FAIR EMPLOYMENT TRIBUNAL

CASE REF:	00308/00FET
01618/00

APPLICANT:	Mary Hamilton

RESPONDENT:	Down & Lisburn Health & Social Services Trust 

DECISION
The unanimous decision of the Tribunal is that:-
(i)	the applicant was not unlawfully discriminated against on the grounds of religious belief by the respondent; and
(ii)	the applicant was unfairly dismissed by the respondent.

The matter of remedy is adjourned to a further hearing.

Appearances:
The applicant was represented by Mr M McEvoy, Barrister-at-Law, instructed by Gus Campbell, Solicitors.
The respondent was represented by Mr J Park, Barrister-at-Law, instructed by Carson McDowell, Solicitors.

1.	The applicant was employed by the respondent as a senior staff nurse Grade G in a surgical ward.  She had been in the employment of the respondent for about fifteen years without any serious complaint being made against her.  She described herself as a committed Christian.  She was pursuing a further degree in nursing, particularly with regard to cancer care services, which was being financially assisted by the respondent.

2.	Difficulties arose on the ward in which the applicant worked and an investigation into these difficulties was under way.  In addition there was an investigation taking place into the performance of a junior nurse (IM) for whom the applicant was acting as a staff support counsellor.  The applicant’s belief was that this junior nurse was being bullied.  Just prior to going on leave the applicant had a further meeting with IM and found her very distressed and agitated.  

3.	On the applicant’s return from leave in August 1999 she found that IM had been removed from the rota.  The applicant enquired from her opposite number on the ward (JD) as to why IM was no longer on the rota and was told that she had been suspended.  The applicant told this colleague that everyone should be careful because IM had a good solicitor.  She also suggested that the enquiry into IM’s conduct should be stopped.

4.	The applicant also spoke to a junior nurse on the ward (SE) around that time.  She told SE that IM had a good solicitor and hinted that complaints against the suspended nurse could be dropped as she was leaving the Trust in any event.

5.	Some time in September the applicant spoke to a further junior nurse (PC) who had also made a complaint about the suspended nurse.  The applicant told this nurse that the suspended nurse (IM) had a good solicitor.  After this interview and having spoken to other people, PC felt she was being warned off.

6.	On 15 September 1999 the applicant spoke to Pauline Gordon who was the Acting Clinical Services Manager.  She was part of the applicant’s line management structure.  She too was a committed Christian and was known as such to the applicant.  The applicant quoted verses from the bible to Mrs Gordon “Choose ye this day whom you will serve ….” and suggested to Mrs Gordon that she had a message from God for her and that she needed to watch herself and that there was evil about in the hospital.  Mrs Gordon felt disturbed by what the applicant had told her and concerned that the applicant appeared to believe that she was getting messages from God for other people.  Mrs Gordon discussed this with Frances Donovan who was a senior manger and a senior nurse for acute services.  When Mrs Gordon realised that the applicant was involved in the investigation of the ongoing difficulties in the surgical ward she regarded the conversation between herself and the applicant as a threat to intimidate her.  

7.	The applicant was suspended from duty on 24 September 1999 on the grounds that she had made contact with witnesses who were involved in a disciplinary investigation and that she may have interfered with that investigation.  Her suspension was notified to her by letter from Mrs P McCullough, the respondent’s Human Resource Manager.

8.	Mrs Gordon and her superiors were concerned about the applicant’s state of mind and an appointment was made with the respondent’s Occupational Health Consultant, Dr Black, and the applicant attended Dr Black on 25 October 1999.  

9.	A disciplinary hearing was arranged in relation to the applicant’s behaviour for 2 November 1999.  That hearing was postponed at the request of the applicant’s trade union representative, Mr G Matchett of the GMB Union.  It was rescheduled for 23 November 1999.  On 11 November 1999 a further charge that the applicant had threatened the Acting Clinical Services Manager – Mrs Gordon was added to the disciplinary matters.

10.	When the applicant and her trade union representative attended on 23 November 1999 they were presented with statements taken from Mrs Gordon, JD, PC and SE.  That hearing was postponed at the applicant’s request to allow her to prepare a rebuttal of the statements provided.  The hearing was reconvened on 10 December 1999 when the applicant denied trying to influence or threaten the nurses involved in the ongoing investigation into matters in the ward.  The panel at the disciplinary hearing were – Mr O’Rourke, Mrs Buchanan, Human Resources Manager and Mr A Dick, Nurse Advisor.  The Presenting Officer at this hearing was Mrs R Hood the Midwifery Services Manager.  The applicant was notified by letter dated 16 December 1999 that the disciplinary panel had concluded that the allegations were proven and the applicant was issued with a final warning which was to remain on her personal file for a two year period.  The panel also recommended that the applicant be downgraded to a Grade D and placed in a suitable post outside of her current ward.  The applicant sought to appeal this decision and an appeal hearing took place on 14 February 2000 which was by way of a rehearing.  At that hearing the applicant was represented by a solicitor and the members of that appeal hearing were – Mr Alan Best, the Human Resources Director, Mrs Fitzsimons a non-executive director of the Trust and Mr Alan Finn Director of Nursing and Acute Services for the Trust.  That hearing proceeded by way of a rehearing at the end of which the panel considered what they had heard overnight and reconvened the following day to decide on the outcome.

