Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

                                                                                                CASE REF:    7406/17

 

 

 

CLAIMANT:              Stephanie Pickering

 

RESPONDENT:      John Donnelly T/A Silver Birch Childcare

 

 

 

DECISION

 

The decision of the tribunal is that the claimant was fairly dismissed by the respondent.

 

 

 

Constitution of Tribunal:

 

Employment Judge:             Mr I Wimpress

 

Members:                                Mrs M O’Kane

                                                   Mr R Hanna

                                                  

 

 

Appearances:

 

The claimant was represented by Mr Tim Jebb, Barrister-at-Law, instructed by Worthingtons Solicitors.

 

The respondent was represented by Mr Denis McGettigan of Peninsula Business Services.

 

 

SOURCES OF EVIDENCE

 

1.             The tribunal received witness statements and heard oral evidence from the claimant, Ms Bronagh Stephenson , Ms Stella O’Neill, Mr Nicholas Young and Ms Louise McGonagle .  The tribunal also received an agreed bundle of documents which was supplemented by further documents during the course of the hearing.

 

TITLE OF PROCEEDINGS

 

THE CLAIM AND THE RESPONSE

 

·                 Failing to acknowledge that the claimant did not open the fire exit door in question;

 

·                 Failing to acknowledge that it was custom and practice of the respondent to open the fire exit door when necessary;

 

·                 Failing to take account of the fact that the manager was aware that the fire exit door was open at the time in question;

 

·                 Failing to take account of the fact that the manager did not request the fire exit door to be closed at the time in question;

 

·                 Failing to take account of the fact that the manager, upon her own request, had the relevant fire exit door open from time to time;

 

·                 That the claimant was disciplined; failing to discipline the manager for her role in the incident;

 

·                 Failing to take account of the ongoing problem with the air conditioning system which, the claimant will state, was the reason why fire exit door was open;

 

·                 Failing to take into consideration that attempts had been made to resolve the issues with the air conditioning system, which did not rectify the problem;

 

·                 Failing to acknowledge that the failings of the air conditioning system was a health and safety hazard for the employees and children of the nursery.

 

4.             In it response the respondent denied that the claimant was unfairly dismissed or that it failed to follow a fair dismissal process and provided a detailed and lengthy factual history of the matter from its perspective.  The respondent did not specifically address each of the matters set out above but the following points emerge from its narrative:

 

·                 It was accepted that the claimant did not open the fire exit door but was aware or should have been aware that it was open and that she and her colleagues should therefore have been more vigilant;

 

·                 The respondent denied that it was custom and practice of the respondent for the fire door to be opened but occasionally nursery assistants would open the fire door if nappy odour was particularly bad;

 

·                 The claimant notified the manager that they had opened the fire door to let some fresh air in as they were warm at the time;

 

·                 As all the children were at the opposite end of the room around the table with the claimant and two other members of staff were observing the activity the manager felt that it would be safe (to leave the fire door open) as long as the children were well supervised;

 

·                 It is the respondent’s policy that a head count be undertaken every fifteen minutes;

 

·                 No action was taken against the manager as the nursery assistants were present in the room and responsible for the children in the room.  They made the decision to open the door that day and did not ensure that they followed procedures regarding head counts and all three failed to notice that a child in their care had left the room;

 

·                 The respondent asserted that the air conditioning system was in full working order, a problem with bad odours having been fixed on 20 January 2017.

 

THE ISSUES

 

5.             The main legal issue was whether the claimant was unfairly dismissed either substantively or on the basis of a procedural error and if so what compensation she was entitled to.  A number of facts were helpfully agreed as identified in a factual matrix which was provided to the tribunal and these are incorporated in our decision.  Some factual disputes remained and others emerged during the course of the hearing and these will addressed where necessary bearing in mind the limited role of the tribunal as a fact finder when considering the fairness or otherwise of disciplinary proceedings.  We are also mindful that it is not necessary to identify the child at the heart of these proceedings and where necessary the decision refers to the child as “Child X”.

 

THE FACTS

 

6.             The respondent business is a provider of childcare for pre-school children and is located at the Silver Birch Centre in Magherafelt.  Mr John Donnelly is the owner of the respondent business and Ms Stephenson is employed by him as the Manager. At the material time Ms Stella O’Neill was the acting Deputy Manager.

 

7.             The claimant was employed as a Nursery Assistant from 29 July 2015 until her dismissal on 23 August 2017.  She worked between thirty to forty hours per week and was paid £7.50 per hour.  Her normal weekly take home pay therefore varied from £200 to £250 per week.  

