MR D SHARP v FOURSEASONS HEALTHCARE LTD [2003] UKEAT 0078_03_1504

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2003] UKEAT 0078_03_1504Case No Appeal No. EAT/0078/03Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR D SHARPAPPELLANTFOURSEASONS HEALTHCARE LTDRESPONDENT
Before
Mr Justice Mitting Ms S R Corby Mr B V FitzgeraldDate 15 April 2003
[1]APPEARANCES For the Appellant MR RAJEEV THACKER (of Counsel) Instructed by: Messrs Mills Kemp & Brown Solicitors 1-11 Huddersfield Road Barnsley South Yorkshire S70 2LP For the Respondent MR HORNE (of Counsel) Instructed by: Messrs Pannone & Partners Solicitors 123 Deansgate Manchester M3 2BU THE HONOURABLE MR JUSTICE MITTING The Appellant was employed by the Respondent as a Charge Nurse (Registered Mental Nurse) from 1 May 2000 until 29 January 2002 when his employment was terminated for gross misconduct. The alleged misconduct related to events on his nightshift on 6 and early hours of the morning of 7 January 2002.[2]The facts can be briefly stated from those found by the Tribunal. An elderly patient ("LB") was a resident at the home. The Appellant noted in fact at four o'clock, but by an entry bearing the apparent time of six o'clock in the morning, that she remained poorly. He had earlier noted, at three o'clock that she was deteriorating. He made a decision then not to summon medical help. At some time, perhaps at or soon after six o'clock, he decided that she did need medical help and sought the attendance of a general practitioner. The general practitioner refused to come. The only available step for him to take then to obtain medical help for LB was to summon an ambulance. He did not summon an ambulance. He took that decision at or about 6.45 a.m. when he knew that he general practitioner had refused to attend. He gave as the reason for his decision that it would be too traumatic for her to go in an ambulance and decided to do nothing further about obtaining medical help for her. His shift ended at 7.00 a.m. He was replaced by an incoming nurse who himself took the decision to summon an ambulance at 7.25 a.m. The ambulance was called. LB was taken to hospital where she died later that day.[3]The Respondents decided that by those actions the Appellant had been guilty of gross misconduct and decided to summarily dismiss him. An internal appeal was held. The judgment of the Respondents was upheld by the Regional Nurse Manager and his dismissal took effect on 29 January.[4]The Employment Tribunal heard his application, both for wrongful and for unfair dismissal and also an application for arrears of holiday pay in which he succeeded. The Tribunal dismissed both his claims for unfair and wrongful dismissal, holding in summary that he had been guilty of an act of gross misconduct, that the employers had acted reasonably in treating that as a sufficient reason to justify his dismissal and indeed his summary dismissal without notice.[5]The Tribunal considered, as it was obliged to do, for the purposes of both heads of claim, his contract of employment. His contract of employment expressly incorporated disciplinary rules of procedure. In so doing it followed the relevant Code of Practice, paragraphs 10 and 12. The Disciplinary Rules provided as follows:
"The following list shows examples of the type of offences which the Company has categorised for each level of misconduct. The following list is not exhaustive and Management reserve the right to determine the level of seriousness of any other misconduct.

(a) Minor Misconduct "

There then follows a list of items of minor misconduct such as absenteeism, lateness, untidy appearance, breach of dress code, smoking in prohibited areas, use of foul language and so forth. Within that list were two items of potential relevance:
"Careless work and poor effort at work Performance of duties below an acceptable standard."
[6]Under the heading " Major Misconduct " the following items were listed:
"Dangerous physical horseplay Neglect causing damage to or loss of Company's, resident's or other employee's property Serious neglect of safety/hygiene/security rules Consuming intoxicants on the premises without permission, or prior to coming on duty Wilful or excessive wastage of material Unsatisfactory attitude to residents or visitors Insubordination."
[7]Under the heading " Gross Misconduct " the following were listed:
"Borrowing money from residents or soliciting gratuities Theft Physically violent behaviour Leaving the premises or site without permission Refusal to carry out a reasonable work instruction Deliberately ignoring safety, hygiene and security rules Fraud Wilful damage to or gross negligence of company's, resident's or other employee's property Falsification of records Intoxication induced by alcohol or drugs Wrongful and deliberate administration of drugs or medicines Obscene behaviour Disclosing confidential business information to a third party Disqualification from practising profession Sleeping on duty, thus compromising residents."
Only in the case of gross misconduct was dismissal for a first offence and summary dismissal permitted. In the case of other instances of lesser misconduct warnings and other steps short of dismissal were first required.[8]Under the heading " Gross Misconduct " the Disciplinary Rules provided:
"If you have committed an offence which is regarded as gross misconduct and the Company is satisfied after investigation that it has occurred you will be dismissed summarily i.e. without pay in lieu of notice."
[9]The first task which the Tribunal had to perform was to construe that contract. It is obvious from the list of items under each category of misconduct which we have recited that the precise misconduct relied upon by the Respondents was not expressly categorised.[10]The Tribunal addressed this question in paragraph 5 of its decision. It noted the Appellant's contention that the authority of Dietman v Brent London Borough Council [1988] ICR 842 suggested that negligence of the kind alleged could not amount to gross misconduct. The Tribunal distinguished Dietman in a single sentence by concluding that the Respondent's disciplinary procedure could not be interpreted to define the meaning of gross misconduct in the manner referred to in Dietman .[11]In Dietman Balco MBE LJ giving the judgment of the Court of Appeal conducted a careful analysis of the express terms of the contract. Gross misconduct in that case was defined by the contract as misconduct of such a nature that the authority is justified in no longer tolerating the continued presence at the place of work of the employee who commits an offence of gross misconduct: a high standard. The Court of Appeal went on to analyse the nine instances of gross misconduct given in the contract and concluded that of them six were criminal offences and the remaining three involved an element of intention on the part of the guilty employee. The Court of Appeal, like the judge at first instance, accordingly concluded that the gross negligence admitted by the plaintiff did not amount to gross misconduct as defined by the terms of the contract and so did not justify summary dismissal without notice. A claim for damages for wrongful dismissal therefore succeeded.[12]In this case the Tribunal observed about this contract the following: 5 "The Respondent's procedure provided a "non exhaustive" list of the matters to be viewed as gross misconduct with the right of management – "to determine the level of seriousness of any other misconduct." The Tribunal concluded that it was inconceivable that the Applicant would not have had it in his contemplation that a neglect of care could be serious enough to amount to an act of gross misconduct and that the Respondents could not reasonably have so determined – the Applicant was employed on the basis of his very particular skills as a Registered Mental Nurse working in an institution with a high public focus because of the service it provides – the care of a very vulnerable element of members of society. He was the senior person in charge on his duty/shift." The alleged act of neglect of care could have been sufficient to undermine the confidence of the Respondents in his ability to function in that role."[13]It is to be noted that the Employment Tribunal did not conclude that the employers had an unfettered right to categorise any incidents of misconduct as gross misconduct. What it did was to look at, in the words that we have just read, the understanding of each of the parties to this contract about how the alleged misconduct would be categorised by each of them and it concluded (in our view unimpeachably) that both sides would have concluded that it did in fact amount to an act of gross misconduct.[14]It was argued before the Employment Tribunal and before this Tribunal that the conduct fell comfortably within the heading " Minor Misconduct " and that the closest analogies in the lists provided of categories of misconduct were "careless work and poor effort at work" and "performance of duties below an acceptable standard". That proposition is obviously unsustainable. A list of items which categorises as " Major Misconduct " "unsatisfactory attitude to residents or visitors" cannot possibly contemplate the inclusion in the heading " Minor Misconduct " of a very serious deliberate wrong decision by a senior employee of the kind found by this Tribunal.[15]The closest analogy in the list, in our view, is "deliberately ignoring safety/hygiene/ security rules". What on the Employment Tribunal's findings this Appellant did was deliberately to substitute his own judgment about the need for medical attention and the calling of an ambulance for the professional standards by which he was bound and which the Respondents had every right to expect him to fulfil.[16]The Tribunal concluded in paragraph 7, on the basis of the Appellant's own evidence, that: 7 "In his evidence he accepted that he knew that the only other way to obtain medical help was to call an ambulance. He did not do so – any competent RMN would/should not have responded in this way." Mr Thacker who appears for the Appellant accepts that that was a concession made by him.[17]The Tribunal's own view, which followed, was that "it was not sufficient having decided that LB needed medical attention to then take the view that an ambulance would be too traumatic for her and do nothing further about obtaining medical attention." It was one to which it was fully entitled to come.[18]This Tribunal finds no error of law in the reasoning of the Employment Tribunal that the deliberate decision of the Appellant was an act of gross misconduct and as such entitled the employers, as one of the range of responses open to it, to treat it as sufficient to justify his dismissal.[19]Although the Tribunal did not expressly say so, its conclusions led, inextricably, also, to its rejection of his claim for wrongful dismissal. If it was a term of the contract that he could be summarily dismissed for gross misconduct as it was, and if he was found by the Tribunal to have committed an act of gross misconduct, which it did, then their conclusions that the employers were entitled to dismiss him without notice inevitably followed.[20]For those reasons the decision of the Employment Tribunal reveals no error of law. No perversity is alleged. This Employment Appeal Tribunal is therefore unable to interfere with its reasoning and conclusion. This appeal is therefore dismissed.