11.	The applicant was notified by letter dated 18 February 2000 that the appeal panel accepted that the allegations of interfering with an investigation and threatening the Acting Community Services Manager were proven, and having taken into account her previous record the appeal panel directed that the applicant should receive a final warning to remain on her record for two years, be downgraded to an E grade nurse and transferred to another ward and be subject to formal supervision by a nominated senior manager.  That panel also decided that the applicant should not be retained on the staff support counselling scheme and the applicant was requested to contact Mrs Karen McIlveen, the senior manager at the hospital to arrange for her return to work.

12.	The applicant requested that the matter be referred to independent arbitration but this was refused by the respondent.  The applicant’s doctor certified the applicant as incapable of work due to work related stress from 20 March 2000.  As a result of this she was requested to attend Dr Black the respondent’s Occupational Health Consultant on 10 April 2000.  Dr Black in a report dated 10 April 2000, which was received by the Personnel Department on 11 April 2000 indicated that the applicant had 

"indicated repeatedly this morning that she does not intend to return to work, but intends to resign.  She also advised me that it was not her intention to remain off on long term sick leave. 

There is no doubt Mrs Hamilton is suffering from a degree of anxiety but given her circumstances I would consider it more abnormal if she was not showing some features of mental distress.  Never the less it is also clear that her continued absence is primarily due to a decision she has made about her employment rather than development of ill health”.

13.	On receipt of this letter from Dr Black, Mrs McIlveen on 13 April 2000 wrote to the applicant saying that Dr Black’s report indicated that her absence was primarily due to a decision she had made about her employment rather than development of ill health and asking the applicant to report to Mrs Devlin, the Principal Nurse on Monday 17 April at 9.00 a.m. to discuss her return to work.  The applicant received this letter on 15 April 2000 which was a Saturday.  She could not get in touch with her trade union representative Mr Matchett and she did not attend the meeting arranged for 9.00 a.m. on 17 April.  Instead she wrote a letter dated 17 April to Mrs Devlin pointing out that she had not had enough time to make arrangements to attend and to enable her union representative to be present.  This letter was received by Mrs Devlin on 18 April and was seen by Mrs McCullough on 20 April 2000.  

14.	On 19 April 2000 Mrs McCullough wrote to the applicant referring to her failure to attend the meeting with Mrs Devlin on Monday 17th..  She informed the applicant that as she had failed to keep the appointment she had instructed the payroll supervisor to withhold the applicant’s salary pending a disciplinary hearing to consider her unauthorised absence from work.  The applicant wrote to Mrs McCullough by letter dated 26 April 2000 pointing out that she had not failed to keep the appointment and saying that any failure was due to the late notification of the appointment.  Also on 26 April Mr Matchett wrote to Mrs McCullough asking her to review the decision to suspend the applicant’s salary on the basis that the applicant had not received adequate notification to attend the interview and asking that the applicant’s salary be reinstated.  There is no provision in the applicant’s terms and conditions for suspending pay in those circumstances.

15.	By letter dated 2 May 2000 Mrs McCullough acknowledged the applicant’s letter of 26 April 2000 and informed her that a hearing would take place on 9 May 2000 in Mrs Devlin’s office.  That letter also indicated that the decision to suspend her salary would be reviewed after this meeting.

16.	By letter dated 6 May 2000 the applicant acknowledged Mrs McCullough’s letter of 2 May 2000.  In this letter she pointed out that she considered the respondent’s suspension of her salary to be a clear and fundamental breach of her contract and she asked for confirmation that she continued to have a contract of employment.  She also pointed out that she had clear medical advice not to return to work in her present condition.  In the event the applicant did not attend the meeting scheduled for 9 May 2000 on the advice of her solicitor and by letter dated 15 May 2000 she wrote to Mrs McCullough pointing out that she had received no reply to her letter of 6 May 2000 and that she believed that the Trust was now in fundamental breach of her contract and gave notice that because of the respondent’s unreasonable behaviour together with the breach of contract she had no alternative other than to assume that she had now been dismissed.

17.	Mr Park on behalf of the respondent, in dealing with the constructive dismissal aspect of the case, suggested that there had been no breach of the applicant’s contract of employment sufficient to allow her to treat her contract at an end.  In so far as the applicant relied on a breach of the implied term of trust and confidence in relation to the disciplinary hearing and appeal hearing and subsequent her demotion and the other sanctions imposed upon her, he suggested that these were justified in circumstances where she had interfered with an investigation into the conduct of a junior nurse.   

18.	He also suggested that the suspension of the applicant’s pay in April 2000 should not be looked at as a breach of the express term in the applicant’s contract to pay her in view of the situation in which the respondent found itself where it had medical opinion that the applicant did not intend to return to work and that this was the cause of the applicant’s non-attendance at work rather than any ill-health.

