Bryant v Sage Care Homes Ltd

An appellate tribunal must not decide whether it regards a dismissal as fair or harsh. Where the Employment Tribunal has directed itself correctly, the question is whether it applied the range of reasonable responses test without legal error or perversity.

A dismissal may fall within that range where an employee admits serious breaches of applicable professional standards, even though an employer cannot rely on an unimplemented internal policy. A professional regulator’s later decision not to pursue fitness-to-practise proceedings does not determine the fairness of dismissal. The regulator and employer perform different functions, and an employer is ordinarily entitled to conclude its disciplinary process promptly.

The claimant, an experienced registered nurse, was summarily dismissed after a care assistant to whom she had delegated medication gave it to the wrong resident. The claimant admitted that she neither recorded nor reported the error, contrary to Nursing and Midwifery Council standards. No harm resulted.

The Employment Tribunal at Manchester found that the employer’s internal policy against delegation had not been introduced at the home and could not support the dismissal. It nevertheless held that the admitted failures to record and report the error, together with the claimant’s perceived lack of insight, made dismissal fall within the range of reasonable responses.

The claimant appealed, alleging an ulterior motive, inadequate consideration of her case, perversity, and inconsistency with the NMC’s subsequent decision that there was no case to answer on fitness to practise.

1. Appeal dismissed. The Employment Tribunal had correctly directed itself and had not substituted its own view for that of the employer. The Employment Appeal Tribunal’s role was confined to identifying an error of law or perversity. It could not determine for itself whether dismissal was fair, harsh, or the outcome it would have chosen. The guidance in Fuller v London Borough of Brent [2011] IRLR 414 was applied.

2. The Tribunal had addressed, and was entitled to reject, the claimant’s allegation that the drug incident was a pretext for an ulterior economic or other motive. Its reasons, read as a whole, adequately explained its finding that conduct was the reason for dismissal. It was unnecessary to rehearse every factual argument advanced in support of the allegation: Meek v City of Birmingham District Council [1987] IRLR 250.

3. The employer could not rely upon an internal policy which had not been introduced at the home. Delegation itself was permitted by the applicable NMC standards. However, the claimant’s admitted failures to report and document the medication error were independent breaches of those standards. The Tribunal was entitled to find that those breaches, and the employer’s view that the claimant did not appreciate their seriousness, placed dismissal within the range of reasonable responses.

4. The absence of actual or likely harm did not remove the obligation to report and record a medication error. The NMC standard applied whenever such an error occurred. The Tribunal had weighed the absence of harm and was entitled to treat the professional reporting and recording failures as the essence of the misconduct.

5. The NMC’s later decision not to refer the claimant to its Conduct and Competence Committee did not undermine the dismissal. The NMC was deciding current fitness to practise across the claimant’s career; the employer was deciding whether admitted misconduct justified dismissal from its employment. The employer was not ordinarily required to await the regulator’s decision. No overwhelming case of perversity was established under Yeboah v Crofton [2002] IRLR 634.

• Employment Appeal Tribunal: dismissed the claimant’s appeal and upheld the finding that her dismissal for gross misconduct was fair.
• Employment Tribunal, Manchester: found that the claimant had been fairly dismissed for gross misconduct in written reasons sent to the parties on 22 December 2010.