Iredale v Huddersfield Health Authority [1993] UKEAT 377_90_2004 (20 April 1993)

JUDGMENT Revised APPEARANCES For the Appellant MR T HORLOCK (OF COUNSEL) Messrs Brian Thompson & Partners 2 Fenkle Street Newcastle-upon-Tyne NE1 5XN For the Respondents MR A LYNCH (OF COUNSEL) Mr WJM Lovel Head of Legal Services Yorkshire Health Authority Clarendon House 9 Victoria Avenue Harrogate H61 1DY JUDGE J PEPPITT QC : This is an appeal from a decision of the Leeds Industrial Tribunal sent to the parties on 4 June 1992. By that decision the Tribunal unanimously dismissed the Applicant's complaint of unfair dismissal by the Respondents. The facts can be stated shortly. The Appellant was employed by the Respondents as a nursing assistant at Lindley Cottage, Huddersfield. Lindley Cottage is a small home with six beds devoted to the care of young people with serious mental handicap. The Appellant was the key worker for one of those young people named Patrick, who though aged 25 had a mental age of 2. She was a very successful nursing assistant. A close relationship had grown up between her and Patrick with real affection on both sides. The Appellant had worked for the Respondents for some five years before her dismissal. Up to the time of the event which gave rise to that dismissal she had had an unblemished work record. On 17 September 1989 the Appellant was observed by a fellow nurse to take off her shoe, walk towards Patrick and with her shoe slap him on the bottom. The Appellant readily admitted the offence when taxed with it and has ever since been broadly consistent in her explanation of what occurred. She told the Tribunal and those investigating the incident that she did so to prevent him pulling down curtains which was something which from time to time when he was mischievous he was disposed to do. She told the Tribunal that it was part of a game she and Patrick played but we detect no finding by the Tribunal to that effect and indeed the statements which she made in the course of the investigation which led to her dismissal do not really suggest that what she did was a game in the true sense of the word. The Appellant was reported for the incident. There followed the Respondents' disciplinary procedure culminating in an appeal, as a result of which the Appellant was dismissed on 2 October 1989. In arriving at their decision to dismiss the Respondents relied upon a paragraph of their disciplinary code which is set out at page 28 of the bundle before us. The paragraph is numbered 11 and headed Summary Action. It reads as follows: "The disciplinary procedures provide that no employee may be dismissed unless he has previously been given a written warning. However, certain offences connected with employment are so grave that they merit immediate dismissal or immediate suspension from duty so that enquiries can be made. If the suspicions are confirmed by investigation immediate dismissal may follow. These actions can be taken irrespective of whether a written warning has already been given. These offences include: (a)... (b)... (c)any assault upon a patient or employee on Authority premises." The Tribunal entertained great sympathy for the Appellant but that sympathy did not prevent them from applying in our judgment impeccably the relevant law to the case before it. The Tribunal found, in our judgment rightly, that the slap constituted misconduct and having made that finding applied themselves, again in our judgment rightly, to the considerations set out in section 57(3) of the Act. The Tribunal's view of the incident appears we think from paragraph 14 of the Decision. In that paragraph the Tribunal stated: "The view of the tribunal is that there was misconduct having regard to the rules and standards of conduct of which the applicant was well aware. If it is true that the applicant overstepped the boundary between conduct which was acceptable and conduct which was not, we think that she only very slightly overstepped the mark." Mr Horlock on the Appellants' behalf relied upon the word "if" as supporting his submission that there was no express finding by the Tribunal that the Appellant had in fact overstepped the boundary between conduct which was acceptable and conduct which was not. In our judgment that submission cannot be supported in view of the express finding in paragraph 13 of the Decision, the first sentence of which reads as follows: "On the evidence before us we are satisfied that there was misconduct in the use of the shoe by the applicant in using it to smack his bottom." The Tribunal expanded their view of the incident with which it was concerned in paragraphs 18 and 19 of the Decision, both of which should be incorporated in this judgment. Paragraphs 18 and 19 read: "This evidence however tends to confirm the view which we have formed on the evidence as a whole that management in its various grades and personalities took the view that, there having been some evidence of an assault, the case must be treated with severity; dismissal was the only course to follow. We are well aware that employers in such a situation as these respondents were, having responsibility for the welfare of patients, being exposed to criticism if rules relating to physical restraint should appear to have been broken, especially if they appeared to condone the rule prohibiting assault, would take a serious view. The tribunal cannot criticise the respondents for that. However not every case is like every other. Not every case of assault is serious. Not every case of slapping should automatically be assigned to the category of an assault meriting instant dismissal. One expects every case to be treated on its merits. The view we take of the attitude of the respondents in this case is that their minds were made up from a very early stage that here was an instance of conduct meriting dismissal; the public interest required that action nothing less than dismissal would do. That however was only one view of a situation which undoubtedly required investigation and, as we think the applicant agrees, merited some form of disciplinary sanction." We stress that in both those paragraphs we read the Tribunal as expressing its view of the incident and its consequences, not the views of this or any other employer. The Tribunal went on to list a number of matters which in their view sounded strongly in favour of the Appellant. They found that Patrick's well-being was not best served by the Appellant's dismissal. They found that Patrick's family wanted the relationship between him and the Appellant to continue. They commented with approval upon the Appellant's candour when faced with the allegation and in the course of the subsequent investigation and they found that the Appellant was a caring person with much to offer not only to the mentally handicapped but also to the public generally. She was also a Samaritan. So concerned was the Tribunal with their own view of the justice of the case that they took the unusual step of adjourning the hearing to enable the parties to have discussions to see whether any agreement short of a decision going one way or another might be reached. That objective did not bear fruit and so the parties returned before the Tribunal for its decision to be made. We have already indicated that in our judgment the Tribunal was impeccable in its application of the law to the facts before it. Mr Horlock's only recourse therefore is to submit to us that the Tribunal's decision on the facts was perverse in the sense considered by this Tribunal in the case of East Berkshire Health Authority v Matadeen [1992] IRLR 723. It follows that Mr Horlock had to surmount and did not refrain from seeking to surmount two hurdles in order to succeed on this appeal. First of all he had to satisfy us that the Appellant's dismissal did not fall within the band of responses available to a reasonable employer and secondly, he had to satisfy us that the Tribunal was perverse in the sense we have described in finding that it did. The Tribunal has not made it easy for us to decide this appeal, so convinced were they that they themselves would not have taken the course which the Respondents did. The Tribunal in its judgment in effect set out the points upon which Mr Horlock was able to rely in his submissions in support of the appeal. He was able to argue before us that there was no evidence that the Respondents had considered the benefit to Patrick which would result from the Appellant not being dismissed. He was able to point to the fact that there was no finding that the employers, as opposed to the Tribunal itself, had come to the conclusion or even considered that there would be no danger of repetition in the circumstances of this case. He was also able to point to the finding that in the Tribunal's eyes there had been a degree of rigidity in the employers' approach to his client's case and he relied specifically upon the finding in paragraph 19 of the Decision that in the Tribunal's view the Respondents had made up their minds from a very early stage that here was an instance of conduct meriting dismissal; the public interest required that action nothing less than dismissal would do. When one analyses the decision in its entirety one is able to separate, we think, the strong views expressed by the Tribunal with the Tribunal's application of what is accepted were the correct legal criteria to the facts before it. At paragraph 26 of the Decision the Tribunal said: "In the light of all the evidence, however, the stages through which the investigation proceeded, the manner in which the disciplinary interview and the appeal conducted; and in the light of all that was considered and assessed at the several meetings, we take the view that it would not be right for us to say that no employers could reasonably come to the conclusion which these respondents did. We are constrained therefore to find that the applicant fails in these proceedings. The originating application must be dismissed". By that paragraph the Tribunal is acknowledging that notwithstanding its own views, a reasonable employer could take the view in the circumstances of this case, that no other sanction short of dismissal would be appropriate in the Appellant's case. We are unanimously of the view that that finding is not only far from being perverse but is right. Those who have in their custody the most vulnerable such as the mentally handicapped are in our view, and no doubt in the Tribunal's view, entitled to take the view that such vulnerable people must be protected from the merest hint of abuse and to preserve that policy by regarding as seriously as these Respondents did any assault upon such a person - even an assault as comparatively venial as the Tribunal found this one to have been. We agree with the Tribunal that dismissal was within the band of responses available to a reasonable employer. That is the only relevant question which the Tribunal, and therefore we, have to decide and accordingly this appeal must be dismissed. BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII