2 CARE v MISS L ABABIO [1999] UKEAT 737_99_2010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [1999] UKEAT 737_99_2010Case No Appeal No. EAT/737/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
2 CAREAPPELLANTMISS L ABABIORESPONDENT
Before
Mr Justice LindsaySir Gavin LairdDate 20 October 1999
[1]APPEARANCES For the Appellants MR P B DEAN (of Counsel) Messrs Thomas Cooper & Stibbard Ibex House 42-47 Minories London EC3N 1HA MR JUSTICE LINDSAY (PRESIDENT) : We have before us by way of a preliminary hearing the appeal by 2 Care in the matter of Ababio against 2 Care. The decision that is under appeal was the result of a two-day hearing in March and April 1999. The decision was sent to the parties on 4 May. It was a decision of the Tribunal at London (North) under the chairmanship of Mr Flint and the unanimous decision of the Tribunal was that:
"The Applicant [Miss Ababio] was unfairly dismissed. Dismissal for gross misconduct was consequently not justified and the Applicant is entitled to five weeks' pay in lieu of notice. Liberty to apply is given for a hearing on remedies if the parties cannot agree this."
[2]2 Care is a charity which runs homes for the elderly. It is an area of endeavour notorious for inadequate treatment or worse being meted out by supposed carers to those who are often physically or mentally infirm or unable adequately to respond. So it is, in other words, an area in which, quite apart from ordinary considerations of kindness and decency, one can expect an employer who wishes to preserve his reputation and his business to take very seriously indeed complaints as to the maltreatment of patients by staff. So one can expect, if such an accusation is made, a prompt and serious response from the employer.[3]A complaint was made here by a temporary care worker, a Ms Dubarry. She was not an employee of 2 Care in any permanent sense and the complaint was that Miss Ababio had mistreated two patients. Miss Ababio was suspended; written statements were taken from the duty manager and from others of the staff. A written statement was taken from the "whistle-blower", (so to speak), Ms Dubarry, but she expressed great reluctance to come forward to give evidence at any hearing.[4]A disciplinary hearing was arranged but it proved quite impossible to procure Ms Dubarry's attendance. She was by then not an employee of 2 Care, if she ever had been (I think she had been procured by way of an agency in the first place but she certainly was not an employee by the time the request was made for her to attend). The incident had been reported to the police and they, too, could not contact Ms Dubarry. So what was 2 Care to do? Could it simply take the view that it could proceed no further because of Ms Dubarry's absence? One can see that that led to risk in the sense that, were there to be a later complaint about Miss Ababio and were it to be serious, they could be in real trouble for not having enquired further on the earlier complaint. Or should they go ahead on the basis of Ms Dubarry's statement? One can see the difficulties in that because, depending on what other evidence could be gleaned, the case would plainly be weakened if the chief complainer was not there to be examined-in-chief and cross examined and so on. Anyhow, the decision made by 2 Care (and I do not think the decision can be criticised) was to go ahead with a disciplinary hearing.[5]Mr Lewis, the deputy chief executive of 2 Care, conducted that disciplinary hearing. Miss Ababio was dismissed, the given reason being, as the Employment Tribunal held, alleged gross misconduct. Miss Ababio then appealed; there was an internal appeal to Ms O'Sullivan, the Chief Executive of 2 Care and the appeal was dismissed and hence the dismissal was upheld and on 11 November 1998 Ms Ababio lodged her IT1 for unfair dismissal.[6]On 23 February 1999 she comprehensively amended her complaint to include an allegation that the true reason for her dismissal was not misconduct but was her on-going medical condition, without spelling out quite what that was said to be. At the Employment Tribunal itself she was permitted to add a complaint of wrongful dismissal. The Employment Tribunal held the dismissal was both unfair and wrongful and 2 Care now appeals.[7]We have been greatly assisted by Mr Dean, addressing us on behalf of 2 Care, and we also have a skeleton argument provided by him or his instructing Solicitors. The grounds of appeal and the skeleton march well together. An early point taken in the skeleton argument is that the Tribunal wrongly put the burden, or a burden, upon the employer. This is an argument that depends on a passage at paragraph 2, page 8 of our papers; this passage in the Tribunal's decision reads:- "She was dismissed, according to the Respondents, because she had ill-treated two patients in the manner alleged in the Notice of Appearance. Clearly, if the Respondents were able to establish that they had reasonable grounds for believing that the Applicant had acted in this way, then dismissal for gross misconduct would be entirely justified. The Respondents are a registered charity engaged in caring for the elderly, and mentally disturbed patients."[8]Mr Dean argues that that puts the burden on the employer to establish reasonable grounds, whereas truly, he says, the matter should be approached in a neutral way, in other words, simply raising the question "Were there reasonable grounds" without regarding it as a matter for onus on one side or another. There is no doubt that in point of law a neutral approach is nowadays the proper approach. Now, of course, taken literally, in saying "If the employer established reasonable grounds for a belief that Miss Ababio had ill-treated two patients, her dismissal would have been justified", the Tribunal was, as such, without fault. That was indeed the case. But if the Tribunal had thought that that was a necessary precondition, a sine qua non of Miss Ababio's dismissal for misconduct, then the Tribunal would have erred in law. Was the Tribunal in effect saying "If, as is required of them, the Respondents were able to establish such and such" or were they in effect saying "If the Respondents were able to establish such and such" or "If such and such were otherwise to appear, then so and so". Which of those is what they are truly saying? The former would be error of law and the latter would not. There is there just the possibility of an arguable point of law and we will need to return to that later.[9]The next point taken in Mr Dean's useful skeleton is the reason for the dismissal. The Employment Tribunal, says Mr Dean, failed to determine what was the reason for the dismissal. I am far from sure that that is the case. The Employment Tribunal says in paragraph 4:
"On 21 August [he] dismissed the Applicant for gross misconduct."