 

8.             On 3 July 2017 the claimant was given a written warning by Ms Stephenson for unsatisfactory job performance of duties in the Baby Room.

 

9.             The respondent operated a key child policy on the premises which included a statement that at all times management will ensure that “a minimum of two vetted staff are on duty at any one time”  and “ To meet this we use the following ratios of adult to children 0-2 being 1:3” .

 

10.          On 4 July 2017, at 1.30 pm nine children were in the Baby Room.  Three members of staff were on duty in the Baby Room on 4 July 2017 – the claimant, Ms McKenny and Ms McFlynn.   At some point prior to approximately 1.45 pm, Ms McKenny opened the fire exit door situated towards the far side of the Baby Room opposite the entrance to it.

 

11.          At or around 1.45 pm, Ms Stephenson entered the Baby Room.  All three female staff members were present (the claimant, Ms McKenny and Ms McFlynn).  The claimant was sitting on the ground next to the table immediately to the right of the entrance of the room.  The claimant was rocking a child next to her in a bouncer chair.  Ms McKenny and Ms McFlynn were standing in the middle of the room.  Ms Stevenson did not see any children behind Ms McKenny and Ms McFlynn (i.e. near the fire exit) and all children that she saw were at or around the table engaged in an activity.

 

12.          Ms Stephenson was made aware that the fire exit door was open.  Ms Stevenson authorised that the door remain open.  Ms Stephenson then left the room, returning briefly to provide glitter for use in the activity.  Ms McKenny left the room for a short period of time to return the glitter to the office.

 

13.          At 2.00 pm Ms Dolores Niblock rang the buzzer at the entrance to the centre and returned one of the children (Child X) to the centre.  It transpired that the child had escaped from the Baby Room and made his way to the main road whereby a passing vehicle (driven by Ms Niblock) stopped.  Ms Niblock got out of her car and took the child back to the centre.

 

14.          Ms Niblock was met by Ms Stephenson and Ms O’Neill who checked the child over and returned him to the Baby Room at 2.03pm.  The three female staff members were in the same position as they had been whenever Ms Stephenson had been in the room approximately 15-18 minutes earlier.

 

15.          It seems likely that Child X escaped from the Baby Room via the open fire door sometime between 1.45pm and 2.00 pm.  It is possible that Child X could have left even earlier

 

16.          The child’s key worker on the day in question was Ms McKenny.

 

17.          The respondent had a head count policy and it is not in dispute that no head count was carried out between 1.45 pm and the child’s return.

 

18.          At 2.10 pm Ms Niblock made a statement to Ms Stephenson in relation to what happened.

 

19.          The three female staff members were moved into a different room for the remainder of their shift.

 

20.          Later that afternoon, the three female staff members were spoken to by Ms Stephenson.  Ms O’Neill was also present.

 

21.          The claimant provided an account of what occurred.  The claimant said that she was making play dough with the children.  One child was in the change area with Ms McFlynn.  Child X was sitting at the table engaged in this activity.  The claimant was moving the bowl of play dough between the children so that they all got an opportunity to stir it and was also rocking one of the younger babies in a bouncer chair beside her.  The claimant did not see Child X leave the table.  The room was very calm as all the children were enjoying and engaged in this activity.  A handwritten record was made of the claimant’s account.

 

22.          Ms McFlynn also gave an account of the incident.  She stated that no head count was done and that she had left the room for a few minutes to get colouring for the play dough and that Ms Stephenson had entered the room.  Ms McFlynn was also changing nappies in the changing area which was next to the fire exit.  Ms McFlynn observed one child coming close to the door and so lifted her back to the other side of the room.

 

23.          Ms McKenny provided a written statement.  According to Ms McKenna she and the claimant were saying how warm it was and the claimant said, “Gone [sic Go and…] open that door”.  Ms McKenny then opened the fire door.  She believed that this would be ok as all of the children were occupied at the top end of the room.  When Ms Stephenson came into the room Ms McKenna told her that the fire door was open.  Ms McKenny also referred to her leaving the room for 45 seconds to 1 minute to leave the glitter back in the office.  About 5 seconds after she returned to the room the buzzer went and it was the lady (Ms Niblock) and the child at the door.  Ms McKenny’s written statement was supplemented by a few questions and answers.  Ms Stephenson asked Ms McKenny if she noticed the child at the table when she went out with the glitter and she replied that she had not and just saw that children were around the table and the beanbag area.

