CENTRAL AND NORTH WEST LONDON MENTAL HEALTH NHS TRUST v MR J AMARA [2008] UKEAT 0019_08_2305

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2008] UKEAT 0019_08_2305Case No Appeal No. UKEAT/0019/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
CENTRAL AND NORTH WEST LONDON MENTAL HEALTH NHS TRUSTAPPELLANTSMR J AMARARESPONDENT
Before
His Honour Judge ReidSir Alistair Graham KbeDate 23 May 2008
[1]APPEARANCES For the Appellant MR BEN LYNCH (of Counsel) Instructed by: Radcliffes LeBrasseur 5 Great College Street London SW1P 3SJ For the Respondent MR BRUCE TATTERSALL (of Counsel) Instructed by: Melvyn Everson & Co Ltd Solicitors Suite 2U 14-16 Tiller Road Docklands London E14 8PX SUMMARY Unfair Dismissal – Reasonableness of dismissal – contributory fault R was a nurse at a mental hospital. A patient alleged that he had met R outside the hospital and R had taken him to his home where crack had been smoked. R was subject to disciplinary proceedings and dismissed. The ET held that the employer's investigation was not within the band of reasonable responses, that R had been unfairly dismissed and that there should be no deduction from the award. On the employer's appeal held: The ET had not substituted its own views for that of the employer, was entitled to hold there should be no deduction from the award and had not reached perverse conclusions. Appeal dismissed. HIS HONOUR JUDGE REID QC This is an appeal from an Employment Tribunal held at London Central on 2 and 3 July 2007. After a day of consultation in chambers on 27 July the judgment was sent to the parties on 19 September 2007. By the unanimous decision of the Tribunal it was held that the Claimant, Mr Amara was unfairly dismissed on 3 January 2007 from his employment with the Central and North West London Mental Health NHS Trust as a staff nurse. The decision turned on the Tribunal's view as to the investigation and subsequent disciplinary process adopted in dismissing Mr Amara. The Trust appeals against that decision.[2]Mr Amara was employed by the Trust as a senior staff nurse on Vincent Ward at Gordon Hospital. Vincent Ward is a 20 bed admissions ward for patients with acute mental health problems. Mr Amara, who had qualified as a registered mental health nurse in 1994, commenced working for the Trust on 1 June 1999. In the period up to his dismissal he had various disciplinary issues and at the time of his dismissal was on a final written warning.[3]In May 2005 a patient TM was admitted under restriction to the ward. He remained a patient on the ward until 26 December 2006 apart from a period from 11 to 25 October 2005 when he was discharged. In early September 2006 TM made allegations, inter alia, that the nursing staff smoked crack cocaine with the patients. At the time the ward manager Ms Ward did not take the allegation seriously. However, when it emerged that another allegation by TM about a member of the nursing staff having used his public transport Freedom pass was true (the nurse was arrested when trying to use the pass) Ms Ward decided to interview TM about his allegations against members of staff. She met him on 21 and 22 September 2006. On the later occasion Mr Harris, the clinical services manager, was also present. Notes were made of the conversations. Because TM was then very unwell they then decided to wait until he was in a better state of health. On 30 October, when TM's mental health appeared to have improved, there was a further interview with TM at which he again recounted his allegations.[4]The allegation against Mr Amara was not the only one investigated. Apart from the Freedom pass allegation, an allegation against a third member of staff was investigated in connection with an entirely separate allegation but he resigned before the end of the investigation.[5]The substance of the allegation made by TM was that on 19 December 2005 Mr Amara had taken TM to his home where crack was smoked and where Mr Amara had engaged in sex with a prostitute and then offered TM the chance to do the same. The offer was declined. The crack was said to have been purchased from £300 of TM's money which he had with him. He said that he had returned to the hospital the next morning in a taxi obtained from a taxi office on a roundabout a short distance from the flat. He had paid for the taxi with his last £10. On his return to the hospital he had taken the remainder of his money from the patient bank and paid it into his wife's account so that he could not be similarly tempted again. He also asserted he had procured cheap tobacco for Mr Amara for which Mr Amara owed him money (£40 or £50, depending on which of his accounts was looked at).[6]There followed some investigations conducted by Mr Harris. On 31 October 2006 Mr Amara was suspended on full pay. On 14 November Mr Harris interviewed Ms Ward. Following that interview Mr Amara was twice invited by letter to attend an interview with Mr Harris. He did not attend on either occasion. He maintained he never received the letter inviting him to the first interview. The letter asked him to telephone to confirm he would attend but no telephone call was received by the Trust. On the second occasion he telephoned to confirm he would attend the appointment, but did not and rang up the following day to say he had got the day wrong. Mr Harris did not issue a third invitation to Mr Amara to attend an interview. TM was anxious to know what was going on and was pressing Mr Harris as to the progress of the investigation.[7]Mr Harris's investigation was limited. He looked at the exterior of the block of flats where Mr Amara lived, checking that the locality tallied with TM's description in that(i) the block of flats was two blocks back from the main road,(ii) the block was a four storey block with a fifth storey built into the roof space and was constructed of speckled red brick,(iii) it was within walking distance of the Elephant and Castle,(iv) there was a roundabout a short way along the main road on which there was a taxi office. He looked at TM's hospital records in which a nurse had recorded on TM's return that he said that he had got drunk the previous night and had crashed out outside the hospital and the shift rota which showed that Mr Amara had been on the late shift on the day in question.[8]A disciplinary hearing was convened on 3 January 2007 before Ms McGee, Service Manager, North Westminster. The allegations against Mr Amara at the disciplinary hearing, were that(1) he had had an improper relationship with a patient that involved the patient visiting his house on at least one occasion:(2) he encouraged the patient to purchase illicit drugs, which he then used along with the patient: and(3) he harboured the patient who was absent without leave from hospital and was under section 3 of the Mental Health Act 1983 . Mr Amara insisted that TM's account was a delusion arising from his mental illness and/or part of a conspiracy with another unidentified member of staff. He denied all charges. During the course of the hearing it emerged that TM had alleged to another member of staff that he had had sex with Ms Ward and that she had been a prostitute in Scotland. The allegation was never investigated. TM did not give evidence. His evidence comprised the notes of the three meetings he had had with Ms Ward and Mr Harris.[9]Mrs McGee found the allegations proved and dismissed Mr Amara. In doing so she relied on(a) TM's accounts;(b) the fact that his description of the exterior block where Mr Amara lived was accurate;(c) the fact that TM had given a description of the interior of the flat;(d) TM's unauthorised absence from the hospital on the night in question;(e) the fact that Mr Amara was on late shift that day;(f) his failure to attend an interview at the investigation stage "for very dubious reasons". She described the failure to investigate the allegation against Ms Ward as "unprofessional" but did not appear to consider it had any relevance to Mr Amara's case.[10]Mr Amara appealed against that decision and an appeal hearing was chaired by Mr Brettle, the Director of Human Resources. There was no further investigation between the original hearing and the appeal hearing. Mr Brettle dismissed the appeal. The result of the appeal was notified to Mr Amara by a letter dated 9 March 2007. In the letter Mr Brettle stated the appeal hearing had been particularly influenced by "the consistency of the patient Mr TM in giving his account of the events and also with regard to his ability to accurately describe your flat." The appeal took account of the failure to interview Mr Amara and to ask him for a written statement during the investigation but noted that he had failed to attend two interviews and had been invited to submit a written statement to the disciplinary hearing. The letter concluded that "Ms McGee was entitled to have reached the decision she did and that the allegations were sufficiently substantiated on the balance of probabilities." During the appeal Mr Brettle characterised the failure to investigate the allegation against Ms Ward as irrelevant.[11]Before the Employment Tribunal the essence of Mr Amara's submissions was that:(a) the Trust had not made any adequate investigation,(b) it could not therefore have had a belief in Mr Amara's misconduct based upon reasonable grounds, and therefore(c) the dismissal was unfair. The Tribunal accepted those submissions.[12]The Trust's notice of appeal contains 19 grounds but they can be summarised under three heads:(1) The Tribunal's finding that the Trust's belief in Mr Amara's misconduct was not based on reasonable grounds was wrong in law and stemmed from the Tribunal substituting its own view for that of the employer or was perverse;(2) the Tribunal took into account irrelevant or incorrect matters and failed to take into account relevant matters; and(3) the finding that Mr Amara did not contribute to his own dismissal and/or there should be no Polkey reduction was perverse.[13]There was no dispute as to the law as it was to be applied to the case. It was clearly set out in the Tribunal's decision at paragraph 3 of the Tribunal's decision. After referring to sections 98(1) and (4) of the Employment Rights Act 1996 the Tribunal referred to Foley v Post Office and HSBC Bank plc v Madden [2000] IRLR 827 and BHS v Burchell [1980] ICR 303 . It also referred to Boys and Girls Welfare Society v Macdonald [1996] IRLR 129 , Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 and Sainsbury's Supermarkets Ltd v Hitt [2003] IRLR 23 . The Tribunal concluded its review of the law with an unexceptionable definition of gross misconduct and of the consequences.[14]In its judgment the Tribunal said that a reasonable investigation into the allegations required the Trust to be circumspect as to the possibility of improper motive on the part of the patient. It referred to a number of factors: 14.1. TM's complaints were only made 10 months after the date on which the incidents were alleged to have occurred. 14.2. Since TM had been absent without leave on the night in question it was possible he could have observed Mr Amara, followed him to his address, and thereby familiarised himself with the external appearance of his flat and its location. 14.3. No effort was made to check on the internal layout of the flat. 14.4. There were important discrepancies between TM's description of the interior of the flat and Mr Amara's. 14.5. The Trust had made no inquiry of the nurse who had noted that on TM's return to the ward he had said he had got drunk and spent the night crashed out outside the hospital. 14.6. The Trust had not probed apparent discrepancies in differences between the three accounts TM had given. [There were discrepancies as to whether he had left the ward with Mr Amara or had met him later at Strutton Ground after TM had had a Chinese meal, and as to whether both TM and Mr Amara had smoked the crack or only Mr Amara]. 14.7. There was no investigation of the allegation made by TM against Ms Ward. 14.8. The Trust had not adhered to its own disciplinary policy in that(a) it had failed to take the written statements from relevant persons, including the patient and Ms Ward;(b) the final notes relating to the three interviews with TM were not submitted to him for agreement;(c) TM was never asked to submit a written version of his allegations, which could have been submitted to Mr Amara;(d) Mr Amara was never asked to provide a written statement to give his version of events;(e) Mr Amara was not given the opportunity to meet the allegations at the investigation stage, despite having given an explanation for missing the second investigatory interview;(f) Mr Amara had not been asked to submit a written statement during the investigation.[15]The Tribunal was critical of the failure of the Trust to adhere to the disciplinary procedure laid down in the Trust's disciplinary policy. It held that it was not within a range of reasonable responses to proceed to the disciplinary stage without offering Mr Amara a further opportunity of attending an interview in order to appease TM because he was keen to see progress and was pressing Mr Harris.[16]The Tribunal regarded Ms McGee's conclusion that Mr Amara was not telling the truth as an unreasonable conclusion to reach on the material on which she relied "without recognising the need for a much greater enquiry into the circumstances of the patient's movement" as the Tribunal put it at para 5.9 of its decision. The same clearly applied to the appeal. As a result the Tribunal concluded that it was not within a range of reasonable responses for the Trust to reach the conclusion that it did without carrying out a more thorough inquiry into TM's belated allegations.[17]The Trust's first submission was that the Tribunal had substituted its own view as to what would amount to an adequate investigation for that of the Trust in finding that the Trust's view was based on an inadequate investigation. The Trust submitted that Mr Amara's explanations for TM having made up the story and the amount that TM appeared to know about the interior of his flat were fanciful and that this weakness in Mr Amara's defence had obviated the need for further inquiry. The Trust also pointed out that Mr Amara had admitted that the description given by TM of the interior of his flat was "somehow accurate": it skated over the specific inaccuracies Mr Amara highlighted. In the alternative the Trust submitted that even if the Tribunal was applying the correct test and was not substituting its own view for that of the Trust as to what amounted to an adequate investigation, its conclusion was perverse.[18]In Madden at p1293 Mummery LJ said:
"In one sense it is true that, if the application of that approach leads the members of the tribunal to conclude that the dismissal was unfair, they are in effect substituting their judgment for that of the employer. But that process must always be conducted by reference to the objective standards of the hypothetical reasonable employer which are imported by the statutory references to "reasonably or unreasonably" and not by reference to their own subjective views of what they would in fact have done as an employer in the same circumstances. In other words, although the members of the tribunal can substitute their decision for that of the employer, that decision must not be reached by a process of substituting themselves for the employer and forming an opinion of what they would have done had they been the employer, which they were not."
[19]The Tribunal was well aware of this authority and was seeking to apply it. In our view it did so. The investigation was perfunctory. The allegation made against Mr Amara was an extremely serious one. The employer was one with very substantial resources. The complainant was a person whose evidence required very careful consideration (there was evidence of delusions such as his stating Anne Frank was his grandmother, and the hospital notes showed he "expressed some delusional ideas" at a Music Appreciation Group on the afternoon of 19 December 2005). His complaint was extremely stale. Although there was support for his credibility from the Freedom pass complaint, there was the allegation against Ms Ward which appears to have been discounted. If it had been investigated and found to be untrue, it would have affected his credibility in relation to Mr Amara. There was no attempt to obtain any detail from TM as to how the night had been spent beyond the bare outline he supplied. There was no attempt to verify his description as to the interior of the flat. There was no attempt to cross-check with the nurse who made the contemporaneous entry on TM's return to the ward the next day to see if he could shed any light on TM's state on his return. There was no attempt to check whether TM had in fact withdrawn the remainder of his money from the patient bank on his return to the hospital.[20]It is perhaps less surprising that neither the Trust nor the Tribunal raised an eyebrow at the allegation that 4 rocks of crack cost the best part of £300, a suggestion which they might have been found startling in the extreme if any of them had acquaintance with the going rate in the area as regularly revealed in evidence at Inner London Crown Court.[21]Whilst the unlikeliness of Mr Amara's theories (advanced at the disciplinary hearing) as to why TM should have put forward his story was a factor that could properly be taken into account, it was not a factor of such a weight as to disentitle the Tribunal from taking the view that it did. Taking the material all in all it seems to us that the Tribunal was quite entitled to say that the investigation was so inadequate that it did not, by the objective standards of a reasonable employer, amount to a reasonable investigation. That being the case the Tribunal properly applied the Burchell criteria:
"First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further."
See [1980] ICR 303 at 304.[22]As to the suggestion that if the Tribunal was in fact applying the correct test and not substituting its view for that of the employer the decision of the Tribunal was perverse, the hurdle which the Trust had to surmount was a high one: see Yeboah v Crofton [2002] EWCA Civ 794 . There were glaring defects in the way in which the Trust conducted its investigation and in the way in which it failed to comply with its own disciplinary procedures. This was not a case in which the appellant Trust came anywhere near surmounting the hurdle. It is not a case in which we can say, in May LJ's phrase in Hereford v Worcester CC v Neale [1986] ICR 471 at 483 "My goodness, that was certainly wrong."[23]The Trust's next submission was that the Tribunal, in reaching its conclusions as to the reasonableness of the investigation, had(a) taken into account irrelevant or incorrect matters and(b) failed to take into account relevant matters.[24]Insofar as the Tribunal took irrelevant matters into account these matters were said to be: 24.1. The Trust had accepted the truth of TM's statements without testing them for consistency and accuracy when Mr Harris had looked at the outside of Mr Amara's block of flats, checked the duty roster for the night, and adverted to the accuracy of TM's complaint about the Freedom pass. 24.2. TM was too mentally ill to make an accurate statement, when the Trust had waited until the medical team had confirmed that TM's mental health had improved before making the investigation. 24.3. The failure to ask Mr Amara for a written statement when that failure was rectified before the appeal and the Trust's departure from its disciplinary procedure was rectified by the full hearings and the appeal. 24.4. The Trust had proceeded to the disciplinary stage because of a desire to appease TM when it proceeded at the stage when Mr Harris's investigation showed there was enough evidence to support disciplinary proceedings. 24.5. The Trust's failure to inquire into the interior of Mr Amara's flat when Mr Amara had accepted that TM's description was "somehow accurate". 24.6. The Trust's failure to inquire into how time had been spent at the flat when that was irrelevant to whether the offence had been committed. 24.7. The Trust's failure to inquire into the allegations against Ms Ward when these were irrelevant given that one of the other allegations he made was shown to be true. 24.8. The Trust's requirement "in effect" that Mr Amara prove his innocence when there was no such requirement. 24.9. The Trust's failure to consider the possibility that TM was making a false allegation when it did expressly consider and reject that possibility.[25]In our judgment there is no substance in any of these points, which are in substance an attempt to re-run issues of fact. The so-called checking of TM's statement for consistency and accuracy was at best perfunctory and did not appear to involve any investigation of the inconsistencies as to whether TM and Mr Amara had left the ward together or had met by arrangement later after TM had had a Chinese meal. There was no attempt to get him to flesh out the bald narrative he had given as to what was supposed to have occurred over a long night at the flat. There was no attempt (despite having delayed the investigation pending an improvement in his mental health) to obtain a written account from him or to ask him to read, sign and approve any of the notes of the conversations with him.[26]The Tribunal found that in deciding not to issue a third invitation to Mr Amara to attend a disciplinary interview Mr Harris had in mind that TM was "keen to know what was going on and had been inquiring of him as to the progress of the investigation." The Tribunal at para 5.7 said "It was not within a range of reasonable responses to proceed to the disciplinary stage in order to appease the patient because he was keen to see progress and was pressing Mr Harris." This was despite Mr Harris's answer in evidence to the Tribunal to the question "Was your major concern to appease TM?" "No, but I wanted to reassure him." It is clear that the Tribunal did not accept that answer. It was under no obligation to do so, particularly in the light of the fact that Mr Harris simply decided to progress to a disciplinary hearing when his investigation showed there was in his view enough evidence to go to a disciplinary hearing rather than considering whether he had completed a proper investigation and not proceeding until he had.[27]The failure to seek to obtain a statement from Mr Amara at the investigatory stage was not remedied by obtaining such a statement before the disciplinary hearing. The object of obtaining it is to enable it to be factored in before the disciplinary hearing and any further resulting investigations conducted: these could have included such matters as checking on the discrepancies as to the interior of the flat between Mr Amara's account and TM's account. This failure to obtain the statement at the stage required by the Trust's disciplinary procedures might have been remedied if there had then been further investigations when the statement was received or before the appeal, but there was no further investigation between the disciplinary hearing and the appeal. The defects in the original investigation therefore carried through and the Tribunal was entitled to say that the appeal did nothing to correct the defects in the original hearing.[28]The allegation against Ms Ward was not an irrelevance. The Trust chose to rely on the fact that another allegation made by TM was proved true as establishing TM's veracity. If the allegation against Ms Ward had been investigated and shown to be false (as the Trust, from its failure to investigate such a serious allegation, appears to have assumed) it would have been a substantial factor against accepting TM's account of his escapade with Mr Amara. It was not, in our view, impermissible for the Tribunal to say that the Trust "in effect" required Mr Amara to prove his innocence: that was a permissible interpretation of the effect of the inadequate investigation.[29]The suggestion that the Tribunal found that the Trust failed to consider the possibility that TM was making a false allegation when it did expressly consider and reject that possibility is not well-founded. The finding in fact was that "the [Trust] reached an unjustified conclusion on [Mr Amara's] guilt rather than making the necessary detailed investigation into the possibility that the patient, for vindictive or other reasons, was making false allegations against [Mr Amara]".[30]Insofar as the Tribunal was said to have failed to take into account material matters, these matters were said to be:(1) it was suspicious that Mr Amara did not bring his lodger to the hearing;(2) there were three allegations of gross misconduct and proof of any one of them would have justified dismissal;(3) Mr Amara had a disciplinary record which related to illegal drugs and alcohol-related misconduct (this last was said to be particularly relevant to the Polkey issue).[31]The absence of the lodger was referred to in the decision. The weight given to that absence was a matter for the Tribunal in the light of the explanation that relations were now strained. The fact that there were three offences alleged, any one of which would have justified summary dismissal, was immaterial. In effect all three matters stood or fell together, as the decision at the disciplinary hearing made clear and as was in effect affirmed by the appeal decision. As to his previous disciplinary record, there was no finding that he had himself taken any illicit drugs. The drink related disciplinary offence (the details of which were not in evidence) appeared to have occurred after the alleged occurrences of 19 December 2005. It is not clear what weight it was being suggested to should be given to that offence. In any event none of these matters seem to us to impugn the Tribunal's decision.[32]The remaining ground of appeal was that the Tribunal erred in law or was perverse in holding that Mr Amara did not contribute to his own dismissal and/or there should be no Polkey reduction. This ground was not the subject of any sustained argument either orally or in the Trust's skeleton argument. In the light of the Tribunal's finding that the Trust had not established that had a fair disciplinary procedure been followed then it was inevitable or likely that Mr Amara would have been dismissed in any event, the Tribunal held that had an investigation been carried out within the range or reasonable responses the likely result was not such as to justify a reduction in the compensatory award. Given the Tribunal's other findings this was a conclusion to which it was entitled to come.[33]So far as the submission that Mr Amara's conduct contributed to his dismissal, this was based on his failure to attend two investigatory interviews. The Tribunal made a finding of fact that his failure to attend the investigatory interviews was not due to intentional disregard. In these circumstances the Tribunal was entitled to hold that his conduct did not contribute to his dismissal.[34]It follows that the appeal must be dismissed.