BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Industrial Tribunals Northern Ireland Decisions |
||
|
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Thompson v Western Health & Social Servic... [2009] NIIT 1073_08IT (30 September 2009) URL: http://www.bailii.org/nie/cases/NIIT/2009/1073_08IT.html Cite as: [2009] NIIT 1073_8IT, [2009] NIIT 1073_08IT |
||
[New search] [Printable RTF version] [Help]
THE INDUSTRIAL TRIBUNALS
CASE REF: 1073/08
CLAIMANT: Siobhan Thompson
RESPONDENT: Western Health & Social Services Trust
DECISION
The unanimous decision of the tribunal is that the claimant’s claim for unfair dismissal is dismissed.
Constitution of Tribunal:
Chairman: Mrs Ó Murray
Panel Members: Mr J Patterson
Ms N Wright
Appearances:
The claimant appeared in person and was represented by her husband Mr Thompson.
The respondent was represented by Mr E McArdle, Barrister-at-Law, instructed by the Directorate of Legal Services.
THE CLAIM
1. The claimant’s claim was that she had been unfairly dismissed. As dismissal was admitted by the respondent the issues for the tribunal were:-
(a) What was the reason for the dismissal?
(b) Did it fall within one of the fair reasons outlined in the legislation?
(c) Was that dismissal fair in all the circumstances?
(d) Did the respondent comply with the statutory disciplinary and dismissal procedures?
SOURCES OF EVIDENCE
2. The tribunal heard evidence for the respondent, from the respondent’s investigating team Mrs Houlahan and Mrs McElhinney, the disciplinary panel which comprised Mr McGarvey and Miss Doherty and the appeal panel which comprised Mrs McConnell and Mr Corey-Finn. For the claimant’s side the tribunal heard evidence from the claimant. The tribunal also considered the documentation produced at the outset of the hearing and during the hearing and considered the written submissions submitted by both representatives.
FINDINGS OF FACT
3. The tribunal found the following facts relevant to the issues before it.
3.1 The claimant was a staff nurse and had been a qualified nurse for approximately 21 years specialising in care of the elderly and patients suffering from dementia. She was employed by the respondent in December 2003 and at the time relevant to these proceedings was the senior staff-nurse in charge of the nightshift at Slievemore Nursing Home until she was summarily dismissed for gross misconduct on 3 May 2008.
3.2 Slievemore Nursing Unit was a self-contained unit which was the equivalent of a hospital ward. It was an 18-bed unit providing specialist care for elderly men and women with “challenging behaviour”. Most, if not all of the patients suffered from dementia with specific behavioural problems. These problems meant that the patients would frequently display unpredictable and aggressive behaviour and could strike at each other or at their carers meaning that they were deemed to be a risk to themselves or a risk to others. Indeed the claimant had been assaulted by a patient in November 2007 necessitating her taking a period of sick leave and annual leave to recover. There is no doubt that this was a very vulnerable group of elderly people most of whom had difficulties with communication and understanding and there could be a very difficult environment for both patients and staff.
3.3 It was agreed between the parties that an incident took place involving Patient Z on the nightshift on Thursday 31 January to Friday 1 February 2008 when the claimant dragged Z along the floor of the corridor to his bedroom. What was in dispute was the detail of the incident and whether it amounted to ill-treatment of a patient. The claimant’s case was that she had to move the patient quickly, that the way that she moved him did not amount to ill-treatment and she denied using inappropriate language to the patient. The incident was witnessed by Staff Nurse McC, who was more junior to the claimant, and by Nursing Assistant M.
3.4 Another incident involving Patient X was alleged to have occurred on the nightshift on Friday 1 February to Saturday 2 February 2008. The claimant accepted that she moved the patient forcibly from the bathroom on that date but denied the details given by those making the allegation and denied that it could amount to ill-treatment of the patient.
3.5 No medical examination took place following the incidents to determine if either patient had physical signs of ill-treatment. These two incidents were the incidents which ultimately led to the claimant’s dismissal as confirmed by the appeal panel. There were three other allegations of mistreatment. None of these was found to be proven against the claimant by either the disciplinary or appeal panels.
3.6 On Monday 4 February 2008 M spoke to a more senior nurse and made allegations about incidents which occurred on the shifts beginning on 31 January and 1 February 2008. The senior nurse rang Mrs Houlahan, the Head of Secondary Care Services, advising her of the allegation that the claimant had abused three patients and Mrs Houlahan contacted Employee Relations for advice. Essentially two procedures were triggered at this stage. The first procedure was the disciplinary procedure. The second procedure related to that involving alleged abuse of vulnerable adults under the Safeguarding Vulnerable Adults Policy. This latter procedure required the involvement of outside agencies such as the PSNI.
3.7 On 6 February 2008 Mrs Houlahan (following advice received from the Employee Relations on the disciplinary procedure) met with McC and M at separate meetings to gather some preliminary information as to the complaints that were being made. McC also provided a written statement giving more details on that date.
3.8 On 8 February 2008 a “Strategy Meeting” took place between several managers and the PSNI in relation to the way forward following complaints under the Safeguarding Vulnerable Adults Policy. No one involved with the investigation, the disciplinary procedure nor the appeal was involved at the strategy meeting and the strategy meeting document was not part of any papers before the disciplinary hearing nor the appeal hearing. There was a list of “actions” in the strategy meeting record not all of which were followed and the PSNI investigation proceeded separately from the respondent’s internal disciplinary investigation.
3.9 On 8 February the claimant rang a senior nurse to ask to come off night duty and that was when she was told that allegations had been made against her. On the same day a letter was sent to the claimant advising her that an investigatory meeting would take place. A letter was sent (without any date inserted as to the date of alleged incident) and then another letter was sent to the claimant advising that an allegation of mistreatment of patients had been made and named only one date namely 1 February 2008. At the investigatory meeting on the 18 February 2008 (see paragraph 3.13 below) the claimant had five allegations of mistreatment put to her which were alleged to have occurred on 27 January, 31 January and 1 February 2008 and she was able to provide an answer for each of them.
3.10 On 13 February 2008 Mrs Houlahan and Mrs McElhinney (“the investigation team”) visited Slievemore Nursing Unit with Sister Kelly to look at where the allegations were alleged to have taken place. They asked if Z’s shirt (which was alleged to have been damaged in the incident) could be examined and were told that the family had taken it. The shirt was never examined by the investigation team.
3.11 On the same day, 13 February 2008, the investigation team had an investigatory meeting with M at which M provided a supplementary statement giving more detail. The investigation team met McC separately on the same day.
3.12 The claimant wrote to Mrs Houlahan to ask for full details of the complaints against her on 14 February 2008. She received no response to this.
3.13 On 18 February 2008 the investigatory meeting took place between the investigation team and the claimant. The letter arranging the meeting had been sent to the claimant ten days beforehand. The claimant made no allegation of collusion or malicious motive on the part of the two members of staff making the complaints against her. The claimant was accompanied by her husband as he was a colleague working in a different area for the Trust. In relation to the two incidents which ultimately led to her dismissal, the claimant admitted that she forcibly removed Patient X from the bathroom and gave her version of events on that night. She also admitted sliding Patient Z up the floor to his bedroom and admitted that it would have been more appropriate for her to have used a sliding sheet to get him back to his room. The only reference she made to the two complainants was that M seemed to try to “manipulate” staff and made disparaging comments about staff and McC and she had had a “personality clash” in the past although since then things had “not been so bad”. She thought McC did not have a good attitude to staff and that she was reticent to deal with a patient who might become aggressive or violent. The claimant made no specific complaint against either McC or M. The claimant was suspended on that date and a letter of suspension of 18 February 2008 was sent to her.
3.14 On 19 February 2008 the investigatory team met with staff and Sister Kelly. Sister Kelly had responsibility for these three members of staff although her contact with them was by phone as she did not work on the nightshift alongside them. The investigatory team met with her to discuss relationships between the members of the team.
3.15 On 25 February 2008 the claimant wrote to Mrs Houlahan asking for access to some documents and asked for details of the precise nature of the allegations. The documentation was provided.
3.16 On 29 February 2008 Mrs Houlahan wrote to the claimant advising that the matter was to progress to a disciplinary hearing.
3.17 On 12 March 2008 Mr Thompson sent a letter to Mrs Houlahan making a complaint that he had suffered harassment by M due to the fact that she had made a complaint against his wife. Mr Thompson said that he would withdraw his complaint of harassment if M withdrew her complaints and apologised for making the allegations against his wife. On 18 March 2008 Mrs Houlahan responded to Mr Thompson’s complaint of harassment by advising that the complaints against his wife were to proceed to disciplinary hearing.
3.18 On 28 March 2008 the claimant wrote to Mrs Houlahan and told her that the PSNI had said at their interview of the claimant that an allegation had been made to them by M about a patient 3. This allegation had not been put to the claimant during the investigatory hearing.
3.19 On 11 April 2008 Mrs Houlahan responded to the claimant and asked her for a written response to the Patient 3 allegation or alternatively to meet the investigation team to give her response. The claimant was advised that if she did neither of these things the disciplinary hearing arranged for 24 April 2008 would proceed on the four allegations which had previously been outlined to her i.e. not including the patient 3 incident. The claimant provided a written response to the Patient 3 allegation on 14 April 2008 so it was decided that the Patient 3 allegation would be included in the charges against the claimant.
3.20 On 14 April 2008 the investigatory team met with McC to clarify some matters and following that meeting McC volunteered a further written statement with clarification of matters.
3.21 On 15 April 2008 the claimant sent a letter to Mrs Houlahan enclosing a PSNI transcript. This was a typed transcript prepared by the claimant of PSNI tapes of their interview with her. The claimant was not allowed to use this transcript at the disciplinary hearing but she was allowed to use the transcript at the appeal hearing.
