Stewart v Western Health & Social Care T... Western Health & Social Care T... [2011] NIIT 02500

THE INDUSTRIAL TRIBUNALS

CASE REFS: 2500/10

2658/10

CLAIMANT: Dr Adriel Stewart

RESPONDENT: Western Health & Social Care Trust

DECISION

The unanimous decision of the tribunal is that the claim of sex discrimination and protected disclosure detriment are dismissed. The claimant was unfairly dismissed and is awarded compensation of £57,429.89.

Constitution of Tribunal:

Vice President: Mr N Kelly

Members: Mrs C Stewart

Mr M Grant

Appearances:

The claimant was represented by Ms R Best, Barrister-at-Law, instructed by H B J Gateley Wareing LLP, Solicitors.

The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Legal Directorate of BSO.

Background

1. The claimant commenced employment with the respondent as one of two substantive consultants in the Accident & Emergency Department at Erne Hospital in Enniskillen on 5 February 2007. She was excluded (suspended) on 21 July 2009 and was dismissed on 16 July 2010. The other substantive consultant employed in the A&E Department was Dr Samuel McBride. A third doctor, Dr Rahman, was ‘acting up’ as a consultant in the Department at all relevant times.

2. The respondent has accepted throughout these proceedings that the claimant was an excellent clinician and there was no criticism of her medical skills.

3. The claimant was given leave from June to December 2008 to work in Afghanistan as a surgeon with the Territorial Army.

4. As part of a health service re-organisation, three Health Trusts; Sperrin Lakeland; Foyle; and Altnagelvin were merged to form the Western Health & Social Care Trust on 1 April 2007.

5. Even before the merger took effect and throughout the period from 2007 to 2010, it was accepted by the Trust management, and indeed well-known, that there were serious clinical issues in hospital provision in both Tyrone and Fermanagh. Those risks had been identified through a UK-wide process known as the National Clinical Governance Review Procedure.

6. At the relevant time, the Accident & Emergency Department in Erne was staffed by:-

(i) the two substantive consultants named above, ie the claimant and Dr Samuel McBride with the assistance of Dr Rahman acting up as a consultant;

(ii) a rota of eight junior doctors;

(iii) nursing staff; and

(iv) receptionists and porters.

7. There were particular problems in the Accident & Emergency Department in the Erne Hospital in early 2009:-

(i) The previous practice in Erne of direct clinical admissions to medical wards had been stopped and those patients were now initially processed through the Accident & Emergency Department, increasing the workload in that Department.

(ii) On 2 March 2009, the Accident & Emergency Department in Omagh closed and was replaced by a Minor Injuries Unit. This again resulted in an increase in workload in the Accident & Emergency Department in Erne.

(iii) The eight junior doctor rota in the Accident & Emergency Department in Erne comprised one doctor who was on a fixed term contract due to expire in October 2009 and another doctor who resigned in May 2009. All the other posts on that rota were vacant and were filled on a day-to-day basis by various locums. Those locums were doctors who either worked elsewhere within the hospital, doctors who worked outside the hospital, or doctors supplied by locum agencies.

(iv) One of the Nurse Practitioners in Erne was asked to rotate to the new Minor Injuries Unit in Omagh and one of the senior nurses in the Erne Accident & Emergency Department became a Nurse Practitioner. Another senior nurse was on maternity leave.

(v) There were no porters and no receptionists on duty in the Accident & Emergency Department in the evening.

8. Significant management changes occurred in early 2009. On 22 May 2009, Mrs Hillick, the new Assistant Director of Emergency Care & Medicine, arrived in the Erne Hospital to visit her new area of responsibility and to tour the medical wards and the Accident & Emergency Department.

9. Following that visit, Mrs Hillick commissioned a report by a Clinical Psychologist into the Accident & Emergency team (‘the Gibson Report’). Following receipt of that report, the claimant was suspended from duty and a further report was commissioned (‘the Nesbitt Report’). That Report was followed by disciplinary proceedings leading to the dismissal of the claimant on 16 July 2010.

10. The Gibson Report included not just criticisms of the claimant but also substantial criticisms of the other substantive consultant in the Accident & Emergency Department, Dr Samuel McBride, and of management within the Trust. Dr McBride was not suspended from duty or disciplined. There was a separate investigation conducted by Dr Nesbitt into Dr McBride’s conduct which again made significant criticisms of his conduct but which did not result in disciplinary action. No manager or member of the Trust administration was suspended from duty or disciplined as a result of the Gibson Report.

Issues

11. The tribunal had to determine the following issues:-

“(i) Was the claimant unlawfully discriminated against on grounds of her gender by her exclusion (suspension), the disciplinary action and eventual dismissal?

(ii) Was the claimant automatically unfairly dismissed for having made a protected disclosure in relation to difficulties in filling the junior doctor rota in the Accident & Emergency Department in the Erne Hospital?

(iii) Was the claimant unfairly dismissed for purposes of the Employment Rights (Northern Ireland) Order 1996 (standard unfair dismissal)?

(iv) If so, was there any contributory conduct on her part?”

Relevant law

Tribunal procedure

12. Tribunals must approach with particular care any claim that includes not just a claim of unfair dismissal but, in addition a claim of unlawful discrimination or, as in this case, a claim of protected disclosure detriment. Further problems can occur where there may be an issue of contributory conduct.

In London Ambulance Service NHS Trust v Small [2009] EWCA Civ 220 the Court of Appeal stated at Paragraph 46:-

“Mr Marsh spoke of his experience that employment tribunals often structure their reasons by setting out all their findings of fact in one place and then drawing on the findings at the later stage of applying the law to the relevant facts. It is not the function of appeal courts to tell trial tribunals and courts how to write their judgments. As a general rule, however, it might be better practice in an unfair dismissal case for an employment tribunal to keep its findings on that particular issue separate from its findings of disputed facts that are only relevant to other issues, such as contributory fault, constructive dismissal and increasingly, discrimination and victimisation claims. Of course some facts would be relevant to more than one issue, but the legal elements of the different issues, the role of the employment tribunal and the relevant facts are not necessarily all the same. Separate and sequential findings of fact on discrete issues may help to avoid errors of law, such as substitution, even if it may lead to some duplication.”

Unfair dismissal

13. The proper approach for an industrial tribunal to take when considering the fairness of a misconduct dismissal is well settled and was recently considered by the Court of Appeal in Rogan v South Eastern Health & Social Care Trust [2009] NICA 47.

14. Article 130 of the Employment Rights (Northern Ireland) Order 1996 provides:-

“130-(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show –

(a) the reason (or if more than one, the principal reason) for the dismissal and

(b) that is either a reason falling within paragraph (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.

(2) a reason falls within this paragraph if it –

(b) relates to the conduct of the employee,

(4) where the employer has fulfilled the requirements of paragraph (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.”

15. The Court of Appeal in Rogan approved the earlier decision of Court in Dobbin v Citybus Ltd [2008] NICA 42 where the Court held:-

“(49) The correct approach to [equivalent GB legislation] was settled in two principal cases – British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 and explained and refined, principally in the judgements of Mummery LJ, in two further cases Foley v Post Office and HSBC Bank PLc (formerly Midland Bank) –v- Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

(50) In Iceland Frozen Foods, Browne-Wilkinson J offered the following guidance:-

“Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law. We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [equivalent GB legislation] is as follows:-

(1) the starting point should always be the words of [equivalent GB legislation] themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer’s conduct an industrial tribunal must not substitute its 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 employee’s conduct within which one employer might reasonably take one view, and another quite reasonably take another;

(5) the function of an 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 it is unfair.”

(51) To that may be added the remarks of Arnold J in British Home Stores where in the context of a misconduct case he stated:-

“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) 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, it 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. And 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. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old fashioned term such as to put the matter beyond reasonable doubt. The test, and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”

16. In Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal. The employment tribunal had determined that a remark made by a nurse in an Accident & Emergency Department was not a sufficient basis for a fair dismissal. Lord Justice Longmore stated at Paragraph 18 of the decision that:-

“I agree with Stanley Burnton LJ that dismissal of the appellant for her lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of the case. The EAT decided that the ET had substituted its own judgment for that of the judgment to which the employer had come. But the employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the ET to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”

He continued at Paragraph 19:-

“It is important that, in cases of this kind, the EAT pays proper respect to the decision of the ET. It is the ET to whom Parliament has entrusted the responsibility of making what are, no doubt, sometimes, difficult and borderline decisions in relation to the fairness of dismissal.”

17. In Fuller v London Borough at Brent [2011] EWCA Civ 267, the Court of Appeal again considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the basis that the employment tribunal had substituted its view for the decision of an objective reasonable employer. Lord Justice Mummery stated at Paragraph 7 of the decision that:-

“In brief the counsel’s case on appeal that the ET erred in law. It did not apply to the circumstances existing at the time of Mrs Fuller’s dismissal the objective standard encapsulated in the concept of the ‘range or band of reasonable responses’. That favourite form of words is not statutory or mandatory. Its appearance in most ET judgments in unfair dismissal is a reassurance of objectivity.”

At Paragraph 38 of the decision, he continued:-

“On a proper self-direction of law I accept that a reasonable ET could properly conclude that the council’s dismissal was outside the band or range of reasonable responses and that it was unfair. If, as I hold, the ET applied the objective test, it did not err in law and there was no ground on which the EAT was entitled to set it aside or to dismiss Mrs Fuller’s claim.”

18. In Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, the Court of Appeal again considered a decision of an Employment Appeal Tribunal which set aside the decision of an employment tribunal on the ground that they had substituted their judgment of what was a fair dismissal for that of a reasonable employer. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

“Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee’s reputation or ability to work in his or her chosen field of employment is potentially apposite”

In A v B the EAT said this:-

“Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.”

19. In Spence v Department of Agriculture and Rural Development [2011] IRLR 809, the Northern Ireland Court of Appeal considered a case where a lengthy report had been compiled by the employer into alleged misconduct by the employee. That report had not been disclosed to the employee in the course of internal disciplinary procedures which led to his dismissal. It was disclosed at the industrial tribunal. Mr Justice Hart stated at Paragraph 21:-

“We recognise that the employer may be justified in withholding a report such as this, particularly where it may disclose sensitive information such as the identify of an informer, or as in the Civil Service, sensitive material being developed for submission to Ministers and which is not yet in the public domain. These are merely some examples of circumstances where an employer may withhold information from an employee during disciplinary proceedings, and there may be other situations where some or all of a report may be legitimately withheld from an employee. Nevertheless, subject to constraints such as these, we feel that a fair procedure requires that normally an employer should consider disclosing anything in its possession which may be of assistance to an employee who is contesting the disciplinary charge, or wishes to make submissions in relation to penalty.”

