South Bedfordshire Community Health Care Trust v Sagnia [1994] UKEAT 904_93_1312

EAT
South Bedfordshire Community Health Care Trust v Sagnia
[1994] UKEAT 904_93_1312 · 1994-12-13

JUDGE BYRT QC :

This is an appeal from a decision made by the Industrial Tribunal sitting at Bury St Edmunds on 9 September 1993. Their decision was a majority decision to the effect that the employee was unfairly dismissed. This was a unanimous decision to the effect that the employee had contributed to his own dismissal to the extent of 50%. The employee, Mr Sagnia, was born and educated in Gambia. Now aged about 50 years old, he has an excellent command of English and is well qualified as a staff nurse. He has been so for many years, and in particular was qualified as a mental nurse. He was employed by the Appellants from September 1990 and remained so until his summary dismissal on 29 January 1993. He was employed at the Fairfield Hospital, a psycho-geriatric hospital employing something like 500 staff. He was in charge of ward C4, as an acting charge nurse. He wasaccountable in some way which is not explained in the Tribunal's reasons to a Mrs Hayes who was a ward manager of some standing. She was a sister in charge of a ward of some 16 staff.Mr Sagnia received an unusually large number of telephone calls during working hours including those from a woman who was in a precarious state of mental health and who had come to rely upon him. In May 1992 he was talked to about this. It is not stated in the Tribunal reasons who by but he was told that he was receiving too many calls. This was not of the status of a formal warning.On 29 December 1992 at about 5 o'clock a telephone call came through for Mr Sagnia. He was not immediately available and Mrs Hayes answered. The caller was a Miss Wick and she was told that Mr Sagnia was not available as he was looking after a patient. Eventually Mr Sagnia did talk on the telephone to Miss Wick and the conversation took place in Mrs Hayes' office. Mrs Hayes came in whilst the telephone conversation was in progress and she heard Mr Sagnia ask Miss Wick whether Mrs Hayes had been rude to her and in the same breath mentioning the possibility that Miss Wick might report her to Mr Deazley who was the elderly services manager.When Mrs Hayes heard that she was not unnaturally somewhat upset and told Mr Sagnia that she had not been rude to Miss Wick. What then happened is in issue between the parties. The only two who were present were Mrs Hayes and Mr Sagnia. Mrs Hayes' account is set out in paragraph 10 of the Tribunal's reasons and reads as follows. Mrs Hayes told the Tribunal:
"I closed the door. He had said report me to Mr Deazley." I wanted to say that I was not rude. The applicant said, "Who do you think you are, woman?" and grabbed me by the arm and pulled me across the chair. He pulled me and threw me across the chair. If the chair was not there, my head would have hit the wall. He had hold of me by my right forearm - the inner aspect just above my elbow. It was a hold with pressure, not a light one. I was about two feet from the door... After pulling me across, the applicant said "You can report me to the Nursing Officer on call. I'm not feeling well. I am not well". I [Mrs Hayes] was shaken. After a few minutes I telephoned Mr Leeming - I was shaking, feeling shocked, in a way I was frightened."
Mr Sagnia gave an account which is recorded at paragraph 12 and he said this:
"Instead of taking it up later, Mrs Hayes decided to stay for a confrontation. She closed the door, kicking the wedge, and stood with her back to the door. I realised that she was about to start another verbal assault about my private calls and said, "I think you should get the Duty Officer so that we can discuss the matter". I went towards the door. I grabbed the door handle. She moved slightly forward to enable me to squeeze out of the Ward Office. She moved herself. I did not touch her in any way."
and the Chairman of the Tribunal recorded:
"Later, questioned closely by me, and given many opportunities to say, if he wished to, that there might have been some accidental contact of some sort, the applicant was adamant that there was no contact of any sort, deliberate or accidental, between any part of his body or clothing and the body of clothing of Mrs Hayes."
