NORTH MIDDLESEX HOSPITAL NHS TRUST v MRS KUMI [1999] UKEAT 682_98_0110

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 682_98_0110Case No Appeal No. EAT/682/98Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
NORTH MIDDLESEX HOSPITAL NHS TRUSTAPPELLANTMRS KUMIRESPONDENT
Before
Mr Justice LindsayDate 1 October 1999
[1]APPEARANCES For the Appellants MR SEAN JONES (of Counsel) Instructed by: Mr E J Adams Messrs Beachcroft Wansboroughs Solicitors 100 Fetter Lane London EC4A 1Bn For the Respondent MISS A BEVITT (of Counsel) Free Representation Unit C/o The Chambers of Andrew Thompson and David Guy Francis Taylor Building Temple London EC4Y 7BY MR JUSTICE LINDSAY (PRESIDENT) : This is the full hearing of the appeal by North Middlesex Hospital Trust in the matter Mrs Edna Kumi against that Trust. There was a hearing before the Industrial Tribunal at London (North) spread over four days in January 1998. The tribunal, under the chairmanship of Mr Flint, promulgated its extended reasons on 3rd April 1998. There is an amended Notice of Appeal dated 13th August 1998. In order to make the rest intelligible it is necessary to set out a little of the background. In 1992 Mrs Kumi was Sister at the Trust's hospital. On the evening of 11th November 1992 she was on duty in a particular ward. Mrs Kumi is black, as was the other nurse, Nurse Muirhead, the only other nurse in the ward on duty with her. It was a busy night. One patient was a diabetic who required an insulin injection. The notes referable to that patient appeared to require that 120 units should be injected. The wording was not clear. There was a mark followed by '20'. 120 units would have been a quite exceptional dose, very likely a dangerous one, one so large that an experienced sister, such as Sister Kumi, should have immediately queried it. There was an issue as to whether she had indeed queried it. She said that she had bleeped the Duty Doctor's number but that when she spoke to him, he said, in effect, "give what is prescribed." But no doctor accepted that he had been bleeped nor that he had said as Mrs Kumi reported that he had said. It would have been a remarkable thing for a doctor to say if he had not been told the prescription amount and perhaps even more remarkable if he had been told that the prescription was for 120 units. At all events, Sister Kumi set about collecting two syringes, one for 50 units and the other for 70 in order to administer 120 in all. As the 50 unit syringe was being injected into the patient, a doctor on the ward, Dr Easty, spoke to Sister Kumi and the injection stopped. There was an issue at the Employment Tribunal, but not at the disciplinary hearing (which we will later come onto describe) as to whether that doctor and other doctors were already on the ward, responding, perhaps to the news that a high dose being administered (which would have tended to support Mrs Kumi's version that she had bleeped the Duty Doctor) or whether, alternatively, they were there already. If they were there already, it would have perhaps been natural to ask why should Mrs Kumi bleep the Duty Doctor's number when there were three doctors already on the ward. At all events, Sister Kumi stopped the injection. There was issue as to whether 30 or 50 units had by then been injected. The doctor said that she had meant that only 20 should be injected. There was a crossing out by the doctor of the figure or mark immediately before the '20' in the notes. There was an issue as to what was said as to the number of units in fact injected. The doctor, taking the view that 50 had already been injected, recorded the injection as having been of 50 units in the notes. Later Sister Kumi altered the figure to record the injection of only 30 units.[2]There is, one is unsurprised to learn, a strict procedure for the recording of alterations to patient or doctor's notes. There was an issue as to whether Sister Kumi had broken those rules. Moreover, drug errors, which this incident represented, have to be reported in a particular way and as soon as practicable. A Sister Chaston was the person to whom report should have been made. There was an issue as to whether Mrs Kumi broke the rules as to reporting by failing to report the incident until later in the early hours of 12th November.[3]Mrs Kumi was suspended from duty. There was an investigation and then the disciplinary hearing at which oral evidence was given, as well as evidence by written statement. Her trade union representative represented Sister Kumi. She was not dismissed, but was given a final written warning. She was also demoted from being a G Grade Night Sister to being an E Grade Staff Nurse. A personal and professional development plan was to be devised for her which meant she would not, for the time being, be able to take charge of a ward. It was arranged that there should be a review in 12 months. These sanctions were imposed instead of dismissal as a result of negotiations, possibly agreement, between the Trust on the one hand and Sister Kumi's trade union representative on the other. That was what, one might call, the 'drug error' incident of November 1992.[4]In early 1993 there was a second type of complaint or incident. Mrs Kumi was on sick leave. Reports were made of her failure to attend at the Trust's hospital, despite her having been expected to attend. Medical certificates to support her sick leave were provided to the employer but there was an issue as to whether they had expired. At all events, the Trust had expected her to attend to work, it said, but she had not attended. The Trust needs to know who is to attend and who is not for staffing reasons. The Trust's reporting procedures, it believed, had not been honoured.[5]On 18th February 1993 the Trust wrote to Mrs Kumi saying there would be a preliminary investigation. Mrs Kumi wrote back saying that she resigned "because I am not fit healthwise to resume work". On 26th February 1993 the Trust in writing accepted that resignation. But, in the meantime Mrs Kumi had written again saying, "Due to continuous harassment and victimisation within your Trust I am forced to resign".[6]On 14th May 1993 her IT1 was received claiming racial discrimination. On 26th June 1993 she added a claim for unfair dismissal of the constructive dismissal kind.[7]At some hearing one or more extensions of time were granted to Mrs Kumi. We have no details of them but in consequence no time bar point is open to the Trust. The decision of the tribunal which is appealed against was as follows:
"The unanimous decision of the Tribunal is that the Applicant establishes a claim of racial discrimination and that the actions of the Respondents surrounding her resignation in February 1993 amounted to a constructive dismissal which is unfair and was racial discrimination. …"
[8]The appeal concerns both the racial discrimination and the unfair dismissal aspects of the case. Both the tribunal's decision and the argument before it require a very detailed approach.[9]Treating Mrs Kumi's Form IT1 with the generosity usually applied by tribunals to complaints prepared in person, Mrs Kumi's complaint of racial discrimination as described in that Form had two chief components. Firstly, the drug incident on 11th November 1992 was, in her case she said, handled differently from those involving others and led to a sanction more severe in her case than would have been applied to others, whose shortcomings were much the same, but who were white and not black. Secondly, her later disciplining in relation to sickness absence and reporting in January and February 1993 represented harassment of a racial kind. Again, she was treated less favourably than a white person in a similar position would have been. Although her case expanded, as I mentioned, into a four day hearing, those components of the racial dismissal claim remained throughout.[10]Against that background the appellant Trust, by Mr Sean Jones, raises three main heads of argument. Zafar[11]The first argument is that in relation to racial discrimination the Employment Tribunal simply applied the wrong test. At its most compressed the argument is that as the Zafar case in the House of Lords shows, the test for racial discrimination is not whether the employer in question has acted unreasonably in any particular case (because it may be, for example, that he acts unreasonably in all cases to all races) but whether on racial grounds that employer has treated the complainant less favourably than it would have treated others. The appellants' argument begins by citing the tribunal's reference to the well know case of Burchell . What the tribunal said was this:
