MR N T CHONDOL v LIVERPOOL CITY COUNCIL [2009] UKEAT 0298_08_1102

EMPLOYMENT APPEAL TRIBUNAL
BAILII case number: [2009] UKEAT 0298_08_1102Case No Appeal No. UKEAT/0298/08Venue 58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
Between
MR N T CHONDOLAPPELLANTLIVERPOOL CITY COUNCILRESPONDENT
Before
Mr Justice UnderhillDate 11 February 2009
[1]APPEARANCES For the Appellant MR ANGUS HALDEN (of Counsel) Instructed by: Messrs Ormerods Solicitors Green Dragon House 64-70 High Street Croydon Surrey CR0 9XN For the Respondent MR TIM KENWARD (of Counsel) Instructed by: Liverpool City Council Legal Services Municipal Buildings Liverpool Merseyside L2 2DH SUMMARY RELIGION OR BELIEF DISCRIMINATION Social worker dismissed on charges which included inappropriate promotion of his religious beliefs and arranging a visit to his home by a service user in a manner which blurred the distinction between client and friend. Claims for unfair dismissal and religious discrimination. Tribunal found that evidence did not justify any finding of inappropriate promotion of religious beliefs but that dismissal justified on other charge – Dismissal did not constitute religious discrimination because it was on grounds of inappropriate proselytisation rather than of Appellant's religion as such. Held:(1) Tribunal entitled to find dismissal fair on basis of only part of the employer's reasoning; and conclusion on fairness not perverse.(2) Tribunal entitled to dismiss discrimination claim on the basis that it did – No error in identification of comparator: Shamoon and Ladele relied on. THE HONOURABLE MR JUSTICE UNDERHILL (PRESIDENT) INTRODUCTION The Appellant, Naphtali Chondol was a social worker employed by the Respondent, Liverpool City Council ("the Council"), but seconded by it at the material times to the Mersey Care NHS Trust ("the Trust") as part of a Community Mental Health Team. He is a committed Christian. Following a disciplinary hearing in May 2007, he was summarily dismissed by letter dated 24 May. The decision-taker was Mrs Jan Sloan, whose job title was Development Manager, Community Services Portfolio. The Appellant commenced an internal appeal against the decision, but in the event that was not pursued.[2]On 15 August 2007 the Appellant commenced the present proceedings claiming that his dismissal was unfair and constituted unlawful discrimination contrary to reg. 6 of the Employment Equality (Religion or Belief) Regulations 2003 . By a reserved Judgment sent to the parties on 31 March 2008 an Employment Tribunal sitting in Liverpool, chaired by Employment Judge Reed, dismissed both complaints, although in the case of the unfair dismissal complaint the decision was by a majority only, with the Employment Judge dissenting.[3]The Appellant appeals against both decisions. He is represented before us by Angus Halden, and the Council by Tim Kenward, both of Counsel. THE FACTS[4]The general background to the allegations against the Appellant was a concern on the part of his managers that he did not recognise "the need for professional boundaries". This was raised with him by his manager, Bronwen Evans, at a supervision meeting on 8 May 2006 following an incident when he had given one of his service users a Bible. At a further meeting on 18 May Ms Evans had to emphasise that it was inappropriate for him to give "service users" – what used to be called clients - his personal telephone number and told him that he should not have visited a service user on a Saturday, outside normal working hours, or done so on his own, which contravened the Trust's "lone working procedures".[5]Against that background, the allegations which led to the Appellant's dismissal related to three specific incidents, two of which featured as specific "charges" in the disciplinary proceedings and the third of which was also apparently relied on to some extent by Mrs Sloan (see para. 17 below). We can summarise the relevant facts as follows. (1) The Unreported Assault[6]The facts about this incident are limited. As summarised in the decision letter, in the supervision meeting on 18 May 2006 the Appellant:
"…informed your manager of a visit made to a service user (JL) 2 months previously. The service user had become agitated and punched you in the chest however, you failed to complete an incident report or report the incident verbally to your managers. You were informed that this … contravened Health and Safety procedures."
[7]It seems clear that the incident was not regarded as particularly significant in itself, and no action was taken against the Appellant at the time. (2) Inappropriate Promotion of the Appellant's Religious Beliefs[8]It appears to be common ground that the Appellant was at all material times aware that the Council prohibited the overt promotion by social workers in the course of their work of any religious beliefs that they might hold. It is accepted that that constituted a reasonable management instruction.[9]In the disciplinary proceedings the Council relied on two incidents as showing that the Appellant was in breach of that instruction. The first was that to which we have already referred, namely that on 8 May 2006 he had given a Bible to a service user. The second was that in early December 2006 he had attempted to promote his religious beliefs to a different service user. The client in question had telephoned the Council on 10 December to complain that he did not want to see the Appellant again because "he was talking about God and church and crap like that".[10]The Appellant told the disciplinary hearing that, as regards the first incident, the service user had specifically asked him if he had a Bible and that since he had one on him he handed it over; and, as regards the second, that all that he had done was to ask a single open question as to whether the service user had any belief in God or went to church. According to the Reasons, Mrs Sloan accepted the Appellant's version of the facts on both points: (That is not in fact apparent from the decision letter but presumably reflects her evidence before the Tribunal.) (3) The Incident of 1 st January 2007[11]There was apparently some dispute in the course of the disciplinary proceedings and/or before the Tribunal as to the facts of this incident; but again the Tribunal recorded that Mrs Sloan had accepted the Appellant's version of events. That version was that he had a Somali friend ("OM") who was suffering from mental illness and was living in a "low support" hostel managed by the Trust. OM telephoned the Appellant on New Year's Day and asked if he could come and visit him for a couple of hours: "his named nurse", Ian Gough, spoke to the Appellant and confirmed that the visit was authorised. The Appellant accordingly drove to the hostel and picked OM up, at which point Mr Gough said that he could be away for four hours. The Appellant wore his Trust identification badge and signed in as a social worker with the community mental health team when gaining access to the hostel. OM duly came back to his home. The visit passed happily for all concerned. When the Appellant returned OM to the hostel, Mr Gough asked him to make an entry in the patient notes, which he did: his entry expressed the view, inter alia , that OM posed no risk or threat to others and recorded his apparent wish to accompany the Appellant to church. It was when these notes were subsequently seen by the psychiatrist treating the Appellant that objections were first taken to what had occurred.[12]Mr Gough gave evidence before the Tribunal. He confirmed that he understood OM to be visiting the Appellant as a friend rather than as a social worker. However, he knew that the Appellant was a member of the community mental health team at the Trust and it was for that reason that he was happy to allow OM into his care. That was also why he asked him to make an entry in the notes. In the latter context, it is noteworthy that, according to the note of the evidence which we were shown (without objection), Mr Gough observed that he found it better that "escorting staff" should make first-hand notes: that demonstrates the blurring of the Appellant's roles about which the Council was concerned. It was also his evidence that he understood that OM was being taken to the local Somali centre and, at least implicitly, that he might not have authorised the visit if he had thought that OM was going to the Appellant's home; but, according to the Tribunal, Mrs Sloan "accepted that Mr Chondol had not deliberately misled [the staff at the hostel]".[13]It is the policy of the Trust, as part of its Policy and Procedure for Lone Working , that:
"Before working alone with service users outside Trust premises a risk assessment must be undertaken and documented. A risk assessment should be performed prior to starting work with a particular service user and that assessment should also inform future visits."
As noted above, the Appellant had been warned on 18 May 2006 about a visit to a service user which was, according to the supervision notes, "not safe or part of his contract" and which had placed him "in a vulnerable situation". No details of the incident appear from the papers before us, but it is evident that it was regarded by the Council as raising similar issues to the incident of 1 st January. THE DISMISSAL DECISION[14]In accordance with the Council's disciplinary procedure, an initial investigation was carried out by a community mental health team manager, Ms Shields, who produced an investigation report. This recommended:
"That a disciplinary hearing be convened to consider the allegation that Naphtali Chondol did behave in a manner that reflects gross professional misconduct on the two counts already listed Not to work outside normal hours without prior agreement/notice Not to promote Christianity."
The Investigating Officer, Ms Shields, commented:
"Naphtali's concept as to the role and function of a social worker seems very blurred. In the process of this investigation, in my interviews with him and with some of the witnesses his role has been questionable, i.e. that of social worker, friend or carer."
[15]The findings of the investigation were presented to the disciplinary hearing. According to the decision letter, the charges were more formally stated as follows:
"1. You worked outside of normal office hours without prior agreement or consent as you took a service user (OM) to your own home on a bank holiday (i.e. 1 st January 2007) without discussion with the MDT or a risk assessment having been conducted and without regard to the Lone Working Policy, potentially placing yourself and members of the public at risk. 2. You promoted Christianity to service users despite being informed and directed by management supervision that this is inappropriate in the social worker role."
[16]Since no procedural point is taken, we need not dwell on the hearing itself. In the decision letter Mrs Sloan summarised the evidence presented by the Council and the Appellant's evidence in response. She then proceeded to give her decision and reasons as follows:
"In making a decision in this case, I have listened carefully to all the evidence presented to me. I am satisfied that you have: Breached health and safety procedures and potentially placed people at risk. Breached lone working procedures. Failed to seek appropriate agreement to take OM to your home on 1 st January 2007. Failed to follow correct procedures in relation to visiting service users outside of your normal working hours. Failed to follow correct procedures in relation to the completion of incident reports. Failed to follow a reasonable management instruction not to overtly promote your religious beliefs. Failed to adhere to a service users care plan. With regard to the first allegation your managers have expressed their concerns to you and you have failed to follow their instructions and advice to remedy your future actions. As a professional social worker it is reasonable to expect you to understand the importance of complying with management instructions and complying with an individual's care plan. With regard to the second allegation, while I acknowledge your own religious beliefs and the fact that you feel your religious beliefs have helped you. However, your actions cause me concern because while undoubtedly religious beliefs can potentially be an important factor in an individual's life, this is not the case for everyone. A social worker acting in a professional capacity should not be placing an emphasis on religious beliefs that is out of proportion to a consideration of the many other factors that impinge on an individual's wellbeing. An over emphasis on religion could cause distress to service users who are already in a fragile mental state. As a qualified professional social worker you should be impartial and objective. I did not hear anything in your evidence presented to indicate that you understood this, despite previous warnings from management, within your supervision meetings. I feel that this lack of insight presents a very serious risk to service users and as such is not acceptable. Having taken all these factors into account, I am satisfied that your actions amount to gross misconduct in that you have failed to comply with a significant instruction and behave in such a way that constitutes a serious infringement of Health and Safety procedures placing both yourself, service users and members of the public at considerable risk. Furthermore, this represents an irreparable breach of the trust placed in you by the City Council and it is on that basis that it is my decision to dismiss you from your employment with the City Council with immediate effect. The date of your dismissal is 24 May 2007."
[17]The findings in the bullet points are apparently the basis of the decision to dismiss. The first four plainly refer to the incident of 1 st January 2007. The fifth refers to the unreported assault. The sixth is self-explanatory. As to the last bullet point, the reference is frankly obscure, but Counsel were agreed that it must have been intended to refer to one or more of the three allegations otherwise identified. The findings thus relate not only to the two charges but also to the unreported assault incident, which had not previously been relied on. THE TRIBUNAL'S REASONS Religious Discrimination[18]The Tribunal addressed the issue of religious discrimination first. At para. 18 of the Reasons, having found (as we have already noted) that Mrs Sloan accepted the Appellant's version of the facts, it observed that:
"It appeared to us that, having accepted that account, Mrs Sloan was not reasonably entitled to conclude that Mr Chondol had committed misconduct at all."
That finding is in truth relevant to the issue of unfair dismissal rather than to that of religious discrimination; and we will return to it in that context. The Tribunal continued:
"However, since she had genuinely taken a different view, and this view had contributed to the decision to dismiss, it followed that he had been treated less favourably and the question for us was whether that less favourable treatment was on the ground of his religion. 19. We remind ourselves what the actual reason for the treatment was: the belief that Mr Chondol had been inappropriately promoting Christianity to service users, even if (as we believed) that was not a reasonable belief. In other words, it was not on the ground of his religion that he received this treatment, rather on the ground that he was improperly foisting it on service users. We were satisfied that Mrs Sloan would have reached the same conclusion and acted in precisely the same way regardless of what religion she had believed was being promoted or indeed what view (religious or otherwise) was being promoted. 20. To put the matter in the language of regulation 29, we did not believe Mr Chondol had proven facts from which we could conclude an unlawful act had been committed. The fact that Mr Chondol was "mistreated" and was a Christian was not enough to shift the burden of proof to the respondent (any more than the fact that he is black would entitle us to require the respondent to deal with a claim of race discrimination). The fact that Christianity was relevant to the grounds for the mistreatment was not sufficient, given our finding that the motivation for Mrs Sloan's behaviour was the promotion of personal views. It follows that his claim of religious discrimination fails."
Unfair Dismissal[19]The Tribunal began its consideration of the unfair dismissal claim by dealing briefly with the first two of the allegations on which Mrs Sloan relied in taking her decision to dismiss, i.e. the charges of inappropriate proselytisation and of the failure to report an assault. As to the former, it held, as noted above, that on the Appellant's version of events Mrs Sloan could not reasonably have concluded that any misconduct had been committed. As to the latter, it said this:
"Mr Chondol gave an explanation for his failure to report the incident – in effect that he did not regard it as sufficiently serious. Mrs Sloan was reasonably entitled to take the view that it was misconduct on his part but it certainly would not have amounted to gross misconduct in itself, and nor did we consider it was the main allegation brought against him. That main allegation was his alleged misconduct on 1 January 2007."
[20]The Tribunal then proceeded to consider more fully the remaining potential justification for the Appellant's dismissal, namely the events of 1st January. As to that, the Reasons read as follows:
"28. It was certainly reasonable for Mrs Sloan to believe that Mr Chondol's actions were inappropriate. He had breached the Council's lone working policy and should not have taken the service user to his home without there having been a risk assessment. There were clearly and reasonably matters of serious concern to the Council. 29. The majority view was that in the light of that concern the Council were reasonably entitled to dismiss Mr Chondol. Mr Chondol had been spoken to previously about such matters, most significantly on 18 May at a supervision meeting. He was taken to task on that occasion for visiting a service user out of working hours. He was told that he had placed himself in a vulnerable situation and was potentially breaching health and safety policy. Furthermore, he was not legally covered regarding risk should an accident have occurred. Serious concerns were expressed about his competency in the understanding and practice of social work. 30. Despite such matters having been highlighted to him, he had demonstrated on 1 January his wholesale inability to understand his responsibilities. This had given rise to a potentially dangerous situation. There was no sign that he was capable of modifying his behaviour and fully understanding and discharging his responsibilities properly. In those circumstances, the Council was reasonably entitled to take the view that he had committed gross misconduct and decide to dispense with his services. 31. Nor did it affect the Council's case that one of the grounds (in relation to the promotion of Christianity) was not the cause of reasonable criticism. Although it is true that all of the matters found against Mr Chondol were taken into account in determining that he had committed gross misconduct, it was clear that the events of 1 January were very much more serious than the other matters. Even if the issue was not expressly canvassed by the Council in these terms, if, on the basis of the evidence before it, the Council would reasonably have been entitled to dismiss, it would be a nonsense if the dismissal was unfair where a peripheral element of the decision making process was open to criticism. 32. The minority judgment (of the Chairman) was otherwise. The principal ground for the decision to dismiss was indeed the events of 1 January but it was clear that Mrs Sloan took the view that Mr Chondol had not misconducted himself on that occasion (in the sense doing anything that he realised was wrong). Rather, in her view he genuinely but mistakenly considered what he was doing was appropriate. In other words, this was not really an issue of conduct but of capability. 33. That lack of capability – an inability to recognise the potential danger in situations such as this – was one that had certainly been pointed out to him at the meeting on May. However, on that occasion no disciplinary action (or more appropriately capability procedure) was instigated. That matter was dealt with by a quiet word at supervision. 34. Ordinarily, the reasonable expectation of an employee whose capability is questioned is that a procedure will be implemented whereby he will be warned that he is liable to be dismissed if his performance does not improve and will be warned that he is liable to be dismissed if his performance does not improve and will be given an opportunity to demonstrate such an improvement over a period of time (and indeed provided with training if appropriate). Clearly, that did not occur in this case. There will certainly be exceptional cases where such an opportunity is inappropriate. Those cases fall into two categories, namely where the potential consequences of the lack of ability are such that the employer cannot take the risk of permitting the employer to remain in post and secondly where the employee has demonstrated a wholly irremediable inability. 35. It is difficult to see how this could be a situation that fell into either category where several months earlier a criticism had been levelled at Mr Chondol for similar matters. 36. In short, the minority decision was that the shortcomings reasonably identified by the Council were not such as to justify dismissal."
THE APPEAL Religious discrimination[21]The Appellant's case was that his dismissal constituted discrimination on the grounds of his religion, contrary to reg. 6 of the 2003 Regulations, which prohibits religious discrimination in employment. Reg. 3 (1) defines such discrimination as follows: (1) For the purposes of these Regulations, a person ("A") discriminates against another person ("B") if— (a) on the grounds of the religion or belief of B or of any other person except A (whether or not it is also A's religion or belief) A treats B less favourably than he treats or would treat other persons; (b) … . Reg. 3 (3) reads: A comparison of B's case with that of another person under paragraph (1) must be such that the relevant circumstances in the one case are the same, or not materially different, in the other.[22]The Appellant's case is pleaded in the Notice of Appeal as follows:
"6.1 The Tribunal constructed the wrong comparator [Reasons Paragraph 19]. The correct comparator is someone known to have been of either no belief or of an unrelated different belief who behaved in the manner complained of, not someone known to be of a similarly protected belief (and equally unreasonably) considered to be committing misconduct because of that belief. 6.2 Given the correct comparator, and the Tribunal's view as to less favourable treatment, the conclusions at [Reasons Paragraphs 18 to 20] are unsustainable. 6.3 The Respondent relied upon a non-existent multi-faith policy in support of its actions."
[23]As to grounds 6.1 - 6.2, it is now well-recognised that in many cases debating the correct characterisation of the comparator is less helpful than focusing on the fundamental question of the reason why the claimant was treated in the manner complained of: see, classically, paras. 7-12 in the speech of Lord Nicholls in Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] ICR 337 (at pp. 341-2); and, most recently, the observations of Elias P in Ladele v London Borough of Islington UK EAT/0453/08, at paras. 32–38. In the present case the Tribunal made an explicit finding at para. 19 of the Reasons that "it was not on the ground of his religion that he received this treatment, rather on the ground that he was improperly foisting it on service users". That distinction between, on the one hand, the Appellant's religious belief as such and, on the other, the inappropriate promotion of that belief is entirely valid in principle (though of course in any case in which such a distinction is relied on it will be necessary to be clear that it reflects the employer's true reason). That being so, the question of how to define the comparator becomes academic. It necessarily follows that the Council would have treated "other persons" in the same circumstances in the same way. However, we should say that we can see nothing wrong in the way that the Tribunal expressed itself in the final sentence of para. 19: the comparator can indeed be described as a person who, in the course of his contact with service users, inappropriately promoted any religious belief or other strong personal view. If – which is not entirely clear (and which, with respect to him, Mr Halden was unable to elucidate for us in his oral submissions) – para. 6.1 of the Notice of Appeal suggests something different, we cannot agree. Mr Halden suggested that the decision of the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700 required a different approach; but we cannot see that anything in that decision requires a reconsideration of the effect of definitions of discrimination found in statutes and regulations other than the Disability Discrimination Act 1995 . We were also referred to Azmi v Kirklees Metropolitan Borough Council [2007] ICR 1154 : the approach of Wilkie J at para. 55 of his judgment (p. 1168) seems to us entirely consistent with our conclusion.[24]As to ground 6.3, we do not understand this, and Mr Halden did not pursue it in his oral submissions. Unfair Dismissal[25]Mr Halden's primary point, at least initially, was that once the Tribunal had decided that two of the bases on which the Council had decided to dismiss the Appellant did not amount to misconduct (or in any event serious misconduct) it was wrong in principle to uphold the fairness of the dismissal on the basis of the remaining act of misconduct. As he put it in ground 6.4 of the Notice of Appeal, the other two matters had had "a significant influence on the outcome", and for the Tribunal to attempt to decide what would have happened if those factors had not been taken into account involved it substituting its own view.[26]We do not accept that submission. The question which the Tribunal was required by s. 98 (4) of the Employment Rights Act 1996 to answer was whether, having regard to the reason shown by the employer, "the employer acted reasonably or unreasonably in treating [that reason] as a sufficient reason for dismissing the employee". The formulation of that question does not require the Tribunal to consider the correctness, or reasonableness, of every aspect of the employer's reasoning or of every matter that he took into account. A similar point was considered by this Tribunal (chaired by myself) in Tesco Stores Ltd v Othman-Khalid EAT/385/00. In that case it was argued that the employer had taken into account in deciding to dismiss the employee not only certain misconduct which had been fully investigated and which were sufficient to found dismissal but also certain other misconduct which, arguably, had been inadequately investigated. In my judgment, at para. 134, I said: "…[E]ven if that were so, it would not be in any way decisive on the question of fairness. The question under s. 98 (4) is whether the employer's action in dismissing the employee was, objectively, reasonable. Thus if, to take the facts here, it was reasonable to dismiss the respondent for the theft of the cigarettes it would not matter that the Appellant might, subjectively, have taken into account not only the relevant circumstances but another circumstance which the Tribunal believe to be irrelevant.[27]Mr Halden in his oral submissions accepted that that proposition was correct as far as it went, but he submitted that on the facts of the present case the Council's conclusion in relation to the incident of 1 st January 2007 was "tainted" by its conclusions in relation to the other acts of misconduct relied on, and in particular the Appellant's alleged inappropriate promotion of his religious beliefs. We are not sure that that way of putting it in fact gets round the difficulty of principle. But even if it may do so the question whether such "tainting" had occurred, so as to render the dismissal unfair, was one for the Tribunal. It is plain that the majority did not believe that to be the case, and we can see no error of law in that conclusion.[28]The Appellant's remaining points in relation to unfair dismissal are set out in the Notice of Appeal as follows: "6.5 The Appellant's failure to report an assault on him was seen by the Tribunal as a matter that properly concerned the Respondent in its second reason for dismissal, albeit a minor one [Reasons Paragraphs 24, 25], notwithstanding its absence from(i) the Respondent's notice dated 10 th January 2007 suspending the Appellant and all subsequent correspondence relating to the allegations the Appellant would be expected to address at the investigation and disciplinary hearings.(ii) the allegations the Appellant was told at the disciplinary hearing he would be expected to respond to. 6.6 In relying on purported breach of the Respondent's lone working policy as a reasonable cause for concern [Reasons Paragraph 28] in its third reason for dismissal, the Tribunal ignored or overlooked the evidence that the Appellant was neither at work nor expected to be at work at the material time. The Appellant's evidence (which was accepted in its entirety by the Respondent) was that he was not (and had never been) the social worker for the individual concerned, he was not on duty at any material time, he was attending the individual concerned as a member of the public in a private capacity as a friend, and that at all times this was understood and agreed by the person responsible for the individual (his nurse). He was therefore was not in any capacity acting as an employee of the Respondent and was not subject to (and could not have breached) the lone working policy governing employees in the course of their duties, nor could his actions be reasonably compared to a breach of the lone working policy or misconduct by an employee in the course of their employment. 6.7 For similar reasons, the Tribunal expressed a misplaced concern that the Appellant's actions took him outside the legal cover in place for employees in the course of their employment [Reasons Paragraph 29]. 6.8 See 6.2 above. The only sustainable view was that of the Employment Judge who (correctly) acknowledged [Reasons Paragraph 32 to 34] that a dismissal for misconduct was not justified.[29]As to ground 6.5, the Council appears to have made a procedural error in relying, at least to some extent, on a matter which did not form part of the charges against the Appellant: see para. 17 above. Whether this could have given rise to any substantial injustice may be another matter; but in any event since the Tribunal put aside this factor in reaching its conclusion on the issue of unfair dismissal we cannot see that any failure that there may have been in this regard was material.[30]It is convenient to take next ground 6.8, which is in effect an allegation of perversity. As to that, all three members of the Tribunal accepted that the Appellant was guilty of misconduct on 1 January 2007: where they differed was as to the seriousness of that misconduct. The fact that the Employment Judge took a different view from the lay members demonstrates that this was a matter on which there was room for views to differ. But the question for us is whether the view taken by the majority was one which was reasonably open to them. We believe it was: the points made in paras. 29–30 of the Reasons seem to us entirely legitimate.[31]We return to grounds 6.6–7. These points were not in fact developed by Mr Halden in his oral submissions, but we did not understand them to have been abandoned. We do not believe that there is anything in them. They focus on a technical analysis of the capacity in which the Appellant was taking care of OM – that is, whether he was doing so as a friend or as a social worker. But, whatever the formal position on such an analysis, that overlooks the gravamen of the charges against him, clearly put by Ms Shields in the investigation report, namely that he showed no appreciation of the important boundaries between his position as a friend and his role as a social worker. This was amply illustrated by the events of 1 January, which in any event had to be seen against the background of the previous advice that he had received. We can see nothing wrong in the conclusion of the majority that the Appellant's conduct in this regard was so serious that the Council could properly treat it as a reason for dismissal CONCLUSION[32]This appeal must accordingly be dismissed.

Cited in 1 later judgment