The claimant was dismissed from her job as a nurse in a care home by Barchester Healthcare Limited (“BHL”) following two incidents. The first was a spot check on the home where various other shortcomings were found, where the claimant was found to have been asleep on her duty, as were the workers she was supervising, and where she was found to have falsified records of a patient in relation to the time of a drip feed.

The second incident occurred after the fall of a patient, where it was found that the claimant failed to carry out observations on the patient and failed to provide documentation for her subsequent transfer to hospital. After a disciplinary hearing, BHL dismissed the claimant summarily for gross misconduct in relation to the falsification of the record and the neglect of the patient after the fall.

The ET found that the claimant had been unfairly dismissed, ruling that BHL’s response fell outside the band of reasonable responses that night be adopted by a reasonable employer. The EAT found that the ET had erred in law in its decision. It considered that when the law was correctly applied it was clear that the BHL was entitled to find that it the claimant’s actions amounted to gross misconduct. The EAT then substituted its own decision for that of the ET’s that the dismissal was fair instead of remitting the case for rehearing. The claimant appealed.

The Court of Appeal reviewed the authority on the meaning of reasonable response. It reiterated the fact that the task of an ET is simply to assess the reasonableness of the decision to dismiss against the objective standards of the hypothetical reasonable employer measured by reference to a band of reasonable responses and that subsequent appeal to the EAT lies only on an error of law.

It considered, however, that the ET had erred in law, having substituted its own mistaken assessment of the seriousness of the nurse's conduct for that of BHL’s; BHL having taken a view which it was entitled to hold. Having found this error in law the EAT was not bound to remit the matter for a fresh decision. The tribunal had found all the primary facts but had misdirected itself in relation to its secondary finding as to whether the dismissal fell within the band of reasonable responses. In those circumstances the EAT had been right to take the view that once the errors were removed from consideration, there was only one conclusion, namely that B had been entitled to regard T's actions as amounting to gross misconduct meriting dismissal, and that dismissal was within the band of reasonable responses open to it. http://bit.ly/XYMg3D