MR O O AKINBILE v SOUTH LONDON FAMILY HOUSING ASSOCIATION [2000] UKEAT 36_00_2011

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2000] UKEAT 36_00_2011Case No Appeal No. EAT/36/00Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR O O AKINBILEAPPELLANTSOUTH LONDON FAMILY HOUSING ASSOCIATIONRESPONDENT
Before
Mr Recorder BurkeDate 20 November 2000
[1]APPEARANCES For the Appellant IN PERSON For the Respondent MS GOWER (of Counsel) Instructed by: Messrs Trowers & Hamlins Solicitors Sceptre Court 40 Tower Hill London EC3N 4DX MR RECORDER BURKE QC Until his dismissal in April of 1998 Mr Akinbile was employed by the Respondents who, are as their name suggests a charitable housing association, as a Primary Nurse at their care home in South London.[2]He had been continuously employed since 1980, having been a Staff Nurse at Bexley Hospital before moving to this post and being transferred to the employment of the Respondents in 1996, pursuant to the Transfer of Undertaking Regulations. He was a very experienced senior nurse; he was triple registered, that is to say he was qualified as a general nurse, a mental nurse and a mental handicap nurse.[3]His claim that he had been unfairly dismissed by the Respondents was dismissed by the Employment Tribunal sitting at London South, chaired by Mrs Spencer, in October 1998. The Tribunal's Extended Reasons were sent to the parties in November 1999 after a successful appeal to this Appeal Tribunal against the Chairman's refusal to give Extended Reasons because, in her view, the application had been made out of time.[4]This is now the substantive hearing of Mr Akinbile's appeal against the Tribunal's decision to reject his unfair dismissal claim, for the reasons set out in the Extended Reasons ultimately provided by the Tribunal. Mr Akinbile has represented himself before us today and had given us great assistance by the arguments that he has put forward. The Respondents have been represented by Ms Gower who has been equally helpful; and we are grateful to both.[5]The facts The brief facts are these: on the morning of 29 January 1998 Mr Akinbile was the only senior nurse present at the home and was in charge of the home because the Head was away and the Deputy Head was taking a resident to hospital. Mr Akinbile has pointed out to us today that there is some doubt as to whether it was the Deputy Head's job to take a resident to hospital that morning, but, whether it was or was not, that is what he did. At about 9.45, so the Tribunal found, there having been an issue before the Tribunal as to the precise time at which the events that we are about to describe occurred, while Mr Akinbile was carrying out the morning drugs round, a 95 year old lady resident who, according to the Tribunal's decision, suffered severely from Alzheimer's Disease and, according to Mr Akinbile's information to us this morning, also suffered from a psychiatric illness, fell heavily out of her bed to the floor. This was immediately reported to Mr Akinbile who went straight to the relevant room. By the time he got there, the lady's carers had picked her up from the floor and put her in a wheelchair. She was bleeding from the mouth; she did not appear obviously to be in pain; she was wholly unable to describe whether she was suffering, or if so, where or from what. Mr Akinbile did not carry out a physical examination to see if she had or might have fractured anything. He checked her pulse and respiration and her general condition, and concluded that her condition was satisfactory. He did not take steps to have her X-Rayed, or as the Tribunal expressly found, to call a doctor, although Mr Akinbile today has told us that he did call a doctor; that was also an issue of fact before the Tribunal. He made an entry in the home's book for the visiting GP, who was to visit that day, to see the lady when he came; and the visiting GP did later, in the afternoon, see the lady after Mr Akinbile had handed over to the afternoon shift. We do not know what kind of examination the GP carried out; we do know that he did not discover any fracture. Later that evening, it turned out that the lady had indeed fractured her pelvis; she was taken to hospital where, alas, she subsequently died.[6]On the same day, a pharmacist from the Lambeth Healthcare Trust made a random visit to the home and found some alleged deficiencies in Mr Akinbile's dealing with drugs. However the internal disciplinary proceedings, which followed the events of this day, did not regard those matters as amounting to grounds for dismissal; those matters form no part of the reasons for dismissal; and therefore we will say no more about them.[7]A third allegation against Mr Akinbile was also dismissed by the internal disciplinary process. However, that process reached the conclusion that there had been, as a result of Mr Akinbile's failure to carry out a physical examination of the patient and his failure to call a doctor, gross negligence and that that negligence merited dismissal. Thus the Respondents dismissed him. Mr Akinbile appealed; his appeal was heard by three members of the Respondents' board, who dismissed the appeal, being satisfied that Mr Akinbile had seriously failed to meet the standards required of him in his care for this elderly female resident.