Tayeh v Barchester Healthcare Ltd
Overview | [2013] EWCA Civ 29, | [2013] IRLR 387,
ER (D) 71 (Feb)
Tayeh v Barchester Healthcare Ltd 131 BMLR 85
[2013] EWCA Civ 29
COURT OF APPEAL, CIVIL DIVISION
PILL, HUGHES AND RIMER LJJ
6 FEBRUARY 2013
Employment — Dismissal — Gross misconduct —
Registered nurse employed by care home — Role of
tribunals in appeals — Misconduct involving
vulnerable residents of care home — Employer
dismissing nurse — Employment tribunal finding
dismissal unfair as falling outside band of
reasonable responses — Employment Appeal
Tribunal substituting finding that dismissal fair —
Employee appealing on ground that EAT
erroneously interfering with tribunal's determination
— Whether EAT erring.
The claimant employee was employed as a registered
nurse at one of the defendant employer's care homes
for the vulnerable and elderly. The employer's employee
handbook was incorporated into the employee's
employment contract. The handbook included the
employer's disciplinary procedure and, in particular, an
illustrative list of the types of conduct that would be
deemed gross misconduct and which attracted
dismissal ('the list of offences'). The list of offences
included breach of safety rules (item 1), failure to
administer or the mis-management of drugs in respect
of patients (item 5), falsification of time sheets and pay
documents (item 15), falsification of written records of
the employer (item 16), and fraud or any other illegal
offence (item 17). Following an unannounced visit to the
care home whilst the employee was on duty, a report
alleged, inter alia, that the employee had falsified a
record relating to a patient's percutaneous endoscopic
gastrostomy feed ('PEG feed') in breach of item 16 of
the list of offences. After a second separate
investigation, it was alleged that the employee had
failed properly to make observations of a patient.
Disciplinary proceedings took place, and the employee
was notified that those two allegations had been upheld
and, as a result, she would be summarily dismissed.
| 131 BMLR 85, | [2013] ICR D23, | [2013] All
The employee issued proceedings in the employment
tribunal. The tribunal found that the employer's dismissal
of the employee had fallen outside the band of
reasonable responses that might be adopted by a
reasonable employer. In particular, the tribunal found
that item 16 in the list of offences had not amounted to a
serious offence such as the other offences listed, and
accordingly the employer's dismissal of the employee in
regard to that offence had not been reasonable. Further,
the tribunal determined that the dismissal in regard to
the allegation of a failure to make observations had also
been unfair. The employer appealed to the Employment
Appeal Tribunal. The EAT determined that the employer
had been entitled to consider that an offence under item
16 of the list of offences had been a serious matter and
that the tribunal had not been entitled to substitute its
own view on the seriousness of the offence for that of
the employer. Further, the EAT determined that the
tribunal had erred in its approach to the issue of the
allegation of failing to make observations. Accordingly,
the EAT allowed the appeal. The employee appealed to
the
131 BMLR 85 at 86
Court of Appeal, Civil Division. She submitted that it had
exclusively been the function of the tribunal to decide
whether, in the circumstances of the case, dismissal
was or was not within the band of reasonable responses
that a reasonable employer might have adopted in
relation to the employee's misconduct and that,
accordingly, there had been no justification for the EAT
to substitute its own different view on those issues.
Alternatively, once the EAT had found an error in the
tribunal's determination, it should have remitted the case
for a re-hearing.
Held – The task of the employment tribunal, sitting as
an industrial jury, was simply to assess the
reasonableness of the decision to dismiss against the
objective standards of the hypothetical reasonable
employer, measured by reference to the band of
reasonable responses. It was to the tribunal which fell
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
the responsibility of finding the facts in the case and
of applying the applicable law to the facts so found. If
there was evidence justifying the tribunal's finding,
that would usually be fatal to the bringing of an
appellate challenge and the EAT would refuse to
permit an appeal to proceed. Generally speaking, the
only bases on which appellate challenges to a
tribunal's findings of fact would be permitted by the
EAT would be if they were said to have been
supported by no evidence at all, or if they were
findings that no reasonable tribunal could have
reached. In either case, if such challenges were
made good, they would demonstrate an error of law.
In the instant case, amongst the findings that the
tribunal had had to make was whether or not the
dismissal of the employee for her misconduct under
each head had fallen within the band of reasonable
responses. That had either been a finding of fact pure
and simple, or had been a finding in the nature of a
value judgment akin to such a finding. Whichever it
had been, once the tribunal had made its finding that
would normally have marked the end of the matter.
However, in regard to the allegation in relation to the
PEG feed, the tribunal's finding that item 16 had been
in a different category of seriousness from other
items listed in the list of offences had amounted to an
error of law, since what the tribunal had been doing
was making a general, and mistaken, point of
principle about the level of seriousness of item 16.
The employer had required members of staff to make
a written record of what medication or treatment they
had provided to patients and such records would
have been worthless unless they had been
completely accurate. It had been plain that the
employer had regarded the employee's infraction as
serious, as it had been entitled to do, whereas the
tribunal had been substituting its own mistaken view
that, in general terms and on the particular facts, it
had not been very serious at all. The overall error of
the tribunal had been to misstate the seriousness of
the offence and thus to have judged the employer's
decision to dismiss the employee for such offence by
reference to the wrong standard. Accordingly, the
EAT had been correct to hold that the tribunal had
erred in law on the issue of the PEG feed. Further,
the EAT had been entitled to find that the tribunal had
erred in relation to the charge alleging a failure to
make observations. The tribunal had found all the
primary facts. Its error had been that, having found
them, it had misdirected itself as to its secondary
findings as to whether dismissal on each charge had
fallen within the band of reasonable responses. The
EAT had been correct to take the sensible view that it
had that, once the tribunal's
131 BMLR 85 at 87
errors had been removed from consideration, the
case had been a straightforward one raising a
question to which there had been only one answer,
namely that the employer had been entitled to regard
each charge of misconduct as amounting to gross
misconduct meriting dismissal rather than remitting
the case to the tribunal for a re-hearing. The appeal
would therefore be dismissed.
Cases referred to in judgments
British Home Stores Ltd v Burchell [1978] IRLR
379,[1980] ICR 303n, EAT.
Crawford v Suffolk Mental Health Partnership NHS
Trust [2012] EWCA Civ 138, 125 BMLR 23, [2012]
IRLR 402.
East Berkshire Health Authority v Matadeen [1992]
IRLR 336,[1992] ICR 723, EAT.
Fuller v London Borough of Brent [2011] EWCA Civ
267, [2011] IRLR 414, [2011] ICR 806.
Graham v Secretary of State for Work and Pensions
(Jobcentre Plus) [2012] EWCA Civ 903, [2012] IRLR
759.
Haddon v Van Den Burgh Foods Ltd [1999] IRLR
672, [1999] ICR 1150, EAT.
Iceland Frozen Foods Ltd v Jones[1982] IRLR
439,[1983] ICR 17,EAT.
Post Office v Foley; HSBC Bank plc (formerly
Midland Bank plc) v Madden [2001] 1 All ER 550,
[2000] ICR 1283, [2000] IRLR 827, CA.
Sainsbury's Supermarkets Ltd v Hitt [2002] EWCA
Civ 1588, [2003] IRLR 23, [2003] ICR 111, (2002)
Times, 14 November.
Yeboah v Crofton [2002] EWCA Civ 794, [2002] IRLR
634, (2002) Times, 20 June.
Appeal
The appellant appealed against an order dated 11 April
2012 of the Employment Appeal Tribunal overturning
the decision of the Watford Employment Tribunal that
she had been unfairly dismissed by the respondent and
substituting a finding that the dismissal was fair.
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
Neil Clark (instructed by Aman Solicitors Advocates) for
Ms Tayeh.
Daniel Tatton Brown (instructed by Croner Consulting
Ltd) for Barchester Healthcare Ltd.
6 February 2013. The following judgments were
delivered.
RIMER LJ.
Introduction
[1] By a judgment, sent with reasons to the parties on 7
April 2011, the Watford employment tribunal ('the ET')
(Employment Judge Southam, Mrs S Long and Mrs PW
Burrage) held, by a majority, that the claimant, Anita
Tayeh, a registered nurse, had been unfairly dismissed
from her employment at a care home by the respondent,
Barchester Healthcare Ltd ('BHL'). The judgment also
recorded that the parties had agreed that the
compensation to which Ms Tayeh became entitled by
reason of that holding was £18,000.
131 BMLR 85 at 88
[2] That agreement as to compensation was without
prejudice to BHL's right to appeal to the Employment
Appeal Tribunal ('the EAT') against the unfair dismissal
finding. BHL did appeal. By an order dated 11 April
2012, the EAT (His Honour Judge David Richardson,
Ms V Branney and Mr DG Smith) allowed BHL's appeal
and substituted a finding that the dismissal was fair.
[3] Ms Tayeh wished to appeal to this court against the
EAT's order, and by an order of 25 June 2012 Pill LJ
gave her permission to do so. Whilst Ms Tayeh had
admittedly committed two acts of misconduct involving
vulnerable residents in the care home, it was arguable
in his view that the ET had been entitled to find, as it
had, that dismissal was outside the band of reasonable
responses to such misconduct that might have been
adopted by a reasonable employer. Neil Clark
represented Ms Tayeh on the appeal. He appeared in
neither tribunal below, in which Ms Tayeh represented
herself. Daniel Tatton Brown represented BHL. He too
appeared in neither tribunal below, in which BHL was
represented by Mr K Chauduri, of Croner Consulting
Ltd.
[4] I shall in what follows: (i) summarise the relevant
provisions of Ms Tayeh's employment contract; (ii) set
out the facts found by the ET; (iii) summarise the ET's
conclusions; (iv) summarise the EAT's conclusions; and
(v) explain the arguments and my conclusions on the
appeal.
A. Ms Tayeh's employment contract
[5] Ms Tayeh was born in 1948. She is a level 2
registered nurse with two years of academic training. In
1996, she was employed by Westminster Healthcare
Ltd to work at Magnolia Court Care Home. At some
uncertain date, Magnolia Court was acquired by BHL,
which operates registered care homes, including 32 in
the south-east region. One consequence of that was
that Ms Tayeh's employment transferred to BHL under
the TUPE Regulations. At all relevant times following
such transfer, she worked at Magnolia Court for four 12-
hour nights a week (thus a 48-hour week). On her shifts,
she was the registered nurse responsible for the second
floor.
[6] Whilst the date of BHL's acquisition of Magnolia
Court was uncertain, BHL provided Ms Tayeh with a
statement of the terms and conditions of her
employment, which both parties signed in February
2005 and which gave an employment commencement
date of 16 January 2005. Clause 16, 'Termination',
included that 'In the event of gross misconduct, you may
be dismissed without notice'. Clause 17, 'Disciplinary
Procedure', provided:
'The disciplinary procedure is explained in the Employee
Handbook. The purpose of the procedure is to achieve
improvements in unsatisfactory conduct or performance
by staff. In cases of gross misconduct or poor
performance, the employee may be dismissed subject to
a right of appeal.
The Company has an obligation to investigate cases of
alleged professional misconduct and in certain
circumstances may have to make a report to the NMC
[Nursing and Midwifery Council].'
[7] It was either common ground before the ET, or at
any rate the ET found, that the 'Employee Handbook'
was incorporated into Ms Tayeh's employment contract.
The handbook included BHL's disciplinary procedure
131 BMLR 85 at 89
and, in particular, what it described as a non-exhaustive,
illustrative list against 28 bullet points of types of
conduct that would be deemed 'Gross Misconduct'. The
first, fifth, 15th, 16th and 17th (the only ones the ET
identified expressly, and which I have numbered for
ease of subsequent reference) read:
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
'1. Breach of safety rules and/or any action, which
endangers the health or safety of residents/patients,
visitors or work colleagues …
5. Failure to administer to, or the mis-management of
drugs in respect of, residents or patients …
15. Falsification of timesheets and/or pay documentation
16. Falsification of the written records of the Company
17. Fraud or any other illegal offence committed against
the Company'.
[8] The next section of the handbook, headed
'Suspension', provided, so far as material, for BHL to be
entitled to suspend an employee 'for a period on full pay
where it is believed that this course of action is
appropriate, having regard to the circumstances of the
particular allegation(s).'
[9] The ET set out Ms Tayeh's job description. The
'Purpose of Job' was 'To provide and supervise the
delivery of high quality nursing care to residents in
accordance with up-to-date, evidence-based
professional practice and company policies.' The main
responsibilities were listed under 16 numbered heads,
of which the ET identified in particular the following:
'4. Continuously evaluate nursing care in accordance with
the resident's needs and within the “named nurse”
system. Ensure the named nurse system is kept up-to-
date …
7. Ensure that documentation relating to the delivery of
care is completed accurately, legibly and in accordance
with company standards. Participate in the formal audit
process at the request of the home manager.
8. Comply with the NMC Code of Conduct at all times
and ensure processes are adhered to for the safe
ordering, custody, storing, disposing and administration
of all medication. Accept responsibility for the safety of
medication in store and on the trolley during dispensing
rounds.'
[10] The provisions of the NMC Code of Conduct that
the ET regarded as material were the following:
'1.3 You are personally accountable for your practice.
This means that you are answerable for your actions and
omissions, regardless of advice or directions from
another professional
1.4 You have a duty of care to your patients and clients,
who are entitled to receive safe and competent care.'
B. The facts
(a) The early morning of 2 December 2009
[11] At 2.00am on a date early in December 2009, Ms
Caratella (the general manager of Queen's Court Care
Home) and Ms Lampard (the general manager of
Magnolia Court) made an unannounced visit to
Magnolia Court. Each produced a report of what they
found. Ms Caratella's
131 BMLR 85 at 90
is dated 2 December 2009 but describes the visit as
having been on '1 December 2009 at 2am'. Ms
Lampard's is dated 1 December 2009 and also
describes the visit as having been 'on the 1st December
2009'. Despite the noted agreement of both as to the
date of the visit, the ET found that it occurred at 2.00am
on 2 December 2009. No issue arises as to that finding.
[12] The ET summarised the findings in the reports. A
number of fire doors were open and trolleys were
obstructing the doors. Lindi Bare (whose status was not
given) and RGN (registered general nurse) Esther Otto
were covered in blankets and asleep on the first floor.
RGN Lee Hiew was also asleep. None was wearing
appropriate clothing. No one was at the nurses' station.
HCA (healthcare assistant) Michelle Madekuroza and
HCA Wendy Jordan were asleep on the second floor.
Ms Tayeh, who was responsible for the second floor,
'was thought to be asleep' and was observed with a cup
in one hand, a pen in the other, a newspaper on her lap
and her eyes closed. Fire doors were also open on the
second floor. Some residents had no call bells. Some
had been given double incontinence pads or were lying
on towels. Bedrail charts had not been completed. A
meeting of staff present was immediately convened and
the nurses and assistants were told of their
shortcomings.
[13] Neither report referred to a matter that would be
raised later: namely, a 'PEG [percutaneous endoscopic
gastrostomy] feed', the giving of which Ms Tayeh
recorded at about 3.00am in the record of patient DF,
but did so in the 6.00am time line, the time when the
feed was due to be given. No feed was given at 3.00am
and so the entry was a false one. A PEG feed is a form
of continuous drip feed which, once attached, can be in
operation for several hours. The patient can be checked
to see if any feed is in operation.
[14] A consequence of the 2 December visit was that
BHL employed an additional nurse at Magnolia Court for
the purpose of ensuring that the night staff did not sleep
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
on duty. She may have had wider duties, but if so the
ET made no finding as to what they were.
[15] Another consequence was that Ms Tayeh was
summoned to a meeting on 4 December 2009 by Diana
Parry, the general manager of another BHL care home.
It was also attended by Dorota Clark, as a note taker.
Ms Parry put to Ms Tayeh that (i) she had been asleep
at the time of the visit, (ii) bedrail checks had not been
done, (iii) double incontinence pads had been used, (iv)
call bells were not in the reach of residents, and (iv) she
had falsified the PEG feed record by making an entry at
3.00am for a feed intended to be administered at
6.00am. Ms Tayeh was summoned to a second meeting
with Ms Parry on 30 December 2009, which Ms Clark
also attended as a note taker. The same points were put
to Ms Tayeh as at the previous meeting. Ms Tayeh was
provided with copies of the notes of the meetings,
before the disciplinary meeting that was later held.
Whilst she asserted to the ET that they were inaccurate,
she did not explain how, nor did she complain to BHL at
the disciplinary meeting or at all of their claimed
inaccuracy.
[16] A third investigatory meeting was held on 1
February 2010. The interviewer was Penny Hammond,
the note taker Binta Alhassan. The note recorded Ms
Hammond as having referred to the relevant visit to
Magnolia Court as being on 1 December 2009 rather
than 2 December, but again nothing turns on that. Ms
Hammond put to Ms Tayeh that the fire doors
131 BMLR 85 at 91
had been wedged open and obstructed, as to which Ms
Tayeh is noted as saying that 'We all decided to leave
the fire doors open'. As to the double padding of the
residents, she was noted as saying that 'we don't do it,
that was the first time it had been done. We were short
of the right pads.' As for the PEG feed due at 6.00am
that was documented at 3.00am, Ms Tayeh's responded
that 'It was a mistake.' The non-completion of the bedrail
checks was put to her, her response being that 'the
carers had the files, they had the folders with them'.
