Appeal No. UKEAT/0338/10/DA

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 2 November 2010
                                                                             Judgment handed down on 3 March 2011

Before
HIS HONOUR JUDGE BIRTLES
MRS J M MATTHIAS
MS G MILLS CBE

SUFFOLK MENTAL HEALTH PARTNERSHIP NHS TRUST	APPELLANT

(1) MRS A J CRAWFORD
(2) MR N PRESTON	RESPONDENTS

Transcript of Proceedings

JUDGMENT

	APPEARANCES

For the Appellant	MR PETER WALLINGTON 
(One of Her Majesty’s Counsel)
Instructed by:
The Law Offices of Richard Hemmings
Sandy Lane
Barham
Ipswich
IP6 0PB	
For the Respondents	MR ROBIN HOWARD
(of Counsel)
Instructed by:
Messrs Attwells Solicitors LLP
Beacon House
Landmark Business Park
White House Road
Ipswich
IP1 5PB	

SUMMARY
UNFAIR DISMISSAL – Reasonableness of dismissal

The Claimants were dismissed for gross misconduct in restraining an elderly dementia patient.  The Employment Tribunal found that the employer had insufficient evidence based on an inadequate investigation to ground its belief that the patient was tied to a chair and no effort was made to release him.  The EAT allowed an appeal based on a substitution mindset by the ET.  London Ambulance Service NHS Trust v Small [2009] IRLR 563 applied.  Case remitted to a fresh ET for a re-hearing because of insufficient clarity as to what the outcome would be.

HIS HONOUR JUDGE BIRTLES
Introduction
1.	This is an appeal from the judgment of an Employment Tribunal sitting in Bury St Edmunds in March and April 2010.  The judgment and reasons were sent to the parties on 12 April 2010.  

2.	The Employment Tribunal subsequently held a remedies hearing on 23 July 2010.  The written judgment and reasons were sent to the parties on 28 July 2010.  The Tribunal awarded Mrs Crawford £29,507.42 and Mr Preston £73,550.00.  There is no appeal against these awards but they are contingent not only on liability but also on the assessment in the decision on liability of 25% contributory fault, which is challenged within this appeal, and on the further ground of appeal based on the Employment Tribunal’s failure to determine whether there should be a Polkey reduction in compensation

3.	The Appellant applied to the Employment Tribunal (by a review application) and to the Employment Appeal Tribunal to adduce fresh evidence.  Both applications were refused.  This matter does not feature further in this appeal.

4.	The Appellant was represented by Mr Peter Wallington QC and the Respondents by Mr Robin Howard of counsel.  Following the conclusion of oral argument on 2 November 2010 we requested further written submissions from both counsel.

The Material Facts
5.	The material facts are set out in the judgment of the Employment Tribunal at paragraphs 1-32: EAT bundle pages 1-7.  There is also a helpful Appellant’s chronology prepared by Mr Wallington.

6.	Both Claimants and two other employees together made up the nightshift on 22 September 2008 on Westgate Ward at West Suffolk Hospital, an 18 bed ward for elderly patients with mental health problems.  The Claimants were each qualified nurses with over 20 years service and no disciplinary record.  Mr Preston was the Shift Co-ordinator.

7.	One of the patients, JE, was an 89 year old male dementia patient who had been exhibiting, and continued at the start of the nightshift to exhibit, aggressive behaviour leading to concerns for his personal safety.  At the relevant time, JE was seated in a Kirton Chair (a hospital chair with wheels) at and facing a table.  He had an intravenous drip attached to his body.

8.	Prior to undertaking a ward round and administering medication to the other patients, Mr Preston, with the knowledge and in the presence of Mrs Crawford, tied JE’s chair to the legs of the table with one or two bed sheets to inhibit him from moving.  A further sheet was either laid across JE’s body (the Claimants’ case) or tied round him and the chair (as the dismissing officer, Mr Mansfield, found.  That was denied by both Claimants).

9.	The incident was not reported or recorded by either Claimant but was reported to management by a staff nurse who observed the incident, Mrs Jeffrey.

