MS D OLABISI v JEWISH CARE [1999] UKEAT 439_99_2306

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 439_99_2306Case No Appeal No. EAT/439/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MS D OLABISIAPPELLANTJEWISH CARERESPONDENT
Before
His Honour Judge John Altman Miss A MackieDate 23 June 1999
[1]APPEARANCES For the Appellant MR MARSHALL-WILLIAMS (of Counsel) Instructed By: Mr L Wilson Birton Advice Centre 167 Railton Road London SE24 0LU JUDGE JOHN ALTMAN: This is an appeal from the decision of the Employment Tribunal sitting at London North on 13 January 1999 when they found that the Applicant was not unfairly dismissed, that she was dismissed for gross misconduct and was therefore not entitled to pay in lieu of notice. The matter comes before us by way of preliminary hearing to determine whether there is a point of law such as to justify this appeal proceeding to be considered in full before the Employment Appeal Tribunal. The Appellant was dismissed ostensibly because she was asleep on duty. Before the Employment Tribunal the Appellant denied that she had been asleep on duty and the essential question of fact before the Employment Tribunal was to decide whether or not that was the case. The essence of this appeal is a criticism of the decision of the Employment Tribunal in that whilst it appears in the decision that the Tribunal followed the guideline set out in the case of British Home Stores Ltd v Burchell (1980) ICR 303 , it failed to go on to ask itself whether the employer was reasonable in treating the misconduct as the reason for dismissal and to look at the matter in the light of equity and the substantial merits of the case. In particular in relation to that statutory question, they failed to consider, it is said on behalf of the Appellant, whether dismissal was a reasonable response or whether some other penalty was appropriate.[2]The Tribunal found that the Appellant was a care worker who worked at nights, required to be awake at nights and attentive to the needs of patients, the majority of whom were in a confused state suffering from dementia and who might require immediate attention during the night. We have had an opportunity to see the job description that was before the Tribunal which has been referred to in argument and it is clear that that was very much part of the workload of the Appellant.[3]The Tribunal then made findings in paragraph 3 as to the conflict of evidence as to whether or not the Appellant was asleep. It appears that the Head of the Home and her Deputy had happened to visit the home on a particular night and alleged that they had found the Appellant to be asleep. The Appellant in evidence to the Tribunal and apparently at the disciplinary hearing earlier held by her employers denied that she was asleep. She said that it was in fact a conspiracy to dismiss her because she had given evidence at an earlier disciplinary hearing on behalf of a fellow employee.[4]The Employment Tribunal found in favour of the Respondent because they accepted the evidence of the Deputy Head of the Home and they then concluded as follows:
"Consequently we find that the Respondents had reasonable grounds for believing that the Applicant was asleep on duty when she ought to have been awake. Consequently, we find that a reason existed for the Applicant's dismissal and that reason was one relating to her conduct."
The Employment Tribunal then considered the evidence of the disciplinary hearing. They found that the employer went carefully into the matter and came to the conclusion that there should be a dismissal. They said:
"We can see no reason to criticise the way in which the disciplinary hearing was held."
They find that the Appellant was represented and given every opportunity to question witnesses and deal with matters. They then conclude in the following words:
"Accordingly, so far as the claim of unfair dismissal is concerned, we find that the Applicant's claim fails and is dismissed."
