Tayeh v Barchester Healthcare Ltd

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.

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:

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:

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:

The provisions of the NMC Code of Conduct that the ET regarded as material were the following:

The facts

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 record by making an entry at 3.00 am for a feed intended to be administered at 6.00 am. Ms Tayeh was summoned to a second meeting with Ms Parry on 30 December 2009, which Ms Clark also attended as a note taker. The same points were put to Ms Tayeh as at the previous meeting. Ms Tayeh was provided with copies of the notes of the meetings, and before the disciplinary meeting that was later held. Whilst she asserted to the ET that they were inaccurate, she did not explain how, nor did she complain to BHL at the disciplinary meeting or at all of their claimed inaccuracy.

A third investigatory meeting was held on 1 February 2010. The interviewer was Penny Hammond, the note taker Binta Alhassan. The note recorded Ms Hammond as having referred to the relevant visit to Magnolia Court as being on 1 December 2009 rather than 2 December, but again nothing turns on that. Ms Hammond put to Ms Tayeh that the fire doors had been wedged open and obstructed, as to which Ms Tayeh is noted as saying that ‘We all decided to leave the fire doors open’. As to the double padding of the residents, she was noted as saying that ‘we don’t do it, that was the first time it had been done. We were short of the right pads.’ As for the PEG feed due at 6.00 am that was documented at 3.00 am, Ms Tayeh’s responded that ‘It was a mistake.’ The non-completion of the bedrail checks was put to her, her response being that ‘the carers had the files, they had the folders with them’.

The night of 10/11 February 2010

On 10 February 2010, a new resident, RF, was admitted to Magnolia Court at about 6.20 pm. At 7.40 pm she suffered a fall. Ms Tayeh was not present at the time – she was due to be on duty at 8.00 pm – and another member of staff recorded the fall in a Communication Sheet and an Accident and/or Incident Record. Ms Tayeh arrived for her duty at 8.30 pm: she was late because of the overrunning of some training she had been undergoing. The subsequent events of the night of 10/11 February 2010, which involved Ms Tayeh, were the subject of an investigation by Katie Plumb, a deputy care home manager from Atfield House, Isleworth brought in by BHL, and I shall come to it.

On 16 February 2010, shortly before she was due to commence her night shift, Hillary Mashiri (a senior health care assistant) informed Ms Tayeh that she had been suspended from her duties. She was sent home and her duties that night were performed by an agency nurse. Ms Tayeh made a prompt complaint to Ms Lampard of the suspension, saying that she had not been given notice of its nature, that confidentiality had been breached by the fact that it had been conveyed orally rather than in writing and that it had damaged her reputation. BHL confirmed the suspension in writing on 23 February 2010.

The Plumb investigation

Ms Plumb considered the two reports of the 2.00 am visit on 2 December 2009 and the notes of the interviews of Ms Tayeh held on 4 and 30 December 2009 and 1 February 2010. She inspected the fluid chart for 2 December 2009. That did not itself prove any wrongdoing, because the PEG feed was due at 6.00 am, and, on its face, the chart showed the relevant entry as having been made then. There is, however, no dispute that, as she had admitted, Ms Tayeh had made the entry at 3.00 am.

Ms Plumb investigated the Magnolia Court documentation relating to the patient RF on the day of her admission, 10 February. That included a record timed at 11.20 pm and completed by Ms Tayeh that noted the arrival of doctors to examine RF and that RF was taken to hospital at 12.25 am. Ms Plumb took a statement from Ms Mashiri, in which she had said that, following the fall, a care plan and risk assessment for RF had not been completed.

Ms Plumb interviewed Ms Tayeh on 16 February 2010. The ET, in paragraph 9.26, summarised what it regarded as the significant parts of that interview:

Ms Plumb also interviewed Ms Baira, who was supervising on the night of 10 February and had worked on the second floor. She told Ms Plumb that, following the fall, she had established that RF was quiet and comfortable. She had asked Ms Tayeh, who had been allocated to look after RF, to complete the necessary paperwork and admission care plans. She did not, however, know if Ms Tayeh had done them and did not check with her whether she had. She assumed that Ms Tayeh was doing the observations on RF. The interview with Ms Baira disclosed that Ms Tayeh had provided some documentation to the ambulance crew who took RF to hospital but it was also clear that such documentation did not include a transfer form, nor was such a form completed for retention at Magnolia Court. Ms Baira said that if Ms Tayeh had not been allocated to look after RF, she, Ms Baira, would have examined her and done the observations.