The Employment Tribunal’s Conclusions
10.	Having briefly referred to the law (paragraphs 33-36) the Employment Tribunal set out its reasons at some length.  In view of the nature of this appeal we think it is important that we set out those reasons before considering the grounds of appeal.  They appear at paragraphs 37-52 of the Employment Tribunal judgment:

Conclusions
37 We are satisfied that the reason for the dismissal of the two Claimants was their conduct in relation to Patient JE on the night of 22 September 2008. That is a potentially fair reason to dismiss. We turn therefore to consider the reasonableness of the decision to dismiss for that reason and counsel ourselves against viewing the matter afresh as opposed to measuring the actions of the Respondent against the yardstick of a reasonable employer.
38 The Respondent was dealing with two very long-serving nurses who had no disciplinary record and against whom no malicious intent was alleged. It is incumbent upon employers of professional staff when considering dismissal to recognise that such a penalty has a more significant effect than it would upon a member of staff who was not covered by professional conduct considerations. A dismissal of a qualified nurse for acting inappropriately towards a patient can be a career-changing decision in that a reference to the relevant professional body can involve that nurse being unable to obtain other employment within the profession. It follows therefore that evidence of misconduct must be clear and cogent. That is not to say that the burden of proof becomes more than a balance of probability.
39 It is also to be understood that a lengthy period of suspension works harshly against those involved in professional practice and every effort should be made to reduce any necessary period of suspension. The Trust's code provides that there should only be suspension where continued attendance at work may compromise a full and fair investigation or present a risk to other employees, and that “Suspension must always be for the shortest period of time, initially for no more than two weeks” and “Any period of suspension or alternatives may only be longer than four weeks if authorised in writing by a Director.” It is provided, in relation to the investigation that “Investigators should make every effort to complete a report within six weeks.”
40 In this case, after the police had notified the Trust that they proposed to take no further action on 30 October, it took three months, to 4 February, for the investigation report to be presented and the individuals concerned remained on suspension from 26 September until 12 March, a period of just under six months. Such a lengthy process can put unnecessary pressure on both the employees and the decision maker.
41 It is incumbent upon the Respondent, in our Judgment, to put a clear allegation and then for the disciplinary hearing, the investigation and the decision to be based upon that clear allegation. We consider, in this case, that that clarity was lacking. The matter appeared clear at the point of suspension in that the Human Resources adviser explained on 25 September 2008 that “A quick summary is that a member of staff returned to the ward after leaving shift and observed four members of staff tying a patient up.” This was translated in the suspension letter as being “an alleged assault of a client on Westgate Ward on 22nd September 2008” and was deemed to be the reason for suspension.
42 The terms of reference for the investigation, however, not only cover a requirement to establish facts concerning an allegation of tying client JE to a chair but also seek that the investigators “Identify the policy and practice for the care of clients on Westgate Ward, particularly during the night” and “to establish facts concerning whether a breach of confidentiality occurred by the named employees following their notification of suspension.”
43 An investigation into ward policies and practices increased substantially the scope of the investigation and no doubt led to it taking longer than would be desirable. Once the recommendation of the investigation was received, the allegation became significantly wider, as set out in paragraph 16 above. It is of note that the investigators did not find that the patient was tied to the chair but considered that “attempts were made to tie him to the chair”. The witness, Ms Jeffrey, is not reported in the investigation report as suggesting that the patient was tied to the chair.
44 The allegation referred to breaches of paragraphs 7.4 and 7.12 of the code of conduct but, when dismissing, Mr Mansfield added that it was in breach of section 7.6, being negligence. An allegation or a finding of negligence is a far cry from a finding of physical assault and is a finding in relation to an allegation which did not form part of the allegation which the Claimants faced.
45 It is right to say that Mr Mansfield found that there was a physical assault on Patient JE by tying him to the chair. This was the essence of the case against the Claimants and therefore we need to consider whether the evidence upon which he based that finding had sufficient cogency to enable a reasonable employer to reach that conclusion. We were not able to hear from Mr Mansfield as he was not sufficiently well to attend the Tribunal or to make a statement to be read by the Tribunal. We can, however, discern his reasons from his presentation at the appeal hearing, He said:
‘It is unclear exactly how the sheet placed across the top of Patient JE's body was secured. It was reported by the witness Paula Jeffrey to be tied at the back of the chair... As the Chair of the hearing, I wanted to see the physical evidence and went to Westgate Ward to see the layout of the room and size and shape of the chair. The height of the patient was ascertained and someone of a similar height sat in the chair and I attempted to wrap the sheet round in the manner described by the individuals. It was clearly not possible to secure the sheet without in some way tying it or securing it and without causing restraint to the patient. Paula Jeffrey was the key witness during the disciplinary hearing and her evidence regarding two separate knots being seen at the back of the chair was consistent from the first statement to the last cross-examination.’