(b) The night of 10/11 February 2010
[17] On 10 February 2010, a new resident, RF, was
admitted to Magnolia Court at about 6.20pm. At 7.40pm
she suffered a fall. Ms Tayeh was not present at the
time—she was due to be on duty at 8.00pm—and
another member of staff recorded the fall in a
communication sheet and an accident and/or incident
record. Ms Tayeh arrived for her duty at 8.30pm: she
was late because of the overrunning of some training
she had been undergoing. The subsequent events of
the night of 10/11 February 2010, which involved Ms
Tayeh, were the subject of an investigation by Katie
Plumb, a deputy care home manager from Atfield
House, Isleworth brought in by BHL, and I shall come to
it.
[18] On 16 February 2010, shortly before she was due
to commence her night shift, Hillary Mashiri (a senior
healthcare assistant) informed Ms Tayeh that she had
been suspended from her duties. She was sent home
and her duties that night were performed by an agency
nurse. Ms Tayeh made a prompt complaint to Ms
Lampard of the suspension, saying that she had not
been given notice of its nature, that confidentiality had
been breached by the fact that it had been conveyed
orally rather than in writing and that it had damaged her
reputation. BHL confirmed the suspension in writing on
23 February 2010.
(c) The Plumb investigation
[19] Ms Plumb considered the two reports of the 2.00am
visit on 2 December 2009 and the notes of the
interviews of Ms Tayeh held on 4 and 30 December
2009 and 1 February 2010. She inspected the fluid chart
for 2 December 2009. That did not itself prove any
wrongdoing, because the PEG feed was due at 6.00am,
and, on its face, the chart showed the relevant entry as
having been made then. There is, however, no dispute
that, as she had admitted, Ms Tayeh had made the
entry at 3.00am.
[20] Ms Plumb investigated the Magnolia Court
documentation relating to the patient RF on the day of
her admission, 10 February. That included a record
timed at 11.20pm and completed by Ms Tayeh that
noted the arrival of doctors to examine RF and that RF
was taken to hospital at 12.25am. Ms Plumb took a
statement from Ms Mashiri, in which she had said that,
following the fall, a care plan and risk assessment for
RF had not been completed.
[21] Ms Plumb interviewed Ms Tayeh on 16 February
2010. The ET, in para 9.26, summarised what it
regarded as the significant parts of that interview:
'… Ms Plumb established that [Ms Tayeh] had read the
admission assessment and movement sheet but was
unable to answer the question
131 BMLR 85 at 92
why RF had been admitted and what her main problems
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
and risks were. She said she had been very busy with so
much to do. When asked if, after the handover, that is
after 8.30pm, she had checked on RF or spoken to the
family, she had replied there was so much to do, implying
that she had not. She was then asked if she had taken
any observations after the fall or examined RF, to which
[she] replied that she had not, but that she was aware
that a doctor was coming. She said that she would
normally obtain observations after a patient had fallen,
but she had been very busy. She said that she had
thought that Florence Baira, who was supervising that
night, was available and had seen RF and had been
present at the handover. When Ms Plumb asked [Ms
Tayeh] why she had not made a clinical assessment of
RF herself, [she] had said that she was busy attending to
other residents. [Ms Tayeh] made reference to her
interaction with the relatives … Ms Plumb then asked her
about the transfer to the Royal Free Hospital, which
occurred after doctors had visited RF and examined her.
The decision was made to send her to the Royal Free by
ambulance, and Ms Plumb asked [Ms Tayeh] if she had
completed a transfer form. This is a [BHL] form, and Ms
Plumb told [Ms Tayeh] that no transfer form had been
completed nor had any “body map” been prepared …
when Ms Plumb asked why she had not documented any
care she had given to RF after her arrival on duty, [Ms
Tayeh] replied that she had written in the notes what the
doctor had done. This refers to the entry that [Ms Tayeh]
made in the communication sheet for 23.20 … Towards
the end of the interview there was this passage:
“I asked [Ms Tayeh] if at any time she had considered
reviewing the situation or asking [Ms Baira's] advice, and
calling an ambulance before the doctors arrived. [Ms
Tayeh] replied no. [She] informed me that [Ms Baira] had
stayed on the floor all night but had not assisted her
when the doctors attended. [She] also informed me that
the observations had not been done because they had
been very busy getting information from Central
Middlesex hospital where RF had been admitted from.” '
[22] Ms Plumb also interviewed Ms Baira, who was
supervising on the night of 10 February and had worked
on the second floor. She told Ms Plumb that, following
the fall, she had established that RF was quiet and
comfortable. She had asked Ms Tayeh, who had been
allocated to look after RF, to complete the necessary
paperwork and admission care plans. She did not,
however, know if Ms Tayeh had done them and did not
check with her whether she had. She assumed that Ms
Tayeh was doing the observations on RF. The interview
with Ms Baira disclosed that Ms Tayeh had provided
some documentation to the ambulance crew who took
RF to hospital but it was also clear that such
documentation did not include a transfer form, nor was
such a form completed for retention at Magnolia Court.
Ms Baira said that if Ms Tayeh had not been allocated to
look after RF, she, Ms Baira, would have examined her
and done the observations.
[23] Ms Plumb carried out a further interview of Ms
Tayeh on 23 February 2010. On being asked what she
had done about RF's fall, she replied that RF '… was
put back to bed. I think the nurse said that she did
observations.'
131 BMLR 85 at 93
Ms Tayeh, when asked if had checked the notes for
observations, replied 'No, there were things going on. I
think [Ms Baira] was checking the notes.' The ET, in
para 9.30, further summarised that interview as follows:
'[Ms Tayeh] was asked who did the medication round and
[she said] that [Ms Baira] did it. Nevertheless [Ms Tayeh],
when asked about paperwork, said that she was,
between 8.30 and 11.20, preparing paperwork in relation
to RF. When asked what paperwork, [she] replied that it
was to do with medication. [She] provided an explanation
about the absence of a transfer form. It was that she was
told that [Ms Baira] had already obtained a transfer form
and that she thought that [Ms Baira] would complete it.
She subsequently found that she had not. Lastly, [Ms
Tayeh] was asked about observations. [She]
acknowledged that she should have done observations
on RF and agreed that she hadn't done any. She said
that she was not aware whether [Ms Baira] had done any
and said:
“… because of the preparation of the paperwork for the
doctor, that's why I probably missed out—it was not
intentionally that we didn't do it.”
She agreed no body examination was done on RF and
she did not consider reviewing RF's condition.'
(d) The disciplinary proceedings
[24] On 26 February 2010, Ms Plumb wrote to Ms
Tayeh requiring her to attend a disciplinary hearing on 4
March 2010. It was to be conducted by Linda Garner,
the general manager of another BHL care home, and
was to be attended by Michelle Duffy as a note taker.
The letter informed Ms Tayeh that the purpose of the
hearing was to consider four allegations of breach of
company health and safety rules and policies and
procedures on the night shift of 1/2 December 2009,
namely (as numbered by me):
'1. In your role of Nurse in charge on this floor, you
allowed residents bedroom doors to be wedged open
with items of furniture.
2. You were observed to be wrapped in a blanket and
asleep whilst on duty.
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
3. You also allowed 2 care assistants on your floor to
sleep whilst on duty at the same time, resulting in no
member of staff on that floor observing the residents to
see to carry out duties in relation to the needs of the
residents or identify problems/ carry out routine checks.
4. Falsifying documentation in relation to a peg feed due
to start at 0600 hrs. You had recorded at 0300 hrs that
the feed had been commenced at 0600 hrs.'
The hearing was also to consider 'a serious issue of
neglect and failure in your professional duty of care
towards resident [RF] on the night shift of 10th/11th
February 2010, in that you failed to' (as also numbered
by me):
'5. Make any assessment of this resident and carry out
observations following a fall. The resident on assessment
by a doctor was found to have obvious shortening and a
diagnosis of a likely fracture and was sent to hospital.
131 BMLR 85 at 94
6. You failed to raise or provide necessary [BHL]
documentation for transfer to hospital.'
Ms Plumb's letter provided Ms Tayeh with the evidence
upon which the case against her relied. It advised her
that, if the allegations were found proved, 'it will be
considered Gross Misconduct under the Company's
Disciplinary and Dismissal Policy and your employment
may be summarily terminated.'
[25] The disciplinary hearing took place on 4 March
2010. It was chaired by Ms Garner. Although Ms
Plumb's letter had advised Ms Tayeh that she could be
accompanied by a work colleague or an accredited
trade union official of her choice, she attended alone.
Notes were taken—not, in the event, by Ms Duffy, but
by Serb Sidhu. They occupy just over five single-
spaced, typed pages, in question and answer form. The
ET, in para 9.34, focused on the outcome of the hearing
in relation to allegations 4, 5 and 6. As to allegation 4
(document falsification), Ms Tayeh admitted that what
she had done was a mistake; when asked whether she
admitted falsifying documents, she replied 'Not
intentionally'; when asked whether she had 'done this'
before, she replied 'No'; and when asked why she did it
that night, she replied 'Don't know'. As to allegation 5
(failure to make observations), she said that she thought
Ms Baira had done them; that she had asked Ms Baira
what her role was, but that Ms Baira had not answered;
she admitted that, if someone has a fall, observations
are made, but said that she did not do them because Ms
Baira said she had already done them; Ms Tayeh did
not, however, check that she had, but took her word for
it; as to allegation 6 (transfer form), she admitted she
had not done it. Overall, Ms Tayeh admitted that she
had not done various things but said that her failing was
not intentional.
