Employment Cases Update

Kay v Cheadle Royal Healthcare Ltd T/A Affinity Healthcare UKEAT/0060/11/CEA

Date published: 28/10/2011

Appeal against rejection of unfair dismissal claim on the grounds that the respondent's treatment of another employee had been had been inconsistent so as to make the claimant's dismissal unfair. Appeal dismissed.

The claimant was a nurse who was investigated, and subsequently dismissed, following a complaint of bullying from a doctor. The investigation report found that another nurse was heavily implicated in the bullying but following a separate investigation no disciplinary proceedings were taken against her. The disparity point was not strongly argued before the ET, but the judgment, though critical of the respondent's handling of the claimant's colleague, found that that there was sufficient evidence for the respondent to have treated the claimant differently.

In this judgment, HHJ Richardson notes that the

"question is therefore essentially whether it was reasonable to dismiss the employee whose claim is under consideration. It is well established that tribunals should concentrate on this question and treat arguments based on disparity with care."

In the light of the ruling in Hadjioannou, which emphaised the need to concentrate on the particular circumstances of the individual employee's case, the ET's decision could not be considered perverse and there was no error of law.

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Appeal No. UKEAT/0060/11/CEA

EMPLOYMENT APPEAL TRIBUNAL

58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS

At the Tribunal

On 12 September 2011

Before

HIS HONOUR JUDGE DAVID RICHARDSON, MR P GAMMON MBE, MR D J JENKINS OBE

MRS J KAY (APPELLANT)

CHEADLE ROYAL HEALTHCARE LTD T/A AFFINITY HEALTHCARE (RESPONDENT)

Transcript of Proceedings

JUDGMENT

APPEARANCES

For the Appellant
MR GLENN PEREIRA (Representative)

For the Respondent
MS OLIVIA CHECA-DOVER (of Counsel)

Instructed by:
Clarion Solicitors Ltd
Britannia Chambers
4 Oxford Place
Leeds
LS1 3AX

SUMMARY

UNFAIR DISMISSAL – Reasonableness of dismissal

The Tribunal did not err in law in holding that the inconsistent treatment of another employee was not such as to make the dismissal unfair; and the Tribunal's reasoning in support was not perverse. Hadjioannou v Coral Casinos [1981] IRLR 352 and Paul v East Surrey District Health Authority [1995] IRLR 305 applied.

HIS HONOUR JUDGE DAVID RICHARDSON

1. This is an appeal by Mrs Jacquelyn Kay ("the Claimant") against a judgment of the Employment Tribunal sitting in Leeds (Employment Judge Keevash presiding) dated 27 September 2010. By its judgment the Tribunal rejected her claim that she had been unfairly dismissed from her employment with Cheadle Royal Healthcare Limited ("the Respondent").

2. A preliminary hearing of this appeal took place on 18 May 2011. At that hearing some grounds of appeal were dismissed. One ground was sent through to a full hearing. This ground raises an argument based on disparity of treatment: it is said that the Claimant's treatment by the Respondent was inconsistent with, and far more serious than, the treatment of a fellow-employee Ms Victoria Thomas.

The background facts

3. The Claimant was employed by the Respondent at Cheadle Royal Hospital as a Deputy Ward Nurse Manager from 9 January 2006 until her dismissal on 16 October 2009. She worked on Roselea Ward – an open rehabilitation ward for female patients with severe mental health problems. The Ward Manager from March 2008 onwards was Mr Briscoe. Ms Victoria Thomas, an experienced staff nurse, worked on the same ward. One of the doctors who regularly attended the ward was Dr Mariam Al-Amin.

4. On 22 July 2009 Dr Al-Amin made a formal complaint of bullying by the Claimant. She said that she had persistently been bullied by the Claimant over a substantial period of time. The Respondent conducted an investigation. On 5 August the Claimant was suspended. On 1 September 2009, following the completion of an investigation report by Ms Costello, she was invited to attend a disciplinary hearing to answer four allegations. The hearing took place over 2 days on 7 and 8 October 2009. By letter dated 19 October 2009 the Claimant was summarily dismissed for gross misconduct. An appeal was heard in November and rejected by letter dated 10 December 2009.

5. The four charges which the Claimant faced were:

* "That you have ignored Doctor Al-Amin and banned her from attending handovers.

* That you have not co-operated with Doctor Al-Amin and have not carried out reasonable instructions.

* That you have been rude and abrupt to Doctor Al-Amin.

* That you have treated Doctor Al-Amin with little respect, laughing at her and belittling her contributions to team decisions."

6. Mrs Orme, the manager who dismissed the Claimant, reached the following principal conclusions:

"With regard to the other allegations, I concluded that the following took place:

- You asked Doctor Al-Amin to leave the room in front of junior staff

- You talked about Miriam in a derogatory manner in front of other professionals and junior staff

- You failed to carry out a reasonable instruction from Doctor Al-Amin with regard to the ward round

- Your manner when communicating with Doctor Al-Amin was rude and abrupt

- You challenged Doctor Al-Amin decisions and did this in front of other staff

- You undermined Doctor Al-Amin by your actions

- You have been critical of Doctor Al-Amin in front of other staff

- You have shouted at Doctor Al-Amin

- You have shown little respect to her position within the team

In the hearing I advised that I cannot ignore that witnesses showed concern about attending the hearing or even meeting you within the hospital grounds.

I conclude that I do believe that bullying has taken place and this has happened over a prolonged period of time. I see this as unacceptable behaviour particularly for a person in your position of a Deputy Unit Manager and that your actions and behaviour have had a negative impact on the individual involved.

I gave serious consideration to alternatives to dismissal however, the behaviour is not an isolated incident and there is evidence this has been ongoing for a prolonged period of time therefore I feel the only option is to summarily dismiss you for gross misconduct for the reasons listed above."

7. These findings, which are incontestably serious in nature, were based on a detailed investigation. Mrs Orme noted that out of 11 staff interviewed 8 supported the allegation of Dr Al-Amin that bullying had taken place. Some of those staff were called as witnesses by the Claimant at the disciplinary hearing; Mrs Orme noted that five of them gave evidence of bullying by the Claimant.

8. The investigation report by Ms Costello said there was evidence that Ms Thomas was "heavily implicated" in bullying; and also that there was evidence of other, unrelated, misconduct. The Respondent carried out an investigation into these matters but no disciplinary proceedings were taken as regards bullying.

The Tribunal hearing and reasons

9. The Tribunal hearing took place over 3 days in September 2010. Both parties were represented. The Tribunal heard, among others, from Dr Al-Amin and from the managers who took the decision to dismiss and who dealt with the appeal. The Claimant gave evidence. Ms Thomas gave evidence on her behalf.

10. The point about disparity was not a ground of appeal put forward in a detailed letter written by the Claimant setting out her grounds for the internal appeal. There was a brief, unparticularised, mention of disparity in the claim form. At the hearing one of many points advanced by the Claimant was that Ms Thomas was also guilty of bullying Dr Al-Amin; that Ms Thomas was not the subject of disciplinary proceedings at all; and that her treatment was therefore unfair when it was compared to the way Ms Thomas was treated.

11. In its reasons the Tribunal set out correctly the terms of section 98 of the Employment Rights Act 1996, setting out the statutory test which the Tribunal had to apply. The Tribunal sufficiently summarised the approach set out in British Home Stores v Burchell [1978] IRLR 379 which is apposite to dismissals on grounds of misconduct. The Claimant's representative cited some authorities on the question of unfair dismissal, but neither side referred the Tribunal to authorities on the approach to arguments about disparity.

12. The Tribunal set out its conclusions in paragraphs 9 to 20 of its reasons, dealing as it did so with the main contentions put forward on the Claimant's behalf. The issue of disparity was addressed in paragraph 20.

"Mr Holmes submitted that there was inconsistency in the way in which the Respondent treated the Claimant and Ms Thomas respectively. Ms Thomas was cited by several of the witnesses as being involved in the bullying of Dr Al-Amin. Although she was subsequently disciplined, she was not disciplined by any bullying. Ms Orme decided not to take forward an allegation of bullying to a disciplinary hearing. She gave three reasons for that decision. Firstly, Ms Thomas was of a less senior position. The Tribunal failed to understand that this was of any relevance at all. At the time of the Hearing Ms Thomas was still employed as a Staff Nurse. She was bound by her professional Code of Conduct but also she had to comply with the Respondent's Harassment and Bullying Policy. The Tribunal also heard Mr McComiskie give very firm evidence regarding the need to ensure that bullying is not tolerated. Secondly, Dr Al-Amin did not wish to pursue a complaint against Ms Thomas. The Tribunal was surprised because several witnesses stated during the course of Ms Costello's investigation that Ms Thomas had behaved in a bullying manner. That ought to have been sufficient for the Respondent to have taken action with or without Dr Al-Amin's consent. Thirdly, several of the witnesses had described Ms Thomas' role in the inappropriate behaviour as being peripheral. The Tribunal found and decided that this factor was sufficient for the Respondent to treat the Claimant and Ms Thomas differently. Some witnesses stated that Ms Thomas was behaving under the influence of the Claimant. In those circumstances the Tribunal concluded that the inconsistent treatment was not such as to make the dismissal unfair. The Respondent was entitled to conclude that Ms Thomas was not as much to blame as the Claimant."

Submissions

13. On behalf of the Claimant Mr Glenn Pereira submits that the Employment Tribunal's conclusions on the question of Ms Thomas's involvement were insupportable. He points to the investigation report on the Claimant, which says that Ms Thomas was "heavily implicated" in the bullying incidents. He says that several witnesses were of the opinion that Ms Thomas had bullied Dr Al-Amin; and he has taken us through summaries of the evidence gathered by the Respondent in its investigation into Ms Thomas. He also criticises the Tribunal for saying that "some witnesses stated that Ms Thomas was behaving under the influence of the Claimant". Mr Pereira submits that Ms Thomas, a staff nurse of at least ten years experience, ought to be held entirely accountable for her behaviour. He said that the evidence did not bear out the Tribunal's use of the word "peripheral".

14. Mr Pereira also submits that two of the three reasons given by the Respondent for disparity of treatment were rejected by the Tribunal. He argues that the Tribunal erred in law in relying on the third reason given when it was only part of the Respondent's reason for dismissal.

15. Even if the Respondent was entitled, as the Tribunal found, to conclude that Ms Thomas was not so much to blame as the Claimant, Mr Pereira submits that it was still wrong in law for the Tribunal to find that it was acceptable for one to be summarily dismissed when the other had no action at all taken against her: he refers to and relies on Post Office v Fennell [1981] IRLR 221.

16. On behalf of the Respondent Ms Checa-Dover submits that in substance the Claimant's appeal is brought on grounds of perversity. She refers us to Yeboah v Crofton [2002] IRLR 634 for the test to be applied in respect of such an appeal. She further submits that arguments on disparity ought to be scrutinised with particular care: she cites Hadjioannou v Coral Casinos [1981] IRLR 352 and Paul v East Surrey District Health Authority [1995] IRLR 305 and Securicor Ltd v Smith [1989] IRLR 356.

17. Ms Checa-Dover submits that the Respondent was entitled to reach the conclusions it did about the witness evidence, and the Tribunal was right to accept that any inconsistency in treatment was not such as to make the dismissal unfair. She points out that Dr Al-Amin herself said that she did not perceive Ms Thomas's conduct as bullying; one witness said that Ms Thomas was "lost" and "influenced heavily" by the Claimant; and that Ms Thomas was "not bullying towards anyone she was just heavily influenced by [the Claimant] who is a nasty bully". In these circumstances, while the Respondent may be criticised for not taking action against Ms Thomas, it does not follow that it was unreasonable to dismiss the Claimant.

Our conclusions

18. The starting point for the Tribunal in a case where the reason for dismissal is established is always section 98(4) of the Employment Rights Act 1996, which provides:

"(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 (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) shall be determined in accordance with equity and the substantial merits of the case."

19. The question is therefore essentially whether it was reasonable to dismiss the employee whose claim is under consideration. It is well established that tribunals should concentrate on this question and treat arguments based on disparity with care.

20. In Hadjioannou the Appeal Tribunal accepted the following analysis of the circumstances in which disparity might be relevant to a Tribunal's consideration of an unfair dismissal claim.

"Firstly, it may be relevant if there is evidence that employees have been led by an employer to believe that certain categories of conduct will be either overlooked, or at least will not be dealt with by the sanction of dismissal. Secondly, there may be cases in which evidence about decisions made in relation to other cases supports an inference that the purported reason stated by the employers is not the real or genuine reason for a dismissal.... Thirdly, ... evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case, that it was not reasonable on the part of the employer to visit the particular employee's conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances."

21. In this case we are concerned with the third type of circumstance – whether a decision made in truly parallel circumstances made it unreasonable for the employer to dismiss the employee.

22. The Appeal Tribunal accepted that evidence as to decisions made by an employer in truly parallel circumstances may be sufficient to support an argument, in a particular case that it was not reasonable on the part of the employer to visit the particular employee's conduct with the penalty of dismissal and that some lesser penalty would have been appropriate in the circumstances. See in this context, also Post Office v Fennell [1981] IRLR 221 at paragraph 12.

23. However the Appeal Tribunal sounded a note of caution. At paragraph 25 Waterhouse J said:

"… tribunals would be wise to scrutinize arguments based on disparity with particular care …there will not be many cases in which the evidence supports the proposition that there are other cases which are truly similar, or sufficiently similar, to afford an adequate basis for the argument. The danger of the argument is that a Tribunal may be led away from a proper consideration of the issues raised by section 57(3) of the Act of 1978. The emphasis in that section is upon the particular circumstances of the individual employee's case."

24. The approach set out in Hadjioannou was endorsed by the Court of Appeal in Paul v East Surrey Health Authority [1995] IRLR 305 at paragraphs 34 -35, 38 and 41.

25. The starting point for the Appeal Tribunal is section 21(1) of the Employment Tribunals Act 1996. There is an appeal to the Appeal Tribunal only on a question of law.

26. This is why it is difficult to succeed in an appeal where the essential ground is that the Tribunal's evaluation of the evidence was insupportable – "perverse", to adopt the phrase which lawyers generally use. A perversity appeal is essentially a complaint about the Tribunal's findings of fact. Because Parliament has expressly provided that there is to be an appeal to the Appeal Tribunal only on a question of law, there is only the most limited scope for such an appeal. Thus in the leading case, Yeboah v Crofton (2002) IRLR 634 at para 93 Mummery LJ said:

"Such an appeal ought only to succeed where an overwhelming case is made out that the Employment Tribunal reached a decision which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached. Even in cases where the Appeal Tribunal has "grave doubts" about the decision of the Employment Tribunal, it must proceed with "great care", British Telecommunications PLC –v- Sheridan [1990] IRLR 27 at para 34."

27. In this case the Tribunal's legal approach, set out in its reasons, was correct. The appeal ought only to succeed if the Tribunal's conclusion was perverse.

28. We are conscious today that we have not seen all the material which the Tribunal had before it, which included notes of evidence from 11 witnesses, which we have not seen. We have seen a one-page summary of notes of interview from 5 witnesses who were involved in the subsequent investigation into Ms Thomas; we are told the documents themselves were before the Tribunal. We have seen Ms Costello's report, which was before the Tribunal; we called for copies, since it was mentioned in the Notice of Appeal but not found in our bundle.

29. We do not think the Tribunal's conclusion can be described as perverse. While there was certainly evidence that Ms Thomas was implicated in the bullying there was plainly to our mind plainly a difference between the evidence relating to the Claimant and the evidence relating to Ms Thomas.

30. There is certainly a difference in the evidence of Dr Al-Amin. She complained against the Claimant, who was the main source of upset for her. Although it appears that she provided some support to a complaint of bullying against Ms Thomas, it was plainly her case that that the behaviour of the Claimant impacted more greatly upon her. Other witnesses gave evidence in which the Claimant's behaviour was central. One witness said that Ms Thomas was "lost" and "influenced heavily" by the Claimant; and that Ms Thomas was "not bullying towards anyone she was just heavily influenced by [the Claimant???] who is a nasty bully". It was for the Tribunal, in making its assessment on this issue, to evaluate the material from the 11 witnesses. We are not satisfied that was perverse in finding that the Respondent was entitled to conclude that Ms Thomas was not as much to blame as the Claimant.

31. The Tribunal plainly thought that Ms Thomas ought also to have been disciplined, and it was critical of part of the reasoning given by the Respondent for not doing so. But in the end the true question was whether it was unfair to dismiss the Claimant, applying of course the test under section 98(4) of the 1996 Act. The Tribunal correctly asked itself this question and concluded that the inconsistent treatment was not such as to make the dismissal unfair. We see no error of law in this conclusion. Indeed on the basis of the findings in the letter of dismissal while the Respondent may be criticised for not disciplining Ms Thomas it cannot in our view be criticised for dismissing the Claimant. The findings in that letter plainly merited dismissal.

32. For these reasons we conclude that there was no error of law on the part of the Employment Tribunal; and the appeal is dismissed.