Industrial Tribunals Northern Ireland Decisions

 


THE INDUSTRIAL TRIBUNALS

CASE REF: 875/02

2248/02

CLAIMANT: IVY KERNOHAN

RESPONDENT: CAUSEWAY HEALTH AND SOCIAL SERVICES TRUST

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent, and her claim is dismissed.

Constitution of Tribunal:

Chairman: Mr T Browne

Members: Mr E Grant

Mr J Nicholl

Appearances:

The claimant was represented by Mr P Mullarkey, Solicitor, of Campbell Fitzpatrick, Solicitors.

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

ISSUE AND FINDINGS OF FACT

1. The tribunal had to determine if the claimant had been unfairly dismissed by her employer, the respondent.

The tribunal in determining this issue made findings of fact from the oral and written evidence and from the written materials placed before it.

It was common case that the claimant had been a nurse employed by the respondent and its predecessor from October 1973 until 16 January 2002, when she was dismissed as a result of disciplinary proceedings for gross misconduct. At the time of her dismissal, the claimant was a Grade G nursing sister at Kilrea Health Centre, leading a team of other nursing and auxiliary staff. Her duties were many and various, with particular emphasis upon district nursing home care.

Whilst the tribunal found that the claimant was disciplined and ultimately dismissed under the general heading serious professional negligence and misconduct, there were identifiable separate elements within it which were found by the disciplinary panels to be proved, consisting of:

inappropriate delegation of a complex case to a nursing auxiliary; the tribunal found that this related to several instances of the claimant permitting the auxiliary to tend to a diabetic patient whose foot required the attention of a qualified and experienced nurse;

failing to keep proper records, resulting in the erratic administration of vitamin B12 injections to a patient;

inappropriate retention and storage of controlled drugs at Kilrea Health Centre, which the tribunal found to be the operation of a system initiated by the general practitioners but which the claimant practised without querying its propriety, and as team leader instructed her staff to operate it.

The claimant advanced the case to the tribunal regarding the first allegation that the investigation into her alleged misconduct was inappropriately conducted by Mrs Maggie Senior, who as her line manager had been in constant contact with the claimant since Mrs Senior's appointment as Senior Nurse Manager at the Causeway Trust in 1998. It again was common case that the claimant had sought repeated meetings with Mrs Senior to complain about the lack of staff available to her.

The main cause of the claimant's objection to Mrs Senior was broadly that instead of being an investigator and presenter of the case to the disciplinary panels, she ought to have disqualified herself from those roles because she had material evidence to give on behalf of the claimant, which would have provided the claimant with possible defence to the charges, or at least substantial mitigation which would have led to a sanction short of dismissal. It was found by the tribunal that such objection was not raised by or on behalf of the claimant during the disciplinary process. Whilst the tribunal exercised caution in coming to a conclusion in that regard because neither the claimant nor her representative at those proceedings was legally qualified, it concluded that no specific legal knowledge would have been required to identify this aspect as a matter of objection at a very early stage in the disciplinary process.

The claimant's assertion from the outset regarding the first allegation was that, whilst accepting that she had done the act complained of, she had been under such pressure due to lack of resources that she had been compelled to delegate to Nursing Auxiliary Deighan the task of dressing a diabetic foot on one occasion, so that the claimant could attend a course on administering a procedure to a patient who was due to be discharged from hospital with a terminal condition.

As regards the second allegation, the claimant's case to the tribunal was that she was not the person responsible for inserting a date for giving an injection into the diary which was a Bank Holiday, when she in fact was off on sick leave and annual leave.

The claimant from the outset of the disciplinary investigation regarding the third allegation stated that she had been directed by the General Practitioners at Kilrea Health Centre to operate a system of storage of controlled drugs which was in breach of regulations because these drugs were not stored securely but were kept in a cupboard under a sink. There was clear acceptance of her assertion in that regard from the doctors in the practice.

The point made by the claimant at the tribunal hearing regarding allegations 2 and 3 was that not only was she not directly responsible for the breaches of regulations but that she was being made a scapegoat for other nurses in her team whose culpability in these breaches went undisciplined whilst she was not only disciplined but was dismissed. The tribunal found that at the disciplinary proceedings, it was conceded on the claimant's behalf in her presence by her representative that she not only admitted the breaches but recognised their gravity; indeed at the tribunal hearing it was repeatedly asserted on her behalf that the claimant had shown insight into these incidents and had apologised for them.

The tribunal found that such acceptance stood in stark contrast to the attitude adopted to these issues by the claimant in her evidence to the tribunal. In particular, the claimant sought to clarify the issues surrounding the inappropriate delegation by the claimant to Nursing Auxiliary Deighan and the failure to keep records resulting in the confusion around the administration of a series of injections, despite the fact of the claimant's apparent acceptance of them at the disciplinary proceedings and on her behalf during the tribunal.

The tribunal was impressed by the evidence of Mrs Audrey Douglas, who as Assistant Director of acute hospital services for the respondent had acted as nursing advisor to the disciplinary panel. The claimant had requested that the member acting in the capacity of nursing advisor to the disciplinary appeal panel should have specific knowledge and experience in the field of nursing in which the claimant was employed, so that she would be able to put her case as to the practices and difficulties in that area of nursing, which the claimant sought to establish as her defence. Mrs Douglas conceded that her 24 years of expertise had been gained in a hospital setting, but argued when it was put to her in her evidence to the tribunal that she still was able to assist the disciplinary panels in applying her knowledge of nursing standards from the Nursing Code of Conduct to the actions of the claimant which were the subject of complaint.

