Fair Employment Tribunal Northern Ireland Decisions

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Cite as: [2003] NIFET 427_98

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FAIR EMPLOYMENT TRIBUNAL

CASE REFS: 00427/98 FET

03187/98 UD

APPLICANT: Gertrude Jeanette McLaughlin

RESPONDENT: North & West Belfast Health & Social Services Trust

DECISION

The unanimous decision of the Tribunal is that:-

(i) the applicant's complaint of unlawful discrimination on the grounds of religious belief and political opinion insofar as it relates to an alleged continuing failure on the part of the respondent from 1997 to 31 August 1998 to ensure that the applicant did not or would not have to work in the vicinity of Staff Nurse McCollum was presented outside the time limit and that it would not be just and equitable in all the circumstances of the case, to consider it. That complaint is therefore dismissed;

(ii) the applicant's further complaint that her dismissal also amounted to an act of unlawful discrimination on the grounds of religious belief and political opinion because the respondent sent Mrs Morgan, an alleged friend of Staff Nurse McCollum, to the applicant's home, while she was on sickness leave, to discuss the termination of her employment is dismissed; and

(iii) the applicant's complaint of unfair dismissal is dismissed.

Appearances:

The applicant was represented by Mr O'Sullivan, Barrister-at-Law, instructed by P Drinan, Solicitor.

The respondent was represented by Mr Crothers, Solicitor, of Brangam Bagnall & Company, Solicitors.

By Originating Application presented on 24 September 1998 the applicant complained that she had been unlawfully discriminated against by the respondent on the grounds of religious belief and political opinion and that she had been unfairly dismissed.

There was no dispute that the applicant's unfair dismissal complaint had been presented within the statutory time limit. However the respondent disputed that the applicant's complaint of unlawful discrimination on the grounds of religious belief and political opinion had been presented within the statutory time limit. A preliminary hearing was therefore arranged and took place on 21 June 2001 to determine that issue.

By decision issued to the parties on 26 July 2001 the tribunal recorded the applicant's allegations of unlawful discrimination on the grounds of religious belief and political opinion as follows:-

(1) She was subjected to sectarian bullying by a number of the respondent's employees while working for the respondent in Finglass Ward during 1992 and 1993.

(2) She made an oral complaint to the respondent in 1993 and at her own request was moved out of Finglass Ward to Conicar Ward.

(3) She enjoyed working in Conicar Ward and experienced no further problems until 1997.

(4) Notwithstanding that, in April 1995, she made a formal written complaint about the incidents which she alleged had occurred in 1992 and 1993.

(5) The respondent investigated her complaints in May 1995.

(6) She was not informed of the outcome of the investigation. All she understood was that all those against whom she had allegations were transferred.

(7) In 1997, Staff Nurse I McCollum, whom the applicant regarded as the main perpetrator of the alleged sectarian bullying of her in 1992 and 1993 came into the applicant's ward on occasions in the course of her employment with the respondent.

(8) The applicant was unaware that Staff Nurse McCollum had left the respondent's employment in June 1997 and believed that she continued to come into her ward after that date. Mrs Morgan, who was working for the respondent as a Nurse Manager in Muckamore Abbey Hospital at that time, did not know if Staff Nurse McCollum had continued to come into the applicant's ward after she had left the respondent's employment and took up employment with another Trust. However she accepted in cross-examination that Staff Nurse McCollum may have.

(9) Staff Nurse McCollum did not subject the applicant to any acts of unlawful discrimination when she came into her ward. However the applicant was very concerned at having to work in her vicinity in view of the way she believed she had been treated by her in 1992 and 1993.

(10) In July 1997, Mr Anderson, another employee, made sectarian comments to the applicant.

(11) The applicant did not report either this incident or her concerns about Staff Nurse McCollum's presence in her ward to the respondent. However she became so stressed by Staff Nurse McCollum's presence that she became ill and went on sick leave in March 1998. She attended her doctor on 10 March 1998 and obtained a sickness certificate for 'environmental' stress. She was adamant that the stress was work related although she accepted she may not have told her doctor this.

(12) The applicant remained on sickness absence until 31 August 1998 when she was dismissed on the grounds of ill health.

(13) The applicant then sought legal advice and lodged her Originating Application on 24 September 1998.

