Barchester Healthcare Ltd v Tayeh

In assessing misconduct dismissal under Employment Rights Act 1996, section 98(4), a tribunal must determine whether the employer’s decision fell within the range of reasonable responses. It must not substitute its own assessment of the seriousness of the misconduct or the appropriate sanction.

Where several allegations independently justified dismissal in the employer’s reasoning, each may be assessed separately. The position differs where allegations were relied upon cumulatively: an important allegation lacking reasonable grounds may make the dismissal unfair. A deliberate false medical record and a nurse’s failure for nearly three hours to observe a vulnerable patient after a fall were each capable of amounting to gross misconduct and justifying dismissal.

The respondent, an experienced registered nurse in a care home, was summarily dismissed for gross misconduct. The employer relied principally on her advance entry on a fluid chart recording a peg feed that had not yet been given, and her failure to observe an elderly resident for nearly three hours after a fall while awaiting a doctor.

The Employment Tribunal at Watford, by a majority, found the dismissal unfair. It also made proposed deductions for Polkey and contributory fault. The employer appealed against those conclusions, while the employee cross-appealed on the deductions. The Appeal Tribunal first determined whether the dismissal was unfair.

1. Appeal allowed. The Employment Tribunal’s finding of unfair dismissal was set aside and a finding that the dismissal was fair was substituted.

2. The tribunal had correctly identified the broad question under section 98(4) of the Employment Rights Act 1996, but it had not consistently applied the range of reasonable responses. In a misconduct case, the tribunal must consider the employer’s genuine belief, reasonable grounds, reasonable investigation, and whether dismissal was a reasonable sanction. It must not replace the employer’s permissible assessment with its own.

3. The employer had treated the misconduct allegations as independent instances of gross misconduct, each capable of warranting dismissal. The tribunal was therefore entitled to assess them separately. This was consistent with Smith v City of Glasgow DC (1987) IRLR 326, which concerned allegations relied on cumulatively. Had the employer relied cumulatively on significant charges, an unsupported charge could have been fatal to fairness; that was not this case.

4. The tribunal impermissibly downgraded the seriousness of a deliberately false fluid-chart entry. A care-home employer was entitled to require accurate records of treatment for vulnerable residents and to regard an advance entry recording treatment not yet given as falsification. The tribunal also made a factual error in saying that the matter had not been raised with the employee. The employer was entitled to dismiss for that misconduct alone.

5. The majority’s conclusion on the failure to observe the resident also contained legal errors. The dismissal letter did not improperly enlarge the charge by referring to nursing interventions; it emphasised that the patient received no proper observation or other attention. The separate transfer-document allegation did not vitiate the conclusion on observation. Applying J Sainsbury plc v Hitt [2003] ICR 111, the investigation and consideration of mitigation fell within the range of reasonable responses. The employer was entitled to treat the nearly three-hour failure to observe the vulnerable patient as gross misconduct.

6. No useful purpose would be served by determining the Polkey and contributory-fault issues.

• Employment Appeal Tribunal: Allowed the employer’s appeal and substituted a finding that the dismissal was fair.
• Employment Tribunal, Watford: By a majority, held the nurse’s dismissal unfair and made findings on Polkey and contributory fault. The Employment Judge dissented on the observation allegation.