 

24.          The child’s father attended that evening and was told what happened.  His reaction at the time was calm.

 

25.          Ms Stephenson also contacted Mr Donnelly that evening and briefed him as to what had occurred.  While he was alarmed as to what happened, he did not take any action himself in respect of the claimant, Ms McFlynn and Ms McKenny save for authorising Ms Stephenson to continue with an investigation process.

 

26.          On 5 July 2017 both of the child’s parents attended for a further meeting with Ms Stephenson.  By that stage they were very angry but while there was discussion of them going to the press/social media they indicated that they do not intend to do so.

 

27.          On the same day Ms Stephenson spoke with the social worker assigned to the centre about next steps and she visited the centre in the afternoon.  Ms Stephenson also phoned the Labour Relations Agency and was advised to suspend the three staff members involved on full pay pending a full investigation.  On the basis of this advice Ms Stephenson called Ms McFlynn and Ms McKenny into her office separately and advised them of the position.  Both were suspended and invited to an investigatory meeting.  As the claimant was on a scheduled day off Ms Stephenson arranged for Ms O’Neill to phone her and ask her to come in to the office that afternoon as Ms Stephenson understandably did not want to inform the claimant of her suspension over the phone.

 

28.          Upon arrival Ms Stephenson handed the claimant a letter inviting her to attend a disciplinary hearing on 6 July 2017 and informed the claimant that she was being suspended on full pay.  The claimant asked how Child X was and Ms Stephenson replied that Child X was ok and had been taken to the doctors just in case but was fine.

 

29.          The material portion of the Ms Stephenson’s letter read as follows:

 

30.          The letter also informed the claimant of her right to be accompanied by a trade union official or fellow employee.  Similar letters were issued to Ms McFlynn and Ms McKenna.  The letters were inaccurate as these were investigatory meetings rather than disciplinary hearings.

 

“Alleged gross negligence resulting in a breach of the Organisation’s safeguarding Children & Child Protection Policy – further particulars being that it is alleged that on 4 July 2017 when you were on duty in the baby room, the fire exit door was opened, one of the babies made their way out and onto the main road, and you failed to notice by any of the staff in the room that the child had left the room.”

 

Copies of relevant documents were enclosed and the procedure at the hearing was explained.  The letter advised that if the allegation was substantiated it would amount to gross misconduct and the claimant’s employment may be summarily terminated.  The claimant was also advised of her right to be accompanied by a fellow employee or Trade Union official.

 

34.          The claimant attended the hearing on 2 August 2017.  Mr Young asked a series of questions to which the claimant responded.  The hearing was tape recorded and a typed transcript was made available to the tribunal.  In keeping with a properly conducted disciplinary hearing the questions were more detailed and probing.  During the hearing in answering questions the claimant elaborated on some of what she had said previously.  She stated that her view of the fire door was obstructed by a piece of furniture and that normally when the fire door was open it would be blocked off in some way by chairs or other items but on this occasion it was not.  The claimant also explained that she was not taking any active steps to monitor the open door as she was engaged in activity with the children and rocking a crying child.  The claimant did not dispute that it was company policy for head counts to be conducted every fifteen minutes but confirmed that there was no head count schedule or person in charge of head counts.  The position was rather that headcounts were conducted on an ad hoc basis by staff.  The claimant accepted that additional attention should have been paid to head counts when the fire door was propped open.  The claimant also explained the key children policy whereby nursery assistants would be particularly responsible for children allocated to them on a given shift.  Child X was not one of the claimant’s key children on the day in question and therefore if Child X was not at the table at the time Child X could have been with Ms McFlynn who was changing nappies at that time.  The claimant commented that the policy was confusing and contradictory.  However, the claimant did not notice that Child X had left the table.  Mr Young put it to the claimant that the policy covered specific attention such as nappy changing, feeds, naps and sleeping but that the paramount consideration for the health, safety and wellbeing of all children was a shared responsibility and not divided up in a key children designation.  The claimant maintained that the respondent’s policy was unclear to her.  In answer to a suggestion that she had been negligent the claimant responded that she didn’t really know and that it was manic trying to supervise activity at the table and rocking a crying child at the same time.  The claimant also commented adversely about the investigatory process citing a lack of confidentiality, other persons’ statements being attributed to her and going into an investigatory meeting believing it to be a disciplinary hearing.  The claimant also put it to Mr Young that the outcome of the process had already been determined by the respondent.