Unlawful discrimination

20. The proper approach for a tribunal to take when assessing whether discrimination has occurred and in applying the provisions relating to the shifting of the burden of proof in relation to discrimination has been discussed several times in case law. The Court of Appeal has recently re-visited the issue in the case of Nelson v Newry & Mourne District Council [2009] NICA -3 April 2009. The court held:-

“22 This provision and its English analogue have been considered in a number of authorities. The difficulties which tribunals appear to continue to have with applying the provision in individual cases indicates that the guidance provided by the authorities is not as clear as it might have been. The Court of Appeal in Igen v Wong [2005] 3 ALL ER 812 considered the equivalent English provision and pointed to the need for a tribunal to go through a two-stage decision-making process. The first stage requires the complainant to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent had committed the unlawful act of discrimination. Once the tribunal has so concluded, the respondent has to prove that he did not commit the unlawful act of discrimination. In an annex to its judgment, the Court of Appeal modified the guidance in Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 333. It stated that in considering what inferences and conclusions can be drawn from the primary facts the tribunal must assume that there is no adequate explanation for those facts. Where the claimant proves facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of sex then the burden of proof moves to the respondent. To discharge that onus, the respondent must prove on the balance of probabilities that the treatment was in no sense whatever on the grounds of sex. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to be adduced to discharge the burden of proof. In McDonagh v Royal Hotel Dungannon [2007] NICA 3 the Court of Appeal in Northern Ireland commended adherence to the Igen guidance.

23 In the post-Igen decision in Madarassy v Nomura International PLC [2007] IRLR 247 the Court of Appeal provided further clarification of the Tribunal’s task in deciding whether the tribunal could properly conclude from the evidence that in the absence of an adequate explanation that the respondent had committed unlawful discrimination. While the Court of Appeal stated that it was simply applying the Igen approach, the Madarassy decision is in fact an important gloss on Igen. The court stated:-

‘The burden of proof does not shift to the employer simply on the claimant establishing a difference in status (eg sex) and a difference in treatment. Those bare facts only indicate a possibility of discrimination. They are not, without more, sufficient matter from which a tribunal could conclude that, on the balance of probabilities, the respondent had committed an unlawful act of discrimination; ‘could conclude’ in Section 63A(2) must mean that ‘a reasonable tribunal could properly conclude’ from all the evidence before it. This would include evidence adduced by the claimant in support of the allegations of sex discrimination, such as evidence of a difference in status, difference in treatment and the reason for the differential treatment. It would also include evidence adduced by the respondent in contesting the complaint. Subject only to the statutory ‘absence of an adequate explanation’ at this stage, the tribunal needs to consider all the evidence relevant to the discrimination complaint such as evidence as to whether the act complained of occurred at all, evidence as to the actual comparators relied on by the claimant to prove less favourable treatment, evidence as to whether the comparisons being made by the complainant were of like with like as required by Section 5(3) and available evidence of all the reasons for the differential treatment.’

That decision makes clear that the words ‘could conclude’ is not be read as equivalent to ‘might possibly conclude’. The facts must lead to an inference of discrimination. This approach bears out the wording of the Directive which refers to facts from which discrimination can be ‘presumed’.

24 This approach makes clear that the complainant’s allegations of unlawful discrimination cannot be viewed in isolation from the whole relevant factual matrix out of which the complainant alleges unlawful discrimination. The whole context of the surrounding evidence must be considered in deciding whether the tribunal could properly conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination. In Curley v Chief Constable of the Police Service of Northern Ireland [2009] NICA 8, Coghlin LJ emphasised the need for a tribunal engaged in determining this type of case to keep in mind the fact that the claim put forward is an allegation of unlawful discrimination. The need for the tribunal to retain such a focus is particularly important when applying the provisions of Article 63A. The tribunal’s approach must be informed by the need to stand back and focus on the issue of discrimination.”

21. In S Deman v Commission for Equality and Human Rights & Others [2010] EWCA Civ 1279, the Court of Appeal considered the shifting burden of proof in a discrimination case. It referred to Madarassy and the statement in that decision that a difference in status and a difference in treatment ‘without more’ was not sufficient to shift the burden of proof. At Paragraph 19, Lord Justice Sedley stated:-

“We agree with both counsel that the ‘more’ which is needed to create a claim requiring an answer need not be a great deal. In some instances it will be forwarded by non-response, or an evasive or untruthful answer, to a statutory questionnaire. In other instances it may be furnished by the context in which the act has allegedly occurred.”

22. In Laing v Manchester City Council [2006] IRLR 748, the EAT stated at Paragraph 76:-

“Whilst, as we have emphasised, it will usually be desirable for a tribunal to go through the two stages suggested in Igen, it is not necessarily an error of law to fail to do so. There is no purpose in compelling tribunals in every case to go through each stage.”

Protected disclosure detriment

23. In the Employment Rights (Northern Ireland) Order 1996, as amended by the Public Interest Disclosure (Northern Ireland) Order 1998, a qualifying disclosure is defined in Article 67B as including the disclosure of information which, in the reasonable belief of the worker making the disclosure tends to show:-

“(d) That the health & safety of any individual has been, is being or is likely to be endangered.”

Under Article 67C a qualifying disclosure is made in accordance with the Article if the worker makes the disclosure in good faith to his employer.

Under Article 70B of the Order a worker has the right not to be subjected to any detriment on the ground that he or she has made a protected disclosure and a dismissal on that ground is an automatically unfair dismissal.

The hearing

24. The hearing took place over seven days from 5 – 7 September 2011 and 12 – 15 September 2011. The claimant gave evidence on her own behalf. The respondent’s witnesses were:-

(i) Dr Kilgallen, the respondent’s medical director, who was responsible for medical professional standards;

(ii) Mrs Geraldine Hillick, the assistant director for emergency care and medicine during the relevant period;

(iii) Mr Geoff Nesbitt, a consultant anaesthetist based in Altnagelvin, who conducted the investigations following the Gibson Report into both the claimant and separately into Dr Samuel McBride;

(iv) Mr Joe Lusby, the Deputy Chief Executive of the respondent Trust, who chaired the disciplinary hearing; and

(v) Mrs Elaine Way, the Chief Executive of the respondent Trust, who chaired the appeal hearing.

The tribunal was also referred to approximately one thousand pages of documentation.

The final scheduled day of the hearing on 16 September 2011 was postponed and re-scheduled on 20 October 2011 to allow the parties to consider the substantial amount of evidence which had been adduced before the tribunal and to prepare and exchange written submissions by Friday 23 September 2011. Those exchanged submissions were to be lodged in the tribunal by Monday 26 September 2011. Both parties considered the written submissions and made final oral submissions at a submissions hearing on 20 October 2011. The panel met again on 17 November 2011 to consider the evidence and the submissions and to reach a decision.

Format of the decision

25. Given the remarks of the Court of Appeal in the Small decision above and the complexity of the evidence before the tribunal, the tribunal has decided, where necessary, to separate its findings of fact on disputed areas of evidence, to ensure that the different questions which arise under the jurisdictions of unfair dismissal, unlawful discrimination and protected disclosure detriment are approached in the correct manner. The findings of fact are first set out insofar as they are relevant to the claim of unlawful discrimination and thereafter are set out separately in relation to the claim of unfair dismissal.

Relevant findings of fact (unlawful discrimination)

26. On 22 May 2009, Mrs Hillick, during her familiarisation tour of the Erne Hospital, spent approximately 20 minutes speaking to Sister Diane McCaffrey, a nursing sister in the Accident & Emergency Department. Sister McCaffrey had recently returned from a period of sick leave. A significant part of those 20 minutes was taken up with Sister McCaffrey’s concerns about the manner in which the Accident & Emergency Department was functioning. She told Mrs Hillick that during her recent sick leave, but apparently not previously, she had come to the conclusion that stress at work and poor working relationships had contributed to her ill-health and therefore to her absence. She also complained about experienced nursing staff wanting to leave the Accident & Emergency Department. She raised several issues with Mrs Hillick. In relation to the two substantive consultants, she told Mrs Hillick that a number of the nursing staff (not Sister McMullan) had reported to her that Sister McMullan, another nursing sister who worked in the Accident & Emergency Department, had not been treated well by the claimant. Sister McCaffrey had then spoken to Sister McMullan. Sister McCaffrey also complained that Dr McBride was not always available to help junior medical staff.

Initial evidence from Dr Kilgallen and the sequence of events recorded in the Nesbitt Report, to which this decision shall shortly turn, indicated that conversation between Sister McCaffrey and Mrs Hillick occurred in June 2009. Dr Kilgallen accepted, and it is clear, that this was incorrect. Sister McCaffrey expressed her concerns to Mrs Hillick on 22 May 2009 rather than in June 2009.

27. It is common case that, at the relevant time, the Accident & Emergency Department was meeting its four hour target for treating patients. The issues, reported by Sister McCaffrey to Mrs Hillick were of low staff morale and a poor working environment, rather than of poor performance or a failure to meet targets.

28. Mrs Hillick did not speak to either of the two substantive consultants or to other medical or nursing staff within the Accident & Emergency Department to get their views on what she had been told by Sister McCaffrey. This appears to the tribunal to have been such an obvious step that it is at a loss to understand why Mrs Hillick did not do so and instead acted in the way she did.

29. Mrs Hillick decided to commission Mr Stephen Gibson, a clinical psychologist with whom she had previously worked, to review the workings of the Accident & Emergency Department and to prepare a report. She discussed this decision with Mrs Young the Assistant Director of the respondent’s HR Department and with Dr Kilgallen, the respondent’s medical director. However, it seems clear the decision to commission Mr Gibson was a decision made by Mrs Hillick on the basis of what she had been told by Sister McCaffrey. Mrs Hillick confirmed to the tribunal that, at this stage, she had only heard from one member of staff in the Department – Sister McCaffrey.

30. Mr Gibson’s brief was to meet with the individual members of the Accident & Emergency team, to diagnose issues of concern, to look at the effectiveness of the team and to make recommendations for the way forward. Mr Gibson’s prior experience in the workings of an Accident & Emergency Department remains unclear.

31. The respondent had no input into who Mr Gibson interviewed and no access to the witness statements or notes prepared by Mr Gibson in the course of investigation. The investigation was conducted ‘in confidence’ and no one who was interviewed was warned that what they said to Mr Gibson could form the basis of subsequent disciplinary action against any member of staff.

32. Even at the time of the tribunal hearing, neither the claimant or the respondent’s witnesses, or indeed anyone in the respondent’s management structure, knew:-

(i) who had been interviewed by Mr Gibson;

(ii) what each witness had said to Mr Gibson; or

(iii) the questions which had been put to each witness (apart from an initial question).