During the course of the evidence in the disciplinary hearings Mr Sagnia ran the line that in the incident as related by Mrs Hayes, had never happened and that her account was a total fabrication which she had made up in order to get rid of him from her ward.Mr Leeming, the duty officer, went to the ward following this dispute and spoke to both. His evidence to the disciplinary hearing was that he saw red indentation marks on the inner side of Mrs Hayes's left elbow. He was saying that she looked a little dishevelled and shocked, there were gaps in her speech. He left and then telephoned a Mr Bisset, the unit nursing officer, and he rang a senior nursing officer, a Mr Turner. Mr Bisset thought that Mr Sagnia should be suspended. Mr Turner thought not and the result was that Mr Sagnia was not suspended. He was encouraged to go home and to take advantage of certain days holiday he was entitled to and he went home.Mr Leeming then spoke to a number of other people, in particular Nurse Iley, who was the other nurse on duty. Miss Iley said that she had seen nothing but had heard the ward office door bang as Mr Sagnia came out. She also stated that Mrs Hayes looked flustered. An investigation was carried out with Mr Bisset in charge. He took statements from Mr Sagnia, Mrs Hayes, Nurse Iley and Mr Leeming. In passing it is worth noting that on 31 December Mrs Hayes saw the occupational health nurse and her report recorded "Bruising noted on top of inner right arm. Some pain when moving right elbow."Mr Bisset having concluded his investigation reported his findings to the disciplinary officer, Mr Deazley and gave as his conclusions that an assault had taken place; one of the parties in his view was not telling the truth and he was satisfied that person was Mr Sagnia.A disciplinary hearing took place on 29 January 1993. After the hearing Mr Deazley retired together with a Mrs Baigent who was the employee's relation adviser in order to consider his decision. He deliberated over the course of something like 1 hour and eventually returned and gave his decision to the effect that Mr Sagnia should be summarily dismissed on the grounds of misconduct. He also informed Mr Sagnia of his right to appeal. Mr Sagnia exercised that right and an appeal hearing took place on 2 April 1993. At that hearing Mr Sagnia's appeal was dismissed.The Tribunal, and here I emphasise that it was the majority of the Tribunal, found that Mr Bisset, Mr Deazley had acted honestly and in good faith. They found that the investigation and the disciplinary hearing which followed were conducted in a way which no reasonable employer would have conducted it. They found that Mr Sagnia had not been suspended pending enquiries but sent home on leave and that this was indicative of the management's initial view that the case could be settled without a disciplinary hearing.Mrs Hayes it was noted in the reasons was composed enough to finish a double shift, that is she went on working until 9pm. They found that she, Mrs Hayes, had exaggerated what had happened and that a reasonable investigation should have exposed this. They also criticised the investigation on the basis that no effort had been made to discover whether the ward door could be closed violently. Apparently it was on some pneumatic overhead hinge, making the noise that nurse Iley talked about and referred to in her statement less likely.At the end they made a finding that in their view Mrs Hayes had exaggerated her case; that in fact she had changed her account from a push she would have received into a grab that she alleged in order to get Mr Sagnia removed from the ward of which she was in charge.There were other findings too. They criticised the fact that Mr Bisset and Mr Deazley had paid insufficient attention to various variations in Mrs Hayes' account on how the incident occurred. They also criticised them again for the fact that they failed to take account of an apparent confusion in Mrs Hayes' evidence to detect whether the injury was to the right or to the left arm. They criticised the fact that Mr Bisset the investigating officer reached and expressed a view of his own which had been communicated to Mr Deazley.Similarly they criticised Mrs Baigent for having retired with Mr Deazley at a time when he came to the stage of making his decision. They furthermore criticised Mr Deazley for deliberating on this case for only 1 hour involving as it did the future of an employee who had a long and successful career as a nurse.There was a minority finding namely that of the Chairman to the effect that the employers had acted honestly throughout. In his view he expressed the view that the investigation had been thorough and certainly reasonable and he found that Mr Deazley had considered Mr Sagnia's case carefully and had been uninfluenced by Mr Bisset