Barchester Healthcare Ltd v Tayeh (Unfair Dismissal : Reasonableness of dismissal) [2012] UKEAT 0281_11_1104

EAT
Barchester Healthcare Ltd v Tayeh (Unfair Dismissal : Reasonableness of dismissal)
[2012] UKEAT 0281_11_1104 · 2012-04-11
[1]This appeal concerns a judgment of the Employment Tribunal sitting in Watford dated 7 April 2011. By a majority (Mrs Long and Mrs Burrage, Employment Judge Southam dissenting) the Tribunal held that Mrs Anita Tayeh had been unfairly dismissed by Barchester Healthcare Limited (“BHL”). Against that judgment BHL appeals. The Tribunal went on to hold by a majority that there should be deductions under the Polkey principle (12.5%) and for contributory fault (50%). Against those findings BHL appeals and Mrs Tayeh cross appeals.[2]In accordance with a direction given by HH Judge Peter Clark at a preliminary hearing of this appeal we have dealt first with the issue of unfair dismissal; and this is our judgment on that issue. The background facts[3]Mrs Tayeh is a registered nurse with many years’ experience. With effect from 19 December 1996 she was employed at Magnolia Court Care Home. BHL (which operates registered care homes on a substantial scale) subsequently took over the Care Home and became her employer. By the time of her dismissal on 11 March 2010 she was working a 48 hour week undertaking four 12-hour night shifts. On those shifts she was the registered nurse responsible for the second floor of the Care Home.[4]BHL’s disciplinary procedure, which was contained in its company handbook, set out a list of matters which were regarded as examples of gross misconduct. They included the following:
“Breach of safety rules and/or any action which endangers the health or safety of residents/patients, visitors or work colleagues. Failure to administer to, or the mismanagement of drugs, in respect of residents or patients. Falsification of time sheets and or pay documentation. Falsification of the written records of the company. Fraud or any other illegal offence committed against the company.”
[5]The events which led to her dismissal took place principally on two dates.[6]On 2 December 2009 managers of BHL (Ms Lampard and Ms Caratella) undertook an unannounced visit to the home in the middle of the night. They found various shortcomings in the Care Home, including staff who were asleep. Some of those shortcomings concerned the second floor where Mrs Tayeh was in charge. As regards Mrs Tayeh there followed a series of investigatory meetings, the last of which took place on 1 February 2010. BHL, in the light of shortcomings on both floors, employed an additional nurse covering both floors with a specific brief to ensure that night staff did not sleep on duty.[7]Then, on 10 February 2010, a second cause of complaint arose. A new resident, RF, had been admitted that day. At about 19.40 she suffered a fall. The doctor was asked to attend. Mrs Tayeh came on duty at about 20.30pm. The doctor did not arrive until 23.20. The doctor suspected that the patient had sustained a fractured hip and arranged her admission to hospital. BHL’s principal complaint against Mrs Tayeh was that between 20.30 and 23.20 she did not carry out any observation of the patient. BHL also complained that she did not complete necessary paperwork concerning the transfer of the resident to hospital.[8]Mrs Tayeh was suspended on 16 February and summoned to a disciplinary hearing by letter dated 26 February. The hearing took place on 4 March 2010. It was conducted by Mrs Garner, BHL’s General Manager.[9]As regards the December date there were four allegations against Mrs Tayeh. They were as follows. “(1) In your roles of Nurse in charge on this floor, you allowed residents bedroom doors to be wedged open with items of furniture. (2) You were observed to be wrapped in a blanket and asleep whilst on duty. (3) You also allowed 2 care assistants on your floor to sleep whilst on duty at the same time, resulting in no member of staff on that floor observing the residents to see to carry out duties in relation to the needs of the residents or identify problems / carry out routine checks. (4) Falsifying documentation in relation to a peg feed due to start at 0600 hrs. You had recorded at 0300 hrs that the feed had been commenced at 0600 hrs.”[10]A word of explanation is required concerning allegation (4). A peg feed is a form of continuous drip feed which lasts for several hours. Mrs Tayeh accepted that at about 03.00 she had completed an entry against the space for 06.00 for a patient indicating that a peg feed was given at 06.00. Her mitigation was that she made the entry as a reminder to herself and that she did give the feed at the due time. She said that if she did subsequently forget to administer the feed she would have crossed off the entry.