"5 A great deal of evidence was given during a lengthy hearing. It was conceded by the parties that the first claim was not a claim in respect of unfair dismissal and that the Tribunal should not approach the case on the basis of the Burchell test namely an examination of the sufficiency of the employer's investigations into the circumstances surrounding the case. Our view is that although it is clear that in the case of racial discrimination the Burchell test is not the proper test we have when examining this case to consider the sufficiency of the employer's investigations into the circumstances surrounding the matter in the light of what is revealed by the evidence and documents. In the Tribunal's view the greater the sufficiency of the employer's investigation into the circumstances the less likely it is that inferences can be drawn that questions of racial discrimination entered into the Respondent's motives for imposing the disciplinary penalty. The employer would be able to demonstrate to the Tribunal that he had investigated the matter and satisfied himself that there were charges against the employee which needed to be investigated and that consequently it was proper for him to institute disciplinary proceedings and impose an appropriate penalty. He might then have to go further and demonstrate that the disciplinary penalty which he imposed was one which was justified by the circumstances of the case and was not excessively harsh. If the Applicant on whom the burden of proof lies can raise a doubt in the Tribunal's mind as to the sufficiency of the investigation into the charges against her then if that doubt can be substantiated by any failure by the employer properly to investigate the matter it is proper for the Tribunal to draw inferences. …"
[12]There is no conclusion there that a test or the only test for racial discrimination is whether the employer acted reasonably or unreasonably. Nor is that a finding that had the employer acted unreasonably that necessarily would lead to a holding that there had been racial discrimination. Where the issue is whether the drug incident of 11th November 1992 was handled inadequately and, to that extent, differently in Mrs Kumi's case than it would have been had the alleged wrongdoer been white, it was inescapably part of the tribunal's task to see whether the incident was, indeed, adequately investigated at the disciplinary level. The tribunal's view, namely, that the more thorough the enquiry, the less likely were its conclusion or its methods to involve discrimination seems, if we may say so, good sense. One can quite see that an employer who is minded to discriminate against a black employee or who is susceptible to such discrimination may well be less full in his disciplinary enquiries in the case of black employee than in the case of a white employee, if only to ensure that he does not waste time when his mind is already set upon the conclusion he wants to arrive at or to ensure that facts barring that conclusion do not inconveniently come to light. Equally, if the enquiries at the disciplinary stage can be seen to be inadequate, it can be (not that it has to be, but that it can be) that the inadequacy is so marked and so otherwise inexplicable as to justify an inference, when all the surrounding circumstances are taken into account, that racial discrimination was present. However, the answer to the question if whether a particular disciplinary hearing has been adequately conducted cannot, of itself, resolve whether there has been less favourable treatment. In an ideal world, a tribunal would move on from a finding that the complainant's disciplinary hearing was inadequately conducted to an examination of how that employer conducted disciplinary hearings for similar offences for other alleged culprits of a different race.[13]Both Miss Bevitt, for Mrs Kumi, and Mr Jones for the Trust, accept, if we have understood them correctly, that when the alleged inadequacies of a disciplinary hearing are not blatant but are of the highly detailed kind which were here suggested, it is not practicable to expect or require a person in Mrs Kumi's position to produce studies of other actual disciplinary hearings in any similar detail. Indeed, were she to do so, without the tribunal then going on in detail to the facts of those other cases – ex hypothesi cases already closed - in similar detail to the detail available in the case before them, no like-with-like comparison would be likely to be possible. If comparisons of that nature were inescapably to be required, cases would be massively prolonged. It may thus be therefore that what is to be in mind is some hypothetical comparative disciplinary hearing, for want of any actual ones. But, whatever those hypothetical disciplinary hearings are, there will be some form of problem. Thus if the tribunal contemplates a comparison with how a reasonable employer would have conducted a disciplinary hearing that may very well offend Zafar . If the tribunal contemplates a comparison with the general run of preliminary hearings by employers generally and if the tribunal, as the industrial jury, from its own experience and without evidence contemplates what that general run is, then that not only would lead to a comparison the particulars of which the parties would not be able to effectively to challenge but would prove only that the employer had treated the employee in question other than as employees are treated in the general order, a finding which is not, of itself, a finding of less favourable treatment by the particular employer, which is what the statute requires. Mr Jones accepts, I think even perhaps argues, that it may that some limited exemptions to Zafar will need to be called into existence. It is true to say that in our case the tribunal mentions no form of comparison between this disciplinary hearing and any other, hypothetical or real, reasonable or unreasonable, explained in evidence or tacitly in mind.[14]However, in the passages to which Mr Jones draws attention, the drift of the tribunal's reasoning concerns not the making of comparisons, but a different subject, the drawing of inferences. It cannot be said that because the tribunal concentrates on inferences it must have had no comparisons with the conduct of other disciplinary hearings in mind. It would plainly have been preferable if the tribunal in those passages had expressly dealt with comparisons, disciplinary hearing with disciplinary hearing. But we are not prepared to assume from the tribunal's silence that they did not have such matters in mind. The nettle of just what comparisons need to be made in a case such as Mrs Kumi's will need to be grasped and when examined, will need to be examined against a full citation of all cases. However, we leave that exercise over for case where it is truly necessary. Here, it is not, because, as we shall come on to, the finding of racial discrimination is vulnerable on grounds specific to Mrs Kumi's case.[15]As for inferences, caution is needed in drawing them. Whether they are to be drawn and what they should be is best left to the tribunal which hears all the evidence and sees all the witnesses and has the task of finding the facts. But, so long as caution is in mind, we are unable to say that error of law is to be found in the passages already read and especially the passage:
"If the Applicant on whom the burden of proof lies can raise a doubt in the Tribunal's mind as to the sufficiency of the investigation into the charges against her then if that doubt can be substantiated by any failure by the employer properly to investigate the matter it is proper for the Tribunal to draw inferences."