19.	Mr Park suggested that the respondent’s behaviour in offering the applicant a further meeting after she had pointed out that she had had insufficient time to attend the meeting on 17 April was reasonable and had the applicant attended that meeting, which had been arranged for 9 May 2000, the situation with regard to the payment of her salary would most likely have been resolved.  He also queried whether the applicant had indeed left the respondent’s employment as a result of this supposed breach or whether by that time she had intended to leave the respondent’s employment in any course of events.  In this regard he pointed to the applicant’s application for a post in the City Hospital in February, her comments to Dr Black in April and the speed with which she apparently obtained another nursing job in June.

20.	With regard to the allegation of unlawful discrimination on the grounds of religious belief Mr Park maintained that the applicant had made very little of a case on this ground.  He suggested that asking the applicant to attend Dr Black in October 1999 and the subsequent disciplining of the applicant was not related in any way to her religious belief but was because she had sought to interfere with witnesses and in the case of Pauline Gordon had sought to use their shared religious belief to put her in fear.  

21.	Mr McEvoy for the applicant suggested that the applicant’s treatment in being sent to Dr Black and accused of interfering with witnesses after she had spoken to Mrs Gordon was based in part on her religious belief.  He suggested that there may have been subconscious motivation for treating the applicant in this way.  He suggested that this motivation should be accepted as the effective cause of Mrs Gordon treating the applicant in the way she did.

22.	In relation to the issues surrounding the respondent’s stoppage of the applicant’s pay from 17 April 2000, Mr McEvoy maintained that this suspension of the applicant’s pay and its continued suspension amounted to a fundamental breach of the applicant’s contract of employment such that the applicant was entitled to terminate the contract in these circumstances without notice by reason of the respondent’s conduct.  He suggested that there could be no more significant breach than a failure to pay wages and in the circumstances the applicant was entitled to regard herself as dismissed.  He pointed out while the tenor of Dr Black’s opinion was that the applicant was able to go back to her employment, the applicant was at that time in receipt of medical certificates from her General Practitioner who had treated her over thirty years declaring her to be unfit for work and telling her she should not be making any big decisions about her employment in her current state.  He suggested that a unilateral decision by the respondent to stop the applicant’s pay from 17 April in circumstances where the respondent did not give the applicant sufficient time to attend the meeting on 17 April with her representative was unreasonable and was persisted in even when the respondent was aware by 20 April of her reason for not attending the meeting.

23.	Mr McEvoy also pointed out that simply because the applicant had applied for one other job it could not be taken that she did not intend to return to the respondent’s employ.  Mr McEvoy also suggested that the Tribunal had heard no reasonable explanation as to why the decision to suspend the applicant’s pay was not reconsidered once the applicant had provided a reason for failing to attend the meeting.

24.	Having considered the evidence and submissions the Tribunal did not accept that the applicant had proved that the treatment afforded to her in being requested to attend the Occupational Health Consultant in October and in subsequently being investigated and disciplined for interfering with witnesses in a disciplinary investigation, was on the grounds of religious belief.  The Tribunal was satisfied that the only person who used religious belief in this context was the applicant with Mrs Gordon and that far from Mrs Gordon taking the action she did against the applicant on the grounds of religious belief either consciously or unconsciously, it was the applicant who used their shared religious belief to try to influence Mrs Gordon in relation to the disciplinary investigation and the overall investigation into the running of the ward.

25.	The Tribunal is however satisfied that the respondent’s behaviour in April 2000 was such as to lead to a fundamental breach going to the root of the contract in suspending the applicant’s pay and in failing to take action once the respondent was aware that there was an explanation for the applicant’s failure to attend the meeting arranged for 17 April 2000 and for continuing the suspension of pay for a period of nearly three weeks until 9 May 2000 despite letters from the applicant and George Matchett her trade union representative, both dated 26 April 2000 requesting a lifting of the suspension of pay pending a further meeting.

26.	The Tribunal accepted that suspending the applicant’s salary and leaving her with her pay suspended for this length of time where explanations had been provided for her failure to attend went to the heart of the contract and entitled the applicant to treat herself as dismissed by the respondent, particularly bearing in mind that the applicant’s terms and conditions did not provide for such a suspension of pay.

27.	The Tribunal did not accept that the applicant had decided to leave the respondent’s employment at the time her pay was suspended.  The Tribunal considered that applying for another job in February in a different hospital is not evidence of an intention to leave one’s secure employment.  As far as the medical report from Dr Black was concerned about the applicant’s alleged intention not to return to work, the Tribunal did not hear from Dr Black and found the applicant’s evidence on this matter that she was in an emotional state and apprehensive about how her return to work would be managed in the circumstances very convincing and at odds with Dr Black’s report that she did not intend to return to work.

28.	In all the circumstances the Tribunal was satisfied that the respondent’s treatment of the applicant in April 2000 and May 2000 amounted to constructive and unfair dismissal.  

29.	The matter of remedy is adjourned for further consideration. 

Chairman:

Date and place of hearing:  9-11 June 2003, Belfast

Date decision recorded in register and issued to parties: