ST HELENS & KNOWSLEY HOSPITALS NHS TRUST v MR J MCCULLY [2001] UKEAT 888_99_0502

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2001] UKEAT 888_99_0502Case No Appeal No. EAT/888/99Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
ST HELENS & KNOWSLEY HOSPITALS NHS TRUSTAPPELLANTMR J MCCULLYRESPONDENT
Before
Mr Recorder UnderhillLord Gladwin of CleeDate 5 February 2001
[1]APPEARANCES For the Appellant MISS D ROMNEY (of Counsel) Instructed By: Messrs Hill Dickinson Solicitors Pearl Assurance House Derby Square Liverpool L2 9XL For the Respondent MS I OMAMBALA (of Counsel) Instructed By: UNISON Legal Services Dept 1 Mabledon Place London WC1H 9AJ MR RECORDER UNDERHILL QC : The Respondent in this appeal, Mr McCully, was employed by the Appellants, the St Helens & Knowsley Hospitals NHS Trust, as a hospital porter. On 26 September 1998 he was involved in a fight with another porter, a lady whom we will describe simply as Ms H because the appeal involves some evidence about her mental condition.[2]It was Ms H who started the fight, although possibly in response to some verbal provocation. She kicked Mr McCully in the knee. He then pushed her hard in the face and swore at her. The parties apologised to each other later in the day. There were separate disciplinary hearings in relation to the two employees and both were dismissed on 16 November 1998, Mr McCully's dismissal being confirmed by letter the following day.[3]The decision in both cases was taken by Mr Jackson, the Trust's Head of Facilities. The next day Mr Jackson was told that Ms H had been admitted by the out-of-hours mental health team at the hospital to the Acute Psychiatric Unit because they were very concerned about the effect of her dismissal on her mental health. He asked for and was given a written report. The report concluded:
"I am concerned that the decision to terminate her employment, while technically correct, may have had a disastrous effect on her leading her to consider harming herself and would ask that you assist her to have this decision reviewed as soon as possible."
[4]Ms H was discharged as an in-patient two days later. She saw Dr Dutta, a Consultant Psychiatrist at the Trust, with her union representative, on 26 November. He wrote a report for Mr Jackson. It stated, after reciting the basic facts:
"During her stay at Sherdley Unit no evidence of mental illness was found. She said she was bullied by her colleagues and because she was dismissed from her job she has got no chance of getting another job. She also said the job was everything for her. This lady has got mild learning disability, her comprehension and recollection is not very good. She has described all the events leading up to her dismissal. Although her recollection of the dates may not be accurate, these are the facts as she narrated to me."
There follows a recitation of the facts which we need not set out and the report concluded:
"As you know she was charged for gross misconduct and assault on another member of the staff and was summarily dismissed on the 16 th November. According to Mr John Geraghty on Monday 16 th November she was very upset and was threatening suicide. Hilary Bedson from the out of hour's service (crisis) saw her and admitted her into T4 Sherdley Unit. She had symptoms of anxiety and panic attacks after the dismissal, but this was stress related, and she herself had admitted that she is a lot better now, although occasionally she still gets anxiety. I do not think she needs any specific psychiatric treatment at present. She is getting quite a lot of support from Mr John Geraghty."
[5]Mr Jackson observed that this report did not deal with Ms H's mental state at the time of the incident itself. He asked for a further report which Dr Dutta gave, in the following terms by way of an addendum received by Mr Jackson on 10 December:
"In view of her limited intelligence she was not able to comprehend what would be the consequence of her kicking her colleague. She was angry with the other Porters because of their rudeness towards her. She was not capable of judging the consequence. I believe she works in the capacity of a Porter for the X-Ray Department and does General Portering where she comes in contact with patients. There is no danger to patients as such. Because of her limited intelligence she might need repeated reminding or prompting to do a task. She is fit to return to work, but a less demanding environment would probably suit her better. I don't think she understood that kicking a colleague could be a disciplinary issue. Because of her limited intelligence she would have difficulty in coping with pressures of any kind."
In the light of that report Mr Jackson held a review meeting and Ms H was reinstated on the basis of a final written warning.[6]Mr McCully launched an internal appeal against his dismissal. The hearing took place on 5 February 1999. It was before an appeal panel presided over by Mr Whitfield, the Deputy Chief Executive of the Trust. The Tribunal had before it a Witness Statement from Mr Whitfield, although he did not give oral evidence. It also had the manuscript notes taken in the course of the appeal hearing. Mr McCully was represented by Mr Gregory, a full-time UNISON official. Mr Dobson, Head of Personnel put the case for upholding the decision to dismiss Mr McCully. There were statements before the appeal panel relating to the incident itself but no material relating to Ms H's treatment. How the appeal proceeded appears from Mr Whitfield's statement. After referring to Mr Dobson's opening outline, Mr Whitfield says this:
"5 Mr Gregory was then given the opportunity to question Mr Dobson. The majority of his questions were based on why Ms H had been reinstated whereas Mr McCully had not. Mr Dobson pointed out that the purpose of today's hearing was to consider Mr McCully's dismissal and not Ms H's. 6 Mr Gregory continued with his line of questioning regarding Ms H and suggested that as there had been an assault by both parties, then Mr McCully should also have had his case reviewed. 7 I, through the chair, called for an adjournment. The panel then saw Mr Gregory and Mr Dobson alone. This was to remind Mr Gregory of the facts surrounding Ms H's dismissal and subsequent reinstatement, i.e. Ms H had been dismissed for the incident involving Mr McCully. Following strong trade union representations an avenue of enquiry which involved Ms H undergoing medical assessment took place. The outcome of the medical assessments when presented to the disciplining officer, Mr Jackson, gave sufficient grounds for him to reconsider his original decision and Ms H was reinstated. Staff side representatives were aware of the reasons for Ms H's reinstatement. No similar medical reasons were suggested either at the disciplinary hearing or at the appeal in respect of Mr McCully. Therefore the panel did not think Mr McCully's appeal was an appropriate forum to discuss Ms H's medical condition. Continued questioning regarding Ms H was seen not to be relevant to Mr McCully's case. This conclusion was agreed by all parties."
The hearing then continued on the basis of the other mitigating factors that Mr Gregory wished to put forward. The eventual decision of the panel was to uphold the dismissal. It is reasonably clear that in reaching that final decision the appeal panel gave no further consideration to the question of disparity. It had effectively ruled it out in the discussion which followed Mr Whitfield's intervention.[7]Mr Whitfield's statement, as will have been noted, says that Mr Gregory had agreed to this course, but the fair reading is that he did so only after the appeal panel had made its position on the relevance of the evidence clear.[8]Mr McCully brought proceedings for unfair dismissal. His Originating Application focused entirely on the disparity of treatment between himself and Ms H. The appeal came on for hearing before a Tribunal in Liverpool on 11 May 1999. The hearing was concluded in a day and the decision was that Mr McCully had been unfairly dismissed. The Tribunal's reasons for that finding appear at paragraph 6 of the Reasons. After reciting, what is common ground, that the dismissal of Mr McCully for fighting was prima facie fair, the Tribunal continued:
"However, matters do not end there and to some extent only begin. As stated in the findings of fact there is no corroboration that the panel who heard the applicant's appeal ever considered the question of inconsistency when it heard the applicant's appeal on 5 February 1999. By then Ms H had been reinstated before the appeal hearing on her behalf. Reinstatement was on compassionate grounds in reliance on medical opinion. The applicant's initial dismissal was consistent with that of Ms H in that respect at that time i.e. on 16 November 1998. It was not disputed that both were guilty of gross misconduct. Dismissal was at that time within the band of reasonable responses. This Tribunal being not satisfied that the appeal panel considered the fact of Ms H's prior reinstatement when deciding that dismissal of the applicant was appropriate and fair, has decided that no reasonable employer would have considered on the appeal to uphold the initial dismissal of the applicant. On that basis it has decided unanimously that the dismissal was unfair. If however the appeal panel did consider the facts of Ms H's reinstatement (which had certainly been raised by the applicant's representative during the appeal hearing according to the hand-written notes) it was irrational to ignore it. A reasonable employer would not have been dismissed because of the inconsistency of differing treatment for the same offence."
Something has plainly gone wrong with the final sentence. The sense of what the Tribunal was intending to say is evidently that a reasonable employer would not have dismissed Mr McCully because of the disparity between his treatment and Ms H's.[9]The reference in the Reasons to prior findings of fact is to paragraph 2(i) where the Tribunal said this:
"It is clear that on the appeal hearing in addition to the relevant facts being outlined, reference was made to Ms H and her reinstatement. However, there is no suggestion or confirmation, either in the hand-written notes of the appeal hearing (and in particular the Deliberations), nor in paragraph 14 of the written statement of Mr Whitfield (annexed to the respondent's Appearance), that Ms H's reinstatement was considered or taken into account when the panel decided if dismissal was the appropriate sanction, although other mitigating factors were taken into account."
[10]The Trust appeals against that decision. Initially it raised four grounds. One, relating to bias, was not permitted to proceed at the preliminary hearing. Another, that Mr McCully had effectively withdrawn his reliance on the issue of disparity in the course of his oral evidence, was sensibly not pursued by Ms Romney who appears for the Trust.[12]The remaining two grounds, which, as summarised in Ms Romney's skeleton, relate to the finding that no reasonable employer would have upheld the dismissal on appeal and the way in which the Tribunal had taken account of the evidence of Mr Whitfield, are inter-related and essentially depend on the way in which the Tribunal reached the decision in paragraph 6 of its Reasons. It is necessary first to identify, so far as possible, what that reasoning was. There is no doubt that paragraph 6 of the Reasons is not well expressed. It is however reasonably clear that there are two threads to the Tribunal's thinking.[13]First , there is the question of the extent to which the appeal panel considered the question of disparity at all. The Tribunal expressed itself "not satisfied" that the appeal panel did so, and in this connection referred to the absence of "corroboration". This finding occupied an important part of Ms Romney's submissions on behalf of the Trust. It is clear to us that in this aspect of its reasoning the Tribunal was referring to the appeal panel's ultimate deliberations, that is its deliberations at the end of the hearing when it considered whether to uphold the dismissal. This is reasonably clear from the wording of the passage at paragraph 2(i) of the reasons set out above. In our view, as discussed above, it is reasonably clear that the panel did not consider the question of disparity at that stage. The slight tentativeness of the Tribunal's expression of view on this point may reflect simply the fact that Mr Whitfield had not given evidence; and that may also explain the use of the inappropriate term "corroboration". But of course, as the Tribunal must have had in mind, the issue of disparity was considered by the appeal panel at the earlier stage, when Mr Whitfield intervened and the representatives had a private discussion with the panel. The decision of the panel at that stage was that the evidence was "irrelevant". It seems to be that decision which the Tribunal regarded as "irrational". The Tribunal does not explain that finding, as we believe it ought to have done. It is however capable of being supported on the unchallenged evidence which was before the Tribunal. Mr Whitfield's intervention had the effect of cutting off all further enquiry by Mr Gregory on Mr McCully's behalf into the reasons for the disparity of treatment between Mr McCully and Ms H. It did so simply on the basis that Mr Dobson told them that Ms H had undergone "medical assessment", the outcome of which had given Mr Jackson sufficient grounds to reconsider his original decision. Mr Gregory would have been fully entitled to explore what that medical assessment really amounted to and whether it was capable of justifying what, on the face of it, was plainly disparate treatment. To stop him doing so might well be characterised as at least procedurally unfair (which is perhaps a better description than the Tribunal's term "irrational"), but we need not reach a final view on that in view of our decision on the second aspect of the Tribunal's reasoning, to which we now turn.[14]The Tribunal found, in the alternative that even if the appeal panel did consider the question of inconsistency it was, to paraphrase, outside the range of reasonable responses for it to maintain Mr McCully's dismissal in the light of the decision not to dismiss Ms H. The Tribunal gave no reasons for their finding, and we are bound to hold that this failure constitutes an error of law. However, it does not follow that the appeal must be allowed. If we are satisfied that, notwithstanding the Tribunal's failure to give proper reasons, the decision was plainly right the appeal would still fall to be dismissed.[15]The issues facing the Tribunal can be summarised as follows. (1) The dismissal was plainly prima facie fair. As was common ground, the fight between Mr McCully and Ms H constituted gross misconduct; However, (2), the difference of treatment accorded to Ms H was liable to render that dismissal unfair on the grounds of disparity unless there was "some rational and clear basis" for the difference in treatment: see the decision of the Court of Appeal in Securicor Ltd v Smith [1989] IRLR 356. Therefore, (3), the essential issue was, and is, whether there was material available to the Trust which afforded such a rational and clear basis of distinction or (as a shorthand) was capable of justifying the difference of treatment between the two employees.[16]The only material on which the Trust relied, or could have relied, as constituting such a justification was the evidence of Dr Dutta. It does not appear that that evidence was before the appeal panel at all. They appear only to have been given the indirect summary of its effect which we have referred to above. But at this stage of the argument it may be that it would be sufficient for the Trust to say that this material was available to Mr Jackson and Mr Dobson. In any event, we have considered carefully whether the report from Dr Dutta was capable of justifying the difference of treatment between Mr McCully and Ms H. So far as concerns Ms H's mental state, the two reports state only that she had "a mild learning disability" and was of "limited intelligence"; and for that reason she would not have appreciated, in Dr Dutta's opinion, that kicking a colleague could be a disciplinary issue. The report stated in terms that she had no mental illness. It is interesting to observe that Mr Jackson, according to the Chairman's Notes of his evidence in cross examination, had asked for Dr Dutta's second report in order "to find out if she was responsible for her actions at time of incident". The second report did not state that she was not responsible for her actions, at least in the sense that that phrase is generally understood. In our clear view Mr McCully would have been entitled to feel seriously aggrieved to be told "although your culpability and Ms H's are the same, we are letting her off with a written warning because she is less intelligent than you" or, indeed, which was the origin of her first medical referral, "because she took the decision so much worse than you did". There is no reason why an employer should not be compassionate, but in circumstances where two employees are equally culpable, unless compassion shown to one employee is based on solid grounds which differentiate that employee from another, a decision to extend compassion to one and not to the other is contrary to all ordinary notions of fairness and equity. The situation which the Trust faced here was very different from one where, for example, the employee to whom compassion is extended is shown to suffer from a mental illness or some other extraneous mitigating circumstance which did not apply to the other employee or employees involved.[17]Accordingly, we are satisfied that if the Tribunal had given a properly reasoned decision the only proper conclusion to which it could have come was that the evidence of Dr Dutta did not constitute a sufficiently clear and rational basis for distinguishing the case of Ms H from that of Mr McCully. In our view, it follows in the circumstances of this case that the dismissal was unfair. We reach this conclusion the more easily because we are not differing directly from the Trust's appeal panel. As noted, they did not have Dr Dutta's report in front of them, and the account given to them may well have suggested there was more "medical" content to the report than was in fact the case. We also, of course, not differing from the Tribunal; although its reasons are not properly spelt out, the likelihood is that they were of the same kind.[18]In those circumstances we dismiss the appeal.