[16]The tribunal then turns to look into the adequacy of the investigation at the disciplinary stage and it concluded (speaking of two people involved in that):
"11 … The whole attitude of Ms McWilliams and Mr Boakes seems as we said earlier in this decision to have been inflexible. They seem to have dealt with it on the basis of a closed mind oblivious to any consideration that the doctors might have been at fault. …The whole matter we find is an attempt to put on to the Applicant the entire blame for an incident when it is by no means at all clear that the entire blame for the incident rests on her. The result was there had never been any attempt to try to find out exactly who was to blame for what happened, where the degrees of responsibility lay, what disciplinary penalty if any should be awarded against the Applicant for her part in this affair. … 15 Having regard to these findings we then have to consider whether the Applicant succeeds in demonstrating to us either by the evidence which she gave or by inferences which we can draw from the evidence given on behalf of the Respondents that there has here been racial discrimination and it is at this point that we intend to examine the question of the comparable cases which were put forward by the Applicant in the further and better particulars. … 17 The question therefore that remains is whether this is simply a failure by Mr Boakes and to lesser extent by Ms McWilliam to appreciate exactly what they should do and what had to be established before they could be satisfied that disciplinary offences had been committed by the Applicant or whether it is legitimate to draw the inference from the unsatisfactory nature of Respondent's evidence that there must have been racial discrimination. We have come to the conclusion that we can draw those inferences. It seemed to us that the investigations in this matter were superficial and did not go deeply enough into the circumstances of this case to enable the Respondents to say that they could possibly have had a reasonable belief that what happened was either the fault of the Applicant or that her participation was such that a proper conclusion could be reached that she was partly to blame. The deficiencies are those we have already set out. Our view is that there was some ulterior motive in the way in which Mr Boakes went about investigating this case and in coming to the conclusion which he did. We have come to the conclusion that he performed these acts because the Applicant was black. … Our view is that the combination of the failure properly to investigate the claim, the harshness of the penalty at least in financial terms and the disregard of comparable cases all lead us inevitably to the conclusion that there must have been some other motive for the imposition on the Applicant of this disciplinary penalty. Consequently we find that the Applicant does prove from her own evidence and from inferences which we may draw from the Respondent's evidence that there had here been racial discrimination. …"
We do not see that as reasoning which necessarily falls foul of Zafar . The tribunal was not saying "That was unreasonable, therefore, it was discriminatory", they were saying something rather fuller. They were saying, "The disciplinary hearing was unreasonable and inadequate. The adequacy is not explained. In all the circumstances we feel we may draw inferences from that inadequacy. The inference we draw is that there was an ulterior motive behind the employer's action. We think and hold that it was because Mrs Kumi was black." That process, it has to be said, is somewhat weak on comparators but it is not manifestly a failure to recognise the force of the reasoning in Zafar nor, indeed, does it manifestly include any other error of law. We cannot be sure that the tribunal's thought processes precluded its having some proper comparisons in mind. This first ground, in our judgment, fails, although we recognise that there is here a point of real difficulty, one better left over to some case where it inescapably has to be dealt with. The 17 Comparators[18]Mr Jones for the Trust rightly reminds us of the like-for-like comparison which is required by s.3 (4) of the 1976 Act. Race apart, there is to be no material difference between the complainant's position and that of her chosen comparators.[19]The kind of comparisons here in issue were not between the detailed conduct of Mrs Kumi's disciplinary hearing and that of other disciplinary hearings, but, more loosely, between how similar offences by others were treated by the employer.[20]The tribunal deals with the issue of comparison and comparators in paragraph 16:
"16 When she was cross-examined by Mr Jones the Applicant made certain admissions about these comparable cases which seemed to indicate that she did accept that the cases were not comparable and should not be considered. Mr Foskett [ a member of the Employment Tribunal ] however on behalf of the Tribunal, feeling that the Applicant might not have understood properly the purport of Mr Jones questions, asked questions about this. The answers were that cases 3, 5, 6, 11 and 17 were regarded by the Applicant as similar and that all 17 cases were regarded by her as serious. Mr Jones did not seek to cross-examine further on the answer which Mr Foskett had obtained not later did he question his own witnesses. Our view is that the Applicant must have been mistaken by the nature of Mr Jones questions and that it is the answer to Mr Foskett's questions which ought to be accepted. We find that on the basis of this all 17 cases were serious and that five of the 17 were similar. From this our finding is that the Applicant has adduced to us a sufficient number of cases to show that in similar cases nurses who have committed errors in respect of the administration of drugs had not been treated so harshly as she had been treated and that consequently again this calls into question the nature of the disciplinary penalty which Mr Boakes imposed."
There is no doubt but that if a tribunal feels that a witness' answers represent a possible misunderstanding of the questions put, then, of course, it is free to intervene. It is generally best done as and when the possible misunderstanding occurs so as to avoid the perpetuation or continuation of error.[21]We have the Chairman's Notes. They show that Mr Jones for the Trust cross-examined Mrs Kumi on the subject of comparators towards the end of the first day. Quoting from the Chairman's Notes, what Mrs Kumi said was this:
"… I am not aware of disciplinary hearings against others for drug errors. I agree that errors could be committed by any member of staff. My case is different. Page 37. There is no evidence to show that Boakes was aware of the incident. Nurse John. I agree there was no evidence of falsification or covering up. Equally I agree this was regard to Sister Mercer. It is a serious incident. I agree that mine is more serious. As others of Miller and Kenny. Sills is similar but I agree she did not cover up. Everyone knew what she did. It was something that went on in truth ward. Andrews. This is not as serious as are also those of Curran, Johnson and Crab. And also Smith, Lenny and Curran. New are Waldren, Simmons and Baker [ Barker ]."
[22]There is obviously material in those answers for later submission by Mr Jones that no like-for-like comparison was possible with any of Mrs Kumi's chosen 17 comparators. None, on that evidence, seemed to involve disciplinary hearings for drug errors. Her case was accepted to be different. Her case was more serious than some of the comparators' cases. In two or three cases the comparator had not been involved in any falsification or covering up. Other cases were not as serious as Mrs Kumi's case. Mr Jones did not revert in his questioning to comparisons, no doubt thinking that he done enough on the subject. The tribunal itself raised no questions on the point on that first day. Either Mrs Kumi's confusion was not apparent or the tribunal was reticent about interrupting the cross-examination even at the end of the day. Mrs Kumi's Counsel did not intervene, so far as one can see.[23]On the second day, after Mr Jones had concluded his cross-examination but before re-examination of Mrs Kumi, the tribunal raised the questions, which we have mentioned, as of course the tribunal was entitled to do. These were the questions raised by Mr Foskett that have been referred to in the text. The Chairman's Notes say:
"The Applicant was further questioned on the comparators as it was apparent that she had been confused yet on the previous day. She said in answer to question by the Tribunal. Numbers 1, 2, 4, 7, 7, 9, 10, 12, 13, 14, 15 and 116 were not similar and that items 5, 6, 11 and 17 were similar as was three on the administration of drugs. On the question of seriousness she said that all 17 were serious."
There was no re-examination by Mrs Kumi's Counsel on that point. Nor did Mr Jones apply to cross-examine afresh on those new answers nor, so far as one can see, was he invited to do so.[24]Then the respondent Trust called its evidence. The Trust witnesses gave oral evidence as to Mrs Kumi's comparators. Mr Boakes touched on the subject he said:
"All errors result in form being filled in. The forms are kept for a short time. As to the particulars. The Respondents say that they have no record of some of these names, namely John Kenny, Andrew Johnson and name eligible. I have not dealt with any of these cases. We did attempt to find out. Most of these cases are of junior nurses and would not be dealt with at my level. I do know Sills' case. Sills' response is at page 42. No drug error took place. Sills was an experienced and competent ward manager. The ward was doing research and she clashed with the doctor. She objected to the consultants' use of a particular drug to clean wounds. She stopped Heparin because no date for discontinuance was given. She discontinued it on her own initiative. I would not say the case is in the particulars were as serious. It is the failure to report a falsification of notes which is serious."
[25]Sister Barker also gave evidence on the subject. She said:
"Entry of (word illegible) on page 52 is mine. I should have put this on page 50. There was a chart missing and pages out of a register recording who did the drug round were missing. The entry on page 51 was doctor's mistake and was not an error. Page 51. Morphine Sulphate is always given twice a day in increasing doses if necessary."
That that is a subject which involved a comparison between Sister Barker's case and Mrs Kumi's case is apparent when one sees Mrs Kumi's case at page 111.[26]In the light of that evidence, we return to the sentence complained of by Mr Jones for the Trust. Namely:
"Mr Jones did not seek to cross-examine further on the answers which Mr Foskett had obtained nor later did he question his own witnesses."
To judge from the Chairman's Notes, although the Trust's witnesses were cross-examined on the subject of comparisons and whilst Mr Jones did not seek to cross-examine further on the answers given to Mr Foskett by Mrs Kumi, Mr Jones did in two respects question his own witnesses on the subject of comparators and comparisons either in supplemental evidence-in-chief or in re-examination. Sister Barker was asked questions by Mr Jones and Mr Boakes was, as we have been. The Trust complains that the tribunal specifically found that no evidence had been adduced on the Trust's side as to comparisons.[27]The tribunal's dealing of the point of comparators of this kind is brief to the point of being perfunctory but it cannot be said that there was no evidence at all on which the tribunal could have concluded that cases 3, 5, 6, 11 and 17 were fair comparators. It was open to the tribunal to be unimpressed, if indeed they were, by the evidence of Mr Boakes and Sister Barker on the issue. What is sufficient evidence, where there is some, is very much a matter for the tribunal. We cannot pretend that paragraph 16 is satisfactory. No details are given of the tribunal's understanding of any of the five cases set out and accepted as comparators. It is very worrying that, when stating that Mr Jones had not questioned his own witnesses in this area, the tribunal may have forgotten rather than have disregarded Sister Barker's evidence and possibly Mr Boake's. However, it would have been open to the tribunal to have attached no weight to Sister Barker's and to Mr Boake's evidence. It may be thought a little pedantic to require them not to say that Mr Jones had not questioned his own witnesses but to require the tribunal to add words such as "to any substantial effect". It may be that we are being rather more generous than we should be to the tribunal on this point, but we cannot say that there was here any clear error of law. This second point as to racial discrimination in our judgment therefore fails. Perversity as to the inadequacy of the disciplinary investigation and process[28]The tribunal found the disciplinary investigation into the drug incident of November 1992 to have been inadequate on five particularised grounds. Several of the particularised areas themselves include a number of components. It would be as well to have the background in mind. The drug error incident was on the night of 11th to 12th November 1992. Mrs Kumi had been suspended from duty from 17th December. The disciplinary hearing was on 22nd December. It was thus not a rush job and there was no suggestion that Mrs Kumi had not had time fully to prepare. Mr Boakes, the Director of Administration and Operations, was the person who heard the case. There is no suggestion that he was an inappropriate person to hear it. Jane McWilliam presented the employer's case. She was the Assistant Service Manager. She had earlier been asked to investigate the incident by Mr Boakes. There is no suggestion that she had been an inappropriate choice. Mr Godfrey Eastwood, Mrs Kumi's trade union representative, represented her. There was no suggestion that he had insufficient time to prepare for the hearing, nor that he was other than thoughtful and competent. His questioning, to judge from the Notes, appears to have been entirely appropriate. Mrs O'Neill, the Personnel Manager to the Medical Directorate took a Note of the disciplinary hearing. We have that note. It is not short. Of course, not having been there we cannot be sure of this, but it looks to be often verbatim and in any case looks to be a full note. The tribunal had the notes of the disciplinary hearing before it. Against that background we turn to Trust's complaints of perversity. They are detailed grounds which require a detailed study.[29]The first complaint could be described by the question "Was Dr Furlong bleeped?" The tribunal set this heading out as follows:
"(1) A failure properly to investigate whether the Applicant had bleeped Dr Furlong and a too ready acceptance of Dr Furlong that she had not, bearing in mind that it ought to have been a matter to be taken into account that an experienced nurse confronted with an abnormally high dose of insulin would have been more likely than not to query it."
Ms McWilliam said to the disciplinary hearing that Dr Furlong had denied being contacted. Dr Eastey had said in writing that Mrs Kumi had not rung any doctor to check the dose. Dr Easty then attended at the disciplinary hearing and, amongst other things, confirmed her statement orally. She was questioned by Mr Eastwood. Mr Eastwood described Dr Eastey as having been open and honest in her answers on the case. Dr Furlong had produced a written statement that he had not been contacted. However, it is to be noted that it is not that Mrs Kumi had all along said it was Dr Furlong whom she had bleeped. Her case later, possibly also at the disciplinary hearing, was only she had bleeped the number given on the ward's notice board and that a male voice answered. She also said that she had bleeped the same number later that night and that a doctor had arrived to certify a death on the ward but that she did not see who it was that had turned up in answer to that bleep. It was Sister Joyce who, she said, told Mrs Kumi that it had been Dr Furlong whom she had bleeped. Sister Joyce said rather that she, Sister Joyce, had asked Mrs Kumi whether it had been Dr Furlong whom she had bleeped and that Mrs Kumi had said yes. Sister Joyce said that she had then asked Dr Furlong, who had said that he had not been bleeped. Once Miss McWilliam had said to the disciplinary hearing that Dr Furlong denied being contacted there was a head-on issue as to the credibility of Mrs Kumi. The appellant Trust's complaint is that whilst criticising the disciplinary hearing, the tribunal failed to identify what further reasonable steps could have been taken on this subject. However, without, we hope, being wise after the event, one could ask what had been the number written on the ward's notice board? Who had written it up and when; was it Dr Furlong's number? Was it Dr Furlong who had certified a death on the ward that night? If it was not, then Mrs Kumi's evidence would have been a little damaged. If it was Dr Furlong, then her evidence would have been enhanced. Ought not Dr Furlong to have given direct oral evidence to the disciplinary panel? His written statement, we should add, is unclear because although he dates it as 21st November 1992, he speaks of the incident of 11th November as having taken place "last night". None of this was done. The tribunal's view that there was a failure properly to investigate may well involve expecting too much of the disciplinary process, especially given that there is no suggestion that Mr Eastwood required Dr Furlong's presence or had failed in his attempt to get it, but we cannot say that the tribunal's finding in this area had no foundation at all. The questioning of Dr Easty[30]The tribunal said this:
"(2) A failure properly to question Dr Easty bearing in mind that her statement is obviously self excusing, contains comments as to what was in front of 20 which even having regard to the apparent violence of the erasure is equivocal. In relation to Dr Furlong it does not state how she knew he had not been bleeped and also fails to explain how she knew 50 units had been administered."
This complaint thus falls into three parts. What was in front of the number 20? How did Dr Easty know Dr Furlong was not bleeped? How did she know 50 units had been administered? We will look at them separately.[32]What was in front of the 20 Dr Easty's written statement to the disciplinary hearing accepted that there was a small triangular mark ahead of the 20. She also accepted it could be read as a "1" when she was questioned at the disciplinary hearing. Nurse Muirhead read it as 120. Mrs Kumi read it as 120. Mr Boakes thought it could be read as 120. It was not held against Mrs Kumi that she had read it as 120 but rather that, having so read it, she did not immediately query so large a dose but had instead prepared to administer it. The original sheet of paper was carefully examined by the tribunal. This criticism of the disciplinary hearing is, in our view, entirely unjustified. It has no foundation in logic. There was no need for the disciplinary hearing to press further as the case was accepted to be that, whatever was written, it could fairly be read as 120 and that Mrs Kumi was not being criticised for so regarding it. Nor is there any evidence that Mrs Kumi's representative was in any way deterred from questioning Dr Easty. That is not decisive, of course, but it is a point to be borne in mind.[33]How did Dr Easty know that Dr Furlong had not been bleeped? It looks as if hearsay had been admitted by disciplinary hearing, but the disciplinary hearing was not a court of law. That hearsay was admitted was no necessary demerit so long as the relative weakness of hearsay was recognised. But there is, in any case, no indication that the disciplinary hearing relied exclusively on Dr Easty's hearsay view. Dr Furlong said that he had not been bleeped. He said that in his written statement. Mr Boakes' understanding was that three doctors had been questioned. He later said that it was unlikely that anyone but those three could have been a candidate for having been bleeped. He later said that all three had denied that they had been called and that the three thus questioned had included Dr Furlong. Mr Eastwood could, no doubt, have asked Dr Furlong to be present for oral questioning at the disciplinary hearing. There is, as we have mentioned, no suggestion that he had asked for that or was refused. He may have even have taken a tactical decision not to have yet another doctor giving oral evidence inimical to Mrs Kumi. He might have though that that would be a bad idea. Moreover, taken literally, the tribunal's complaint was that Dr Easty's written statement had not said how it was that she knew Mrs Kumi had not bleeped Dr Furlong. Given that Dr Easty gave oral evidence to the disciplinary hearing and was subjected to oral questioning from both the adjudicator, Mr Boakes, and the employee's representative, the fact that her earlier written statement had failed to deal with the point is not a point that can be a fair criticism of the disciplinary process as a whole. The disciplinary hearing cannot make a witness say this or that. If a witness overlooks a relevant point the remedying of the omission is one of the functions of the oral hearing and, here, the omission was remedied. This criticism of the disciplinary hearing is, in our view, unjustified. It has no foundation at all as a criticism of the disciplinary hearing.[34]How did Dr Easty know that only 50 units had been administered? Dr Easty's written statement to the hearing says that she saw Mrs Kumi administering insulin. She says, "She had, however, given 50 units at least". She adds "50 units actually given". She confirmed that orally at the disciplinary hearing. She was questioned by Mr Boakes "Are you sure it was 50", she answered "It was a dark ward; I believe it was 50". Dr Easty said that Mrs Kumi held up the syringe. She was asked by Mr Eastwood "And you checked it?" She answered "Yes, I believe it was 50". Nurse Muirhead said she did not see Dr Easty check the syringe, but, of course, that does not prove that Dr Easty did not check it. In any case, against the evidence of Nurse Muirhead's, Nurse Muirhead did write in the contemporary drug notes that 50 units were administered, albeit relying, she says, on what Dr Easty had written. But that itself gives rise to the question, would Nurse Muirhead have written in 50, so relying on what the doctor had said or done, if she, with her own eyes, had seen something other than 50 actually administered? Mrs Kumi says that she was happy she had given only 30 units and not 50. They were the only three direct witnesses on the subject. Again, the tribunal's criticism read literally is not that the question of whether 50 or 30 units had been administered was inadequately examined but rather that Dr Easty's written statement failed to explain how she knew 50 had been administered. As a complaint that has no weight at all. Dr Easty's statement shows that she saw the administration of the insulin; she did not need to explain further in writing what her reason was for the view she took. If the disciplinary hearing had failed to look beyond that they could, no doubt, have been criticised, but they took oral evidence from all three bystanders. This, again, is a complaint by the tribunal of the disciplinary hearing which is, in our view, totally without foundation. Were 50 or 30 units in fact administered?[35]What the tribunal says as to that is this:
"(3) A failure to consider properly if the dose administered was 50 or 30 and to reach an informed conclusion as to which was correct so that the seriousness of the alteration could be properly evaluated."
This criticism misses the point. There is a known procedure for the alteration of patient's notes. A sister is not entitled simply to strike out one figure and write another. If it later becomes necessary to reconstruct what has been written and what has been done the adherence to some strict procedure is obviously crucial. As it was, the doctor's notes said 50 units and the patient's notes said 30. As there was a drug administration error (as whether 50 or 30 units had been administered, the true intent had only been to give 20) questions as to whether the error had been promptly enough reported and whether the alteration 50 to 30 had been duly authorised and recorded arose. The seriousness of the complaint against Mrs Kumi did not depend on whether 50 or 30 had been administered but was that the strict procedure for alteration of notes and the reporting of errors had been broken. The charge against her, now looking at the beginning of the notes of the disciplinary hearing, was "Kumi changed notes. Kumi failed to date and sign." Indeed, Mrs Kumi admitted the alteration was an error. The tribunal records:
"9 … She admits that she should not have altered the notes but there should have been a striking through and a re-writing to indicate what had happened. One had to bear in mind what is not clear from the photographic copies but is clear from the original which we saw that there has been no attempt to disguise the alteration. The figure of 30 was written over the figure of 50 in red ink and was immediately apparent. We can only regard this as a breach of procedure and not as any attempt to conceal what had really happened. …"
Whether 50 or 30 units had been administered may go to the medical consequences of the error, but the error, if there was one, was the same whether it was 50 or 30 units that had been administered. Here the disciplinary hearing is thus being criticised for failing to come to a conclusion which was not necessary for its purposes. This third main criticism of the disciplinary hearing is, in our view, not justified. Why did three doctors arrive?[36]This criticism is framed at paragraph 12(4):
"(4) A failure properly to investigate why three doctors arrived. What evidence was there that it was a normal ward round? Why did Dr Easty question the Applicant's giving of insulin when some insulin had been prescribed? However, Mrs Kumi, by her Counsel Miss Bevitt, accepts that the Trust's evidence from the outset was that the doctors were already on the ward prior to Mrs Kumi loading the syringes with insulin. It was also the case that the tribunal was referred to relevant passages of that evidence and that Nurse Muirhead confirmed the presence of the three doctors. It is also accepted on Mrs Kumi's behalf that there had been no suggestion whatsoever at the disciplinary hearing itself that the presence of the three doctors was a mystery that needed explaining or that it had any correlation with a sudden scare that too much insulin had been or might have been administered. In particular, Dr Easty was unchallenged at the disciplinary hearing in her assertion that she was already on the ward, making a ward round. Miss Bevitt concedes that paragraph 12(4) as to its first two sentences has no foundation at all. As we mentioned earlier, if the three doctors were already present on the ward the issue also relates to the Mrs Kumi's credibility. If, as was the whole body of evidence on the Trust's part given at the tribunal, the doctors were already present, why did Mrs Kumi bleep a duty doctor out of the ward if three of them were available there on the ward? Moreover, the latter part of the criticism: "
Why did Dr Easty question the Applicant's giving of insulin when some insulin had been prescribed" can only be described as wholly misconceived given that Mrs Kumi's own case was not that the administration of some insulin was questioned but that what was questioned was the quantity. Mrs Kumi's statement said that Dr Easty had said "Sister, how much is that?" This fourth main criticism of the disciplinary hearing is, in our view, unjustified in both its branches. Late reporting of the drug error[37]The complaint of the tribunal is as follows:
"(5) A failure to consider the circumstances surrounding the late reporting of the drug error bearing in mind the doctors knew of it and had corrected it."