[5]That is clearly a fairly brief way of dealing with the issues that were before the Employment Tribunal. The grounds of appeal contended for by Mr Williams really focus on the alleged failure of the Employment Tribunal, having found that the alleged misconduct was falling asleep and that the employers were reasonable in concluding that the Appellant had fallen asleep, to go on to ask whether dismissal was a reasonable sanction for the alleged misconduct of the Appellant.[6]I turn first to the law to which reference has been made. It is always useful to go back to British Home Stores v Burchell where guidance as to the approach to misconduct cases was set out in the judgment of Mr Justice Arnold a decision upheld by the Court of Appeal in Weddel & Co Ltd v Tepper (1980) ICR 286. "What the Tribunal have to decide every time is broadly expressed whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time…. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in the circumstances in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further."[7]By way of gloss upon that decision, it was considered by the Employment Appeal Tribunal in Boys and Girls Welfare Society v MacDonald (1996) IRLR 129 , which pointed out two things. First of all that there has been a change in the burden of proof so the words to which I have referred are not as strongly demanding of the employers conduct anymore. And secondly, to use my own words, those guidelines should not be treated as some sort of mantra to be applied in every single case where misconduct is alleged. We would only add this, in the light of other cases to which reference has been made. The learned judge in Burchell referred to cases of misconduct. Of course cases of misconduct can cover a very wide range. He was dealing with a case of alleged dishonesty which generally speaking is regarded as gross misconduct and it seems to us that it is clear that this judgment was really dealing with those sorts of allegations of misconduct which are gross misconduct properly so called.[8]We have been referred to other cases in this context to which I make reference. The first was Trusthouse Forte v Adonis (1984) IRLR 382 in which someone was dismissed for smoking, where the particulars of employment were found to refer to smoking in a non smoking area, as being for misconduct but not for gross misconduct. It was what often happens in the Employment Appeal Tribunal. A finding as to what facts a Tribunal is entitled to find which can, if one is not careful, be elevated into a proposition of law as to what they ought to find. The Industrial Tribunal had not erred in concluding that the dismissal was also unfair because the Appellants gave insufficient consideration to the Respondent's long service and former exemplary conduct. In effect the Employment Appeal Tribunal were saying that in misconduct cases a Tribunal is entitled, as well as the Burchell tests, to take into account other factors addressed before it. It does not on our reading of that decision suggest that it is a matter of law that a Tribunal is bound to do so.[9]We were referred to the case of Laws Stores v Oliphant (1978) IRLR 251, which points out that just because a contract of employment says that gross misconduct will normally result in immediate dismissal, there is still an element of discretion left in the Tribunal to decide whether or not dismissal was a fair response to misconduct found. The question must still be asked 'have the employers acted reasonably in using the established reason for dismissal as a sufficient one'? There again, it was a finding that the Tribunal were entitled to conclude, that although there had been a single lapse on a till operator which was misconduct, there should not have been dismissal.[10]We have also been referred to the case of William Grant & Sons v Stuart in which the proposition put before the court, that where the Appellants had sought to make out a case of gross misconduct, other questions to be balanced against the misconduct from the employees record should not be taken into account, was unsustainable. Just because employers seek to rely on gross misconduct of course, does not preclude a Tribunal from looking at all other factors. Those are the cases to which we have been referred.[11]Our distillation of the general principles would really be as follows. Burchell , perhaps one of the most hallowed authorities in labour law, applies it would appear to cases of gross misconduct properly so called where the conduct is of a kind which at common law would be regarded as so serious as to undermine the relationship of employer and employee and therefore, by implication being a case in which (whilst a Tribunal would be entitled to ask the question as to whether or not some other sanction were possible and may find some in some cases), it would be inappropriate to impose as a matter of law a gloss upon that case requiring that test to be enlarged.[12]But there are other situations in relation to misconduct. First of all, there may be conduct termed gross misconduct by the contract of employment, but which an Employment Tribunal may find from its own examination, is not gross misconduct properly so called so as to lead them to look further as to whether dismissal was a reasonable remedy. Thirdly there is ordinary, if I may so describe it, misconduct where one would normally expect an Employment Tribunal to look broadly at all the factors involved in weighing them up because dismissal is not necessarily an expected or anticipated consequence. Fourthly, we would say that there is no rule of law that all cases of misconduct are satisfied in favour of the Respondent employer necessarily simply because the test propounded in Burchell is satisfied.