And the dismissal was found to be unfair as a dismissal for gross misconduct. What is said on page 11, paragraph 8, is this:
"8. To sum up, therefore, we are not satisfied that the Respondents ever carried out sufficient investigations from which they could reasonably come to the conclusion that the Applicant was guilty of misconduct in the treatment of both patients or either of them, and further we find the whole disciplinary process to be unsatisfactory for the reasons stated in this decision. Consequently, we find that the dismissal was unfair. This finding leads inevitably to the conclusion that the dismissal of the Applicant for gross misconduct cannot be justified and is therefore wrongful .. ."
And in the passage that we cited from the very decision itself "dismissal for gross misconduct was consequently not justified".[10]So the dismissal was found to be unfair, regarding it as having been attempted to be a dismissal for gross misconduct and, indeed, the grounds of resistance on 2 Care's part, which we have at page 23, say, at paragraph 2, "The Applicant was dismissed for gross misconduct". If Miss Ababio had urged that she had truly been dismissed for some medical reason it looks as if she may have been disbelieved on that, in the sense that misconduct was taken to have been the ground shown by the employer, but we do not see it to be some failure on the part of the Employment Tribunal to have been no more explicit than they were in describing the kind of dismissal that they were considering. The Employment Tribunal assessed the evidence and concluded that gross misconduct was the alleged reason for the dismissal and was the reason shown for the dismissal. It is perhaps desirable, but it certainly is not incumbent upon a tribunal, to say more than that. We cannot find any error of law (and one might emphasise "of law") in that passage on which Mr Dean relies or in that shortcoming which he asserts.[11]The next heading in his argument is fairly to be called "Genuine Belief". There is a reference to the text in the well-known Burchell case. The Burchell test, says Mr Dean, requires a tribunal to establish whether the employer has a genuine belief in the event of misconduct and in their amounting to misconduct, and, he urges, there was no finding here that there either was such a belief or, indeed, was not such a belief. It is a subject which, he says, the Tribunal must have been required to come to a conclusion upon but on which no conclusion is given. The Burchell test will very frequently, but does not necessarily, require a finding as to the employer's belief. It is a test that has two or three components and if, for example, there is no reasonable investigation then the Burchell test would be failed whether or not there was a genuine belief that subsisted in the employer's mind of there having been misconduct. One can easily get to a position, therefore, in which the Burchell test is failed by reason of there being no reasonable investigation and that therefore the other elements of the Burchell test do not need to be examined into because it is that sort of test where all parts of it need to be satisfied if it is to be satisfied at all. This appears to have been the Employment Tribunal's reaction to this part of the argument. We do not feel able to spot any error of law in the Tribunal's failing to hold as to whether or not there was a genuine belief on the employer's part that there had been misconduct because in this particular case they found that the Burchell test was not satisfied for another reason, namely that there was no reasonable investigation.[12]The next heading of the argument could be headed "Guidelines". The employer here was, as we accept and as the Employment Tribunal appeared to accept, in a difficult position and Mr Dean urges that the employer did its best to follow as far as possible the guidelines given in Linfood Cash & Carry Ltd v Thomson & Another [1989] IRLR 235. Linfood was in fact dealing with a rather different type of case. The informant in that case was able to give information to, and to be contacted by, the employer or the person conducting the disciplinary investigation, but did not wish to be identified to the employee because he feared some physical retribution. Stage 6 of the Linfood guidelines provides that, if a disciplinary hearing was to go ahead, then the officer conducting it should himself interview the informant. Well that, of course, was not possible here; Ms Dubarry was identified but could not be found. To a large extent therefore the Linfood guidelines were dealing with a different type of case and we see no error of law in the Tribunal's failure expressly to mention the case. It is not as if the Tribunal held that the Linfood guidelines had been broken or that it was to be held against 2 Care that they had. They put the Linfood case, as it would seem, on the sidelines and, given that it was a different kind of case, it cannot have been an error of law to treat it in that way.[13]The next heading is "Perversity" and the grounds of appeal in their paragraphs 11 to 18 set out the Appellant's argument as to perversity. It is, of course, very familiar to those operating in this area of the law to hear just how difficult it is to prove a case in perversity. It is of no avail to the Appellant for the Appellant to suggest that most Employment Tribunals would have decided other than this one did or even to convince us that we would not have decided the matter had it been in front of us in the way that this Tribunal did. The Appellant has to show that no Employment Tribunal properly directing itself could have come to the conclusion to which this one came and that is, of course, a very stern burden indeed.[14]A principal complaint set out in the grounds of appeal and reiterated in the skeleton argument and in the oral argument from Mr Dean is best found at paragraph 18 of the grounds of appeal and it says:
"The ET was not satisfied with the quality of the investigation but does not identify any deficiency in it."
Well, in fact, the Tribunal did find deficiencies in the conduct of the disciplinary hearing. It was conducted by Mr Lewis and they say in their paragraph 7:
"We were not impressed by Mr Lewis's attitude. He struck us as a person who had made up his mind, mainly we feel on the remarks which had been made to him by Ms Fullalove, that the Applicant must be guilty, and who consequently conducted the disciplinary hearing on the assumption that this was so and that he was simply going through the matter in a somewhat mechanical way in order to justify his belief that the Applicant was guilty."
And a little later, speaking of the appeals machinery to Ms O'Sullivan, they said this:
"We are also critical of the attitude of Ms O'Sullivan. She gave to us the impression that, having arrived back from holiday with a large amount of work to be attended to, she could not really give enough time and consideration to the question of the Applicant's disciplinary appeal. We think that this was dealt with in a peremptory way on the grounds that whatever Mr Lewis had decided must be right and that no serious consideration was given to what it is clear from the documents was a difficult matter and which should have received a great deal of consideration before a conclusion was arrived at."
[15]It was, of course, for the Tribunal itself to assess the import of the evidence which they heard and they are entitled to come to a view on that evidence. There is no necessary error of law in the conclusions expressed in the passages which we have just read. They took an unfavourable view of Mr Lewis and Ms O'Sullivan in their conduct of their respective roles at the disciplinary stage and it was, of course, part of their task to assess that and there is no error of law, as it seems to us, in the assessment to which they arrived. True it is that some of the comments of the Tribunal do seem to have no adequate base. For example, in the top of their paragraph 7 they say:
"Similarly, we were not satisfied with the attitude of Mr Lewis. The letters which he wrote to the parties, which will be found at pages … indicate a difference in attitude. The letter asking Ms Dubarry to attend is very different from the letter addressed to Ms Hill, the other witness who gave evidence at the disciplinary hearing and the letter which he wrote to the Applicant requiring her attendance. "
[16]We can quite see, for our part that there may very well need to be a difference in tone between a letter written to a non-employee, a crucial witness whom it was sought to coax to the hearing, on the one hand, and a letter to an existing employee who could be told or instructed to attend, on the other. So that is a point which we would not care to put great reliance upon. But perversity is not established by highlighting really minor doubts or errors such as that or, indeed, such as the absence of a detailed reckoning of the chronology which Mr Dean relies upon. If we ask whether the conclusion this Tribunal came to was a permissible option we cannot say it was not and the perversity argument therefore is not to go further forward. We detect no arguable point of law in it.[17]That leaves therefore the case of the possible burden of proof point to which we referred earlier. If the position is, as indeed it is, that the statement by the Tribunal is literally true but is ambiguous in its effect, in that it may, or may not, have had the effect of the Tribunal requiring or relying on the wrong onus of proof, two questions, it seems to us, arise. Firstly, should not an experienced tribunal be given the benefit of the doubt and be taken to have in fact had the correct neutrality on the issue in mind, especially since authority on the point showing the requirement of neutrality was actually drawn to their attention in Counsel's closing submissions? Secondly, is there anything in the decision at any other point which showed them plainly to be employing the wrong onus of proof. It seems to us that the answer to those questions can only be 'Yes' to the former and 'No' to the latter and, indeed, Mr Dean does not identify any particular other part of the decision which indicates an espousal of the wrong burden of proof. There was here a possible arguable point but, given the considerations to which we have referred, we find that, when more closely examined, there is no substantial point of law that has any arguable prospect of success.[18]All in all, therefore, although it must be recognised that the charity 2 Care had a very difficult task in front of it, we cannot find error of law in the conclusion to which this Tribunal arrived and accordingly we must dismiss the appeal even at the preliminary stage.