The tribunal does not identify what it was that should, in its view, have been investigated but was not. It is not clear that the late reporting was one of Ms McWilliam's original complaints. It was not mentioned in her summary of the charges at the beginning of the disciplinary hearing. But Nurse Muirhead gave evidence on the point, Sister Chaston gave evidence and Ms McWilliam added the complaint (see page 55 and 56) and Mrs Kumi gave evidence on the subject (page 64). The tribunal dealt with the point as follows:
"10 … The Applicant says and it appears to be accepted that she did not report this till 4.00 am. Her explanation is that everybody knew what had happened the doctors were in charge and had corrected any error which there might have been and therefore there was no necessity for an immediate reporting of the drug error. Equally she says that she did not see Sister Chaston until 4.00 am that morning and was not aware there had been earlier visits by Sister Chaston to the ward. The ward appears to have been extremely busy with only the Applicant and Enrolled Nurse Muirhead in charge of it. Further investigations out to have been made in this position to see what opportunity there was having regard to the question of proper treatment of patients for the Applicant actually to see Sister Chaston at an earlier time than 4.00 am. …"
On Mrs Kumi's evidence Sister Chaston was aware of the error by about 4.15 a.m.. Mrs Kumi said that she had not known that Sister Chaston had visited the ward at about 2 a.m.. She also gave evidence that the ward was busy that night with five patients seriously ill and that there had only been two nurses on the ward. It is not clear how far the disciplinary hearing regarded this as a failure of any real weight against Mrs Kumi. It was not mentioned in their final summary. In those circumstances it is difficult to see that the disciplinary hearing's failure to enquire further was serious shortcoming, but in our view, the tribunal's conclusion on this point cannot be described, as Mr Jones would have us accept, as perverse.[38]Summing up this catalogue of what the tribunal described at the beginning of their paragraph 12 as "areas of failure" and, at the end, as "serious deficiencies", five or six at least were, in our judgment, wholly without foundation. They were matters that could not be described as serious shortcomings in the disciplinary hearing's processes and enquiries, even granted, as we readily grant, that it is for the tribunal to find the facts. We do not say that a tribunal cannot in a proper case and in appropriate surrounding circumstances infer racial discrimination from there having been serious deficiencies in a disciplinary process but where that is embarked upon two things need to be borne in mind. Finally, disciplinary hearings do not have the benefit of careful analysis by trained lawyers or investigators. There will often be points overlooked, even when every participant is straining to be fair and full. Of course, sometimes an omission in the areas investigated is so glaring that it readily becomes material for an inference that there was no intent clearly to enquire into matters in the employee's defence. But here the enquiry was lengthy, it was noted up at length, very often, as it would seem, verbatim. Both oral and written evidence was laid before it. There was no complaint of bias at the time. There was a full ability in the employee's own representative to raise questions and the matter was not hastily conducted after the incident concerned. It cannot be fairly be said to have been obviously inadequate as such shortcomings as the tribunal later identified and relied upon were none of them so obvious that the trade union representative at the time suggested that they were shortcomings which should have been remedied there and then. Secondly, the question, so far as the question of racial discrimination was concerned, was whether the identified defects were of a seriousness and of such a character as to found an inference not of unintelligence or incompetence but that there must, on racial grounds, have been some less favourable treatment of Mrs Kumi. If our analysis of the tribunal's criticisms of the conduct of the disciplinary hearing is correct, then the position is, in our judgment, that no tribunal properly instructing itself (and therefore paying due regard to the business conducted at the disciplinary hearing) could fairly have levelled all the five main headings of criticism of the disciplinary hearing which are set out by the tribunal in its paragraph 12, several parts of which have, as we have shown, no foundation at all.[39]Where does that lead? As we have said, in appropriate surrounding circumstances inference can fairly be drawn. The drawing of inferences is the tribunal's own business. But if it does draw inferences it must be quite sure that the facts on which the inferences are based are truly available to it. Here, as we have shown, many have no foundation at all. The tribunal does not identify some only of its list of alleged serious deficiencies as themselves sufficing to lead to their conclusion. It does not identify some order of precedence between its given reasons, with some being weighted more heavily than others. At the outset they say "in particular" which suggests that there were yet other factors that it had relied on but which are not stated. On the face of things, what they relied on for their conclusion was the whole catalogue, in aggregate. Yet that whole aggregate was not available to them. Nor can it be said that the ones which we have eliminated were plainly, in the tribunal's view, trivial. To have relied on matters that were not there to be relied on is an error of law.[40]We can and do set aside the tribunal's conclusion that there was here racial discrimination. But, of course, we are unable to say what, if any, inferences the tribunal could or should properly have drawn if it had relied only upon what was there to be relied upon. For us to do that would entirely be speculation on our part. With considerable misgivings we therefore decide that the racial discrimination aspect of the complaint has to be remitted to a fresh tribunal. We have misgivings because of the long passage of time that has already passed since November 1992. However, both sides assure us that a fair hearing of the questions that need to be answered could still be arranged. The delay has not been the Trust's fault or Mrs Kumi's fault. It would be unfair to deny a remission, otherwise appropriate, on the ground of delay which was the fault of neither party.[41]On racial discrimination we add only this. Mr Jones emphasises the inconsistency between two passages in the tribunal's reasoning. On page 19 of our bundle, the tribunal say:
"13 … We would not dispute that if the matter had been investigated properly and a conclusion had been reached on a sufficiency of evidence that it was the Applicant who was responsible for these matters then summary dismissal for gross misconduct would be justified. …"
The tribunal say at paragraph 14:
"… We would find in respect of the penalty imposed even if we are wrong as to the sufficiency of the employer's investigations that this was so far outside what a reasonable employer could do as to call into question the motives of the Respondents in doing it."
Miss Bevitt accepts that that is an inconsistency. We add only that it does nothing to bolster the soundness of the tribunal's conclusion on racial discrimination.[42]We now turn to the case of unfair dismissal, it being of the constructive dismissal kind. The tribunal relied not on the earlier drug incident of November 1992 but on later events. In paragraph 17 they say:
"We then go on to consider the question of constructive dismissal which turns on what happened after the disciplinary hearing after which the Applicant was ill."
[43]Mrs Kumi was away sick. The tribunal held that she had proper medical certificates down to 1st March 1993 and that she had submitted them. They say this:
"17 … We find on the evidence on this point first that the Applicant had proper medical certificates up to two weeks from 1 March 1993 and had submitted these. Secondly we find that where a nurse is off sick she is not expected to telephone on the expiry of her medical certificate except when she intend to inform the Respondents that she is going to resume work. She is not expected to telephone the Respondents to say that she will continue off work when in the course of the next few days she intends to submit a medical certificate showing that she is still sick. Consequently there was no need for the Applicant to telephone the Respondents indicating that she was still off work because of illness and this is the finding we make from an interpretation of the sickness/absence procedure and the evidence. The Respondents should have assumed that unless they heard from the Applicant that she would not be returning to work but would be sending a further certificate. …"
[44]However, on 18th February 1993 Mr Boakes wrote a letter to her at her home telling her that a preliminary investigation was to take place. As to that, the tribunal said this:
"We also find the letter of 18 February written by Mr Boakes is an unnecessarily harsh letter particularly having regard to the fact that the Applicant was not in breach of the obligation to produce medical certificates for periods of illness. To threaten disciplinary proceedings in the circumstances was in our view quite unnecessary. It can in our view only have been influenced by the fact that Mr Boakes having imposed the disciplinary penalty earlier felt that any further infringement of any regulation in any way by the Applicant would lead to her dismissal without properly considering the circumstances."