3.22 On 16 April 2008 Mrs Houlahan wrote to the claimant notifying her of the date of the disciplinary hearing on 24 April 2008 and she outlined the six charges which would be dealt with at the hearing. These charges included the four allegations put to the claimant during the investigatory meeting, the Patient 3 allegation (about which there had been correspondence) and a charge relating to breaches of the Nursing and Midwifery Council (NMC) Code of Conduct. This is the professional Code of Conduct which applies to all nurses.
3.23 The charges outlined in the charge letter included the following charges which we quote in detail as they were ultimately held to be proven against claimant:-
“You failed in your responsibility as a Band 5 nurse to provide a safe caring high standard of nursing care by failing to treat patients with dignity and respect on:-
(1) Your nightshift that commenced on 31 January 2008 in that you inappropriately moved Patient Z from the corridor by pulling him along the floor to his bedroom.
…
(4) Your nightshift that commenced on 1 February 2008 in that you used inappropriate language towards Patient X and mishandled her by moving her out of the bathroom along the floor towards the blue room.
…
(6) Your aforementioned actions are considered to be mistreatment and abuse of vulnerable adults in your care and are a breach of the NMC Code of Conduct in relation to Sections 1.2, 1.4, 2.1, 7.1 and 8.1. This brings into question your honesty, integrity and reliability.”
3.24 On 16 April 2008 the claimant having received a copy of the file of documentation from the disciplinary hearing asked for further documents and asked if she could have permission to contact colleagues to obtain character references. On 17 April 2008 Mrs Houlahan responded by enclosing documentation and gave permission to the claimant to contact members of staff for character references.
3.25 On 17 April 2008 McC wrote a letter of concern to Mrs Houlahan stating that she found the process extremely stressful and extremely intimidating and asking about details of this process and whether she would be able to give evidence without the claimant and the claimant’s husband being present.
3.26 After receiving that letter and before the hearing date Mrs Houlahan met with McC and M to show them the room where the disciplinary hearing would take place and to take them through the process that would take place. The purpose of this was to allay their concerns about giving evidence.
3.27 On Thursday 24 April 2008 the first day of the disciplinary hearing took place. Mrs Houlahan made a presentation and called the two complainants to give evidence about each of the alleged incidents. Mrs Houlahan made an opening statement, questioned the witnesses and the panel questioned the witnesses. The claimant’s opening statement was read out by her husband, she was questioned by the panel and by Mrs Houlahan and a closing statement was read by the claimant’s husband. Mrs Houlahan made a closing statement and clearly put forward her view that there was sufficient evidence to find the allegations proven and that these amounted to ill-treatment of patients. The second day of the disciplinary hearing took place on Monday 28 April 2008.
3.28 At the disciplinary hearing Mrs Thompson admitted that she had moved Patient Z inappropriately and that she expected a “fair sanction” for what she had done.
3.29 At the disciplinary hearing Mrs Houlahan produced McC’s handwritten supplementary statement on the morning of the hearing. She also produced a document that she had prepared with short “pen pictures” of each of the patients. The Trust policy on disciplinary procedures stipulates that documentation “should” be shared five days before any hearing.
3.30 The disciplinary panel considered any inconsistencies or differences of account between the witnesses and decided that the Patient Z charge was proven against the claimant. The other four incidents were found not to be proven against the claimant. The panel felt that, as it was one witness’s word against the claimant, they should give the claimant the benefit of the doubt and not find the charges proven against her. Both members of the panel were however clear that this did not mean that they did not believe M but rather that, in the absence of corroborating evidence they could not find the charges proven.
3.31 The panel characterised the treatment of Patient Z as “ill-treatment of a patient” and decided that it therefore fell under the list of examples of gross misconduct outlined in the policy namely “ill treatment or wilful neglect of patients, clients, residents”. The policy stipulates that “gross misconduct may warrant summary dismissal without previous warnings”.
3.32 Relevant extracts from the disciplinary policy state as follows:
“3(c)... at every stage in the procedure the employee will be advised of the nature of the complaint and will be given the opportunity to state their case before any decision is made…
3(e) No employee will be dismissed for a first breach of discipline except in the case of gross misconduct where the disciplinary action may be summary dismissal…
3(g) in deciding upon appropriate disciplinary action consideration will be given to the nature of the events any mitigating circumstances and previous good conduct.”
3.33 The preamble to the disciplinary procedure at paragraph 2 states as follows:
“’Gross misconduct’ is a serious breach of discipline which effectively destroys the employment relationship, and/or confidence which the Trust must have in an employee or brings the Trust into disrepute (please refer to disciplinary rules)”
3.34 At Appendix 1 to the disciplinary procedures are outlined in the Trust Disciplinary Rules and under the heading Gross Misconduct it states amongst other things as follows:
“The following are examples of gross misconduct offences which are serious breaches of contractual terms which effectively destroy the employment relationship and/or the confidence which the Trust must have in an employee. Gross misconduct may warrant summary dismissal without previous warnings…
-Ill treatment or neglect of patients, clients, residents.
-Breaches of contract of employment and/or professional codes of conduct
3.35 The disciplinary panel considered the five incidents individually and the charge which concerned breach of the NMC code of conduct only came into play if any one of the other charges was found to be proven
3.36 On 2 May 2008 the disciplinary panel wrote to the claimant to advise that they had found her guilty of gross misconduct on the basis of the ill-treatment of Patient Z, they also found her guilty of the NMC code of conduct charge and summarily dismissed her. She was advised of her right to appeal. The letter of dismissal gave reasons for the decision and advised the claimant of her right of appeal.
3.37 On 5 May 2008 the claimant wrote a letter of appeal.
3.38 On 27 May 2008 Mrs Houlahan and Mrs McElhinney met M regarding her diary which she had referred to during the investigatory process. This meeting was to explore possible breaches of confidentiality issues with M if the diary included details of patients. The diary entries had not been produced before because M had said she could not find them so they were not before the investigatory team nor before the disciplinary panel. When produced at this meeting, it was apparent that the entries were very short and did not make reference to patients at all. This meeting was not part of the disciplinary process against the claimant. The record of this meeting was not given to the claimant until she made a claim to the industrial tribunal.
3.39 In relation to disciplinary appeals it is stated in the disciplinary policy at paragraph 7 as follows:
“7(c) The appeal hearing will be a full re-hearing of the case.
7(d) The appeal panel will have the authority to confirm, set aside or reduce the decision of the disciplinary panel. It will not have the right to increase the decision of the disciplinary panel.”
3.40 On 12 June 2008 Mrs McElhinney sent a letter to the claimant saying that, at appeal, evidence would be heard only in relation to the Patient Z charge and the NMC charge as these were the charges which had been found proven against her at disciplinary level but advised that all the documents to do with all the charges would be before the panel. As the appeal hearing was to be a complete rehearing, this was a mistake. Mrs McConnell, who was to be on the appeal panel, noticed the mistake in the letter and on 27 June 2008 Mrs McElhinney sent a revised letter correcting her previous letter and stating that the appeal would be a full rehearing and evidence regarding all six charges would be heard.
3.41 The appeal hearing took place over two days namely 1 July 2008 and 16 July 2008 before an appeal panel comprising Mrs McConnell who was the Assistant Director of Human Resources and Mr Corey-Finn who was both the Director of Primary Care (Older Services) and Director of Nursing.
3.42 At hearing before us, the claimant’s case was that Mr Corey-Finn was involved in the process before the appeal and this rendered the appeal unfair. This had never been raised before in the appeal process. Mr Corey-Finn as Head of Nursing was aware that a nurse had been suspended but was given no further details as he could have a role at any appeal which might ensue. As Head of Nursing, letters were sent out by him or in his name, to statutory bodies in relation to the fact that an allegation of abuse had been raised, in accordance with the respondent’s policy in such matters.
3.43 The appeal panel’s interpretation of paragraph 7(c) of the disciplinary procedure was that they could not increase the sanction to be applied to the claimant but, as the matter was a full rehearing, it was open to them to find more charges proven against her than had been found proven at disciplinary level.
3.44 The conduct of the appeal hearing was not challenged by the claimant or her representative either during that hearing, after it or in the course of the tribunal proceedings except that the claimant raised the issue in her evidence-in-chief before us. She said that she felt that Mr Corey-Finn interrupted too much and did not want to listen to what was being said to him and that, as a result, she curtailed the questioning although she did not raise this during the hearing. This case was not put to Mr Corey-Finn in his cross-examination. Indeed in evidence-in-chief Mr Corey-Finn said that Mr Thompson had acted in a bullying and intimidating way to the witnesses and that he had had to intervene on several occasions to ask him to stop. This is borne out by the record of the appeal hearing. When Mr Corey-Finn gave his evidence he was not challenged by Mr Thompson on this nor did Mr Thompson allege that, on the contrary, Mr Corey-Finn’s attitude in the hearing had been detrimental to the claimant. In view of this the tribunal does not accept the claimant’s evidence on this point and accepts the documentary evidence and the unchallenged evidence of Mr Corey-Finn.
3.45 At appeal hearing Mrs Thompson again admitted moving Patient Z in an “inappropriate manner” by not using a sliding sheet.
3.46 At appeal hearing any perceived disadvantage suffered by the claimant because of late production of the documents or non-production of documents at the disciplinary hearing was “cured” because she had, by that time, had plenty of time to study documents and knew very well the cases being made against her and she was allowed to produce the PSNI transcript and she also produced a short letter from her GP saying that she had suffered from stress.
3.47 The appeal hearing involved an opening statement from Mrs Houlahan and the questioning of the witnesses by Mrs Houlahan, the panel and Mr Thompson. The claimant had an opening statement read out by her husband and she was questioned by the panel and a closing statement was read out by her husband. Mrs Houlahan made a closing statement indicating her view that the decision of the disciplinary panel should stand.
3.48 The panel weighed up all the evidence, considered everything they had heard and found that the Patient Z, Patient X and NMC Code charges were proven. The decision of summary dismissal was therefore confirmed. The reason that the Patient X charge was found to be proven by the appeal panel was that they felt there was corroboration of what M had said. The claimant’s account of the way she moved the patient did not satisfy Mr Corey-Finn (particularly with his experience as a psychiatric nurse) as a plausible way for X to have been moved, without it amounting to ill-treatment.
3.49 The appeal panel weighed up the mitigating circumstances which were apparent to them namely that the claimant had had long service as a nurse, had a clear record with the respondent and she had a vulnerable adult child to look after. The aggravating circumstances in their view were that the claimant showed no insight into what she had done despite admitting the core facts of the incidents particularly as regards Patient Z. She maintained that she had done nothing wrong and her account of the way she moved both patients was simply not plausible particularly in Mr Corey-Finn’s view with his experience of nursing and psychiatric nursing.
3.50 On 23 July 2008 the outcome of the appeal was communicated to the claimant namely that the charges involving Patients Z and X were found to be proven, the NMC Code charge was therefore found to be proven and the decision of summary dismissal was confirmed.
THE LAW
4.0 The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as “the Order”). At Article 130 of the Order it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2) (b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).
4.1 The task for the tribunal in a misconduct dismissal is set out as follows by the judge
in British Home Stores Ltd v Burchell 1980 ICR 303:
“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. Thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case”.
4.2 The “Burchell test” has been approved by the Court of Appeal in the cases of Post Office v Foley & HSBC Bank v Madden [2000] IRLR 827. This “range of reasonable responses” test is also applicable to procedural issues as confirmed by the Northern Ireland Court of Appeal in Ulsterbus Ltd v Henderson [1989] IRLR 251.
4.3 The law in this area was examined at length by the Northern Ireland Court of Appeal
in the case of Dobbin v City Bus Limited [2008] NICA 42. The Court of Appeal quoted with approval the guidance given by the Court of Appeal in England on the correct approach for the industrial tribunal to adopt in the case of Iceland frozen Foods Ltd v Jones [1983] ICR 17. The relevant extract of that decision reads as follows:
“(2)…an industrial tribunal must consider the reasonableness of the employers conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;
(3) in judging the reasonableness of the employers conduct an industrial tribunal must not substitute it’s decision as to what was the right course to adopt for that of the employer;
(4) in many, though not all, cases there is a band of reasonable responses to the employees conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band the dismissal is unfair”
4.4 In the Dobbin case Lord Justice Higgins stated as follows:
“…it is not for the tribunal to determine whether the conduct of the investigation was reasonable but whether in the particular circumstances of the case the investigation was one which a reasonable employer would consider fell within the range of reasonable investigations to enable the particular allegations against the employee to be investigated and determined. Thus the nature and depth of any investigation will vary with the circumstances and conduct under consideration”.
4.5 The reasonableness of the employer’s decision is looked at at the time of the final
decision to dismiss namely at the conclusion of any appeal hearing. The tribunal’s
task, in essence, is not to conduct its own investigation and come to its own view of
the offence but rather to assess whether the employer’s actions in relation to
procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances.
4.6 The statutory disciplinary and dismissal procedures must also be followed in relation to any dismissal. In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting. The meeting must take place at a reasonable time on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.
4.7 A copy of the Dobbin case was given to both parties to enable them to make submissions if they so wished.
4.8 The respondent submitted a copy decision of the Court of Appeal in the case of London Ambulance Service NHS Trust v Simon Small [2009] EWCA CIV 220. No submissions were made in relation to that case nor in relation to the Paul case. Nevertheless the tribunal did take account of those decisions insofar as they were relevant in reaching it’s decision. The tribunal also had regard to paragraphs of Harvey on Industrial Relations and Employment Law to which the respondent’s representative referred the tribunal.
CONCLUSIONS
5.0 Having considered carefully the written and oral submissions by both parties and having considered the law and the facts found, our conclusions are as follows
5.1 The claimant pointed to several alleged flaws in the investigatory process to make the case that the investigatory procedure was unfair. The claimant alleged that the actions identified at the strategy meeting were not progressed. The tribunal accepts the respondent’s evidence that the two processes namely the strategy meeting and the disciplinary process were separate and accepts that the decision to continue with the disciplinary process was entirely appropriate. The tribunal does not regard the fact that these actions were not progressed as a flaw in the procedure. The tribunal regards the issues raised at hearing regarding this strategy meeting as irrelevant to this case.
5.2 The investigators spent 10 days approximately gathering information. The claimant alleged that she received insufficient detail of the allegations against her before the investigatory meeting on 18 February 2008 as she was alerted to only one date of incident in the initial letter and full details of the complaints were not given to her before the meeting. They could have sent a letter before the investigatory meeting outlining the three dates which were in issue and it may have been preferable for them to have done so. However the claimant was not disadvantaged in the investigatory hearing because she is recorded as having dealt with each allegation as it was put to her and she confirmed that she could recall most of them. The allegations were of specific abuse over a short period. Another employer might have alerted the claimant before the meeting to the additional dates but the tribunal does not regard it as outside the band of reasonable responses for this employer not to have done so given the way the investigatory meeting actually went. The tribunal does not therefore accept that this was a flaw in procedure. If it was a flaw in the procedure it made no difference to the outcome.
5.3 Following that meeting the claimant was well aware of the detail of the four allegations which were at that stage being pursued so the tribunal does not regard it as a flaw that the respondent did not give precise written details of the nature of the allegations to the claimant in response to her letter following the meeting.
5.4 The claimant alleged that it was a flaw in the investigatory procedure for a team to have met McC again to clarify matters which she had put in her handwritten statement. They met on 14 April 2008 that is two days before the charge letter went out and 10 days before the disciplinary hearing began. Far from being a flaw in procedure the tribunal regards it as right and proper for the investigating team to endeavour to get all the relevant facts and as McC had given more information it was right and proper for them to meet her to clarify any matters that needed clarified.
5.5 The claimant alleged that the Patient 3 charge was included at the disciplinary hearing and that this was a flaw in procedure which led to the disciplinary hearing being unfair. As set out at paragraph 3.19 above, the implication in the letter from Miss Houlahan was that that allegation would be included in the process if the claimant provided a written response. The claimant did respond to the Patient 3 allegation and it was therefore in order for the respondent to include it in the charges as this was made clear in their letter to her when they asked for a response to the Patient 3 allegation. It was not, therefore, a flaw in the investigatory or disciplinary process for the Patient 3 allegation to be dealt with along with the other allegations. The tribunal finds no disadvantage to the claimant as she was able to deal fully with the allegation against her both in writing and at a disciplinary hearing
5.6 The claimant made the case that medical examination of the patients should have taken place to see if they had any physical injuries following the alleged abuse. The tribunal heard no evidence as to why this did not take place. The tribunal is surprised that no medical examinations took place of the patient soon after the alleged abuse particularly where a criminal investigation proceeded as a result of the allegations. However we were not pointed to anywhere in the Safeguarding Vulnerable Adults Policy which stipulated that a medical examination was required as part of that policy. In addition the tribunal does not regard it as having resulted in injustice to the claimant because of her admission that she moved Patient Z in an inappropriate way and that she had had physical contact with Patient X in the way described.
5.7 Showing McC and M around the room where the disciplinary hearing was to take place was not the action of an unreasonable employer. In the tribunal’s view this did not in any way taint the disciplinary process.
5.8 The claimant complained at tribunal that she should have been entitled to get character references. In the event however she was permitted to get character references and was able to bring these forward at the disciplinary hearing so there was no disadvantage to the claimant occasioned by the delay in giving permission.
5.9 In summary the investigation was a thorough investigation in the tribunal’s view and fell well within the band of reasonable responses of a reasonable employer in the circumstances.
5.10 At the disciplinary hearing the documents which were produced on the morning did not result in any disadvantage to the claimant and in the tribunal’s view it was perfectly reasonable for the panel, having sought the claimant’s views on the late production of evidence and having received no complaint, to proceed without adjourning the proceedings. Ideally the documents should have been shared before the hearing but the tribunal heard no evidence of any disadvantage to the claimant in the late production and does not regard the late production of documents as having had any effect on the outcome
5.11 The claimant complained that the investigating officer Mrs Houlahan should not have been also the presenting officer at the disciplinary hearing. The tribunal does not accept this. It is clearly set out in the disciplinary policy that the investigating officer should present the case. The tribunal does not regard this as an unreasonable stipulation.
5.12 The claimant complained that Mrs Houlahan adopted a type of “prosecutor” role in the disciplinary hearing whereas she should have adopted a neutral role presenting the facts in a neutral way and not seeking a particular outcome from the disciplinary hearing. Mrs Houlahan, following a thorough investigation, thought that she had enough information to bring forward disciplinary charges. She put her side of the case in a fair way and she was entitled to ask the panel to reach a certain decision. The claimant had the opportunity to challenge the evidence and cross-examine witnesses and to put her points and bring evidence to refute the case made by Mrs Houlahan. The tribunal therefore finds nothing unreasonable in Mrs Houlahan’s “prosecutor” role.
5.13 At the disciplinary hearing any inconsistencies presented before the tribunal by Mr Thompson in his detailed forensic examination of the documentation, related to detail of the said incident and not the core facts which were admitted. The claimant did not admit that she had used any inappropriate language to Z but both witnesses gave evidence of language along similar lines and the panel was fully entitled to accept the consistencies in their evidence as outweighing the inconsistencies particularly where the claimant had admitted moving Mr Z the way that she did and admitted that it was inappropriate.
5.14 At the disciplinary hearing Mr McGarvey raised the issue of the Patient 3 allegation and the McC clarification letter and no objection was raised by Mrs Thompson or her husband. It is clear from the record of the hearing that Mr Thompson conducted a detailed cross-examination referring to extreme detail in the documents and he put the claimant’s side of things forcefully to the witnesses so the tribunal simply does not accept that he would not have been able to object to things that were unfair at the time, nor were objections raised by the claimant and Mr Thompson following the disciplinary hearing on this point.
5.15 The tribunal does not accept that NMC Code charge could only be found against the claimant if all five incidents had been proven against her. We do not accept that all the allegations stood or fell together particularly giving the fact that the incident involving Patient Z was, of itself, enough to warrant dismissal for gross misconduct.
5.16 Much was made by the claimant in her case of the refusal to allow her to use the PSNI transcript that she had prepared, for the disciplinary hearing. It was never made clear to the tribunal as to the key points which the transcript would reveal. In any event this transcript was permitted at the appeal hearing and nothing major was alluded to by the claimant in it during that hearing. It therefore did not transpire to be a key document and any perceived disadvantage was cured by its use by the claimant on appeal. The non-use of the PSNI transcript at the disciplinary hearing did not affect the outcome,
5.17 The tribunal accepts the respondent’s contention that the charge which was found to be proven fell within gross misconduct and that an option open to the panel was to impose the sanction of summary dismissal.
5.18 Three charges were not upheld but this did not mean that the panel did not believe the witnesses. Mr McGarvey and Mrs Doherty asked many questions to probe the evidence. As regards the other charges they felt that, as it was one witness’s word against another, they had to give the claimant the benefit of the doubt and therefore found them not proven. However, they were emphatic in their evidence to the tribunal that this did not mean that they found M and McC to be untruthful. The tribunal does not accept the claimant’s argument that failing to find four of the charges proven meant they should not believe M in relation to the Patient Z charge. The tribunal accepts the disciplinary panel’s evidence that they carefully weighed up the evidence in relation to each charge individually and reached their findings having considered all the evidence and their assessment of the witnesses.
5.19 The claimant alleged that the fact that Mrs Houlahan and Mrs McElhinney met with M regarding the diaries meant that the process was unfair as regards the claimant. The tribunal accepts the respondent’s evidence that that meeting relating to the diaries was in relation to a confidentiality issue because there was a concern that M was recording details about patients in breach of procedures. In the event the diaries entries were so scanty with so little detail that it was decided that they did not amount to a breach of procedures. This meeting with M did not form any part of the disciplinary process and that was the reason for it not forming part of the documentation provided to the claimant. In any event the non-production of that documentation had no effect on the progress of the disciplinary process and caused no unfairness to the claimant.
5.20 The tribunal does not find it to be a flaw in the respondent’s procedure that a letter was sent on the 12 June 2008 with misleading information as to the scope of the appeal, as the misleading information was corrected in good time before the appeal hearing. The claimant was not disadvantaged by the misleading information that was contained in the first letter of 12 June 2008 as she was well aware in advance of the appeal that it was a re-hearing of all the issues.
5.21 As regards the appeal hearing, the tribunal accepts that Mr Corey-Finn had no operational involvement in the disciplinary process involving the claimant before the appeal hearing. A Director of Nursing it was entirely appropriate that he was notified that a nurse had been suspended given that the reason for the suspension triggered the Safeguarding Vulnerable Adults Policy which involved outside agencies including the police. It was entirely appropriate that Mr Corey-Finn was aware that this process had been triggered and the tribunal accepts that he had no further involvement nor did he have details of the matters, as he was aware that he could be involved in any appeal. The tribunal does not therefore regard it as unreasonable for Mr Corey-Finn to have been notified in the way that he was. We do not regard the appeal process as tainted in any way by this.
5.22 We do not accept the claimant’s criticism of the conduct of the hearing by Mr Corey-Finn. In contrast, the evidence and documentation shows, in our view, valid control of the appeal hearing to ensure that the questioning was focused on relevant matters.
5.23 The claimant complained in the hearing before us that documentation was provided late at the disciplinary hearing. If this amounted to a flaw, which the tribunal does not accept, no protest was made by the claimant at the time nor did it affect the outcome in our view. The claimant had more than enough time to consider the contents of the documents and make any points she wished to make at the appeal hearing. In our view this late production of documents made no difference to the outcome.
5.24 The appeal panel considered the charges involving Z and X proven against the claimant and considered it to be ill-treatment and therefore gross misconduct. They did consider other options to dismissal but give uncontested evidence that the claimant could not be moved elsewhere in the organisation so it was not outside the band of reasonable responses for them to dismiss the claimant. This was particularly so in circumstances where the patients being dealt with were vulnerable adults suffering from dementia who could not protect themselves or complain in a coherent way and were essentially at the mercy of the staff looking after them. In these circumstances, it was well within the band of reasonable responses for the respondent to take a very dim view of the incidents and to regard the relationship of trust to have broken down irretrievably.
5.25 The tribunal finds that the respondent’s interpretation of “the decision”, namely that the decision was the decision to dismiss rather than the individual decisions on charges, fell within the band of reasonable responses. There are two possible interpretations but that does not mean that the respondent’s interpretation was unreasonable. In the event it did not make a difference in our view as the Patient Z charge, on its own, constituted gross misconduct and warranted dismissal. This was the evidence given by the respondent’s witnesses and our view is that it was not unreasonable for them to take this view in the circumstances.
5.26 At the tribunal hearing the claimant’s case was that two complainants had colluded over the weekend of 2 February 2008 to make false complaints against her because she had complained about them. The chronology presented to the tribunal simply does not bear this out. In addition the claimant at no stage gave details of any complaint against the two complainants and brought no evidence to the two panels as to any reasons they might have for colluding to make malicious false allegations. This was not a case where the claimant simply denied that things had happened: she admitted the core facts of what happened to Patient Z namely, that he was dragged along the floor and she admitted that this was inappropriate but denied that this constituted ill-treatment or abuse of the patient. Patient Z was an 80 year old man suffering from dementia weighing approximately 14 stone. Both panels took the view that the way the claimant described moving him was not plausible and that the two witnesses’ account was consistent in their core aspects and inherently more plausible given the weight and position of the patient
5.27 Mr Thompson before us in tribunal was a capable and articulate representative and was aware of the detail of all the documents before him. He directed his attention to procedural flaws in the two hearings before the respondent. The disciplinary panel and appeal panel found no evidence of any emergency pertaining at the time Z was moved and it was uncontested that the claimant did not look for other options at the time of moving Z. As the senior nurse in charge at the time it was for her to direct the other staff to explore the several options which were available to resolve the problem and did not involve dragging Z along the floor to his room.
5.28 At the hearing before us, Mr Thompson went into great depth on differences of detail in the statements and evidence given at various stages by McC and M and other witnesses in an effort to show that the disciplinary and appeal panels reached an unreasonable conclusion on the veracity of the witnesses and on the details of the alleged incidents. This approach by the claimant effectively ignored that the claimant had made key admissions about the Patients Z and X incidents. The inconsistencies in the evidence and the lack of corroborating evidence led both panels to conclude that some of the other incidents alleged were not proven against the claimant. The tribunal is satisfied that both panels carefully weighed up all the evidence in reaching a reasoned conclusion that was not outside the band of reasonableness particularly where the claimant admitted key aspects of the incidents which were found proven against her.
5.29 The respondent’s evidence, which we accept, was that they considered other sanctions aside from dismissal. However their view was that the relationship had irretrievably broken down as the claimant displayed no insight to her behaviour and displayed no remorse nor did she indicate that she had learnt from the experience. Indeed the respondent’s witnesses intimated that they might have considered a lesser penalty but felt that they could not as the claimant did not appreciate that she had done anything wrong and therefore could not be said to have indicated that she would not do the same thing in future. Both at disciplinary hearing and at appeal hearing account was taken by the respondents of the claimant’s record. Whilst the respondents were aware that she had been assaulted at work the claimant and her husband did not raise this as a mitigating factor and indeed raised no mitigation as to why she treated Patients Z and X in the way she did.
5.30 The claimant criticised the level of detail given in the letter of dismissal. This was not criticised by the claimant when she received the letter nor at the appeal hearing. The tribunal finds the letter of dismissal and the letter confirming the outcome of the appeal to have sufficient detail in them to bring them well within the band of reasonable responses of a reasonable employer. The tribunal therefore does not regard the contents of the letters in any way as a flaw in the procedures. The claimant was well aware of the reasons why she was dismissed.
5.31 As was made clear during the tribunal hearing it is not the role of this tribunal to conduct its own investigation or its own assessment of the evidence gathered to determine whether or not the claimant was guilty of the offences alleged. This is not a case where the claimant flatly denied the incidents occurred. As regards Patient Z the claimant admitted the essential mechanics of the act and admitted that she had moved Patient Z inappropriately. The claimant denied the Patient X incident in key details whilst accepting that an incident took place where she had to remove Patient X forcibly from the bathroom. As regards the Patient Z incident the claimant’s tack during the disciplinary process was essentially to put a different complexion on the acts she had admitted. At no stage did the claimant admit that what she had done was wrong nor did she say that she would not do it again in the future. Mr and Mrs Thompson approached the hearings and documentation in forensic detail but this, in our view, was a distraction from the main issues which related to actions which were admitted by the claimant. No mitigating circumstances were put forward to explain the claimant’s conduct and in our view it was entirely within the band of reasonable responses for the respondent to determine that not only was the claimant guilty of gross misconduct but that that misconduct warranted summary dismissal.
5.32 These patients were amongst the most vulnerable people in society, unable to defend or speak up for themselves. It was therefore entirely appropriate for the respondent to impose a severe sanction, even on a long-serving employee such as the claimant, in the circumstances of this case.
5.33 We therefore find that the reason for the claimant’s dismissal was that she was found guilty of gross misconduct following a reasonable investigation and that this is one of the potentially fair reasons for dismissal under the Order. Dismissal was well within the band of reasonable responses for this employer to adopt and the procedures adopted were well within that band too. We also find that the statutory disciplinary and dismissal procedures were followed in this case.
5.34 The claimants claim is therefore dismissed in its entirety.
Chairman:
Date and place of hearing: 29 June–3 July 2009 and 10-14, 19 August 2009
Date decision recorded in register and issued to parties:
