SANDWELL & WEST BIRMINGHAM HOSPITALS NHS TRUST v MRS A WESTWOOD [2009] UKEAT 0032_09_1712

EMPLOYMENT APPEAL TRIBUNAL

BAILII case number: [2009] UKEAT 0032_09_1712

Case No Appeal No. UKEAT/0032/09

Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

Between

SANDWELL & WEST BIRMINGHAM HOSPITALS NHS TRUSTAPPELLANT

MRS A WESTWOODRESPONDENT

Before

His Honour Judge Hand

Date 17 December 2009

[1]APPEARANCES For the Appellant MS ADRIENNE MORGAN (of Counsel) Instructed by: Messrs Mill & Reeve LLP Solicitors 78-84 Colmore Row Birmingham B3 2AB For the Respondent MR ANTHONY JOHNSTON (of Counsel) Instructed by: Messrs Lyons Davidson Solicitors Jago House 692 Warwick Road Solihull West Midlands B91 3DX SUMMARY UNFAIR DISMISSAL: Reasonableness of dismissal Gross Misconduct raises a mixed question of law and fact; as a matter of law it connotes either deliberate wrongdoing or gross negligence; Wilson v Racher applied. An employment tribunal does not necessarily substitute its own judgment for that of the employer by making findings of fact as to matters not dealt with by the internal disciplinary hearing; Small v London Ambulance Service considered. Contributory Fault It is a misdirection in law for the employment tribunal to consider the employer's conduct in relation to contributory fault; Parker Foundry v Slack applied. HIS HONOUR JUDGE HAND QC Introduction This is an appeal against the judgment of an Employment Tribunal, comprising an Employment Judge and two lay members, sitting at Birmingham over 4 days in October 2008, the written Judgment having been sent to the parties on 12 November 2008. By that judgment the Employment Tribunal found that the employee Respondent had been unfairly dismissed because: i. the investigation was so deficient that no reasonable employer could have relied upon [it]; ii. the disciplinary hearing was equally deficient and no reasonable employer could have dismissed as a result; iii. the sanction of dismissal lay outside the band of reasonable responses with the result that no reasonable employer could have dismissed in the circumstances; iv. the conduct could not have been characterised as gross misconduct. Moreover, the Respondent had not caused or contributed to her dismissal. The Appellant, the employer Trust ("the Trust"), appeals against that decision. The issues

[2]On 12 May 2007 the Respondent was a 35 year old staff nurse working in the Accident and Emergency Department ("A&E") at the City Hospital in Birmingham. As the Employment Tribunal recorded at paragraph 3 of its Decision, she was a late starter. She had not qualified as a nurse until she was 28 years of age and had moved into nursing from a post as Receptionist in A&E. She had an educational difficulty, namely that she was severely dyslexic. In the 7 years that she had been nursing she had achieved the grade of Staff Nurse and, as the Tribunal noted at paragraph 4 of the judgment, she had an exemplary record.

[3]Ms Adrianne Morgan of Counsel, who appeared, both before the Employment Tribunal and before this Tribunal, on behalf of the Trust, had suggested to the Employment Tribunal that the Respondent's "evidence was…. unreliable". At paragraph 2 of the judgment the Employment Tribunal in giving an assessment of the credibility of the witnesses, who had appeared before it, says the following in the last two sentences of paragraph 2:

"There were minor points upon which she succumbed – only for short time – to the temptation to put a favourable gloss on events, but in our judgment she did not do so to a greater extent than would most people charged with an offence that could end their professional careers. She is not generally untruthful."

[4]The Respondent was dismissed for an act of gross misconduct. As will become apparent from the findings of fact made by the Employment Tribunal, the Trust considered not only the conduct of the employee as an employee but also the conduct of the employee as a professional person, with a professional body, which imposed professional standards of conduct upon her. The relevant passages of the professional code were set out by the Employment Tribunal at paragraph 5.3 of its decision. The Trust reported the Respondent to her professional body, the Nursing and Midwifery Council ("NMC"). This was referred to by the Employment Tribunal at paragraph 22 of the judgment in the following terms:

"The Trust (though not Dr Khair) notified the NMC of the dismissal of Mrs Westwood. In cases where nurses have been dismissed for gross misconduct, the NMC has power to withdraw from them permission to practice. It is likely that the NMC is awaiting the outcome of the Tribunal proceedings before deciding on its course of action."

But more than simply reporting the matter to the professional body, the Trust made the Respondent's professional responsibilities and adherence to her professional code of conduct, as stipulated by the NMC, a significant issue in the disciplinary proceedings.

[5]From the terms of paragraphs 3 and 4 of the judgment it seems likely that the Employment Tribunal had formed a favourable view of the Respondent and found the Respondent's history and qualities admirable. Of course, the fact that the Respondent had an admirable background with an unblemished record would be but one feature of the case and, in the event of a reasonable conclusion that she had been guilty of gross misconduct, could not be regarded as a conclusive feature of the case in her favour. Likewise, the fact that her professional status might be in peril was only part of the factual matrix. Its prominence in the case was no doubt due to the fact that the Trust had emphasised it during the course of the disciplinary proceedings. What an employment tribunal must not do, however, is to allow its sympathy for an employee to overcome its objective scrutiny of the reason for dismissal and the decision as to whether or not, in terms of section 98(4) of the Employment Rights Act 1996 , the dismissal was fair.

[6]Contributory fault undoubtedly constitutes a discrete issue. Another significant, and, possibly, separate issue is whether the Respondent's conduct amounted to gross misconduct but what is submitted here by Ms Morgan, on behalf of Trust, is that, pervading all the issues except contributory fault is the overarching question as to whether the Employment Tribunal has substituted its own judgment for that of the Trust. In effect, submits Ms Morgan, it has re-run the disciplinary proceedings and, blinded by its own assessment of the character of the Respondent, it has slipped into the "substitution mindset". Mr Anthony Johnston of Counsel, who appeared both below and in this Tribunal on behalf of the Respondent, submits that the Employment Tribunal has quite soundly uncovered obvious flaws in the investigative and disciplinary process such as to justify their judgment that the dismissal was unfair. So the main issue on the question of unfair dismissal is – has the Employment Tribunal substituted its own judgement for that of the employer?

[7]In order to examine these competing contentions in a case, which as we have endeavoured to explain above, may be regarded as comprising a number of strands, we need to examine, with considerable care, the facts, both as placed before the disciplinary hearing and as considered by the Employment Tribunal. It is to these that we now turn. The facts

[8]In the evening of 11 May 2007 and the early morning of 12 May 2007 the Respondent was working a 10 hour night shift in the A&E Department. She was working with more serious cases; other colleagues were working on the less serious injuries or illnesses, known as "minors". One of those colleagues was another staff nurse, Ms A Stanford.

[9]Just before 0300 hours a young woman was admitted with minor injuries. A bundle of additional documents was submitted (by consent) to this Tribunal by the Trust. One of these was the letter of dismissal of 22nd October 2007, which is at pages 12 to 14 of the additional bundle. At page 13 of that document the patient is described as having "a history of psychiatric illness". This was emphasised by Ms Morgan as an aspect of the patient's "vulnerability". The Employment Tribunal did not refer to that but described the patient as "young"; we have no precise indication as to her age, although the Charge Nurse on duty that morning, Mr Reilly, who gave evidence both to the disciplinary hearing and at the Employment Tribunal, had described her in his evidence to the disciplinary tribunal as being in her "mid-20s" (see page 5 of the additional bundle).

[10]She was described by the Employment Tribunal as being "a regular attender at A&E" (see paragraph 6.2). She arrived at A&E suffering from "minor injuries" but the main feature of her presentation appears to have been her intoxication. The Trust found that: "Upon examination of the patient's CAS card it was clear that the patient had consumed a quantity of alcohol or illicit drugs" (see the letter of dismissal at page 13 of the addition bundle). At paragraph 6.2 of the judgment, there is a reference to the patient being "intoxicated, making heaving noises, spitting in bowl", which we take to come from the nursing notes on admission, although we have not seen these ourselves. The patient was placed in a cubicle and it seems probable that she was on a trolley throughout. At some stage whilst on the trolley it seems likely that she vomited and also suffered an episode of bladder incontinence.

[11]The Tribunal found that both of these incidents had occurred inside the A&E Department. It does not seem to us that the Trust ever made any specific finding as to this. The letter of dismissal appears to be silent on the point. There was CCTV evidence at the disciplinary hearing, as noted by the Employment Tribunal at paragraph 20.4 of the judgment, the last sentence of which reads:

"It also showed the patient's crotch area to be wet, and a damp patch next to the patient's head, and this led him [Mr P Finch the Security Officer] to think that the patient had vomited."

The Trust appears to have made no finding as to when this occurred but the Employment Tribunal say at paragraph 27.1.3 (b) of the judgment:

"The evidence before the panel (like that before the tribunal) was that any vomiting had been before she was seen by the doctor and discharged. There was no evidence to suggest that any incontinence took place during the short period of transit of the trolley from cubicle to outside A&E."

[12]Some time before 0405 hours on 12 May 2007 the patient was seen by a doctor. From page 5 of the additional bundle it appears that the doctor was a Registrar, although the Employment Tribunal makes no finding as to this. The Employment Tribunal deals with this matter at paragraph 6.2 of the judgment in the following terms:

"The patient was later discharged by an A&E doctor. The doctor's note records that the patient had vomited, but was 'alert and orientated' and had a GCS score of 15/15. GCS is a description of a patient's level of consciousness. 3/15 is comatose. 15/15 is 'fully alert'."

This doctor was not called to give evidence either at the disciplinary hearing or the Employment Tribunal. The notes of evidence at the disciplinary hearing show that Mr Reilly was asked about the Registrar clearing the patient for discharge (see page 5 of the additional bundle) and about the GCS score (see page 6 of the additional bundle) but there is no reference to either matter in the dismissal letter and the Trust appears to have made no finding as to this.

[13]Although she had been discharged, it seems that the patient refused to go. Faced with this intransigence, Ms Stanford appears to have taken matters into her own hands and resolved to remove the patient from the premises by wheeling her outside. Having decided upon this course of ejecting the patient, she enlisted the help of the Respondent. Ms Stanford asked her to lend a hand to wheel the trolley out "to the front". The Respondent said she thought that meant to the Reception and waiting area and she agreed to assist.

[14]When it became apparent to the Respondent that Ms Stanford's intention was not simply to take the patient out to the Reception area but to continue through the exterior doors to the area outside the hospital at paragraph 6.4 the Employment Tribunal found the following to be the sequence of events:

"However Ms Stanford continued through this area towards the exit doors, and it was only then that Mrs Westwood realised that she intended to take the patient outside. Mrs Westwood said 'You can't do this'. She herself had never wheeled a patient outside on a trolley, and had never known it to be done, though we accept her evidence and that of Ms Randall that it is not unknown for a patient who is unwilling to leave to be pushed outside in a wheelchair then invited to get up and go. Certainly, Mrs Westwood recognised at the time that what was being done was irregular and wrong. However, Ms Stanford assured her that she had done this before with this particular patient, and this was the best way of encouraging her to leave; it was her responsibility. The journey from cubicle to outside the hospital took less than 10 seconds, and from waiting area to outside 3 or 4 seconds. Mrs Westwood was confused and uncertain, and she was outside before she had had time to think or to object again. She was, in fact, swept along by the tide of events."

[15]One part of Ms Morgan's submissions to this Tribunal was that is to be contrasted with the account given by the Respondent in the statement she made on 12 May 2007 (see page 1 of the additional bundle) and with what she said to the disciplinary hearing (see page 8 of the additional bundle) but Employment Tribunal did not identify any significant discrepancy and neither can we.

[16]The disciplinary panel said in the letter of dismissal at page 12 of the additional bundle that what it had considered at the hearing was:

" … the allegation that on 12 May 2007 you failed to provide appropriate care and treatment to patient … . You did so by deciding with a colleague, Ms Ann Stanford, Staff Nurse, to take the patient on a trolley and place her outside the A&E Department in the middle of the night… "

[17]It will be appreciated that the Respondent's case was that she never understood at the outset that it was Ms Stanford's intention to take the patient outside the premises, that it was Ms Stanford, who had made that decision and that the Respondent had queried it once she realised what was happening. The only finding made by the disciplinary panel, as set out in the dismissal letter, is at page 12 of the additional bundle and is as follows:

"It was substantiated that you, along with SN Ann Stanford took the patient outside the A&E department on a trolley …"

This does not, of course, address the Respondent's account as to how it came about that she came to be outside the premises with the patient and Ms Stanford and, so far as we can see, that account was never challenged. It is not clear to us whether the disciplinary panel had the statement made by Ms Stanford. It certainly ought to have done. We have not seen it but, as we understand it (see paragraph 6.16 of the Judgment), it:

" made it clear that it had been her … [Ms Stanford's] … idea to push the trolley outside, and that she had recruited Ms Westwood to help her. "

[18]What happened then is recorded at paragraph 6.6 of the Judgment of the Employment Tribunal as follows:

"To encourage the patient to get off the trolley Mrs Westwood lowered the cot side, on the side away from the wall. Mrs Westwood spent some time trying to persuade the patient to get off the trolley. The patient told her to 'fuck off', and did not move."

Faced with the patient's refusal to get off the trolley, the Respondent decided that she should place the matter in the hands of Security. Looking at the notes of evidence and at the letter of dismissal, that finding by the Employment Tribunal seems to have accorded with the evidence given at the disciplinary hearing and with the findings as set out in the dismissal letter.

[19]But what happened next was a matter of considerable controversy. The Respondent's account at the disciplinary hearing was that she had gone back inside and telephoned Security. Whilst doing so, she had become aware of the fact that Ms Stanford was also back inside. The incident was captured by CCTV cameras. A compilation of the CCTV camera footage was produced by the Security Department of the Trust. It was itself a matter of controversy. It comprised a splicing together of various pieces of footage. The issue was as to how complete and representative a picture of what had occurred was created by this editorial process. We do not understand, however, the controversy as to editing to extend to the CCTV footage of Mrs Westwood re-entering the building. The controversy, which has attended that part of the CCTV footage, is of a different character; it is as to what it actually depicts. The disciplinary hearing panel viewed the relevant footage at the disciplinary hearing. They reached the conclusion recorded in the first sentence of paragraph 6.10 of the Employment Tribunal's Judgment, namely that:

"The Trust says that the CCTV shows that the two nurses walked back into A&E together."

In the dismissal letter at page 13 of the additional bundle the following appears:

"However it was clearly visible on the CCTV footage that you both walked into the department together."

The Respondent's interpretation of the CCTV footage, as put to the disciplinary hearing and to the Employment Tribunal was that it showed her coming back into the Reception area from the outside with Ms Stanford following her a short distance behind. In the light of the sentence from the letter of dismissal quoted above, the Trust must be taken to have rejected the Respondent's version of events.

[20]The Employment Tribunal viewed the CCTV footage during the hearing. The Employment Tribunal came to the following conclusion at paragraph 6.10 of the Judgment:

"Mrs Westwood says that the CCTV footage shows that Ms Stanford followed her back into the hospital but remained in the 'majors' office while Mrs Westwood went to the triage reception desk to call security. Mrs Westwood then turned and was surprised to see Ms Stanford in front of her. Having viewed the CCTV footage, the Tribunal finds that Mrs Westwood went back inside the building but was followed after a couple of seconds by Ms Stanford, and that the gap between them narrowed as Mrs Westwood approached the desk, but that Mrs Westwood was preoccupied by the need to call security, and did not notice Ms Stanford had followed her until she had made her call."

We will need to return to this when considering the Employment Tribunal's findings on the investigation, the disciplinary hearing and the decision to dismiss in the light of Ms Morgan's submission that the Employment Tribunal substituted its own judgment for that of the disciplinary panel.

[21]According to the evidence given by the Respondent to the Employment Tribunal, which it appears to have accepted, the next step was that she telephoned the security officer. She then became aware of the presence of Ms Stanford; this is dealt with by the Employment Tribunal at paragraph 6.12 of the judgment, which reads as follows:

"At this point Mrs Westwood noticed that Ms Stanford was there. She said 'Steve is on the way'. Ms Stanford said 'Thank you' and walked out of the triage door and in the direction of the hospital entrance. Mrs Westwood assumed that she was returning to look after the patient until security arrived. In fact, Ms Stanford did not return to the patient."

[22]The Trust dealt with these events in the letter of dismissal in the following terms (see page 13 of the additional bundle):

"Although you claim that you were alarmed to discover that SN Stanford had not remained with the patient whilst you called security, it was apparent that you did not make any attempt after making the telephone call to go back outside to the patient or to ask SN Stanford to return to the patient"

It is clear the Respondent said to the disciplinary panel she had assumed that Ms Stanford had stayed outside with the patient (see page 10 additional bundle). What is not clear is the extent to which the sentence from the letter of dismissal quoted above amounts to a rejection by the Trust of the Respondent's account of being unaware of Ms Stanford coming back inside or whether the sentence is meant to express the point of view that, irrespective as to the correctness of the account given by the Respondent, nevertheless the fact remains that the patient was left outside.

[23]The Employment Tribunal found that the patient had been left outside for 5 minutes and 20 seconds before she was retrieved by Mr Reilly, the Charge Nurse. The Trust's position at the Employment Tribunal in relation to this solitary period is expressed at paragraph 6.13 of the Employment Tribunal Judgment, which reads:

"The Trust points out that since the cot side had been left down, the patient could have rolled off the trolley. Even in the early hours of the morning, there are passers-by. Many patients and visitors come through A&E late at night, and some are under the influence of drink and drugs. One of them could have wheeled the patient into the road or the canal. The CCTV showed a number of men passing the trolley and standing near to it."

[24]The patient was taken back inside the hospital at 0455 hours. At that time she was shivering. Within 12 minutes Mr Reilly had found her some clean dry clothes from lost property and persuaded her to leave the building. He was asked during the course of the disciplinary hearing if it had taken "much effort to rouse the patient once back inside" and his answer was: " No I was just firm with her. I made it clear that it was not a bed for the night. " (See page 7 of the additional bundle.)

[25]The first person to investigate was Mr Reilly. When he asked who had put the patient outside, the Respondent admitted her involvement immediately. At paragraph 6.15 of the Judgment the Employment Tribunal concluded that one of his main concerns was the image of the Trust and adverse publicity. This appears to be what he told the disciplinary hearing; the notes at pages 5 to 6 of the additional bundle read:

"KM What were the potential risks? DRi She was obstructive perhaps but she was not violent or anything like that. She could have fallen off the trolley. I would be concerned about the image to the profession. I suppose that would have been my overriding concern. But I suppose life is full of risks."

[26]He helped the Respondent make a statement because she had the difficulties; as described at paragraph 6.16 of the judgment. Ms Stanford, Ms Wood, who had been in charge of "minors" and Mr Reilly, himself, also made statements that morning before the shift ended. Mr Reilly completed an Incident Form and the investigation then passed into the hands of Mr Gillespie. He took other statements but never spoke to Mr Reilly about his statement. He did, however, speak to Ms Stanford on 4 June2007 and she confirmed to him that "it had been her idea to move the patient outside and that she had recruited Ms Westwood to assist her" (see paragraph 11 of the judgment).

[27]Mr Gillespie's report characterised the Respondent's behaviour as potentially gross misconduct on a variety of grounds including "gross negligence" and he drew no distinction between her case and that of Ms Stanford. At the disciplinary hearing on 19 October 2007 Mr Gillespie presented the case against the Respondent. The compilation of CCTV footage assembled by the Trust was played and Mr Finch the Security Officer and Mr Reilly, the Charge Nurse, gave evidence. The latter's evidence is summarised by the Employment Tribunal at paragraph 20.6 of the Judgment. The summary seems entirely consistent with the note of evidence at pages 4 to 8 of the additional bundle.

[28]It is not clear when breach of trust and confidence became an issue in the case. Although we have not seen the document, it does not appear to have been part of the allegations suggested by Mr Gillespie (see paragraph 18 of the Judgment) nor, according to paragraph 19 of the Judgment, did it feature in the rubric of the charge formulated against the Respondent in the letter summoning the Respondent to the disciplinary hearing. Certainly it was not part of the recitation of the allegation against the Respondent in the fifth paragraph of the letter of dismissal (see page 12 of the additional bundle and quoted above at paragraph 16 of this Judgment). It was referred to and relied upon in management's closing submissions to the disciplinary hearing (see page 11 of the additional bundle) but Mr Reilly was asked no questions about it as one of the staff of the Trust, who would have to continue working with the Respondent.

[29]The Respondent gave evidence at the disciplinary hearing. The note of her evidence appears at pages 8 to 10 of the additional bundle. The Judgment deals with it at paragraphs 20.8 to 20.11. It is not clear whether the loss of composure referred to at paragraph 20.8 is addressed to the evidence that she gave at the disciplinary hearing or to the evidence she gave at the Employment Tribunal; we would infer the latter. This ambiguity also affects paragraphs 20.9 to 20.11 and, having regard to the fact that substitution of judgment is a significant issue, it is necessary to look at them more or less line by line in order to distinguish between evidence given to the disciplinary hearing and that given to the Employment Tribunal.

[30]The first sentence of paragraph 20.9 may refer to evidence given to the Employment Tribunal but, if so, it certainly does no more than duplicate what the Respondent had said to the disciplinary hearing (see page 8 of the additional bundle). The notes do not contain any reference to the statement by Mr Gillespie referred to in the second sentence of paragraph 20.9; of course, he may have said it and it was not recorded by the note- taker or it may simply be that he said it at the Employment Tribunal and not at the disciplinary hearing. The third sentence of the sub paragraph is not totally reflected by the note of the Respondent's evidence at page 10 of the additional bundle but the note comes very close to it and if it records the Respondent's evidence at the Employment Tribunal, it seems to us that it would be so similar to what had been said at the disciplinary hearing as to not be significantly distinguishable from it.

[31]So far as we are aware the disciplinary panel did not produce a report and therefore the panel's thought process has to be gleaned from the terms of the letter of dismissal. The first sentence of paragraph 20.10 is so similar to the text of the first bullet point on the second page of the dismissal letter (page 13 of the additional bundle) that, whilst it may refer to evidence given to the Employment Tribunal, it seems equally likely that it is a reiteration by the Employment Tribunal of what is said in the dismissal letter. If it does record evidence given at the Employment Tribunal, then that evidence would simply be repetition of what had been said in the dismissal letter. The second sentence relates to evidence given by the Respondent and it is impossible to know whether the evidence referred to there is evidence given to the disciplinary panel or to the Employment Tribunal or both. Certainly, something very like it appears in the notes of evidence at the disciplinary hearing (see pages 8 and 10 of the additional bundle) and if it refers to evidence given at the Employment Tribunal, it seems to us to replicate what was said to the disciplinary hearing. But the remaining sentences of paragraph 20.10 plainly explore evidence given about his reasoning and conclusions by Dr Khair, the chairman of the disciplinary panel, to the Employment Tribunal.

[32]Paragraph 20.11 relates to the evidence given by the Respondent to the disciplinary hearing and paragraphs 20.12 and 13 refer to the evidence of Dr Khair given at the Employment Tribunal.

[33]The disciplinary panel are recorded by the Employment Tribunal in the second sentence of paragraph 20.15 as not having found the Respondent's account of the incident convincing. Looking at the dismissal letter at pages 12 to 14 of the additional bundle, it is possible to discern some limited support for that finding from the terms of the letter itself. The comments that might be regarded as a rejection of the Respondent's evidence or submissions are in the last sentence of the third bullet point at the top of the second page of the letter (page 13 of the additional bundle), which finds that the nurses walked back into the department together, the last sentence of the fourth bullet point (page 13 of the additional bundle), which is really not evidence but argument or conclusion about the admitted failure of the Respondent to go back outside, the fifth bullet point, which rejects the criticism of the edited CCTV footage (see page 13 of the additional bundle) and the sixth and seventh bullet points, which reject the submission that the patient was not vulnerable (see page 13 of the additional bundle). Whether the second sentence of paragraph 20.15 represents the Employment Tribunal's summary of the above matters from the letter of dismissal or an actual statement made in evidence given to the Employment Tribunal on behalf of the Trust is impossible for us to know.

[34]At paragraph 20.17 of the judgment the Employment Tribunal records the conclusion of the disciplinary panel. The pertinent part of wording of the letter of dismissal at page 13 of the additional bundle reads as follows:

"Your actions during the evening of 12 May 2007 as outlined in the representation of the management's case were dangerous, negligent and a serious infringement of Trust policy. The panel consider that your conduct during this incident was an act of gross misconduct. As a registered nurse you are accountable for your practice and are answerable for any actions and omissions, regardless of advice or direction obtained from another professional. Although it was noted that you claimed to have acknowledged that you had acted inappropriately and had since reflected and learned from this experience; the panel were of the view that your actions were of such a serious nature that they could not be condoned. Your actions had the potential to not only damage the reputation of this organisation but also that of your profession. Accordingly it was the panel's view that the management's case was upheld. In addition the panel felt that your actions and their consequences resulted in a serious breakdown in trust and confidence between you and the Trust as your employer."

[35]Paragraph 20.17 is very much a paraphrase of the above. It reads:

"The panel unanimously decided that the actions of Mrs Westwood had the potential to damage the reputation of the Trust and that of Mrs Westwood's profession. It determined that her actions had amounted to gross misconduct which had led to the breakdown of trust and confidence, and that summary dismissal was the appropriate sanction."

[36]The reasoning of Dr Khair, the chairman of the disciplinary panel, formed part of the evidence he gave to the Employment Tribunal and it illuminates the reasoning in the letter of dismissal. The Employment Tribunal record it at paragraph 20.16 as follows:

"The panel considered that the Trust had a duty to provide safe and high quality care to its patients, and that staff are under a duty to work in such a way as to minimise risk. Although Dr Khair said he found the case a difficult one, and the panel took into account the mitigation advanced by Mrs Westwood, he entirely agreed with Mr Gillespie that there was no difference at all in degree of culpability between Mrs Westwood and Ms Stanford. Both had equal responsibility for the patient, and both were equally to blame for having put her at risk. Mrs Westwood could have challenged Ms Stanford at several points along the way. Even to take the patient on the trolley to persuade her to get off was wrong. Taking her outside was quite unacceptable: in all his 35 year career in medicine he had never known anything like it."

[37]The Respondent's employment was terminated with immediate effect from 19 th October 2007. She intimated but did not pursue an appeal. Other findings

[38]It seems to us to that there are other findings scattered about the judgment. One is at paragraph 6.4 in the following terms:

"She herself had never wheeled a patient outside on a trolley and had never known it to be done, though we accept her evidence and that of Ms Randall that it is not unknown for a patient who is unwilling to leave to be pushed outside in a wheelchair then invited to get up and go."

So far as we can see this evidence was not given to the disciplinary hearing.

[39]Similarly, at paragraph 27.1.3(c) there is a reference to the evidence of Mr Reilly that:

" … When the patient would not go, Mrs Westwood at once went back into A&E and called security … this was at least one acceptable way of dealing with the position in which she was placed."

This must also be regarded as a finding of fact and so far as we can see, no such evidence was given to the disciplinary panel.

[40]Paragraph 27 of the judgment contains other findings. At paragraph 27.1.2 (a), which is part of a catalogue of deficiencies in the investigation, the Employment Tribunal finds that the patient was no longer intoxicated by the time she was taken outside on the trolley. The origin of this is not explicitly stated. It probably derives from the findings recorded at paragraph 6.2 of the Judgment (see paragraph 12 of this Judgment above); that, in turn, derived from material placed before the disciplinary panel.

[41]In the next sentence the Employment Tribunal finds that the police attendance at the hospital was coincidental and not causally connected to the events of this case. Whether or not that reflects evidence given to the Employment Tribunal, it is consistent with the evidence given to the disciplinary hearing by Mr Finch (see page 4 of the additional bundle). The Conclusions of the Employment Tribunal Unfair Dismissal

[42]The Employment Tribunal concluded at paragraph 27.1.2 that the investigation carried out by the Appellant was defective because of the following "main" defects (other defects were not described): i. Mr Gillespie had not asked Mr Reilly about the events and so had not found out that: 1. the Respondent had always admitted her role; 2. the patient was no longer intoxicated at the time of her discharge; 3. the police had attended at the premises for reasons unrelated to this incident; ii. Mr Gillespie thought it was not clear that the Respondent had gone outside with the trolley; iii. The CCTV footage was edited and omitted material that might have supported the Respondent; iv. Mr Hill was never interviewed about the incident or about the extent to which the patient was being observed by security via CCTV whilst she was outside; v. There was three months delay in preparing the investigation report.

[43]At paragraph 27.1.3 the Employment Tribunal described the conduct of the disciplinary hearing as "seriously deficient" and set out the "main defects" as follows: i. Because of the shortcomings of the investigation the disciplinary panel had material that was "in important respects misleading and unfair"; only one example is given, namely that of the CCTV compilation. ii. There was no evidence from which the panel could have concluded that the patient was intoxicated at the relevant time and yet the panel found her to be intoxicated. Whilst she was vulnerable on the trolley outside the hospital to the risk of assault or falling off the trolley, the panel's finding as to vulnerability seems to have been based in part on the vomiting and incontinence but, on the evidence before the panel, that had been earlier and since then she had been discharged by a doctor. To have concluded that the patient was vulnerable without defining that term was an irrational conclusion. iii. The panel's conclusion that there was no difference between the cases of Ms Stanford and the Respondent stemmed from an interpretation of the NMC Code of Conduct rather than from a consideration of the facts and led to the panel closing its mind to the obvious differences; the Employment Tribunal accepted that it may have been wrong to take the patient to the Reception area but once it became clear to the Respondent that matters were to go further she had protested. To have remained involved after that "was a failure of professional judgment, and serious one" but going back in to Security was one acceptable way of dealing with the situation. There was also a difference in the way each nurse had reacted; Ms Stanford was unrepentant whereas the Respondent was remorseful. Whilst the panel was reasonable to reject the Respondent's account of only having realised that Ms Stanford had come inside when the Respondent had finished calling Security, there had been no evidence before it to contradict what the Respondent said about believing that Ms Stanford had gone back outside. For all those reasons the panel was "perverse" in not finding "the culpability of Ms Stanford was very significantly greater than that of" the Respondent. iv. The Employment Tribunal found that the panel had "disregarded evidence" as to the Respondent's character because the witnesses were not called before the panel. In the letter of dismissal at page 12 of the additional bundle the following appears:

"You presented no witnesses in support of your case. It was also noted that supporting documentation; namely character witness statements from Lorraine Randall, Senior Sister and Barry Thomasson, Charge Nurse submitted on your behalf were not supported by the presence of these individuals, neither were they referred to as part of the staff slide presentation."

This must be what the Employment Tribunal had in mind and they described the Trust's approach to it as irrational. v. Although there were differences between what the Respondent had said in the witness statement made by her to Mr Reilly on 12 May and her later account, had the panel explored the circumstances it would have realised that it would be unfair to place any reliance on such differences. There was no evidence before it from which the panel could reasonably conclude that the Respondent's evidence was unreliable. vi. Nor could the panel reasonably conclude that the Respondent lacked insight because she would not accept that her case and that of Ms Stanford were indistinguishable; she was doing no more than putting forward her case. vii. The delay in dealing with the Respondent's case was "quite extraordinary" and "inhumane".

[44]At paragraph 27.1.4 the Employment Tribunal considered the issue of the sanction. Both as a matter of general principle and as something arising from the specific wording of the Trust's disciplinary procedure, which read "no employee will be dismissed for a first breach of discipline except in the case of gross misconduct", dismissal, as a sanction for a first breach of discipline, which this was, could only be justified if the Respondent's conduct could be characterised as "gross misconduct". There had undoubtedly been a serious failure of professional judgment by the Respondent, who had fallen short of the "high standards demanded of a nurse", and the disciplinary panel had characterised it as "gross misconduct". But no reasonable panel could have reached the conclusion that she had "showed disregard for the patient's safety" and:

"Her lapse was a momentary one, in the heat of the moment, by an otherwise exemplary nurse."

[45]Gross misconduct must comprise either "deliberate wrongdoing" or amount to "gross negligence" and no reasonable panel have characterised what the Respondent did as either. Moreover, if this was not "gross misconduct" no reasonable panel could have considered dismissal to be an "appropriate penalty". Contributory Fault

[46]The Employment Tribunal then turned to the question of contributory fault. The submission that the Respondent had been guilty of a serious lapse from the professional standards to be expected by a nurse was rejected as an overstatement of the gravity of her fault. So too was her submission that she was not significantly at fault. The Employment Tribunal would have been minded to make a reduction of 20 per cent on account of fault but, having reminded itself that such a reduction was discretionary and having regard to the ineptitude of the Trust, the Employment Tribunal decided to make no reduction. Submissions

[47]Both the Appellant and the Respondent lodged extensive skeleton arguments, which were developed further by oral submissions at the hearing. Neither in the skeleton arguments nor in the oral submissions did the parties refer to the case of London Ambulance Service NHS Trust v Small

[2009] EWCA Civ 220

in which judgment had been handed down by the Court of Appeal on 17 March 2009 (it is now reported as

[2009] IRLR 563

). Nor, during the course of the hearing of this appeal, did this Tribunal; it came to our attention after the hearing (judgment having been reserved) and we asked the parties for written submissions as to its effect, if any, on their arguments in this case. 48. When making her oral submissions, Ms Morgan divided her argument as follows: i. Substitution ii. Gross Misconduct iii. Failure to give adequate reasons iv. Defective Reasoning v. Contributory Fault. We will adopt those headings in the following summary of the submissions of both Counsel. Substitution

[49]The Appellant submitted that there was clearly a substitution of the Employment Tribunal's own opinion on the merits instead of an assessment of the reasonableness of the employer's analysis because:a. the Employment Tribunal had made its own findings of fact in respect of the conduct of the Claimant and not confined itself to considering the reasonableness of the findings made by the employer; prime examples are: i. the findings as to when the patient had vomited (see the judgment at paragraph 6.3 at page 3 of the bundle); ii. the implied findings that the patient was not really so vulnerable (see the judgment at paragraph 27.1.3(b)); iii. the findings as to the general truthfulness of the Respondent (see the Judgment at paragraph 2 at page 2 of the bundle); the result was that, although lip service was paid to the Trust's finding, this coloured the Employment Tribunal's view, so it had accepted her evidence as to the return from the exterior and formed its own view as to the CCTV footage (see the Judgment at paragraphs 6.10 at pages 4 and 5 of the bundle and paragraph 27.1.3(c) at page 17 of the bundle) when the Trust had clearly disbelieved her (see the first page of the dismissal letter at pages 12 and 13 of the additional bundle); iv. the findings as to the circumstances in which the Respondent had made a statement on 12 May 2007 (see paragraph 6.16 of the Judgment at page 6 of the bundle) all resulted either from her evidence or that of Mr Reilly and there was no suggestion that these difficulties had been advanced at the disciplinary hearing; v. the finding that there had been a meeting between Mr Gillespie and the Respondent on about 14 May 2007 at which she had told him what had happened on the morning of 12 May 2007 (see paragraph 9 of the Judgment at page 7 of the bundle) raised an issue never even touched on before the disciplinary panel; vi. the finding that calling Security was one acceptable way of dealing with the situation depended on Mr Reilly's evidence given for the first time, at the Employment Tribunal (see paragraph 27.1.3(c) of the Judgment at page 16 of the bundle) and was in flat contradiction of the Trust's evidence that the policy was to call a doctor or senior nurse (see paragraph 6.7 of the Judgment at page 4 of the bundle); worse still, this evidence was preferred to that of the Trust (see paragraph 20.10 of the Judgment at page 10 of the bundle); vii. similarly, the finding that patients were sometimes pushed outside on wheelchairs came not from evidence given by the Respondent to the disciplinary panel but from evidence given at the Employment Tribunal both from her and from Sister Randall, who was not even called before the disciplinary panel (see paragraphs 6.4 and 27.1.3(c) at pages 3 - 4 and 16 of the bundle, respectively);

b. the criticism of Mr Gillespie and the investigation he conducted and of the disciplinary panel were symptomatic of substitution; prime examples are: i. the finding that it was unreasonable for him to have concluded there was no difference between the cases of the Respondent and Ms Stanford (see paragraphs 10, 14, 18, 20.16 and 27.1.3(c) of the Judgment respectively at pages 7, 8, 11 and 16 of the bundle); ii. the finding that it was unreasonable for the disciplinary panel to have adopted the same view (see also paragraph 27.1.3(c) of the Judgment respectively at page 16 of the bundle); iii. the finding that there was unacceptable delay between the incident and the disciplinary hearing; iv. the finding that there was a failure to consider all the CCTV footage ( see paragraphs 14, 20.10 and 27.1.(c) of the Judgment, respectively at pages 8, 10 and 14 of the bundle);

c. there was other matters, which might be primarily characterised as unfairness on the part of the Employment Tribunal towards the witnesses, but in context should be regarded as symptomatic of the "substitution mindset": i. accepting all of Mr Reilly's evidence save his belief that the Respondent had been fit to make a statement of the morning of 12 May 2007; ii. allowing, and relying on, evidence from the Respondent that she had met Mr Gillespie on 14 May 2007 without giving him an opportunity to deal with it.

[50]Mr Johnston's response to this was that the Employment Tribunal had correctly directed itself at paragraph 26.3 of the Judgment at page 13 of the bundle as to the relevant authority in relation to misconduct dismissals, namely BHS v Burchell [1978] IRLR, Iceland Frozen Foods v Jones

[1982] IRLR 439

and Sainsbury's Supermarkets Limited v Hitt [2003 IRLR 23 . In particular, the Employment Tribunal had understood that the employer's investigation and disciplinary procedure needed to be measured against the objective standard of the reasonable employer; it had said as much at paragraph 26.3. Moreover, it was a perfectly correct approach to say, as the Employment Tribunal did at paragraph 26.4 that serious allegations with potentially serious consequences called for careful, conscientious and evenly balanced investigation. Such an approach properly adopted the decision of this tribunal in AvB

[2003] IRLR 405

(per Elias J at paragraph 60 and 61 of that Judgment).

[51]Even though the Employment Tribunal had not had the benefit of the judgment of the Court of Appeal in London Ambulance Service NHS Trust v Small

[2009] EWCA Civ 220

;

[2009] IRLR 563

, it had not slipped into "the substitution mindset". In marked contrast to Small , the basic facts in the instant case were not substantially in dispute. It had to be accepted that the Employment Tribunal had reached a different factual conclusion to that of the disciplinary panel as to when the Respondent knew that Ms Stanford had followed her back inside (see paragraph 27.1.3(c) of the Judgment at page 17 of the bundle) but it was not setting up its own finding against that of the disciplinary panel because it had expressly said that the view, which the disciplinary panel had reached, was one, which a reasonable panel could have reached. So the Employment Tribunal had not lost sight of the crucial issue, namely the reasonableness of the employer's conduct of the disciplinary hearing and this finding, although it might have been better if it had not been made, far from establishing a substitution of view, indicated the contrary. That matter apart, the Employment Tribunal had not made its own findings of fact in relation to matters which were disputed at the disciplinary hearing

[52]Nor did the identification by the Employment Tribunal of avenues of investigation a reasonable employer ought properly to have pursued (see the various matters identified at paragraph 27.1.2 of the Judgment at pages 14 – 15) amount to the Employment Tribunal substituting its own view of the facts for that of the employer; rather, it amounted to the Employment Tribunal appropriately addressing itself to the question of whether the investigation that was carried out by the Respondent was a reasonable one in all the circumstances.

[53]Neither the authority of Small nor those referred to by the Employment Tribunal at paragraph 26.3 of the judgment nor that of Foley v Post Office/HSBC Bank (formerly Midland Bank) v Madden

[2000] IRLR 650

, to which the Employment Tribunal had not referred but which Ms Morgan relies on, precluded the Employment Tribunal from concluding that findings made by the disciplinary panel were unsupported by the evidence or irrational or one which no reasonable panel could properly have reached. Equally they did not prevent the Employment Tribunal from concluding that there had been an inadequate investigation. These are all within the ambit of the permissible inquiry as to the reasonableness of the employer.

[54]Having thus correctly directed itself, Mr Johnston submitted that the Employment Tribunal had, on the facts gone on to reach unimpeachable conclusions, namely that the investigation was flawed (see paragraphs 27.1.2 and 27.2 of the Judgment at pages 14 to 15 and 19 of the bundle), that the conclusions of the disciplinary panel were irrational, unreasonable and perverse (see paragraphs 27.1.3(a) to (e) at pages 15 to 17 of the bundle) and that there had been unfair delay.

[55]Also it was not substitution for the Employment Tribunal to find that the conclusions of the disciplinary panel as to gross misconduct (see paragraph 27.1.4(b) at page 18 of the bundle) and the sanction of dismissal (see paragraph 27.1.4(c) at page 18 and paragraph 27.2 at page 19 of the bundle).) were outwith the range of reasonable responses. Gross Misconduct

[56]Ms Morgan submitted that the Employment Tribunal had misunderstood the effect of Stoker v Lancashire County Council

[1992] IRLR 75

and had misdirected itself that a dismissal in breach of contract is axiomatically unfair. What she characterised as the Employment Tribunal's alternative view that gross misconduct could not be established was equally wrong. The Trust had a belief that the Respondent had been guilty of gross misconduct and that belief was within the band of reasonable responses.

[57]Secondly, gross misconduct is not a fixed concept, capable of precise definition. It will depend on the circumstances. The Employment Tribunal had adopted a rigid definition that gross misconduct must comprise either deliberate wrongdoing or gross negligence but the Trust was entitled to regard failure to adhere to Trust policy as gross misconduct. This had been stipulated as gross misconduct in the Trust's disciplinary code and it was the kind of repudiatory breach contemplated by the Court of Appeal in Wilson v Racher

[1974] ICR 428

; it was repudiatory conduct going to the root of the contract and the Employment Tribunal had erred by not recognising it as such.

[58]Thirdly, the Employment Tribunal recognised that the Respondent had been guilty of a serious failure of professional judgment (see paragraph 27.1.3(c) of the Judgment at page 16 of the judgment). Although Ms Stanford had said at the time she had done this before, so far as the Trust were aware nothing like it had occurred previously; that was a measure of its unique nature. In those circumstances to find that there was not gross misconduct was a decision that no reasonable tribunal properly directing itself could have reached.

[59]Fourthly, the Employment Tribunal never dealt with the Trust's conclusion that there was a breach of the mutual term of trust and confidence. It is articulated as an additional ground for dismissal in the letter of dismissal (see page 13 of the additional bundle, quoted in this Judgment at paragraph 34 above) and the Employment Tribunal had referred to it at paragraph 20.17 of the judgment (see page 11 of the bundle). But they reached no conclusion about it. In the circumstances of this case it was either the equivalent of gross misconduct in the sense that it amounted to the same thing or, if the conduct fell short of gross misconduct but was serious, it might still lead to a loss of breach of trust and confidence. The Employment Tribunal had erred by not addressing it.

[60]Fifthly, even if there was no substitution by the Employment Tribunal of its own view on the question of the difference between the cases of Ms Stanford and the Respondent, the Employment Tribunal had misdirected themselves as to the difference between the cases of the two nurses on the question of gross misconduct. What mattered was not the difference between the two but whether, properly evaluated the conduct of the Respondent amounted to gross misconduct. If it did, then it was reasonable to dismiss her, notwithstanding the difference between the two cases.

[61]Mr Johnston's position on Stoker v Lancashire County Council [1992] IRLR was that it had been correctly applied by the Employment Tribunal. Where the contract stipulates for a particular disciplinary procedure, then not to follow it amounts to repudiatory breach of contract. By parity of reasoning, Stoker applies just as much to a first instance procedure as it does to an appeal.

[62]In any event, the findings as to gross misconduct did not turn on the application of Stoker . Paragraphs 27.1.4(b) and (c) of the Judgment at page 18 of the bundle are not dependent on Stoker ; they depend not on contractual definition but on the factual matrix of the case. Failure to give adequate reasons

[63]Ms Morgan submits that the reasoning by which the Employment Tribunal concluded that the dismissal was unfair at paragraphs 27.1.4(b) and (c) of the Judgment (see pages 17 to 18 of the bundle) is neither clear enough nor discursive enough to enable the Trust to know why it has lost. Consequently, it fails to cross the minimum threshold laid down by the Court of Appeal in Meek v Birmingham City Council

[1987] IRLR 250

as to a reasoned decision and an error of law arises. Similarly, the reference to delay at paragraph 27.1.3(f) of the Judgment, which must be taken to be a component of the unfairness of the dismissal, is not subjected to any explanatory reasoning as to how that delay caused the dismissal to be unfair. Consequently, this failure of reasoning also results in a " Meek " type error of law.

[64]On the contrary, submitted Mr Johnston, it is perfectly clear from both paragraphs that the Trust lost because the Respondent's conduct did not amount to gross misconduct either in terms of gross negligence or deliberate wrongdoing. Whether this be right or wrong is, no doubt, open to other challenges but it passes the Meek test and cannot be criticised under that authority. Defective Reasoning

[65]In many respects this part of Ms Morgan's submissions overlapped with those she made in relation to substitution. Her criticisms related to delay, to the findings as to Mr Gillespie's investigation and to the "missing" CCTV footage.

[66]The findings as to delay were not only redolent of substitution but also lacked any sound reasoning because the Employment Tribunal never made clear how the delay had prejudiced the Respondent's presentation of her case to the disciplinary panel. So far as Mr Gillespie's role as an investigator was concerned, mistakes and misapprehensions were made by him but they had all been corrected by the time of the internal disciplinary hearing and played no part in the reasoning process of the panel; that being so, they were without causative effect and it was an error on the part of the Employment Tribunal to consider them at all.

[67]The evidence as to the likely quality of the missing internal CCTV footage given by Mr Gillespie, namely that there were blind spots, which made it doubtful there was anything of significance to be seen, was, in effect, ignored by the Employment Tribunal. In any event, the Employment Tribunal also ignored the evidence that, whatever, it showed, would have made no difference because the disciplinary panel regarded the gravamen of the matter as the patient being taken outside the hospital. The Employment Tribunal had noted this (see paragraph 20.10 of the Judgment at page 10 of the bundle) but had then apparently given no weight to it.

[68]Mr Johnston's answer to delay was that it was one of a number of factors, which the Employment Tribunal had looked at in the round; that it was not the individual components that mattered. What counted was the overall picture, of which delay was only one part and there was a proper self direction by the Employment Tribunal as to delay, based on the authority of RSPCA v Cruden

[1986] IRLR 83

. The same approach of looking at the matter in the round applied equally to Mr Gillespie's shortcomings. So far as the "missing" CCTV footage is concerned, this was but one example of the Trust's failure to conduct a proper investigation and, as with delay and Mr Gillespie' errors, what counted was the overall picture. Contributory Fault

[69]Under section 123(6) of the Employment Rights Act 1996 , submitted Ms Morgan, it is the employee's conduct that falls for consideration, not that of the employer. If authority is needed for that proposition, it can be found in Parker Foundry v Slack

[1992] ICR 302

and Optikinetics Limited v Whooley

[1991] ICR 984

. Consequently, the Employment Tribunal had erred by not making a finding of contributory fault on account of the behaviour of the Trust. Nor could the reference to making a reduction of 20 per cent at paragraph 27.3 of the Judgment be taken as a considered decision as to contributory fault. Therefore the whole issue of contribution both as to the compensatory award and as to the basic award must be re-heard,

[70]In the Answer to the Notice of Appeal and the skeleton argument submitted on behalf of the Respondent, Mr Johnston was inclined to circumvent these arguments. But at the hearing he capitulated and accepted that there had been an error and that part of the Judgment must be remitted. Discussion and Conclusions

[71]We will deal with contributory fault first because there is now no controversy. The fact that the parties agree to an appeal or part of an appeal being allowed is not determinative. As His Honour

Judge Peter Clark put it in McKenzie v East Sussex County Council EAT/1334/98:

"It is not our practice to allow appeals by consent without our being satisfied that there is a good reason for making the order sought. See Practice Direction 13(4) and J Sainsbury plc v Moger [1994] ICR 800."

The relevant paragraph of the Practice Direction (i.e. the Practice Direction of 2008; see

[2008] IRLR 261

) is now paragraph 15.3.

[72]So we have to be satisfied that there is good reason. We have no hesitation in pronouncing ourselves to be so satisfied. The Employment Tribunal looked at this from the wrong end of the telescope. What should have been under scrutiny was the Respondent's conduct but the Employment Tribunal considered that of the Trust. That was an erroneous approach and, subject to our conclusions on other aspects of the appeal, the question of contributory fault in relation to both the basic award and the contributory award will have to be remitted for reconsideration.

[73]We turn now to one of the main issues, namely substitution. Before going further it is necessary to consider some aspects of the latest authority on substitution, London Ambulance Service NHS Trust v Small

[2009] EWCA Civ 220

;

[2009] IRLR 563

[74]Mr Small was a paramedic, who was one of an ambulance crew of two, responding to an emergency call in July 2005. He was experienced, well qualified and had an unblemished record. The patient was a 78 year old woman complaining of abdominal pain and Mr Small decided she should be taken to hospital. She was walked downstairs and then put in a carry chair. Whilst she was being carried from the house to the ambulance she had an episode of incontinence. Mr Small made a comment about it. On the way to hospital oxygen was administered but not at the level prescribed by the relevant manual. Other aspects of her treatment relating to examination, assessment, pain relief and record keeping were controversial.

[75]When in hospital (and no longer in the care of Mr Small) the patient had a series of heart attacks and later died. Her death was not connected with the way she had been dealt with by Mr Small. But complaint was made about her treatment at the hands of Mr Small. There was an investigation and a disciplinary hearing. Gross misconduct was found proved against Mr Small and he was summarily dismissed. He complained of unfair dismissal and the Employment Tribunal upheld his claim but found him to have caused or contributed to his dismissal and reduced the award by 10 per cent.

[76]The Trust appealed to this tribunal and a division presided over by His Honour Judge McMullen QC upheld the decision at first instance, notwithstanding the conclusion that one of the Employment Tribunal's factual findings was unsound. However the Employment Appeal Tribunal did find an error of law in the approach to contributory fault and remitted that question to the Employment Tribunal. The Trust appealed to the Court of Appeal. The Court of Appeal allowed the Trust's appeal and remitted the case back to the Employment Tribunal for a complete rehearing.

[77]The Employment Tribunal had investigated evidentially some of the factual findings of the disciplinary panel which were disputed by Mr Small, and concluded that the decisions made about them by the disciplinary panel could not establish a genuine belief on reasonable grounds in the employee's culpability. Having regard to what had been proved against, or admitted by, Mr Small what had been proved could not amount to gross misconduct; accordingly, the dismissal was unfair. Part of that analysis had referred to the procedure adopted by the employer but also, and as a discrete point, the Employment Tribunal found that a fair procedure had not been followed, thus rendering the dismissal unfair on that additional ground.

[78]The appeal to this Tribunal was founded on two main points. Firstly, and despite self directions to the contrary, the Employment Tribunal had substituted its own decision for that of the employer. Secondly, the Employment Tribunal had made a number of erroneous factual findings.

[79]Neither of those points was accepted by the Employment Appeal Tribunal, save in respect of one factual matter, which the Employment Appeal Tribunal did accept was erroneous but which it judged made no difference to the balance of the outcome. So far as factual findings were concerned, the Employment Appeal Tribunal said this in the course of paragraph 28 of the judgment:

"It must be recalled also that the Employment Tribunal is now specifically required by the Employment Tribunal Rules, rule 30 (6), to set out the findings of fact which it makes relevant to the issues which it has to decide. In this case, the Tribunal had set out that there were agreed facts and there were disputed facts. It follows if there are disputed facts, as identified by the Tribunal following submissions of Counsel, it is under an obligation to determine them if they are relevant to the decision, as they were. In this case, there were issues as to the grounds upon which the Respondent formed its belief, whether that belief was genuine, whether there was a reasonable investigation informing that belief, and whether on this material it was reasonable to dismiss. In addition, were allegations conduct and contribution (sic)."

[80]At paragraph 29 the Employment Appeal Tribunal reinforced the above by citation from authority relevant to contributory fault cases and to gross misconduct/breach of contract cases; in each situation, the Employment Appeal Tribunal suggested findings of fact have to be made. Similarly, where an investigation was impugned, the employment tribunal has to investigate the factual matrix in order to be able to understand what might have emerged had a proper investigation been carried out. In the instant case, there were three disputed areas of fact, which the Employment Tribunal had been obliged to examine.

[81]Moreover, the Employment Appeal Tribunal supported the Employment Tribunal's approach to procedure. It thought the Employment Tribunal had been justly and correctly critical of the procedure.

[82]The Court of Appeal reversed that Judgment and that of the Employment Tribunal. The judgment of the Court of Appeal was given by Mummery LJ. In the introductory part of the Judgment, at paragraph 3, he stated the basic principle relevant to cases like that of Mr Small to be as follows:

"The parties agree that the legal principles on conduct dismissals are those set out by the EAT 30 years ago in its judgment in British Home Stores Ltd v. Burchall [1978] IRLR 379 and affirmed by this court in Post Office v. Foley 2000 ICR 1283 . The essential terms of enquiry for the ET were whether, in all the circumstances, the Trust carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that Mr Small was guilty of misconduct. If satisfied of the Trust's fair conduct of the dismissal in those respects, the ET then had to decide whether the dismissal of Mr Small was a reasonable response to the misconduct."

He immediately went on in paragraph 4 to draw a distinction, which is of significance in terms of this case; this reads:

"The questions of law on this appeal relate to the ET's application of the legal principles when, as is often the case, there are related issues, in this case contributory fault and breach of contract. In quite a few cases the related issues will include constructive dismissal and, increasingly, discrimination in, or associated with, the dismissal. The additional issues require findings of fact. The additional facts are not the same facts as relate to the issue of the fairness of the dismissal."

[83]The Trust took three points; firstly, that the Employment Tribunal's criticism of the procedure was flawed; secondly, that factual errors made by the Employment Tribunal rendered the finding of substantive unfairness perverse; thirdly, that the Employment Tribunal had misapplied settled principle and substituted its own view for that of the employer. The thrust of this third point was identified at paragraphs 30 and 31 as follows:

" ... that the ET made findings of fact about conduct issues that were in dispute in the disciplinary proceedings. It then wrongly used its factual findings, which were based on the evidence that it had heard, in order to substitute its own decision on Mr Small's conduct dismissal for that of the Trust. Mr Reynold cited the decision of this court in Morgan v. Electrolux Ltd [1991] ICR 369 for the proposition that it was an error of law for the employment tribunal to substitute its own evaluation of the witness or of the evidence for that of the employer. The ET must consider the reasonableness of the employer's conduct. In judging that the ET was not to substitute its view as to what was the right course to adopt for that of the employer. 31. On the issue of liability, as distinct from the issues of contributory fault, the ET was not, as the EAT thought, bound to make the findings of fact that it used in deciding whether the dismissal was fair."

[84]The second point, referred to at paragraph 34 above, was not accepted by the Court of Appeal. But the first and third points were. As to the first, the Judgment proceeds, by reference to very specific factual details of the evidence, to accept the argument put forward on behalf of the Trust that the reasons advanced by the employment tribunal for finding the procedure to be flawed cannot, on analysis, support that conclusion. Although that specific analysis is not of assistance in the instant case, it will be appreciated that the Trust here makes similar criticisms.

[85]The third point is also pertinent for present purposes. In order to understand it fully, it is necessary to quote extensively from the latter part of the Judgment:

" B. Substitution and misapplication … 41. On the liability issue the ET ought to have confined its consideration to facts relating to the Trust's handling of Mr Small's dismissal: the genuineness of the Trust's belief and the reasonableness of the grounds of its belief about the conduct of Mr Small at the time of the dismissal. Instead, the ET introduced its own findings of fact about the conduct of Mr Small, including aspects of it that had been disputed at the disciplinary hearing. For example, the ET found that the daughter, who did not give evidence to the ET, had not told Mr Small that her mother was hypertensive and diabetic. Further, on the point whether Mr Small had done a risk assessment before asking the patient to walk, the ET held that there was no evidence that he had failed to carry out a risk assessment, but Mr Suter gave evidence to the ET that the critical issue before the disciplinary panel was that Mr Small had not carried out a proper patient assessment, before the decision was made. 42. The ET used its findings of fact to support its conclusion that, at the time dismissal, the Trust had no reasonable grounds to its belief about Mr Small's conduct and therefore no genuine belief about it. By this process of reasoning the ET found that the dismissal was unfair. In my judgment, this amounted to the ET substituting itself and its findings for the Trust's decision maker in relation to Mr Small's dismissal. 43. It is all too easy, even for an experienced ET, to slip into the substitution mindset. In conduct cases the claimant often comes to the ET with more evidence and with an understandable determination to clear his name and to prove to the ET that he is innocent of the charges made against him by his employer. He has lost his job in circumstances that may make it difficult for him to get another job. He may well gain the sympathy of the ET so that it is carried along the acquittal route and away from the real question - whether the employer acted fairly and reasonably in all the circumstances at the time of the dismissal. C. Separate and gradual fact-finding 44. I agree with the EAT that the ET was bound to make findings of fact about Mr Small's conduct for the purpose of deciding the extent to which Mr Small's conduct contributed to his dismissal. That was a different issues from whether the Trust unfairly dismissed Mr Small for misconduct. Contributory fault only arose for decision, if it was established that the dismissal was unfair. The contributory fault decision was one for the ET to make on the evidence that it had heard. It was never a decision for the Trust to make. That makes it different from the decision to dismiss, which was for the Trust to make. It was not the role of the ET to conduct a re-hearing of the facts which formed the basis of the Trust's decision to dismiss. The ET's proper role was objectively to review the fairness of Mr Small's decision by the Trust. 45. I am unable to agree with the EAT that the ET kept the issues and the relevant facts separate or that it avoided the error of substituting its own judgment about dismissal. Although the ET rightly warned itself against substitution and thought that it was not falling into that error, my reading of the reasons is that its findings of fact about Mr Small's conduct seeped into its reasoning about the unfairness of the dismissal. 46. Mr Marsh [Counsel for the Respondent, Mr Small] spoke of his experience that ETs often structure their reasons by setting out all findings of fact in one place and then drawing on the findings at the later stages of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal case for the ET to keep its findings on that particular issue separate from its findings on disputed facts that are relevant to other issues, such as contributory fault, constructive dismissal and, increasingly, discrimination and victimisation claims. Of course, some facts will be relevant to more than one issue, but the legal elements of the different issues, the role of the ET and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication. "

[86]Adopting the words of Mummery LJ, the main theme of the judgment might be described as avoiding the "substitution mindset". It is clear that the Court of Appeal rejected the Employment Appeal Tribunal's reasoning that where facts are disputed the employment tribunal must resolve them by admitting and evaluating evidence about them. Although there is no express reference to it, the Court of Appeal must be taken to have also rejected the reasoning of the Employment Appeal Tribunal that it is necessary to establish some factual matters in order to judge whether " whether, in all the circumstances, the … [employer] … carried out a reasonable investigation and, at the time of dismissal, genuinely believed on reasonable grounds that … [the employee] … was guilty of misconduct " (see paragraph 28 of the Judgment of the Employment Appeal Tribunal quoted above at paragraph 79 of this Judgment).

[87]In particular, the Employment Appeal Tribunal had suggested it might be necessary to understand what might have emerged had a proper investigation been carried out and that might involve fact finding on evidence not called before the disciplinary panel. Because the rejection of that by the Court of Appeal does not appear expressly on the face of the judgment, it is difficult to know whether it was rejected as a matter of principle of general application or on the specific facts of Small . We think it would be problematic if it were the former. To take a simple example, it would mean that the refusal of the employer to allow an exculpatory witness to be called at the disciplinary hearing could not be scrutinised by the employment tribunal hearing from that witness and deciding as to the reasonableness of the employer's decision by reference to its findings as to that witness's evidence. If it is not known what the witness might have said and if what might have been said is not evaluated, how is the reasonableness of not hearing the witness to be judged?

[88]That does not, of course, arise in such an acute form in the instant appeal but there are instances of evidence being heard at the Employment Tribunal, which evidence was never heard or addressed at the disciplinary hearing. They fall into two broad categories; firstly, evidence from a witness not called at the disciplinary hearing; secondly, evidence from a witness called at the disciplinary hearing but not asked to address the particular issue. In addition, there are instances of the Employment Tribunal reaching a different conclusion about the same evidence as was heard or seen by the disciplinary panel. We will deal with each in turn.

[89]The finding that patients were sometimes pushed outside on wheelchairs (see paragraph 6.4 at pages 3 - 4 of the bundle) did not come from evidence given by the Respondent to the disciplinary panel but from evidence given at the Employment Tribunal both by her and also by Sister Randall, who was not called before the disciplinary panel. Although such evidence would be relevant to contributory fault, the Employment Tribunal, at paragraph 27.1.3(c) of the Judgment (see p.16 of the bundle), refer to it in the context of unfair dismissal when saying: "The respondent suggests that even to take the trolley to reception was wrong: perhaps it was, but since patients are sometimes pushed outside in wheelchairs and invited to walk away, it seems clear that if in reception the patient had got down and walked away, no-one would have been seriously concerned." and there can be no doubt that this is an observation being made by the Employment Tribunal about the conclusion reached by the Trust and deriving from the Employment Tribunal's acceptance of evidence, which the disciplinary panel had not heard, as to the comparative seriousness of the incident. It is based on a finding of fact made by the Employment Tribunal as opposed to a critique of a finding of fact made by the disciplinary panel. At first sight, therefore, it suggests an equivalent error to that identified by the Court of Appeal in the approach of the employment tribunal in Small .

[90]Taken in isolation and looked at individually, however, we would not regard this as amounting to an error of law of sufficient impact to require us to interfere and remit the appeal for re-hearing. The finding as to the practice of taking wheelchairs outside the hospital was not a central plank of the Employment Tribunal's decision. As can be seen from the passage quoted at paragraph 90 above, it was part of an analysis of the gravity of the conduct. As such, it takes the matter no further than the subsequent passage in the same paragraph:

"As soon as the trolley was outside A&E, Mrs Westwood bent her efforts to persuading the patient to get up and leave. Again, if she had done so, it is difficult to believe that anyone would have taken a serious view of what had happened."

Although the conclusion in the second sentence may be open to challenge (as to which see below), the proposition that, had the patient left the premises, then the case would have had to be viewed differently, does not depend on the finding that the Employment Tribunal made in relation to the practice of wheeling the patient outside in a wheelchair. It will be necessary, however, to examine this finding in conjunction with other matters in order to consider what the cumulative effect might be and we will return to it later

[91]The Employment Tribunal plainly decided that the CCTV footage showed the two nurses returning one after another; paragraph 6.10 of the Judgment at pages 4 and 5 of the bundle cannot be read in any other way. Therefore the Employment Tribunal was making a finding as to what the images showed. But the Employment Tribunal also found at paragraph 27.1.3(c) of the Judgment at page 17 of the bundle that it was reasonable for the disciplinary panel to reach a different conclusion as to what the CCTV images showed and it seems to us, therefore, that no error arises out of the finding itself. But it will also be necessary to consider the cumulative effect, if any, of this finding; we will consider that later in this Judgment.

[92]The Trust's position was that after discharge, if a recalcitrant patient refused to leave the hospital premises, the policy was to call a doctor or senior nurse (see paragraph 6.7 of the judgment at page 4 of the bundle). But the Employment Tribunal accepted Mr Reilly's evidence, given for the first time at the Employment Tribunal (see paragraph 27.1.3(c) of the judgment at page 16 of the bundle), that calling Security was one acceptable way of dealing with such a situation. Moreover, his evidence was preferred to that of the Trust (see paragraph 20.10 of the Judgment at page 10 of the bundle).

[93]At first sight this seems to be a prime example of substitution. This was evidence not given to the disciplinary panel and the Employment Tribunal appear to have preferred that evidence. But it is not so simple. Mr Reilly would no doubt have given this evidence had he been asked about it. He was not asked about it because it was not an issue at the disciplinary hearing. Dr Khair is recorded at paragraph 20.10 as having accepted that:

" … parts of the CCTV material which were not before the panel might have corroborated Mrs Westwood's account of her movements and those of MS Stanford after they had returned to A&E. He said that would have made no difference to the outcome: in the mind of the panel, what mattered was the fact that the patient had been taken outside. In any event, he did not consider that Mrs Westwood had taken effective action to protect the patient by calling security: they were not the appropriate people to have contacted. "

But the dismissal letter does not criticise the Respondent for having called Security and, from the passage quoted above, it seems likely that the issue only arose at the Employment Tribunal and only then as a secondary issue. Once that context is appreciated, we do not think this constitutes substitution of the Tribunal's view for that of the Trust or, if it does, this is not a matter sufficiently central to the core issue (as to which see paragraph 105 below) as to nullify the judgment of the Employment Tribunal.

[94]The Employment Tribunal found that the patient had not vomited outside the hospital but had done so at an earlier stage before she had seen the doctor, who discharged her (see paragraph 6.3 of the Judgment at page 3 of the bundle). At paragraph 27.1.3 (b) of the Judgment, the Employment Tribunal noted that the evidence before the disciplinary panel and before the Employment Tribunal suggested that the patient had vomited before going outside. In the letter of dismissal, Dr Khair had made no reference to vomit. Therefore, we cannot regard this finding by the Employment Tribunal as contradicting any conclusion on the part of the Trust; nor do we regard it as significant.

[95]Turning from specific matters of evidence to findings of a more implied and, perhaps, impressionistic kind, Ms Morgan submitted that the Employment Tribunal minimised the vulnerability of the patient. This had been emphasised by the Trust in the letter of dismissal at pages 12 and 13 of the additional bundle. She was described as an "intoxicated female patient", who had been placed "at high risk and in a vulnerable position" "outside … in the middle of the night and in a vulnerable position" at page 12. The cot side had been lowered and the Respondent had "obtained no information of the patient's medical history or condition prior to taking her outside … [and] … did not provide any treatment to this patient". The Panel considered at page 13 whether it was an emotive use of language to describe the patient as "intoxicated" or "vulnerable" but the medical records showed her to have consumed alcohol or drugs and she had a history of psychiatric illness; consequently such criticism was rejected.

[96]The Employment Tribunal evaluated that conclusion at paragraphs 27.1.3(b) of the Judgment. Ms Morgan submitted that in doing so the Employment Tribunal was substituting its own view for that of the Trust.

[97]We disagree. What the Employment Tribunal does in these sub paragraphs of the Judgment is to subject the conclusions of the disciplinary panel to rational analysis and conclude that the panel's view overlooks the obvious fact that she had been discharged by a doctor; in other words she had been pronounced medically fit to leave the hospital. No special arrangements had been made for her transportation from the hospital. Therefore, it had been envisaged that she would walk away into the night. As the Employment Tribunal recorded at paragraph 6.14, about 17 minutes after she had first been taken outside, albeit provided with new clothing by Mr Reilly, she did walk out of the hospital.

[98]Moreover, it seems to us Ms Morgan overlooks the fact that the Employment Tribunal implicitly rejected the argument that the patient was not vulnerable at all.

(b) :

"We accept the submission for the respondent that as she did not get off the trolley and leave, in one particular respect she was more vulnerable than she would have been in that scenario; she was for about 5 minutes outside the hospital, flat on her back on a trolley. A female patient in that situation was plainly vulnerable to assault, and to the risk of falling of the trolley and suffering injury."

The scenario referred to is that of the previously intoxicated young female, with a history of psychiatric illness, walking away from the hospital in the centre of Birmingham at about 0400 hours.

[99]There is, no doubt, a fine line between scrutinising the reasons of the disciplinary panel in terms of the rationality of the analysis, on the one hand, and substituting the views of the Employment Tribunal for that of the employer, on the other hand. In our view, the Employment Tribunal was entitled to ask, as it did in paragraph 27.1.3(b), what the vulnerability amounted to and to analyse the factual matrix in order to answer that question. By doing so it was not substituting its own view for that of the disciplinary panel but analysing the reasoning of the panel. In doing so it stayed on the right side of the line.

[100]Another matter of general impression relied on by Ms Morgan was as to the manifest sympathy for the Respondent, which Ms Morgan submitted can be detected throughout the Judgment of the Employment Tribunal and has led the Tribunal into the error of judging the matter on its own view of the truthfulness of the Respondent, rather than by reference to the reasonableness of the conclusions reached by the Trust. This attitude on the part of the Employment Tribunal is made clear right at the start of the Judgment by paragraph 2. It has resulted in the acceptance of her account of events and the Employment Tribunal being prepared to form its own view as to what the CCTV footage shows. It has led to an over generous approach to the circumstances in which she made a statement to Mr Reilly and, thus, to a view as to the significance of discrepancy between what she had said in that statement and what she said to the disciplinary hearing. The reality was that the disciplinary panel had not believed her as to the sequence of events but the Employment Tribunal had glossed over that. Similarly, the Employment Tribunal had been willing to receive, and act on, evidence about a meeting between the Respondent and Mr Gillespie (see paragraph 9 of the Judgment) without affording the Trust any opportunity to deal with the matter.

[101]In our judgment, none of these matters, taken individually can be regarded as betraying substitution or misdirection or be regarded as sufficiently central to the core issue or otherwise so significant as to justify us interfering with the judgment of the Employment Tribunal. We will, however, need to consider their cumulative effect, when considered together with the matters dealt with at paragraphs 89 to 100 above.

[102]Another criticism of the Employment Tribunal's approach was by reference to the alleged shortcomings of the investigation and the disciplinary hearing. Delay has been fastened on by the Employment Tribunal but that delay, which was recognised by the disciplinary panel, has not been shown to be causative of any disadvantage or injustice suffered by the Respondent. Mr Gillespie may have been under some misapprehensions but these had all been corrected before the disciplinary hearing. Consequently, although the Employment Tribunal had focussed on the alleged shortcomings of the investigation and the disciplinary hearing, it had failed to demonstrate that any of these matters should have affected the outcome or, putting it another way, that a reasonable employer, faced with delay and the shortcomings in the investigation could not have reached the same conclusion as the Trust.

[103]These are powerful points and when they are added to the other matters we have just discussed at paragraph 89 to 100 above we confess to feeing some unease. Many of the matters referred to in those paragraphs would not, by themselves, render the decision erroneous but, when piled one on top of the other, do they amount to more than the sum total of their parts?

[104]In order to set the right context in which to answer that question, we must consider one further point of which Ms Morgan complained. It was substitution, she submitted, for the Employment Tribunal to have concluded that it was unreasonable for Mr Gillespie and the disciplinary panel to take the view that there was no difference between the cases of the two nurses. Discussion of this occupies most of paragraph 27.1.3(c) of the judgment. It seems to us that the nub of the case so far as Dr Khair and his panel were concerned is in the passage from paragraph 20.10 of the Judgment quoted at paragraph 94 above; the Respondent had wheeled the patient outside. This was the gravamen of the misconduct and in that respect the disciplinary panel had concluded that no distinction was to be drawn between her conduct and that of Ms Stanford. Ms Morgan's submission suggests that such a conclusion cannot be scrutinised by the Employment Tribunal without committing the error of substitution, which is what paragraph 27.1.3(c) represents.

[105]We do not accept that submission. We do not regard scrutiny of the proposition that there was no distinction between the nurses leading to the conclusion that, on the contrary, there was a distinction, as substitution. It was, perhaps, unfortunate that the Employment Tribunal deployed the allusion to the institutions and personalities of Athens in the 7th century BC; on any view (including that of the Employment Tribunal, which later in the same paragraph found the Respondent to have had a serious failure of professional judgment) what happened was not the "slightest infraction" and, although it matters not, Draco was not the tyrant but an appointed "thesmothetai"; a writer down of law or law giver. But in our view this somewhat florid analogy neither undermines the analysis, which follows, namely that there were obvious differences between the two cases, nor renders it a substitution of view. The belief that the Respondent had been guilty of particular misconduct is not sacrosanct, so as to be beyond examination by the Employment Tribunal. It is entitled and, indeed we would go so far as to say, must examine the reasonableness of that belief. This is what the Employment Tribunal did at paragraph 27.1.3(c) and that did not amount to a substitution of their view for the view of the Trust.

[106]Moreover, when the cumulative effect of all the criticisms levelled at the Employment Tribunal by Ms Morgan is assessed, such an assessment falls to be made against what we have concluded is the pivotal point of the case, namely the proposition that the misconduct was essentially taking the patient outside. This was something that the Respondent had admitted and the Trust took the view that it amounted to gross misconduct. In the mind of the disciplinary panel, what went before and what followed later were of secondary importance. Whether there was any CCTV footage that might have supported the Respondent's account was immaterial (see paragraph 20.10). Who had been the instigator did not matter. The "core of the … [Trust's} … case" (see paragraph 27.1.3(c)) was the NMC Code of Conduct, which made the nurse "personally accountable … [and] … answerable for your actions and omissions, regardless of advice or directions from another professional".

[107]We have looked at the criticisms made by Ms Morgan individually and have concluded that, taken by themselves, none of them amounts to the error of substitution by the Employment Tribunal of its own view for that of the Trust. We have also considered them collectively to see whether, taken as a whole, they have more critical mass. We have concluded that they do not make out a cumulative case of substitution. We are fortified in that view by looking at their context. We think that Mr Johnston is correct that, in essence, not much was in dispute in this case. Really the question is not whether the Employment Tribunal stayed on the right side of the line (and we have concluded that it did) but whether placing the patient outside the hospital on a trolley was gross misconduct and whether the Trust's finding to that effect is open to challenge. Accordingly, we turn to the issue of gross misconduct.

[108]Whilst recognising that the Employment Tribunal had accepted that the authority of Stoker v Lancashire County Council

[1992] IRLR 75

should not be applied in a mechanistic way, we do not regard it as a particularly illuminating authority so far as the instant appeal is concerned. It is a case concerned with the contractual right to an internal appeal. No doubt some of its logic might be transferrable to this case but the issue here is whether the fact that the Trust had a belief that the Respondent had been guilty of gross misconduct is dispositive, in the sense that all that can be asked is whether that belief was within the band of reasonable responses? Ms Morgan submits that is all that can be asked and that the Trust was entitled to regard failure to adhere to Trust policy as gross misconduct. Failure to adhere to Trust policy had been stipulated as gross misconduct in the Trust's disciplinary code and once the Trust concluded that its policy had been breached, it was entitled to conclude that breach amounted to gross misconduct. Accordingly it was an error of law for the Employment Tribunal to constrain gross misconduct to deliberate wrong doing or gross negligence. If what the Respondent had done amounted to a breach of Trust policy, then the Trust had stipulated that amounted to gross misconduct and that was an end of the matter; the Employment Tribunal could not look behind it.

[109]We do not accept that submission. It is not clear to us what the breach of Trust policy actually was. The conduct complained of was taking the patient outside. Assuming that is a breach of Trust policy, it still remains to be asked – how serious a breach is that? Is it so serious that it amounts to gross misconduct? In our judgment that is not a question always confined simply to the reasonableness of the employer's belief. We think two things need to be distinguished. Firstly the conduct alleged must be capable of amounting to gross misconduct. Secondly the employer must have a reasonable belief that the employee has committed such misconduct. In many cases the first will not arise. For example, many misconduct cases involve the theft of goods or money. That gives rise to no issue so far as the character of the misconduct is concerned. Stealing is gross misconduct. What is usually in issue in such cases is the reasonableness of the belief that the employee has committed the theft.

[110]In this case it is the other way round. There is no dispute as to the commission of the act alleged to constitute misconduct. What is at issue is the character of the act. The character of the misconduct should not be determined solely by, or confined to, the employer's own analysis, subject only to reasonableness. In our judgment the question as to what is gross misconduct must be a mixed question of law and fact and that will be so when the question falls to be considered in the context of the reasonableness of the sanction in unfair dismissal or in the context of breach of contract. What then is the direction as to law that the employer should give itself and the employment tribunal apply when considering the employer's decision making?

[111]Gross misconduct justifying dismissal must amount to a repudiation of the contract of employment by the employee: see Wilson v Racher

[1974] ICR 428

, CA per Edmund Davies LJ at page 432 (citing Harman LJ in Pepper v Webb

[1969] 1 WLR 514

at 517):

"Now what will justify an instant dismissal? - something done by the employee which impliedly or expressly is a repudiation of the fundamental terms of the contract" and at page 433 where he cites Russell LJ in Pepper ( page 518) that the conduct "must be taken as conduct repudiatory of the contract justifying summary dismissal."

In the disobedience case of Laws v London Chronicle (indicator Newspapers) Ltd

[1959] 1 WLR 698

at page 710 Evershed MR said:

"the disobedience must at least have the quality that it is 'wilful': it does (in other words) connote a deliberate flouting of the essential contractual conditions."

So the conduct must be a deliberate and wilful contradiction of the contractual terms.

[112]Alternatively it must amount to very considerable negligence, historically summarised as "gross negligence". A relatively modern example of "gross negligence", as considered in relation to "gross misconduct", is to be found in Dietman v LB Brent

[1987] ICR 737

at page 759.

[113]Consequently we think that the Employment Tribunal was quite correct to direct itself at paragraph 27.1.4(b) (see page 18 of the bundle) that "gross misconduct" involves either deliberate wrongdoing or gross negligence. Having given a correct self direction in terms of law, thereafter it fell to the Employment Tribunal to consider both the character of the conduct and whether it was reasonable for the Trust to regard the conduct as having the character of gross misconduct on the facts. The decision reached in that paragraph, whilst accepting that her conduct was "a failure of professional judgment" and a "serious one" and "fell short of the high standards demanded of a nurse", concluded that it could not be reasonably characterised as deliberate wrongdoing or gross negligence. In our judgment that was a decision open to the Employment Tribunal to make on the facts.

[114]Ms Morgan also complains that the Employment Tribunal never dealt with the Trust's conclusion that there was a breach of the mutual term of trust and confidence. This was, she submitted either the same thing as gross misconduct or, if the conduct fell short of gross misconduct but was serious, it might still lead to a loss of breach of trust and confidence.

[115]We do not accept that there is necessarily any equivalence between "gross misconduct" and breach of the mutual duty of trust and confidence. But if there is, then the first part of M Morgan's propositions takes the matter no further. If the conduct was gross misconduct, then, on her analysis, it would also be a breach of trust and confidence. This is really how the Trust puts it in the letter of dismissal and, on her own case, it is difficult to understand how the alternative proposition could have been addressed by the Employment Tribunal. Accordingly we do not see how any error arises. It is also worth pointing out that the evidence of Mr Reilly at the Employment Tribunal was that he would "without hesitation have her as again a colleague in A&E" (see paragraph 20.6 of the Judgment at page 9 of the bundle).

[116]Finally, we must deal with Ms Morgan's argument that the Judgment did not comply with the basic requirement of enabling the Trust to know why it had lost. We accept Mr Johnson's submission that the Trust are clearly informed by paragraphs 27.1.4(b) and (c) of the Judgment that it lost because it was not reasonable to conclude that the Respondent had been guilty of gross misconduct.

[117]The consequence of the above is that we will allow the appeal in relation to the issue of contributory fault, which will be remitted for re-hearing before the same Employment Tribunal with the parties at liberty to call whatever further evidence they wish to, on all other issues raised in the Notice of Appeal, the appeal is dismissed.

SANDWELL & WEST BIRMINGHAM HOSPITALS NHS TRUST v MRS A WESTWOOD [2009] UKEAT 0032_09_1712

Judge Peter Clark put it in McKenzie v East Sussex County Council EAT/1334/98:

(b) :

Cited in 2 later judgments