Appeal No. EAT/0181/01

EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

	At the Tribunal
	On 12 June 2001

Before
HIS HONOUR JUDGE J ALTMAN
MR A E R MANNERS
MR H SINGH

BARNARDOS	APPELLANT

MS C BOGLE	RESPONDENT

Transcript of Proceedings

JUDGMENT

PRELIMINARY HEARING

Revised

	APPEARANCES

For the Appellant	MISS KAREN WALDEN-SMITH
(Of Counsel)
Messrs Sharpe Pritchard Solicitors
Elizabeth House
Fulwood Place
London WC1V 6HG	

JUDGE ALTMAN

1.	This is an appeal from the decision of the Employment Tribunal sitting at Watford on 20, 21 and 22 November 2000 and it relates to the finding of that Tribunal that the Respondent had been unfairly dismissed.  The decision as to remedy, to which we will refer later, was postponed to be dealt with separately.  The appeal is based on a large number of grounds, arising out of the finding that the Respondent, who was a deputy project leader at the Kusadiki Project of the Appellants, was dismissed unfairly.

2.	The Employment Tribunal in their decision set out in some considerable detail their findings of fact about this matter.  They referred to the background that the Respondent brought to her work and the absence of any disciplinary or other adverse findings against her.  They described the project, which provides residential accommodation for a small number of children, a maximum of 5, and this dismissal arose out of the way in which the Respondent had restrained one of those children, referred to as Alan.

3.	The children live at the project and it is necessary, because of their nature, sometimes for them to be physically restrained.  There are important procedures which the Appellants have and which set out the way in which any restraint is to be administered and the circumstances in which an employee may resort to restraint at all.  They quote the requirements of the procedure, which expressly forbids restraining a child face-down on a mattress, cushion or similar surface, that could result in suffocation.

4.	The procedures of the contract that formed the basis of the working relationship between the parties was referred to and the Tribunal directed its attention to the provisions for gross misconduct.  They noted the long list of examples, including misconduct involving a child and breach of the Care and Control policy.

5.	We note, in the light of some of the submissions we have received, that this particular procedure provides that gross misconduct renders the employee “liable” to summary dismissal and the examples given are those which “could” result in dismissal.  It is clear, on the face of it, that the Respondents expressly reserved to themselves an area of discretion, even in cases of gross misconduct, in deciding whether or not to dismiss, as part and parcel of their approach to dismissal.

6.	The Employment Tribunal refer specifically to the training of staff for this particular project and they note that by the time shortly before the incident which gave rise to dismissal, the Respondent had requested a refresher course.  The Employment Tribunal found that unfortunately this never took place.  Complaint is made that that appears to be a criticism of the Appellants, but we realised on a careful reading of that finding that the Employment Tribunal did not attribute responsibility for the failing of the training to anyone, although we are told that the facts disclosed, that whilst the Respondent had requested refresher training, she had been told that it was for her to make application and she had not in fact made application.  Whether that reveals a short-coming on the part of the Appellants in failing to process a request that had not gone through the proper channels is a matter that we have not considered.  It does not seem to us that that was a finding of the Employment Tribunal.

7.	The Respondent was off sick in May 1999.  She never formally completed a probationary period.  She returned to work and the incident, about which there was much concern, took place on 30 June 1999.

8.	‘Alan’ behaved in a way that was described as a display of challenging behaviour, which essentially meant unrestrained acts of damage and violence, and which gave rise to a decision on the part of the Respondent to restrain him, which was accepted as a legitimate decision.  This was the first time that the Respondent had used a restraint technique, although Alan himself had been subject to it before.

9.	The Tribunal described how the Respondent brought Alan to the ground, but not on his back as the procedure required; his duvet was wrapped around him, although the Employment Tribunal left open the conflict as to whether that was done for restraint or to provide comfort.  The boy Alan then buried his face into the duvet; the Respondent was concerned and loosened the duvet from around him.  Others were present.  Alan calmed down; he was upset and the incident ended some 10 minutes after it began.

10.	The next matter is that the Appellant’s procedures required careful reporting and recording of incidents such as this.  The Employment Tribunal noted that the Respondent admitted that the reporting document was badly written, inaccurate and incomplete and was not counter-signed, although the Respondent believed that that was not necessary.  However, at the first available opportunity it appears she reported the matter to her superior and after a number of reports the Appellants investigated the matter.

11.	It was decided to start a disciplinary procedure; it is unnecessary to dwell on how that procedure took place because the actual procedure itself was not a matter of criticism by the Employment Tribunal and the dismissal that followed for reported gross misconduct included the explanation:

“You did breach Care and Control procedures by failing to use unauthorised TCI procedures.  I do believe that during the restraint you put (Alan) at risk.”

We suspect that is a misprint and it was a failing to use “authorised” procedures that was the basis of the dismissal.  There was then an appeal.

12.	The Employment Tribunal then described the dismissal rationale of Ms Howarth who conducted the matter.  First of all, the method of restraint was not approved.  Secondly it was found that the child was exposed to severe physical risk of suffocation or an asthma attack as a result of the use of the duvet for restraint.  Thirdly that the Respondent did not appreciate the seriousness of the incident.  Of all those it was the presence and use of the duvet which was the most significant factor in the decision to dismiss.

13.	The Employment Tribunal went on to say this:

“Ms Howarth told us, however, that if the Applicant had accepted that she had been at fault, she would have thought of an outcome other than dismissal.  Given that the (Respondent) did not admit any wrong doing or responsibility, Ms Howarth did not give consideration to penalties other than dismissal.”

And the Employment Tribunal found both that consideration was not given to the Respondent’s work record, and that Ms Howarth had been advised by their Human Resources department that she need not consider the Respondent’s record.

14.	The Employment Tribunal then went on to analyse the matter.  They set out the submissions of the parties and made reference to the test in Burchell v British Home Stores [1978] IRLR 379, which has been much canvassed in arguments before us.  We would only pause to point out that Burchell was a case which itself was dealing with misconduct by way of dishonesty, where the question as to whether or not it is ‘gross’ or not never really arises.

15.	Then in Section 7 the Employment Tribunal set out their conclusions.  First of all they found that the reason for dismissal was an admissible reason, namely misconduct.  They set out the next question which was whether the Appellants were reasonable in treating that as the reason for dismissal in accordance with Section 98(4) and they set out the Burchell case and the case of Post Office v Foley [2000] IRLR 827.

16.	The Employment Tribunal then went through a process of analysis.  They found that the Appellants genuinely believed that the Respondent was guilty of misconduct and they found that the Appellants genuinely believed that the Respondent was guilty of gross misconduct.  

17.	It was submitted to us that there was a finding that the Respondents had reasonable grounds for that belief in gross misconduct.  We disagree.

18.	In the subsequent paragraph the Tribunal specifically asked themselves whether the Appellant formed its belief of guilt of gross misconduct on reasonable evidence.  They are astute to point out the need to avoid substituting their own views and they reiterate that there was reasonable evidence to support a view of misconduct.  It is submitted to us that the Tribunal did not go on to say, “However we do not accept they had reasonable grounds for saying it was gross misconduct” but we do not agree with the submission that there was no finding that it was not reasonable to come to a conclusion of gross misconduct.

19.	We will return to that in a moment but for completeness we state that the Tribunal went on to find that there was a reasonable enquiry but then when they ask themselves whether the dismissal was in the reasonable range of penalties, they say they have no hesitation in saying that it was not and they go on to deal with their reasons.

20.	In paragraph 11(e) they say this:

“We accept in theory and in principle that there are cases where a single act may be so grave that it can warrant summary dismissal and exclusion from the profession of which the (Respondent) is a member.  We cannot come close to considering that this is such a case.  Dismissal appeared to us to be a sanction so wholly disproportionate to the wrong doing as to be completely outside the range of reasonable responses.”

21.	The first of those sentences, which we have just quoted, is an extended definition of gross misconduct and it is quite clear that there is a finding by the Tribunal that the finding of gross misconduct was outside the range of reasonable responses of a reasonable employer, or, to put it another way, that there were not reasonable grounds for a conclusion of gross misconduct.  The whole logic and reasoning of the Tribunal, if one follows through the paragraphs of their decision, shows that whilst they found everything in favour of the Appellants, in relation to misconduct, where they stopped in the process of so doing was where they found that the belief in misconduct, for which they found reasonable grounds, could not be translated into a reasonable belief in gross misconduct.

22.	In giving their reasons the Employment Tribunal set out a number of factors.  They point to the finality of dismissal as a sanction.  They say that the approach of Ms Howarth and Ms Woodcock, was to conclude there was gross misconduct without considering any alternative action to dismissal whereas, of course, it is clear from the procedure that gross misconduct only gives rise to a “liability” or a possibility, of dismissal and therefore clearly, even with gross misconduct, dismissal was not the only option.

23.	The Employment Tribunal found that there was insufficient consideration, or any consideration, of other outcomes and they found it a shocking piece of advice, from Human Resources, that the dismissing person need not look at or give any consideration to the personal record of the Respondent. We assume that by that they were referring to the proposition that an employer, in order to assess the seriousness of this type of misconduct involving a departure from a working procedure, would need, in evaluating its seriousness, to know something about the person who committed it.

24.	The Employment Tribunal then note that the evidence was that the Appellants might not have dismissed if the Respondent had accepted that she had done something wrong and acknowledged the risk.  They say this:

“….we cannot see the strength of these comments: either they believe the child was placed at risk or he was not.  Given the overwhelming importance of the welfare of the child, we find that this acknowledgement by both witnesses that the nature of the (Respondent’s) response to the case was a significant factor in its disposal is both illogical and disturbing.”

25.	If a person has committed an act of gross misconduct, which avoids the need to consider any alternative need to consider any lesser sanction than dismissal, how can it be that simply to acknowledge it, or the risk, could transform it?  It seems to us that that is a judgement that the Tribunal were entitled to reach.

26.	The Employment Tribunal then refer in paragraph (e) to the fact that dismissal in this particular case would have a devastating effect on the career of the Respondent with the stigma of dismissal in this particular context.

27.	It is suggested to us in argument that that is a factor that ought to be taken into account.  Whilst we can recognise that there are many more important factors in this sort of case to take into account, the need to recognise the impact of dismissal on an employee is surely something an employer can reasonably be expected to take into account along with all the other factors when exercising that very draconian power which the contract of employment gives him.

28.	The Employment Tribunal then deal with the issue which I have already quoted, about summary dismissal and its possibly leading to dismissal and they came to a conclusion that the dismissal was unfair.

29.	The Grounds of Appeal make a number of complaints as follows.  In paragraph 1 there is a complaint of the finding that the dismissal was not within the range of reasonable penalties, in spite of the genuine belief in gross misconduct and based on reasonable evidence and the conduct of a reasonable enquiry.  It seems to us, to the contrary, that these are factors which the Tribunal took into account and did not err in law in the way they did so.

30.	Secondly it is suggested that the Tribunal substituted its own opinion as to the appropriate sanction for gross misconduct.  However, it seems to us to the contrary, and from the passages we have quoted and referred to that it is clear that the Tribunal were astute to consider whether it was within the range of reasonable responses of a reasonable employer and distinguished that part of the case from the breach of contract aspect of the case before them, in which they did, properly, form their own assessment as to whether there was gross misconduct.

31.	Ground 3 alleges that the Tribunal failed to give any or any proper weight to the disciplinary procedure but it is quite clear that the Tribunal, in terms, directed themselves as to the disciplinary procedure, which we have noted did not require dismissal for gross misconduct but simply rendered the employee liable to such dismissal.

32.	Ground 4 alleges that the Tribunal did not give any or any proper weight to the fact that the Respondent had used an unauthorised and potentially dangerous method to restrain a child, in contravention of three of the listed categories of gross misconduct.  The weight to give to evidence is really a matter for the Employment Tribunal unless they were “perverse” in doing so.  They clearly, and specifically, had those matters in mind in the way they set out their decision and we can see no perversity or error of law in their approach to that matter.

33.	Ground 5 alleges that the Employment Tribunal failed to give any or any proper weight to the disciplinary procedure, Guidelines for Managers, which refers to the question as to whether there has been a destruction of the employment contract between employer and employee, so as to make any further working relationship and trust impossible.  However, that does not appear to have been the case of the Appellants or the reason for dismissal and it does not seem to us that the Employment Tribunal erred in law in failing to consider it.

34.	As to ground 6, the Employment Tribunal found that the dismissing officers were advised that once the allegation was proved, they did not need to consider other matters in forming their judgement.  However, it seems to us that on a reading of the Appellant’s own procedures, the Appellants imposed upon themselves the obligation of undertaking an additional stage in determining what to do if there was an allegation of gross misconduct, beyond that, for instance, referred to in Burchell and existing in other cases.  We reach this conclusion because once gross misconduct is established the Appellant’s own procedures imposed upon them an obligation to exercise discretion in considering whether or not such gross misconduct should lead to dismissal.  Accordingly the dismissing officers should not have felt relieved from the exercise of such discretion.

35.	Ground 6 further suggests there is an error of law in the finding that there had been no consideration of another sanction, contrary to the evidence before the Tribunal.  We have referred to the decision carefully and it seems to us that the Employment Tribunal made a clear finding that there was a dismissal for gross misconduct, leading to dismissal only, without consideration of any alternative and we can see no objection or criticism of that ground.  The absence of any acknowledgement of guilt on the part of the Respondent, which was recorded as a factor by the Tribunal in the Appellant’s mind, does not seem to support this ground of appeal.

36.	In Ground 7 criticism was made of the finding by the Tribunal that there was an illogicality in the Appellants being prepared to change their mind if the Respondent had acknowledged her guilt.  The grounds of appeal say this.

“In determining whether dismissal was a reasonable sanction for the gross misconduct, the Respondent was both entitled and obliged to consider whether the Applicant would alter her attitude in the future and failure to recognise previous fault was an important matter to take into account in making this assessment.”

If that proposition is right, it must be implicit that before deciding whether or not to dismiss, the Appellants are acknowledging that other factors are to be taken into account before reaching that decision.  Where the Appellants have themselves said they closed their minds to other factors, apart from this, it seems to us that the Employment Tribunal were entitled to say there was an illogicality and even inconsistency, between those two stances on the part of the Appellant and we can see no error of law in that.

37.	In Ground 8 the Employment Tribunal is criticised for attempting to resolve a conflict as to how the quilt was used, that is as a tool of restraint or as a comforter, and for failing to give weight to the report of the Respondent herself, that she had wrapped the child in the quilt as a means of restraint.  It may be indeed that the Tribunal had clear evidence before them that the quilt was used as a means of restraint but it does not seem to us that that conflict really had any impact whatsoever on the central issues in the case or on the Tribunal’s decision.  The Tribunal did not appear to make their finding on the basis that the quilt was used as a comforter and the decision was wholly consistent with an acceptance of a belief on the part of the Appellants that it was a restraint tool.

38.	In Ground 9 the Employment Tribunal is criticised for criticising the Appellants for not taking account of the serious consequences of dismissal in this case, which we have already referred to.

39.	In Ground 10 errors of fact are referred to.  It is said the Tribunal was in error in finding that the Respondent had received local Authority approval to be a fosterer.  That may well be so but it is clearly a marginal factor which does not affect the overall thread of the decision and does not disclose an error of law.  It is said that, in effect, the statement that some members of staff were frightened to work with the child was an overstatement because there was only one member of staff who refused to work on that day.  But it does not seem to us that whether other members of staff were frightened was anything other than an aside mentioned by the Employment Tribunal and was not central to their deliberations.

40.	It is said that the Employment Tribunal failed to take into account that the obligation was on the Respondent to arrange further training.  Careful reading of the decision, as we have already said, does not lead to a conclusion one way or the other about that, and in any event, although it is not part of the decision or anything that we have to deal with, it is perhaps rather simplistic for management to say, of an employee who has already requested further training, “while even though we as management knew she wanted it, she hadn’t asked for it in the right way and that is why therefore it was her fault, not ours that she hadn’t had it.”

41.	There is then criticism of the finding of a cooling down interview which does not seem to us to be material to the overall decision, and of the finding that the report had been faxed on the day after the incident when in fact it was faxed nine days after the incident.  This seems to be a discrepancy which is insignificant when seen in the context of the overall criticism of the Respondent by the Tribunal in the way in which she handled the reporting of this incident, from which the Tribunal does not seem to have shirked.

42.	The Appellants say that there was no evidence to support the finding of the stigma resulting from the fact of the high reputation of the Appellants in child care but, with great respect to the Appellants and their very considerable reputation, we would not have thought that evidence in a particular case of that was necessary.

43.	Ground 11 simply alleges that the Tribunal did not properly direct itself, or that their decision was perverse, with which we disagree and it seems to us quite clearly that the Tribunal made findings of fact that they were entitled to make.  They identified the law, they applied the law to those facts in a way which was unexceptional and although the Appellants no doubt strongly disagree with the result, we have been able to discern no arguable error of law in the way in which, in what was it seems to us a very carefully reasoned decision, the Employment Tribunal approached their decision.

44.	We are mindful that the Appellants in this case are a well-known and highly-regarded national organisation who have in this sort of area, with which this case is concerned, the most enormous and heavy responsibility for the care of disabled and disadvantaged children entrusted to their care.  We recognise that there is immense difficulty in fulfilling these responsibilities without demanding both the highest standards from all their employees and the need to ensure that standards are always maintained.

45.	We have, therefore, some sympathy with the Appellants in this case in the very serious way in which it is clear that they approached this particular disciplinary matter, but our task is to ask whether the Employment Tribunal can arguably be said to have made an error of law and we cannot see that it can.

46.	We understand, however, that the question of remedy is yet to be concluded.  The appeal contains the ground that the Tribunal erred in failing to find that the Respondent contributed to her own dismissal.  That does not seem to us to be a matter that arises directly for our consideration because this appeal is only from the finding of liability and matters of contribution relate to remedy which is still ongoing and with which we do not wish to interfere.

47.	We are told, that the issue of contribution has and is to be canvassed before the Employment Tribunal and we are not surprised because the Employment Tribunal itself has endorsed the finding of misconduct in the handling of a child in circumstances which could, it seems, have given rise to danger.  Furthermore we understand, that any lack of training which may have been the cause of the way in which this incident was handled is in itself something to which the Appellants would wish to argue that the Respondent herself contributed.

48.	We have no doubt that those are substantial matters and telling matters that will be weighed in the balance in due course by the Tribunal along with all the other issues in the case when they resolve the vexed question of remedy.  This appeal is dismissed.