 

35.          Following the hearing Mr Young compiled a report of his findings dated 18 August 2017.  Mr Young found the claimant’s explanations to be unsatisfactory and considered that if she had been paying due attention to her responsibilities she ought to have been aware that one child was missing.  The fact that the fire door had been propped open in the past did not absolve the claimant of responsibility and nor did the fact that she was busy during the period in question.  Mr Young was satisfied that the claimant’s concerns about the process were not sufficiently serious to undermine its fairness.  Mr Young was satisfied that the claimant’s conduct amounted to gross negligence and recommended that her employment be summarily terminated.  Mr Young noted that the claimant was the subject of a live written warning but did not comment on it otherwise.  He would in our view have been acting reasonably to have taken it into account in making his recommendation but we are satisfied that he did not accord any significant weight to it.  Had he done so it could only have been harmful to the claimant’s interests.  There is no evidence that Mr Young acted improperly in any way.  The claimant’s two co-workers were also dismissed on the same basis as the claimant and neither was the subject of a live warning of any nature.

 

36.          Ms Stephenson accepted Mr Young’s recommendation that the claimant should be dismissed.  As was the case with Mr Young, Ms Stephenson would have been fully entitled to take the warning into account to the claimant’s detriment but we again accept her somewhat surprising evidence that she did not do so.

 

37.          On 21 August 2017 Ms Stephenson wrote to the claimant and formally dismissed her. Mr Young also conducted the disciplinary process in relation to Ms McFlynn and Ms McKenny and made similar recommendations.  They were also dismissed around the same time.

 

38.          On 23 August 2017, the claimant submitted a written appeal.  The main points made by the claimant were that she did not open the fire door or suggest that it should be opened; that the incident was due to the negligence of a colleague and that there had never been an issue about the fire door being opened during hot weather.  The claimant also stated that she was confused about the way in which the investigation was conducted and that she was not aware that the first meeting was an investigatory meeting as the invite described it as a disciplinary meeting and that she sought a discussion with Ms Stephenson about this and the policies of shared responsibilities in which she believed there was a contradiction.  The claimant also drew attention to a conversation with Ms Stephenson in which she informed the claimant that the previous warning would not affect the decision on the loss of her job yet the warning was noted in Mr Young’s report.  As a result the claimant felt that she had been misled.  The claimant further stated that she felt that she had been unfairly treated and that Ms Stephenson came to a decision on her employment before the investigation procedure concluded.

 

39.          Ms McGonagle of Graphite HRM was engaged to hear the claimant’s appeal.

 

40.          By letter of 21 September 2017, Ms McGonagle invited the claimant to an appeal hearing on 28 September 2017.  Ms McGonagle’s letter set out the grounds of appeal as follows:

 

·                 That you were not aware that the first meeting you had in relation to the issue was an investigation hearing.

 

·                 That you believe there is a contradiction in relation to the shared responsibilities policies.

 

·                 That you believe that the issue in relation to negligence is not your fault.

 

·                 That the disciplinary officer referred to an existing warning on your file and that you had been led to believe that this warning would not affect the decision on the loss of your job.

 

·                 That you feel that the decision to dismiss was predetermined.

 

The claimant was again advised that she could be accompanied by a fellow employee or Trade Union official.

 

41.          On 28 September 2017, the claimant attended the appeal.  Ms McGonagle went through all of the points raised by the claimant in her appeal and gave her the opportunity to add anything that she wished at the end of the interview.

 

42.          Ms McGonagle also interviewed Ms Stephenson on the same day in relation to the appeals process in respect of the claimant and Ms McFlynn.  Ms Stephenson gave an account of what happened on the day of the incident and Ms McGonagle asked relevant questions in relation to both appeals.

 

43.          Ms McGonagle complied a report on the claimant’s appeal dated 17 October 2017.  Ms McGonagle described the role of an Appeal Officer as to make a recommendation on whether or not the process followed was so unreasonable that the that the original decision to dismiss should not be upheld.  In her report Ms McGonagle went through each of the grounds of appeal and her findings can be summarised as follows:

 

Ground 1 - That the claimant was not aware that the first meeting you had in relation to the issue was an investigation hearing.

 

Had the error not occurred the sanction would have been the same given the severity of the allegation and all of the claimant’s rights were upheld during both the investigatory and disciplinary process.  On this basis the claimant’s appeal was not upheld.

 

Ground 2 -That the claimant believed there is a contradiction in relation to the shared responsibilities policies .

 

Being a key worker did not absolve the claimant from responsibility for the care and safety of children under observation in the Baby Room.  The claimant failed to observe the baby going missing.  On this basis the claimant’s appeal was not upheld. 

 

Ground 3 - That the claimant believed that the issue in relation to negligence is not her fault.