[13]In the case before us it is true to say that when the Employment Tribunal reached their decision that the claim for unfair dismissal failed they had examined the finding of misconduct and they concluded that the employer had been entitled to reach a decision upon it. The decision may be open to some criticism in that the Tribunal did not then go on to identify whether this was a case of such serious misconduct as to make it a reasonable reason for treating the misconduct as a reason of dismissal. However, it is clear that they followed the Burchell case.[14]We would say about that, three things. First, the Tribunal did go on to consider the question of wrongful dismissal, and although that was a separate matter in formal terms, it dealt with whether or not what had occurred amounted to gross misconduct. Could it be criticised as gross misconduct, they said, or was it simply misconduct which, while justifying her dismissal, would not justify that dismissal without notice in terms of wrongful dismissal. The Tribunal were divided but the majority found that the Applicant knew she was not supposed to sleep on duty, there were good reasons why she should not be asleep on duty – namely the vulnerability of the patients entrusted to her – and that for her to be asleep on duty was gross misconduct.[15]In those circumstances it seems to us, that had the Employment Tribunal spelled out what it seems to us was clearly in their mind, that is whether dismissal was a reasonable sanction, they would inevitably have come to the conclusion that it was because that is implicit in the findings that they make in relation to the other heading. Whilst as a matter of law they are different categories, it is inconceivable that they would, it seems to us, have come to a different decision.[16]The second matter that we would state, is that from the findings of fact, it is clear that the Appellant was in a position of having the care of patients who might require her immediate attention during the night, and in those circumstances, the fact of going to sleep without more, seems to us, even in the absence of findings by the Tribunal, that it would be inconceivable that any Tribunal properly directing itself could come to any other conclusion when examining the reasonableness of the employers conduct than that dismissal was a reasonable sanction.[17]We have heard many arguments before us along the lines that there is criticism of the Tribunal for not conducting an analysis of the length of time that the Appellant was asleep, whether or not there was any actual danger that night at that time, or whether in fact some one else may have been supervising and able to attend to emergencies, or whether in fact any one was injured. Whether there really was any potential harm or not, we are unable to see any error of law on the part of the Tribunal's failing to specify those issues. In the first place it is clear that that sort of issue never arose before the Employment Tribunal which was dealing with an issue of credibility as to whether or not the Appellant had in fact fallen asleep; the Appellant denying it.[18]Furthermore, we cannot accept that a Tribunal would be assisted by knowing that on a particular occasion when someone was asleep there was no danger. Whether in these circumstances danger would arise or serious disability to a patient would arise because someone in charge was asleep was largely a matter that was fortuitous. Whether or not on this particular occasion someone was in danger, would not it seems to us, help to define the quality of the act of falling asleep whilst in a position of trust.[19]Furthermore, we find it difficult to understand how it could be that an employer could countenance maintaining an employee in employment where the allegations of, to our mind, serious misconduct are denied. If an employee denies an allegation of misconduct of this kind, how can an employer move forward in a relationship thereafter, maintaining the necessary trust with that employee? The situation is wholly different, it seems to us, where there is an acknowledgement of what has happened and an attempt thereafter by employer and employee to rebuild the working relationship. But that is simply an observation of ours. It falls outside our real task, which is to consider whether the Tribunal erred in any way, in the way in which they approached their decision.[20]In ground 3 of the Notice of Appeal it says that in concluding that the Respondent had reasonable grounds for believing that the Appellant had been asleep on duty in paragraph 3 of its decision, the Tribunal failed to establish the extent of the misconduct alleged against the Applicant and/or to make particular findings as to the misconduct alleged. Mr Williams has emphasised that that does not relate to what I would call the Burchell aspect of the question, but as to whether dismissal was a reasonable sanction. We cannot see that it was incumbent in this particular case upon the Tribunal having to set out a defined analysis as to the degree of sleeping and the nature of it, bearing in mind the whole context of the case before them which was a clash of fact as to whether the Appellant had been asleep or not. This developed really into a criticism by Mr Williams that the Tribunal did not explore with the Appellant what other criticisms there might be of the Respondents handling of the matter, but that is not part of this appeal and we cannot imagine it arising in a case such as this.[21]In the event it seems to us, that whilst it would have been helpful if the Tribunal had spelled out in their decision that they found that dismissal was a reasonable response in accordance with the statutory test to which I have referred, it is patently clear from the other findings within that decision that the Tribunal came to the conclusion that this was a case of gross misconduct and that dismissal was within such a range. Accordingly it seems to us that there is no point of law to merit this case proceeding to a full hearing and it is dismissed at this stage.