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    As well as an employer’s reasonable belief that an employee had committed misconduct, a finding of gross misconduct justifying dismissal required that the conduct alleged was capable of amounting to gross misconduct. The conduct had to be a deliberate contradiction of the contractual terms, or had to amount to gross negligence.


    The appellant NHS trust appealed against a decision that it had unfairly dismissed the respondent nurse (W). W had worked for the trust in the accident and emergency department at one of its hospitals. During a night shift, a young woman with a history of psychiatric illness and who was intoxicated arrived at the department suffering from minor injuries. After an hour, the woman was discharged but refused to leave. Another nurse ejected the woman by wheeling her outside the hospital on a trolley, and W helped her. The trust convened a disciplinary panel and dismissed W for gross misconduct.

    The employment tribunal found that the disciplinary proceedings had been seriously deficient, and found that no reasonable panel could have characterised W’s actions as either deliberate wrongdoing or gross negligence and so could not describe them as gross misconduct. The tribunal would have been minded to reduce W’s compensation by 20 per cent to take account of her contributory fault, but decided not to do so because of the trust’s ineptitude. The trust argued that (1) the tribunal had made its own findings of fact on several issues instead of confining itself to considering the reasonableness of the findings made by the panel; (2) the tribunal’s view that gross misconduct was not established was wrong, since failure to adhere to trust policy had been stipulated as gross misconduct, and once the policy had been breached, the trust was entitled to conclude that there had been gross misconduct; (3) the tribunal had erred in determining contributory fault by reference to the employer’s conduct rather than the employee’s, contrary to the Employment Rights Act 1996 s.123(6)


    HELD: (1) The tribunal had considered evidence that had not been heard or addressed by the disciplinary panel, and there were instances of the tribunal reaching a different conclusion about the same evidence as was heard by the panel. In some instances it appeared that the tribunal had made the error of falling into a “substitution mindset”, London Ambulance Service NHS Trust v Small (2009) EWCA Civ 220, (2009) IRLR 563  considered. However, individually, such instances did not amount to an error of law of sufficient impact to require a rehearing. In some cases the tribunal’s findings did not contradict those of the panel; in others the tribunal had stayed on the right side of the line between substituting its own views for those of the panel and analysing the panel’s reasoning.

    Nor did the instances considered cumulatively make out a case of substitution. The matters concerned were not central to the core issue, which was whether taking the woman outside constituted gross misconduct. (2) It was not clear what the breach of trust policy actually was. Assuming that it was taking the woman outside, it remained to be asked whether that was so serious as to amount to gross misconduct. That was not a question always confined to the reasonableness of the employer’s belief. The conduct alleged had to be capable of amounting to gross misconduct, and the employer had to have a reasonable belief that the employee had committed such misconduct. Gross misconduct justifying dismissal had to amount to a repudiation of the contract of employment by the employee, Pepper v Webb (1969) 1 WLR 514 CA (Civ Div) followed, and had to be a deliberate and wilful contradiction of the contractual terms, Laws v London Chronicle (Indicator Newspapers) Ltd (1959) 1 WLR 698 CA applied. Alternatively, it had to amount to gross negligence.
    Accordingly, the tribunal had been right to direct itself that gross misconduct involved either deliberate wrongdoing or gross negligence. Its conclusion that W’s actions could not be so characterised was one that was open to it on the facts. (3) The trust’s approach to contributory fault was erroneous: it should have considered W’s conduct rather than that of the trust, Parker Foundry Ltd v Slack (1992) ICR 302 CA (Civ Div) applied. The question of contributory fault would be remitted for reconsideration.


    Appeal allowed in part




    Lawtel: 18.1.10