It was clear that the claimant knew that the fire door was open despite not being able to see it from where she was sitting.  The baby may have left the table out of the view of the claimant but this did not absolve the claimant of her responsibility to ensure the safety of babies in her care in the room.  Therefore Ms McGonagle did not uphold this ground of appeal.

 

Ground 4 -That the disciplinary officer referred to an existing warning on the claimant’s file and that you had been led to believe that this warning would not affect the decision on the loss of your job.

Ms McGonagle noted that the warning was mentioned in Mr Young’s report but was not referred to as an influencing factor in his decision.  Ms McGonagle considered that from reading Mr Young’s report it was clear that the basis for his recommendation was that the claimant was not sufficiently monitoring the open door or that that the baby had left the room where the claimant was working with serious consequences for its health and safety.  Regardless of prior warnings this was considered gross misconduct.  Accordingly, Ms McGonagle did not uphold this ground of appeal.

 

Ground 5 -That the claimant felt that the decision to dismiss was predetermined .

 

Ms McGonagle noted the differences in the accounts given by the claimant and Ms Stephenson of a conversation about whether the claimant needed to look for a new job.  Ms McGonagle also referred to the minutes of the investigatory meeting on 6 July 2017 which recorded Ms Stephenson’s response to the claimant’s query about her job to which she replied that it was out of her hands and that she had outsourced the disciplinary process to ensure objectivity in relation to the decision.  Ms McGonagle therefore did not uphold this ground of appeal.

 

Accordingly, Ms McGonagle recommended that none of the grounds of the appeal were upheld.  Ms McGonagle further noted that it was for the respondent to decide whether to accept her recommendations.

 

44.          Ms Stephenson accepted Ms McGonagle’s recommendation.

 

45.          On 19 October 2017, Ms Stephenson wrote to the claimant and advised her that the decision to dismiss her stood.  Ms Stephenson addressed each ground of appeal and set out her conclusions which were on the same basis as Ms McGonagle’s recommendations though with slightly different wording.  Ms Stephenson concluded her letter by stating that the decision was final.

 

THE LAW

 

46.          Article 130 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") insofar as relevant provides as follows:-

 

"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 it 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."

 

47.          In the application of this statutory guidance the tribunal is mindful of the considerable body of case law and in particular the guidance stemming from the case of   Iceland Frozen Foods Limited  v  Jones  [1982] IRLR 439  (reaffirmed by the Court of Appeal in England in the cases of Post Office  v Foley/HSBC Bank  v Madden  [2000] IRLR 827 ) which includes (inter alia) that 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, another quite reasonably take another and that the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  In this regard the tribunal is also assisted by the guidance given by  the Court of Appeal in  Dobbin  v Citybus Ltd [2008] NICA 42  as to how an industrial tribunal should approach the task of determining the fairness of a dismissal and in the case of Rogan  v South Eastern Health and Social Care Trust [2009] NICA 47 .

 

48.          In  Dobbin  v Citybus Ltd [2008] NICA 42 the Court of Appeal provided guidance as to how an industrial tribunal should approach the task of determining the fairness of a dismissal.  The judgment of Higgins LJ reads as follows:-

 

"[48]...        The equivalent provision in England and Wales to Article 130 is section 98 of the Employment Rights Act 1996 which followed equivalent provisions in section 57 of the Employment Protection (Consolidation) Act 1978.

 

[49]             The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 - and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) 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 section 57(3) of the [ Employment Protection (Consolidation) Act 1978 ] is as follows:

 

(1)     the starting point should always be the words of  section 57(3) 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, another quite reasonably take another;

 

(5)     the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted.  If the dismissal falls within the band the dismissal is fair:  if the dismissal falls outside the band it is unfair.'

 

[51]             To that may be added the remarks of Arnold J in British Homes 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, there must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief.  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'."

 

49.          As highlighted by the Court of Appeal in its recent decision in Connolly (Caroline) v Western Health and Social Care Trust [2017] NICA 61   the interpretation of Article 130(4)(a) of the 1996 Order “has been fixed by a series of appellate courts over the years i.e. that whether an employer acted reasonably or unreasonably is to be addressed as whether an employer acted within a band of available decisions for a reasonable employer even if not the decision the Tribunal would have made.  That test, expressed in various ways, is too long established to be altered by this court, and in any event has persuasive arguments in favour of it.  But it is necessary for tribunals to read it alongside the statutory provision of equal status in Article 130(4)(b) i.e. that that decision “shall be determined in accordance with equity and the substantial merits of the case”.

 

50.          The statutory disciplinary and dismissal procedures are set out in the Employment (NI) Order 2003 (Dispute Resolution) Regulations.  Essentially there are three steps in the standard disciplinary and dismissal procedure which the employer must follow w hen considering the termination of any employment as follows –

 

“Step 1:    statement of grounds for action and invitation to meeting.

 

 1.  -            (1)   The employer must set out in writing the employee's    alleged conduct or characteristics, or other          circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.

 

                   (2)   The employer must send the statement or a copy of it to          the employee and invite the employee to attend a meeting        to discuss the matter.

                                   

Step 2:      meeting

 

 2.  -            (1)   The meeting must take place before action is taken,     except in the case where the disciplinary action consists     of suspension.

 

                   (2)   The meeting must not take place unless - 

 

(a)      the employer has informed the employee what the basis was for including in the statement under paragraph 1(1) the ground or grounds given in it, and

 

(b)     the employee has had a reasonable opportunity to consider his response to that information.

 

                   (3)   The employee must take all reasonable steps to attend           the meeting

 

                   (4)   After the meeting, the employer must inform the            employee of his decision and notify him of the right to   appeal against the decision if he is not satisfied with it.

 

Step 3:      appeal

 

  3.  -           (1)   If the employee does wish to appeal, he must inform the          employer.

 

                   (2)   If the employee informs the employer of his wish to       appeal, the employer must invite him to attend a further   meeting.

 

                   (3)   The employee must take all reasonable steps to attend           the meeting.

 

                   (4)   The appeal meeting need not take place before the      dismissal or disciplinary action takes effect.

 

                   (5)   After the appeal meeting, the employer must inform the           employee of his final decision.”

 

SUBMISSIONS

 

51.          Both Mr Jebb and Mr McGettigan provided very helpful written and oral submissions in a form that both clearly identified the issues. Their written submissions are appended to this decision. As noted above, Mr Jebb in collaboration with Mr McGettigan provided a list of agreed facts which greatly assisted the tribunal in focusing on the matters in dispute.  This commendable approach should in our view be utilised more often. 

 

Claimant’s Submissions

 

52.          The main thrust of the claimant’s case was that the investigation should have encompassed Ms Stephenson on the basis that she was an active participant in the incident having been present in the Baby Room at the material time, observed that the Fire Door was open and undertaken a risk assessment.  On this basis it was suggested that Ms Stephenson was arguably partially responsible for the incident and both should have been a subject of investigation herself and ought not to have been the ultimate decision maker in respect of the decision to terminate the claimant’s employment.  In addition, it was suggested that allowing the fire door to remain open was a breach of Health and Safety Regulations.  Mr Jebb in his submissions identified five main issues for determination as follows:

 

(2)        If not, whether as a matter of fact the claimant had knowledge of the fire door being opened.

 

 

 

 

In addition, Mr Jebb sought to rely upon the absence of person in charge policy, specifically the guide ratio of 1:3 suggesting that this ratio was not maintained during the entirety of the time when the child went missing. 

 

 

53.          (1)     Mr McGettigan submitted that the presence of Ms Stephenson in the Baby Room was a side issue as it was impossible to be sure that was in the room when Ms Stephenson entered and that in any event Ms Stephenson could not be held to the same standard as the three nursery workers who were primarily responsible for the welfare of the children in the Baby Room.   Mr McGettigan also rejected the suggestion that the process of dismissal was pre-determined and drew attention to the claimant’s own evidence that Mrs Stephenson had told her that she didn’t know what would happen and in cross examination stated “I don’t know she didn’t know what to do”.  Mr McGettigan also drew attention to Ms Stephenson’s evidence that the dismissal of the claimant and her two co-workers placed the respondent in real difficulty in terms of staffing.

 

            (2)     In relation to the open fire door Mr McGettigan accused the claimant of picking and choosing parts of the evidence that support her account and denying the rest that contradicted her account.  Mr McGettigan drew attention to discrepancies in the claimant’s evidence as to why the fire door was open.  The claimant told Mr Young that it was opened because it was warm but in her witness statement she gave the reason as a bad smell from the air conditioning.  Mr McGettigan also drew attention to the claimant’s answer to Ms McGonagle that she was not “100% sure” if the door was open and the claimant’s failure to produce notes that she made in order to help her remember what had occurred.  Other inconsistencies included the claimant changing her evidence once she realised the seriousness of the allegation and suggesting it was much busier and preoccupied or “manic” as she put it in her oral evidence.   Mr McGettigan also cast doubt on the claimant’s contention that she was alone in the Baby Room and pointed to her admission in oral evidence that she could not see the whereabouts of Ms McFlynn or Ms McKenny and did not see Ms McKenny leave or return to the room and accepted therefore that she could not say that she was ever alone in the room as stated in her claim and statement.  Mr McGettigan submitted that on this basis it was quite possible that the claimant was never alone in the room.

