Z v Special Hospitals Service Authority (Ashworth Hospital) [1996] UKEAT 1234_94_2604

EAT
Z v Special Hospitals Service Authority (Ashworth Hospital)
[1996] UKEAT 1234_94_2604 · 1996-04-26
MR JUSTICE BUTTERFIELD : The appellant appeals against a decision of the Industrial Tribunal sitting at Liverpool, promulgated on 6th October 1994. A restricted reporting order was made by this appeal tribunal in respect of this appeal, in consequence whereof we shall in this judgment refer to the appellant as `Z' and to another employee of the respondent as Miss `X'.The appellant was employed as a nursing assistant with the respondents at Ashworth Special Hospital, at which violent and highly disturbed patients are compulsorily detained under the provisions of the Mental Health Act . He had been so employed since 1985.In December 1992, the appellant and 13 others attended a five day course at the hospital, designed to teach amongst other things, control and restraint techniques when dealing with aggressive patients. One of the instructors on the course was Miss X. On a day asserted by the respondents to be the last day of the course, Friday 18th December, Miss X was demonstrating how to break free from a strangle hold round the neck. The appellant, at her request, volunteered to act as the attacking patient. He put his hands round her neck whilst Miss X explained to the other course members diversion techniques for such a situation. As she did so, the appellant, according to Miss X, took his hand from her neck and grabbed and fondled her right breast. Miss X was shocked and embarrassed by what had occurred, and reported the incident to the course co-ordinator. She began her Christmas leave that same day, but on her return to work in early January 1993 she made a written complaint to a senior colleague.Shortly thereafter, the clinical area nurse manager, Mr Scully, was asked to undertake a disciplinary investigation into the allegations. As has rightly been emphasised before us by Mr Ryder, who appears today on behalf of the appellant, the allegations being made by Miss X were very serious in their nature, and the consequences to the appellant if proved, were likely to be serious as well. It was, no doubt, in the light of the serious nature of the allegations and the serious consequences to the appellant that Mr Scully's investigation was thorough and detailed.It was an investigation which occupied several weeks of his time, in the course of which he interviewed all 13 nurses who had attended the course. He saw Miss X on two occasions; he also saw the appellant on two occasions. Finally he submitted a report to the respondents which ran to some 53 pages.In consequence of the report, which included within it, the fact that seven of the 13 people interviewed had said that the appellant had touched Miss X on the breast or breasts, and a further five had said that they were aware that an incident of some nature had occurred but did not see what had happened, the respondents determined to hold a disciplinary hearing.That hearing was held on 2nd July 1993, and was heard by the acting unit general manager and the director of personnel. The disciplinary hearing concluded that the allegation made by Miss X was true, and that the appellant had committed a sexual assault upon her. They terminated the appellant's contract of employment with immediate effect.The appellant did not appeal from this decision as he could have done. The reason he did not appeal was because of advice he had received from his union representative.The appellant applied to the Industrial Tribunal alleging that he had been unfairly dismissed. After a hearing lasting no less than six days, the Industrial Tribunal found by a majority, that the appellant had been dismissed for gross misconduct, namely a sexual assault on a female member of staff, and that the respondents acted fairly in dismissing the appellant on that ground. The minority member on the Industrial Tribunal was of the view that the dismissal of the appellant in all the circumstances, including the nature of the act found proved against him and his record of service with the respondents fell outside the band of responses which a reasonable employer might have adopted.Against that decision, the appellant now appeals to this tribunal. He submits that the Industrial Tribunal were wrong in law in holding, as they did, that there was a reasonable investigation into the complaint made against him, and further were wrong in law in holding that the disciplinary hearing was conducted fairly.The thrust of the appellant's case centres on a group of eight bank staff nurses, that is to say nurses who worked irregular hours as casual staff at Ashworth Hospital. This group joined the control and restraint course for one day only, the day on which the respondents alleged that the incident involving Miss X had occurred. However, it is said, the bank staff nurses would have given evidence that no break away or strangle hold demonstrations took place on the day they attended the course. If that were so, the alleged sexual assault could not have been committed on that day, thus seriously affecting the credibility of Miss X, Mr Thorpe, the course co-ordinator, and indeed other witnesses who saw the incident.The bank staff nurses were not interviewed by Mr Scully in the course of his disciplinary investigation. At an early stage in the investigation Mr Scully was given the clear impression by those who were present at the incident that the bank staff nurses were at the other end of the gymnasium at the material time, and would not have been able to assist at all.Sometime before the disciplinary hearing, the appellant requested the names of the bank staff nurses, so that he could consider calling them on his own behalf. He did not inform the respondents why he wanted them to give evidence. The respondents failed to provide those names to him.The appellant then again through his representative who acted for him throughout, requested that the respondents should arrange