employers were to be encouraged to adopt rules of thumb, or codes, for dealing with industrial relations problems and, in particular, issues arising when dismissal is being considered. It is of the highest importance that flexibility should be retained, and we hope that nothing that we say in the course of our judgment will encourage employers or Tribunals to think that a tariff approach to industrial misconduct is appropriate. One has only to consider for a moment the dangers of the tariff approach in other spheres of the law to realise how inappropriate it would be to import it into this particular legislation."
Then, more recently, there is a case in this Tribunal of Procter v. British Gypsum Ltd [1992] IRLR 7, and towards the latter part of that decision this Tribunal expressing very much the views of the lay Members, say this at paragraph 27 and beyond:
"As in so many aspects of industrial relations a reasoned and reasonable balance must be sought. This is emphasised in Hajioannou . Before reaching a decision to dismiss an employer should consider truly comparable cases of which he knew or ought reasonably to have known. The information may be forthcoming at the initial stage or on appeal. If the employee or those representing him know of other such incidents it will no doubt be in his best interests that they should be identified or at least drawn to the attention of the employer. If necessary an adjournment can be taken for further investigation. A small concern may not keep any records of dismissal; a large employer may do so as a matter of sound administration. We do not suggest any obligation so to do. Unless the personnel manager has been in post for a substantial period it may be reasonable to make enquiry of others, as did Mr Scott in the present case.
Industrial situations within a unit or on a site may change from time to time as may physical conditions. There may be an increase in dishonesty, fighting or absenteeism. Thus, it may not be reasonable to look back more than a few years.These may be some but by no means all the factors which may be relevant to the approach of this employer in these circumstances. The question will always be one of fairness.Whatever the relevant factors, the overriding principles must be that each case must be considered on its own facts and with freedom to consider mitigating aspects. The dangers of a tariff and of untrue comparability are only too obvious. Not every case of leniency should be considered to be a deviation from declared policy."Lastly, perhaps, of those directly relevant was the case of United Distillers v. Conlin a decision in Scotland in this Tribunal [1992] IRLR 503, where at paragraph 5, and I pick out just one sentence here where Lord Coulsfield giving the judgment of the Employment Appeal Tribunal, says:
"However although consistency is an important consideration in disciplinary proceedings and therefore in considering whether particular dismissal is unfair, it is also important that due flexibility should be preserved and that the employer should remain entitled to consider each case on its merits."
The principles were also considered in Securicor Ltd v. Smith [1989] IRLR 356, perhaps remarkable as a case where the Court of Appeal indicated that this Tribunal should have found that the decision of the Industrial Tribunal was perverse. However, it is important in that case to indicate the approach that the Court of Appeal thought was the appropriate approach in situations such as the one which faces us at the moment. The leading judgment in the Court of Appeal was given by

Lord Justice Stocker and at paragraph 34 he says this:

"Put another way, in order to justify the finding which the Employment Appeal Tribunal made, it would be necessary to establish that the appeal panel's decision was so irrational that no employer could reasonably have accepted it."
Pausing there, in the Securicor case there had been internal appeal and two employees had been found guilty of misconduct but the appeal was allowed in one case and not in the other; to return to the learned Lord Justice's judgment:
"The Employment Appeal Tribunal do not appear to have considered that question, although informally they did so in the passage that has been cited. What they did not seem to ask themselves was whether on the facts found by the appeal panel, and not disturbed by the Industrial Tribunal, the finding of the Industrial Tribunal was itself perverse and irrational. That is the question which, in my view, this Court has to answer. When posed in that form, it seems to me that the question is bound to be answered in the affirmative. Since no facts were found by the Industrial Tribunal to indicate that the factual basis of the appeal panel's decision was wrong, it cannot be said that the appeal panel's decision was perverse. The Industrial Tribunal substituted their own view of the facts and the conclusions to be drawn from them. This they were not entitled to do, although I accept that it would have been open to the appeal panel to have reached a different conclusion. They did not do so for rational and clear reasons, and the Employment Appeal Tribunal ought to have rejected the Industrial Tribunal's reasoning as itself irrational."
That approach is emphasised by

Lord Justice Balcome, in paragraph 43 he said:

"Whether I would have reached the same decision as the appeal tribunal on the facts in this case I do not know. In any event, it is irrelevant. But it seems to me that there is here a clear rational basis for distinguishing between the cases of Mr Curry and Mr Smith, and that basis is as was set out by the appeal panel itself."
So we must here see whether this Industrial Tribunal approached the matter correctly and whether they decided that the decision of the internal appeal panel of the Health Authority was a rational decision.The facts of the case are somewhat complicated, we only recite them in so far as we feel it is necessary for understanding of our reasoning, because this Industrial Tribunal reached the conclusion that the Health Authority were entitled to decide, as it did, on the conduct involved.This was Christmas Eve 1989, Mr Paul was on duty in charge of four wards, and in particular, one known as the Dutch Villa. It was a security ward for more difficult patients. Above him in the line management was a Mr Verling, the Senior Charge Nurse, he was in charge of the whole hospital. Mr Paul was in charge of just four wards of the twenty-one. Above Mr Verling was a Mr Clarke, who was a Senior Nurse Manager. Among the Nurses and Nursing Assistants on duty were six who gave evidence and who made statements to the Health Authority. There was a State Enroled Nurse, a Mr Osei Tu Tu, a Mrs Sibakumaran, Mrs Austin, Mrs Balatheban, Mrs Riddle and Mr Bhikea, he was the Charge Nurse. Mr Verling and Mr Keighley, the Associate General Manager, were white, all the others came from different ethnic origins.There had clearly been some problems over drinking in the hospital and on the 13th December 1988 a memorandum was issued indicating that there could be no drinking when on duty in the wards or departments, save with an exception, which becomes clear. It is headed "CONSUMPTION OF ALCOHOL" and reads thus:
"I would like to advise all staff that the consumption of alcohol whilst on duty on hospital wards and departments will not be permitted without the prior agreement of the Clinical Area Manager or Leisure Services Manager (ie parties - Xmas, retirement, etc).
Having received the necessary permission the consumption of alcohol in the form of wine, sherry or beer is acceptable but no spirits are allowed."It seems on an ordinary reading of that memorandum that no alcohol was to be drunk, but on occasions when permission was granted only wine, sherry or beer but never at any time, spirits.The events of the night start with Mr Verling going, first of all, to the Dutch Villa at 10 pm; he was invited by Mr Paul and they were going to have something to eat. Mr Osei Tu Tu and Mrs Sibakumaran were in the ward office Mr Paul offered Mr Verling a drink of whisky which the latter accepted and Mr Paul himself had a drink of whisky. At about 10.30 pm Mr Paul left. Mr Verling and Mr Osei Tu Tu and another nurse ate the meal and Mr Verling had a glass of wine. There is then a break in time. At about 2.45 in the morning Mr Verling received a request from Mrs Austin, a Nurse on Mary Ward, to go to that ward and to deal with Mr Paul. She told Mr Verling that Mr Paul had had too much to drink, he was shouting, making a noise, and likely to wake up the residents. He had been verbally abusive to Mrs Austin and Mrs Balatheban, the other Nurse on the ward. Mr Verling arrived and was told that Mr Paul had gone down to Elizabeth Ward, so he went on to that ward. At first he was not particularly anxious about Mr Paul's appearance or behaviour, but ultimately he decided that he had had far too much drink because Mr Paul became abusive and resented the fact he had been asked to go back to the Mary Ward. He was extremely abusive, according to Mr Verling.As a result of this Mr Verling decided to seek the support of Mr Paul's wife and he brought her back with him to the Mary Ward where Mr Paul was in the office. There was an unpleasant scene, Mrs Paul tried to calm Mr Paul. Mrs Austin and Mrs Balatheban had locked themselves in the ward kitchen. Some of the residents were awake and wandering about; Mr Verling thought Mr Paul was about to be violent. There was shouting and generally it seems to be that a most unsatisfactory, if not entirely chaotic, situation was arising. The result was that Mr Verling felt that he was losing, or had lost control, and he would have to do something about it. He eventually telephoned the trade union representative, Mr Coomber, and whilst this was happening there was further activity, to use a neutral expression. Mr Verling telephoned Mr Clarke at his home and told him that he had suspended Mr Paul. Then there was a further incident. In the front hall of the hospital Mr Coomber met Mr Paul, both raising voices, Mr Coomber tried to persuade Mr Paul to go home, Mr Paul refusing, and eventually the Police were called. Altogether this was an ugly scene that went on from 2.45 until about 5 or 5.30 and eventually Mr Verling left for home at 7.30 am.That was the situation and as a result of that the internal procedures took place. There was a disciplinary hearing on the 1st and 6th February 1990 and an appeal hearing on the 12th June and the 7th and 27th July 1990. The appeal hearing was a total re-hearing, it was chaired by an outsider Mrs Banks and witnesses were cross-examined by Mr Paul's representative.As the Tribunal found that the Health Authority were entitled to reach the conclusion that it did, it is convenient to follow the allegations, and what had occurred in rather more detail, from the documentation which was sent. The first relevant letter is that of the 26th January 1990 which was written by Mr Keighley, the Associate General Manager, to Mr Paul with a copy of Mr Coomber and to others. It was inviting Mr Paul to attend the disciplinary hearing and then continues:
"This interview has been arranged as a result of the incidents leading to your suspension from duty on 25 December 1989 for the following reasons: (i)verbal aggressive behaviour on duty
(ii)refusing to carry out a nursing instruction for Mr Verling.(iii)later refusing to leave the premises of the Royal Earlswood hospital after being suspended.(iv)you were under the influence of alcohol and unfit to carry out your duties.

(v)you placed the patients under your care at risk."

Then it goes on to deal with the procedure and the right to be accompanied. It is perhaps of interest to note that the question of alcohol was number (iv) on that list.The disciplinary hearing took place and after that hearing Mr Keighley wrote on 12th February in the following terms. He dealt with the hearing, with the witnesses and we have seen a substantial number of statements which were written out within a day or so of the Christmas Eve, then he goes on he says:
"The reason for my decision is that on the night of 24th December, 1989 and 25th December 1989:-
1.You admitted to consuming two drinks of whiskey contrary to hospital rules and the evidence given indicates the amount consumed to be far greater.2.Your attempts to embrace three female members of staff whilst in a dishevelled state and being verbally aggressive to such an extent that they felt the need to call for help and then lock themselves in an office and kitchen respectively, was unprofessional and totally unacceptable for someone in your position.3.From the evidence I have heard you were incapable of carrying out your duties in a professional and responsible manner and in so doing verbally abused your senior officer on duty who was trying to help you and may have put residents at risk.In reaching my decision and when considering the evidence presented I noted the following:"and then (a) is the issue of hypoglycaemia - I will not refer to that - (b)Your suggestion that Mr Osei-Tu Tu, Mrs Sibakumaran, Mrs Austin, Mrs Balatheban and Mrs Riddle were telling lies and conspiring against you. Although they all suggested they were friendly with you and regretted having to make complaints. In addition you were unable to give any explanation as to why they would conspire against you, stating in fact that they didn't really like each other. (c)The number of complaints made and the degree of anxiety and concern that you created resulted in female staff locking themselves away for safety and a Police Officer being called to assist your removal from the premises, bringing the name of the hospital into disrepute. (d)Your refusal to leave the premises and alleviate the disturbance which affected residents in their ward areas resulting in the Senior Nurse on duty needing to call additional staff from other care areas to deal with the problems."There was an appeal hearing and before the appeal hearing there was a Notice of Appeal. That is of importance, because it makes it clear that as part of the appeal process Mr Paul was suggesting, through his trade union representative, that he had been treated differently from other employers who had been found to be drunk on duty and secondly, that he was raising the issue of racial discrimination.It is clear, therefore, that before the full re-hearing of the internal appeal the issues of comparability and the issue of race discrimination were live issues for that panel to take into account. This they did and with that outline background it is necessary to look to see those instances with which the comparison was drawn. They are dealt with in paragraph 14 and 15 and then ultimately in paragraph 16 of the decision.The first incident concerned a complaint made by two student nurses. That complaint was called "the Student Nurses incident". They complained that a Charge Nurse had been drinking whisky from 1 pm to 5.30 pm, it was in fact as a result of this that the memorandum of December 1988 was issued. On this occasion there had been a suspension and there had been an interview. The Charge Nurse, who was white, was responsible at that time for administering drugs. The situation was such, and the statements sufficiently conflicting, that management, Mr Clarke, Mr Keighley and Mr Choy did not feel that the charge was proved. They therefore took no further steps, but the matter had been investigated. The Tribunal comment on it in this way at the end of paragraph 14:
"It is true and we bear in mind that that incident occurred before the memorandum forbidding the drinking of whisky was sent round. Nevertheless, we find that it was an incident that should have been thoroughly investigated and some action should have been taken against the charge nurse. None was."
Pausing there, that seems to be a finding which flies in the face of the decision of management that the case was not proved and if the case was not proved then there was nothing that they could do and, indeed, they did thoroughly investigate it. No action could have been taken against the Charge Nurse.The second incident concerned a Mrs Rice. Mrs Rice was what is called a Nursing Assistant, so she is in fact the bottom rung of the nursing hierarchy. She, obviously, had had some domestic problems. She was sent home on the 5th October 1989 because she was unfit to carry out her duties, due to consumption of alcohol, which had not been consumed on the premises. She was counselled on that occasion, we have seen the note, and given some advice. On the 17th, 18th and 19th November, she was found to be rather sleepy, which she explained by indicating she was not yet fully used to being on night duty. She was warned on that occasion, although there was no finding that this was due to alcohol.Then finally, she was found to have been drinking vodka on duty, and was dismissed. She was white. So that, she was in fact dismissed when she was found drinking vodka on the premises.The Tribunal make a finding at the end of paragraph 15:
"The amount of vodka she had consumed although not measured we find was likely to be far in excess of any whisky that Mr Paul had consumed."
It is submitted by Mr Clarke that there is no evidence to support that, and indeed, we have been unable to find any evidence to support that finding.Then, finally, there was the question of Mr Verling himself. Mr Verling was the Line Manager of Mr Paul, he clearly was in the Mary Ward at 10.30, was offered whisky and took it. He should have stamped on that straight away and that clearly was, a grave dereliction of duty. He also had a glass of wine. His case was investigated and he had the allegations against him, as indicated in a letter of the 19th March 1990:
"(i)consumed whisky while on duty;

(ii)assaulted another member of staff;"

The latter allegation arose because Mr Verling was trying to cope with a situation that had got quite out of hand during the early hours of the morning; he tried to get Mr Paul out of the premises and he had been having a very difficult time indeed.The decision of Mr Keighley, in connection with Mr Verling, is phrased thus in the letter of 19th March
"In considering all the evidence available to me and, indeed, your admission to having one drink of whisky and grabbing Mr Paul firstly by his wrists and secondly by his coat lapels I did accept that the drink of whisky had been unexpected and not planned or intentional. I also accept that your reactions when holding Mr Paul's wrists and lapels were of restraint and not aggression.
However, I conclude that you have made a grave error judgment and not conducted yourself in the manner expected of someone with your experience and in such a responsible position. As a result I issued you with a reprimand and a formal warning which can stay on your personal file indefinitely. However, I will review the situation in 12 months time."and he is advised of his right of appeal.Those being the incidents for comparison the Tribunal deal with it in paragraph 16 and to this we must refer in some detail. They point out that the onus in on the Health Authority to satisfy them that the reason falls within Section 57(2). They then look at the reason, the reason is stated thus:
"The reason in this case for Mr Paul's dismissal was his conduct in drinking whisky which the respondents found to be in excess of two glasses and his aggressive behaviour."
Pausing there, that seems to us to be really, rather a shorthand description of a long period of behaviour. The statements and the evidence indicate that whereas the whisky drunk was in excess of two glasses, the reasonable conclusion, for management on the statements which were before them, was that the intake of whisky was considerably in excess of two glasses, and indeed, from the behaviour throughout, they can quite reasonably have concluded that he was, the word that is used "drunk" and that varies in degree, but nevertheless it was a very considerable intake of whisky. Secondly, aggressive behaviour. There is no mention there of the behaviour towards these nurses. Thirdly, there is no mention of the persistent refusal to leave and to go home and the necessity of getting Mr Coomber, Mrs Paul and the Police. Indeed the picture represented by that one sentence seems to us to be rather less than that which was indicated as accepted by the Health Authority.Then the Tribunal proceed to consider Section 57(3):
"we are entitled to look at any disparity there may be in the disciplinary action taken against Mr Paul and that taken against other employees."
Pausing there, it seems to us that they are not entitled to look at any disparity, they are entitled to look at any truly comparable situations and they must decide that they are comparable before they can draw any inference of unfairness from that. They continue:

"In the student nurse incident no disciplinary action was taken"

that is all they say about the student nurse incident. It seems to us that it is not comparable for the reasons which we have given already.Then they turn to Mrs Rice's case and they say:
"she was first of all counselled for an offence which we find is quite as serious as drinking on the premises on Christmas Eve, then she was warned, and it was not until the third occasion that she was dismissed."
In that case it was on the third occasion, when she drank vodka on the premises, that she was dismissed, and as we have already indicated as to the volume of vodka, there was no evidence whatsoever that we have been able to discover on the amount that was consumed. It seems to us therefore that again, this is not a strictly comparable situation, moreover she was drinking at home; there is that distinction; she can be found before she is on the wards.Then lastly, they look at the question of Mr Verling and here the Tribunal say this:
"Mr Paul had been employed by the respondents for 18 years, his superior instead of stopping him drinking whisky joined him, Mr Verling was not dismissed but was given a final warning. We find that Mr Verling albeit he was held only to have drunk one glass of whisky and he did not behave in such an aggressive manner as Mr Paul, he was found to have assaulted the latter. As he was Mr Paul's Line Manager his offenses should have been treated just as seriously if not more seriously than Mr Paul's. We find there has been a disparity of treatment and that in this case it is not just and equitable to treat Mr Paul's conduct as a sufficient reason for dismissing him. We therefore find the dismissal to be unfair."
Pausing there, the assault was considered by management not to be an assault in the ordinary use of that word. It was also found that there were mitigating circumstances in that he was having to deal with Mr Paul in the condition in which he found him and in the situation in which he was faced, and indeed, there is the rational distinction which is being taken between Mr Verling's case and Mr Paul's case despite the fact that Mr Verling's conduct is clearly to be condemned. Nevertheless, there was a reasoned and a rational distinction to be taken between the two.It is right that this decision was reached in May 1991 and that two of the decisions to which we have been referred were not available to the Tribunal at the time. However, it seems to us that the criticisms which are made by Mr Clarke are valid criticisms; he submits that there is a misdirection in that the other cases are not comparable, and indeed we have so found. He submits that there was a disregard of the principle of flexibility, that is not mentioned, and indeed, the importance is to see whether the decision of the internal appeal was an irrational decision. Here, he submits, the Tribunal has taken its own view of what the decision should have been and that coupled with the findings of fact, for which he submits there was no evidence, amounts to a misdirection in law and that the reasoning is, therefore, flawed.We have reached the conclusion, greatly assisted by the experience of those sitting with me, that these cases are not comparable and that there were grounds upon which the Health Authority could rationally take the view, as they did, that there was a distinction because their minds were drawn to those distinctions at the time of the appeal. So they thought about it and considered it and reached a conclusion about that matter.Lastly, therefore, one turns to the question of race discrimination. The reasoning is in paragraph 14 and the reasoning is thus put shortly: that because they were comparable instances; because in those comparable instances Mr Paul was treated less favourably; because they were comparable, and there was no other reason for treating him less favourably, therefore the proper inference was of direct discrimination on the basis of James v. Eastleigh Borough Council and that he had succeeded, the burden being on the Applicant, in establishing racial discrimination.In view of the basis of that reasoning, having now fallen away in the light of the decision, we have reached the conclusion here, on both issues is that this decision was flawed on both scores and the appeal must be allowed on both issues.We order that the dismissal was not unfair and the application under the Race Relations Act 1976 is dismissed.