Ms Plumb carried out a further interview of Ms Tayeh on 23 February 2010. On being asked what she had done about RF’s fall, she replied that RF ‘… was put back to bed. I think the nurse said that she did observations.’ Ms Tayeh, when asked if had checked the notes for observations, replied ‘No, there were things going on. I think [Ms Baira] was checking the notes.’ The ET, in paragraph 9.30, further summarised that interview as follows:

The disciplinary proceedings

On 26 February 2010, Ms Plumb wrote to Ms Tayeh requiring her to attend a disciplinary hearing on 4 March 2010. It was to be conducted by Linda Garner, the general manager of another BHL care home, and was to be attended by Michelle Duffy as a note taker. The letter informed Ms Tayeh that the purpose of the hearing was to consider four allegations of breach of company health and safety rules and policies and procedures on the night shift of 1/2 December 2009, namely (as numbered by me):

The disciplinary hearing took place on 4 March 2010. It was chaired by Ms Garner. Although Ms Plumb’s letter had advised Ms Tayeh that she could be accompanied by a work colleague or an accredited trade union official of her choice, she attended alone. Notes were taken - not, in the event, by Ms Duffy, but by Serb Sidhu. They occupy just over five single-spaced, typed pages, in question and answer form. The ET, in paragraph 9.34, focused on the outcome of the hearing in relation to allegations 4, 5 and 6. As to allegation 4 (document falsification), Ms Tayeh admitted that what she had done was a mistake; when asked whether she admitted falsifying documents, she replied ‘Not intentionally’; when asked whether she had ‘done this’ before, she replied ‘No’; and when asked why she did it that night, she replied ‘Don’t know’. As to allegation 5 (failure to make observations), she said that she thought Ms Baira had done them; that she had asked Ms Baira what her role was, but that Ms Baira had not answered; she admitted that, if someone has a fall, observations are made, but said that she did not do them because Ms Baira said she had already done them; Ms Tayeh did not, however, check that she had, but took her word for it; as to allegation 6 (transfer form), she admitted she had not done it. Overall, Ms Tayeh admitted that she had not done various things but said that her failing was not intentional.

Ms Garner’s decision was conveyed by her letter to Ms Tayeh of 11 March 2012. She found all six allegations proved. She said Ms Tayeh had failed to provide any mitigating factors, but in reaching her decision she had taken account of the fact that Ms Tayeh had worked for BHL for 11 years. As for allegations 1 to 3, she regarded these as ‘serious breaches of company policies and procedures that have potentially put the health and safety of residents at risk’. She issued a final written warning in respect of each.

As for allegations 4, 5 and 6, she expressed her findings in two paragraphs:

Ms Tayeh’s appeal against Ms Garner’s decision was heard by Mr Beorby on 8 April 2010. He dismissed the appeal by his letter of 12 April 2010.

The ET’s reasoning and conclusions on Ms Tayeh’s unfair dismissal claim

The ET correctly directed itself that, in relation to a dismissal on grounds of misconduct, it must first be satisfied that the employer had a genuine belief in the employee’s guilt, being a belief based on reasonable grounds after the carrying out of a reasonable investigation (British Home Stores v. Burchell [1980] IRLR 379, at 379, 380, per Sir John Donaldson). If the tribunal is so satisfied, the next question is as to the reasonableness of the employer’s response to the misconduct so found. No question as to BHL having satisfied the Burchell conditions arose either on the appeal to the EAT or on the appeal to this court. The battleground on both appeals was as to whether the ET was or was not correct in finding that BHL’s dismissal of Ms Tayeh fell outside the band of reasonable responses that might be adopted by a reasonable employer.

The ET explained first its unanimous view that, as for allegation 4 (the PEG feed allegation), the dismissal did not fall within such band. It said:

The ET turned to the dismissal based on allegation 6 (failure to complete the transfer form). It said:

Finally, the ET turned to allegation 5 (the failure to make observations). The tribunal was divided as to whether dismissal on this ground was within the band of reasonable responses. Employment Judge Southam, in the minority, considered that it was. The wing members, in the majority, considered that it was not. The ET explained their differing views as follows:

In view of the majority’s reference to paragraph 17, I should summarise what it had said. It made the points that (i) neither the ET, nor Ms Tayeh during the disciplinary proceedings, was told the standard of observations required or their frequency; (ii) no documentation was produced that demonstrated such standard; (iii) there was conflicting evidence about who on 10 February 2010 was responsible for the administration of medication, the making of observations and who did the medication round; and (iv) it was not clear to the ET that BHL had sufficiently analysed the possibility of a breakdown of communication between Ms Baira and Ms Tayeh. Paragraph 17 also noted that Ms Tayeh had admitted her failure in relation to the making of observations.