 

            (3)     Mr McGettigan challenged the claimant’s evidence that she would not have had a line of sight of the fire door due to the height of furniture and the presence of boxes and relied on photographic evidence in support of the respondent’s position.

 

            (4)     Mr McGettigan submitted that contrary to the claimant’s evidence head counts were of great importance and ought to have been carried out every 15 minutes and not just when children are moving to and from a room or area and that if a head count had been done the alarm would have been raised earlier.

 

            (5)     In relation to the investigatory meeting Mr McGettigan submitted that the claimant, as she accepted, was not disadvantaged by it being described as a disciplinary hearing and that rather she was confused or upset as she was expecting an outcome rather than a further meeting.  The claimant would also have been familiar with the process having been though a recent disciplinary procedure.

 

            (6)     With regard to the previous warning both Mr Young and Ms McGonagle stated that warning was not taken into account in their recommendations.  Further, Ms Stephenson’s evidence was that at the time of instructing Mr Young she was not aware that the claimant would raise the issue of the key child policy as a defence and thus felt the warning was not relevant to the incident.  On that basis Mr Young made no further investigations as to the contents of the previous warning.  In any event part of the warning could have been relied upon as relevant as it related to failings on the claimant’s part regarding her duties for her key children.  Ms Stephenson also gave evidence that she explained the purpose of the key child policy to the claimant and issued the warning on the 3 July 2017, which was the day before the incident.

 

            (7)     Mr McGettigan submitted that it was clear that the claimant was seeking to absolve herself from responsibility on the basis that Child X was not her key child and this had nothing to do with the ratio of staff to children in the room as submitted on behalf of the claimant.  The claimant also sought to rely on the absence of the person in charge policy, specifically the guide the ratio of 1:3 suggesting that this ratio was not maintained during the entirety of the time when the child went missing.  Mr McGettigan submitted that It was clear that the policy was that there should be two staff present at all times, but there must be time when a staff member has to go to the bathroom, or go to the office, or will not be present in the room as they are undertaking a nappy change or putting a child to bed.  To allow for this the 1:3 ratio is used, but this did not mean that there must be at all times three staff members in the actual room, but in fact two, the third being a substitute as it were for any of the other two should one leave.  Mr McGettigan submitted that in all probability there were at least two staff in the Baby Room at any one time.  If, on the other hand, the policy was breached, this would not assist the claimant as it would serve as further evidence that all three staff failed to adequately communicate to each other as to their whereabouts, Thus there was a duty on all staff to maintain these safeguarding policies, and even if it was breached, which Mr McGettigan suggested was unlikely, this would be a further failing on the claimant and the other staff.

 

CONCLUSIONS

 

54.          As indicated above a number of factual disputes emerged from the evidence.  It is not the role of the tribunal to re-hear a disciplinary hearing or the appeal but rather what a tribunal has to do is to decide whether these hearings were substantially fair. This distinction is of particular importance in cases such as the present in which new facts are relied on which were not before the relevant decision makers.  However, having heard evidence on these matters we consider it proper to express our views insofar as it is possible to do so and with particular emphasis on their relevance or otherwise.

 

55.          Firstly, there is a dispute between the parties as to whether the claimant requested the fire door to be opened or not, and as to the reasons for the door being opened.  It is also in dispute as to the level of knowledge that the claimant had in relation to this action of opening the door and thereafter.  It is clear from the decision to dismiss the claimant was based on her knowledge that the fire door was open and therefore whether she requested it to be opened or not is immaterial.

 

56.          On a similar vein the reasons for the door being open are beside the point.  The key point is that the door was open not whether this was due a problem with the air-conditioner emitting a smell on occasions or because of the heat.  We have no reason to doubt that prior to the installation of air-conditioning the fire door would be permitted to be opened.  The dispute as to whether it was custom and practice for the door to be opened after the installation of the air conditioner again misses the point and it was not raised by the claimant either at the disciplinary hearing or the appeal.

 

57.          We also heard evidence from the claimant that her line of vision and that of her colleagues of the fire exit door was obstructed due to the placement and size of the furniture in the room on the day in question.  Again this issue was not raised by the claimant either at the disciplinary hearing or the appeal.  It seems to us in any event that this could not conceivably assist the claimant as it was her job along with her co-workers to make sure that the children remained in the Baby Room.