The tribunal was not satisfied that those allegations, if substantiated, would constitute a continuing act but considered that they fell into the following four separate and distinct categories:-

(1) Complaints that certain employees subjected her to sectarian bullying during 1992 and 1993.

(2) The investigation by the respondent of those complaints in 1995.

(3) The alleged act of sectarian harassment by Mr Anderson in July 1997.

(4) The alleged failure on the part of the respondent from 1997 to 31 August 1998 to ensure that the applicant did not or would not have to work in the vicinity of Staff Nurse McCollum, when Staff Nurse McCollum was working for the respondent or for another Trust. The applicant's claim is essentially but for this continuing failure she would not have become ill and would not have been dismissed.

The tribunal found that the first three categories of complaint were out-of-time and concluded that it would not be just and equitable to extend the time limit.

The fourth category of alleged unlawful discrimination on the grounds of religious belief and political opinion was the alleged failure on the part of the respondent from 1997 to 31 August 1998 to ensure that the applicant would not have to work in the vicinity of Staff Nurse McCollum when Staff Nurse McCollum was working for either the respondent or for another Trust. The applicant alleged that but for this continuing failure which persisted up to her dismissal on 31 August 1998 she would not have become ill and would not have been dismissed. The tribunal concluded that if those complaints were substantiated at the present hearing they could amount to an act of unlawful discrimination on the grounds of religious belief and political opinion.

Mr Crothers pointed out that as a result of the respondent's further investigation, following receipt of further particulars from the applicant after the issue of the preliminary decision, the respondent was contending that the alleged failure on the part of the respondent, as set out in the fourth category of complaint, could not have continued after 5 November 1997. Mr Crothers therefore submitted that the applicant's fourth category of unlawful discrimination on the grounds of religious belief and political opinion which is the only category before the tribunal has been presented outside the statutory time limit and that the tribunal therefore has no jurisdiction to consider the complaint.

Mr O'Sullivan submitted that the applicant was also alleging that her dismissal amounted to unlawful discrimination on the grounds of religious belief and political opinion. That was because the respondent sent Mrs Morgan, an alleged friend of Staff Nurse McCollum, to the applicant's home, while she was on sickness leave, to discuss the termination of her employment. The applicant claimed that this caused her to feel so intimidated that she was unable to fight for her job and was therefore dismissed.

Mr Crothers submitted that this was an additional complaint of unlawful discrimination which had not been alleged in the Originating Application.

Before determining whether it would be appropriate to consider the substantive merits of the applicant's complaint of unlawful discrimination on the grounds of religious belief and political opinion as set out in the fourth category of complaint, the tribunal considered whether that allegation had been presented within the statutory time limit and if not, whether the time limit should be extended.

The tribunal found the following relevant facts in relation to the time issue.

1 The applicant commenced employment with the respondent as a Nursing Assistant in Muckamore Abbey Hospital on 16 June 1991.

2 The applicant worked with Staff Nurse McCollum in Finglass Ward during 1992 and 1993.

3 In 1993 the applicant made an oral complaint about the alleged sectarian conduct of a number of people towards her, including Staff Nurse McCollum whom she regarded as the main perpetrator. The applicant made a formal complaint in 1995 but was not made aware of the outcome.

4 At the applicant's request, she was moved from Finglass Ward to Conicar Ward in 1993. Conicar Ward is a two-storey, sixteen bed, locked unit for very disturbed children who are in need of a lot of care. The applicant enjoyed working in Conicar Ward and had no difficulty with the fact that Staff Nurse McCollum was still working for the respondent while they did not work on the same ward.

.5 Although Mr Crothers put it to the applicant, in cross-examination, that Staff Nurse McCollum had left the respondent's employment in June 1997, the applicant was unaware of the date and no evidence was adduced as to the actual date. However the tribunal is satisfied that at some stage in 1997, Staff Nurse McCollum left the respondent's employment, took up employment with another Trust and became the Community Nurse for a 17 year old boy who had been admitted to Conicar Ward for respite care.

.6 In view of the fact that the applicant had been working in Conicar Ward when Staff Nurse McCollum's patient was admitted for respite care and in view of the fact that Conicar Ward had a maximum of 16 patients at any one time, the tribunal is satisfied that it is likely that the applicant was aware that Staff Nurse McCollum's visits to Conicar Ward were in respect of her patient and that she did not have a key. Indeed the applicant stated in her originating application that Staff Nurse McCollum 'got work in the Community and was in contact with the Hospital and in doing so was in contact with the ward that I was working'.

.7 The applicant was unable to remember when or how often Staff Nurse McCollum had come onto the ward except that she started to come onto the ward in 1997 and continued to visit the ward until March 1998 when the applicant went on sick leave. The applicant claimed that she believed that Staff Nurse McCollum could have continued to come onto the ward right up until the applicant's dismissal on 31 August 1998.

The respondent had records of three occasions when Staff Nurse McCollum was in Conicar Ward attending multi-disciplinary review meetings in relation to her patient. Mrs Steele, the respondent's Nursing Services Manager for Muckamore Abbey Hospital, accepted, in cross-examination, that it was possible for Staff Nurse McCollum to have visited her patient on the ward on other occasions during this period. However Mrs Steele also gave evidence that the normal procedure was that such visits would have been recorded in the patient's notes. Mrs Steele gave further evidence that she had checked the patient's notes, which were admitted as evidence, and apart from Staff Nurse McCollum's attendance at the three multi-disciplinary review meetings in relation to her patient on 11 April 1997, 25 July 1997 and 16 October 1997 there was no other record of Staff Nurse McCollum having come onto Conicar Ward in relation to her patient.

The tribunal is satisfied, from the evidence, that it is likely that Staff Nurse McCollum was only in Conicar Ward on 11 April 1997, 25 July 1997 and 16 October 1997, when she attended three multi-disciplinary review meetings in respect of her patient.

.8 Staff Nurse McCollum's patient turned 18 on 5 November 1997 and was therefore transferred out of Conicar Ward, which was a children's ward, to an adult ward. In view of the fact that the applicant was working in Conicar Ward throughout the period that Staff Nurse McCollum's patient was there and as Conicar Ward had a maximum of 16 patients at any one time, the tribunal considers it likely that the applicant was aware of the patient's transfer.

.9 The tribunal considers that as the applicant was aware that Staff Nurse McCollum's attendances at Conicar Ward related to that patient, it is likely that she was also aware that Staff Nurse McCollum would not be returning to Conicar Ward after 5 November 1997 and did not in fact return after 16 October 1997.

As the applicant had indicated at the preliminary hearing, and as Mr O'Sullivan accepted on her behalf at the substantive hearing, that she was not complaining about any periods when Staff Nurse McCollum was working in other wards in Muckamore Abbey Hospital, the tribunal is satisfied that the alleged continuing failure on the part of the respondent to ensure that the applicant would not have to work in the vicinity of Staff Nurse McCollum, could not have continued beyond 5 November 1997 when the Staff Nurse McCollum's patient reached adulthood and was transferred to an adult ward and afterwards Staff Nurse McCollum did not return to the ward.

The Fair Employment (Northern Ireland) Act 1976 (as amended) was the legislation in force at the time of the presentation of the applicant's complaint.

Section 24(2) of the said Act provides:-

"Subject to subsection (3), the Tribunal shall not consider a complaint unless it is brought before whichever is the earlier of –

(a) the end of the period of three months beginning with the day on which the complainant first had knowledge, or might reasonably be expected first to have had knowledge, of the act complained of, or

(b) the end of the period of six months beginning with the day on which the act was done."

Section 24(3) provides:-

"The Tribunal may consider a complaint which is out of time if, in all the circumstances of the case, it considers that it is just and equitable to do so."

Section 24 (2A) provides:-

"For the purposes of subsection (2) –

(a) ...

(b) any act extending over a period shall be treated as done at the end of that period."

The tribunal considers that taking the applicant's case at its height, the act of alleged discrimination was done on 5 November 1997 as that is the last day upon which Staff Nurse McCollum could have come onto Conicar Ward in relation to her patient. Six months from that date is 5 May 1998 (Section 24(2)(a)). Notwithstanding Mr Crothers' argument that the applicant might reasonably have been expected first to have had knowledge of the act complained of on 11 April 1997, the tribunal concludes that the applicant first had knowledge or might reasonably have been expected first to have had knowledge of the continuing act complained of on the date of its completion which was also 5 November 1997. Three months from that date is 5 February 1998 (Section 24(2)(b)).

The tribunal therefore concludes that the time limit expired on 5 February 1998 which is the earlier of the two dates set out at Paragraph 13. above. As the Originating Application was not presented until 24 September 1998 it is out-of-time. The tribunal then considered whether it would be just and equitable to extend the time limit in all the circumstances of the case. In doing so the tribunal must consider the prejudice which each party would suffer as a result of granting or refusing an extension of time and in so doing should have regard to all the other circumstances of the case in particular:-

(a) the length of and reasons for the delay

The applicant has delayed over seven and a half months in this case. In view of the tribunal's previous findings, as set out in the preliminary decision, that the applicant's medical condition did not prevent her bringing proceedings within the time limit, the applicant did not rely on it as a reason for the delay on this occasion. The applicant explained that the delay was caused by the fact that she did not know that Staff Nurse McCollum would not be returning to Conicar Ward after 5 November 1997. In view of the tribunal's findings which are set out at Paragraph 11. above, the tribunal did not consider that explanation to be credible.

(b) the extent to which the cogency of the evidence is likely to be affected by the delay

No evidence was adduced to indicate that the cogency of the evidence had been affected by the applicant's delay.

(c) the extent to which the parties sued had co-operated with any requests for information

There was no suggestion that any of the applicant's delay had been caused or contributed to by the respondent failing to co-operate with any request for information.

(d) the promptness with which the applicant acted once she knew of the facts giving rise to the cause of action

Although the applicant had clear knowledge of the facts giving rise to her claim by November 1997, she did not seek legal advice until September 1998. The tribunal considers that if the applicant had been genuinely concerned about Staff Nurse McCollum's presence in Conicar Ward it would have expected her to have sought advice during her employment or to have reported her concerns to Ms Paisley and Mrs Campbell, or Doctor Corkey or her own General Practitioner. Further as it is likely that the applicant consulted a solicitor during the period from May 1997 when she put her house up for sale and March 1998 when she moved, the tribunal considers that she could reasonably have been expected to have sought advice during that period.

(e) the steps taken by the applicant to obtain appropriate professional advice once she knew of the possibility of taking action

The applicant claimed that she only knew of the possibility of taking action in September 1998. If that is genuinely the case then she did act promptly once she knew. However the tribunal considers that if she had sought advice in relation to the facts known to her at an earlier stage, she could have acted a lot more promptly.

Although the respondent has adduced no evidence of prejudice in relation to this complaint and although the applicant could suffer prejudice if her substantive case is not considered, the tribunal does not consider that it would be just and equitable in all the circumstances of the case, set out above, to extend the time limit.

The tribunal therefore concluded that the applicant's complaint that the respondent had unlawfully discriminated against her by failing to ensure that the applicant would not have to work in the vicinity of Staff Nurse McCollum, when Staff Nurse McCollum was working for either the respondent or for another Trust, from 1997 to 31 August 1998 should be dismissed.

In relation to the applicant's complaint that her dismissal also amounted to unlawful discrimination on the grounds of religious belief and political opinion by the respondent, because the respondent had sent an alleged friend of Staff Nurse McCollum to the applicant's home, while she was on sickness leave, to discuss the termination of her employment, causing the applicant to feel so intimidated that she was unable to fight for her job and was therefore dismissed, the tribunal considers that this is a separate complaint of unlawful discrimination which was not contained in the Originating Application and which was not referred to at the preliminary hearing. The tribunal therefore considers that in the absence of an amendment application, which was neither made nor granted, the tribunal has no jurisdiction to consider this separate complaint. However even if the tribunal did have jurisdiction to consider this complaint, the tribunal preferred the evidence of Mrs Morgan, who was a co-religionist of the applicant, that she was not a friend of Staff Nurse McCollum and did not accept that her presence amounted to an act of unlawful discrimination by the respondent against the applicant, as alleged.

THE APPLICANT'S COMPLAINT OF UNFAIR DISMISSAL

The tribunal repeats the following relevant facts it found in relation to the applicant's unlawful discrimination complaint set out at Paragraph 11. above

.1 The applicant commenced employment with the respondent as a Nursing Assistant in Muckamore Abbey Hospital on 16 June 1991.

.2 The applicant worked with Staff Nurse McCollum worked together in Finglass Ward during 1992 and 1993.

.3 In 1993 the applicant made an oral complaint about the alleged sectarian conduct of a number of people towards her, including Staff Nurse McCollum whom she regarded as the main perpetrator. The applicant made a formal complaint in 1995 but was not made aware of the outcome.

.4 At the applicant's request, she was moved from Finglass Ward to Conicar Ward in 1993. Conicar Ward is a two-storey, sixteen bed, locked unit for very disturbed children who are in need of a lot of care. The applicant enjoyed working in Conicar Ward and had no difficulty with the fact that Staff Nurse McCollum was still working for the respondent while they did not work on the same ward.

.5 Staff Nurse McCollum left the respondent's employment at some stage during 1997, took up employment with another Trust and became the Community Nurse for a 17 year old boy who had been admitted to Conicar Ward for respite care.

.6 The applicant was aware that Staff Nurse McCollum's visits to Conicar Ward were in respect of her patient and that she did not have a key.

.7 Staff Nurse McCollum was only in Conicar Ward on 11 April 1997, 25 July 1997 and 16 October 1997, when she attended three multi-disciplinary review meetings in respect of her patient.

.8 Staff Nurse McCollum's patient turned 18 on 5 November 1997 and was therefore transferred out of Conicar Ward, which was a children's ward, to an adult ward. The applicant was aware of the patient's transfer.

.9 The applicant was also aware that Staff Nurse McCollum would not be returning to Conicar Ward after 5 November 1997 and did not in fact return after 16 October 1997.

The Tribunal found the following additional relevant facts.

.10 The applicant went on sickness leave in March 1998. She attended her doctor on 10 March 1998. Her medical notes record that she was diagnosed as suffering from 'environmental' stress which the applicant told the tribunal amounted to altitude sickness which occurred when she went to live in the mountains in Annalong.

.11 Her original medical certificate identified the cause of her ill-health as chest pains. Her subsequent medical certificates identified stress as the cause of her illness. She was therefore referred to the Occupational Health Service by the respondent. The applicant's first appointment with the Occupational Health Doctor did not proceed because the applicant was late and the doctor had left by the time she arrived.

.12 The applicant was asked to and did attend a meeting with Mrs Campbell, the respondent's Deputy Site Director for Muckamore Abbey Hospital, and Ms Paisley, a Human Resources Officer, to discuss her ill-health absence, in Ms Paisley's office on 29 April 1998. The tribunal is satisfied that Mrs Campbell and Ms Paisley asked the applicant if there was anything they could do to help her. Although the applicant advised them that her stress was not work-related but that the previous investigation in 1995, although not related, was relevant, she made no mention of Staff Nurse McCollum's attendances in Conicar Ward. Rather she told them that she loved her work and intended to return despite the fact that she had moved home from Antrim to Annalong. The applicant was advised of the Occupational Health Counselling Service and that she should continue to see her General Practitioner. She was also assured that she could contact Mrs Campbell or Ms Paisley at any time.

.13 The applicant attended Doctor Corkey of the Occupational Health Service on 12 May 1998. Doctor Corkey reported to the respondent that he considered it unlikely that the applicant would be able to return to work because her medical problems had not resolved despite treatment and because she now lived 50 miles away from work. Doctor Corkey also reported that he and the applicant had discussed ill-health retirement because the applicant was unsure whether she would be returning to work. Finally, Doctor Corkey indicated that he would review the applicant after a month.

.14 The applicant attended Doctor Corkey for that review on 9 June 1998. Following that review, Doctor Corkey recommended ill-health retirement because in his opinion the applicant was no better and was unlikely to return to work again.

.15 As a result of this report, Ms Paisley wrote to the applicant, by letter dated 29 June 1998, indicating that she and Mrs Campbell would like to visit her at home on 10 July 1998 to discuss her employment as a Nursing Assistant and her absence from work due to illness. The applicant was informed that, if she wished, she could have a trade union representative with her at the meeting.

.16 Due to the unrest in Northern Ireland in early July 1998, Mrs Campbell and Ms Paisley were unable to make the visit. They were also unable to contact the applicant by telephone as her number was ex-directory. Ms Paisley therefore wrote to the applicant on 9 July 1998 to advise her that the visit had been cancelled. The applicant did not receive the letter on 10 July. However when Mrs Campbell and Ms Paisley did not arrive, she realised that it may have been due to the unrest and telephoned the respondent to check. She gave the respondent her telephone number at that stage.

.17 A further meeting was arranged, by telephone, for 4 August 1998 at the applicant's home. This meeting was confirmed in writing to the applicant who was again informed that Mrs Campbell and Ms Paisley would attend and that she could have a trade union representative present.

.18 Mrs Campbell was unable to attend the meeting and Mrs Morgan, the Acting Nurse Manager, went in her place. The applicant was not advised of this change prior to the meeting. Although the applicant claimed that Mrs Morgan was a friend of Staff Nurse McCollum, the tribunal preferred Mrs Morgan's evidence that she was not.

.19 At that meeting on 4 August 1998 the tribunal is satisfied that Ms Paisley and Mrs Morgan discussed the Occupational Health reports of 12 May 1998 and 9 June 1998 with the applicant. The tribunal is also satisfied that in view of the fact that Doctor Corkey of the Occupational Health Service recommended ill-health retirement for the applicant, Ms Paisley and Mrs Morgan explained to her that she could not apply for ill-health retirement because she had not paid Superannuation but that her post would be terminated on ill-health grounds. The applicant indicated that she still intended to return to work when she was fit to do so. The tribunal is satisfied that Ms Paisley and Mrs Morgan therefore discussed the following matters with the applicant:-

(i) travelling to work;

(ii) redeployment;

(iii) Enrolled Nurse positions/Nursing Assistant post;

(iv) part-time working;

(v) working in other wards.

The tribunal is satisfied that the applicant asked Ms Paisley and Mrs Morgan what she would be required to do if she were to resign and that it was explained to her that she would need to put her resignation in writing giving notice if possible. The tribunal is also satisfied that it was explained to the applicant that if the respondent terminated her post she would be paid seven weeks pay in lieu of notice along with any outstanding annual leave and bank holidays.

.20 The tribunal is satisfied that following this explanation, the applicant informed Ms Paisley and Mrs Campbell that she did not accept Doctor Corkey's recommendations and that she wanted to return to work when she was fit. In view of that indication, the tribunal is satisfied that it was agreed that a further appointment would be made for the applicant with the Occupational Health Service.

.21 That appointment was made for 25 August 1998. The applicant did not attend that appointment. The applicant telephoned the respondent to speak to Ms Paisley on 26 August 1998. Ms Paisley was not available to take the call immediately but returned the applicant's call that same day. The tribunal is satisfied that the applicant informed Ms Paisley that she wished to go ahead with the option of her employment being terminated by the respondent. The tribunal is satisfied that Ms Paisley informed the applicant that another appointment had been made to see the Occupational Health Doctor on 3 September 1998. However the applicant indicated that she felt there would be no point in attending the Occupational Health Doctor because she believed that he knew what he was talking about. The applicant also indicated that she did not wish to continue in her post because it was in the Antrim area. The tribunal is satisfied that Ms Paisley informed the applicant that a further meeting would be required. Having checked Mrs Morgan's availability, Ms Paisley telephoned the applicant and informed her that they could meet with her on either 27 August 1998 or 14 September 1998 when Ms Paisley returned from annual leave. The applicant indicated that she would like the meeting to take place on 27 August 1998. The tribunal is satisfied that Ms Paisley informed the applicant that she could bring someone with her to the meeting.

.22 That meeting did take place on 27 August 1998 in Ms Paisley's office with Mrs Morgan also present. The applicant was accompanied by her daughter.

.23 The tribunal is satisfied that Ms Paisley went back over the options discussed at 4 August 1998 meeting and asked the applicant if she still wished to have her post terminated. The tribunal is satisfied that the applicant indicated that she had discussed the matter with her General Practitioner and had decided that it would be better for her not to work in the Antrim area. The tribunal is satisfied that Mrs Morgan then checked with the applicant if she was happy to have her employment terminated and the applicant confirmed that she was.

.24 The tribunal is satisfied that the applicant's post was then terminated with effect from 31 August 1998.

.25 By letter dated 28 August 1998, Ms Paisley wrote to the applicant confirming that "it has been decided to terminate your employment on the grounds of ill-health" effective from 31 August 1998.

Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 the applicant has the right not to be unfairly dismissed by the respondent. The onus is on the applicant to prove, on a balance of probabilities, that she was dismissed. Article 127 sets out the circumstances in which an employee is dismissed. Although Mr Crothers submitted that it would be open to the tribunal to conclude that the applicant's termination was consensual, the tribunal is satisfied that the applicant has proved, on balance, that the contract under which she was employed was terminated by the respondent with notice in accordance with Article 127(1)(a). The tribunal considers that its conclusion is supported by Ms Paisley's letter to the applicant dated 28 August 1998 referred to at Paragraph 19.25 above.

The onus is then on the respondent, under Article 130, to show the reason for the dismissal and that it is a reason falling within Article 130(2) or some other substantial reason. The tribunal is satisfied that the respondent has shown that the reason for the applicant's dismissal was ill-health and for the purposes of Article 130(2) that reason related to the capability of the applicant for performing work of the kind which she was employed by the employer to do.

The tribunal must then determine whether the dismissal is fair or unfair having regard to the reason shown by the respondent and that determination -

"(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".

The applicant claimed that the respondent acted unreasonably in treating her illness as a sufficient reason for dismissing her for the following reasons:-

(1) the role having to come into contact with Staff Nurse McCollum in the workplace played on the applicant's ill-health;

(2) Mrs Morgan's attendance at the applicant's home on 4 August 1998, when she was a friend of Staff Nurse McCollum, caused any consultation to be flawed;

(3) the evidence suggested that the respondent had already decided to terminate the applicant's employment before ascertaining the true medical position, before consulting with her and before giving her the opportunity to state her case.

In relation to the applicant's claim that the respondent acted unreasonably in treating her ill-health as a sufficient reason for dismissal in view of the role having to come into contact with Staff Nurse McCollum played on her ill-health, the tribunal is satisfied that the respondent took all reasonable steps to ascertain the cause of the applicant's ill-health and could not reasonably have been expected to have been aware of any role that Staff Nurse McCollum might have had in her applicant's ill-health for the following reasons.

(1) There was no evidence that following the investigation in 1995, it was decided that the applicant should never have to work in the vicinity of Staff Nurse McCollum.

(2) The applicant only attended her General Practitioner on one occasion during 1997, namely on 15 May 1997, but did not relate any concerns about Staff Nurse McCollum to her General Practitioner. The applicant did not attend her General Practitioner again until 10 March 1998 when she obtained a medical certificate due to stress which was described in her medical notes as 'environmental'. The applicant told the tribunal in her evidence that this 'environmental' stress was caused by living in the mountains in Annalong.

(3) The applicant did not tell any member of the respondent's staff of her concerns about the presence of Staff Nurse McCollum prior to going on sickness leave in March 1998.

(4) Although the applicant told Mrs Campbell and Ms Paisley, at her meeting with them on 29 April 1998 to discuss her ill-health absence, that the previous investigation involving Staff Nurse McCollum, which took place in 1995, although not related to her stress, was relevant, , the applicant made no mention of her present allegation concerning Staff Nurse McCollum.

(5) The applicant made no mention of her present allegation concerning Staff Nurse McCollum to Doctor Corkey, the Occupational Health Doctor, when she attended with him on 12 May 1998 or 9 June 1998.

(6) The applicant made no mention of her present allegation in relation to Staff Nurse McCollum at either of her meetings with Ms Paisley and Mrs Morgan on 4 or 27 August 1998.

At one stage of her evidence the applicant claimed that this was because she was intimidated by the presence of Mrs Morgan who she believed was a friend of Staff Nurse McCollum. The tribunal has already found that Mrs Morgan was not a friend of Staff Nurse McCollum. However even if the applicant genuinely believed that Mrs Morgan was a friend and even if she was genuinely intimidated by her presence, there was no reason why the applicant could not have disclosed her concern about Staff Nurse McCollum to Mrs Campbell and Ms Paisley at the first meeting of 29 April 1998 at which Mrs Morgan was not present and at which the applicant indicated that the previous investigation in 1995 was related.

At another stage in her evidence the applicant claimed that she did not report the matter because the respondent had done nothing in relation to her 1995 complaint. The tribunal considers that if the applicant felt able to refer to the previous 1995 investigation at her meeting with Mrs Campbell and Ms Paisley on 29 April 1998, it is likely that she would also have referred to her present allegation in relation to Staff Nurse McCollum if her concern was genuine.

In view of the facts found by the tribunal, as set out above, the tribunal is not even satisfied that the applicant's alleged concerns about Staff Nurse McCollum's presence on Conicar Ward were the real reason for her ill-health.

In relation to the applicant's claim that the respondent acted unreasonably in treating her ill-health as a sufficient reason for dismissal, in view of the presence of Mrs Morgan at two of the respondent's meetings with the applicant, when she was a friend of Staff Nurse McCollum, the tribunal has already indicated that it preferred Mrs Morgan's evidence in this regard and found that she was not a friend of Staff Nurse McCollum. The tribunal considers that it would have been preferable if the respondent had told the applicant in advance that a different person was coming to her home but does not consider that that failure rendered the dismissal unfair in the circumstances. The fact that this allegation was not included in the applicant's Originating Application, led the tribunal to conclude that the applicant did not genuinely believe it to be the case at the time of the meetings but has sought to introduce it at a later stage as a result of inaccurate hearsay from a person or persons she refused to identify.

In relation to the applicant's claim that the respondent acted unfairly in treating her ill-health as a sufficient reason for dismissal because the evidence suggests that the respondent had already decided to dismiss the applicant on the ground of ill-health before ascertaining the true medical position, before consulting with her and before giving her the opportunity to state her case, the tribunal is not satisfied that that would be an appropriate inference to draw from the evidence. Although it is clear from the witness statements of Ms Paisley and Mrs Morgan that they did tell the applicant at the meeting on 4 August 1998 that her post would be terminated on ill-health grounds, the tribunal considers that Mr O'Sullivan has considered that out of context. The tribunal is satisfied that the purpose of Ms Paisley and Mrs Morgan's meeting with the applicant on 4 August 1998 was to discuss the applicant's absence from work due to illness following receipt of Doctor Corkey's Occupational Health reports of 12 May 1998 and 9 June 1998. In the first report dated 12 May 1998, Doctor Corkey's opinion was that the applicant was unlikely to be able to return to work although she was unsure. Doctor Corkey also reported that he and the applicant had discussed ill-health retirement. In his second report of 9 June 1998, Doctor Corkey's opinion was that the applicant would be unlikely to return to work again and on this occasion he recommended ill-health retirement for the applicant. In view of those reports and the recommendation contained in the second report, the tribunal considers that the respondent would have been acting unreasonably if Ms Paisley and Mrs Morgan had failed to point out to the applicant that, because she had not paid Superannuation, she could not apply for ill-health retirement and that the reality was that if she was not fit to return to work, as Doctor Corkey had indicated, her post would be terminated on ill-health grounds.

The tribunal is satisfied that once the applicant indicated that she wished to return to work, Ms Paisley and Mrs Morgan discussed a number of alternatives to termination with her and then made a further appointment for her to attend Doctor Corkey of the Occupational Health Service again. The tribunal is not satisfied that this behaviour suggests that the respondent had already decided to terminate the applicant's employment. The tribunal considers that the fact that the respondent made a further appointment for the applicant to attend Occupational Health Service on 3 September 1998 when she failed to attend her appointment on 25 August 1998 does not suggest that a pre-determined decision had been made. The tribunal is further satisfied that it was only when the applicant asked for her contract to be terminated and when the respondent made sure that that is what she wanted that she was dismissed on 27 August 1998 with effect from 31 August 1998.

The tribunal is satisfied, on the evidence before it and on the facts found, that the respondent did act reasonably in treating the applicant's ill-health as a sufficient reason for dismissing her in that they took reasonable steps to ascertain the applicant's present and likely future medical position. They consulted with the applicant on 29 April, 4 August and 27 August 1998, having given her the opportunity to have a trade union representative present with her and made her aware of Doctor Corkey's opinions and recommendations. They also gave the applicant the opportunity to state her position and when the applicant indicated that she still wished to return to work they made the applicant aware of the alternatives to dismissal. It was only when the applicant asked for her contract to be terminated and the respondent was sure that that was what she wanted, having had a further meeting with her, that the respondent dismissed her. The tribunal therefore determines that the applicant's dismissal was fair and dismisses her complaint of unfair dismissal

Chairman:

Date and place of hearing: 23 and 24 June 2003, Belfast

Date decision recorded in register and issued to parties: