Hall v Parkside Health Authority [1994] UKEAT 837_93_2012

EAT
Hall v Parkside Health Authority
[1994] UKEAT 837_93_2012 · 1994-12-20
MR JUSTICE HOLLAND : This is an Appeal of an Industrial Tribunal sitting at London South. The hearing before that Tribunal lasted some five days, culminating on 14 July 1993. It had before it two applications by Mrs Hall, the first alleged unfair dismissal and the second alleged racial discrimination. In the event that tribunal found against her on both grounds. There is no Appeal with respect to the alleged racial discrimination; there is an Appeal with respect to the alleged unfair dismissal.Turning then immediately to the facts, the Appellant is an enrolled nurse who entered the employment of the Respondents on 17 October 1976 and who was summarily dismissed by them on 11 June 1992. Turning to the circumstances immediately material to this matter, we gather that by the beginning of 1992, there was a fresh approach introduced into the hospital in which the Appellant was working, that is an approach that was "patient centred" as distinct from being "task centred". With that as background there were then allegedly certain incidents involving the Appellant, which incidents related to the conduct of her duties whilst on night duty in a ward at the St Charles Hospital. Those incidents were respectively on 21 April and on the night of the 6/7 of May. Following the latter incident and on 10 May, the Appellant was suspended. There then followed a sustained disciplinary procedure. Initially such involved a disciplinary hearing chaired by Miss McKay, the Assistant Chief Nurse; that hearing took place on the 8 and 11 June and resulted in the dismissal that is said to be unfair. There was an appeal procedure against that resolution and the Appellant took advantage of that with a result that there was an appeal hearing at unit level, chaired by Miss McCann as Chief Nurse. That hearing took place on the 11 June 1992 and the result was that the appeal was dismissed. There was a second opportunity to appeal and that was taken; it resulted in an appeal hearing at district level, chaired by Mrs J Hughes. That hearing was conducted over two days the 17 and 24 November 1992. The result of that hearing was a further dismissal of the Appellant's appeal.In the meantime, the Appellant had initiated her applications to the Industrial Tribunal. Focusing on the way in which that Tribunal dealt with the issue of unfair dismissal, it started by directing itself as to the law that it should apply in the following paragraphs:
"...11. It is of course for the Respondent to prove the reason for dismissal. In this case (absent allegations of racial discrimination) it is not seriously disputed that the reason was a genuine belief on the Respondent's part that the Applicant had been guilty of a number of improper acts and omissions in the course of her duty as a nurse in charge of the ward. These acts and omissions constitute a reason relating to conduct within the meaning of section 57(2) (b) of the Employment Protection (Consolidation) Act 1978.
12. The question before the Tribunal, as in most cases of this sort, is whether the dismissal was fair within the meaning of section 57(3) of the Act. That is, did the Respondent act reasonably or unreasonably in treating the reason for the dismissal as a sufficient reason for dismissing the Applicant? That question must be decided in accordance with equity and the substantial merits of the case and regard must be paid to the size and administrative resources of the Respondent's undertaking. In order to answer this question we have considered whether there were reasonable grounds for the Respondent's belief in the Applicant's guilt; whether the decision to dismiss - and the decisions to confirm at subsequent appeals - followed an investigation which was reasonable in all the circumstances; whether the procedure adopted was fair; and finally, whether the sanction of dismissal was within the band of reasonable responses to the Applicant's offences..."We interpose there to comment that the directions as to law therein set out are full and impeccable and we note with no surprise that no complaint at all has been made about those passages in the reasons given by the Tribunal. How then did they deal with the matter? In paragraph 13, they found there were clearly reasonable grounds for the Respondents' belief in the Applicant's guilt on the various charges. Pointing out that the Respondents' were confronted with a mass of evidence from differing sources, in paragraph 14 they pose to themselves the rhetorical question "was the investigation reasonable in all the circumstances?" and answered that question in the affirmative. In paragraph 15, they paid particular attention to the propriety of the disciplinary hearings, being in the event unable to fault such. It was against that background that the Tribunal came to the critical part of its findings in paragraph 16:
"...16. It was the question of severity of punishment which from the beginning aroused our principal concern. Here again Mrs Hughes was equally concerned and she gave her reasons for confirming the summary dismissal in some detail. The Applicant was a nurse of very long service indeed and had never been in any serious trouble before. It must be a matter of concern when any employee is summarily dismissed in those circumstances, basically for the acts and omissions of a single night. Taken individually, it might have been said to be unreasonable to dismiss the Applicant for any one of the proved offences. However, serious misconduct is a matter of degree and it may well be reasonable to dismiss for a number of offences committed at or around the same time. We think that this is the case here and, in any event, it would not be for us to substitute our own view, if different, for that of the Respondent. We find that it was within the range of reasonable responses open to the Respondent to dismiss in the present case..."
How then, does there rise in this matter a "question of law" , such as would give this Tribunal jurisdiction where with to uphold this Appeal, see Section 136 Employment Protection (Consolidation) Act [1978] ? On the Appellant's behalf, Mr Ryder made determined attempts, based upon singularly careful preparation, to raise one such for our consideration. We pay immediate tribute to his tenacity in this task and to his ingenuity. In the event, he raised various points before us, but he will forgive us if only one has received sustained and careful attention from us as being the high point of his submissions and that relates to paragraph 16. In essence, Mr Ryder poses this rhetorical question. Given his client's long-standing service without recorded past blemish, was the decision of the Industrial Tribunal as set out in paragraph perverse inasmuch as it found that dismissal was within the range of reasonable responses open to the Respondent? In approaching this particular issue, we have been assisted by Mr Sutton for the Respondents, who rightly drew our attention to the significance of "perverse" in this context, whether that notion is assessed subjectively or objectively. He is plainly right to submit that it is an extreme finding with respect to any industrial tribunal that its conclusion is perverse not least when that conclusion follows upon entirely correct directions as to the law to be applied, even more so when that conclusion follows upon a prolonged hearing over some five days. That said, there is sufficient in Mr Ryder's rhetorical question to cause some concern and to cause us to examine carefully the background to this matter and the way in which events lead up to the dismissal and by the procedural route to the decision of the Industrial Tribunal.For our part, we have been concerned in the way in which the original decision to dismiss was made and in the way in which that decision was successively reviewed thereafter, so as to satisfy ourselves that paragraph 16 cannot be condemned as being perverse. We entirely accept the point that we have here an Appellant with a substantial work record without serious blemish and it is a clear matter of past and continuing concern that she should be dismissed for gross misconduct. Having thus set out our concern and our approach to Mr Ryder's point, we start with the assessment made by Miss McKay at the initial hearing which assessment has its conclusion at page 93 in the bundle. We note first of all that that conclusion followed upon a singularly careful assessment of the evidence and of the allegations; we note further that this is an assessment made by someone in the same profession, that is a professional peer of the Appellant. Miss McKay made her decision to dismiss in these terms:
"...Taking into account all that I have heard and I am satisfied that gross professional misconduct did take place and in making my decision I have taken into consideration that you have been nursing at St Charles Hospital since October 1976. However, I have no alternative but to summarily dismiss you from your post with effect from 11 June 1992...
...This investigation has highlighted aspects of your practice which are unacceptable and which cause me very grave concern. In light of my responsibilities to the UKCC I will be forwarding to them details of this investigation should they wish to hold their own inquiry..."There then is an initial judgment upon the conduct under examination and it is a judgment passed by somebody in the nursing profession. The same comment applies to the judgment of Miss McCann who conducted the hearing of the Appeal at unit level. Once again as we see on or between pages 94 and 96 of the bundle, there is a careful, well-drafted assessment of her views, having had a further hearing on this matter. She put the matter thus:
"...In summary, I concluded that you had shown a neglect of your professional responsibilities in a way that, in terms of the both the UKCC Code of Conduct and St Mary's own Disciplinary Procedure, amounted to gross professional misconduct. I took account of your statements, both before this hearing and at this appeal hearing, which demonstrated the lack of any basis for development. therefore I confirmed the decision of the initial hearing and dismissed your appeal..."
With those two assessments already made, the matter then came before the District Authority Panel, consisting of Mrs Hughes as Chairman, Mr G Hemsley, Director of Central Services and Dr. L Lessof, Director of Public Health Medicine. There were before that Panel the Appellant herself with her representative, there was Miss McCann as Respondent Officer, there was Dr. Dobinson as the Respondents Officer's Adviser, there were witnesses for both side and there were a Nurse Adviser, presumably an adviser to the Panel. Thus, it is plain that that hearing was one attended by every possible witness and expert.In the event, the Panel approached the matter in this way:..."The Panel considered:i) Whether the misconduct was substantiated;ii) Whether the procedures had been correctly and fairly implemented and;iii) Whether the disciplinary action was reasonable.The Panel found no difficulty, on the basis of the evidence produced at the previous hearing and at the District Appeal, in concluding unanimously that misconduct was substantiated. The evidence on this point was corroborated at several levels.The central point to which the Panel addressed itself was whether this misconduct was gross and whether summary dismissal on 11th June (the date of dismissal) was the only practical remedy and/or the appropriate remedy in the light of the events of the night of the 6th/7th May. In coming to its decision, the Panel deliberately decided to concentrate on the events of that night through management had alleged other instances of misconduct and incompetence.It was suggested on behalf of the Aggrieved Officer that the appropriate remedy might have been further training...Nurse Hall's previous experience had been predominantly in the care of the elderly). It might have been suggested (though in fact is was not) on behalf of the Aggrieved Officer that an additional remedy might appropriately have been the removal of Nurse Hall from her position as Nurse in Charge of the ward at night and her transfer, at a lower grade, to duties on the ward during the day, where she might have become more familiar with the particular care specified by the professionals for patients on Christopher Ward since January.But when the panel considered whether these or similar actions would have been appropriate alternative remedies, they had to ask themselves whether there would have been any reasonable chance of success with them. Also, whether a reasonable employer would have taken the view that there would have been a reasonable chance of success with them. And here they came up against two fundamental obstacles:1. What the events of the night of the 6th/7th May 1992 demonstrated about Nurse Hall's fundamental attitudes to patients in her care.2. What the events of the morning of the 7th May demonstrated about Nurse Hall's fundamental attitude to the management and in particular to criticism, advice or help which might lead to improved performance.The Panel felt that these obstacles were so well established in the case of Frank Bartholomew that it was unnecessary, in reaching its decision, to consider in detail the other allegations against Nurse Hall..."Having therefore set out with considerable clarity its approach to this problem, that Panel then dealt with the first issue that it had posed for itself, that is the issue as to the Appellant's fundamental attitude to patients in her care. It assessed that attitude by reference to findings that it had made as to the events of the night of the 6th/7th May and in particular as to what the state of affairs was on that morning following a night in the care of the Appellant. In the event, it formed the view that there was a serious problem about her fundamental attitudes to patients, demonstrated by those events. It then went on to consider the second issue that it had posed for itself and as to that, it focused upon the attitude of the Appellant when she was questioned on the morning of the 7th about the state of affairs that had been discovered by Sister Porter; it chose to accept Sister Porter's account of those events having cautioned itself that Sister Porter might have an ulterior motive to misrepresent the facts and concluded that from that attitude there was a concern as to the Appellant's fundamental attitude to criticism, advice or help. It added these words:
"...In the course of the second day of the District Appeal, Nurse Hall was given prolonged opportunity to express herself. Indeed the Panel noted that she had to be constrained more often by her own representative than by the Panel itself or my Management in cross-questioning. Yet the Panel did not hear Nurse Hall express any compassion for the patients who had been in her care or any humility about the possible limitations of her knowledge and understanding of the care process she had been asked to deliver.
In the final result then, the Panel having answered the two question that it posed for itself in terms unfavourable to the Appellant, it felt driven to uphold the decision that had previously been arrived at to dismiss her.Turning then to the decision under Appeal, that is, the decision of the Industrial Tribunal, we find it quite impossible to regard that decision as being perverse. That decision was rightly based upon an anxious and careful examination of what had previously transpired in the course of the disciplinary proceedings and understandably, it focused in particular upon the way in which matters had developed in the course of the final appeal at District level. It had the advantage, in our judgment, in looking at an assessment by that District Panel which assessment inevitably commanded admiration for the way in which it posited the appropriate approach to this question of dismissal and for the way in which it sought to apply a mind to issues which bore precisely upon the question as to whether the response of the employers should be dismissal or whether the response could be some other lesser measure. The fundamental attitude of the Appellant was peculiarly pertinent to that particular question. If the fundamental attitude was different from those found, then some other lesser step would have been within the range of response, but, given the fundamental attitude as they found it to be, then the decision that that tribunal arrived at had to follow.Given that approach and given the care that was plainly taken in that approach, then the reaction of the Industrial Tribunal set out in paragraph 16, can readily be sustained. Indeed, one may comment that so far from revealing perversity, it would have been open to that criticism if it had rejected this sustained accumulation of considered professional opinion, all of which was adverse to the Appellant. It plainly had the scope to do so, but understandably having regard to the way in which matters had developed in and between June and November of 1992, it surprises us not one jot that it felt that the decision to dismiss was in all the circumstances of this case within the range of reasonable responses open to the Respondent. Thus it is, having the indicated the care with which we have looked at the way in which matters proceeded along the disciplinary course and at the Industrial Tribunal, we find ourselves constrained to dismiss this Appeal