Appeal No. UKEATS/0005/06/RN

EMPLOYMENT APPEAL TRIBUNAL
52 MELVILLE STREET, EDINBURGH, EH3 7HF

	At the Tribunal
On 5 July 2006

Before
THE HONOURABLE LADY SMITH
MISS S AYRE FIPM FBIM
MR M SMITH OBE JP

LINDA WEIR AND CHRISTOPHER ROBERTSON,
THE FIRM OF BRAE COTTAGE RESIDENTIAL HOME	APPELLANTS

MISS M W STEWART	RESPONDENT

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellants	MR J MUIR
Solicitor
Messrs Muir Myles Laverty Legal Services 
Meadowplace Building
Bell Street
Dundee
DD1 1EJ	
For the Respondent	MR D CAMERON
Advocate
Dundee North Law Centre 
Top Floor
20 Grampian Gardens 
Fintry
Dundee 
DD4 9QZ	

SUMMARY

The claimant, the assistant manager of a residential care home run by the respondent partnership, was dismissed for gross misconduct in having toileted two residents in a bathroom where another elderly resident was sitting in her wheelchair naked, waiting to be bathed.  The tribunal found that that was a practice which had occasionally occurred when the home was being run by its previous owners from whom the respondents had only just taken over the business.  To proceed to dismissal was, in these circumstances, unfair, as was using a disciplinary procedure which did not give the claimant advance notice that she was at risk of dismissal and involved the claimant’s appeal being determined by the same partner who had dismissed her.  The respondent appealed, arguing that the claimant had clearly committed an act of gross misconduct and that it was manifestly within the band of reasonable responses to dismiss.  The Employment Appeal Tribunal dismissed the appeal.  The tribunal had, correctly, considered what was the extent of the range of reasonable responses and were entitled to find as they did.

THE HONOURABLE LADY SMITH

Introduction
1.	This case concerns a claim for unfair dismissal brought by the assistant manager of a residential care home for the elderly.  By judgment entered in the register on 26 September 2005, the Employment Tribunal sitting at Dundee, Chairman Miss F C C Carmichael, the claim was upheld and compensation was awarded.  The claimant was represented before the tribunal by Mr K Marshall, solicitor and before us by Mr Cameron, advocate, and the respondents were represented before the tribunal by Mr W McMichael, solicitor and before us by Mr Muir, solicitor. 

2.	We will refer to parties as claimant and respondents. 

Background 
3.	The respondents are a partnership which took over the business of the Brae Cottage Residential Home from its previous owners, Alastair and Doreen Low, on 4 November 2004.  The claimant had worked there since September 1992 and had been appointed assistant manager in 1996.  

4.	As at November 2004, the home had four residents who suffered from incontinence problems.  The practice was to take them to the toilet every four hours.  On the ground floor there was one communal bathroom for residents and one staff toilet.  There were also some en suite bathrooms in residents’ bedrooms.

5.	On 28 November 2004, at about lunchtime, one 99 year old resident was taken to the communal bathroom as she needed a bath.  She was confined to a wheelchair, having suffered a stroke.  A member of staff had undressed her and she was waiting in her wheelchair, naked, while the bath was being run.  At the same time, the claimant noted that the four residents with incontinence problems had not been taken to the toilet after lunch.  She found that they were standing waiting outside the toilet.  The staff toilet was occupied.  She took two of them into the communal bathroom to use the toilet there whilst the elderly resident was sitting waiting for her bath. 

6.	The claimant’s actions in taking two residents to use the toilet in a bathroom where another resident was waiting, naked, for her bath clearly did not accord with the national care standards issued by the Care Commission.  In particular, they did not accord with those standards which require respect for the privacy and dignity of residents.  The relevant standards are quoted in paragraph 10 of the tribunal’s judgment.  As regards what had been done by the respondents to see to it that the staff were aware of those standards and the need to conform to them, the tribunal found that Mrs Weir’s position was that there were a number of practices and paperwork that she wished to tighten up on but had not had the opportunity to do so at the stage of the claimant’s dismissal.

7.	The incident was reported to Mrs Weir by her partner, Mr Robertson.  Later the same day, Mrs Weir called the claimant to her office, told her that she regarded it as a serious matter and told her that she had previously dealt with a nurse involved in a similar incident by sending her on a refresher course. 

8.	Five days later, on 3 December, Mrs Weir wrote to the claimant as follows:
“Following my investigations I write to inform you that I am suspending you from duty on full pay pending a disciplinary hearing into the allegation that … you started and continued to toilet residents in the bathroom adjacent to the lounge despite the fact that resident Bella … was already sitting naked in her wheelchair awaiting a bath due to the fact that she was heavily soiled.

The disciplinary hearing is scheduled for 8th December … when you will be given the opportunity to present your case …

May I remind you that following the disciplinary hearing, formal action may be taken against you.”

9.	The hearing referred to in the letter took place.  Mrs Weir conducted it and Mr Robertson took notes.  The claimant admitted that she had toileted two residents whilst another was in the bathroom waiting to be bathed.  Although initially stating it was a ‘one – off’ occasion, she subsequently indicated that it was something that she had done previously, when the home was being run by its previous owners.  Her approach was that she was just doing what she had to do.  There is no indication from any of the tribunal’s findings that she appreciated the seriousness of her conduct.  She was dismissed, the dismissal being confirmed in a letter dated 9 December which explained that it was in respect of the claimant:
“continuing to toilet two residents whilst another resident … sat in a state of undress, soiled and awaiting a bath.  This action contravenes the social care standards which stipulate that residents are afforded dignity, privacy and respect at all times.  As [this resident] was unable to communicate her needs it was your duty as assistant manager to ensure that her dignity, privacy and respect were maintained.  This you failed to do.

At the disciplinary hearing … you did not show any remorse or appear to show any understanding of the seriousness of your actions on that day.”

10.	The claimant appealed and an appeal hearing took place on 23 December in the presence of both respondent partners.  By letter dated 29 December, Mrs Weir wrote to the claimant informing her of ‘my decision’ which was ‘I have decided to uphold my original decision to terminate your employment.’  According to the findings of the tribunal, Mrs Weir’s reasoning was the claimant had contravened the relevant social care standards by failing to afford a resident the requisite dignity, privacy and respect and had then shown no remorse. 

Relevant Law
11.	Section 98 of the Employment Rights Act contains the relevant provisions.  The claimant’s dismissal having been in respect of conduct, it falls within s.98(2) and was, accordingly, a potentially fair reason.  The assessment of fairness falls to be determined by the application of the terms of s.98(4) which involves taking account of: 
“(a)  depend on whether in the circumstances, (including the size and administrative resources of the employer’s undertaking), the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee, and

(b)	that question shall be determined in accordance with equity and the substantial merits of the case.”

12.	In considering whether or not the dismissal was fair, the tribunal were obliged to caution against simply substituting their own judgment of whether they would have dismissed the claimant.  They required to bear in mind that there is usually a band of reasonable responses which an employer might reasonably adopt:  Iceland Frozen Foods v Jones [1982] IRLR 439; Post Office v Foley and  HSBC Bank v Madden [2000] IRLR 82.  Regarding the disciplinary and appeal procedures adopted, they required to consider whether there were any defects and if so, whether those defects were such as to render the dismissal unfair, bearing in mind that minor defects can usually be safely ignored.  And finally, they required to consider whether or not the claimant had contributed to her own dismissal and if so whether any such contribution ought to result in a reduction in compensation and if so, to what extent. 

The Tribunal’s Judgment 
13.	The tribunal reached the view that the practice of toileting residents with another resident present had occurred, on occasion, during the Low’s regime, to the knowledge of the owners.  They concluded that the privacy aspects of the Care Commission’s required standards had not been ‘inculcated with any thoroughness or insisted upon by the previous owners.’  There was evidence available to them on which they were entitled to reach those conclusions.  They considered that to dismiss the claimant, a long standing employee of the business, for carrying out a practice that had been condoned by the previous owners, without informing her that it was unacceptable and had to stop, did not fall within the range of reasonable responses.  

14.	The tribunal also formed the view that, on a balance of probabilities, the appeal hearing had been conducted by and determined by Mrs Weir (who was responsible for the original dismissal), rather than by Mr Robertson, that being the inference they drew from the terms of her letter of 23 December, notwithstanding Mrs Weir’s protestations to the contrary.  That they regarded as unfair.

The Respondents’ Case on Appeal 
15.	For the respondents, Mr Muir submitted that the incident in the bathroom was an ‘appalling act’.  It involved a failure to afford the residents concerned the dignity and respect to which they were entitled.  The tribunal themselves referred to it as a ‘distasteful practice’.  They had, he submitted, found that the claimant’s actions amounted to gross misconduct;  he subsequently amended that submission to one which was that since the respondents had found the claimant to have committed gross misconduct, it was incumbent on the tribunal, if they were not minded to agree, to state so, expressly. 

16.	The tribunal had, he said, approached the question of fairness from four aspects.  The first was the failure of Mrs Weir to investigate what the prior practice had been.  He referred to p.8 of their judgment, where the tribunal said:
“ …there had been occasions in the past, due to insufficient facilities, when more than one resident had been toileted at a time with the knowledge and participation of the management.  Had Mrs Weir made sufficient enquiry about the matter, she would have discovered that occasional practice.”

They were wrong about that, though, in his submission;  it was evident from the findings that they recorded at p.3, that they were told by the claimant at her disciplinary hearing that that was the case.  In any event, given the appalling nature of the act, it did not matter what Mrs Low’s attitude was;  the claimant knew it was not acceptable.  The point regarding Mrs Weir’s failure to investigate was, accordingly, unfounded in fact and not  necessary in law.

17.	The second was a question of double standards.  The tribunal, at p.8, were critical of Mrs Weir’s suggestion that the en suite facilities of other residents could have been used, on the basis that that would have involved a breach of those residents’ privacy and right to freedom from unnecessary intrusion.  However, they had assumed, without evidence to that effect that Mrs Weir envisaged entering another resident’s bedroom without their permission.  That was not to be inferred from what she said.

18.	The third was that the tribunal had referred to the practice of toileting more than one resident at a time as being a practice that had been condoned by the previous owners.  However, all that they had found was that it was something that was an ‘occasional practice’ which was not the same thing and did not justify being regarded as condonation.  None of the staff had condoned the practice as was evident from the findings in respect of their evidence at p.4.

19.	The fourth was that there were procedural failings.  Although there had been no specific warning to the claimant of the risk of dismissal, that had not tainted the fairness of the hearing. Regarding the appeal, Mr Muir referred to the case of Tiptools Ltd v Curtis [1973] IRLR 276 (an authority not on his list and not copied for the appeal hearing but which he thought indicated that in the case of a sole trader, a separate appeal procedure would not be insisted upon; the case in fact concerned a small family company and it was held, on the particular facts, that it was not practicable to afford a right of appeal).  The reference appeared to be for the purpose of a submission that the size and resources of the respondents were such as to prevent them from holding an independent appeal but the point was not put with any great degree of enthusiasm.  He stressed that the facts were not in dispute;  the appeal could only be in respect of the appropriate sanction.  The respondents had not been motivated by malice or subterfuge.  Whilst there were defects in the procedure (he accepted that, on the tribunal’s findings, the same person had made both the original decision to dismiss and the decision to refuse the appeal) they had not, he submitted, resulted in a miscarriage of justice. 

20.	Separately, Mr Muir referred to the claimant’s lack of remorse. 

21.	Clearly, he submitted, this was a case of gross misconduct and that meant that it was manifestly within the band of reasonable responses to dismiss.

The Claimant’s Case on Appeal 
22.	For the claimant, Mr Cameron invited us to dismiss the appeal and uphold the judgment of the tribunal.  He submitted that nothing founded on by the respondents pointed to the tribunal having erred in law or reached a perverse decision.  They had applied the proper statutory test.  They were entitled to find that the failure to warn of the risk of dismissal was an aspect of procedural unfairness.  The respondents had given no full particulars of their ground of appeal in respect of the appeal process.  The tribunal had not made a finding of gross misconduct.  Even if they had, that would not have meant that the dismissal was necessarily fair.  It was not for them to do so.  Rather, they analysed the question of whether or not the respondents had acted reasonably, which was correct.  They took account of the relevant law.  They applied it to the findings in fact.  They considered where the parameters of reasonable responses lay and reached their decision accordingly.

Discussion 
23.	The tribunal made findings in fact that were open to them on the evidence.  They took account of the relevant legislation and legal principle as expounded in the relevant authorities.  The only real question in the appeal was whether or not it could be said that the tribunal should have regarded the circumstances surrounding the dismissal to be such that dismissal was manifestly within the band of reasonable responses.  If they were, then that would be an error of law on the tribunal’s part.  However, judgment of the reasonableness of an employer’s response in a misconduct case is very much a matter for the tribunal which heard and assessed the evidence at first instance.  Provided it is possible to be satisfied that they have applied the objective standard of the reasonable employer, it will be very difficult to challenge its conclusion.  Only if we can be satisfied that no reasonable tribunal properly directed could have concluded that dismissal was outwith the range of reasonable responses would it be appropriate for us to interfere.

24.	The tribunal in this case took account of all the relevant facts including that the toileting of more than one resident at time was to be deprecated and they do not in any way take issue with Mrs Weir having regarded it a serious matter (although they did not, notwithstanding Mr Muir’s suggestion, describe it as ‘appalling’, a word which was used by Mr McMichael in submissions) and including that there was a history of employees, under the previous regime, toileting more than one resident at a time. 

25.	We do not agree with a suggestion made by Mr Muir that the tribunal’s findings should be interpreted as indicating that their view, on the evidence, was that Mrs Low was only aware of the unacceptable toileting practice happening on a single occasion.  The tenor of the findings is to the contrary and is indicative of a prior culture in which, notwithstanding that the staff recognised that the practice was distasteful (a view with which we emphatically agree) and in breach of Care Commission standards, it was tolerated.  Further,  we do not accept Mr Muir’s submission that the tribunal were not entitled to take the view that Mrs Weir ought to have made further enquiries.  His submission was based on an assumption that at p.8, the tribunal are referring to further enquiries that might have been made after the incident but before dismissal was determined upon.  Plainly though, that is not right.  The comment is made in a passage that deals with what could reasonably have been expected of Mrs Weir prior to the incident occurring and under reference to her evidence that she was intending to issue policies and procedures to staff but had not done so.  The passage ends with the tribunal summarising what they consider a reasonable employer in her shoes would have done:
“Good employment practice would have required that Mrs Weir clearly brought to the attention of the staff the Care Commission standards, that she was clearly insisting upon strict adherence to them and that failure to observe the standards would result in disciplinary action.” 

26.	Mr Muir’s observations regarding the ‘double standards’ remarks made by the tribunal at p.8 are fairly stated.  It does appear that they may have jumped to the wrong conclusion as to what Mrs Weir was envisaging.  However, we do not see, from reading the tribunal’s decision as a whole, that their ‘double standards’ view had any effect on their decision regarding the fairness of the dismissal.  The essence of their assessment was that the respondents had failed to adopt the good employment practice that could reasonably have been expected of any employer, as they explain in the above quotation and in their further explanation:
“ With no adequate reminder of the standards, no drawing attention to the tightening up of standards and no warning in place, her response to the incident on 28 November was not, in our opinion, that of a reasonable employer.  We therefore found the dismissal to be unfair.” 

27.	Manifestly, the tribunal did consider what was the extent of the range of reasonable responses and assessed, on an objective basis, where lay the dividing line between the reasonable and the unreasonable response.  In short, they carried out the task that the relevant law requires of them. 

28.	In the foregoing circumstances, we are satisfied that the appeal falls to be dismissed and the tribunal’s original judgment upheld.  We will pronounce an order to that effect.