Anita Tayeh v Barchester Healthcare Ltd
| Jurisdiction | England & Wales |
| Judge | Lord Justice Rimer,Lord Justice Hughes,Lord Justice Pill |
| Judgment Date | 06 February 2013 |
| Neutral Citation | [2013] EWCA Civ 29 |
| Docket Number | Case No: A2/2012/1050 |
| Court | Court of Appeal (Civil Division) |
| Date | 06 February 2013 |
[2013] EWCA Civ 29
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
His Honour Judge David Richardson, Ms V. Branney and Mr D.G. Smith
UKEAT/0281/11/LA
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Pill
Lord Justice Hughes
and
Lord Justice Rimer
Case No: A2/2012/1050
Mr Neil Clark (instructed by Aman Solicitors Advocates) for the Appellant
Mr Daniel Tatton Brown (instructed by Croner Consulting Limited) for the Respondent
Introduction
By a judgment, sent with reasons to the parties on 7 April 2011, the Watford Employment Tribunal ('the ET') (Employment Judge Southam, Mrs S.Long and Mrs P.W. Burrage) held, by a majority, that the claimant, Anita Tayeh, a registered nurse, had been unfairly dismissed from her employment at a care home by the respondent, Barchester Healthcare Limited ('BHL'). The judgment also recorded that the parties had agreed that the compensation to which Ms Tayeh became entitled by reason of that holding was £18,000.
That agreement as to compensation was without prejudice to BHL's right to appeal to the Employment Appeal Tribunal ('the EAT') against the unfair dismissal finding. BHL did appeal. By an order dated 11 April 2012, the EAT (His Honour Judge David Richardson, Ms V. Branney and Mr D.G. Smith) allowed BHL's appeal and substituted a finding that the dismissal was fair.
Ms Tayeh wished to appeal to this court against the EAT's order, and by an order of 25 June 2012 Pill LJ gave her permission to do so. Whilst Ms Tayeh had admittedly committed two acts of misconduct involving vulnerable residents in the care home, it was arguable in his view that the ET had been entitled to find, as it had, that dismissal was outside the band of reasonable responses to such misconduct that might have been adopted by a reasonable employer. Neil Clark represented Ms Tayeh on the appeal. He appeared in neither tribunal below, in which Ms Tayeh represented herself. Daniel Tatton Brown represented BHL. He too appeared in neither tribunal below, in which BHL was represented by Mr K. Chauduri, of Croner Consulting Limited.
I shall in what follows: (i) summarise the relevant provisions of Ms Tayeh's employment contract; (ii) set out the facts found by the ET; (iii) summarise the ET's conclusions; (iv) summarise the EAT's conclusions; and (v) explain the arguments and my conclusions on the appeal.
A. Ms Tayeh's employment contract
Ms Tayeh was born in 1948. She is a level 2 registered nurse with two years of academic training. In 1996, she was employed by Westminster Health Care Limited to work at Magnolia Court Care Home. At some uncertain date, Magnolia Court was acquired by BHL, which operates registered care homes, including 32 in the south- east region. One consequence of that was that Ms Tayeh's employment transferred to BHL under the TUPE regulations. At all relevant times following such transfer, she worked at Magnolia Court for four 12-hour nights a week (thus a 48-hour week). On her shifts, she was the registered nurse responsible for the second floor.
Whilst the date of BHL's acquisition of Magnolia Court was uncertain, BHL provided Ms Tayeh with a statement of the terms and conditions of her employment, which both parties signed in February 2005 and which gave an employment commencement date of 16 January 2005. Clause 16, 'Termination', included that 'In the event of gross misconduct, you may be dismissed without notice'. Clause 17, 'Disciplinary Procedure', provided:
'The disciplinary procedure is explained in the Employee Handbook. The purpose of the procedure is to achieve improvements in unsatisfactory conduct or performance by staff. In cases of gross misconduct or poor performance, the employee may be dismissed subject to a right of appeal.
The Company has an obligation to investigate cases of alleged professional misconduct and in certain circumstances may have to make a report to the NMC [Nursing and Midwifery Council].'
It was either common ground before the ET, or at any rate the ET found, that the 'Employee Handbook' was incorporated into Ms Tayeh's employment contract. The Handbook included BHL's disciplinary procedure and, in particular, what it described as a non-exhaustive, illustrative list against 28 bullet points of types of conduct that would be deemed 'Gross Misconduct'. The 1st, 5 th, 15 th, 16 th and 17 th (the only ones the ET identified expressly, and which I have numbered for ease of subsequent reference) read:
'1. Breach of safety rules and/or any action, which endangers the health or safety of residents/patients, visitors or work colleagues …
5. Failure to administer to, or the mis-management of drugs in respect of, residents or patients …
15. Falsification of timesheets and/or pay documentation
16. Falsification of the written records of the Company
17. Fraud or any other illegal offence committed against the Company'
The next section of the Handbook, headed 'Suspension,' provided, so far as material, for BHL to be entitled to suspend an employee 'for a period on full pay where it is believed that this course of action is appropriate, having regard to the circumstances of the particular allegation(s).'
The ET set out Ms Tayeh's job description. The 'Purpose of Job' was 'To provide and supervise the delivery of high quality nursing care to residents in accordance with up-to-date, evidence-based professional practice and company policies.' The main responsibilities were listed under 16 numbered heads, of which the ET identified in particular the following:
'4. Continuously evaluate nursing care in accordance with the resident's needs and within the "named nurse" system. Ensure the named nurse system is kept up-to-date. …
7. Ensure that documentation relating to the delivery of care is completed accurately, legibly and in accordance with company standards. Participate in the formal audit process at the request of the Home Manager.
8. Comply with the NMC Code of Conduct at all times and ensure processes are adhered to for the safe ordering, custody, storing, disposing and administration of all medication. Accept responsibility for the safety of medication in store and on the trolley during dispensing rounds.'
The provisions of the NMC Code of Conduct that the ET regarded as material were the following:
'1.3 You are personally accountable for your practice. This means that you are answerable for your actions and omissions, regardless of advice or directions from another professional
1.4 You have a duty of care to your patients and clients, who are entitled to receive safe and competent care.'
B. The facts
(a) The early morning of 2 December 2009
At 2.00 am on a date early in December 2009, Ms Caratella (the general manager of Queen's Court Care Home) and Ms Lampard (the general manager of Magnolia Court) made an unannounced visit to Magnolia Court. Each produced a report of what they found. Ms Caratella's is dated 2 December 2009 but describes the visit as having been on '1 December 2009 at 2 am'. Ms Lampard's is dated 1 December 2009 and also describes the visit as having been 'on the 1 st December 2009'. Despite the noted agreement of both as to the date of the visit, the ET found that it occurred at 2.00 am on 2 December 2009. No issue arises as to that finding.
The ET summarised the findings in the reports. A number of fire doors were open and trolleys were obstructing the doors. Lindi Bare (whose status was not given) and RGN [Registered General Nurse] Esther Otto were covered in blankets and asleep on the first floor. RGN Lee Hiew was also asleep. None was wearing appropriate clothing. No-one was at the nurses' station. HCA [health care assistant] Michelle Madekuroza and HCA Wendy Jordan were asleep on the second floor. Ms Tayeh, who was responsible for the second floor, 'was thought to be asleep' and was observed with a cup in one hand, a pen in the other, a newspaper on her lap and her eyes closed. Fire doors were also open on the second floor. Some residents had no call bells. Some had been given double incontinence pads or were lying on towels. Bedrail charts had not been completed. A meeting of staff present was immediately convened and the nurses and assistants were told of their shortcomings.
Neither report referred to a matter that would be raised later: namely, a 'PEG [percutaneous endoscopic gastrostomy] feed', the giving of which Ms Tayeh recorded at about 3.00 am in the record of patient, DF, but did so in the 6.00 am time line, the time when the feed was due to be given. No feed was given at 3.00 am and so the entry was a false one. A PEG feed is a form of continuous drip feed which, once attached, can be in operation for several hours. The patient can be checked to see if any feed is in operation.
A consequence of the 2 December visit was that BHL employed an additional nurse at Magnolia Court for the purpose of ensuring that the night staff did not sleep on duty. She may have had wider duties, but if so the ET made no finding as to what they were.
Another consequence was that Ms Tayeh was summoned to a meeting on 4 December 2009 by Diana Parry, the general manager of another BHL care home. It was also attended by Dorota Clark, as a note taker. Ms Parry put to Ms Tayeh that (i) she had been asleep at the time of the visit, (ii) bedrail checks had not been done, (iii) double incontinence pads had been used, (iv) call bells were not in the reach of residents, and (iv) she had falsified the PEG feed...
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