for the attendance of the nurses at the disciplinary hearing, so that they could be questioned. Again, no reason was given for that request. Again, the respondents did not comply with it.At the hearing itself, the appellant's representative applied at the outset of it, and we observe in passing that the hearing lasted no less than eight hours, that the proceedings should be adjourned so that all 13 witnesses who had been interviewed and the eight bank staff nurses who had not at that stage been interviewed, could attend. No reason was given by the appellant's representative as to why he required the attendance of the bank staff nurses. The application was refused.The Industrial Tribunal found that the refusal was reasonable. The respondents had arranged for Miss X and three eyewitnesses to attend, two of those eyewitnesses being from another hospital and therefore, it might be thought, wholly independent. It was, in the view of the Industrial Tribunal wholly unrealistic in the context of a disciplinary hearing such as this to expect the respondents to do more.We agree. The appellant knew exactly what the allegation being made against him was. He had been provided with copies of the interviews conducted with all 13 attenders at the course. He was able through his representative to cross-examine Miss X and the three eye-witnesses who were called. He could put forward his own account of the incident. Of course, the disciplinary hearing is not to be judged against the standards applicable to a criminal prosecution, and emphatically it is not so to be judged. We take the view that even if it was to be judged against those standards, the conduct of the respondents in refusing an adjournment at that stage could not sensibly be criticised.At a late stage in the course of the hearing, the appellant himself disclosed for the first time the reason why he wanted the bank staff nurses to attend. He asserted that the bank staff nurses were present only on the Friday, that they could say that no breakaway demonstration had taken place on that day, thus all the witnesses were wrong about the day and were therefore lying. Those hearing the disciplinary proceedings refused to adjourn to permit the nurses to be called, but did recall the course co-ordinator and one of the eye-witnesses who was still available in the precincts of the hospital where the enquiry was taking place. Both confirmed that the incident had taken place on Friday. The course co-ordinator reinforced his oral recollection to that effect by the production of documents relating to the course showing that on Day 5, which was the Friday, break away techniques and principles of break away techniques and diversion techniques were scheduled to take place. The appellant's contention was that that document was in effect a forgery and part of a conspiracy falsely to prove a wrong allegation against him. We are not of course concerned to investigate that allegation which was investigated by the disciplinary hearing itself.The Industrial Tribunal found that the respondents acted reasonably in refusing to adjourn to hear the bank staff nurses. We are invited to hold that this conclusion was perverse so that no reasonable tribunal could have made that finding. We have considered that submission with anxious care. We recognise that this a matter of great importance to the appellant, as it is of course to the respondents. We ultimately have concluded that we cannot accept that submission. The tribunal was entitled to take account of the stage at which the reason for the attendance of the nurses was disclosed, the information made available to the appellant by the respondents five weeks before the hearing, the fact that the appellant had not until a very late stage during the hearing sought to challenge the date, and the fact that Mr Thorpe had been able to give what must have appeared to the disciplinary hearing to be compelling reasons for why he could be sure that the incident had occurred on the Friday. Finally, the tribunal was entitled to take account of the nature of the appellant's own defence to the allegations made.The appellant had been invited to give his account of the incident at an early stage in the investigation process. He had written a note to this affect:
"My recollection of the incident is that Miss X stood me up against the gym wall, took hold of neck then proceeded to invite suggestions on how I could extricate myself from the strangle hold. The C/R course strictly forbids punching. If she had been a male, I would have pretended to knee him or grab his testicles, as she was female however, I replied I could simply tweak her chest and move quickly away. I mimed the gestures as I spoke, and everybody including Miss X herself laughed at the idea and the course carried on. But at no time during that pretence do I believe my hand touched her actual body."
When the appellant was interviewed about the matter a few days later, he reiterated this account adding that he had moved his left hand towards Miss X's breast because he was left-handed, and acknowledging that during the exercise he may have had his hands around Miss X's neck rather than the other way round. Thus there was never any dispute that something had occurred in the course of the exercise; the question for the disciplinary hearing was what had occurred. The disciplinary hearing was perfectly entitled to take that factor into account as well in considering whether or not to adjourn the matter to enable the bank staff nurses to be interviewed.In the light of all the circumstances, we can find no error of law in the Industrial Tribunal concluding after their most careful and lengthy examination of the circumstances surrounding the disciplinary hearing and the investigation, that the investigation was reasonable and the hearing was fair.For those reasons, which I have given at some length, because of the importance which no doubt the appellant rightly attaches to this matter, this appeal must be dismissed.Application for leave to appeal refused.