[11]As regards the February date there were two allegations against Mrs Tayeh. These were as follows, viz that she failed to - “(5) Make any assessment of this resident and carry out observations following a fall. The resident on assessment by a doctor was found to have obvious shortening and diagnosis of a likely fracture and was sent to hospital. (6) You failed to raise or provide necessary Barchester documentation for transfer to hospital.”[12]Mrs Tayeh accepted that she had not in fact carried out any observation of the resident between 20.30 and 23.20. Both prior to and at the disciplinary hearing she accepted that this was so. She agreed that during this time the patient was not examined and she did not consider reviewing the patient’s condition. She said that she was waiting for the doctor to arrive; that she was very busy with patients and preparation of paperwork; and that she thought that the additional nurse (who was on this occasion Florence Baira) was available.[13]On behalf of BHL Mrs Garner found each of the allegations to be established, but she dealt with them in different ways. Allegations(1) to (3) inclusive relating to the December date were each made the subject of a final written warning. Allegation (4) relating to the December date, and allegations (1) and(2) relating to the February date resulted in dismissal for gross misconduct.[14]On these matters Mrs Garner’s letter of dismissal dated 10 March 2010 set out the following conclusions. “With regards to falsification of the peg feed documentation, you have admitted to completing this documentation prior to the event. You stated that this was a ‘mistake’. I am satisfied that there was falsification of documentation at the point this was written as this had not taken place. Additionally I was concerned at your statement that you would have crossed this off if it did not happen as this would be a clear breach of nursing guidelines and acceptable practice. With regards to the allegation of neglect of care towards a resident on 10 th /11 th February and failing to complete transfer documentation, you have admitted that you failed to carry out observations or any nursing interventions. You also admitted to relying of doctors documentation rather that completing the required Barchester documentation. I am satisfied that your failures amount to serious neglect of duty on your part in respect of the care provided to this resident. You have failed to provide any mitigating factors. However in reaching my decision I have taken into account the fact that you have worked for the company for 11 years. […] With regards to the final two bullet points above, the falsification of peg feed and neglect of duties in relation the resident on 10/11 th February 2010, I consider your actions to be Gross Misconduct and having considered all alternatives I have decided to take the severest sanction an employer can take against an employee and to summarily dismiss you with effect from 11 th March 2010.”[15]Mrs Tayeh appealed against this decision. Her appeal was heard on 8 April 2010 and rejected by letter dated 12 April 2010.[16]We have drawn this summary from the judgment of the Employment Tribunal and from the papers before us. We should mention, in passing, one further feature of the papers. They contain, at the request of Mrs Tayeh, a recent statement by Ms Lampard dated 17 March 2011 prepared for proceedings before the Practice Committee of the Nursing and Midwifery Council. This statement suggests that the unannounced visit took place on 1 December (a day earlier than the Tribunal found) and exhibits documents, including a fluid chart, for 1 December. Mrs Tayeh challenges those documents. She does not, however, challenge the fluid chart which was before the Tribunal for 2 December, which she accepts she completed in advance of giving the peg feed in question. Ultimately, therefore, we do not need to be concerned with the statement now prepared by Ms Lampard for the Nursing and Midwifery Council. The Tribunal’s reasons[17]The Tribunal began its judgment by setting out the procedural background and the issues to be determined. It set out the relevant law of unfair dismissal, directing itself in particular, by reference to Post Office v Foley [2000] IRLR 827 , that the Tribunal’s responsibility was to determine whether or not dismissal in the particular circumstances “fell within the band of reasonable responses that a reasonable employer might have adopted”. The Tribunal made detailed findings of fact as to the circumstances of the dismissal.[18]The Tribunal then turned to its conclusions. As regards the reason for dismissal it stated:
“14. We are first of all required to consider the reason why the claimant was dismissed. It is clear to us that the dismissal was because of the fourth, fifth and sixth bold bullet points in the dismissal letter of 11 March 2010 [126-127]. Those matters relate to the claimant’s conduct and, accordingly, the reason for the claimant’s dismissal was clearly a potentially fair reason.”
