When appealing against a tribunal decision, appellants have to be able to show either that there has been an error of law or that the tribunal’s factual findings were unreasonable. In Harris v East Lancashire Hospitals NHS Trust, the EAT held that Ms Harris could not show that the tribunal had reached a decision which no reasonable tribunal would have reached.


Basic facts

Ms Harris was an experienced nurse with an unblemished work record who had worked for the trust from early 2005. In February 2017, she administered a unit of blood to a patient who was being transferred in an ambulance, but which had not been prescribed by a doctor. She did not undertake any of the mandatory pre-administration checks and failed to complete the required documentation.

Some weeks later, the trust started an investigation into the incident as an accident. Concerns were then raised by the Acute Care Team Leader, Ms Dean, that Ms Harris did not seem to appreciate the full seriousness of the incident. In particular, she was concerned that Ms Harris seemed to think that the issue at the heart of the matter was her failure to “complete a form” rather than a serious breach of trust policies. As a result, the trust started disciplinary proceedings alongside the accident investigation.

Ms Harris then resigned and lodged a claim for constructive dismissal, arguing that the trust should have waited until the informal processes were complete before moving to the disciplinary procedure and their failure to do so had breached the implied term of mutual trust and confidence.


Tribunal decision

The employment judge concluded that there was nothing that prohibited the two processes from taking place at the same time. Ms Dean was entitled to decide that Ms Harris had not reflected adequately and did not fully appreciate the seriousness of the matter.

According to the tribunal, “[t]here may be situations in which the commencement of a disciplinary investigation - as opposed to disciplinary charges or a sanction - can amount to a breach of the implied term but this was not one of those cases”. As such, “there was reasonable and proper cause” for the trust to instigate the disciplinary process and the implied term of mutual trust and confidence had not, therefore, been breached.

Even if the decision was unreasonable, the judge held that it would not have been serious enough to destroy or seriously damage trust and confidence as it did not indicate an intention to abandon the contract of employment.

Ms Harris appealed on a number of grounds. In particular, she argued that the trust should have waited for other processes, such as training and reflection, to be completed before it decided to subject her to disciplinary proceedings.


EAT decision

Dismissing the appeal, the EAT held that the tribunal had not made an error of law.
In order to overturn any of the factual decisions it had made, Ms Harris would have had to have shown that it had reached a decision “which no reasonable tribunal, on a proper appreciation of the evidence and the law, would have reached”. As the judge had been entitled to come to the factual conclusions that he had, there was no basis on which to conclude that the decision to dismiss her claim was unreasonable.

“To find otherwise would go against the statutory provisions and authorities that limit the EAT’s role to considering appeals asserting errors of law and do not permit the EAT to redetermine issues of fact”.