46 It is clear from that account that he relied heavily and in our judgment impermissibly was the evidence of an experiment which he carried out personally without those accused being either informed of it or present to proffer their demonstrated account of how the sheet was in fact positioned. He also placed heavy reliance upon the presence of two knots at the back of the chair. The presence of two knots should not have been regarded as cogent evidence, as can be seen from Mr Bolus’s witness statement at paragraph 16, when he and the two members of the appeal panel concluded that:
‘On the balance of probabilities the patient had been tied to the chair. The reason for this conclusion was that there was evidence from Mr Preston, Mrs Crawford and Mrs Petch that a third sheet had been used. They had stated that it was merely laid across the patient. However, we could not understand the reasoning for why this would have been done.’
If Mr Bolus was correct in accepting the evidence that there were three sheets, the presence of two knots behind the chair does not assist in a conclusion concerning tying the patient. The four accused gave evidence of there being two sheets tied to the chair which were used to tie the chair to the table. It is therefore the positioning of the third sheet that becomes important in concluding whether the patient was tied to the chair or not. The only evidence for the management case that Patient JE was tied to the chair therefore comes from the evidence of Paula Jeffrey and the conclusions drawn by Mr Mansfield from his own personal reconstruction.
47 A reasonable employer in considering the cogency of the evidence of Paula Jeffrey should have taken note that the complainant was on her way out of the ward and was looking in from the doorway. She did not approach the chair to have a good view of the exact location of it or the patient. A reasonable employer would also have taken account of the fact that this witness was an extremely experienced senior nurse whose professional conduct requirements would have expected her to remonstrate with any nurse carrying out an unsafe or inappropriate procedure and report it immediately, and taken account of the fact that the witness did not report the matter for a further two days. A reasonable employer would also have wanted to know the way in which she had reported it at first. Those carrying out the disciplinary hearing did not obtain the first written report which Ms Jeffrey gave. We have the advantage of seeing that report, which should have been provided to or called for by Mr Mansfield, where she said:
‘I saw there was one sheet that was placed round the abdomen of the patient and the back of the chair. There was also another sheet (two tied together) placed round the central leg of the table and the back of the chair... At the same time Patient JE continued to move about in the chair and the sheet around his abdomen was removed. I cannot recall who removed the sheet.’
Sight of that statement might have given Mr Mansfield pause for thought concerning the allegation which he found proven, that “nor was there any attempt made by you to release Patient JE from the situation”. It would have been clear that JE had no difficulty in removing himself or being removed from the situation and had done so before the witness moved on.
48 We do not consider that a reasonable employer could properly have concluded that JE was tied to the chair with no attempt to release him when faced with the evidence of the two nurses and two healthcare workers who were present throughout as against the evidence given by a nurse who did not feel sufficiently strongly to report the matter or remonstrate immediately as her professional conduct code required and who had no more than a fleeting view of the circumstances, coupled with the lack of certainty as to whether there were two sheets or three.
49 We also consider that a reasonable employer would have taken into account the context. Here was a patient who had prompted Ms Jeffrey to express concern about his medical treatment, who had caused significant difficulty in handling during the day shift when there were more nurses or carers on duty, and where the admitted aim of the Claimants was to keep the patient safe by securing the chair in which he was sitting to prevent him from failing out of It. It is clear that he was regularly agitated and difficult. He was attached to a "drip" on a stand and too much movement would have caused difficulty for that equipment to function. There was a need for two nurses to attend to the administration of drugs and the needs of 16 other patients in a way which kept all of those patients safe. There was no allegation that there was any harm to JE and not suggested that the nurses or healthcare workers were doing anything other than attempting to keep him safe from himself and his restless aggression.
50 It is also of note as part of overall context that the matron described Westgate Ward as “currently for two patient function with 17 beds. Historically, the two patient functions were managed in two separate ward areas. However, in December 2005 one ward was closed and the two functions were amalgamated. This was a difficult system to manage and proved unsatisfactory to patients, carers and staff alike. The ward manager has since managed a refurbishment project to split the ward again and on December 2008 [three months after the incident] the two clinical functions were split into two separate ward areas.”
51 For the above reasons, we do not consider that the Respondent had sufficient evidence based on an adequate investigation to ground their belief that the patient was tied to the chair by the Claimants and that no effort was made to release him and no reasonable employer could conclude that securing the patient's chair to the table was a physical assault as defined in their own PMA code. The decision to dismiss was therefore unfair. It is most unfortunate for these Claimants that the Respondents did not reinstate them as soon as the Police investigation was concluded and then deal with them as suggested in the investigation report by Performance Development Review, training and some disciplinary sanction.
52 We do, however, recognise that the activity admitted by the Claimants, namely tying the chair to the table, was a practical solution which did not concern the ward consultants when they were told about it, but it was not a recognised practice. No attempt was made to report that unusual arrangement, either by telephone to a manager in another ward or in any of the documents reporting on the activity of that night. For those reasons, we consider that the Claimants have contributed to their dismissal by their conduct in those respects. We therefore would, in any assessment of damages, reduce the award by 25%.

Additional Documents
11.	At the conclusion of the hearing on 2 November 2010 we requested sight of further documentation relating to the suspension, the investigatory interview, the Disciplinary Hearing and the Appeal Hearing.  In compliance with that request the Appellant has lodged a substantial bundle of 228 pages which were agreed between counsel as comprising those documents before the Employment Tribunal most likely to assist us.  These were all documents which were before the Employment Tribunal but were not in the EAT bundle.  We did this because we had some difficulty following some of the reasoning of the Employment Tribunal.  We have read the additional bundle de bene esse as well as the further written submissions by counsel.  In the event it is not necessary for us to refer to any of the additional material submitted.  We remain grateful to the parties for the additional work we have put them to.

The Grounds of Appeal
12.	The Notice of Appeal appears at EAT bundle pages 13-18.  It is supplemented by Mr Wallington’s written and oral submissions.  Before turning to the grounds of appeal in detail we agree with Mr Wallington’s submission that the correct approach for the Employment Tribunal to take in this case is summarised by Mummery LJ in London Ambulance Service NHS Trust v Small [2009] IRLR 563 at paragraph 3 where he said this:

“The essential terms of inquiry 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 [the employee] 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 [the employee] was a reasonable response to the misconduct.”

13.	As is clear both from that case and J Sainsbury plc v Hitt [2003] ICR 111, “reasonable” at each stage of the analysis, including the sufficiency of the investigation (see Hitt at paragraphs 28-30) means within the range of reasonable responses open to the Respondent as a reasonable employer.  Finally, the Employment Tribunal must not in reaching its decision substitute its own view of what is reasonable or fair for that of the employer.  We do not understand Mr Howard to dissent from this general statement of the law.

Substitution
14.	Mr Wallington submits that the Employment Tribunal substituted its own view for that of the Appellant in determining that the dismissal of each of the Claimants was unfair.  He relies on ten separate points which are set out in paragraphs 8.1-8.10 of the Notice of Appeal.  Paragraph 8.11 is withdrawn.  Mr Howard submits that the Employment Tribunal properly directed itself as to the correct test to apply about substitution: judgment paragraphs 35 and 37, and there was ample material upon which the Tribunal could conclude, applying that correct test, that the dismissals were unfair.

15.	Having carefully considered the submissions and the material before us we agree with Mr Wallington that there are a number of points relied on by him which can only lead to a conclusion that the Employment Tribunal substituted its view for that of the employer in this case.  The relevant paragraphs of the Notice of Appeal with which we agree are paragraphs 8.3; 8.5; 8.6; 8.7; 8.9; and 8.10.  We reject Mr Wallington’s submissions in respect of paragraphs 8.1; 8.2; and 8.4.  We take each of those paragraphs in that order.

Paragraph 8.3
16.	This ground relates to the Employment Tribunal’s reasoning in paragraphs 41-43 of the judgment.  We agree that a disciplinary allegation should be clear and specific but the Employment Tribunal’s criticisms are of the terms of reference for the investigation, not the disciplinary charges that resulted thereafter.  Insofar as these comments form part of the Employment Tribunal’s reasons for a finding of unfairness, they indicate a mindset of substitution.

Paragraph 8.5
17.	This relates to paragraph 46 of the Employment Tribunal judgment.  The Tribunal described as “impermissible” reliance by the dismissing officer, Mr Mansfield, on his own experience in determining whether he found it “likely” that the patient had been tied to the chair.  The question for the Employment Tribunal was whether the Trust had conducted a reasonable investigation in the sense that it was open to a reasonable employer to have investigated the matter in the way that it did.  Characterising the experiment as “impermissible” goes beyond that.  We can see no reason in the context of a disciplinary hearing by an employer that it should not conduct an inquiry of its own.  An analogy would be with the searching of the lockers in the Hitt case.  The Tribunal substituted its own standard both as to the manner of the investigation of the disputed part of the allegations against the Claimant and what evidence was required for the dismissing manager to reach a finding that it was likely that the disputed conduct had occurred.

Paragraph 8.6
18.	Procedural defects in the steps leading to a dismissal can be cured by an appeal, whether the appeal is by way of re-hearing or review: Taylor v OCS Group Ltd [2006] ICR 1602.  The relevant test is whether the procedure overall met the required standard of reasonableness.  The undisputed evidence was that Mr Mansfield attended the appeal and explained how he came to his conclusions: judgment paragraph 45.  There was an opportunity for the Claimants through their trade union representative to question (an opportunity which was not taken) and the appeal panel reached its own independent decision in the light of the material presented to it.  The Employment Tribunal simply does not consider whether the “impermissible” experiment conducted by Mr Mansfield was cured by the Appeal Hearing.  Furthermore, there is no indication in the judgment that the Employment Tribunal addressed the overall question of whether there had been a reasonable procedure.

Paragraph 8.7
19.	In paragraph 47 of the judgment the Employment Tribunal placed considerable emphasis on the fact that Mr Mansfield did not have his attention drawn to a written report by Mrs Jeffrey who was the witness to the accident.  The Employment Tribunal speculates as to what difference this may have made to Mr Mansfield’s conclusions.  However, as a matter of simple logic, that which he did not know cannot have affected him in deciding whether or not he believed that the patient had been tied to the chair, or whether, on the material before him, he had reasonable grounds for that belief.  The same is true in relation to the appeal stage.  The relevance of the report not having been shown to Mr Mansfield or the appeal panel can only be in relation to the sufficiency of the investigation.  Regrettably, the Employment Tribunal does not address this point in this context.  There are no findings of fact as to whether the report was seen by the investigating team, or why it was not passed to Mr Mansfield, on which any conclusions could properly be based as to the sufficiency of the investigation.  The Employment Tribunal merely says that the report “should have been provided to or called for by Mr Mansfield”.  However, the relevant question for the Employment Tribunal (which it has not addressed) is whether that a failure to obtain the report so vitiated the investigation that it was not a reasonable investigation.  

20.	The significance of this point is increased by the way in which the Employment Tribunal asserts in paragraph 47 that “a reasonable employer” would have taken various other matters into account in weighing the evidence of Mrs Jeffrey.  That again points to a substitution mindset.

Paragraph 8.8
21.	The final sentence of paragraph 37 of the judgment is where the Employment Tribunal assert that Mrs Jeffrey’s original report if seen would have made it clear that the patient “had no difficulty in removing himself or being removed from the situation”.  We think that the Employment Tribunal misunderstood the admitted act of tying the patient’s chair to the table in order to prevent him from getting out of his chair.  The restraint on the patient getting up was unaffected by whether or not he was also tied into the chair, and Mrs Jeffrey’s report does not suggested otherwise: EAT bundle page 108.  Furthermore, the Tribunal misunderstood the facts in order to conclude from the statement in Mrs Jeffrey’s report that “...the sheet around his abdomen was removed.  I cannot recall who removed the sheet”, meant that the patient himself had no difficulty in removing himself from the restraint.  There was nothing in Mrs Jeffrey’s report which could enable the Employment Tribunal to reach this conclusion.

Paragraph 8.9
22.	In paragraph 48 of its reasons the Employment Tribunal states that:

“We do not consider that a reasonable employer could properly have concluded that JE was tied to the chair...”

23.	When faced with the evidence as summarised in that paragraph it is for the employer to evaluate conflicting evidence, not the Employment Tribunal, and the assertion that a reasonable employer could not properly have reached the conclusion in fact reached, when there was evidence supporting the conclusion reached is a further example of a substitution mindset.

Paragraph 8.10
24.	In paragraph 49 of its judgment the Employment Tribunal say this:

“We also consider that a reasonable employer would have taken into account the context.”

25.	It then sets out what it regards as the context.  As a matter of simple common sense it seems to us impossible for the Tribunal to reach a conclusion that neither Mr Mansfield as the deciding officer nor the appeal panel took into account the context.  That is what the disciplinary charges arose from.  Furthermore, the Employment Tribunal appears to have lost sight of the evidence of Mr Bolus, who conducted the appeal, that he had done exactly that: witness statement paragraph 17-20; EAT bundle pages 92-93; and a statement of like effect in the letter of dismissal: EAT bundle pages 79 (final paragraph) and 82 (first paragraph).  The Employment Tribunal does not anywhere say that it rejects the evidence of Mr Bolus, or Ms Verzijl as to Mr Mansfield’s reasons for dismissing the complaints: witness statement paragraphs 25, 27, 29, 32 and 34; EAT bundle pages 104-106.

Conclusion
26.	For the reasons we have endeavoured to give we find that each of the paragraphs we have identified point to a substitution mindset as identified by Mummery LJ in Small.
 
27.	As we have already indicated we do not accept Mr Wallington’s submissions on paragraphs 8.1, 8.2 and 8.4 of the Notice of Appeal.  We now give our reasons for doing so.

Paragraph 8.1
28.	This relates to a statement in paragraph 38 of the judgment about the standard of proof required for an allegation.  There is no suggestion by the Employment Tribunal that there is a higher standard of proof in this case than the normal civil standard of proof of a balance of probabilities.  It is a trite comment to say that in this case the effect of a dismissal would have very serious consequences for each Claimant.

Paragraph 8.2
29.	This relates to comments made by the Employment Tribunal in paragraphs 39-40 of its judgment.  In our view what the Tribunal were doing was no more than stating the obvious, which is that a lengthy period of suspension, “...can put unnecessary pressure on both the employees and the decision-maker” (our emphasis).  There is no finding by the Tribunal that the period of suspension in this case had any effect on the disciplinary process.

Paragraph 8.4
30.	In paragraph 44 of its judgment the Employment Tribunal refer to the fact that Mr Mansfield referred to section 7.6 of the Code of Conduct relating to negligence.  It seems to us this adds nothing to the case of either party.  The core of the employer’s case was assault.  Anything else was a distraction from that.

Remedy
31.	Mr Wallington accepts that this ground of appeal is in the alternative to the earlier grounds of appeal, as it only arises if the finding of unfair dismissal is upheld.  However, for the reasons we have given, we do not uphold the finding of unfair dismissal and it is therefore not necessary for us to consider the grounds of appeal as to remedy.

Disposal
32.	We are mindful that if possible we should not play “ping pong” with a case and remit it to an Employment Tribunal when we can decide the matter ourselves.  However, Mr Wallington accepts (and we agree) that there is insufficient clarity as to what the outcome would be in this case to enable us to substitute a finding of fair dismissal.  In our judgment this case will have to be remitted for a re-hearing before a fresh Employment Tribunal.