The Report recorded that there had been a ‘semi-structured interview’ with all available Accident & Emergency staff and a number of consultants from elsewhere in the hospital. Mr Gibson stated:-

“Interview evidence was qualitatively analysed using thematic content analysis supplemented with some quantifiable data on the frequency of which specific themes, issues and suggestions were raised.”

33. The Gibson Report was issued on 15 July 2009. It praised the high capability of the nursing team and the trauma skills demonstrated by the claimant in the Accident & Emergency Department. However, it identified what it described as morale, culture and team efficiency issues and a number of ‘stressors’. These included the Department being busy with breaches in waiting time allocation, less able or inexperienced locum doctors being the only medical staff present in the Accident & Emergency Department, no doctor being on site on occasions, flustered junior doctor grades and either absent consultants or consultants behaving in a volatile manner. It stated:-

“Essentially, quality of medical care, presence of appropriate supervision, volatile behaviour from a consultant and the sheer mass of work are active stressors that impact upon team morale.”

34. The Gibson Report determined that the team role of the consultants (ie both substantive consultants) ‘overwhelmingly caused the most stress for the team’. It also identified inadequate staffing and a sense that staff had been ‘abandoned’ by the new Trust as particular issues. It referred to rumours among staff about the appointment processes for both substantive consultants and stated this had had ‘some considerable impact’ on the climate within the team.

The Report stated:-

“It seems that Dr McBride’s pronounced lack of availability and visibility coupled with Dr Stewart’s ‘critical’ and sometimes ‘tyrannical’ behaviour, casts a cloud of insecurity and dissatisfaction over how the team operates. In the opinion of many of those interviewed, it is the style of both consultants, most notably Dr Stewart’s, that contributes most to the stress and tension within the team.”

35. The claimant has put forward Dr McBride as a comparator in her sex discrimination. Dr McBride was specifically criticised in the Gibson Report. His impact was consistently described by staff as ‘being minimal or negligible’. Dr McBride himself felt he was regarded by his Accident & Emergency team as ‘ineffectual’ and ‘apathetic’. The staff felt he had ‘no presence’ or ‘visibility’ and that he was reluctant to undertake what his team regarded as his core duties within the Accident & Emergency Department. Staff felt he ‘was never there’. A number of doctors and the majority of nurses had experienced difficulty in finding him when he was required and when he was ‘on-call’. It was extremely rare for him to come into the Department. He was variously described by staff within the Department as ‘lazy, uncommitted, apathetic, inoffensive, unavailable, knowledgeable and distracted’. The Report went on to record “The opinion of all other doctors and consultants interviewed appears to be entirely aligned with those of the A&E team.”

36. The claimant was also specifically criticised in the Gibson Report. However these criticisms were prefaced by the following remark:-

“It should be noted that each and every participant in this process regard her as being a first class clinician and that it would be Dr Stewart that they would want to provide their own A&E care in an emergency situation.”

Her behaviour was regarded by other staff within the Accident & Emergency Department, but not by fellow consultants, as having the most negative impact on the Department and team functioning. The report refers to ‘anecdotes’ having been provided in which unidentified members of the team believed that she simply would ‘lose it’, which left people feeling abused, humiliated, harassed, bullied, intimidated and scared. The report stated that most had reported witnessing behaviour which had been directed to others; but stated that a minority of witnesses had reported being the recipient of what they had described as a ‘lambast, tirade or rant’. The report stated that:-

“This degree of volatility appears to have been evident soon after Dr Stewart’s appointment. There is an even divide in opinion that she has become more volatile since her recent time working abroad.” (A reference to her service in Afghanistan.)

37. Mr Gibson felt that there was a reluctance on the part of nurses and junior medical staff to seek input or advice from the claimant. He stated that this had been reported by GP trainees, doctors and nurses. He did not identify which individuals had indicated such a reluctance.

In contrast, Mr Gibson recorded that other consultants in the Erne Hospital had expressed a consistently high opinion of the claimant and that they had pointed out that the claimant had ‘raised the bar’ in A&E and she was working with ‘rather weak team members’ which inevitably caused her stress.

38. Mr Gibson also recorded widespread criticism for what was described as the claimant’s ‘pronounced unwillingness to leave her seat at the nurses station in the Accident & Emergency Department’. He recorded, on the other hand, that consultants from other Departments reported seeing the claimant assist with patients and being much more likely to do so than Dr McBride. It is perhaps noticeable that the suggestion that the claimant was in any way reluctant to treat patients or reluctant to assist junior medical staff was withdrawn at a much later stage in the proceedings after the claimant sought and received data relating to the throughput of patients.

39. Criticism within the Gibson Report was not confined to work pressures within the Accident & Emergency Department or to the behaviour of the two substantive consultants. The report stated:-

“The problems, especially with Dr McBride, are well-known throughout the consultant community involved and it is something of an indictment to his managers that nothing has been done about it. The issues with Dr Stewart’s behaviour are challenging to manage but it equally indicting that nothing tangible has been done to either correct it or to offer training etc to address it.

Dr McBride’s reported disengagement, coupled with Dr Stewart’s ‘volatile behaviour’ has been tolerated for some time.

Until now, corporate leadership has seemed unwilling or powerless to deal with the problem.”

As indicated earlier in this decision, no disciplinary investigations or actions were commenced against any individual in the wider corporate leadership who had had responsibility for Erne Hospital. Furthermore, the tribunal heard no evidence of any performance management measures having been taken in respect of any member of management who had had responsibility for an oversight of the Accident and Emergency Department.

40. At all relevant times, the two substantive consultants in the Accident & Emergency Department, ie the claimant and Dr McBride, were responsible for filling the gaps in the eight doctor rota. They experienced significant difficulty in obtaining appropriate doctors who were willing to work on the Accident & Emergency rota. The claimant and indeed Dr McBride had raised this issue with the respondent’s management. This culminated with particular concerns being expressed by the claimant about filling the rota for a particular Sunday night shift at the end of May 2009. The claimant e-mailed a Ms Lorna Warnock in the respondent’s Human Resources Department and copied that e-mail to both Isobel McClintock the General Manager and to Mr McKinney, the Director of Emergency Care & Medicine, Ms Hillock’s line manager. That e-mail was dated 28 May 2009 and outlined in some detail the difficulties that the claimant was experiencing in finding a doctor who was both willing and available to fill that particular slot in the rota.

41. On 1 June 2009, the claimant was visited by Mr McKinney and Mrs Hillick in her office. The meeting last two and a half hours. The claimant was asked in detail to explain the arrangements for filling the rota and was required to produce relevant documentation. The participants provided two different versions of what had occurred in the course of this meeting. The claimant stated that she had felt intimidated during the meeting and also that she had felt that she was being interrogated. She stated that Mr McKinney and Mrs Hillick had placed their chairs in front of the door of the office and that they had blocked her exit. The claimant also stated that she had asked on more than one occasion for the meeting to stop; that she became distressed but that the meeting had continued regardless. Mr McKinney and Mrs Hillick accepted that the claimant had appeared upset during the meeting and that she had asked for the meeting to stop. They stated, however, that the claimant had, on each occasion when she had asked for the meeting to stop, ‘continued talking’. They denied that the meeting had been an interrogation or that it had been oppressive. The meeting ended with their promise to bring forward a recruitment competition in an attempt to fill the vacant slots in the rota.

42. The tribunal accepts that different people attending the same meeting can legitimately come away with different perceptions of what had occurred in the course of that meeting. However, it is difficult for the tribunal to understand why a meeting of two and a half hours was necessary in circumstances where the vast majority of the posts on the rota were clearly vacant and equally difficult to understand why the meeting continued when the claimant had made clear, on more than one occasion, that she was upset and had asked for the meeting to stop. It is also not immediately clear why the staff rota and the use of locums was only seen as an issue to be addressed by the claimant rather than an issue to be addressed jointly by the claimant with the other substantive A&E consultant, Dr McBride, who was also responsible for filling the rota when he was on duty.

43. The claimant had put her concerns in relation to the use of locums for the rota in a further e-mail dated the same day as the meeting, ie 1 June 2009. Mrs Hillick and Mr McKinney received that e-mail later the same day, after the meeting had concluded. It set out in detail the difficulties faced by the consultants in obtaining locum cover for the rota. It stated:-

“At present we have two whole time equivalent junior grade doctors employed, one of whom as far as I am aware has tendered his resignation. In addition we also have an associate specialist who provides 16 hours of cover in the Emergency Department and he is currently on long-term sick leave. Hence we are entirely reliant on locums providing the extra cover required and Lorna Warnock in Personnel, the Emergency Department’s Secretary, Larry McGrath, my two colleagues and I have been working tirelessly to find locum doctors to provide cover for the Department. In addition we have also had several rounds of interviews for more permanent staff but have not been successful.”

The reference to ‘my two colleagues and I’ was a reference to Dr McBride and to Dr Rahman who was acting-up as a consultant to assist the claimant and Dr McBride in the A&E Department. The e-mail described in detail the particular difficulties in relation to the Sunday night shift and the difficulties generally in obtaining locums. It concluded:-

“Given the increase in our workload and the nature of our case mix it is becoming impossible to provide adequate cover for the Department in our current situation and it is becoming increasingly stressful for those of us trying to provide an adequate service. I would be very grateful if you could give this matter urgent attention and perhaps discuss with us the plausibility of some solutions we have considered.”

It is notable that the claimant’s e-mail had not suggested that difficulties with the rota were a matter for discussion with the claimant alone. The e-mail suggested discussion ‘with us’, which in the context of the e-mail must have referred to the two substantive consultants and the acting up consultant in the A&E Department.

44. Following the meeting on 1 June 2009, the claimant sent a further e-mail to Mr McKinney to express her concerns about what had occurred during the meeting. She stated:-

“I believe it is important for me to bring to your attention how I have been left feeling and reiterate some of the feelings I raised during this meeting. While I fully accept your statement that this meeting was not meant to feel like an interrogation and that you were there to help and offer support, unfortunately some of the statements made and questions asked made me feel quite uncomfortable. In relation made to [sic] the efforts made to procure locum doctors to provide appropriate cover for the Emergency Department, I felt that it was being implied that I had not made any effort. On several occasions it was also pointed out to me that as the consultant it was my responsibility to find locum doctors and this was despite my explaining that I had reached the limitations of my ability to do this. My understanding of the comments was that I should not be contacting the managers in relation to this issue as I was putting them under pressure and that ultimately it was my job to sort the problem out.”

The letter continued:-

“I therefore felt that some of the questions posed to me were unreasonable and accusatory. I had an overall feeling of blame being apportioned and on one or two occasions felt the comments to be a little threatening and somewhat intimidating.”

45. On 3 June 2009, Mrs Hillick met with Sister McCaffrey and some of the other staff in the Accident & Emergency Department to explain that she had commissioned the Gibson Report. Dr McBride and the claimant were not present at the meeting. Dr McBride was not on duty and the claimant could not leave the Accident & Emergency Department as she was the only doctor on duty. The meeting went ahead in the absence of the two consultants, ie in the absence of the two most senior people in the Department. Later that afternoon, Mrs Hillick separately advised the claimant of the Gibson Report being commissioned.

46. The Gibson Report issued on 15 July 2009. On 21 July 2009, the claimant was summoned to a meeting with Dr Kilgallen and Mrs Hillick. Dr Kilgallen was the medical director responsible for professional standards among, inter alia, consultants in the Erne Hospital, and had been in post since January 2007. The claimant had not been given any prior notice of the purpose of this meeting and had assumed that the meeting was to enable her to sign the necessary forms for the forthcoming recruitment exercise which was to be an attempt, and not for the first time, to fill the gaps in the junior doctor rota. At that meeting the claimant was excluded, ie suspended from the workplace. Dr McBride was not excluded from the workplace. This occurred within one week of the publication of the Gibson Report.

47. Dr Kilgallen stated in evidence that she felt that the issue of staff being afraid to approach the claimant for advice constituted a real risk in any clinical environment, and particularly in an A&E Department. That risk necessitated, in Dr Kilgallen’s view, the immediate exclusion of the claimant. In contrast, Dr Kilgallen felt that the behaviour attributed to Dr McBride ‘could be managed’ in the workplace. She stated that she had felt a strong motivation not to exclude a doctor if patient safety could be assured. When asked by the tribunal to describe the arrangements which she had said had been put in place to ‘manage’ Dr McBride, Dr Kilgallen stated that she had discussed the issue with Mr McKinney, and had asked him to ensure that Dr McBride was available to staff within the Department and to ensure that any concerns were brought to his attention. The tribunal directed that the respondent produce any documents or correspondence relating to the monitoring or supervision of Dr McBride following the publication of the Gibson Report. Dr McBride was the named comparator in the claimant’s sex discrimination claim and details of how he was treated following the Gibson Report were clearly potentially relevant to that claim. Relevant documentation was therefore discoverable. No such documentation or correspondence was produced. No clear evidence was produced of any structured or formal system of monitoring or supervising Dr McBride in the period following the substantial criticisms of his conduct in the Gibson Report. The tribunal can only conclude that no formal or structured system of either supervision or monitoring had been put in place for Dr McBride. This was despite the trenchant criticism of Dr McBride which had been prominent in the Gibson Report and the prompt exclusion of the claimant.

48. On 22 July 2009, Dr Kilgallen wrote formally to the claimant confirming her exclusion from work and advising her that her behaviour towards colleagues would be further investigated.

Dr McBride was similarly advised that he would be investigated in relation to the matters raised in the Gibson Report in connection with his performance as a consultant. However, he still was not excluded. The respondent’s evidence was that the decision to exclude the claimant had been taken on the ground of patient safety. Dr Kilgallen was not able to satisfactory explain why she took the view that a consultant (the claimant) who was difficult for junior medical staff to approach because they felt they might be shouted at, exposed to sarcasm or asked detailed questions about their actions, posed a greater risk to patient safety than a consultant (Dr McBride) who could not be found by junior medical staff and who was described as lazy, uncommitted, apathetic and unavailable. It seems to this tribunal that the risk to patient safety in either case was substantially the same, ie that junior staff might not receive appropriate support and advice either because they were deterred from approaching the claimant or were unable to get assistance from Dr McBride. Furthermore, there was no record of any patient having been adversely affected by the claimant’s alleged behaviour.

49. On 29 July 2009, the claimant again met with Dr Kilgallen and Mrs Hillick and her formal exclusion from work was again confirmed. The claimant was accompanied at that meeting by Mr Hynds, her BMA representative. Mr Hynds raised concerns, in particular, about Mrs Hillick’s continued participation in the investigation process.

50. The separate investigations into the claimant and into Dr Samuel McBride were both conducted by Dr Geoff Nesbitt, a consultant anaesthetist employed in Altnagelvin Hospital. He was assisted by Mrs Hillick in relation to the investigation into the claimant and by another employee of the respondent in relation to the investigation into Dr McBride.

51. On 28 September 2009, Mr Hynds, the claimant’s BMA representative, wrote to the respondent to reinforce his previously expressed concerns about the involvement of Mrs Hillick in the investigation into the claimant. He pointed out that the Gibson Report had not only been critical of the two consultants; it had also been critical of the Trust management. He felt that there was a possibility that Mrs Hillick would have to provide a statement in relation to this investigation and he further felt that there had been ongoing disagreements between Mrs Hillick and the claimant in relation to staffing. He did not believe that Mrs Hillick was an appropriate person to be involved in the disciplinary investigation.

52. On 2 October 2009, the respondent’s Director of Human Resources wrote back to Mr Hynds rejecting his concerns and confirming that Mrs Hillick would continue to assist in the investigation of the claimant.

53. On 6 October 2009, there was a meeting between the claimant, Dr Nesbitt and Mrs Hillick. The claimant was again represented by Mr Hynds. The claimant was formally advised that as a result of the Gibson Report, the respondent had initiated a disciplinary investigation against her and was advised that Dr Kilgallen was the Case Manager. Mr Hynds again raised his concerns about Mrs Hillick’s participation in the investigation and those concerns were not accepted by Dr Nesbitt.

54. On 9 October 2009, the claimant raised a grievance in respect of Mrs Hillick’s involvement in the investigation.

55. On 14 December 2009, the claimant attended an investigation meeting with Dr Nesbitt.

56. On 12 March 2010, the claimant provided a written submission to the investigation team.

57. On 24 March 2010, Dr Nesbitt completed his investigation report and submitted it to the respondent.

It is clear that the Nesbitt Report at Paragraph 4.2 was inaccurate in two respects. Firstly, the conversation between Sister McCaffrey and Mrs Hillick occurred on 22 May 2009 rather than in June 2009. Secondly, Mrs Hillick only spoke to one member of the A&E staff, ie Sister McCaffrey, before commissioning the Gibson Report. Since Mrs Hillick assisted Dr Nesbitt in the preparation of the report these errors are surprising.

58. With his report, Dr Nesbitt attached notes of the evidence given to him by particular witnesses:-

(i) Staff Nurse Forde felt that the claimant was unprofessional in the way she approached people. She would roar at them and intimidate them. ‘If the staff knew she was coming in they could have to make sure that everything was right, even though everything was run military-style, and commented that Dr Stewart was more suited to the military’.

(ii) Sister McMullan complained of ‘sarcastic comments’ following a staff meeting on 19 March 2009 and of the claimant asking staff on one occasion ‘who is co-ordinating this Department today?’. She also complained of criticism from the claimant in front of others and stated that she thought other staff were afraid of the claimant and afraid of being ‘lambasted’ by her. She said she was afraid of the claimant.

In the detailed record of Sister McMullan’s interview on 14 October 2009, Sister McMullan described the claimant ‘as very loud, unprofessional and sometimes aggressive’. She also stated that the claimant ‘may be legitimate in her complaints about staff but did not agree with her manner’.

Again in the detailed notes, Sister McMullan described an incident where she had been upset and the claimant had put ‘her arm around her and took her for a coffee’. However, Sister McMullan stated she “felt scarred mentally” because the claimant “did not want to hear her problems”.

She went on to state that “Dr Stewart is an excellent clinician and has loads to give” and “when Dr Stewart had to go off work (following her exclusion on 21 July 2009) everyone was feeling bad, they did not set out for this to happen”.

(iii) Staff Nurse Hazlett advised that sometimes the claimant’s behaviour was ‘inappropriate’ but she got on well with her up to a point. She described the claimant ‘going into a rant’ and stating that she ‘would show her’ in relation to the meeting that Sister McMullan had described. She felt that the claimant had picked on Sister McMullan after that incident but was not able to provide any specific examples. Nevertheless she stated that she had a rapport with the claimant.

She was directly asked by Dr Nesbitt if she was afraid of the claimant and said she was at times ‘uncomfortable’.

Things were different ‘when the claimant returned from Afghanistan’. Staff Nurse Hazlett stated that she had not been happy discussing the claimant with Mr Gibson. She felt the investigation was ‘a witch hunt to get rid of the claimant’.

She complained of a particular incident in which the claimant had become angry at the discharge of a patient and ‘kept pointing in her face’. Decisions in relation to the discharge of a patient were properly decisions to be made by a consultant. In this instance, Staff Nurse Hazlett had made the decision.

Staff Nurse Hazlett told Dr Nesbitt that she felt ‘awful talking about Dr Stewart but commented that her attitude has been wrong, ‘she has a military style which is not right for the Department’.

(iv) Staff Nurse McGirr said the claimant could be nice one day and totally different the next day. She said that on 31 March 2009, the claimant had seen a patient with a head injury and had asked that the patient stay in the Department for observation. The patient had subsequently been discharged and the claimant had then questioned Staff Nurse McGirr as to whether she thought she was fit to discharge patients and had then followed her into a room and kept pointing in her face. She stated she ended up in tears.

She gave two examples of when the claimant had shouted at her. Her view was that other staff were afraid of approaching her and that the claimant ‘communicated the wrong way with people’.

(v) Sister McCaffrey told Dr Nesbitt that the claimant’s behaviour in front of her was fine and that she witnessed unacceptable behaviour very rarely. However she stated that other staff would complain to her about the claimant’s behaviour. Doctors were afraid of approaching her for advice because they would be closely questioned by the claimant about what they had done before advice was given and that they felt undermined. She stated that a Dr Annu had told her ‘he had nightmares’ and suggested he left the Erne Hospital because of that. That evidence conflicts with that given by Linda Saunderson, the Assistant Director of Emergency Medicine), (see later) but this important point does not appear to have been investigated further.

Sister McCaffrey felt that eight doctors had left or had not stayed on at Erne Hospital because of the claimant. She named, in particular, three locums and a Senior House Officer. She did not state that any doctor had actually told her that he/she left Erne Hospital because of the claimant.

She stated that the claimant did not care about whether there was a doctor available to cover the junior doctor rota; the claimant did not regard this as her responsibility. This particular evidence would have been difficult to reconcile with the claimant’s e-mails in relation to locum staffing, which have been discussed earlier in this decision.

(vi) Sister McCaffrey stated that the claimant had not got involved with a patient who had been in the Department for some hours with a liver bleed. She claimed that when the claimant had later been asked why she had not seen the patient, the claimant had said that Dr Rahman had been there and nobody had consulted with her. Sister McCaffrey claimed that the nurses and doctors had a fear of consulting with the claimant. She stated that, in her view, the claimant had been on her best behaviour when she (Sister McCaffrey) had been on the floor. She stated that a Sister Curran had been shouted at by the claimant.

(vii) Sister Curran stated that the claimant had been blunt to doctors and nurses. She described various incidents. On one occasion Sister Curran had wrongly handed over keys to a doctor. The keys should only have been handed over to a nurse. She reported that the claimant had then ‘ranted and raved at her’. Sister Curran advised that there had been an altercation between the claimant and a Dr Mohammed and that the claimant had asked Dr Mohammed ‘are you arguing with me because I am a woman?’.

Sister Curran did not feel patient safety was an issue.

(vii) Mr Lawrence McGrath, the general manager for A&E, was generally positive of his assessment of the claimant. He felt that she was very supportive of nursing staff in the Erne Hospital and that nursing staff felt that they could also approach the claimant and ask questions but sometime they received a negative response. In relation to junior doctors, her approach depended on how they practiced. If she felt they were doing something wrong she would ‘mostly’ have supported them and did some quick training whereas at other times she could make comments and undermine them in their role.

He described an incident in which the claimant had corrected a junior doctor who was bandaging a patient in a certain way. The junior doctor had become upset. Mr McGrath had not witnessed enough to conclude that the claimant had harassed the doctor who he described as ‘emotionally fragile’.

He had been told that Sister McMullan had felt stressed by being undermined by the claimant. However, Sister McMullan had told Sister McCaffrey that she herself had been partly to blame. Staff had been informed that if they felt bullied he would deal with it. However, this was the only complaint that had come to him. While the claimant had mood swings, he did not consider that she had a negative impact on the Department. He did not know if there were any health issues that caused her to behave as she did.

Mr McGrath did not feel there were any safety issues.

(ix) Dr Morrison a GP trainee who worked in the A&E Department stated that he had not been ridiculed or bullied by the claimant and had not witnessed it happening to anyone else. However, he did hear the claimant talk about other medical staff, often within their hearing, in a way that would have been upsetting. He did not consider that her behaviour had a negative impact on patient safety.

(x) Linda Sanderson, the Assistant Director of Emergency Medicine, stated that she had not been aware of any problems in relation to the claimant in Erne Hospital. She stated that the claimant had had a difficult time in Afghanistan and described conversations that she had had with the claimant on her return.

She had not witnessed the claimant behave inappropriately to colleagues.

Dr Annu had left to look after his mother and Ms Sanderson did not recall any doctor leaving because of the claimant.

She confirmed that the claimant had taken over the locum rotas from Dr McBride and had done her best with them.

(xi) Mr McKinney, the Clinical Director at Altnagelvin Hospital, confirmed that the claimant was an excellent clinician. He had never received a complaint about her. His perception was that she was frustrated at the lack of ability in the A&E team and that locums may not have been up to the abilities expected.

(xii) Dr Rahman stated that the junior doctors were terrified of the claimant and that if they made a mistake she ‘would rip them through’. He gave one example; a Dr Lapinsky who he said had told him he had been shouted at by the claimant. Dr Nesbitt did not interview Dr Lapinsky to verify this hearsay account.

Dr Rahman stated that many good doctors had left because of the claimant. He went on, later in his interview, to say eight doctors had left because of the claimant. He identified, in particular, a Dr Kreest who is said to now be in Manchester. There is no record of that doctor (or any other doctor alleged to have left) being contacted by Dr Nesbitt. Dr Rahman stated that he had seen as many patients as he could and suggested that the claimant had not done so. He further stated that the claimant ‘misuses him and know that he will do all the work in the Department’.

That statement, in particular, was not consistent with the ‘symphony’ records of patient throughput obtained later by the claimant.

He described the ‘coffee gate’ incident in which he alleged the claimant and Dr McBride had ignored a major trauma alert and had walked together into Enniskillen ‘for a coffee’. That allegation was later withdrawn by the respondent, at the appeal stage, and was accepted to be baseless.

(xiii) Mrs Holden, the Night Service Manager, stated that the claimant was ‘a bully on a daily basis who was more suitable to a boot camp in Afghanistan’. When the claimant returned from Afghanistan ‘she was more bolshie and more militarian’. After Afghanistan she ‘had a military stance which she tried to impose on the Department’. Mrs Holden was equally forthright in relation to Dr McBride. He, and the claimant, were ‘not fit for purpose’. Dr McBride’s ‘life is microbiology where he spent years working and she could not understand why he moved to microbiology’.

(xiv) Sister McCaffrey and Sister McMullan told the investigation team that in their view the claimant’s behaviour contributed to their absence in work. Both confirmed that they had not made that claim at the relevant time. They also stated they would have concerns about their ability to remain in the Department if the claimant were ever to return. That was never put to the test.

(xv) The investigation report recorded that staff members had described the claimant’s behaviour as aggressive, bullying and unprofessional. It recorded that Dr Rahman stated that in his opinion this had led to eight staff leaving the hospital. Staff Nurse Holden advised that she believed that certain doctors had refused to provide locum cover if the claimant was on call and Sister McCaffrey also was of that opinion.

The eight doctors named by Dr Rahman do not appear to have been identified, were not contacted by Dr Nesbitt and were not asked to explain why they left Erne Hospital. It is worth recording at this point that the respondent’s case to the tribunal was that doctors had ‘left’ because of the claimant. It emerged later during the tribunal hearing that many if not all of these instances were doctors whose contracts had simply expired. A serious allegation which clearly influenced the respondent’s attitude to the claimant and which could and did have a significant impact on the claimant’s professional career was not, apparently, properly investigated.

59. A particular issue dealt with in both the Gibson and Nesbitt Report was the allegation that the claimant had been unwilling to assist junior medical staff. Dr Nesbitt stated that he had been informed by witnesses that there was sometimes a reluctance by the claimant to assist with treating patients with minor injuries and also medical patients. He stated that the views expressed by witnesses was that there was a perception by the claimant that she was only there to be consulted and not to be proactive in treating patients. He concluded that this was likely to be the case and he had concerns that this had the potential to reduce or delay patient care and compromise safety. He commented that staff members have described ‘how Dr Stewart refused to see patients’.

60. Dr Nesbitt concluded his report by stating:-

“During my investigation I heard a range of allegations, all of which have been denied by Dr Stewart. In analysing the information it appears that Dr Stewart does not consider that her behaviour has had a negative impact on the Department. The volume and consistency of information from members of staff leads me to the view that events they describe are a plausible account.

Due to concerns about Dr Stewart’s behaviour, I checked the reason for leaving a former consultant post in Causeway Trust (now Northern Health & Social Care Trust). They advised that she had been dismissed following a disciplinary process relating to her behaviour at work.

In view of this, and Dr Stewart’s lack of insight into how her behaviour impacts on colleagues I believe that there is a strong possibility of recurrence.

Clearly there has been a difficulty in communication between Dr Stewart and staff members in the A&E Department, which has led to low morale and the potential for sub-standard care to patients. There is no evidence that any specific patient came to any harm, only that the potential for this to happen does exist. There is no doubt that Dr Stewart is a capable and experienced clinician, but repeatedly her interaction with colleagues is less than satisfactory. Staff members who have been affected by this have not documented the events accurately and had not previously mentioned concerns to managers. Nevertheless there is a consistency to these concerns and it is clear that their experience has been real and detrimental.”

61. The tribunal has concerns about the Nesbitt Report:-

(i) The evidence in favour of the claimant appears to have been given little weight. Sister Hazlett’s description of the process as a witch hunt to get rid of the claimant was particularly disturbing. References to Afghanistan, particularly from Sister Hazlett and Linda Sanderson, were not followed up. The fact that the claimant did not press this point is not a complete answer. The Gibson Report had already suggested that 50% of the Department’s staff felt the claimant’s interaction with other staff had deteriorated after her return from Afghanistan. A reasonable employer conducting a reasonable investigation would have specifically addressed this matter.

(ii) Dr Nesbitt appears to have accepted, at face value, that several doctors had left because of the claimant. This would have been a simple matter to check by telephone or e-mail. It cannot have been the case that all the doctors who were thought to have left because of the claimant were incapable of being contacted. It appears that none of those doctors were asked to give their version of events.

(iii) The fact that Mr McGrath had received only one relatively half-hearted complaint, in circumstances where Sister McMullan had told Sister McCaffrey that she had been partly to blame, appears to have been brushed aside. If the claimant had been the tyrannical bully described by some, but by no means all, of the witnesses, why had no formal complaints been made at any stage to Mr McGrath, Sister McCaffrey, or to anyone else in the respondent’s management structure ?

(iv) Dr Nesbitt did not check the ‘Symphony’ records. These records did not record every single interaction between patients and doctors but were an obvious source of evidence in assessing the weight to be attached to complaints about the claimant and were disregarded.

(v) Sister McMullan’s acceptance, according to Mr McGrath, that she had been partly to blame and Sister McCaffrey’s statement in the separate enquiry into Dr McBride that Dr McBride had caused her sick absence, at least to some extent, was also not given appropriate weight.

(vi) There appears to have been a selective analysis of the evidence and perhaps a rush to judgment.

(vii) In terms of the recommendations made in respect of the claimant and, separately, in respect of Dr McBride, Dr Nesbitt, an anaesthetist, gave his views that remedial action would not work for the claimant; ‘people do not change’. He disregarded the statement of Mr Gibson, who was after all a psychologist, to the effect (see Paragraph 40. above) that:-

“The issues with Dr Stewart’s behaviour are challenging to manage but it is equally indicting that nothing tangible has been done to either correct it or to offer training etc to address it.”

Mr Gibson did not suggest, as the expert in this area, that training or some other form of intervention in relation to the claimant would have been a waste of time. It is entirely unclear how Dr Nesbitt arrived at his robust view in relation to the claimant and even more unclear how he reached a different view in relation to Dr McBride.

62. On 4 May 2010, Dr Kilgallen, Mrs Shirley Young of the HR Department, and Mr McKinney held a case review conference and determined that the claimant should be subject to the disciplinary procedure. At that conference, Mr McKinney discussed what he had heard in relation to the claimant’s previous dismissal from the Causeway Trust.

63. On 4 May 2010, Dr Kilgallen, as medical director, wrote to the claimant informing her that a disciplinary charge would be put to her.

