Tayeh v Barchester Healthcare Ltd

In a conduct dismissal, an Employment Tribunal must assess the employer’s decision against the objective band of reasonable responses. It must not substitute its own view of the gravity of misconduct for an employer’s view that the evidence can reasonably support.

Reliable records of treatment for vulnerable residents are inherently important. Falsifying such a record may amount to gross misconduct. A serious failure by the nurse responsible to observe an injured resident may also justify dismissal. An appellate tribunal may substitute a finding of fair dismissal, rather than remit the case, where the primary facts are complete and the properly directed answer is inevitable under Employment Rights Act 1996 section 98(4).

A registered nurse employed at a care home was summarily dismissed for, among other matters, recording a PEG feed before it had been given and failing to make observations of a recently fallen resident for nearly three hours.

The Watford Employment Tribunal held by a majority that the dismissal was unfair. The Employment Appeal Tribunal allowed the employer’s appeal and substituted a finding that the dismissal was fair: UKEAT/0281/11/LA. The nurse appealed to the Court of Appeal.

The central issues were whether the Employment Appeal Tribunal had been entitled to set aside the tribunal’s application of the band of reasonable responses, and whether it could substitute its own decision rather than remit the case.

1. Appeal dismissed. Rimer LJ gave the judgment, with which Hughes and Pill LJJ agreed. The Employment Appeal Tribunal was entitled to set aside the finding of unfair dismissal and substitute a finding that the dismissal was fair.

2. Under Employment Rights Act 1996 section 98, once an employer establishes a qualifying reason for dismissal, the tribunal considers the reasonableness of the investigation, belief and grounds for belief. It then decides objectively whether dismissal fell within the band of reasonable responses. The tribunal must not impose its own subjective view of the appropriate sanction. The inquiry is not conditional upon a finding that the employer’s decision was perverse: Graham [2012] EWCA Civ 903; Foley [2000] ICR 1283.

3. The tribunal erred in treating falsification of the employer’s written records as inherently less serious than neighbouring examples of gross misconduct in the disciplinary handbook. Accurate, reliable records of treatment and medication are of fundamental importance in a care home for elderly and vulnerable residents. The tribunal thereby substituted its own assessment of seriousness for an assessment the employer was entitled to make. The absence of immediate suspension, supervision or retraining could be material on suitable facts, but did not cure that error.

4. The tribunal also erred over the failure to observe the fallen resident. The dismissal letter’s reference to nursing interventions did not enlarge the charge; it emphasised that no effective observation had occurred. The transfer-documentation allegation was separate. The evidence did not establish a communication that could reasonably mitigate the responsible nurse’s failure to make observations. The employer was entitled to regard both the false record and the failure to observe the vulnerable injured resident as gross misconduct meriting dismissal.

5. The primary facts had been found. Once the tribunal’s legal errors were removed, only one conclusion was open: dismissal was within the band of reasonable responses. A remittal was therefore unnecessary.

• Court of Appeal (Civil Division) — dismissed the employee’s appeal and upheld the substituted finding that the dismissal was fair: [2013] EWCA Civ 29.
• Employment Appeal Tribunal — allowed the employer’s appeal, set aside the finding of unfair dismissal and substituted a finding of fair dismissal: UKEAT/0281/11/LA.
• Watford Employment Tribunal — by a majority, held that the employee had been unfairly dismissed. The parties agreed compensation of £18,000, subject to the employer’s right of appeal.