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THE INDUSTRIAL TRIBUNALS

CASE REF: 155/02

APPLICANT: Anna Maria Tate

RESPONDENT: Craigavon Area Hospital Group Trust

DECISION OF THE INDUSTRIAL TRIBUNAL ON REVIEW

Pursuant to Rule 13(7) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004, on review of its Decision of 6 May 2004 the Tribunal confirms the findings of fact set out in its Decision, and now varies its determinations as set out in paragraphs 6(b), (d) and (f) below.

Appearances:

The Applicant was not represented.

The Respondent was represented by Mr E O'Loan, Tughan & Co., Solicitors.

The Decision of the Industrial Tribunal was promulgated to the parties on 6 May 2004.

By letter dated 19 May 2004, the respondent sought a review of the tribunal's decision for the following reasons:

"We apply for a review of the tribunal's decision in the above matter on the ground that the interest of justice requires such a review.

We do not seek to revoke the decision but to vary it.

The decision refers to the actions of Dr Stevens and he is criticised personally, in particular in failing to inform himself in relation to how South Tyrone Hospital had accommodated the applicant, in leaving review of the matter to Denis O'Rourke and in failing to ensure that a specific risk assessment of the applicant was carried out".

By a further letter dated 27 July 2004, the respondent's representative re-emphasised that:

"We confirm that in relation to the review, we do not seek to vary or revoke in any

way any of the recommendations or awards made by the Tribunal".

By a letter dated 28 July 2004, Mr John O'Neill of Thompson McClure, Solicitors, for the applicant advised the Tribunal that:

"Having received the…letter from the respondent's representative, we are writing to respectfully advise you that the applicant has no view as to whether or not any review as requested by the respondent should be allowed to proceed and does not propose to attend at or participate in any proposed review of the tribunal decision or any hearing in connection with same".

The review application was listed before the tribunal on 6 September 2004 at 11.30am. The tribunal, when it sat, was comprised of two of the original tribunal members only. One member of the tribunal had, in error, understood the review hearing was to take place on 8 September 2004, and was unable to attend on 6 September 2004. Having regard to the requirements of Regulation 8(3) of the Industrial Tribunals (Constitution & Rules of Procedure) Regulations (NI) 2004 ["the 2004 Rules"], Mr John O'Neill of Thompson McClure, Solicitors, for the applicant sent a letter by fax to the Office of the Industrial Tribunals at 12.05pm to advise that "…we consent to the hearing proceeding without a full panel". Accordingly, when it sat at 12.10pm, the tribunal was comprised of two members.

Having heard Mr O'Loan's representations, and having considered in full the written submissions tendered to the tribunal, we make the following Decision on Review:

(a) The application for a review is granted pursuant to Rule 13(1) (e) of Schedule 1 to the 2004 Rules. Having had regard to the guidance contained in Harvey Vol 5: T1138-1139, the tribunal is satisfied that the interests of justice require a review of the tribunal's Decision of 6 May 2004 for the reasons set out below;

(b) At paragraph 39(l) of the tribunal's Decision, there is a typographical error in the sentence that begins…"Thus, it is clear from the evidence…". This sentence should read, "Thus, it is clear from the evidence, and from the contents of the policy, that overall responsibility for compliance rested with the Occupational Health Department".

(c) The tribunal affirms its finding, contained in paragraph 8 of its Decision, that "overall responsibility for ensuring compliance with the policy [The Prevention & Management of Latex Allergy] rests with the respondent's Chief Executive, John Templeton, and should 'cascade the line management structure to Heads of Departments'".

(d) On review, having affirmed its finding at paragraph 8 of its Decision, the tribunal would add to its Decision of 6 May 2004 only that Dr Stevens was not an employee or manager or Head of Department within the respondent's unit of management. Moreover, having affirmed its findings in this regard, the tribunal determines that although Dr Stevens is a Consultant in Occupational medicine, at paragraph 39(j) of its Decision the tribunal was incorrect to determine that he had "responsibility for the applicant's phased introduction to Craigavon Area Hospital". Having heard further submissions from Mr O'Loan in this regard, uncontested by the applicant, the tribunal hereby affirms that Dr Stevens bore no responsibility for the applicant's phased introduction to Craigavon Area Hospital".

(e) The tribunal affirms its findings at paragraph 35 of the Decision of 6 May 2004, where it stated:

Since his consultation with the applicant on 30 April 2001, when he wrote that "it may be possible to revisit the situation in a year or two, when further progress towards a latex free environment may have been made at Craigavon Area Hospital", Dr. Stevens has had no further discussion with Roisin Courtney about the applicant's working arrangements, has not been asked by the respondent to review the applicant again, of his own motion has made no further appointments to consult with her again, has taken no further measures to re-introduce her into working on-call rotas at the Craigavon site, and has made no review of his April 2001 recommendations in respect of the applicant. Dr. Stevens confirmed that he was unaware of what progress has been made at Craigavon Area Hospital either – (i) in respect of the current latex-free policy, and (ii) in respect of the implementation of its latex-free policy since April 2001. Mr O'Rourke candidly conceded that "through lack of thought" he had not asked Dr. Stevens to review progress in implementing the Respondent's policy, The Prevention & Management of Latex Allergy, in the Radiography Department since 30 April 2001.

(f) With regard to the findings at paragraph 35 of the Decision of 6 May 2004, the Tribunal determines that it is in the interests of justice to stress that these findings should not be read as containing an implication that Dr Stevens was under a strict duty of care to pursue these further measures to reintroduce the Applicant to on-call rotas at Craigavon Area Hospital. Indeed, Dr Stevens' evidence in cross-examination was that it was for management to decide on such matters, and we found Mr O'Rourke a highly credible witness when he stated that it was "through lack of thought" that he, as Head of the Department of Radiography, had not asked Dr Stevens to review progress in implementing the Respondent's policy with regard to the Applicant's situation. Whilst it occurred to the Tribunal that it may have been prudent for Dr Stevens to have made some effort to see how South Tyrone Hospital had facilitated the Applicant's disability, particularly since the management of that Hospital's personnel was under the aegis of the Respondent in April 2001, the Tribunal accepts and determines that – strictly speaking – Dr Stevens' role was reactive (rather than proactive) in assessing the Applicant's disability and how it could be accommodated in the Respondent's Craigavon site. In particular, he had no managerial power or responsibility to ensure that a risk assessment of the Applicant was carried out.

(g) No further or other determination or Order is made on Review.

Chairman:

Date and place of hearing: 6 September 2004, Belfast