 

58.          The dispute as to whether the claimant informed Ms Stephenson that all children were at the table was not raised by the claimant at the disciplinary hearing or the appeal.  As this point was not relied upon by either Mr Young, Ms McGonagle and Ms Stephenson as a basis for their decisions we do not regard it as being of any particular significance.  Our firm impression is that the claimant did not inform Ms Stephenson that all children were at the table.

 

59.          It is common case that Ms Stephenson was made aware that the fire exit door was open.  It is of no relevance who told her this or what knowledge the claimant had of this conversation.   The key point which is not in dispute is that the claimant was aware that the fire door was open.

 

60.          There is a dispute between the parties with regards to what type of risk assessment (if any) Ms Stephenson carried out in relation to the fire door remaining open and what would have been appropriate.  However, all parties agreed that Ms Stephenson authorised that the fire door remain open.  We are doubtful as to the relevance of this point as it is the claimant’s action or inaction that is of importance.  Such significance as this point may have goes to the suggestion that Ms Stephenson either should herself have been the subject of disciplinary action or that she should not have been involved in the process at all given her involvement in the incident.  It is not clear to what extent, if any, Mr Donnelly considered whether any action was appropriate regarding Ms Stephenson.  It is not necessary for us to form a view on the first point as we know that no action was taken against Ms Stephenson and she is not in the position of a co-worker against whom the claimant could make a legitimate comparison in terms of treatment.  

 

61.          We are also satisfied that Ms Stephenson took appropriate steps to ensure that the disciplinary hearing and appeal were both objective and independent.  We do not consider that Ms Stephenson’s presence in the Baby Room compromised the fairness of these procedures or made it inappropriate for her to make the final decision to dismiss.

 

62.          Returning to the factual dispute having heard Ms Stephenson’s evidence we are satisfied that she carried out a basic risk assessment.  In the event no disciplinary proceedings were brought against Ms Stephenson either generally or as a result of her decision to authorise the door to remain open.  Whether it would have been reasonable to hold Ms Stephenson to the same accountability as those present in the room and whether Ms Stephenson ought to have been the subject of disciplinary proceedings are interesting questions but in our view they do not sound on the fairness or otherwise of the decision to dismiss the claimant.

 

63.          There was also a dispute and some uncertainty as what exactly happened in and around the time that Child X went missing.  It is far from clear when Child X left the room and how long Child X was missing.  There is some dispute as to where exactly Ms McKenny and Ms McFlynn were at the relevant time.  It was not in dispute that Ms McKenny left the room for a short period of time to return the glitter to the office.  It also seems clear that Ms McFlynn was changing nappies in the changing area during this period.  It is possible therefore that the claimant was left alone in the room for a short period.  In our view however this does not add anything of relevance.  It was the job of the three co-workers to ensure the safety and welfare of the children in their care.  This must involve on any sensible view working as a team.  If the numbers of nursery staff in attendance dropped at any time for whatever reason it was incumbent on those remaining to be extra vigilant during such periods.

 

64.          As noted above the claimant did not dispute that it was company policy for headcounts to be conducted every fifteen minutes but gave evidence that there was no headcount schedule or person in charge of headcounts and that headcounts were conducted on an ad hoc basis by staff.  She also accepted that additional attention should have been paid to headcounts when the fire door was propped open.  While it may be the case that staff do not follow this policy when the children are within one room it seems to us that the policy does not admit of that exception.  In practical terms even if the policy was unclear or not enforced rigorously a headcount would have been a very sensible precaution for the claimant to take during a period when the fire door was open and her co-workers were otherwise occupied.

 

65.          Having given careful consideration to all of the evidence and submissions we are satisfied that the claimant was not unfairly dismissed.  This would be the result under either of the approaches endorsed by the Court of Appeal in Connolly .  We are satisfied that the respondent had a genuine and reasonable belief in the guilt of the claimant and formed that view after a reasonable investigation.  The respondent’s decision was well within the band of reasonable responses.  We are not persuaded that any of the suggested failings in either the process or the substantive decision either can avail the claimant or have any intrinsic merit.  There is no suggestion that the respondent failed to adhere to the 3 step minimum statutory dismissal procedure and we have not detected any such failing.

 

66.          The claim must therefore be dismissed.

 

 

 

Employment Judge:

 

 

Date and place of hearing:     15-17 May 2018 and 14 June 2018, Belfast.

 

 

Date decision recorded in register and issued to parties: