SUSSEX WEALD & DOWNS NHS TRUST v MR M BURGOS [2001] UKEAT 0867_01_3010

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 0867_01_3010Case No Appeal No. EAT/0867/01Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
SUSSEX WEALD & DOWNS NHS TRUSTAPPELLANTMR M BURGOSRESPONDENT
Before
His Honour Judge J R ReidDate 30 October 2001
[1]APPEARANCES For the Appellant MRS L M MILLIN (of Counsel) Messrs Capsticks Solicitors 77- 83 Upper Richmond Road London SW15 2TT HIS HONOUR JUDGE J R REID QC This is the Preliminary Hearing Ex Parte of an appeal by the Sussex Weald & Downs NHS Trust against a decision of an Employment Tribunal held at Brighton in October 2000 and February 2001 with a further day in March 2001, the reserved decision being sent out on 26 June 2001. The case before the Employment Tribunal was a claim by a Mr Burgos that he had been unfairly dismissed from his position as a Staff Nurse on the England Ward at Graylingwell Hospital Chichester. He is a Registered Mental Health Nurse and had been employed by the Respondents since 1971.[2]The dismissal arose as a result of allegations that he had mistreated a patient, and certain other related allegations. The procedure which the NHS have for disciplinary matters provides for a first tier hearing, then an appeal hearing. There is a code of disciplinary policy which has been put before us. Mr Burgos, as I have said, was dismissed. He went to the Tribunal. The Tribunal's finding was that he was unfairly dismissed and various consequential directions were made following that. By the Notice of Appeal the Trust asserts that the decision was perverse and one that no reasonable Tribunal directing itself properly on law could have reached, or one that was obviously wrong.[3]At the heart of the decision lies a finding of fact. It is accepted that a person who is said to have been guilty of gross misconduct may be summarily dismissed. Mrs Millin, appearing before us for the Trust, accepted that it was not inevitable that gross misconduct would result in summary dismissal. There is nothing in the disciplinary policy which makes it a requirement of a finding of gross misconduct that there should be summary dismissal.[4]The finding of fact by the Tribunal was as follows, at paragraphs 39 and 40 of their Extended Reasons:
"From Mrs King's evidence to the Employment Tribunal it was clear to us that the appeal panel had made a fundamental error in applying the Trust's disciplinary policy and procedure. The appeal panel was supported by and had the benefit of the advice of Mr Andrew Kelly, the Head of Human Resources. Mrs King told the Tribunal that, once the panel had concluded that the Applicant was guilty of an act of gross misconduct, under the Trust's disciplinary policy and procedure OD7, they had no discretion to impose a sanction other than summary dismissal. She based this conclusion by the appeal panel on their reading of Section 1.4 of the disciplinary procedure under the grounds for disciplinary action and under the heading of "
Gross Misconduct" which reads:
"Gross misconduct is misconduct of such a nature that the Trust is justified in no longer tolerating the continued presence of the employee at the place of work"
. Under paragraph 3.3(e), under the heading "Summary dismissal", the disciplinary policy reads "Termination of the contract of employment without the employee's consent with immediate effect, without notice and without pay in lieu of notice. This sanction is only for cases of gross misconduct". Mrs King, who chaired the appeal panel, told the Employment Tribunal that this meant that, having found gross misconduct, they must [and that is my emphasis] dismiss the Applicant summarily. The disciplinary procedure says no such thing." In our judgment it is plain that the Tribunal, on that finding of fact, were correct in saying that the decision was flawed and were therefore well able to go on as they did and hold that the dismissal was unfair.[5]The suggestion has been made to us that the finding of fact was flawed because there was a misunderstanding of Mrs King's evidence. That does not seem to us to be a plausible proposition to advance, particularly in the light of the end of paragraph 10 of the Respondent's Notice of Appearance which is in these terms:
"The Trust Policy also states that a finding of gross misconduct will [again, my emphasis] result in summary dismissal."
[6]In our judgment this is an attempt to re-litigate on the facts, a decision of the Tribunal, to which it was perfectly entitled to come. There is no basis for asserting that the Tribunal's decision was perverse or obviously wrong. It would be wholly inappropriate to allow this matter to go to a Full Hearing and the appeal will be dismissed at this stage.