or by Mrs Baigent. The Chairman concluded that the decision the employers had made and the sanctions they had imposed were reasonable. That was the minority view. Unanimously they came to the conclusion that Mr Sagnia had contributed to the extent of 50% to his own dismissal by his own conduct.Mr Rose has made submissions on behalf of the Appellants in this case. He stressed that the majority had directed itself correctly on the basis of British Leyland (UK) Ltd v Swift [1981] IRLR 91 and British Home Stores Ltd v Burchell [1980] ICR 303 but he then submits that the Tribunal went off the tracks because they did not ask the Burchell questions. The Tribunal had found that Mr Sagnia was dismissed on the ground of gross misconduct but they made no finding as to what the misconduct was. He then says that because of that they were unable therefore to answer the first question in Burchell - "Did the employers entertain a genuine belief that Mr Sagnia was guilty of that misconduct". They were also therefore unable to answer the second question whether the employer had reasonable grounds to sustain that belief. There was no finding what the misconduct was and therefore the Tribunal was unable to state that their belief in it was reasonable. They went instead straight to question 3 of the Burchell questions - "Had the employer carried out as much investigation into the matter as was reasonable in all the circumstances?" and indeed that was the way in which the Tribunal stated the question at the beginning of paragraph 19:
"the investigation and the disciplinary hearing were conducted in a way that no reasonable employer would have conducted them."
Having spelt out the question in the right form they then went on to say what they thought to be an appropriate investigation and the appropriate conclusion. What they did not ask was whether the Appellant's investigation was within that band of adequacy or reasonableness which would be approved of by a reasonable employer.Mr Rose then illustrated how the Tribunal went on to analyse the evidence for themselves and had come up with findings of fact which they took as their own yardstick of reasoning rather than the findings of the Appellants. They prescribed what the Tribunal's investigation should have been and what it would have revealed. They concluded that Mrs Hayes had been merely pushed rather than grabbed.The Tribunal concluded that the failure to reach that conclusion demonstrated that the employers' investigation was inadequate and unreasonable. Mr Rose stressed that the finding that Mrs Hayes had been pushed was a conclusion that Mr Sagnia had never urged upon the disciplinary hearing or in the course of his appeal or indeed before the Tribunal. Nor had that been the conclusion urged by the hospital either. In short Mr Rose says that the Tribunal substituted its own findings for that of the employers and in consequence found the dismissal was unfair, a conclusion which was based upon a series of error in law.Mr Rose then dealt with a series of individual complaints of unfairness which are referred to in the Tribunal's Reasons. I do not propose to go through each individual item. There were however two specific areas which I will deal with. First, there is his criticism of the Tribunal's findings that it was inappropriate and unreasonable for Mr Bisset to have concluded his investigatory report with conclusions of his own and even more unreasonable that that report, including those reasons, should have been placed before Mr Deazley as he was in the process of carrying out his own preliminary hearing. What is suggested is that this in some way would have prejudiced Mr Deazley's independence and possibly been a breach of the rules of natural justice.Mr Rose says that a copy of that investigatory report was sent to all the interested parties including Mr Sagnia and accordingly when they came before the disciplinary hearing it was open for Mr Sagnia to challenge or criticise the findings of Mr Bisset in that report. Mr Rose drew an analogy with the position of a prosecutor in a criminal case submissions are made as to the findings the Tribunal should make and there was nothing different in this case and therefore nothing improper.Next, there is the criticism of the Tribunal's finding that it was wrong for Mrs Baigent to have stayed with Mr Deazley whild he deliberated upon his findings, that she thereby eroded his independence when it came to the decisions that he did about this case. Mr Rose submitted that, as the employee relations adviser, she had nothing but helpful advice to give, particularly on the question of the sanction that should be imposed. She would be acquainted with precedents and so on. Although the Tribunal indicate the way in which Mrs Baigent's retirement would have been improper, there is no evidence in the papers before us which would in fact justify the Tribunal's findings in relation to her conduct and the part she played.Lastly there was the allegation that Mr Deazley had only taken one hour to come to his decision and Mr Rose says that that is an astonishing criticism to make. In many a case many a jury's decision, many an Industrial Tribunal's decision is taken in less time than that and it is in no way a measure of the care and thoroughness with which Mr Deazley approached this case.Mr Birtles in making his submissions on behalf of Mr Sagnia first of all reminded this Tribunal that it was not its role to scrutinise the decision of the Industrial Tribunal to find an error in law. He said (and I think here he agrees entirely with the submission of Mr Rose) the Tribunal began by correctly directing itself on law. In answer to Mr Rose's criticism that the Tribunal made no finding of what the misconduct was upon which the employers rely, he said that that was a technical omission, amounting in all to but a single to a sentence, and looking at the case overall, including all the documentation, there was no substance in the complaint. It was absolutely obvious and plain to everybody that the misconduct referred to was as found at the disciplinary hearing and again at the appeal, namely that Mr Sagnia had assaulted Mrs Hayes.He then suggested that the Tribunal had correctly applied Burchell at the outset of paragraph 19 and he recited the passage to which I have already referred to in which they criticise the investigation and disciplinary hearing. He then submitted that thereafter it was reasonable and appropriate for the Tribunal to draw such inferences as it thought fit. He argued that their conclusion, having stated their findings and the inferences drawn, that a reasonable management would have discounted Mrs Hayes' account as unreliable and/or exaggerated although couched in the improper form criticised by Lord Denning Master of the Rolls in British Leyland (UK) Ltd v Swift [1981] IRLR 91, needed but little grammatical alteration to put it into an acceptable and legal form. Had they stated that no reasonable management would have failed to discount her evidence, they would have in fact been saying the same thing and on the right side of the law.In short Mr Birtles invites us to say that the dismissal was unfair and he invites us to dismiss the appeal.Our decision is that we accept the submissions made by Mr Rose in this case. With respect the error that the majority of the Tribunal made was in focusing their attention on what they would have investigated and what they would have found. The result was that they substituted their own findings for what the employers found in their enquiries leading to the deismissal of the employee Mr Sagnia. They should instead have their attention on what the employers believed and have considered whether their investigation at the time of dismissal was reasonable.It is our view that the cause of the error was that they did fail to ask the Burchell questions. The case of Burchell is helpful in two ways. Firstly it is helpful as an analysis of the requirements of section 57 but secondly it seeks to impose a discipline upon the Tribunals who have to consider those questions in relation to the facts of the case they are considering. Thereby it ensures as best as possible that the Tribunals take the correct approach.So much for the allegations relating to investigation. We are also of the view that no criticisms can be made of the disciplinary procedures. We accept what Mr Rose says about the criticisms made of Mr Bisset's investigatory report. We think that there was no harm done to Mr Deazley's independence especially as the full text of the investigatory report had been made available both to Mr Sagnia and to the employers. So far as Mrs Baigent is concerned we can see many reasons why it was appropriate that she should have stayed with Mr Deazley during his deliberations to help him come to his decision on the taxing and teasing questions he had to answer before imposing the ultimate sanction of summary dismissal.So far as the criticism that Mr Deazley retired for about 1 hour before coming to his ultimate decision in this case, we are of the view that that could well have been ample time in which to make a decision. It might have taken less time, it might have taken more but in no way do we see that it was a valid criticism of his conduct of that disciplinary hearing.Ultimately there is the question of the reasonableness of the sanction imposed by the employers in this case and we have to ask ourselves as to whether summary dismissal was within the range of reasonable responses of a reasonable employer. We take the view that it was so. Accordingly in our judgment the dismissal was fair and we must allow this appeal.