The result was, therefore, that the ET found Ms Tayeh to have been unfairly dismissed.

The EAT’s reasoning and conclusion on the hearing of BHL’s appeal

The EAT correctly reminded itself that an appeal to it against the decision of the ET lay only on points of law. Its approach was therefore to consider whether the ET had stated and applied the correct legal principles and had, by the application of those principles, reached findings and conclusions that were supportable, meaning that they were not perverse.

One argument that BHL advanced to the EAT was that the ET had erred in law by looking separately, rather than cumulatively, at the three grounds (allegations 4, 5 and 6) relied upon by BHL as justifying its dismissal decision. The submission was that the ET ought to have considered whether, in the light of the totality of the allegations which led to Ms Tayeh being dismissed, BHL’s decision to dismiss her was within the band of reasonable responses. As to that, the EAT said that Ms Garner had been re-called to give evidence to the ET and had explained that she had taken the view that each of allegations 4, 5 and 6 separately amounted to gross misconduct. The EAT said, at paragraph 38, that whilst the ET had not said expressly whether it found the charges levelled by BHL as constituting separate or cumulative instances of gross misconduct, it was plain that BHL’s case had been that the charges were separateinstances of gross misconduct, with each meriting dismissal. This was apparent from paragraph 23 of the ET’s reasons, in which it recorded Ms Garner as having contended that the PEG feed matter by itself merited dismissal; and from paragraph 24 (quoted in paragraph 30 above), in which the ET dealt first, and separately, with whether the falsification of the PEG feed documentation merited dismissal. The EAT said, in paragraph 38, that it had no doubt, having read the dismissal letter and listened to the explanation that the parties had provided, that this was the approach Ms Garner had adopted. There was no basis for a criticism of the ET that it looked at the three charges separately.

The EAT then turned its attention to how the ET had dealt with each charge.

The ‘PEG feed’ charge

In the case of the PEG feed charge (allegation 4), the EAT concluded that the ET had fallen into error. Instead of starting with BHL’s reasoning in relation to this, and then applying the range of responses test, the ET had simply substituted its own conclusion as to whether dismissal for this charge fell within the range of responses of the reasonable employer. The EAT said in paragraph 43 that it regarded this as clearest from the ET’s finding that the basis for the charge – ‘Falsification of the written records of the Company’ – was, as the ET had said in paragraph 24, ‘in a different category of seriousness from the types of gross misconduct which appear above and below it in the list’ (see again paragraph 7 above for the ET’s quotations from the list). The EAT’s view was that there was no warrant for that conclusion in the list itself, and the EAT regarded it as unjustified. The EAT continued:

The ‘failure to provide a transfer form’ charge

The ET had been unanimous that the misconduct represented by the non-completion of the BHL transfer form (allegation 6) did not merit summary dismissal, and it had explained such conclusion in paragraph 25. The EAT’s view, in paragraph 47, was that the ET had made no error of law in this respect and so there was no basis for upsetting its conclusion on appeal.

The ‘failure to make observations’ charge

The ET’s decision that dismissal on the ground of Ms Tayeh’s failure to make observations of RF (allegation 5) was not within the range of reasonable responses was a majority decision. The EAT’s judgment was that the majority’s reasons were flawed by three errors of law. First, the majority considered that Ms Garner had, when making her dismissal decision, improperly relied not merely upon the failure by Ms Tayeh to ‘carry out observations following a fall’ (allegation 5) but also upon her failure to ‘carry out … any nursing interventions’ (which had not been alleged against her).

The EAT noted that this conclusion apparently rested exclusively on the wording of the dismissal letter: there was no suggestion in the ET’s reasons that any such alleged impropriety had been put to Ms Garner when she gave evidence. The EAT was of the view that the ET majority had anyway attached a weight to the phrase that it could not bear. The EAT said:

The second reason given by the majority was that Ms Garner had included in the same paragraph of her decision letter (it is the penultimate paragraph quoted in paragraph 27 above) a reference to the absence of transfer documentation, which the ET was unanimous would nothave justified dismissal. The EAT pointed out, however, that the documentation charge was a separate one (allegation 6), with which Ms Garner was bound to deal separately. The fact that she regarded the documentation charge as separately justifying dismissal did not vitiate her decision on the ‘failure to make observations’ charge.

The majority’s third and fourth reasons related to mitigation. The EAT said of them:

Having therefore allowed BHL’s appeal, the EAT considered whether it should remit the case for re-hearing before the ET; or whether it was in a position to substitute its own decision for the ET’s flawed decision. The EAT directed itself that it should only take the latter course if, when the law was correctly applied, the answer was plain. It concluded that this was such a case:

The appeal to this court

Ms Tayeh, by Mr Clark, advanced two grounds of appeal against the EAT’s decision. First, that it was exclusively the function of the ET to decide whether, in the circumstances of the case, dismissal was or was not within the band of reasonable responses that a reasonable employer might adopt in relation to the misconduct by Ms Tayeh that Ms Garner found proved. The ET had given its reasons for deciding that neither in the case of the ‘PEG feed’ charge nor in that of the ‘failure to carry out observations’ charge did dismissal fall within such band. There was no justification for the EAT to substitute its own different view on those issues for the ET’s views. Second, that if the ET did fall into error in any material respect such that its decision as to the unfairness of the dismissal could not stand, it was not for the EAT to substitute its own substantive decision: it should have remitted the case to the ET for re-hearing.

Before considering the merits of those submissions, I consider it convenient to set out the principles raised by Ms Tayeh’s unfair dismissal claim. The relevant statutory provisions are in section 98(1), (2) and (4) of the Employment Rights Act 1996, which provide guidance as to the procedure for determining whether the dismissal of an employee is fair or unfair. Section 98 is familiar and there is no need to set it out in full. Section 98(1) imposes upon the employer the burden of showing the reason or, if more than one, the principal reason for the dismissal; and that it is either a reason falling within subsection (2) or ‘some other substantial reason’ of a kind such as to justify the dismissal of an employee holding the position which the employee held. Subsection (2) identifies five categories of reason, of which the second, in section 98(2)(b), is one that ‘relates to the conduct of the employee …’; and that, of course, was the reason invoked by BHL, its case being that it dismissed Ms Tayeh because of her misconduct in three separate respects, each meriting dismissal. If the employer negotiates itself through section 98(1), as BHL did, it does not, however, follow automatically that the dismissal was fair: it remains for the ET decide whether it was fair or unfair, and that requires it to have regard to section 98(4), which provides:

The manner in which the ET should approach the determination of the fairness or otherwise of a dismissal on conduct grounds was re-stated by this court in Graham v. Secretary of State for Work and Pensions (Jobcentre Plus) [2012] EWCA Civ 903; [2012] IRLR 759. Aikens LJ, in a judgment with which Rafferty and Pill LJJ agreed (with Pill LJ adding a substantive judgment of his own), said:

The statements of principle in those paragraphs are derived from well-established authority, which is referred to by Aikens LJ in footnotes to his judgment and their accompanying comments. The tripartite approach referred to in paragraph 35 derives from British Home Stores v. Burchell [1980] IRLR 379, at 379, 380, per Sir John Donaldson. The statements in paragraph 36 as to the need for the ET to assess the reasonableness of the employer’s response to the misconduct by reference to the ‘band of reasonable responses’ derive from Iceland Frozen Foods Ltd v. Jones [1983] ICR 17, at 24F to 25D, per Browne-Wilkinson J; and from this court’s decision in Foley v. Post Office [2000] ICR 1283. Foley’s case contains, at 1291 and 1292, the following passages in Mummery LJ’s judgment, with which Rix and Nourse LJJ agreed:

Those passages make clear that, in applying the band of reasonable responses approach, it will not be a condition of an ET’s decision that the employer’s decision fell outside such band that the ET must conclude that the employer’s decision was perverse. The task of the ET, sitting as an industrial jury, is simply to assess the reasonableness of the decision to dismiss against the objective standards of the hypothetical reasonable employer, measured by reference to the band of reasonable responses. In Foley’s case, the tribunal found that the dismissal decision was within such band; and the court held that such finding could not regarded as erroneous in law, and so vulnerable to an appeal, unless it could be characterised as one that no reasonable tribunal could have reached – that is, that it was perverse.

Whilst the guidance in Foley excludes any need for a tribunal to find that an employer’s decision to dismiss was perverse before it can conclude that dismissal was unreasonable, I admit to some difficulty in understanding the nature of that guidance. If the tribunal’s application of the band of reasonable responses approach informs it that dismissal in the particular case fell outside the band of reasonable responses that might be adopted by the hypothetical reasonable employer, that would appear to be equivalent to a conclusion that dismissal was a decision that, on the facts, no reasonable employer could have made. That would be akin to a finding of perversity. That said, I accept that the guidance in Foley, binding upon this court,is to the effect that appeals to concepts of perversity are out of place in the consideration of the reasonableness or otherwise of the dismissal: the approach that has to be applied is simply that of the ‘band of reasonable responses.’

In this case, BHL regarded each head of proven misconduct under heads 4, 5 and 6 as separately meriting dismissal. There is, however, no longer any issue as to head 6: the ET held that dismissal for the misconduct under that head was outside the band of responses, a conclusion upheld by the EAT. The battleground before us is as to heads 4 and 5. In the case of each, the ET held that dismissal did not fall within the band of reasonable responses, whereas, also in the case of each, the EAT held that it did.

Given that difference between the two tribunals below, there was some discussion before us during the argument as to what this court’s role is in such a case. In this context, it is to be noted first that, just as the ET wing members will have experience from both sides of industry, so likewise will the EAT wing members, so that each tribunal will bring to bear the like industrial experience. It is perhaps an unusual feature of the EAT, to which appeals ordinarily lie only on questions of law, that its appeals will normally be heard by panels of three, of which two members will usually have no experience as lawyers. Having noted that, there is no doubt that the so-called lay members of the EAT make an invaluable contribution to its decision-making process, as I found from my own experience of sitting in the EAT.

In my judgment, the answer to the question referred to at the beginning of the preceding paragraph is this. The ET is the tribunal to which fell the responsibility of finding the facts in the case and of applying the applicable law to the facts so found. Amongst the findings it had to make was whether or not the dismissal of Ms Tayeh for her misconduct under each of heads 4 and 5 fell within the ‘band of reasonable responses’. That was either a finding of fact pure and simple, or else was a finding in the nature of a value judgment akin to such a finding. Whichever it was, once the ET had made its finding, that would normally mark the end of the matter. That is because there is no appeal to the EAT against an ET’s findings of fact. Appeals to the EAT against an ET’s judgment lie only on questions of law: section 21(1) of the Employment Tribunals Act 1996. This principle is applied by the EAT strictly. It will, for example, not be enough for a would-be appellant to the EAT to assert that the ET’s finding on a particular factual issue was against the weight of the evidence. If there was evidence justifying the ET’s finding, that will usually be fatal to the bringing of an appellate challenge and the EAT will refuse to permit an appeal to proceed. Generally speaking, the only bases on which appellate challenges to an ET’s findings of fact will be permitted by the EAT will be if they are said to have been supported by no evidence at all, or if they were findings that no reasonable tribunal could have reached. In either case, if such challenges are made good, they would demonstrate an error of law. At least the latter way of putting the case is dependent on an assertion of perversity, although that requires nothing less than ‘an overwhelming case’: see Yeboah v. Crofton [2002] IRLR 634, at paragraph 93, per Mummery LJ.

So the decision of the ET in a case such as the present is, and will be, normally the end of the road for both parties – just as it should be - unless, however, it can be shown to be arguably vitiated by an error of law. Only then will an appeal to the EAT be permitted. In the present case, an appeal was permitted because BHL had what the EAT recognised was a properly arguable point that the ET’s judgment as to the dismissal falling outside the band of reasonable responses was vitiated by errors of law. If, for example, it was arguable that the ET had simply substituted its own views for those of BHL as to how Ms Tayeh’s misconduct ought fairly to have been dealt with, that would have been an error of approach and so of law (see the final passage in Mummery LJ’s judgment in Foley’s case quoted at paragraph 48 above). Likewise if the ET had arrived at its conclusions on the ‘band of reasonable responses point’ by misdirecting itself as to the applicable law (for example, as BHL maintained, by misinterpreting the terms of Ms Tayeh’s contract).

In the event, the outcome of the appeal was that the EAT accepted BHL’s submissions, allowed the appeal and substituted its own decision that Ms Tayeh was fairly dismissed. The further appeal to this court is against the order of the EAT, against whose orders appeals also lie only on questions of law. This court is therefore of course concerned to assess the correctness or otherwise of the decision of the EAT to reverse the decision of the ET; but in doing so its primary focus must, as is usual in appeals against orders of the EAT, necessarily be on the correctness or otherwise of the ET’s decision. To that I now turn.

Mr Clark, for Ms Tayeh, addressed us at some length although the substance of his points fell within narrow limits. His primary point was that the EAT had fallen into the error of substituting its own views as to whether the dismissal for allegations 4 and 5 fell within the band of reasonable responses, whereas the ET’s approach to those issues was not open to rational challenge. The ET was the industrial jury charged with the fact-making inquiry, it had discharged that function impeccably and the EAT had no business to overrule its findings and assume the task itself. He relied on what Mummery LJ had said in Brent London Borough Council v. Fuller [2011] EWCA Civ 267; [2011] ICR 806, at paragraph 12:

As regards the dismissal on the PEG feed ground (allegation 4), Mr Clark said that there was no warrant for the EAT’s view that the ET had misdirected itself in its paragraph 24. The ET’s point that ‘this matter is in a different category of seriousness from the types of gross misconduct which appear above and below it in that list’ involved no error of law. He said that what the ET was there doing was to focus on the gravity of the misconduct by reference to the particular facts of the case, which was a legitimate approach. The EAT had simply, and improperly, substituted its own findings for the ET’s.

As regards the ‘failure to make observations’ issue (allegation 5), Mr Clark’s submission was to like effect. The ET’s majority decision, as explained in its paragraph 27, set out the majority’s findings of fact in relation to each matter it relied upon. The majority had found, as facts, that Ms Garner had artificially ‘beefed up’ the case against Ms Tayeh by introducing a finding based on a failure ‘to carry out nursing interventions’, when that had been no part of the original allegation against Ms Tayeh; that Ms Garner had allowed her decision as to the failure to provide transfer documentation (allegation 6, which did not justify dismissal) to contribute to her decision to dismiss on the grounds of allegation 5; that she ‘appears to have concluded’ that Ms Tayeh had not provided any mitigation; and that she had failed to investigate the mitigation that Ms Tayeh had in fact put forward. The EAT, it was submitted, again had no business to interfere with any of the ET’s factual findings in these respects.

Taking first the ‘PEG feed’ issue, I would not accept Mr Clark’s defence of the ET’s approach to the assessment of the relative seriousness, as compared with that of its immediate neighbours, of item 16 in the list of offences in the BHL Handbook. The Handbook explains to employees that BHL ‘will regard the following list of offences as Gross Misconduct’ and that ‘Gross Misconduct may lead to Summary Dismissal’. The sense of the ET’s view that item 16 was ‘in a different category of seriousness from’ items 1, 5, 15 and 17 was that in some unexplained way the falsification of company records was inherently a less serious offence than, for example, the falsification of timesheets or pay documents. In my judgment, that view was an error of law. No doubt, in any particular case, the commission by an employee of an offence under head 16 could, on its particular facts, be regarded as either more or less serious than, on its particular facts, an offence by the same employee under, say, heads 15 or 17. In principle, however, the falsification of BHL’s written records is, for obvious reasons, a serious matter capable of meriting dismissal. It was so regarded by Ms Garner; and for the ET to review her dismissal decision by its own mistaken assessment that item 16 identified an offence of a less serious character than others in the list and so (by inference) being an offence that in principle merited more lenient treatment was, in my judgment, an error of approach. I regard the EAT’s criticism of that approach in paragraphs 43 and 44 of its own judgment as justified; in particular, I regard its explanation in paragraph 44 of the obvious importance of there being reliable records of the treatment and medication actually given as manifestly sound.

As is implicit in that, I would not accept Mr Clark’s submission that all that the ET was doing in the relevant sentence of paragraph 24 was to focus on the seriousness of the particular facts of Ms Tayeh’s case. The ET was not doing that. It was making a general, and mistaken, point of principle about the level of seriousness of item 16. It was in the remainder of paragraph 24, starting with its ‘Furthermore’, that it turned to the seriousness of the falsification of the record on the facts. With respect, I find its reasoning in that part of the paragraph difficult to follow. The ET’s point seems to have been that the relevant falsification was of no real materiality because at any time patient DF could be checked to see whether she was, or was not, being given the feed. That is true but I do not understand its supposed significance. The reason why BHL’s members of staff are required to make a written record of what medication or treatment they have provided to patients, and when, is so that there is a permanent, reliable record of such information; and such records will be worthless unless they are completed accurately, are known to be completed accurately and mean what they say. Had there, for example, been a need of a subsequent inquiry as to what treatment had been given to patient DF on 2 December 2012, and when it had been given, it would have been of paramount importance for BHL to be able to answer the inquiry by reference to reliable staff records. BHL operates care homes for elderly, vulnerable people; and it does so in a society in which it can expect on occasions to have to answer for the care it has provided to them. It is obvious that the scrupulous maintenance of accurate and reliable records of such care is of the greatest importance. It is plain that Ms Garner regarded Ms Tayeh’s infraction as serious, as she was entitled to, whereas the ET was here substituting its own mistaken view that, in general terms and on the particular facts, it was not really very serious at all.

There are, Mr Tatton Brown submitted, other unsatisfactory features about the ET’s reasoning in its paragraph 24. Before dealing with the points just discussed, the ET had made four points as to why dismissal was not a reasonable response to the offence: (i) Ms Tayeh was not promptly suspended; (ii) she was not told of the offence; (iii) she was not subjected to supervision with a view to ensuring its non-repetition; (iv) nor was she given training to achieve the like result. As for point (ii), it is true she was not told about it on the morning of 2 December 2009. But she was told about it at each subsequent interview, of which the first was on 4 December 2009. Point (ii) therefore appears to me be of no weight and I shall say no more about it.

The collective essence of the other three points was that, although Ms Tayeh’s offence had been discovered in early December 2009, she was not suspended immediately but was allowed to continue working, without supervision or re-training, until she was suspended on 16 February 2010; and that an employer which takes a line such as that is acting inconsistently if it then summarily dismisses her for the offence.

We had no argument on supervision and training, but we were referred to statements in the authorities as to the significance, in unfair dismissal claims following a dismissal on conduct grounds, of whether an employer does, or does not, promptly suspend an employee. They include guidance that prompt suspension will not necessarily be the appropriate industrial response to an offence ultimately held to merit dismissal. In East Berkshire Health Authority v. Matadeen [1992] ICR 723, at 73), Wood J, giving the judgment of the EAT, said, at 730, that ‘It would be extremely unwise, save in obvious cases, to draw any inference or conclusion from the suspension or lack of suspension.’ In Crawford and another v. Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138; [2012] IRLR 402, Elias LJ, in a judgment with which Kitchin and Laws LJJ agreed, said, at paragraph 71, that ‘It [suspension] should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is.’ More recently, in Graham v. Secretary of State for Work and Pensions (Jobcentre Plus) [2012] EWCA Civ 903; [2012] IRLR 759 (referred to in paragraph 47 above), both Aikens LJ (at paragraph 62) and Pill LJ (at paragraph 78) regarded it as material to the issue as to the fairness of the dismissal decision that the ET had taken account of the fact that the employee had not been promptly suspended.

Whether or not an employee has, or has not, been suspended may, therefore, on the facts of a particular case, be a material consideration. I do not, however, regard it as constructive to focus in the present case more specifically on the ET’s reliance upon the suspension, supervision and training points. The collective implication of all three was that, in the mind of the ET, BHL did not in fact regard Ms Tayeh’s offence as very serious. The thrust of the remainder of paragraph 24 was that nor was it very serious, either in principle or on the facts. For reasons given, I consider that BHL was entitled, as it did, to take the view that it was serious and that the ET’s dilution of its seriousness was an error of law. In my judgment, the points that the ET made in the opening part of paragraph 24 do not serve either to repair, or to counter, its error in the latter part of that paragraph as to the seriousness of the offence with which Ms Tayeh had been charged. The overall error of the ET’s reasoning in paragraph 24 was to misstate the seriousness of that offence and thus to judge the employer’s decision to dismiss her for such offence by reference to the wrong standard.

The arrival at this conclusion is not the end of the case as regards the PEG feed allegation. It means, as I would hold, that the EAT was correct to hold that the ET erred in law in its approach to the assessment of the fairness of BHL’s decision to dismiss Ms Tayeh for her falsification of its records. The ET’s error was to substitute its own subjective view that such falsification was not as serious as other offences listed in the Handbook list in place of BHL’s apparently different view as to the seriousness of the offence, being one that merited dismissal. There remains, however, the question whether the EAT was right, having arrived at that conclusion, simply to proceed, as it did, to substitute its own decision that the dismissal was within the band of reasonable responses; or whether it should have remitted that question for a re-hearing by the ET or a differently constituted ET. I shall return to this after I have dealt with the next issue, that relating to allegation 5, the ‘failure to make observations’ charge.

As to that, I consider, with respect, that here too the majority of the ET fell into legal error. The majority’s reasons were in paragraph 27 of the ET’s judgment. As to the ‘failure to carry out nursing interventions’ point, I agree with the analysis of the EAT in its paragraph 52, to which I cannot usefully add. I agree also with the EAT’s point in response to the majority’s reliance on the inclusion in the relevant paragraph of the decision letter of Ms Garner’s reference to dismissal on the transfer documentation point. Ms Garner was not using the latter point to support her conclusion that Ms Tayeh should be dismissed on the ‘failure to make observations’ ground. All that she was there doing was to deal, as she had to, with the ‘failure to provide transfer documentation’ ground that was the subject of a separate charge.

The majority invoked finally Ms Garner’s failure to take account of Ms Tayeh’s claimed mitigation, in particular the ‘possibility of confusion as to responsibilities between Florence Baira and [Ms Tayeh] on the night in question, and the other limitations on the investigation described above at paragraph 17.’ The facts relevant to this are in paragraphs 9.26 and 9.27 of the ET’s reasons. They record that, when asked by Ms Plumb whether she had checked on RF or spoken to the family, Ms Tayeh gave an answer that implied that she had not. She then explained to Ms Plumb that she had not taken any observations after the fall or examined RF; and although she said she would normally have done so, she had been very busy. She further told Ms Plumb that ‘she had thought [Ms Baira] … was available and had seen RF …’. The ET did not find on what basis Ms Tayeh had formed such view. It made no finding of any communication between Ms Tayeh and Ms Baira that might have entitled the former to believe that the latter was making, or had made, the observations. Paragraph 9.27 recorded Ms Plumb’s interview with Ms Baira, which showed that Ms Baira did not know if Ms Tayeh had done the observations and did not check with her. Ms Baira said nothing to suggest that Ms Tayeh, who was in charge of the second floor, had understood, or might have understood, that Ms Baira was doing the observations. Paragraph 17 made the point that BHL did not investigate ‘the precise division of responsibility on the night in question’ between Ms Tayeh and Ms Baira, but also noted Ms Tayeh’s ‘admissions of failure in relation to the making of observations’.

Given these findings by the ET, Ms Garner was, I consider, entitled to take the view that BHL’s investigation disclosed that no genuine mitigation in relation to the ‘failure to make observations’ charge had been shown by Ms Tayeh. In my judgment, the EAT was justified in concluding that the majority of the ET had misdirected itself in concluding otherwise. The majority’s error was that it was substituting its own view as to the fairness of Ms Tayeh’s dismissal on ground 5 for a view which in my judgment BHL was entitled to hold.

I conclude, therefore, that the EAT was right to conclude that the decision of the ET as to the unfairness of the dismissal could not stand. The ET’s error was to substitute its own views as to the seriousness of the charges for those of BHL, which BHL was entitled to hold. The remaining issue is whether, having arrived at that conclusion, the only course properly open to the EAT was to remit Ms Tayeh’s claim for a re-hearing by the ET – or a differently constituted ET – as to whether, on the facts of the case, the dismissal of Ms Tayeh on the grounds of charges 4 and 5 was, or was not, within the band of reasonable responses that might be adopted by a reasonable employer. Mr Clark’s submission was that this was the only course the EAT could properly adopt. That is because the question is one of fact and it is the ET, not the EAT, that is the fact-finding tribunal.

I do not accept that submission. It may be said to be supported by a purist approach to the division of functions between the ET and the EAT. In this case, it appears to me, however, to represent an appeal to theory rather than to sensible practicality. The ET has found all the primary facts. Its error was that, having found them, it misdirected itself as to its secondary findings as to whether dismissal on each of charges 4 and 5 fell within the band of reasonable responses. In my judgment, the EAT was right to take the sensible view it did that, once the ET’s errors are removed from consideration, the case is a straightforward one raising a question to which there was only one answer, namely that BHL was entitled to regard each of charges 4 and 5 as amounting to gross misconduct meriting dismissal and that dismissal was within the band of reasonable responses that might be adopted by a reasonable employer.

I would dismiss Ms Tayeh’s appeal.

I agree.

I also agree.