The tribunal went on:
"Our view is that the whole attitude of Mr Boakes towards this matter both in relation to the inadequacy of his investigations into what had actually occurred and in relation to his attitude towards the Applicant who had properly certificated sickness amounts to a fundamental breach of contract. He has in our view broken the relationship of mutual trust and confidence which ought to exist between an employer and employee. Consequently we find that that Applicant's resignation is a dismissal caused by the Respondents' fundamental breach of contract and that the dismissal flowing from that fundamental breach of contract is unfair and consequently the Applicant has been unfairly dismissed."
[45]Mr Jones draws our attention to the fact that before Mr Boakes wrote his letter of 18th February 1993 to Mrs Kumi there had been two separate reports to him by responsible officers of Mrs Kumi's failure to attend. Thus the tribunal held that on 1st February 1993 Miss Broomfield, the Night Service Co-ordinator, had reported that Mrs Kumi had not turned up, despite being expected, and, on 17th February 1993, Night Sister Fortune reported that she had heard nothing from Mrs Kumi and that there was no sickness certificate to explain her absence. That last position was held later by the Employment Tribunal not to be the case but that was the position as it had been reported to Mr Boakes. In such circumstances Mrs Kumi in her evidence herself accepted that Mr Boakes was entitled to investigate. Mr Boakes, therefore, did two things. First of all he wrote the letter of 18th February, which needs to be read in full:
"Dear Mrs Kumi I am writing to inform you that a preliminary investigation is taking place regarding your apparent failure to follow absence reporting procedures since you were scheduled to return to duty on 18th January 1993. I will confirm the action to be taken regarding this matter as soon as possible. I must point out however, that this may lead to further disciplinary action being taken against you which could result in your dismissal from the North Middlesex Hospital Trust."
Mr Boakes signs it as "Director of Administration and Operations".[46]The complaint is that that was a harsh response. Mr Jones points out, correctly in our view, that the "preliminary investigation" in that first paragraph is just that, namely 'preliminary' and not 'disciplinary' and that even Mrs Kumi accepted at the tribunal that he was entitled to investigate. Miss Bevitt, hearing that, switches to a complaint that the reference in the second paragraph to "further disciplinary action" was hostile and threatening. But it is a good practice, when an investigation is about to begin, to warn the employee where it might to lead and it is a familiar complaint, where that has not been done, for the employee to complain that he had not realised and should have been told that matters were being taken seriously and that his job could be on the line. We are quite unable to regard the letter of 18th February 1993 as other than one which, in the circumstances, Mr Boakes was able properly to write in order to begin to find the facts behind Miss Broomfield's and Sister Fortune's reports. It can hardly have been wrong, says Mr Jones, for Mr Boakes to seek to find the facts behind those reports. Nor was the letter a threat of disciplinary proceedings in any unfair sense. For the tribunal to have regarded its sending as a significant part of a fundamental breach of contract by the Trust, is not, in our judgment, a permissible option. That was not a view which a tribunal properly instructing itself could have taken.[47]We did say that Mr Boakes did two things. The other was to nominate someone other than himself, Ms Grabarz, as the person to conduct the preliminary investigation of which the letter had spoken. The investigation was aborted upon Mrs Kumi's resignation. But Mr Boakes' transfer of it to Ms Grabarz, not mentioned by the tribunal, is accepted by Miss Bevitt as having been given in evidence and was inconsistent with the tribunal's view that Mr Boakes was of a mind that any further infringement by Mrs Kumi would lead to her dismissal "without properly considering the circumstances".[48]Another major point Mr Jones takes as to unfair dismissal is this. The tribunal held:
"17 … The Applicant resigned by a letter dated 1 February 1993 but not received apparently by the Respondents until 22 February. It seems that the Applicant incorrectly dated the letter 1 February. She actually wrote twice the first saying that she was resigning and the second dated 22 February which was in response to Mr Boakes letter of 18 February pointing out that she felt she had been victimised and that her resignation was what the night nursing management expected. …"
[49]Mrs Kumi's letter dated 1st February 1993, on the face of it, says this:
"Dear Mr Boakes I am resigning my post as from 28th February 1993 as I am not fit healthwise to resume work. Yours sincerely, Mrs E P Kumi"
There is no finding by the tribunal that that resignation was in response to Mr Boakes' letter of 18th February 1993. Nor is there anything in the letter which shows that it was. The letter specifies a quite different ground to the one asserted in support of constructive dismissal. Indeed, it asserts a ground, namely, unfitness on medical lines, inconsistent (absent further explanation) with the allegation of constructive dismissal.[50]Mrs Kumi wrote a second letter dated 22nd February 1993 which the tribunal held was in response to Mr Boakes' letter. But the best indications are that before the Trust received that second letter Mrs Kumi had already resigned by way of the first letter, for her stated reasons unrelated to Mr Boakes' letter.[51]The holding for unfair dismissal cannot stand. The necessary causal connection between the resignation on the one hand and the events relied upon the employee as amounting to a repudiatory breach of a fundamental kind was never found by the tribunal and the events relied on, in any case, could not fairly be regarded as amounting to such a breach.[52]Finally, the tribunal held that there was some racial component in the constructive dismissal. On the last page of their decision they say:
"We also find that racial considerations entered into the approach of Mr Boakes and others to the Applicant's sickness absence because we can find no reason why she should have been treated as she was."
That racial component is totally unexplained. Whilst there had been some comparisons drawn in the evidence between how Mrs Kumi's sickness absence had been treated and how the absence of others was treated, there was no analysis in the evidence of those comparisons so as to break them down into racial components. Miss Bevitt accepts that that was the case. If that last citation from the tribunal's ruling was intended to represent a finding of racial discrimination - and that seems to be the case to judge from the tribunal's decision on their very front page - then it, too, has not basis in the evidence. Accordingly, firstly, we remit the issue of racial discrimination to a fresh tribunal; secondly, we set aside the finding of unfair dismissal; but, thirdly, we do not remit the issue of unfair dismissal.