[26] Ms Garner's decision was conveyed by her letter to
Ms Tayeh of 11 March 2010. She found all six
allegations proved. She said Ms Tayeh had failed to
provide any mitigating factors, but in reaching her
decision she had taken account of the fact that Ms
Tayeh had worked for BHL for 11 years. As for
allegations 1–3, she regarded these as 'serious
breaches of company policies and procedures that have
potentially put the health and safety of residents at risk'.
She issued a final written warning in respect of each.
[27] As for allegations 4, 5 and 6, she expressed her
findings in two paragraphs:
'With regards to falsification of the peg feed
documentation, you have admitted to completing this
documentation prior to the event. You stated that this was
a “mistake”. I am satisfied that there was falsification of
documentation at the point this was written as this had
not taken place. Additionally I was concerned at your
statement that you would have crossed this off if it did not
happen as this would be a clear breach of nursing
guidelines and acceptable practice.
With regards to the allegation of neglect of care towards
a resident on 10th/11th February and failing to complete
transfer documentation, you have admitted that you failed
to carry out observations or any nursing interventions.
You also admitted to relying of [sic] doctors
documentation rather than completing the required [BHL]
131 BMLR 85 at 95
documentation. I am satisfied that your failures amount to
serious neglect of duty on your part in respect of the care
provided to this resident.'
Ms Garner's decision in relation to those findings was as
follows:
'With regards to the final two bullet points above, the
falsification of the peg feed and neglect of duties in
relation to the resident on 10/11th February 2010, I
consider your actions to be Gross Misconduct and having
considered all alternatives I have decided to take the
severest sanction an employer can take against an
employee and to summarily dismiss you with effect from
11th March 2010 …'
Ms Garner advised Ms Tayeh of her right to appeal
against her decision and explained the procedure for
doing so.
[28] Ms Tayeh's appeal against Ms Garner's decision
was heard by Mr Beorby on 8 April 2010. He dismissed
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
the appeal by his letter of 12 April 2010.
C. The ET's reasoning and conclusions on
Ms Tayeh's unfair dismissal claim
[29] The ET correctly directed itself that, in relation to a
dismissal on grounds of misconduct, it must first be
satisfied that the employer had a genuine belief in the
employee's guilt, being a belief based on reasonable
grounds after the carrying out of a reasonable
investigation (British Home Stores Ltd v Burchell [1978]
IRLR 379, [1980] ICR 303n at 304, per Arnold J. If the
tribunal is so satisfied, the next question is as to the
reasonableness of the employer's response to the
misconduct so found. No question as to BHL having
satisfied the Burchell conditions arose either on the
appeal to the EAT or on the appeal to this court. The
battleground on both appeals was as to whether the ET
was or was not correct in finding that BHL's dismissal of
Ms Tayeh fell outside the band of reasonable responses
that might be adopted by a reasonable employer.
[30] The ET explained first its unanimous view that, as
for allegation 4 (the PEG feed allegation), the dismissal
did not fall within such band. It said:
'24. We are unanimous that dismissal for the inaccurate
peg feed documentation does not fall within the range of
reasonable responses. [Ms Tayeh] was not suspended.
She was not told about the matter. There was no
supervision put in place to ensure that such a matter was
not repeated, nor was she subjected to training. It is
wholly inconsistent, in our judgment, for [BHL] to say in
March 2010 that dismissal is justified for this matter
alone, when they failed to take any of the indicated action
[sic] at the time of the incident. We note that [Ms Tayeh]
accepted that it was a falsification of a record, but when
one looks at the other examples of falsification that
appear above and below the entry marked, “falsification
of the written records of the company” [in the handbook:
see my para [7] above], it is clear that this matter is in a
different category of seriousness from the types of gross
misconduct which appear above and below it in that list.
Furthermore, the seriousness of the making of a false
record is tempered by the fact that, in this particular case,
the situation could easily be checked between 3.00 am
and 6.00 am. The patient could be checked to see
whether there was any feed in operation
131 BMLR 85 at 96
through the peg system and the same could be done
after 6.00 am. Even if [Ms Tayeh] had forgotten, despite
her reminder to administer the feed at 6.00 am, the
patient would be visibly without the feed and the matter
could be rectified. This is quite different from making a
record in advance of administering a drug which has to
be taken by mouth. The feed would last several hours.'
[31] The ET turned to the dismissal based on allegation
6 (failure to complete the transfer form). It said:
'25. … We all agree that it would not be within the range
of reasonable responses to dismiss [Ms Tayeh] for the
failure to complete the transfer form alone. It seems to us
that [she] gave a good account of the reasons why the
transfer form was not completed on this occasion and,
furthermore, [she] did her best to provide documentation
to accompany the patient with the ambulance crew to the
Royal Free Hospital. It would not, in the tribunal's
judgment, be reasonable for [Ms Tayeh] to have been
dismissed for this matter alone.'
[32] Finally, the ET turned to allegation 5 (the failure to
make observations). The tribunal was divided as to
whether dismissal on this ground was within the band of
reasonable responses. Employment Judge Southam, in
the minority, considered that it was. The wing members,
in the majority, considered that it was not. The ET
explained their differing views as follows:
'26. … [Ms Tayeh] accepted that she was in charge of the
floor and responsible for the care of the resident, RF. She
clearly took responsibility for the patient, dealt with the
relatives and later the doctors who arrived to examine her
and she took responsibility for ensuring there was
paperwork that accompanied the resident on her transfer
to the Royal Free Hospital. Furthermore, [Ms Tayeh]
admitted to [BHL] that she had failed to make
observations in respect of RF. For those reasons the
employment judge says that dismissal lies within the
range of reasonable responses, particularly bearing in
mind the accountability provisions in the Nursing and
Midwifery Council Code of Conduct.
27. The majority is of a different view. The reasons for
their holding that dismissal does not lie within the range
of reasonable responses in respect of this matter are
these. First, Ms Garner, improperly in the majority view,
included in the rationale for dismissing [Ms Tayeh] an
alleged failure to carry out nursing interventions. This was
not part of the disciplinary charge. The charge had
referred to failure to make assessments of the resident
and failure to carry out observations. It appeared to the
majority that Ms Garner sought artificially to increase the
seriousness of the charge so as to justify dismissal by
including a reference to a failure to make nursing
interventions, which had not appeared as an issue in the
disciplinary action. The second matter was for Ms Garner
to include in her rationale for dismissal, reference to the
transfer documentation which, in the view of all the
members of the tribunal, would not have justified
dismissal. The third matter is that Ms Garner appears to
have concluded that [Ms Tayeh] had failed to
131 BMLR 85 at 97
provide any mitigation. On the reading by the majority of
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
all the documentation, that was not true. The fourth
matter is that Ms Garner failed to investigate the
mitigation that [Ms Tayeh] put forward. In this respect, the
majority particularly refers to the possibility of confusion
as to responsibilities as between Florence Baira and [Ms
Tayeh] on the night in question, and the other limitations
on the investigation described above at paragraph 17.
28. For these reasons, the majority holds the dismissal of
[Ms Tayeh] to have been unfair. They say that for the
failure to make observations, in the particular
circumstances, dismissal did not lie within the range of
reasonable responses.'
[33] In view of the majority's reference to para 17, I
should summarise what it had said. It made the points
that (i) neither the ET, nor Ms Tayeh during the
disciplinary proceedings, was told the standard of
observations required or their frequency; (ii) no
documentation was produced that demonstrated such
standard; (iii) there was conflicting evidence about who
on 10 February 2010 was responsible for the
administration of medication, the making of observations
and who did the medication round; and (iv) it was not
clear to the ET that BHL had sufficiently analysed the
possibility of a breakdown of communication between
Ms Baira and Ms Tayeh. Paragraph 17 also noted that
Ms Tayeh had admitted her failure in relation to the
making of observations.
[34] The result was, therefore, that the ET found Ms
Tayeh to have been unfairly dismissed.
D. The EAT's reasoning and conclusion on
the hearing of BHL's appeal
[35] The EAT correctly reminded itself that an appeal to
it against the decision of the ET lay only on points of
law. Its approach was therefore to consider whether the
ET had stated and applied the correct legal principles
and had, by the application of those principles, reached
findings and conclusions that were supportable,
meaning that they were not perverse.
[36] One argument that BHL advanced to the EAT was
that the ET had erred in law by looking separately,
rather than cumulatively, at the three grounds
(allegations 4, 5 and 6) relied upon by BHL as justifying
its dismissal decision. The submission was that the ET
ought to have considered whether, in the light of the
totality of the allegations which led to Ms Tayeh being
dismissed, BHL's decision to dismiss her was within the
band of reasonable responses. As to that, the EAT said
that Ms Garner had been re-called to give evidence to
the ET and had explained that she had taken the view
that each of allegations 4, 5 and 6 separately amounted
to gross misconduct. The EAT said, at para 38, that
whilst the ET had not said expressly whether it found
the charges levelled by BHL as constituting separate or
cumulative instances of gross misconduct, it was plain
that BHL's case had been that the charges were
separate instances of gross misconduct, with each
meriting dismissal. This was apparent from para 23 of
the ET's reasons, in which it recorded Ms Garner as
having contended that the PEG feed matter by itself
merited dismissal; and from para 24 (quoted in para [30]
above), in which the ET dealt first, and separately, with
whether the falsification of the PEG feed documentation
merited dismissal. The EAT
131 BMLR 85 at 98
said, in para 38, that it had no doubt, having read the
dismissal letter and listened to the explanation that the
parties had provided, that this was the approach Ms
Garner had adopted. There was no basis for a criticism
of the ET that it looked at the three charges separately.
[37] The EAT then turned its attention to how the ET
had dealt with each charge.
(a) The 'PEG feed' charge
[38] In the case of the PEG feed charge (allegation 4),
the EAT concluded that the ET had fallen into error.
Instead of starting with BHL's reasoning in relation to
this, and then applying the range of responses test, the
ET had simply substituted its own conclusion as to
whether dismissal for this charge fell within the range of
responses of the reasonable employer. The EAT said in
para 43 that it regarded this as clearest from the ET's
finding that the basis for the charge—'Falsification of the
written records of the Company'—was, as the ET had
said in para 24, 'in a different category of seriousness
from the types of gross misconduct which appear above
and below it in the list' (see again para [7] above for the
ET's quotations from the list). The EAT's view was that
there was no warrant for that conclusion in the list itself,
and the EAT regarded it as unjustified. The EAT
continued:
'44. It must be remembered that BHL runs Care Homes
for vulnerable and elderly people. It employs nursing
staff. Such an organisation is dependent on the keeping
of proper records as a check on the treatment which
patients receive. It is entitled to expect that professional
nursing staff will complete them accurately and that they
will indeed be a record of treatment actually given. To
make an entry deliberately in a fluid chart when no fluid is
given is indeed to make a false record (contrary to [Ms
Tayeh's] submission to us). [BHL] is entitled to take such
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
a matter seriously; the tribunal was not entitled to
substitute its own view that a false medical record was
less serious than a false time sheet or pay
documentation. A false time sheet or pay documentation
does not relate directly to the care of elderly or vulnerable
people.
45. We would add that there is what appears to be a
mistake of fact in paragraph 24 [of the ET's reasons]. The
issue was raised with [Ms Tayeh] on 4 December and
again on 30 December when her case was investigated.
46. For these reasons we do not think that paragraph 24
of the tribunal's reasons can stand.'
(b) The 'failure to provide a transfer form'
charge
[39] The ET had been unanimous that the misconduct
represented by the non-completion of the BHL transfer
form (allegation 6) did not merit summary dismissal, and
it had explained such conclusion in para 25. The EAT's
view, in para 47, was that the ET had made no error of
law in this respect and so there was no basis for
upsetting its conclusion on appeal.
(c) The 'failure to make observations'
charge
[40] The ET's decision that dismissal on the ground of
Ms Tayeh's failure to make observations of RF
(allegation 5) was not within the range of
131 BMLR 85 at 99
reasonable responses was a majority decision. The
EAT's judgment was that the majority's reasons were
flawed by three errors of law. First, the majority
considered that Ms Garner had, when making her
dismissal decision, improperly relied not merely upon
the failure by Ms Tayeh to 'carry out observations
following a fall' (allegation 5) but also upon her failure to
'carry out … any nursing interventions' (which had not
been alleged against her).
[41] The EAT noted that this conclusion apparently
rested exclusively on the wording of the dismissal letter:
there was no suggestion in the ET's reasons that any
such alleged impropriety had been put to Ms Garner
when she gave evidence. The EAT was of the view that
the ET majority had anyway attached a weight to the
phrase that it could not bear. The EAT said:
'52. … The thrust of the charge against [Ms Tayeh] is that
while she was in charge of the floor in question over a
period of nearly 3 hours a vulnerable and injured resident
was not the subject of any proper observation. This is not
a technical charge; it is not that nurses were looking after
resident RF in other ways but failing to record
observations. The charge is that RF was not being
observed—whether by making routine observations or in
any other way (for example noting her condition when
administering fluids or the like). To our mind the dismissal
letter was doing no more than emphasising that nothing
of any kind was being done to keep resident RF under
proper observation during those 3 hours. It was not
seeking to increase the charge against [Ms Tayeh]. In our
judgment the majority was not entitled to conclude that
there was any impropriety on the part of Ms Garner. It
was not a permissible conclusion to draw from the letter
in question.'
[42] The second reason given by the majority was that
Ms Garner had included in the same paragraph of her
decision letter (it is the penultimate paragraph quoted in
para [27] above) a reference to the absence of transfer
documentation, which the ET was unanimous would not
have justified dismissal. The EAT pointed out, however,
that the documentation charge was a separate one
(allegation 6), with which Ms Garner was bound to deal
separately. The fact that she regarded the
documentation charge as separately justifying dismissal
did not vitiate her decision on the 'failure to make
observations' charge.
[43] The majority's third and fourth reasons related to
mitigation. The EAT said of them:
'54. … It is indeed plain from the dismissal letter that Ms
Garner did not consider there to be any real mitigation—
except length of service, which she specifically
mentioned. The majority considered that there was
potential mitigation in the relationship between [Ms
Tayeh] and Ms Florence Baira; but (1) BHL did
investigate what each of them said and did on the
evening in question and (2) there can be no doubt that
[Ms Tayeh] was in charge of the floor from 20.30 for
nearly three hours when no observations were made
upon the patient. If the majority had kept in mind the
range of reasonable responses test (which applies to
investigation as much as to other aspects of the tribunal's
inquiry—see J Sainsbury plc v Hitt [2003] IRLR 23) we
think it would inevitably have reached the conclusion that
[BHL's] investigation and consideration of this issue was
within the range of reasonable responses.'
131 BMLR 85 at 100
[44] Having therefore allowed BHL's appeal, the EAT
considered whether it should remit the case for
rehearing before the ET; or whether it was in a position
to substitute its own decision for the ET's flawed
decision. The EAT directed itself that it should only take
the latter course if, when the law was correctly applied,
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
the answer was plain. It concluded that this was such a
case:
'56. … [BHL] was entitled to find that it was gross
misconduct to make an entry upon a fluid chart recording
the giving of a peg feed when no peg feed was given.
Such conduct amounted to the falsification of a record;
there was no good reason or even sensible explanation
for it; it is certainly not a good reason or sensible
explanation to make a false medical record as an aide
meìmoire. In our judgment applying s 98(4) [of the
Employment Rights Act 1996] it is plain that BHL was
entitled to dismiss for it.
57. Quite separately, in our judgment it is plain that [BHL]
was entitled to find that it was gross misconduct to make
no observations upon an elderly and vulnerable patient,
awaiting the arrival of a doctor after a fall, over a period of
nearly three hours.
58. It follows that the appeal will be allowed and a finding
substituted that the dismissal was fair.'
E. The appeal to this court
[45] Ms Tayeh, by Mr Clark, advanced two grounds of
appeal against the EAT's decision. First, that it was
exclusively the function of the ET to decide whether, in
the circumstances of the case, dismissal was or was not
within the band of reasonable responses that a
reasonable employer might adopt in relation to the
misconduct by Ms Tayeh that Ms Garner found proved.
The ET had given its reasons for deciding that neither in
the case of the 'PEG feed' charge nor in that of the
'failure to carry out observations' charge did dismissal
fall within such band. There was no justification for the
EAT to substitute its own different view on those issues
for the ET's views. Second, that if the ET did fall into
error in any material respect such that its decision as to
the unfairness of the dismissal could not stand, it was
not for the EAT to substitute its own substantive
decision: it should have remitted the case to the ET for
rehearing.
[46] Before considering the merits of those submissions,
I consider it convenient to set out the principles raised
by Ms Tayeh's unfair dismissal claim. The relevant
statutory provisions are in s 98(1), (2) and (4) of the
Employment Rights Act 1996, which provide guidance
as to the procedure for determining whether the
dismissal of an employee is fair or unfair. Section 98 is
familiar and there is no need to set it out in full. Section
98(1) imposes upon the employer the burden of
showing the reason or, if more than one, the principal
reason for the dismissal; and that it is either a reason
falling within subsection (2) or 'some other substantial
reason' of a kind such as to justify the dismissal of an
employee holding the position which the employee held.
Subsection (2) identifies five categories of reason, of
which the second, in s 98(2)(b), is one that 'relates to
the conduct of the employee …'; and that, of course,
was the reason invoked by BHL, its case being that it
dismissed Ms Tayeh because of her misconduct in three
separate respects,
131 BMLR 85 at 101
each meriting dismissal. If the employer negotiates itself
through s 98(1), as BHL did, it does not, however, follow
automatically that the dismissal was fair: it remains for
the ET to decide whether it was fair or unfair, and that
requires it to have regard to s 98(4), which provides:
'In any other case where the employer has fulfilled the
requirements of subsection (1), the determination of the
question whether the dismissal is fair or unfair (having
regard to the reason shown by the employer)—
(a) depends on whether in the circumstances (including
the size and administrative resources of the employer's
undertaking) the employer acted reasonably or
unreasonably in treating it as a sufficient reason for
dismissing the employee, and
(b) shall be determined in accordance with equity and
the substantial merits of the case.'
(The opening words 'In any other case' mean in a case
other than one governed by the, here irrelevant,
provisions of s 98(3A); and so s 98(4) was directly in
point.)
[47] The manner in which the ET should approach the
determination of the fairness or otherwise of a dismissal
on conduct grounds was re-stated by this court in
Graham v Secretary of State for Work and Pensions
(Jobcentre Plus) [2012] EWCA Civ 903, [2012] IRLR
759. Aikens LJ, in a judgment with which Rafferty and
Pill LJJ agreed (with Pill LJ adding a substantive
judgment of his own), said:
'[35] … once it is established that the employer's reason
for dismissing the employee was a “valid” reason within
the statute, the ET has to consider three aspects of the
employer's conduct. First, did the employer carry out an
investigation into the matter that was reasonable in the
circumstances of the case; secondly, did the employer
believe that the employee was guilty of the misconduct
complained of and, thirdly, did the employer have
reasonable grounds for that belief.
[36] If the answer to each of those questions is “yes”, the
ET must then decide on the reasonableness of the
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85

response by the employer. In performing the latter reasonable responses for this employer to have
exercise, the ET must consider, by the objective dismissed this employee”. It found that it was.
standards of the hypothetical reasonable employer,
rather than by reference to the ET's own subjective 44. That finding is not erroneous in law, unless it can be
views, whether the employer has acted within a “band or characterised by an appellate body as one which no
range of reasonable responses” to the particular reasonable tribunal could have reached. …
misconduct found of the particular employee. If the
employer has so acted, then the employer's decision to 47. Perversity point
dismiss will be reasonable. However, this is not the same
thing as saying that a decision of an employer to dismiss
48. It was made clear in Iceland Frozen Foods Ltd v
will only be regarded as unreasonable if it is shown to be
Jones [1983] ICR 17that the provisions of s 57(3) of the
perverse. The ET must not simply consider whether they
1978 Act (which were re enacted in s 98(4) of the 1996
think that the dismissal was fair and thereby substitute
Act) did not require “such a high degree of
their decision as to what was the right course to adopt for
unreasonableness to be shown that nothing short of a
that of the employer. The ET must determine whether the
perverse decision to dismiss can be held to be unfair
decision of the employer to dismiss the employee fell
within the section”. The tribunals were advised to follow
within the band of reasonable responses which “a
the formulation of the band of reasonable responses
reasonable employer might have adopted”. An ET must
approach instead.
focus its attention on the fairness of the conduct of the
employer at the time of the investigation and dismissal (or
49. If an employment tribunal in any particular case
any internal appeal process) and not on whether in fact
misinterprets or misapplies that approach, so as to
amount to a requirement of a perverse decision to
131 BMLR 85 at 102
dismiss, that would be an error of law with which an
the employee has suffered an injustice. An appeal from
appellate body could interfere.
the ET to the EAT lies only in respect of a question of law
arising from the ET's decision: see s.21(1) of the
Employment Tribunals Act 1996.' 50. The range of reasonable responses approach does
[48] The statements of principle in those paragraphs are not, however, become one of perversity nor is it rendered
“unhelpful” by the fact that there may be extremes and
derived from well-established authority, which is referred
that (as observed in Haddon v Van den Bergh Foods Ltd
to by Aikens LJ in footnotes to his judgment and their
[1999] IRLR 672) “Dismissal is the ultimate sanction.”
accompanying comments. The tripartite approach Further, that approach is not in practice required in every
referred to in [35] derives from British Home Stores v case. There will be cases in which there is no band or
Burchell [1978] IRLR 379, [1980] ICR 303n at 304, per range to consider. If, for example, an employee, without
Arnold J. The statements in [36] as to the need for the good cause, deliberately sets fire to his employer's
ET to assess the reasonableness of the employer's factory and it is burnt to the ground, dismissal is the only
response to the misconduct by reference to the 'band of
reasonable responses' derive from Iceland Frozen 131 BMLR 85 at 103
Foods Ltd v Jones [1982] IRLR 439–443, [1983] ICR reasonable response. If an employee is dismissed for
17–25 per Browne-Wilkinson J; and from this court's politely saying “Good morning” to his line manager, that
decision in Post Office v Foley; HSBC Bank plc would be an unreasonable response. But in between
those extreme cases there will be cases where there is
(formerly Midland Bank plc) v Madden [2001] 1 All ER
room for reasonable disagreement among reasonable
550, [2000] IRLR 827. Foley's case contains, at [2001] 1
employers as to whether dismissal for the particular
All ER 550, [2000] IRLR 827, the following passages in
misconduct is a reasonable or an unreasonable
Mummery LJ's judgment, with which Rix and Nourse response. In those cases it is helpful for the tribunal to
LJJ agreed: consider “the range of reasonable responses”.
'42. Range of reasonable responses approach
51. Substitution point
43. The employment tribunal then followed, as it was
bound by authority to do, the Iceland Frozen Foods
52. It was also made clear in Iceland Frozen Foods Ltd v
approach and held that, although it was of the view that
Jones [1983] ICR 17–25 that the members of the tribunal
the decision to dismiss was “harsh”, it was not entitled to
must not simply consider whether they personally think
substitute itself for the employer and impose its “decision
that the dismissal is fair and they must not substitute their
upon that of a reasoned on the spot management
decision as to what was the right course to adopt for that
decision”. Instead it asked, as required by authority,
of the employer. Their proper function is to determine
whether the dismissal was “within the range of
whether the decision to dismiss the employee fell within
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85

the band of reasonable responses “which a reasonable the guidance in Post Office v Foley binding upon this
employer might have adopted”. court, is to the effect that appeals to concepts of
perversity are out of place in the consideration of the
53. In one sense it is true that, if the application of that reasonableness or otherwise of the dismissal: the
approach leads the members of the tribunal to conclude approach that has to be applied is simply that of the
that the dismissal was unfair, they are in effect 'band of reasonable responses'.
substituting their judgment for that of the employer. But
that process must always be conducted by reference to
[51] In this case, BHL regarded each head of proven
the objective standards of the hypothetical reasonable
employer which are imported by the statutory references misconduct under heads 4, 5 and 6 as separately
to “reasonably or unreasonably” and not by reference to meriting dismissal. There is, however, no longer any
their own subjective views of what they would in fact have issue as to head 6: the ET held that dismissal for the
done as an employer in the same circumstances. In other misconduct under that head was outside the band of
words, although the members of the tribunal can responses, a conclusion upheld by the EAT. The
substitute their decision for that of the employer, that battleground before us is as to heads 4 and 5. In the
decision must not be reached by a process of substituting case of each, the ET held that dismissal did not fall
themselves for the employer and forming an opinion of within the band of reasonable responses, whereas, also
what they would have done had they been the employer, in the case of each, the EAT held that it did.
which they were not.'
[49] Those passages make clear that, in applying the
[52] Given that difference between the two tribunals
band of reasonable responses approach, it will not be a
below, there was some discussion before us during the
condition of an ET's decision that the employer's
argument as to what this court's role is in such a case.
decision fell outside such band that the ET must
In this context, it is to be noted first that, just as the ET
conclude that the employer's decision was perverse.
wing members will have experience from both sides of
The task of the ET, sitting as an industrial jury, is simply
industry, so likewise will the EAT wing members, so that
to assess the reasonableness of the decision to dismiss
each tribunal will bring to bear the like industrial
against the objective standards of the hypothetical
experience. It is perhaps an unusual feature of the EAT,
reasonable employer, measured by reference to the
to which appeals ordinarily lie only on questions of law,
band of reasonable responses. In Post Office v Foley;
that its appeals will normally be heard by panels of
HSBC Bank plc (formerly Midland Bank plc) v Madden
three, of which two members will usually have no
[2001] 1 All ER 550, [2000] IRLR 827, the tribunal found
experience as lawyers. Having noted that, there is no
that the dismissal decision was within such band; and
doubt that the so-called lay members of the EAT make
the court held that such finding could not regarded as
an invaluable contribution to its decision-making
erroneous in law, and so vulnerable to an appeal,
process, as I found from my own experience of sitting in
unless it could be characterised as one that no
the EAT.
reasonable tribunal could have reached—that is, that it
was perverse.
[53] In my judgment, the answer to the question referred
to at the beginning of the preceding paragraph is this.
[50] Whilst the guidance in Post Office v Foley excludes
The ET is the tribunal to which fell the responsibility of
any need for a tribunal to find that an employer's
finding the facts in the case and of applying the
decision to dismiss was perverse before it can conclude
applicable law to the facts so found. Amongst the
that dismissal was unreasonable, I admit to some
findings it had to make was whether or not the dismissal
difficulty in understanding the nature of that guidance. If
of Ms Tayeh for her misconduct under each of heads 4
the tribunal's application of the band of reasonable
and 5 fell within the 'band of reasonable responses'.
responses approach informs it that dismissal in the
That was either a finding of fact pure and simple, or else
particular case fell outside the band of reasonable
was a finding in the nature of a value judgment akin to
responses that might be adopted by the hypothetical
such a finding. Whichever it was, once the ET had made
reasonable employer, that would appear to be
its finding, that would normally mark the end of the
equivalent to a conclusion that dismissal was a decision
matter. That is because there is no appeal to the EAT
that, on the facts, no
against an ET's findings of fact. Appeals to the EAT
against an ET's judgment lie only on questions of law: s
131 BMLR 85 at 104
21(1) of the Employment Tribunals Act 1996. This
reasonable employer could have made. That would be
principle is applied by the EAT strictly. It will, for
akin to a finding of perversity. That said, I accept that
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
example, not be enough for a would-be appellant to the
EAT to assert that the ET's finding on a particular factual
issue was against the weight of the evidence. If there
was evidence justifying the ET's finding, that will usually
be fatal to the bringing of an appellate challenge and the
EAT will refuse to permit an appeal to proceed.
Generally speaking, the only bases on which appellate
challenges to an ET's findings of fact will be permitted
by the EAT will be if they are said to have been
supported by no evidence at all, or if they were findings
that no reasonable tribunal could have reached. In
either case, if such challenges are made good, they
would demonstrate an error of law. At least the latter
way of putting the case is dependent on an assertion of
perversity, although that requires nothing less than 'an
overwhelming case': see Yeboah v Crofton [2002]
EWCA Civ 794 at [93], [2002] IRLR 634, per Mummery
LJ.
131 BMLR 85 at 105
[54] So the decision of the ET in a case such as the
present is, and will be, normally the end of the road for
both parties—just as it should be—unless, however, it
can be shown to be arguably vitiated by an error of law.
Only then will an appeal to the EAT be permitted. In the
present case, an appeal was permitted because BHL
had what the EAT recognised was a properly arguable
point that the ET's judgment as to the dismissal falling
outside the band of reasonable responses was vitiated
by errors of law. If, for example, it was arguable that the
ET had simply substituted its own views for those of
BHL as to how Ms Tayeh's misconduct ought fairly to
have been dealt with, that would have been an error of
approach and so of law (see the final passage in
Mummery LJ's judgment in Post Office v Foley quoted
at para [48] above). Likewise if the ET had arrived at its
conclusions on the 'band of reasonable responses point'
by misdirecting itself as to the applicable law (for
example, as BHL maintained, by misinterpreting the
terms of Ms Tayeh's contract).
[55] In the event, the outcome of the appeal was that
the EAT accepted BHL's submissions, allowed the
appeal and substituted its own decision that Ms Tayeh
was fairly dismissed. The further appeal to this court is
against the order of the EAT, against whose orders
appeals also lie only on questions of law. This court is
therefore of course concerned to assess the correctness
or otherwise of the decision of the EAT to reverse the
decision of the ET; but in doing so its primary focus
must, as is usual in appeals against orders of the EAT,
necessarily be on the correctness or otherwise of the
ET's decision. To that I now turn.
[56] Mr Clark, for Ms Tayeh, addressed us at some
length although the substance of his points fell within
narrow limits. His primary point was that the EAT had
fallen into the error of substituting its own views as to
whether the dismissal for allegations 4 and 5 fell within
the band of reasonable responses, whereas the ET's
approach to those issues was not open to rational
challenge. The ET was the industrial jury charged with
the fact-making inquiry, it had discharged that function
impeccably and the EAT had no business to overrule its
findings and assume the task itself. He relied on what
Mummery LJ had said in Fuller v London Borough of
Brent [2011] EWCA Civ 267 at [12], [2011] IRLR 414,
[2011] ICR 806:
'A summary of the allocation of powers and
responsibilities in unfair dismissal disputes bears
repetition: it is for the employer to take the decision
whether or not to dismiss an employee; for the tribunal to
find the facts and decide whether, on an objective basis,
the dismissal was fair or unfair; and for the Employment
Appeal Tribunal (and the ordinary courts hearing
employment appeals) to decide whether a question of law
arises from the proceedings in the tribunal. As appellate
tribunals and courts are confined to questions of law they
must not, in the absence of error of law (including
perversity), take over the tribunal's role as an “industrial
jury” with a fund of relevant and diverse specialist
expertise.'
[57] As regards the dismissal on the PEG feed ground
(allegation 4), Mr Clark said that there was no warrant
for the EAT's view that the ET had misdirected itself in
its para 24. The ET's point that 'this matter is in a
different category of seriousness from the types of gross
misconduct which appear above and below it in that list'
involved no error of law. He said that
131 BMLR 85 at 106
what the ET was there doing was to focus on the gravity
of the misconduct by reference to the particular facts of
the case, which was a legitimate approach. The EAT
had simply, and improperly, substituted its own findings
for the ET's.
[58] As regards the 'failure to make observations' issue
(allegation 5), Mr Clark's submission was to like effect.
The ET's majority decision, as explained in its para 27,
set out the majority's findings of fact in relation to each
matter it relied upon. The majority had found, as facts,
that Ms Garner had artificially 'beefed up' the case
against Ms Tayeh by introducing a finding based on a
failure 'to carry out nursing interventions', when that had
been no part of the original allegation against Ms Tayeh;
that Ms Garner had allowed her decision as to the
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
failure to provide transfer documentation (allegation 6,
which did not justify dismissal) to contribute to her
decision to dismiss on the grounds of allegation 5; that
she 'appears to have concluded' that Ms Tayeh had not
provided any mitigation; and that she had failed to
investigate the mitigation that Ms Tayeh had in fact put
forward. The EAT, it was submitted, again had no
business to interfere with any of the ET's factual findings
in these respects.
[59] Taking first the 'PEG feed' issue, I would not accept
Mr Clark's defence of the ET's approach to the
assessment of the relative seriousness, as compared
with that of its immediate neighbours, of item 16 in the
list of offences in the BHL handbook. The handbook
explains to employees that BHL 'will regard the following
list of offences as Gross Misconduct' and that 'Gross
Misconduct may lead to Summary Dismissal'. The
sense of the ET's view that item 16 was 'in a different
category of seriousness from' items 1, 5, 15 and 17 was
that in some unexplained way the falsification of
company records was inherently a less serious offence
than, for example, the falsification of timesheets or pay
documents. In my judgment, that view was an error of
law. No doubt, in any particular case, the commission by
an employee of an offence under head 16 could, on its
particular facts, be regarded as either more or less
serious than, on its particular facts, an offence by the
same employee under, say, heads 15 or 17. In principle,
however, the falsification of BHL's written records is, for
obvious reasons, a serious matter capable of meriting
dismissal. It was so regarded by Ms Garner; and for the
ET to review her dismissal decision by its own mistaken
assessment that item 16 identified an offence of a less
serious character than others in the list and so (by
inference) being an offence that in principle merited
more lenient treatment was, in my judgment, an error of
approach. I regard the EAT's criticism of that approach
in paras 43 and 44 of its own judgment as justified; in
particular, I regard its explanation in para 44 of the
obvious importance of there being reliable records of the
treatment and medication actually given as manifestly
sound.
[60] As is implicit in that, I would not accept Mr Clark's
submission that all that the ET was doing in the relevant
sentence of para 24 was to focus on the seriousness of
the particular facts of Ms Tayeh's case. The ET was not
doing that. It was making a general, and mistaken, point
of principle about the level of seriousness of item 16. It
was in the remainder of para 24, starting with its
'Furthermore', that it turned to the seriousness of the
falsification of the record on the facts. With respect, I
find its reasoning in that part of the paragraph difficult to
follow. The ET's point seems to have been that the
131 BMLR 85 at 107
relevant falsification was of no real materiality because
at any time patient DF could be checked to see whether
she was, or was not, being given the feed. That is true
but I do not understand its supposed significance. The
reason why BHL's members of staff are required to
make a written record of what medication or treatment
they have provided to patients, and when, is so that
there is a permanent, reliable record of such
information; and such records will be worthless unless
they are completed accurately, are known to be
completed accurately and mean what they say. Had
there, for example, been a need of a subsequent inquiry
as to what treatment had been given to patient DF on 2
December 2012, and when it had been given, it would
have been of paramount importance for BHL to be able
to answer the inquiry by reference to reliable staff
records. BHL operates care homes for elderly,
vulnerable people; and it does so in a society in which it
can expect on occasions to have to answer for the care
it has provided to them. It is obvious that the scrupulous
maintenance of accurate and reliable records of such
care is of the greatest importance. It is plain that Ms
Garner regarded Ms Tayeh's infraction as serious, as
she was entitled to, whereas the ET was here
substituting its own mistaken view that, in general terms
and on the particular facts, it was not really very serious
at all.
[61] There are, Mr Tatton Brown submitted, other
unsatisfactory features about the ET's reasoning in its
para 24. Before dealing with the points just discussed,
the ET had made four points as to why dismissal was
not a reasonable response to the offence: (i) Ms Tayeh
was not promptly suspended; (ii) she was not told of the
offence; (iii) she was not subjected to supervision with a
view to ensuring its non-repetition; (iv) nor was she
given training to achieve the like result. As for point (ii),
it is true she was not told about it on the morning of 2
December 2009. But she was told about it at each
subsequent interview, of which the first was on 4
December 2009. Point (ii) therefore appears to me be of
no weight and I shall say no more about it.
[62] The collective essence of the other three points
was that, although Ms Tayeh's offence had been
discovered in early December 2009, she was not
suspended immediately but was allowed to continue
working, without supervision or retraining, until she was
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85
suspended on 16 February 2010; and that an employer
which takes a line such as that is acting inconsistently if
it then summarily dismisses her for the offence.
[63] We had no argument on supervision and training,
but we were referred to statements in the authorities as
to the significance, in unfair dismissal claims following a
dismissal on conduct grounds, of whether an employer
does, or does not, promptly suspend an employee. They
include guidance that prompt suspension will not
necessarily be the appropriate industrial response to an
offence ultimately held to merit dismissal. In East
Berkshire Health Authority v Matadeen [1992] IRLR 336,
[1992] ICR 723, Wood J, giving the judgment of the
EAT, said that 'It would be extremely unwise, save in
obvious cases, to draw any inference or conclusion from
the suspension or a lack of suspension.' In Crawford v
Suffolk Mental Health Partnership NHS Trust [2012]
EWCA Civ 138, 125 BMLR 23, [2012] IRLR 402, Elias
LJ, in a judgment with which Kitchin and Laws LJJ
agreed, said, at [71], that 'It [suspension] should not be
a knee-jerk reaction, and it will be a breach of the duty
of trust and confidence towards the employee if it is.'
More recently, in Graham v Secretary of State for Work
and Pensions
131 BMLR 85 at 108
(Jobcentre Plus) [2012] IRLR 759 (referred to in para
[47] above), both Aikens LJ (at [62]) and Pill LJ (at [78])
regarded it as material to the issue as to the fairness of
the dismissal decision that the ET had taken account of
the fact that the employee had not been promptly
suspended.
[64] Whether or not an employee has, or has not, been
suspended may, therefore, on the facts of a particular
case, be a material consideration. I do not, however,
regard it as constructive to focus in the present case
more specifically on the ET's reliance upon the
suspension, supervision and training points. The
collective implication of all three was that, in the mind of
the ET, BHL did not in fact regard Ms Tayeh's offence
as very serious. The thrust of the remainder of para 24
was that nor was it very serious, either in principle or on
the facts. For reasons given, I consider that BHL was
entitled, as it did, to take the view that it was serious and
that the ET's dilution of its seriousness was an error of
law. In my judgment, the points that the ET made in the
opening part of para 24 do not serve either to repair, or
to counter, its error in the latter part of that paragraph as
to the seriousness of the offence with which Ms Tayeh
had been charged. The overall error of the ET's
reasoning in para 24 was to misstate the seriousness of
that offence and thus to judge the employer's decision to
dismiss her for such offence by reference to the wrong
standard.
[65] The arrival at this conclusion is not the end of the
case as regards the PEG feed allegation. It means, as I
would hold, that the EAT was correct to hold that the ET
erred in law in its approach to the assessment of the
fairness of BHL's decision to dismiss Ms Tayeh for her
falsification of its records. The ET's error was to
substitute its own subjective view that such falsification
was not as serious as other offences listed in the
handbook list in place of BHL's apparently different view
as to the seriousness of the offence, being one that
merited dismissal. There remains, however, the
question whether the EAT was right, having arrived at
that conclusion, simply to proceed, as it did, to
substitute its own decision that the dismissal was within
the band of reasonable responses; or whether it should
have remitted that question for a rehearing by the ET or
a differently constituted ET. I shall return to this after I
have dealt with the next issue, that relating to allegation
5, the 'failure to make observations' charge.
[66] As to that, I consider, with respect, that here too the
majority of the ET fell into legal error. The majority's
reasons were in para 27 of the ET's judgment. As to the
'failure to carry out nursing interventions' point, I agree
with the analysis of the EAT in its para 52, to which I
cannot usefully add. I agree also with the EAT's point in
response to the majority's reliance on the inclusion in
the relevant paragraph of the decision letter of Ms
Garner's reference to dismissal on the transfer
documentation point. Ms Garner was not using the latter
point to support her conclusion that Ms Tayeh should be
dismissed on the 'failure to make observations' ground.
All that she was there doing was to deal, as she had to,
with the 'failure to provide transfer documentation'
ground that was the subject of a separate charge.
[67] The majority invoked finally Ms Garner's failure to
take account of Ms Tayeh's claimed mitigation, in
particular the 'possibility of confusion as to
responsibilities between Florence Baira and [Ms Tayeh]
on the night in question, and the other limitations on the
investigation described above at paragraph 17.' The
facts relevant to this are in paras 9.26 and 9.27 of the
131 BMLR 85 at 109
ET's reasons. They record that, when asked by Ms
Plumb whether she had checked on RF or spoken to the
family, Ms Tayeh gave an answer that implied that she
 Tayeh v Barchester Healthcare Ltd 131 BMLR 85

had not. She then explained to Ms Plumb that she had

not taken any observations after the fall or examined
RF; and although she said she would normally have
done so, she had been very busy. She further told Ms
Plumb that 'she had thought [Ms Baira] … was available
and had seen RF …' The ET did not find on what basis
Ms Tayeh had formed such view. It made no finding of
any communication between Ms Tayeh and Ms Baira
that might have entitled the former to believe that the
latter was making, or had made, the observations.
Paragraph 9.27 recorded Ms Plumb's interview with Ms
Baira, which showed that Ms Baira did not know if Ms
Tayeh had done the observations and did not check
with her. Ms Baira said nothing to suggest that Ms
Tayeh, who was in charge of the second floor, had
understood, or might have understood, that Ms Baira
was doing the observations. Paragraph 17 made the
point that BHL did not investigate 'the precise division of
responsibility on the night in question' between Ms
Tayeh and Ms Baira, but also noted Ms Tayeh's
'admissions of failure in relation to the making of
observations'.
[70] I do not accept that submission. It may be said to
be supported by a purist approach to the division of
functions between the ET and the EAT. In this case, it
appears to me, however, to represent an appeal to
theory rather than to sensible practicality. The ET has
found all the primary facts. Its error was that, having
found them, it misdirected itself as to its secondary
findings as to whether dismissal on each of charges 4
and 5 fell within the band of reasonable responses. In
my judgment, the EAT was right to take the sensible
view it did that, once the ET's errors are removed from
consideration, the case is a straightforward one raising
a question to which there was only one answer, namely
that BHL was entitled to regard each of charges 4 and 5
as
131 BMLR 85 at 110
amounting to gross misconduct meriting dismissal and
that dismissal was within the band of reasonable
responses that might be adopted by a reasonable
employer.

[68] Given these findings by the ET, Ms Garner was, I [71] I would dismiss Ms Tayeh's appeal.
consider, entitled to take the view that BHL's
investigation disclosed that no genuine mitigation in
HUGHES LJ.
relation to the 'failure to make observations' charge had
been shown by Ms Tayeh. In my judgment, the EAT
[72] I agree.
was justified in concluding that the majority of the ET
had misdirected itself in concluding otherwise. The
majority's error was that it was substituting its own view PILL LJ.
as to the fairness of Ms Tayeh's dismissal on ground 5
for a view which in my judgment BHL was entitled to [73] I also agree.
hold.
Appeal dismissed.
[69] I conclude, therefore, that the EAT was right to
conclude that the decision of the ET as to the unfairness
of the dismissal could not stand. The ET's error was to End of Document
substitute its own views as to the seriousness of the
charges for those of BHL, which BHL was entitled to
hold. The remaining issue is whether, having arrived at
that conclusion, the only course properly open to the
EAT was to remit Ms Tayeh's claim for a rehearing by
the ET—or a differently constituted ET—as to whether,
on the facts of the case, the dismissal of Ms Tayeh on
the grounds of charges 4 and 5 was, or was not, within
the band of reasonable responses that might be
adopted by a reasonable employer. Mr Clark's
submission was that this was the only course the EAT
could properly adopt. That is because the question is
one of fact and it is the ET, not the EAT, that is the fact-
finding tribunal.