[19]The Tribunal found that BHL – in particular Ms Garner – honestly and reasonably believed in the truth of these allegations (which were, as the Tribunal noted, largely admitted): see paragraphs 18 and 19 of the Tribunal’s reasons.[20]The Tribunal considered that there were shortcomings in BHL’s investigation and in the procedure which it followed. These were set out in paragraphs 16 and 17 of its reasons (investigation) and in paragraphs 21 to 23 (procedure). The Tribunal then turned to consider “whether or not the dismissal fell within the reasonable range of responses”.[21]At this stage it is, we think, necessary to set out the whole of the Tribunal’s reasoning. “24. We are unanimous that dismissal for the inaccurate peg feed documentation does not fall within the range of reasonable responses. The claimant was not suspended. She was not told about the matter. There was no supervision put in place to ensure that such a matter was not repeated, nor was she subjected to training. It is wholly inconsistent, in our judgment, for the respondent to say in March 2010 that dismissal is justified for this matter alone, when they failed to take any of the indicated action at the time of the incident. We note that the claimant accepted that it was a falsification of a record, but when one looks at the other examples of falsification that appear above and below the entry marked, ‘falsification of the written records of the company’ at [42], it is clear that this matter is in a different category of seriousness from the types of gross misconduct which appear above and below it in that list. Furthermore, the seriousness of the making of a false record is tempered by the fact that, in this particular case, the situation could easily be checked between 3:00am and 6:00am. The patient could be checked to see whether there was any feed in operation through the peg system and the same could be done after 6:00am. Even if the claimant had forgotten, despite her reminder to administer the feed at 6:00am, the patient would be visibly without the feed and the matter could be rectified. This is quite different from making a record in advance of administering a drug which has to be taken by mouth. The feed would last several hours.25. As regards the failure to make observations and complete the transfer form, we deal with the transfer form first. We all agree that it would not be within the range of reasonable responses to dismiss the claimant for the failure to complete the transfer form alone. It seems to us that the claimant gave a good account of the reasons why the transfer form was not completed on this occasion and, furthermore, the claimant did her best to provide documentation to accompany the patient with the ambulance crew to the Royal Free Hospital. It would not, in the tribunal's judgment, be reasonable for the claimant to have been dismissed for this matter alone.26. We now turn to the failure to make observations. In this respect the tribunal is divided. The employment judge, who is in the minority, says that dismissal is within the range of reasonable responses for this matter. The claimant accepted that she was in charge of the floor and responsible for the care of the resident, RF. She clearly took responsibility for the patient, dealt with the relatives and later the doctors who arrived to examine her and she took responsibility for ensuring there was paperwork that accompanied the resident on her transfer to the Royal Free Hospital. Furthermore, the claimant admitted to the respondent that she had failed to make observations in respect of RF. For those reasons the Employment Judge says that dismissal lies within the range of reasonable responses, particularly bearing in mind the accountability provisions in the Nursing and Midwifery Council Code of Conduct.27. The majority is of a different view. The reasons for their holding that dismissal does not lie within the range of reasonable responses in respect of this matter are these. First, Ms Garner, improperly in the majority view, included in the rationale for dismissing the claimant, an alleged failure to carry out nursing interventions. This was not part of the disciplinary charge. The charge had referred to failure to make assessments of the resident and failure to carry out observations. It appeared to the majority that Ms Garner sought artificially to increase the seriousness of the charge so as to justify dismissal by including a reference to a failure to make nursing interventions, which had not appeared as an issue in the disciplinary action. The second matter was for Ms Garner to include in her rationale for dismissal, reference to the transfer documentation which, in the view of all the members of the tribunal, would not have justified dismissal. The third matter is that Ms Garner appears to have concluded that the claimant had failed to provide any mitigation. On the reading by the majority of all the documentation, that was not true. The fourth matter is that Ms Garner failed to investigate the mitigation that the claimant put forward. In this respect, the majority particularly refers to the possibility of confusion as to responsibilities as between Florence Baira and the claimant on the night in question, and the other limitations on the investigation described above at paragraph 17.28. For those reasons, the majority holds the dismissal of the claimant to have been unfair. They say that for the failure to make observations, in the particular circumstances, dismissal did not lie within the range of reasonable responses.”[22]In order to understand paragraph 28 it is necessary to set out also paragraph 17 of the Tribunal’s reasons (a paragraph which appears to be part of its unanimous conclusions). “17. As regards the observations and transfer documentation, the tribunal was not told, nor was the claimant during the course of the disciplinary proceedings, the standard of observations that was required or their frequency. No documentation was produced, such as a blank observation sheet which would have demonstrated what was required of the claimant. There was conflicting evidence about responsibility on the night in question as to the administration of medication, the making of observations and who actually did the medication round. Lastly, it is not clear to us that the respondent sufficiently analysed the possibility of breakdown in communication as between Florence Baira and the claimant. It needs to be borne in mind in this respect that Florence Baira was brought in primarily to ensure that the nursing staff on duty at Magnolia Court did not sleep on duty. The claimant understood that Florence was expected to help with normal nursing duties. It was a legitimate area, it seems to us, for the respondent to investigate what was the precise division of responsibility on the night in question, but that was not done. Against that, it must be said that the respondent had available to it the claimant's admissions of failure in relation to the making of observations.” Submissions[23]On behalf of BHL Mr Chaudhuri has made wide-ranging submissions to the effect that all parts of the Tribunal’s reasoning concerning unfair dismissal – including the unanimous reasoning – betray an error of law. He has submitted that the unanimous reasoning of the Tribunal as regards the peg feed (paragraph 24 of its reasons) and as regards the transfer documentation (paragraph 25 of its reasons) were erroneous in law as being perverse or as amounting to the Tribunal substituting its own view for that of the reasonable employer.[24]In respect of the peg feed allegation, he submits that the Tribunal’s reasoning shows that it substituted its own view for that of the employer, in particular downgrading the importance of falsification of documents as a species of gross misconduct when the employer’s documentation did not do so. He submits that the Tribunal was also wrong in fact in saying that Mrs Tayeh was not told about the matter.[25]He has however, concentrated his attack most particularly on the reasoning of the majority, by reason of which the dismissal was found to be unfair. His principal submissions are the following. The majority was not entitled to find that Ms Garner inflated the charge by adding a reference to nursing interventions; this was a misunderstanding of the dismissal letter (which was in reality saying no more than that the patient received no attention by observation or any other means), and the charge was never put to Ms Garner. The majority ought not to have criticised the reference to transfer documentation, which was a separate matter. The majority ought not to have found that Ms Garner appeared to have concluded that the Claimant failed to provide any mitigation; and was perverse in concluding that further investigation was required into the possibility of confusion between Mrs Tayeh and Ms Baira when, on any possible view, Mrs Tayeh was in charge of the ward and responsible for the care of the resident, who was vulnerable and injured.[26]Mr Chaudhuri developed a further submission – a ground added by amendment at a preliminary hearing of this appeal. He submitted that the Tribunal, including the majority, erred in law in looking at the three grounds relied on by BHL separately rather than cumulatively. The Tribunal ought to have considered whether collectively the totality of the allegations accepted by BHL which led to Mrs Tayeh being dismissed amounted to a decision which was within the band of reasonable responses.[27]On this question we drew to the attention of the parties the decision of the House of Lords in Smith v Glasgow DC (1987) IRLR 326, to which we shall return later; and Mr Chaudhuri addressed submissions to us on that case.