Industrial Tribunals Northern Ireland Decisions

 
THE INDUSTRIAL TRIBUNALS

CASE REF: 8823/03

CLAIMANT: Andrew David Tuckey

RESPONDENT: PRAXIS

DECISION

The unanimous decision of the tribunal is that the application be dismissed.

Appearances:

The claimant was represented by Mr E Tuckey (his Father)

The respondent was represented by Mr P Rodgers, Barrister-at-Law, instructed by J Blair Employment Law Solicitor.

REASONS

1. The claimant had alleged that he had been unfairly dismissed.
2. The issues for the tribunal were, whether the reason for dismissal fell within the class of reasons referred to in the Employment Rights (Northern Ireland) Order 1996 and whether the respondent had acted reasonably in all the circumstances. More specifically this latter aspect involved the tribunal in considering:-

(a) Whether the respondent had reasonable grounds for instigating disciplinary proceedings in the first place.

(b) Whether the respondent conducted a fair and adequate investigation into the circumstances.

(c) Whether the procedures adopted by the respondent were fair, including whether the employee had been given sufficient details of the allegations made against him and sufficient opportunity to answer those allegations.

(d) Whether the conclusions drawn by the respondent on the basis of the evidence before it were reasonable.

(e) Whether the sanction fell within the range of reasonable responses which a reasonable employer could adopt.

3. There was no real dispute as to the facts. The claimant did not adduce any direct evidence in relation to the matter. The tribunal found that the claimant had been employed by the respondent from 1 December 1998 as a support worker in a unit dedicated to enabling clients of the respondent with learning disabilities and/or mental illness or challenging behaviour to learn new skills and develop existing skills. The claimant had been given training in dealing with vulnerable adults in the latter part of 2002 and would have been aware of the respondent's policy in relation to abuse of such adults as set out in their policy document which was produced to the tribunal. The claimant had also received training in relation to dealing with clients who were confrontational or angry.

In early January 2003 a complaint was made to the respondent's management that the claimant had been guilty of inappropriate behaviour in that he had used physical force against a client. An investigation took place. Statements were taken immediately with formal statements being taken later from a number of witnesses including the client, the claimant and the original complainant among others. These statements were provisionally approved by a member of management and sent out to the persons who had made them for final consideration and signing. They were subsequently incorporated into an investigatory report, on the basis of which a recommendation for disciplinary action was made. There were some differences in detail in the statements as regards the precise site of physical contact by the claimant and the precise area in the respondent's premises that the claimant was from time to time. In the claimant's own statement he accepted that he had physically restrained or dealt with the client and conceded that, on reflection, he should have handled things differently. There were some minor differences between some of the statements in the form in which they appeared at various stages in the process but the tribunal was satisfied, and this was accepted on behalf of the claimant, that these points had no direct bearing on the fairness of the procedure or on the possible result.

Once the investigatory report had been issued arrangements were made for a disciplinary hearing. It proved difficult to find an appropriate date and a considerable delay took place, due largely, though not exclusively, to the claimant's own illness from time to time and his trade union representative's availability problems. No hearing had taken place by the end of April when a further question about the claimant's conduct in relation to inappropriate comments about a client, made either to or in the hearing of the client was raised. An investigation took place into that matter in the same manner as previously described. At this stage a discussion took place between a representative of the respondent's Human Resources team and the claimant's trade union representative in which it was suggested that, because the disciplinary hearing in relation to the first matter had not yet been heard, a hearing might be arranged in which both matters could be dealt with, if, in fact, the second matter proceeded to a disciplinary hearing at all. The claimant's trade union representative made no objection to this course and that was in fact what happened.

The disciplinary hearing was conducted by one of the respondent's assistant directors. The matter of the physical restraint was dealt with. Witnesses were called and an opportunity to cross examine those witnesses was given. Adjournments were allowed where requested. The second matter was dealt with in the same way with witnesses being called and cross examination being permitted. There then followed an adjournment after which the assistant director announced her conclusion that in relation to the first matter unnecessary physical force had been used, that this amounted to major misconduct and that a final warning was being given. She then stated her conclusion as regards to the second incident. She found that inappropriate comments were made, that this was unsatisfactory behaviour towards clients amounting to bullying and harassment and that this was, as such, in total breach of the organisation's duty to care and amounted to gross misconduct justifying summary dismissal.

The claimant appealed this decision. The appeal was heard by the respondent's director of care. It was suggested, at the appeal, that the delay in hearing the original complaint was unsatisfactory, and further that it could have had an effect on the arising of the second matter in that the second matter might have been fabricated or misheard. However, the only evidence given at the appeal by or on behalf of the claimant as to what actually happened was that the claimant could not remember what happened on that day at all. The issue of the two matters being heard consecutively was also raised at the appeal. The claimant's representative was reminded of his agreement to that course and accepted that he had no objections in principle and was happy with the explanation as to why they were heard in that way. Witnesses were called at the appeal, the claimant and his representative had an opportunity of putting forward their views and examining the witnesses. A further issue was raised at the appeal regarding another incident of physical force which had occurred, which the claimant had witnessed, and in relation to which, he alleged, no action had been taken. It was suggested, at the appeal, on the part of the respondent, that the two matters were of a wholly different nature. The appeal concluded and, after an interval, the claimant was informed that the decisions in both cases were being upheld.

4. In considering the case it is not the tribunal's function to determine the claimant's guilt or innocence; it is for the tribunal to consider whether, on the facts, the respondent's behaviour in all respects was reasonable and fair. Nor is it the tribunal's function to substitute its own judgment for that of the employer as regards the manner in which things might have been done or the sanctions which might have been imposed. Rather it is the tribunal's function to consider whether the manner in which things were done and the sanctions which were imposed fell within the range of reasonable behaviour or response to the factual situation.
5. In that regard, and considering the issues which have been outlined previously, the tribunal considers that there was ample reason for the respondent in this case to institute investigations into the client's conduct in relation to both matters. In each case the attention of management had been drawn to the claimant's conduct and the nature of that conduct was such as to justify investigation. The investigation which was carried out seemed to cover all the persons who might reasonably be expected to have knowledge of the matters. As well as initial statements further statements were taken with the assistance of dictating machinery and transcribed. There was no suggestion at any time during either the disciplinary or appeal hearings or before the tribunal that the investigations were in any way inadequate and the tribunal finds that they were entirely satisfactory.
6. The procedures adopted in relation to the disciplinary hearing were, likewise, in the tribunal's view satisfactory. Although it had not at any time specifically been stated that the offences were regarded as major or gross misconduct there was never at any time any ambiguity about the nature of the precise allegations being made. There could be no question but that at all times the claimant must have been aware of the precise details of the incidents with which he was having to deal since all the statements upon which it was intended to rely were made available to him prior to the disciplinary hearing. In any event by the time the claimant reached the appeal stage there could be absolutely no doubt about the position of the charges or the seriousness with which they were being viewed by the respondent.

It was suggested on the part of the claimant that it was inherently unfair to hear the two matters consecutively and on the same day. The tribunal cannot see that this should necessarily be so or why the two matters could not be satisfactorily heard in the manner in which they were. This was a course of action which was proposed to the claimant's representative and accepted. It was suggested that hearing the matters in this fashion effectively denied the claimant a right of appeal in respect of the first matter but the tribunal cannot see this. In fact the claimant appealed both decisions.

It was also suggested that a reference, in one of the statements relating to the charges, to a previous unspecified matter and involving the claimant had been deliberately induced by the investigation and must have affected the decision. In fact no details of such previous matter were given whatsoever since any discussion or description of that matter was immediately ruled out by a representative of the respondent's Human Resources Department who was in attendance at the relevant interview. The tribunal was not prepared to find malice as suggested on the claimant's behalf and was satisfied that the reference had not affected the proceedings or the decision.

7. At the disciplinary hearing and at the appeal the respondents found the charges proved. This was a conclusion which could reasonably be drawn on the basis of the evidence which was available to them. It was suggested on the part of the claimant that there was some differences in the statements as regards the physical restraint matter which undermined them to the extent that they could not support the charges. The tribunal disagrees. The respondent's official dealing with the disciplinary hearing stated that she had concluded that, while there might be some minor differences, the overall thrust, namely that there had been contact which would be regarded as inappropriate was clear. The tribunal considers this to be a reasonable conclusion, particularly as the claimant himself conceded, in his own statement, that the matter should have been dealt with in a different way. As regards the second charge the claimant stated merely that he had no recollection of this matter at all, not even of the incident which provoked his comment. There was clear evidence in the shape of statements from other members of staff on which the respondents could draw the conclusion which they did and there was no evidence before them to contradict those statements or to demonstrate that they were for any reason not to be believed.
8. Finally there is the question of whether or not the sanctions imposed in relation to the matters fell within the reasonable range of responses open to a reasonable employer. As has already been stated it is not the function of the tribunal to substitute its own judgment for that of the employer. Its function is to determine whether the sanctions actually imposed fell within the reasonable range. In the tribunal's view they both did. In the first instance the matter could reasonably be regarded as displaying an unsatisfactory attitude towards clients and, as such, major misconduct. As regards the inappropriate comment which the claimant was found to have made it is reasonable to have regard to the nature of the respondents function and the place of the claimant within that function. The claimant would have been well aware of the respondent's position as an organisation dealing with vulnerable adults and committed to treating them and regarding them with dignity and respect. The comments which the claimant was found to have made could be regarded as exhibiting an attitude towards the respondent's clients which any such employer would find wholly unacceptable

and, as such, worthy of being regarded as gross misconduct. In fact the respondents described it as an attitude or a remark amounting to bullying or harassment and the tribunal would not regard that as unreasonable.

9. In all the circumstances the application falls to be dismissed.

Chairman:

Date and place of hearing: 15 February 2005, 11 and 12 April 2005, Belfast.

Date decision recorded in register and issued to parties: