Hughes v Clwyd Health Authority & Anor [1993] UKEAT 80_92_0502

EAT
Hughes v Clwyd Health Authority & Anor
[1993] UKEAT 80_92_0502 · 1993-02-05
MR JUSTICE KNOX: The appeal before us by way of preliminary hearing is brought by Reginald Walton Hughes from a majority decision of the Industrial Tribunal sitting at Shrewsbury on four days, the 15th-18th October 1991, as a result of which they dismissed two applications for unfair dismissal, one by Mr Hughes and the other by Mr Mayers. The only Appellant before us is Mr Hughes.Both Mr Hughes and Mr Mayers were employed by the Respondent, the Clwyd Health Authority in the Wrexham EMI Unit, Mr Hughes was a Grade A Nursing Assistant, Mr Mayers a Grade D Nurse. Mr Hughes had been there since the 2nd November 1981 without complaint about his behaviour or his work. On the 18th September 1990, though, a young Nursing Assistant, then 18 years of age, made allegations of the utmost seriousness regarding eight incidents that she said she had witnessed between a period that was identified as around the period of the 23rd March 1990 and, at the other end, around the 3rd July 1990, the other incidents being spread out between March and July. It is not necessary to go into the details of those separate incidents, they were of a repulsive nature, if indeed the allegations were correct, and there has never been an issue about that. So the problem for the Health Authority was that the complaint which they got from this young nurse, correct or not, was not a matter on which there could be any half-way house.There were investigations made, as regards these claimed incidents, in which it should be mentioned Mr Hughes was said to be involved in all of them but Mr Mayers only in one, and there was a degree of interviewing of the other staff in this relatively small unit. It appears that there were 16 members of staff and that 10 of them were interviewed. Mr Gorton, who represented Mr Hughes both before the Industrial Tribunal and here, submitted to the Industrial Tribunal that the investigative process was flawed because the management did not interview all the 16 employees in the Unit and also did not interview two cleaners and two student nurses who were on or about the premises but not strictly part of the nursing staff. The Health Authority, having conducted those investigations, did dismiss. There was an appeal which was unsuccessful and we have not heard any submissions regarding the appellate process.The Industrial Tribunal was divided. The minority took the view, and gave chapter and verse for it, that the investigations were inadequate and therefore flawed in that, although some of the incidents could not be corroborated there were at least two that could have been corroborated and should have been subjected to a thorough investigation, the implication being that the investigation was not thorough. There are grounds given in the minority decision for that view. In particular, there was an allegation that there was another nurse who went into the room at the same time and that other nurse was not, in fact, identified. The minority member took the view that shift rosters were available and that it would have been a simple exercise to ascertain who had been on duty with the Applicant, Mr Hughes and that that was a feature of inadequate investigation. The point therefore was taken, and judging by Mr Gorton's address to us this morning, no doubt vigorously taken, before the Industrial Tribunal. What the majority did was to say this:
"the majority of the tribunal take the view that the respondent's management had carried out a reasonable investigation, in the circumstances, about the allegations. They [that means the management rather than the Industrial Tribunal majority] believed Miss Sarah Evans as a witness who was telling the truth. They had investigated Miss Evans' references and found her to be a reliable and conscientious nurse. They, in the view of the majority, conducted a very fair investigation and came to the conclusion that no matter what the effect would be, that believing Miss Evans, as they did, and in her allegations, they had no reasonable alternative but to dismiss both applicants."
The Notice of Appeal, Mr Gorton frankly, and clearly rightly, accepted, advanced no point of law upon which this Tribunal could set aside the Industrial Tribunal's decision. It is not necessary to read those grounds because they were accepted, very properly, as being not directed to any discernible point of law. What Mr Gorton did submit to us was that the majority decision was a perverse one and that it is not possible to answer in the affirmative a question such as, can an employer reasonably decline to take up potentially highly material evidence which could throw light on hotly disputed facts. It is common ground that there was no positive corroboration of the complaints made by the young nurse. It is perhaps not entirely surprising that no one came forward to say that they were aware of these matters going on but had kept silent, but however that may be, the fact of the matter is that there was no corroboration and therefore it became a matter of judgment for the employer whether or not to act on the complaint made by the young nurse.We have given careful consideration to Mr Gorton's eloquent plea that the minority view is so clearly right that this is arguably a case where this Tribunal should hold that there was perversity in the majority view. He wisely eschewed the proposition that as a matter of law there had to be corroboration and relied entirely on the evident lack of sufficiently full investigation. In our view that must be a question of judgment for the Industrial Tribunal. It must in our view be a question of which of two views which could honestly and reasonably be held was correct and in those circumstances we have no jurisdiction to interfere with the majority's view on the matter. We do not regard this as an arguable case of perversity and we therefore dismiss the appeal at this stage.The only thing we would say in addition is that it must not be thought by anyone who sees or hears this decision that either this Tribunal or the Industrial Tribunal is trying the question whether or not Mr Hughes committed the offences alleged. That is not either what this Tribunal or the Industrial Tribunal was concerned to do. What both Tribunals were concerned to do was to assess the behaviour of the Health Authority in doing what they did and to see whether what they did was reasonable and that is what both Tribunals have addressed.