[28]Mr Chaudhuri accepts (and Mrs Tayeh confirmed) that the Tribunal recalled Ms Garner to give evidence and expressly asked her whether she took the view that each of the allegations separately amounted to gross misconduct; and that she answered that this was her view. He argued that nevertheless the Tribunal ought to have considered the allegations collectively or cumulatively in considering whether the dismissal was fair. He suggested that Ms Garner may have hedged her bets in her answer to the Tribunal.[29]Mrs Tayeh submits, correctly, that the Appeal Tribunal’s remit is restricted to questions of law. She submits that the Tribunal’s reasons contain no error of law, and that the Tribunal – including the majority where it was not unanimous – was entitled to reach the conclusions which it reached. She argues that the decision of the Tribunal was correct and should be upheld.[30]On the question of the peg feed she accepts, as we have said, that she made an entry on the fluid chart in advance of giving the feed. She said that she was entering the information as an aide memoire to herself to give the peg feed. She argued that this did not amount to falsification of a document, and further that she did not appreciate that it amounted to falsification of a document. On the question of observing the resident, she accepts that no observations were carried out between 20.30 and 23.20, when she was responsible for the floor. Her principal argument before us was that observations should have been carried out earlier, prior to 20.30, when others were on duty. She said that she was busy; that there was no evidence in the notes that the patient had been injured; and that the patient appeared to be asleep. As we have said, she drew attention to the statement of Ms Lampard prepared for the Nursing and Midwifery Council. Statutory provisions[31]The statutory provisions governing unfair dismissal are well known. It is sufficient to cite section 98(1), (2) and (4) of the Employment Rights Act 1996 . “98 General(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show - (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.(2) A reason falls within this subsection if it – (a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do, (b) relates to the conduct of the employee, (c) is that the employee was redundant, or (d) is that the employee could not continue to work in the position which he held without contravention (either on his part or on that of his employer) of a duty or restriction imposed by or under an enactment. (4) In any other case where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) – (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and (b) shall be determined in accordance with equity and the substantial merits of the case.” Discussion and conclusions[32]As we turn to consider the various grounds of appeal, we emphasise that the Appeal Tribunal hears appeals only on points of law: see section 21(1) of the Employment Tribunals Act 1996 . In a case such as this, the Appeal Tribunal is concerned to see whether the Tribunal has firstly stated and secondly applied correct legal principles and reached findings and conclusions which are supportable, that is to say not perverse, if the correct legal principles are applied. A finding or conclusion is perverse if and only if it is one which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. The Appeal Tribunal’s role is limited. Parliament has made Employment Tribunals the arbiters of all questions of fact. Moreover the Appeal Tribunal will endeavour to read the reasons of a Tribunal in the round, without being unduly critical or technical.[33]The Tribunal's task was, essentially, as follows. Firstly, it had to decide whether the employer had shown what the principal reason was for Mrs Tayeh’s dismissal. Secondly, it had to decide whether that principal reason fell within section 98(2). Thirdly, it had to decide whether BHL acted reasonably or unreasonably in treating its principal reason as a sufficient reason for dismissing her. Where the allegations are allegations of misconduct by the employee the following questions are generally relevant to this last issue: whether the employer genuinely believed in the allegation of misconduct for which it dismissed; whether there were reasonable grounds for that belief; whether the employer had carried out as much investigation as was reasonable in all the circumstances of the case; and whether dismissal was a reasonable sanction to impose. In determining whether an employer was reasonable in these respects, a Tribunal must always keep in mind that there may be a range of reasonable responses open to an employer, so the question whether an employer has been reasonable will depend on whether he is within or outside that range of responses.[34]Where, as here, there was more than one charge, a Tribunal should keep in mind the question whether the charges were regarded by the employer as cumulative or stood on their own.[35]If the charges were cumulative, in the sense that all of them together formed the principal reason for dismissal, it would be fatal to the fairness of the dismissal if any significant charge were found to have been taken into account without reasonable grounds: see Smith v City of Glasgow DC (1987) IRLR 326. In that case an employee was dismissed for unsatisfactory performance of his duties. Three main allegations were relied on cumulatively when reaching the decision to dismiss. One of those was not established. The Tribunal nevertheless held the dismissal to be fair. The employee’s appeal was allowed. Giving the leading speech in the House of Lords, Lord Mackay said – “To accept as a reasonably sufficient reason for dismissal a reason which, at least, in respect of an important part was neither established in fact nor believed to be true on reasonable grounds is, in my opinion, an error of law. The Industrial Tribunal fell into this error in this case.”[36]If, however, each charge stood on its own, for example independent instances of gross misconduct such that the employer would have dismissed for any of them without the other, then they would require separate consideration in determining whether it was reasonable to dismiss.[37]Take an example. Suppose that an employer dismissed an employee for two charges of theft, committed on different occasions, and each independently considered by the employer to amount to gross misconduct. The Tribunal would have to consider each separately. It might be reasonable (applying section 98(4)) to dismiss for one of the charges of theft even if it were not reasonable to dismiss for the other (if for example one had been properly investigated but not the other).[38]In this case the Tribunal has not expressly said whether it found the charges to have been put forward by BHL as cumulative or independent instances of gross misconduct. But it is plain from the Tribunal’s reasons that BHL’s case was put forward on the basis that there were independent instances of gross misconduct each meriting dismissal. See, for example, paragraphs 23 and 24 of the Tribunal’s reasons, referring to Ms Garner as saying that the peg feed incident merited dismissal on its own. We have no doubt, having read the letter of dismissal and listened to the parties explaining what happened when Ms Garner was recalled, that this was the approach Ms Garner took.[39]This being so, we do not think the Tribunal can be criticised for looking at the charges individually and making what were in essence independent findings about each charge. This is the way in which BHL itself approached the case. Section 98(4) requires the Tribunal to start with the employer’s reason for dismissal, not to construct reasoning of its own. Indeed, as we have seen from the Glasgow case, if BHL’s reasoning had been cumulative it would have been fatal to its case if any significant charge had failed the section 98(4) test.[40]For these reasons we reject the ground which Mr Chaudhuri added by amendment.[41]We turn then to Mr Chaudhuri’s submissions concerning the charges where the Tribunal unanimously reached conclusions adverse to BHL – the peg test charge and the transfer document charge.[42]We have reached the conclusion in respect of the peg test issue that the Tribunal has substituted its own conclusion rather than starting with the employer’s reasoning and applying the range of responses test.[43]This is, we think, clearest from the Tribunal’s finding that “falsification of records” is “in a different category of seriousness from the types of gross misconduct which appear above and below it in the list”. There is no warrant for that conclusion in the list itself, and we think it is unjustified.[44]It must be remembered that BHL runs Care Homes for vulnerable and elderly people. It employs nursing staff. Such an organisation is dependent on the keeping of proper records as a check on the treatment which patients receive. It is entitled to expect that professional nursing staff will complete them accurately and that they will indeed be a record of treatment actually given. To make an entry deliberately in a fluid chart when no fluid is given is indeed to make a false record (contrary to Mrs Tayeh’s submission to us). The Respondent is entitled to take such a matter seriously; the Tribunal was not entitled to substitute its own view that a false medical record was less serious than a false time sheet or pay documentation. A false time sheet or pay documentation does not relate directly to the care of elderly and vulnerable people.[45]We would add that there is what appears to us to be a mistake of fact in paragraph 24. The issue was raised with Mrs Tayeh on 4 December and again on 30 December when her case was investigated.[46]For these reasons we do not think that paragraph 24 of the Tribunal’s reasons can stand.[47]We can see no similar error of law in the Tribunal’s treatment of the transfer document issue. To our mind the Tribunal’s conclusion on that issue cannot be upset on appeal. On its own this issue would not have amounted to gross misconduct and would not have justified dismissal.[48]We turn then to Mr Chaudhuri’s submissions concerning the charge where the Tribunal reached a conclusion adverse to BHL only by a majority – the failure to keep observation on resident RF between 20.30 and 23.20, a period of nearly 3 hours when the patient, an elderly and vulnerable lady, had fallen and the attendance of a doctor was awaited.[49]We have reached the conclusion that the decision of the majority contains errors of law and cannot stand.[50]The first reason given was that Ms Garner improperly included in the rationale for dismissing Mrs Tayeh an alleged failure to carry out nursing interventions, thereby seeking artificially to increase the seriousness of the charge so as to justify dismissal by making reference to nursing interventions.[51]This conclusion by the majority appears to rest only on the wording of the dismissal letter. There is nothing elsewhere in the Tribunal’s reasons which suggests any impropriety on the part of Ms Garner. There is nothing to suggest that any allegation of impropriety was put to Ms Garner.[52]In our judgment the conclusion of the majority places a weight on a single phrase in the dismissal letter which it cannot possibly bear. The thrust of the charge against Mrs Tayeh is that while she was in charge of the floor in question over a period of nearly 3 hours a vulnerable and injured resident was not the subject of any proper observation. This is not a technical charge; it is not that nurses were looking after resident RF in other ways but failing to record observations. The charge is that RF was not being observed – whether by making routine observations or in any other way (for example noting her condition when administering fluids or the like). To our mind the dismissal letter was doing no more than emphasising that nothing of any kind was being done to keep resident RF under proper observation during those 3 hours. It was not seeking to increase the charge against Mrs Tayeh. In our judgment the majority was not entitled to conclude that there was any impropriety on the part of Ms Garner. It was not a permissible conclusion to draw from the letter in question.[53]The second reason given was that Ms Garner included reference to the transfer documentation, which would not have justified dismissal. But this was, as we have seen, a separate charge, with which Ms Garner was bound to deal. It does not follow that her conclusion on the observation charge was vitiated.[54]The third and fourth reasons can be taken together. They relate to the question of mitigation. It is indeed plain from the dismissal letter that Ms Garner did not consider there to be any real mitigation – except length of service, which she specifically mentioned. The majority considered that there was potential mitigation in the relationship between Mrs Tayeh and Ms Florence Baira; but(1) BHL did investigate what each of them said and did on the evening in question and(2) there can be no doubt that Mrs Tayeh was in charge of the floor from 20.30 for nearly 3 hours when no observations were made upon the patient. If the majority had kept in mind the range of reasonable responses test (which applies to investigation as much as to other aspects of the Tribunal’s enquiry – see J Sainsbury plc v Hitt [2003] ICR 111 ) we think it would inevitably have reached the conclusion that the Respondent’s investigation and consideration of this issue was within the range of reasonable responses.[55]It follows from what we have said that the appeal must be allowed. The question then is whether the case should be remitted for rehearing or whether we are in a position to substitute a decision of our own – a course which we should only take if, when the law is correctly applied, the answer is plain.[56]In our judgment in this case once the law is correctly applied the result is plain. The Respondent was entitled to find that it was gross misconduct to make an entry upon a fluid chart recording the giving of a peg feed when no peg feed was given. Such conduct amounted to the falsification of a record; there was no good reason or even sensible explanation for it; it is certainly not a good reason or sensible explanation to make a false medical record as an aide memoire. In our judgment applying section 98(4) it is plain that BHL was entitled to dismiss for it.[57]Quite separately, in our judgment it is plain that the Respondent was entitled to find that it was gross misconduct to make no observations upon an elderly and vulnerable patient, awaiting the arrival of a doctor after a fall, over a period of nearly 3 hours.[58]It follows that the appeal will be allowed and a finding substituted that the dismissal was fair.[59]In the circumstances no useful purpose would be served by considering questions relating to Polkey and contributory fault; and we will not do so.