64. On 14 May 2010, Dr Nesbitt produced his separate investigation report into Dr McBride. That report dealt with various reports from staff that Dr McBride was difficult to contact and reluctant to assist junior medical staff. Staff Nurse Love also referred to an incident in which she stated that Dr McBride had shouted at a Dr Lapavsky and thrown a pen at him. Staff Nurse Holden stated (in general) that Dr McBride had reduced Dr Lapavsky to tears and that the doctor had been a wreck when he left the Trust. She stated that Dr McBride had shouted at him, kicked bins and confirmed that he had thrown a pen at him. Staff Holden stated that staff seeking a consultant referral and who rang Dr McBride would get a ‘mouthful’. This reported behaviour did not lead, in Dr McBride’s case, to a decision to invoke the disciplinary procedure.

Dr Rahman again gave evidence in relation to an incident which in the course of the tribunal hearing became known as ‘coffee gate’. He stated that both Dr McBride and the claimant had left the hospital to go into town for coffee when a major trauma alert had been given in relation to a road traffic accident in Belleek. Dr Rahman stated that both consultants had failed to check to see if he needed an extra hand as there had been two patients involved in the road traffic accident who needed CT scans. Dr Rahman stated that, in the event, he did not have any difficulty dealing with the patients.

As has been noted previously, it is perhaps significant that his allegation later proved to have no substance.

Staff Nurse McGirr advised, in particular, that locum doctors would try to make decisions on their own rather then contact Dr McBride for advice because it would place more stress on them.

65. Whilst Dr Nesbitt had made no recommendation in relation to the claimant, he made the following recommendation in relation to Dr McBride:-

“A programme of mentoring and training for Dr McBride would be required over a sustained time period to ensure that any improvements continue. I acknowledge that Dr McBride has been working this way for some time and this has not been appropriately addressed by management. Now that the matter is being addressed Dr McBride’s practice in A&E was unacceptable as a consultant with a key leadership role and cannot continue, however I believe that with a period of mentoring and ongoing monitoring Dr McBride could perform an acceptable level of practice.”

66. In evidence to the tribunal, Dr Nesbitt was asked why he had not suggested a programme of mentoring or supervision for the claimant. Dr Nesbitt stated, emphatically, that he believed such courses did exist but that he had no faith in them and believed that a person’s behaviour could not improve. He did not provide any satisfactory explanation as to why Dr McBride’s behaviour was capable of improvement but the claimant’s behaviour was not.

67. The recommendation at the end of the Nesbitt Report into Dr McBride, that a programme of mentoring and supervision should be put in place to assist Dr McBride was, according to the evidence of the respondent, accepted and put into place. Dr Kilgallen was the medical director who was responsible for professional standards in the Erne Hospital. She therefore had direct responsibility in this area. However, she was not able to explain to the tribunal how that mentoring and supervision programme had operated. She was unable to say in what way Dr McBride had been supervised, in what way he was mentored, at what frequency reports or checks were made or how or by whom those reports or checks were made. As indicated above, the respondent was directed to provide documentation to the tribunal in relation to that supervision and mentoring exercise. The claimant and the tribunal were not provided with any such documentation. On re-examination, Dr Kilgallen agreed with Mr Hamill that she had ‘delegated’ that function. In the opinion of this tribunal, it is extraordinary that the medical director, with the responsibility for medical professional standards, and in the context of the Gibson Report in particular, was apparently unaware of the detail of the mentoring and supervision programme for Dr McBride. The only possible conclusion that can be drawn is that the mentoring and supervision programme for Dr McBride had not existed in any meaningful way.

68. Dr McBride continued to work on for the Trust as a consultant in the A&E Department for some four months after the Nesbitt Report before going on sick leave and eventually resigning.

69. The claimant attended a disciplinary hearing before a two person panel on 29 June 2010. The panel was chaired by Mr Joe Lusby, the Deputy Chief Executive of the respondent. The other panel member was Ms Nuala Sheerin, the respondent’s Director of Human Resources. The claimant was represented by Mr George Hynds of BMA.

70. The charges before the disciplinary panel were as follows:-

“You have demonstrated an unacceptable pattern of behaviour and failed to provide appropriate support to your colleagues in the A&E team which created serious dysfunction to the effective running of the service which potentially could have compromised standards of care or patients safety.

By your conduct you have failed to maintain the trust and confidence required in your role of A&E consultant.”

71. At the hearing, Dr Kilgallen read a prepared written statement which acknowledged that there were a number of vacant posts in the A&E Department. She stated that in June 2009, Mrs Hillick became aware of ‘relationship behavioural issues’ in the A&E team and that Mr Stephen Gibson, an independent occupational psychologist, had been commissioned to carry out a review and to make recommendations as to the way forward. She referred to the Gibson Report which was attached to the papers before the panel and stated that the recommendations in Mr Gibson’s report included the need for management to urgently address serious issues consistently raised by the claimant and another A&E consultant.

She outlined the process followed by the investigation team headed by Dr Nesbitt and the exclusion of the claimant from work. She stated that following Dr Nesbitt’s report she had decided that there was a case of misconduct which should be considered by a disciplinary panel.

She stated that during the course of the investigation, 14 members of staff had been interviewed. They consisted of eight nursing staff, two doctors and four managers. She invited only four of these witnesses to the disciplinary hearing. None of these witnesses was supportive of the claimant. Dr Kilgallen, in her evidence, stated that her role as the presenting officer, both at the disciplinary and appeal hearings, was to present all the facts and to let the witnesses give their evidence.

72. Sister McCaffrey was the first witness. She was asked by Dr Kilgallen whether she was aware there were problems between staff and the claimant. Sister McCaffrey stated that she had been informed by some members of staff that there had been problems. She was asked if staff had ever complained to her following an incident with the claimant. She stated that a ‘couple of incidents’ had been brought to her attention. However, she had no direct evidence of any such incident.

She reported that Sister Curran had reported to her that she had been involved in an altercation with the claimant and that the claimant had ‘roared in Sister Curran’s face’. She stated that Sister Curran felt ‘intimidated’. She stated that following this report she had left her administrative duties for a week and had worked solely on the ward. However, she had not witnessed anything untoward during her time on the ward.

73. Dr Kilgallen then stated at the disciplinary hearing that it had been during this week, after Sister McCaffrey had left the ward that evening that the claimant had shouted at nurses. Dr Kilgallen then asked Sister McCaffrey if she had spoken to the nurses about this incident, Sister McCaffrey stated that she had met Staff Nurse Williamson in the shopping centre later that evening and had been informed that there had been an incident and that the claimant had ‘roared’ at Staff Nurse Williamson about letting a patient go home. Staff Nurse Williamson had asked Sister McCaffrey not to speak to the claimant about the incident as she intended to deal with it herself.

74. Dr Kilgallen asked Sister McCaffrey whether the claimant saw patients willingly when she was on duty. Sister McCaffrey stated that there was a culture within Erne Hospital that consultants were there to be consulted but they would not ‘roll up their sleeves’.

75. Sister McCaffrey confirmed that junior doctor cover was a serious issue. She stated that the consultants did not take ownership of the issue. Sister McCaffrey stated that it was the claimant’s practice to ‘sit at the nurses station and observe’.

76. Dr Kilgallen (apparently moving beyond the role of presenting officer and giving evidence) then said to the panel that Sister McCaffrey had advised her that doctors felt intimidated by the claimant and asked Sister McCaffrey to describe what she had witnessed between the claimant and other doctors. Sister McCaffrey advised she did not witness anything. Dr Kilgallen then enquired about Sister McCaffrey’s relationship with the claimant. Sister McCaffrey thought they had a good relationship. However, she felt that the claimant had a negative impact on the Department. She stated that she had had to remove herself from the environment to look at this issue. She felt there was a real fear with regard to the claimant.

77. Dr Kilgallen then told the two person panel that Sister McCaffrey had advised the investigation team that she considered that the claimant was playing ‘mind games’ and asked Sister McCaffrey to explain what she had meant by this. Sister McCaffrey advised that she had only realised this after she had removed herself from work (on sick leave) and that it was ‘like a revelation’.

78. Dr Kilgallen then asked Sister McCaffrey whether there were implications for patients and services as a result of the claimant’s behaviour. Sister McCaffrey stated that this was a difficult question to answer; she felt there was a sense of fear amongst staff and that the claimant was unapproachable.

79. Ms Sheerin, who was part of the two person disciplinary panel, intervened at one point to state that “there was a perception that when Sister McCaffrey went off on sick leave her staff were mistreated”. It does not seem appropriate for a member of a disciplinary panel to give evidence or to indicate that part of the subject matter had been prejudged. Sister McCaffrey replied to this intervention by stating that it took her “a good week being off work and lot of time in the gym to realise that Dr Stewart’s behaviour when she (Sister McCaffrey) was off duty was destroying her team”. This statement appears to have been accepted uncritically by the disciplinary panel. If Sister McCaffrey had not come to any conclusions about the claimant when she had actually been at work and in contact with her colleagues, it is difficult to understand Sister McCaffrey’s evidence that a ‘revelation’ had occurred to her only after a period off work and, apparently, after attending a gym.

80. The second witness called by Dr Kilgallen was Sister McMullan. Sister McMullan was also employed as a sister in the A&E Department. She was asked by Dr Kilgallen whether she had witnessed any unacceptable behaviour from the claimant and how she had dealt with it. Sister McMullan stated that she had witnessed such behaviour.

She stated that her relationship with the claimant had deteriorated after she had made a comment at a staff meeting which the claimant had taken personally. She referred to one incident where the claimant had ‘told her off’. She also complained of general comments made by the claimant such as ‘look at all the bank staff on’ or ‘who is co-ordinating this Department’ when Sister McMullan was in charge. Sister McMullan also complained of an incident in May 2009 where she stated that she (Sister McMullan) had not been trained on a particular machine and was afraid that she might have to use the machine in front of the claimant.

Sister McMullan stated that she did not personally witness any difficulties with getting the claimant to see patients if there was no junior doctor on duty. She stated that the claimant would have put minor incidents through very quickly but that her manner was ‘very cross’.

Sister McMullan referred to an incident involving Dr Mohammed; but no date for this incident appears to have been given. She stated that the claimant had asked Dr Mohammed if he was arguing with her because she was a woman. No complaint had been made at the time, or apparently since, by Dr Mohammed.

81. Dr Kilgallen then asked Sister McMullan how long she had felt ‘frightened in the workplace’. While disciplinary panels are not criminal courts and do not generally exclude leading questions, the role undertaken by Dr Kilgallen at the disciplinary hearing does seem to have been less than neutral. Sister McMullan replied that she had felt that way since the staff meeting in March 2009.

No formal complaint or grievance had been raised by Sister McMullan at any stage during this period and no issue had been raised by her union on her behalf.

