Salford Royal NHS Foundation Trust v Roldan

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Elias,Lord Justice Etherton,The Chancellor
Judgment Date13 May 2010
Neutral Citation[2010] EWCA Civ 522
Docket NumberCase No: A2/2009/2139/EATRF
Date13 May 2010

[2010] EWCA Civ 522

IN THE HIGH COURT OF JUSTICE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM EMPLOYMENT APPEAL TRIBUNAL

His Honour Judge Mcmullen QC

Before: The Chancellor of the High Court

Lord Justice Etherton

and

Lord Justice Elias

Case No: A2/2009/2139/EATRF

UKEAT/0323/09

Between
Salford Royal NHS Foundation Trust
Appellant
and
Roldan
Respondent

Mr Jonathan Cohen (instructed by Messrs Woodcocks) for the Appellant

Mr Giles Powell (instructed by Hill Dickinson LLP) for the Respondent

Hearing dates: 29 April 2010

Lord Justice Elias

Lord Justice Elias:

1

The appellant, a Filippino nurse, was recruited from Singapore and employed by the respondent Trust from 3 July 2003 until her summary dismissal for misconduct on 12 October 2007. She successfully pursued a claim of unfair dismissal to the Employment Tribunal and was awarded compensation, but the Tribunal's conclusions were overturned on appeal by the Employment Appeal Tribunal. She now seeks to appeal that decision and to restore the finding of the Employment Tribunal.

The facts.

2

The appellant was an experienced registered nurse and was employed in the Neuro high dependant Unit (NHDU) as a staff nurse. On 22 September 2007 she was working with a health care assistant, Ms Keeley Denton. Subsequently, Ms Denton complained that the appellant had ill-treated a patient (referred to as ‘PB’). The appellant was suspended pending an investigation. At the point of suspension she was merely told that serious complaints had been made.

3

An investigation was subsequently carried out by Mrs Pemberton, the Assistant Director of Nursing for Neuro-Sciences and Orthopaedics at the Trust. She interviewed Ms Denton and asked her to complete an incident report form setting out what she had seen. This was completed on 26 September. Mrs Pemberton also interviewed the appellant and took into account a statement prepared by the appellant's supervisor, Sister Lavin. She concluded that the appellant's recollection was inconsistent and vague, and that of Ms Denton was consistent and precise, and recommended that the matter should proceed to a disciplinary hearing.

4

The disciplinary hearing took place on 12 October. The allegations against the appellant were not set out in any precise way but she was given in advance of that hearing the witness statements of both Ms Denton and Sister Lavin. The hearing was conducted before Ms Citrine, the Assistant Director of Nursing, and Mr Dobson, Assistant Director of Human Resources. They concluded that the appellant should be summarily dismissed on the grounds of gross misconduct.

5

The dismissal letter sets out the grounds for the dismissal. These grounds effectively recounted each of the allegations that had been made by Ms Denton and therefore it is not necessary separately to set those out. The six factors said to constitute gross misconduct were as follows:

“i) You threw/discarded cleaning wipes which landed on the patient's face. You claimed the outcome was not intended but made no attempt to apologise to the patient or to retrieve the wipes. In fact you left an inexperienced HCA (Keeley Denton) to deal with the situation.

ii) Keeley reported that you had been tapping the patient's foot with a saturation probe with increasing force. Whilst you denied this, you could offer no explanation as to what may have occurred or why Keeley should describe it in such a way.

iii) Keeley also reported that you had slapped the patient's hand. Again, you denied this but could offer no explanation.

iv) Keeley stated that you had made an abusive gesture (V-sign) to the patient and laughed in his face. You claimed that you had made a similar hand gesture to signify peace and did not mean to offend the patient.

v) In (ii) to (iv) above it was reported that you looked around to check if your actions were being observed. You denied acting in such a way.

vi) Keeley referred to an earlier incident when you had behaved inappropriately towards a patient but she had not felt confident enough to report it at the time.”

6

The disciplinary committee stated that they accepted the evidence presented by Ms Denton and preferred it to that of the appellant, whom they found to be unreliable and at times inconsistent. They considered the appellant's conduct to be wholly unacceptable and unprofessional and to warrant instant dismissal.

7

There was an appeal which was heard jointly by the Director of Finance and the Director of Nursing on 30 January 2008. In a letter sent to the appeal body by the appellant's representative prior to the hearing, the appellant accepted that she had unintentionally, but wrongly, discarded cleaning wipes which had landed on the patient's face. She also accepted that the other criticisms found in ground (i) were justified. She recognised that as a consequence her conduct had fallen below the standard required. She noted, however, that she had been subject to an assault by the patient. She denied the other allegations. She accepted that she did make a hand gesture of the ‘V’ sign in response to the patient having shown two fingers to her but it was, as she says she told the patient, a sign of peace designed to calm him.

8

As to ground (v), it was emphasised as a matter of importance that the side room where the patient was treated would not typically have the door open and the window would be covered by a closed blind. Therefore the contention that the appellant had looked out to see if others were around was strongly rejected; it would not have happened. The letter also queried why the word of someone with four months' experience would be preferred to someone who had provided four years' service without any—or at least any formal—complaint.

9

The appeal took the form of a re-hearing with all the witnesses giving evidence again. The appeal was rejected. The appeal body in substance found proved the alleged acts of misconduct which had been relied upon by the disciplinary committee. The appeal body stated that they too chose to believe the evidence presented by Keeley Denton in preference to the evidence of the appellant. They therefore confirmed the summary dismissal.

10

The consequences for the appellant were very significant. Not only did she lose her job, but in addition she lost her work permit and the right to remain in the United Kingdom. Also she was the subject of a criminal investigation by the police. The Employment Tribunal found that this was a consequence of the Trust's actions since the reference to the police was in accordance with Trust procedures. In the event, she was prosecuted but acquitted.

The law.

11

The relevant legal principles are not in dispute. Section 98(1) and (2) of the Employment Rights Act provide that misconduct is a potentially fair reason for dismissal. Section 98(4) sets out the principle of fairness:

“(4) Where the employer has fulfilled the requirements of subsection (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) –

(a) depends on whether in the circumstances … the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

shall be determined in accordance with equity and the substantial merits of the case.”

12

The application of that principle to misconduct cases was described in the following terms by the Employment Appeal Tribunal (Arnold J presiding) in British Home Stores Ltd v Burchell [1978] IRLR 379, in a passage which has been cited with approval by the Court of Appeal (see e.g. Sainsbury's Supermarkets Ltd v Hitt [2002] EWCA Civ 1588; [2003] IRLR 23):

“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 at 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. ….”.

13

Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405 the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite. In A v B the EAT said this:

“Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with...

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