[8]The Employment Tribunal Before the Tribunal, Mr Akinbile was represented by Counsel and the Respondents were represented by Ms Gower as they have been today. The facts were investigated in detail. The Tribunal, plainly rightly, concluded that the reason for dismissal was Mr Akinbile's conduct in relation to the female resident. That was, no doubt, not really an issue; and it is clear from its Decision that the Tribunal concentrated, again in our judgment rightly, on the fairness issue, that is to say whether the employers had acted reasonably in treating the conduct as a sufficient reason for dismissal.[9]On that issue the Tribunal in paragraph 34 identified, yet again correctly in our judgment, that the central question was whether the failure to make a physical examination of the lady resident after she had fallen face down from her bed was acceptable nursing practice, and whether, if it was not, the omission was sufficiently serious to justify the dismissal.[10]The Tribunal found as a fact that Mr Akinbile's conduct after the fall was contrary to good nursing practice. Although we feel bound to say that it was, in law, only necessary for them to consider whether the Respondents reasonably believed that it was contrary to such practice, the Tribunal went further and found expressly that it was contrary to such practice. It went on to find that it was reasonable for the employers to view the failure to comply with professional practice extremely seriously, and that, despite the arguments put forward on behalf of Mr Akinbile, the decision to dismiss was not unreasonable.[11]The grounds of appeal Mr Akinbile's Notice of Appeal, which appears to us to be identical to, or not materially different from an Amended Notice of Appeal which was put in after the preliminary hearing of this appeal at this Tribunal, sets out four grounds of appeal which have been supported by Mr Akinbile's Skeleton Argument and by his submissions to us today. The four grounds are as follows: firstly, Mr Akinbile submits that no reasonable Tribunal could have concluded that it was his duty to examine the resident after her fall to any greater extent than he did, and/or that he was, to any substantial degree, negligent in his handling of the situation created by the fall; this is not put solely as a perversity point.[12]When this appeal was before this Tribunal by way of a preliminary hearing earlier this year, it was directed that the Chairman of the Employment Tribunal should provide Notes of Evidence relating to normal practice of nurses in the position which Mr Akinbile found himself on that day, clearly it had been argued that there was no or no sufficient evidence to support the finding that it was professionally expected of Mr Akibile that he would carry out a more thorough examination or take steps to have such an examination carried out.[13]Secondly Mr Akinbile contends that he did not ever accept, contrary to the Tribunal's finding in paragraph 37, that the patient ought to have been further examined by him, and therefore in relying, in part, as the Tribunal did in that paragraph, on such an admission the Tribunal had made a fundamental error - there being no evidence of such an admission.[14]Thirdly, it is argued that the Employment Tribunal expressly found the reason for dismissal to be Mr Akinbile's conduct in paragraph 33, but in paragraph 38, in considering whether the dismissal was fair or not, the Tribunal appears to have treated the case not as one of conduct but as one of capability; and therefore the Tribunal has been inconsistent and perverse. Fourthly, he contends that the Tribunal applied the range of reasonable responses test in determining whether the dismissal was, on the facts, when it should not have done.[15]Before us, Mr Akinbile has drawn our attention to other factual points, to which we will come later in this judgment, which could be said to be free-standing criticisms of the decision or could be said to be arguments which go to strengthen his general assertion that the Tribunal's decision was perverse. We will deal with these points in our conclusions on the first ground.[16]We will take the four grounds put forward in support of this appeal in the order in which they appear in the Notice of Appeal. We should draw attention to one further argument which appears in the Skeleton, but not in the Grounds of Appeal themselves, namely that the Tribunal should not have placed reliance upon the three witnesses called on behalf of the Respondents, because they were biased and had played a leading role in the dismissal process. We will deal with that as part of the perversity arguments.[17]The first ground In our judgment it is first necessary to consider whether there was evidence that Mr Akinbile, as a very experienced nurse, should as part of his professional duty have carried out or arranged for the carrying out of a more thorough examination of the resident than he did. Mr Akinbile rightly points out that he was not a doctor and could not reasonably be expected to achieve the standards of a doctor; and he also forcibly points out, with considerable justification, and we have sympathy for the depth of his feelings in this regard, that when a doctor did attend, the doctor did not discover that there was the fracture which eventually took this poor lady to hospital and presumably led to her death. But the issue before the Tribunal was not what standards are expected of a doctor, but what standards were expected of Mr Akinbile in his position as a senior nurse.[18]In paragraph 36 of the decision, the Tribunal set out that Mr Warren, the Respondents' Director of Care and Support and an experienced nurse himself who chaired the first level disciplinary hearing, said that it was Mr Akinbile's duty to carry out a thorough physical examination and if a fracture could thus be eliminated, to send the resident to hospital for an X-Ray.[19]This evidence, said the Tribunal, was supported by Mr Knowles who was Chairman of the appeal stage of the disciplinary process, and although not himself a nurse had a long career in health care. Was there such evidence before the Tribunal? Before looking to see whether there was, it is important perhaps to comment that one might expect to find, in what is no doubt a highly competent and efficient establishment, such as that which the Respondents run, a protocol or document which sets out in terms what is expected of a nurse in circumstances such as this; it is quite clear that there was not such a document, and no such document has been relied upon. We are sure that the Respondents have already noticed this, and if they have not taken steps to rectify the situation, that they will no doubt want to think about whether such steps should be taken; but the absence of a document, although it would of course have made the position much clearer, does not enable us to say that the Tribunal was acting without evidence in reaching the conclusion that it reached.[20]Firstly, Mrs Maranon, the head of the home, gave to Mr Warren's disciplinary hearing, evidence that Mr Akinbile should have carried out a more thorough examination. Mr Warren, we can see from the notes with which we have been provided pursuant to the Order made when this matter was before this Tribunal at the preliminary stage, told the Tribunal that the nursing process required an assessment to rule out complications, and that there had been a clear and obvious failure (to make such an assessment). Asked what should have been done, over and above what was done, he said there should have been:
"a full physical assessment: some signs and symptoms will indicate a fracture. He should have followed procedure and taken her to hospital for an X-Ray."
When asked what he would have done, he said he would have gently tried to get her on to the bed - "Probably there would be an indication of extreme pain. Once on the bed, look for classic signs of fracture; these are rotation and shortening of limbs, swelling, pain, heat." The Tribunal itself asked the question:
"What specifically would you have done?"
Mr Warren said: "I would have taken an impression of her demeanour and an external examination. I would expect a fracture and try to feel the limbs, I would attempt to move her to the bed If no indication of pain I would do a fuller physical examination. If I was not satisfied, I would go to hospital for an X-ray".[21]Mr Knowles gave similar evidence which we need not read out, because it is clear on reading the notes that, despite the absence of anything in writing, the Tribunal had evidence before it from persons, on whom it had to decide whether or not to place reliance, that it was indeed Mr Akinbile's duty to carry out a more comprehensive examination or to have one carried out by somebody else. The Tribunal did consider whether the evidence of the Respondents was reliable in this respect and decided that the evidence of the Respondents was both honest and fair at paragraph 38.[22]It is clear that in some respects Mr Warren was giving his reasons for relying on what Ms Maranon had said to him, and that Mr Knowles was giving his reasons for relying on what Mr Warren had said at the appeal hearing, but nevertheless there was clear evidence before the Tribunal that all three, Ms Maranon, Mr Warren and Mr Knowles, had given it as their own assessment, that Mr Akinbile should have done more to ensure that the patient's physical condition was properly assessed; and the Tribunal, in our judgment, however much they might have come to a different conclusion, (and some other Tribunal might have come to a different conclusion; or we might have come to a different conclusion), cannot be said to have erred in concluding first of all that there was evidence that Mr Akinbile had seriously erred, and secondly in concluding that that evidence was honest and fair.[23]Once it is demonstrated in our judgment, as it is, that there was evidence of a falling short, on the part of Mr Akinbile, of his professional duty, it was clearly open to the Tribunal to conclude that he had so fallen short. It may seem to be somewhat harsh that Mr Akinbile should be criticised for not finding what the GP later failed to find; but it has to be said we know very little about what the GP did or did not do, or indeed what he knew or did not know. And, further, the nub of the case against Mr Akinbile was not that he failed to find the fracture, but that he did not carry out a proper examination at all.[24]No doubt the arguments as to whether there was a departure from proper practice or not were forcibly put to the Tribunal; indeed we can see and have been taken to the passages in the Tribunal's decision, where it sets out the submissions in that respect, put forward by Counsel on behalf of Mr Akinbile. But it was for the Tribunal to assess the evidence; it is not for us to do so. This Appeal Tribunal can only interfere with a finding of fact which is supported by evidence, very rarely, where the finding is so plainly perverse as to pass the tests set out in authorities such as Neal -v- Hereford & Worcester County Council [1986] IRLR 168 and Piggot Brothers -v- Jackson [1991] IRLR 309, in the first case the test being "Good gracious that must be wrong", and in the second case the test being "Was the decision, or was it not, a permissible option". We, with some regret, have no doubt that in this area, the decision of this Tribunal was a permissible option on the facts, however harsh it may seem, and that it was not one which causes us to react as strongly as it is necessary to react for there to be a perversity argument which can be sustained.[25]We turn to the other arguments on perversity which have been put forward. First of all, Mr Akinbile seeks to persuade us that the three witnesses who gave evidence to the Tribunal, or certainly Mr Warren and Mr Knowles; (we are not sure whether Ms Maranon actually gave evidence, or whether her account of what she had given in evidence to the disciplinary process was put before the Tribunal), were not independent. As we have said, Ms Maranon was the head of the home; Mr Warren chaired the disciplinary hearing but presented the Respondents' case to the hearing; and Mr Knowles chaired the appeal hearing, and was himself a member of the Respondents' Board. However it is entirely normal for a member of an employer's management to present the employer's case at a disciplinary hearing, and at an appeal hearing; and it is equally normal for those who adjudicate at such hearings to be members of the employer's management or of the Board.[26]It is equally normal for the decision makers at the two stages of the disciplinary process to give evidence to the Tribunal as to why they reached the decisions that they did and as to the basis of the evidence on which they acted. Of course, because they come from within the Respondents' own organisation, the Tribunal has to assess such evidence very carefully; but in our judgment, the Tribunal did so in this case. The one slightly unusual feature about the witnesses is that Mr Warren both chaired the initial disciplinary hearing and then became the presenter of the employer's case to the appeal hearing; but that is not altogether unknown, and it is not something which renders the decision of the Tribunal, or for that matter of the employer, bad in law. The Tribunal were aware of the point, expressly looked at the point and decided that both Mr Warren and Mr Knowles impressed them as being witnesses who were honest and fair; and that conclusion in our judgment disposes of the point which is made.[27]Mr Akinbile has today pointed out to us that he did phone the surgery; and he did so, he claims, as soon as the incident occurred, without any real delay, because it was for the doctor and not for him, as he tells us today, to make an examination. He says that the document which records phone calls made from the home, which shows that a call or calls were made to the doctor before 9.45 has been tampered with, and that the accident actually occurred earlier and therefore those entries which are shown as phone call or calls to the doctor's surgery, well before 9.45, either do relate or could relate to the incident involving this unfortunate resident. The difficulty with that submission is that the Tribunal, having had this dispute of fact canvassed before them, made an express finding of fact that the accident had happened at 9.45. They may well have been assisted in coming to that finding, although they do not actually say so, by the existence on page 68 of our bundle of an accident report form, signed by Mr Akinbile which actually has the time of 9.45 as the time for the accident upon it. It is not open to us in this Tribunal to go behind that finding of fact. It cannot be said that there was no evidence to support it; and thus the timing of the accident does not provide Mr Akinbile with any ground of appeal which persuades us that the Tribunal erred in law.[28]The second ground . The next ground of appeal is that there was no evidence before the Tribunal to support their finding that Mr Akinbile had himself accepted, during the disciplinary process or in his evidence to the Tribunal itself, that it would be normal practice to do a physical examination after a fall, but that he had not done so. If he did say that, that presents a very different picture from that which he has put to us, namely that he did not carry out any examination because it was not his duty at all, only a doctor could do it.[29]The notes, at page 67 of our bundle, show that, at the first stage of the disciplinary process, chaired by Mr Warren, Mr Akinbile had been asked what he thought were his responsibilities in the situation; and the notes give this as his answer:
"Mr Akinbile said that it depended on the situation. He said that when a resident fell they would not necessarily break anything that he would first make sure that they had not broken any bones and that their legs were alright. He said he would then ask for help to lift the resident. He said if they were mobile he would get them to walk a little. He said that if the resident was limping he would then be aware that the resident had sustained an injury. He said if the resident was in a chair you could only observe with the eyes."
That note seems to indicate that Mr Akinbile was saying, as the Tribunal said he was saying, during the course of the disciplinary process, that the reason that he had not carried out a full examination, as the Tribunal held that he should have done, was not that it was only a doctor who could and should do so, but that the resident was in a wheelchair. The Tribunal considered that explanation and rejected it, as they were entitled to do, as indeed had the employers.[30]But there is other evidence that Mr Akinbile had, during the course of the disciplinary process, given the account described by the Tribunal. Mr Warren, as recorded at paragraph 26 of the notes provided by the Chairman, told the Tribunal that Mr Akinbile had said to Ms Maranon that if there was a fall, then depending on the situation, he would make sure that no bones were broken. Mr Knowles, at paragraph 55 of those notes, describes Mr Akinbile as saying that he did not examine the resident because she had already been moved. Plainly there was evidence that Mr Akinbile had said, during the disciplinary process, what he is recorded by the Tribunal as having said. There is no evidence that he actually said it within the context of his evidence to the Tribunal itself. It does not appear from the very brief and incomplete note we have of his evidence in chief to the Tribunal that he said the same thing there; and we have no notes of his cross-examination. But that really does not matter, in our judgment; because he had plainly said that in the course of the disciplinary process; and that was sufficient. Therefore this ground of appeal must also be rejected.[31]The third ground The Tribunal found the reason for Mr Akinbile's dismissal was conduct. As we indicated in going through the grounds, Mr Akinbile argues that in paragraph 38 the Tribunal appears to conclude that the employers had reasonable grounds to believe that Mr Akinbile had been incompetent. The argument, therefore, is that the Tribunal have given inconsistent reasons for the dismissal. We do not accept that argument. We do not believe that there was any real issue as to what the reason for dismissal was; the reason for dismissal was plainly conduct.[32]The Tribunal then went on to consider the fairness issue and referred to competence only in the context of the fairness issue. There is nothing to suggest, in our judgment, that the Tribunal had become confused as to whether this was a conduct or a capability case. If the employers reasonably believed that he was guilty of failing to perform his professional duty, then to describe that as an event which gave the employer justification for doubting Mr Akinbile's competence would be entirely accurate. It certainly does not follow that the Tribunal were treating this as a capability rather than a conduct case.[33]Secondly, the factual basis on which the employers decided to dismiss was manifestly Mr Akinbile's failure properly to examine the resident in breach of his professional duty; and clearly the failure to comply with a professional obligation may demonstrate incompetence and, if sufficiently serious, also may be treated as misconduct; - that is the approach that the Tribunal adopted and we can find no fault in it.[34]The fourth ground Lastly, the range of reasonable responses. We do not need to go into this in detail; at the time of the Notice of Appeal, as a result of decisions of this Tribunal, in for instance the cases of Haddon -v- Van Der Bergh Foods [1999] ICR 1150 and Wilson -v- Ethicon [2000] ICR 4, there was for a time the view that the range of reasonable responses test should no longer be regarded as the correct test in assessing the fairness question. However the rocking of long accepted and established principles in those cases has been stabilised by the decision of the Court of Appeal in Foley -v- The Post Office (which may or may not yet be reported, but of which we have a transcript), in which case the Court of Appeal held that the range of reasonable responses test was the right test and should be applied as it had been applied for many years. While we understand, because of the chronology of the development of the law, why this ground of appeal appears in the Notice of Appeal, it is quite clear that, as a matter of law, it cannot succeed, and thus this ground of appeal also fails.[35]Conclusion For those reasons, and with a great deal of sympathy for Mr Akinbile who feels that the decision against him was harsh, not without some reason, we have no doubt that this appeal must be dismissed.