Appeal No. EAT/508/90

	EMPLOYMENT APPEAL TRIBUNAL
	4 ST. JAMES'S SQUARE, LONDON, SW1 4JU

		At the Tribunal
		On 25th November 1991
	Judgment delivered on 9th January 1992

	Before

	THE HONOURABLE MR JUSTICE TUCKER

	MS S R CORBY

	MR J A POWELL

NOTTINGHAM HEALTH AUTHORITY	APPELLANTS

MR A P KEANE & MR G HEGARTY	RESPONDENTS

	Transcript of Proceedings

	JUDGMENT

Revised

	APPEARANCES

For the Appellants	JOHN BOWERS
(Of Counsel)
Oxley & Coward
275 Glossop Road
Sheffield
	S10 2HB

For the Respondents	JEREMY McMULLEN
	(Of Counsel) 	
Brian Thompson & Partners
17 Wellington Street
Leeds LS1 4DL
LONDON
WC2A 3UH

	MR JUSTICE TUCKER:  This is an employers' appeal from a decision of an Industrial Tribunal held at Nottingham on 6 February, 16 March and 22 June 1990, whereby it was held that the applicants (the Respondents to the appeal) were unfairly dismissed and were awarded compensation in the sums of £10,301 in the case of Mr Keane, and £10,153.00 in the case of Mr Hegarty.  The appeal is brought on a number of questions of law, the principal point being that the Industrial Tribunal failed to apply the general principles enunciated in British Home Stores Ltd v. Burchell [1980] ICR 303 and other cases.  Another ground of appeal is that the Tribunal reached a perverse decision.

	The Respondents were employed by the Appellants as Male Nurses on the Castle Ward of Mapperley Hospital.  The ward is part of a unit which treats patients who have problems with drug and alcohol addiction.  The Respondents had several years experience in that work, and were highly regarded.  By reason of their problems, the patients with whom the Respondent had to deal would often be in a distressed or agitated state.

	During the evening of 22 May 1989 a former patient named Michael King came into the ward to try and obtain some cigarettes.  He was drunk, and he had no right to be there.  He was removed from the ward by these two Respondents, and by a third man named Morgan.  King subsequently alleged that he had been assaulted by the three men - that the Respondent Keane had head-butted him, that his head had been banged on the floor by Keane, and that all three had beaten him and carried him out.  The Respondents and Morgan gave a different account, which was that they used no more than reasonable force to eject King from the ward, and that while doing so he assaulted the Respondent Keane.

	As a result of the complaint made by King, the Appellants investigated the matter, and statements were obtained from him and from patients in the ward referred to by initial letters, M, R and W.  King was seen by two Clinical Nurse Managers and by a Nursing Sister and also by Dr McLean, a consultant psychiatrist.  In due course, on 6 June, a disciplinary hearing was conducted by Mr Nullatambi, the Director of Nursing Services.

	Two rather strange things occurred before Mr Nullatambi concluded that hearing.  The first was that patient R made a further written statement in which he withdrew the statement he had made earlier in which he had supported King's account.  The second was that King himself burst into the disciplinary hearing.  He was again drunk.  He spoke of being affected by "cosmic forces".  At one stage he said that although the Respondents had given him a good beating, he did not want them to be dismissed.  At another stage he said "It didn't happen."

	In the light of these events, it might not have appeared safe or reasonable to rely on the accounts given by either of these men, and it might be thought that no reasonable employer would be minded to do so.  The only other eye witnesses were patients M and W.  For reasons that seemed good to the Appellants, neither of these men gave evidence before the disciplinary hearing.  Having regard to their position as patients, that might be understandable.  They could have been interviewed privately by Mr Nullatambi himself accompanied by someone with no interest in the matter, but he does not appear to have done so.  The Respondents had no opportunity of confronting them, or of challenging the accounts which they gave in cross-examination.  Dr McLean had in his report seen fit to comment on the veracity of one of these witnesses and also of witness R and of King himself.

	The final decision of Mr Nullatambi was to dismiss the two Respondents and also Mr Morgan.

	There was an internal appeal procedure which was followed, and the decision to dismiss was confirmed.  The Appellants complain about the failure of the Industrial Tribunal to refer to this, but since it was never mentioned by the Appellants or their representative at the hearing before the Industrial Tribunal, this is hardly surprising.

	When the matter came before the Industrial Tribunal they heard the contentions of the parties, and set out the reasons for their decision in some detail.  They are now criticised for the manner in which they reached their decision.  Counsel has attempted to identify eight reasons why their finding was wrong, and which he submits display a misinterpretation of the law or a finding for which there was no evidence in support, or a conclusion drawn from that evidence which was perverse.  There are, says Counsel, four examples in the reasons, of the Tribunal reviewing and deciding the case, before the domestic tribunal, which they were not entitled to do, and which shows a misunderstanding by the Industrial Tribunal of its function.  No fewer than ten authorities have been cited to us.  No stone has been left unturned.

	We do not need extensive authority for the fundamental proposition that an Industrial Tribunal must not substitute its own view of the facts or the conclusions to be drawn from them.  The test for them to apply is whether the employer behaved so irrationally that no reasonable employer could have reached such a decision.

	The starting point must be Section 57(3) of the Employment Protection (Consolidation) Act 1978.  The correct approach for the Industrial Tribunal to adopt in answering the question posed by the sub-section is that set out by Balcombe LJ, in Morgan v. Electrolux Ltd [1991] IRLR 89, at page 90, paragraph 11:-
"There was no dispute between the parties as to the relevant principles of law, which may be summarised as follows:

(1)	Where the employer has shown a valid reason (as defined in Section 57(2) of the 1978 Act) for dismissing an employee, then the `determination of the question whether the dismissal was fair or unfair, having regard to the reason shown by the employer, shall depend on whether in the circumstances .... the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee;  and that question shall be determined in accordance with the equity and the substantial merits of the case' - s.57(3) of the 1978 Act.

(2)	`The correct approach for the Industrial Tribunal to adopt in answering the question posed by s.57(3) of the Act of 1978 is as follows;  (1) the starting point should always be the words of s.57(3) themselves;  (2) in applying the section an Industrial Tribunal must consider the reasonableness of the employers' conduct, not simply whether they (the members of the Industrial Tribunal) consider the dismissal to be fair;  (3) in judging the reasonableness of the employers' conduct an Industrial Tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;  (4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;  (5) the function of the Industrial Tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band, the dismissal is fair:  if the dismissal falls outside the band, it is unfair'

- per Mr Justice Browne-Wilkinson in Iceland Frozen Foods Ltd v. Jones [1982] IRLR 439, paragraph 24 approved in this Court in Neale v. Hereford County Council [1986] IRLR 168.

(3)	A particular application of rule (3) in principle (2) above is that an Industrial Tribunal may not substitute its own evaluation of a witness for that of the employer.  As Mr Justice Wood said in giving the judgment of the EAT in Linford Cash & Carry Ltd v. Thomson [1986] IRLR 235, paragraphs 22-23:

`If a Tribunal is to say that this employer could not reasonably have accepted a witness as truthful, it seems to us that the decision must be based upon logical and substantial grounds - good reasons.  Instances might be - that the witness was a bare-faced liar, who must have given that impression to the employer at the relevant time;  that the witness was clearly biased - provided that such a bias should have been clear at the relevant time, that documents available at the relevant time clearly showed the witness to be inaccurate and that such documentary evidence was ignored by the employer.

However, there could be other less obvious situations where mere vagueness and uncertainty would not be sufficient, and it should never be forgotten that cross-examination by experienced advocates may produce a picture not made evident during the disciplinary procedure.  For the Tribunal merely to prefer one witness to another might well not be sufficient as this could be to substitute their own view.  The employers have the peculiar advantage over the Tribunal of having an intimate knowledge of the geography, the nature and workings of the business, and the various members of the staff.'

(4)	`Where an employee is dismissed on the grounds of suspected dishonesty, then:

`What the Tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  That is really stating shortly and compendiously what is in fact more than one element.  First of all, there must be established by the employer the fact of that belief;  that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  And thirdly, we think that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case.'

- per Mr Justice Arnold delivering the judgment of the EAT in British Home Stores v. Burchell [1978] IRLR 379 approved by this Court in Weddle & Co Ltd v Tepper [1980] IRLR 96.

(5)	`The Employment Appeal Tribunal can correct errors of law and substitute its own decision in so far as the Industrial Tribunal must, but for the error of law, have reached such a decision.  But if it is an open question how the Industrial Tribunal would have decided the matter if it had directed itself correctly, the Appeal Tribunal can only remit the case for further consideration.'

- per Sir John Donaldson MR in O'Kelly v. Trusthouse Forte plc [1983] IRLR 369, para.90.  See also Dobie v. Burns International Security Services (UK) Ltd [1984] IRLR 329."

 	The test which the Appellants' Counsel himself proposes is this:
"The test for the Industrial Tribunal is not whether the Respondent committed the offence, but whether the Appellants reasonably believed after a reasonable investigation that they did."

	Put in a slightly different way, he asks:
	"1.	Did the Appellants believe that misconduct had occurred?
	2.	Were there reasonable grounds for that belief?
	3.	Did the Appellants hold a reasonable investigation?"
In our judgment (which is an expression frowned upon by Mr Bowers) the answers to those questions as found by the Industrial Tribunal, are 1st Yes, 2nd Maybe, 3rd No.

	We do not see that the Industrial Tribunal can be criticised for reaching those conclusions, or for the method by which they reached them.  We think that the Industrial Tribunal perhaps went to the limit of their function in examining the extent and reasonableness of the investigation, but that they did not overstep that limit, and did not attempt to step into the shoes of the domestic body of enquiry.  The Industrial Tribunal expressed that they
"do not know whether the alleged assault took place, nor do we perceive it our function to make a finding on this point."

	We think that assistance is to be derived from a passage in the decision given by Wood J in ILEA v. Gravett 1988 IRLR 497 at p.499 Para.14.  After referring to the decision in Burchell, Wood J said this:
"It is important to stress that what follows is really only an indication of different facets of this one issue.  The employer must prove on the balance of probabilities -more likely than not -

 (i)that he believed - again on the balance of probabilities (not beyond reasonable doubt) - that the employee was guilty of the misconduct.

(ii)that in all the circumstances based upon knowledge of an after consideration of sufficient relevant facts and factors he could reasonably do so"

	Mr McMullen is in our view correct in his submission that in considering the second matter, the Tribunal, are bound to examine the evidence to see if it is sufficient to enable a reasonable employer to come to the conclusion which Appellants did in this case.  The Tribunal in the present case did no more than that.

	There is nothing perverse in the Tribunal's conclusions.  We are unable to agree with the submission that they misdirected themselves on the law, or that they misunderstood it.  In short, they were not substituting their view for that of the domestic body.  They went no further than they were entitled to go.  They were in our view fully justified in concluding as they did, that the actions of the Appellants in summarily dismissing the Respondents fell beyond the band of reasonable responses of a reasonable employer, and that the Respondents were unfairly dismissed.

	Accordingly, this appeal is dismissed, and the findings and awards of the Industrial Tribunal are upheld.