The tribunal found Mrs Douglas to be a most impressive witness, and found that her vast experience and clear dedication to the standards of her profession amply qualified her to assess the conduct of the claimant against the standards contained in the Code of Conduct, which she described as the bible of her own practice in all she did in her professional life. She agreed that the claimant by accepting at the disciplinary hearings that she had contravened the Code of Conduct demonstrated insight into her behaviour, but went on to assert that by committing or permitting these breaches in the first place and either repeating them or permitting and instructing others under her supervision to repeat them, had shown a profound lack of insight into her responsibilities to the patients and to those under her supervision.

That lack of insight, when viewed in conjunction with the transgressions by the claimant, was found by the tribunal to be the key element in the decision of the disciplinary panels to reach the decision to dismiss the claimant. The tribunal's views on this aspect were reinforced by the testimony of the claimant to the tribunal. It became clear that whilst the claimant acknowledged the fact of some of her actions, she sought either to justify them because she was under pressure at the time or because no patient in her care came to any actual harm. As regards the defective record keeping, the claimant sought to advance the case that she kept a lot of this information in her head and that she knew what she had done even if she did not record its detail.

The tribunal accepted that the claimant had given many years of dedicated service to the community, but formed the view from the evidence that her robustly pragmatic approach could in her view justify what clearly were significant derogations from acceptable practice by applying the simplistic formula that nobody actually came to any harm. The tribunal found that the claimant had closed her eyes to the potential for disaster which even a lay person could readily have anticipated as a consequence of her conduct and practice.

It was part of the claimant's case that she had been singled out for discipline because of her repeated representations to Mrs Senior as to the practical difficulties faced by her in running the district nursing service because of lack of resources. The two clearly did not have a good working relationship, and the tribunal noted that Mrs Senior made little effort to conceal her resentment of the fact that her actions were being scrutinised, but the tribunal found no evidence to support the view that the claimant was the victim of a vendetta.

The claimant's case in that regard was significantly undermined by her (qualified) acceptance of the fact that her actions had transgressed the Code of Conduct, thereby making disciplinary investigation inevitable, regardless of the identities of the persons responsible for the conduct or the investigation. The claimant also drew attention to the fact that the other nurses had not been disciplined, never mind dismissed, despite the fact that they had continued to operate the drugs storage, or that they filled in the injection diary incorrectly. The tribunal found however as regards the drugs storage that those other nurses were subordinate to the claimant, and followed her instruction in that regard. Whilst the tribunal accepted the claimant's case that, in accordance with the Code of Conduct, each nurse is responsible for her own professional standards regardless of instructions, there was a clear indication from the investigation and from the claimant's demeanour that she would brook no challenge to her authority. There was evidence from the investigation how uncomfortable at least one of the nurses felt when instructed by the claimant in these matters.

In relation to the diary entries, the tribunal found the claimant's evidence as to her idiosyncratic style of record-keeping to be unsustainable, and formed the view that her records were so defective that if even she did know the correct information, it was no wonder that others went on to make errors.

THE LAW AND CONCLUSIONS

By virtue of Article 126 (1) of the Employment Rights (Northern Ireland) Order 1996, "An employee has the right not to be unfairly dismissed by his employer". Under the terms of Article 130 of the 1996 Order, where, as in this case, the employer (the respondent) accepts that the employee (the claimant) was dismissed, the employer must 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".

Paragraph (2) includes reference to the conduct of the employee as being potentially a proper reason for dismissal, and such reason was advanced by the respondent.

From the facts found, the tribunal concluded that the respondent in this case had discharged the burden of showing the reason, namely gross misconduct, and that such a reason is a potentially fair one under paragraph (2). Having so found, the tribunal must then go on to consider the fairness of the dismissal in the terms of Article 130 (4), depending upon 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 that question is to be determined in accordance with equity and the substantial merits of the case.

The tribunal concluded that the respondent had properly found the claimant guilty of gross misconduct, and had done so after what the tribunal found to be an open and thorough investigative and disciplinary process. She was given ample opportunity to state her case, the disciplinary panels clearly took appropriate professional advice, and asked relevant questions, as well as permitting the claimant to air her concerns regarding Mrs Senior's part in the evolution of the pattern of conduct which became the subject of complaint. It was also of significance that in reaching their conclusions, the panels had the benefit of relevant admissions from the claimant.

The tribunal then considered whether the respondent had acted reasonably or unreasonably in treating the conduct as sufficient reason for dismissing the claimant, and unanimously concluded that the respondent acted reasonably in doing so. The test is not what the tribunal would have done, but whether the decision to dismiss was within the band of reasonable responses of a reasonable employer. In assessing this question, the tribunal had regard to the wording of Article 130 (1) (b), which refers to "...the dismissal of an employee holding the position which the employee held". In the context of the claimant's work for the respondent, patient welfare was paramount, and in this case the respondent was faced with someone who clearly had little or no insight into her past actions and who gave every indication from her explanation of that conduct that she would behave in exactly the same manner in the future.

The respondent therefore in the view of the tribunal acted entirely reasonably in viewing the conduct of the claimant as gross misconduct, which in turn could be viewed as properly being treated as a sufficient reason for dismissal for the purposes of Article 130 of the 1996 Order.

Whilst the tribunal readily acknowledged the many years of dedicated service of the claimant and the profound effect of her dismissal, the tribunal found that the respondent had acted and reacted reasonably; the dismissal was therefore fair and the claim must fail.

Chairman:

Date and place of hearing: 13-16 and 20-22 March 2006, Belfast.

Date decision recorded in register and issued to parties: