Wed, 27 Apr 2011
A tale of three unfair dismissal appeals, Anthony Korn explores the lessons to be learnt from the Court of Appeal rulings in Orr v Milton Keynes Council, Bowater v Northwest London Hospitals NHS Trust and Fuller v London Borough of Brent.
By Anthony Korn
In Orr v Milton Keynes Council  IRLR 317, O was dismissed for discussing with some young people at a community centre a sexual assault that had recently taken place when he was expressly instructed not to do so. Disciplinary proceedings were also brought against him because he had become rude and truculent towards his manager, M, in the course of a discussion about working hours. The disciplinary hearing was conducted by a group manager, C, who found both allegations established and O was dismissed for his behaviour in relation to both incidents. O complained of race discrimination and unfair dismissal. The ET upheld his race discrimination complaint on the basis that M had made some racist comments in the course of the meeting but held that the dismissal by C was neither discriminatory nor unfair because he was unaware of the comments. This was because O had refused to participate in the disciplinary process and C was unaware of M’s discriminatory comments. On appeal, O’s Counsel sought to argue that the employers were deemed to be aware of the comments made by M because of his management status. However, the Court of Appeal, by a majority, rejected this argument. The issue, as in all cases of misconduct, was whether at the time of dismissal, the employers believed on reasonable grounds that O had committed acts of misconduct which were of sufficient seriousness to justify dismissal. It was quite reasonable in principle for an employer to delegate the investigation to a “person within the organisation who has sufficient skill and experience to carry it out effectively having regard to the nature of the allegations and the position of the employee against whom [the allegations] are made”. The majority ruled that the knowledge held by another employee, even of management level, cannot be imputed to the person who investigates the matter or the employer on behalf of whom the investigation is undertaken. If the investigation is as thorough as could reasonably be expected, it will support a reasonable belief in the findings, whether or not some piece of information has fallen through the net. C could not therefore be imputed with the knowledge of M’s behaviour.
On first blush, the outcome of this case may seem surprising but, despite the dissent of Sedley LJ, the majority’s approach is consistent with the earlier unfair dismissal case law. O’s big mistake was his refusal to participate in the disciplinary process and to put C on notice of the discriminatory comments which had been made to him. C would then have been under a duty to investigate those comments and to consider whether the comments were mitigating factors in relation to the second offence.
Bowater v Northwest London Hospitals NHS Trust  IRLR 231 and Fuller v London Borough of Brent  IRLR 414 both raise the issue of whether the Employment Tribunal was entitled to conclude that the dismissal was outside the range of reasonable responses and therefore unfair.
In Bowater, B was a senior staff nurse who worked at the Central Middlesex Hospital. In the course of restraining an epileptic patient, who was having an epileptic fit, she climbed on to the end of trolley and was sitting astride the patient’s ankles which allowed a doctor sufficient time to administer a second injection. Whilst straddling the patient, B was heard to say: ”it’s been a few months since I have been in this position with a man underneath me”. The disciplinary panel found that the method of restraint was inappropriate and unacceptable and the remark made by B was unprofessional. B was summarily dismissed. Prior to the incident, her disciplinary record was clear. The Employment Tribunal upheld B’s complaint. The ET considered that the panel was unreasonable in concluding that B was responsible for the inappropriate method of restraint as the primary responsibility did not rest with her and that the comment of itself was not sufficient to deprive a nurse of her career. Further, it found that no reasonable employer would have ignored the mitigating circumstances namely that B had not been trained in the restraint processes, she had volunteered to help having finished a 12 hour shift, the comment was made at the end of a very stressful experience, the comment was directed at herself rather than the patient, the comment was at worst lewd (and many would have regarded it as humorous), no member of the public overheard the comment and B had a clean disciplinary record. The issue on appeal was whether the ET had substituted its view for that reasonably taken by the employers. The EAT thought it had but its decision was reversed by the Court of Appeal. The Court noted that it was common ground that the remark was intended to be humorous (and the EAT had been wrong to refer to this fact as an indication that the ET had substituted its view for that of the employers). The ET had carefully addressed the primary facts and had made it clear where it had disagreed with the employer’s judgment as to their seriousness. The ET was therefore entitled to come to the decision it did.
In Fuller, F was employed as a school bursar. The School specialised in teaching children with social and emotional difficulties. She witnessed an incident where an eight-year old was being vigorously restrained. She complained about the treatment and told the staff involved that they had to stop. The head teacher told F to go back to her office but she refused. A further investigation into the incident was carried out by the head teacher. F refused to participate in the investigation. (F had received a previous warning for an inappropriate intervention regarding a different child). F was eventually dismissed for gross misconduct, the disciplinary panel giving four reasons for its decision. Following an unsuccessful appeal, F complained of unfair dismissal. The ET accepted that the employers genuinely believed that F actions amounted to serious misconduct but asked whether that belief was based on a reasonable investigation. It did not directly answer that question, although it expressed concerns about the way in which the investigation had been conducted. The ET then went on to consider whether it was reasonable to dismiss and concluded that no reasonable employer would have dismissed for what was a “one-off” incident but would have imposed a lesser penalty. The Council appealed on the grounds that the ET has substituted its view for that reasonably taken by the School’s Governors. The EAT thought it had but its decision was reversed by the Court of Appeal with former EAT President Mummery LJ presiding. In essence, the Court said that the tribunal had directed itself properly in law and in particular reminded itself that it should not substitute its own judgment for that of the employer. The ET had answered that question in an objective manner and was entitled to conclude for the reasons it had given that the dismissal was outside the range of reasonable responses.
These decisions are perhaps a timely reminder that even where serious misconduct is proved, a dismissal is not automatically within the range of reasonable responses (as some might think following the earlier rulings in Midland Bank v Madden) and that where an ET directs itself properly in law and reasons its judgment in a consistent manner with that direction, its decision will be difficult to overturn on appeal. Of the two rulings, Fuller is perhaps the more surprising because of the detailed reasons given by the disciplinary panel which appear to have reflected the employer’s reasonable concerns in a sensitive environment. It is very unusual for an ET not to uphold a dismissal in these circumstances and it is perhaps surprising that the Court of Appeal did not attach more importance to the ET’s failure to identify the manner in which the disciplinary investigation was defective.
A common thread running through both decisions is that the appellate tribunal should be slow to overturn to the “expert” judgment of the ET. As the Court points out this itself can involve the substitution of the Appellate body’s view of the facts for that reasonably taken by the ET and that just as an ET should not substitute its view for that reasonably taken by an employer, so the EAT should not substitute its view for that reasonably taken by the ET. The difficult question is to decide when one or other oversteps the mark!