Tayeh v Barchester Healthcare Ltd

The Court of Appeal dismissed the employee's appeal against the Employment Appeal Tribunal's decision that the dismissal was fair. The key legal principles applied were the Burchell test for misconduct (reasonable belief based on reasonable investigation) and the statutory inquiry under section 98(4) of the Employment Rights Act 1996 as to whether dismissal fell within the "band or range of reasonable responses" available to a reasonable employer. The Employment Tribunal had found some allegations did not independently justify summary dismissal; the EAT concluded the ET had made errors of law by mis-assessing the seriousness of falsifying nursing records and by substituting its own view for that of the employer on whether failure to observe a vulnerable patient justified dismissal. The Court of Appeal agreed that those were errors of approach and that, applying the correct legal tests, the employer was entitled to dismiss for (i) falsification of a PEG feed record and (ii) failure to make observations of a resident after a fall.

Background and parties: Anita Tayeh, a registered nurse employed at Magnolia Court (part of Barchester Healthcare Limited), was dismissed after disciplinary proceedings arising from two incidents: a false entry in a PEG (percutaneous endoscopic gastrostomy) feed record on 2 December 2009 and alleged failure to make observations and complete transfer documentation after a resident's fall on 10/11 February 2010. The Watford Employment Tribunal (ET) held the dismissal unfair and awarded agreed compensation. The employer (BHL) successfully appealed to the Employment Appeal Tribunal (EAT), which substituted a finding that the dismissal was fair. Ms Tayeh appealed to the Court of Appeal.

Nature of the claim / relief sought: Appeal against the EAT's decision substituting a finding that dismissal was fair; the appellant sought to restore the ET's determination that dismissal was outside the band of reasonable responses.

Issues framed:

• Whether the ET had misapplied the law in assessing whether dismissal for falsifying the PEG feed entry fell within the band of reasonable responses.
• Whether the ET had erred in finding dismissal for failure to make observations following a fall fell outside the band of reasonable responses.
• Whether the EAT was entitled to substitute its own view rather than remit for rehearing.

Procedural history: ET (Watford) found dismissal unfair (judgment 7 April 2011). EAT allowed BHL's appeal and substituted a finding that dismissal was fair (order dated 11 April 2012; UKEAT/0281/11/LA). Permission to appeal to the Court of Appeal was granted on 25 June 2012.

Court's reasoning: The Court of Appeal summarised the applicable law: Burchell for misconduct investigations and the section 98(4) "band of reasonable responses" test, as re-stated in authorities such as Graham (Jobcentre Plus) and Foley. The Court held the ET had erred in law in two respects. First, the ET wrongly treated the falsification entry as inherently less serious than other listed misconducts in the employer's handbook and thereby assessed seriousness by an incorrect standard; falsifying clinical records in a care-home setting is inherently capable of amounting to gross misconduct. Second, the ET majority wrongly concluded that dismissal for failure to make observations fell outside the band of reasonable responses, in part by misreading the disciplinary decision letter and by failing properly to evaluate the investigation and mitigation; the employer was entitled to regard the absence of observations for nearly three hours of a vulnerable resident as gross misconduct. The Court accepted the EAT's view that, once the ET's legal errors were removed, the proper application of the law resulted in a single clear answer: dismissal was within the band of reasonable responses on the two misconduct heads. The Court therefore dismissed the appeal rather than remitting for rehearing.

Subsidiary findings: The ET's unanimous finding that failure to complete transfer documentation alone did not merit dismissal was upheld by the EAT and not disturbed on this appeal. The Court took account of the surrounding employment contract terms, the incorporated disciplinary handbook, and the Nursing and Midwifery Council Code of Conduct in assessing employer expectations and seriousness.

Appeal dismissed. The Court of Appeal held that the ET had made errors of law in assessing the seriousness of falsifying a PEG feed record and in its treatment of the failure to observe a resident after a fall; the EAT was entitled to replace the ET's flawed conclusions and to hold that, applying section 98(4) and established authority (Burchell; Iceland Frozen Foods; Foley; Graham), dismissal was within the band of reasonable responses.

Watford Employment Tribunal: judgment dated 7 April 2011 found dismissal unfair and compensation agreed at £18,000. Employment Appeal Tribunal: appeal by Barchester Healthcare Limited allowed by order dated 11 April 2012 (UKEAT/0281/11/LA), substituting a finding that the dismissal was fair. Permission to appeal to the Court of Appeal granted 25 June 2012. Court of Appeal judgment delivered 6 February 2013 ([2013] EWCA Civ 29) dismissing the employee's appeal.