82. Dr Kilgallen then asked Sister McMullan to explain about an incident where a patient had died. Sister McMullan stated that the claimant had commented that she ‘did not kill the patient’. Sister McMullan confirmed that the claimant had been in the Department when the patient had been treated by a junior doctor. Sister McMullan stated that the patient should never have been allowed home. The relevance of this issue to a disciplinary panel which was not considering medical outcomes was unclear.

83. Mr Lusby referred to a part of Sister McMullan’s statement where Sister McMullan stated she could not function with the claimant again and had sought a move out of the A&E Department. Sister McMullan stated that that statement had been made nearly a year ago and that her feelings were ‘rife’, that she had been tired, weary and thought it would have been easier to get out. She also stated that there had been a number of pressures including the numbers of doctors who had worked in the Department, although she had gained good experience working with a range of doctors.

84. The third witness called by Dr Kilgallen was Sister Curran. Sister Curran complained, in particular, of one incident where the claimant had criticised her for not moving a patient as instructed. Sister Curran stated that this criticism was made in full view of the nurses station; that she was not given a chance to offer an explanation.

She also referred to another incident where she had been asked for keys and had assumed the request had come from another nurse. The request had in fact been from a doctor and the keys in question, to the drugs cabinet, were only permitted to be given to a nurse. She stated that the claimant came over and ‘gave off to her’ for giving the keys to a doctor. Sister Curran did not deny that she had been in the wrong in this incident.

85. In general, Sister Curran stated that ‘everyone was stressed out with the claimant shouting at doctors’. However, the specific incidents, dates, times and details were not given. She confirmed that the claimant had never refused to see one of her patients.

86. Dr Kilgallen asked Sister Curran to deal with an issue involving Dr Chiquito. She stated that the claimant had stood at the nurses station and had shouted that she wanted the Department cleared by 11 o’clock as there would be a doctor arriving from Altnagelvin. Sister Curran emphasised that the Department had been very busy at the time. Dr Chiquito had not made any complaint or raised any issue about this at the time or subsequently.

87. The fourth witness called was Dr Rahman who was acting up as consultant during the relevant period. Dr Rahman had no direct evidence to offer the disciplinary panel.

He stated that he had immense admiration for the claimant’s clinical and teaching knowledge and considered her to be the best consultant. He stated that as a clinician and teacher he had never ‘found a better one than the claimant’.

He stated that nurses and junior doctors came to him and expressed their frustrations and helplessness at the situation in the A&E Department. He stated that a number of regular doctors left Enniskillen as they were unhappy with how ‘the consultants’, ie ‘consultants’ in the plural, were dealing with them and stated that a locum had left because he found the claimant difficult to work with. He stated that many junior doctors were terrified of the claimant. He stated that the claimant would speak harshly or roughly to doctors who had made a mistake but he was unable to provide details of a specific incident.

The record of the disciplinary panel records that:-

“In his opinion, he thought that Dr Stewart had a good relationship with the hospital doctors. He described Dr Stewart as being excellent as a doctor however the atmosphere around her was tense.”

Dr Rahman also stated that the claimant would not have helped to deal with patients if there were no junior doctors on. He stated that although he was ‘more qualified than the claimant’ he worked in the hospital as a staff grade and his job was on the floor.

88. Dr Rahman stated specifically that eight doctors had left because of the claimant’s behaviour. However, he confirmed that he had not witnessed her behaviour towards these doctors. When asked whether any of the doctors had advised that they were leaving directly because of the claimant’s behaviour, Dr Rahman stated that Dr Murthy had specifically told him that if the claimant had not been working in the Erne he would have remained there. He also stated that Dr Anota and Dr Sohill had also informed him that the claimant was the reason for their move.

These three doctors were not asked to give evidence or to assist the disciplinary panel. In a matter of this importance, it seems extraordinary that none of the doctors who left during the relevant period was contacted to confirm or deny these allegations.

89. In relation to ‘coffee gate’, Dr Rahman stated that the claimant and Dr McBride had left the hospital for coffee when a RTA was on its way to the A&E Department. He said that he had been told by Sister McCaffrey that they had gone for coffee.

As indicated earlier in this decision, this issue was eventually dropped and it was accepted that the claimant and Dr McBride had not left the hospital for coffee.

90. When questioned by Mr Hynds, Dr Rahman stated that there could have been other factors which led to the various doctors leaving employment at the Erne. However, he said that they had all commented to him that they had found it difficult to work under her supervision.

91. The disciplinary panel concluded that there had been gross misconduct and imposed a penalty of summary dismissal.

92. The panel took into account, not just the four witnesses called to give evidence, but also the statements taken from other witnesses in the Nesbitt investigation. The claimant did not specifically request the panel to call other witnesses but had indicated she had asked witnesses to attend. The claimant had been provided with a redacted copy of the Gibson Report which had removed specific mention and criticisms of Dr McBride.

93. The claimant appealed against the dismissal and the appeal was heard on 25 January 2011 by Ms Elaine Way, the respondent’s Chief Executive, and Mr John Doherty, the respondent’s Director of Women and Children’s Services.

94. Ms Way’s evidence to the tribunal was that the appeal was a complete re-hearing; that the panel considered only the evidence of the four witnesses called to give evidence so that the claimant would have an opportunity to cross-examine and challenge those witnesses. The panel also took into account the Gibson Report. When it was suggested to Ms Way that the claimant had not had an opportunity to cross-examine the unidentified witnesses whose evidence led to the Gibson Report, Ms Way acknowledged this was the case. However she saw no contradiction between her approach to the Nesbitt Report witnesses and her approach to the Gibson Report witnesses on the basis that the Gibson Report had been a significant report by a skilled professional who had independently held discussions with staff.

95. Ms Way also gave evidence that the panel had not considered the circumstances in which the claimant had left her earlier position with the Causeway Trust.

96. The four witnesses called to the appeal hearing were:-

Sister McCaffrey;

Sister McMullan;

Sister Curran; and

Dr Rahman.

97. The appeal panel found there was no evidence that the claimant had been a lazy doctor. The patient throughput figures (the ‘Symphony’ records) showed that the claimant processed significantly more patients than either Dr Rahman or Dr McBride. Whilst some patients may not have been entered on those records, there was no indication from the respondent that these records, over a lengthy period, were anything other than a broad indicator of comparative workloads between the two consultants and the acting consultant.

98. Ms Wray’s evidence was that it had been a difficult hearing. The claimant had been ‘quite vulnerable and nervous’.

99. The appeal panel concluded that the witnesses had given honest and credible evidence and staff were fearful of approaching the claimant for advice, thereby creating a risk to patient health. Again, the possibility of training or a supervision/ mentoring programme was rejected.

100. The summary dismissal was confirmed.

Decision

Sex discrimination

101. The claim was that the claimant had been unlawfully and directly discriminated against on grounds of her gender in her suspension, investigation, disciplinary process and dismissal and that Dr McBride was an appropriate comparator.

102. The provisions relating to the shifting burden of proof have been outlined above. It would be unlikely that the claimant in a discrimination case would be able to find a ‘smoking gun’; eg an e-mail which suggested targeting the claimant for disciplinary action because she was a woman. For that reason European and domestic legislation has set out a two-stage process to make it easier for claims of discrimination to succeed.

103. The tribunal has concluded:-

(i) the claimant was treated less favourably than a male, Dr McBride;

(ii) the claimant and Dr McBride were in broadly analogous circumstances. Both were substantive consultants. Both had been criticised in the Gibson Report. Both had diminished availability to junior staff, albeit for different reasons. That diminished availability posed the same risk to patient safety;

104. The case law quoted earlier in the decision makes it clear that a difference in status (gender) and a difference in treatment is not enough to shift the burden of proof in a discrimination claim to the respondent. The ‘extra’ that is required (see Deman above) need not be a great deal. However, it does need to be something which, combined with the differences in status and treatment, would entitle a reasonable tribunal to infer that unlawful discrimination had taken place.

105. The process which ultimately led to the claimant’s dismissal was initiated by two female colleagues, Sister McCaffrey and Mrs Hillick. The complaints which were elicited by the respondent in the course of the investigatory and disciplinary processes were not, on the evidence before the tribunal, tainted by gender bias. The tribunal therefore concludes that, while there is a possibility that the treatment of the claimant contained an element of sex discrimination, insufficient facts have been proved upon which the tribunal could properly infer that that mere possibility had moved to something more concrete.

106. The claimant has therefore not discharged the burden of proof placed upon her and the claim of sex discrimination is dismissed.

Protected Disclosure and detriment

107. The tribunal is satisfied that the disclosures made by the claimant about difficulties in filling the staff rota were protected disclosures. The issues raised were clearly relevant to the health & safety of patients, and indeed of staff, in the Erne Accident & Emergency Department. The tribunal is satisfied that these disclosures were made in good faith.

108. The tribunal has found that the conversation between Sister McCaffrey and Mrs Hillick took place on 23 May 2009 predated the claimant’s e-mail of 28 May 2009 in which the protected disclosures were made in detail.

109. There are no grounds on which the tribunal could properly infer that the chain of events which led to the claimant’s dismissal was initiated or in any way caused by the concerns the claimant had expressed about difficulties in filling the staff rota.

110. The claim of protected disclosure detriment is therefore dismissed.

Unfair dismissal

Findings of fact and decision

111. The onus of proof rests on the respondent to establish that the reason for the dismissal was a potentially fair reason for the purposes of the 1996 Order, eg conduct. The tribunal has concluded that the reason for the dismissal was conduct.

There is insufficient evidence for the tribunal to conclude that gender or a protected disclosure was the reason or part of the reason for the dismissal. On the balance of probabilities the only remaining potential cause is conduct.

112. The process which led to the claimant’s dismissal began with the conversation between Sister McCaffrey and Mrs Hillick on 23 May 2009. Sister McCaffrey expressed concerns about staff morale in the Accident & Emergency Department and about the claimant. Mrs Hillick did not speak to the claimant or to other members of staff at that stage. She moved immediately or almost immediately to commission Mr Gibson, an occupational psychologist, to prepare a report.

113. That report into matters which included obviously potential disciplinary issues was conducted in a way which, viewed against the objective standard of a reasonable employer, was unusual. Staff were not told that what they said could trigger and could be used in formal disciplinary action against a colleague. The Gibson investigation was conducted on a confidential basis and the report’s conclusions were not supported by identified witness statements. The notes and records on which those conclusions were based were not made available to the claimant or to the respondent. The questions, apart from the first question, asked of each witness and the answers given by each witness were not made available to either the claimant or to the respondent’s management.

114. During the disciplinary investigation process, Dr Nesbitt relied on the claimant’s previous dismissal from Causeway to conclude that there was a strong possibility of the recurrence of inappropriate behaviour. That issue was also raised during the case review conference on 4 May 2010 when the respondent decided to invoke the disciplinary process. Dr Nesbitt knew very little of the circumstances surrounding that earlier dismissal which, according to the uncontested evidence of the claimant, had been the subject to a compromise agreement. It does not appear that Dr Nesbitt put the issue of the previous dismissal to the claimant for comment before reaching the conclusion which he did reach.

115. Dr Nesbitt did not, as Mr Gibson did not, follow up the references to Afghanistan and a possible link to a deterioration in the claimant’s behaviour on her return from military service in that country. According to the Gibson Report, which was before Dr Nesbitt, 50% of staff interviewed felt there had been a deterioration in the claimant’s conduct at about that time. Linda Sanderson told Dr Nesbitt that the claimant had experienced a difficult time in Afghanistan. It may well be that the claimant’s military service was irrelevant. It was not a matter which she herself raised. However, the number and nature of the reference to her service in Afghanistan would, in the opinion of this tribunal, have prompted a reasonable employer to investigate further, and to seek appropriate medical evidence from the on-site occupational health specialist.

116. Dr Nesbitt did not properly follow up or make full enquiries into the allegation that several doctors had left because of the claimant. A reasonable employer conducting a reasonable investigation into a serious allegation, with a potentially significant impact on an employee’s career, would have made such enquiries and would have been in a position to demonstrate to the tribunal that it had done so.

117. Dr Nesbitt did not check the ‘symphony’ records which were capable of giving some indication, at least, of the claimant’s involvement in processing patients.

118. Incidents such as that where the claimant ‘gave off’ to Sister Curran when Sister Curran had wrongly given keys to the drugs cabinet to an unauthorised person were apparently regarded as misconduct or inappropriate behaviour. Judged against the objective standard of a reasonable employer, it is difficult to see how this was a reasonable approach.

119. Apart from a small number of specific incidents, there was a lack of detail about alleged inappropriate behaviour and a lack of contemporaneous complaints. This was a unionised public sector environment. Mr McGrath had made it clear that he would deal with complaints. Sister McCaffrey had been available at all relevant times to support formal complaints. It is remarkable that, in those circumstances, no formal complaints had emerged until they were generated by the Gibson Report and Nesbitt Report.

Again, judging this against the objective standard of a reasonable employer, it does not seem reasonable that little or no weight was attached to the lack of either contemporaneous formal complaints or the paucity of specific and detailed complaints later generated in the context of those two reports.

120. The disciplinary process also fell short of the standard expected of a reasonable employer. While employers cannot be required to run their disciplinary hearings like a criminal trial, a reasonable employer would have conducted these hearings fairly and the tribunal has concluded that the disciplinary process was not fair when judged against that objective standard. The process focused almost exclusively on witnesses whose evidence was not supportive of the claimant. The evidence of others, eg Mr McKinney and Mr McGrath, does not appear to have been given any weight. Dr Kilgallen said in evidence to the tribunal that her function had been to present all the relevant evidence. However, from the records of the disciplinary hearing, it would appear that her role was less then neutral. On occasions she appeared to step into the ring and to give evidence. That is not meant as a personal criticism of Dr Kilgallen; this was an unusual situation for someone from her professional background. However, particularly where disciplinary proceedings can have serious implications for an individual’s career, there is an obligation on employers to ensure that proceedings are fair and balanced.

121. The evidence that doctors had left their employment with Erne was clearly a factor which counted significantly against the claimant. That is a matter which could and should have been verified. A reasonable employer, judged against an objective standard, would have done so, during the disciplinary process, in the circumstances of this case.

122. The tribunal, in the context of determining whether a dismissal was fair, had to be careful not to step into the employer’s shoes and to re-run the disciplinary process. However as a question of general procedure, and judged against the objective standard of a reasonable employer, it is not reasonable to expect an employee to defend herself against allegations which are vague and not sufficiently specified. Furthermore, a preponderance of hearsay evidence rather than direct evidence does add to an air of general unfairness.

123. Sister McCaffrey stated to Dr Nesbitt that the other substantive consultant Dr McBride was part of the reason for her absence on sick leave. This was not adequately clarified for the disciplinary and indeed the appeal panel. It does not seem to have been specifically brought to their attention.

124. The claimant self-referred to the respondent’s occupational health specialist, Dr Burgess who was also based at the Erne Hospital. His report suggested training and mentoring could be effective. He stated in relation to ‘psychological, behavioural and attitudinal interventions for doctors in difficulty’, ‘60% of 144 practitioners were working normally a year or more after remediation’. He recommended a meeting between Dr Kilgallen, NCAS, Occupational Health and the claimant’s Psychologist. He stated ‘her difficulties undoubtedly arise from attributes of her personality which could be considered amenable to change’. That report dated 1 November 2010 was not accepted by the respondent and there has been no satisfactory explanation for that decision. The respondent did not, at any stage during the disciplinary process, refer the claimant for medical examination.

125. The appeal hearing was conducted by Mrs Way. Mrs Way recognised some of the inadequacies in the Lusby disciplinary hearing. She stated that she relied on the evidence of four witnesses who were present for cross-examination. However, she also relied on the Gibson Report which, as indicated above, relied on evidence and ‘anecdotes’ given in confidence and which would not be adequately challenged by the claimant.

126. The appeal process was also therefore unfair. Anyone facing a charge which could not just cost her job, but could have serious and long-term effects on a professional career, should be allowed a full chance to challenge the evidence on which that charge may be upheld. Mrs Way’s clear evidence was that the Gibson report formed a significant part of the respondent’s decision at the appeal stage to uphold the decision to dismiss. Her statement to the tribunal that she relied only on the evidence of the four witnesses who were made available for cross-examination by the claimant, made no sense when she almost immediately confirmed that she had also relied on the Gibson report.

Furthermore, the evidence in relation to the doctors who allegedly left the Erne Hospital because of the claimant, but apparently without making any formal or written complaint, was not properly investigated. A reasonable employer, in the circumstances of this case, would have done that at the appeal stage if it had not been done earlier.

127. Apart from the procedural issues set out above, the penalty of summary dismissal was not one which a reasonable employer could reasonably have imposed in all the circumstances of this case. Of particular importance in this respect is the markedly more favourable treatment meted out to Dr McBride, without any convincing justification, and the decision not to accept the advice of the respondents own occupational health specialist in relation to training.

There was no criticism of the claimant’s clerical work; quite the reverse. The claimant was not given any opportunity to improve her interaction with colleagues and was given no guidance or correction. Dismissal was outside the band of reasonable responses open to a reasonable employer.

128. For the reasons outlined above the dismissal was unfair.

Remedy

129. The schedule of loss was agreed and is largely accepted by the tribunal in relation to unfair dismissal. The basic award is £1,140.00. Loss of earnings to the date of the hearing, less significant mitigation on the part of the claimant is £39,690.56.

An appropriate period for future loss appears to the tribunal to be nine months. The claimant has, to her credit, been able to secure alternative employment on a short-term basis and it is more likely than not that she will be able to obtain further employment in the relatively near future.

Contributory fault

130. Contributory fault must be culpable behaviour which contributes to the dismissal.

131. The respondent has argued that, if the tribunal concludes that the claimant was unfairly dismissed, it should reduce the basic and compensatory award by 100% on the basis of the claimant’s contributory conduct.

132. The claimant clearly had difficulties in interpersonal relationships in the workplace. Whether or not that could have been ameliorated by training or mentoring is something that will now never be known and in any event is irrelevant to the issue of contributory conduct.

133. It is surprising, to say the least, that no formal complaints were made to Trust management in a unionised environment and in an environment where, it can safely be assumed, the workforce was not comprised exclusively of excessively timid or self-effacing individuals. It is also surprising that Sister McCaffrey’s ‘revelation’, which led her to conclude that the claimant had contributed to the poor morale in the Accident & Emergency Department, occurred only after time spent on sick leave and in a gym. It is even more surprising that four separate processes, Gibson, Nesbitt, Disciplinary and Appeal, produced so few detailed incidents of inappropriate behaviour which were supported by direct evidence.

134. The tribunal is unable to conclude, as the respondent apparently did, at various points in the procedure, that the claimant was reluctant to attend patients, left the premises for coffee during a trauma alert or drove doctors to leave the hospital. There is insufficient evidence in relation to the first two matters, which were withdrawn in any event by the appeal stage, and no real enquiry into the third issue.

135. Much has been made of the claimant’s habit of quizzing junior doctors about what they had already done in relation to patients before offering advice to those junior doctors. The tribunal assumes that the respondent is not objecting to this practice in itself, which seems eminently sensible, but to the manner in which the junior doctors were held to account.

136. The tribunal concludes that the claimant had difficulties with interpersonal relationships in the workplace. She expected high standards and was not tolerant of any failure to meet those standards. However the way in which, on occasions but not always, she dealt with junior medical staff and nurses was wrong and amounted to culpable behaviour. She was excessively authoritarian in a way that was, and was perceived to be, rude and dismissive. This conduct has however to be judged in the context in which it occurred, ie on a busy and pressurised Accident & Emergency Department which relied heavily on locums.

137. The tribunal therefore concludes that 30% is the appropriate deduction in respect of both the basic and compensatory award.

138. Where a compensatory award for unfair dismissal exceeds £30,000, it should be grossed up to take account of income tax, in this case at 40% - Shove v Downs Surgical PLc [1984] IRLR 17.

139. Unfair Dismissal Compensation

Basic Award £1,140.00

Less 30% contributory conduct £798.00

Compensatory Award

Loss of earnings to date of tribunal

less substantial mitigation by claimant £39,690.56

Loss of future earnings for nine months £48,897.00

less mitigation by temporary work to March 2012 £29,399.00 £19,497.36

Agreed pension loss £10,327.60

Loss of Statutory Rights £ 500.00

Initial Total Compensatory Award £70,015.52

Less 30% Contributory Conduct £49,010.87

Total income lost less 30% £41,431.54

Less £30,000 £11,431.54

Element of compensatory award in relation to

loss of income exceeding £30,000 and liable

for grossing up for income tax @ 40% £11,431.54

grossing up by factor of 100/60 £ 7,621.02

Total Compensatory Award £56,631.89

Total Award (Basic & Compensatory) £57,429.89

140. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.

Vice President:

Date and place of hearing: 5- 7 September 2011;

12 – 15 September 2011; and

21 October 2011

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Stewart v Western Health & Social Care T... Western Health & Social Care T... [2011] NIIT 02500_10IT (22 December 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/02500_10IT.html Cite as: [2011] NIIT 2500_10IT, [2011] NIIT 02500_10IT

Industrial Tribunals Northern Ireland Decisions