Industrial Tribunals Northern Ireland Decisions

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Cite as: [2010] NIIT 206_10IT

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THE INDUSTRIAL TRIBUNAL

CASE REF: 206/10

CLAIMANT: Stephen Asibey

RESPONDENT: Ravenhill Private Nursing Home

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed or subjected to unlawful discrimination on the grounds of his race, sex or age and that his complaints to the tribunal are dismissed in their entirety.

Constitution of Tribunal:

Chairman: Ms Julie Knight

Members: Mrs Theresa Hughes

Mr Aubrey Crawford

Appearances:

The claimant appeared in person and represented himself

The respondent was represented by Mr Ian Randall of Peninsula Business Services Limited

Issues

1. The issues to be determined by the tribunal were:

a. Was the claimant unfairly constructively dismissed? If not;

b. Was the claimant unfairly dismissed by the respondent?

c. Was the claimant subjected to less favourable treatment on the grounds of race, sex or age? The claimant clarified at the outset of the hearing, without objection from Mr Randall that his complaint to the tribunal also encompassed a complaint of sex discrimination on the basis that he was the only male employed by the respondent at Ravenhill Nursing Home.

d. If the claimant was unfairly dismissed and/or subjected to unlawful discrimination, what is the appropriate remedy?

Evidence

2. The tribunal heard the oral evidence of the claimant, Mr Stephen Asibey and witnesses for the respondent, Mrs Christine Kim, Mr Trevor Gage and Mr Michael McGranaghan. The tribunal also took into consideration relevant documentation to which it was referred contained in bundles of documentation prepared by the parties and additional documentation furnished by the parties during the hearing.

3. The tribunal heard evidence during the hearing on both liability and remedy. However the claimant indicated, during his submissions on remedy at the end of the hearing, that he wished to make a case that the respondent’s treatment of him had caused him personal injury. The claimant sought leave from the tribunal at this stage to adduce medical evidence in support of this contention. Mr Randall objected to the claimant’s application, both on substantive and costs grounds.

4. The tribunal, having considered the submissions of the parties on the claimant’s application made the following oral ruling: In accordance with the overriding objective of dealing with cases justly, we have decided that the tribunal will make a determination solely on the liability issue. This will determine how the case will proceed thereafter. In the event that we find in favour of the claimant on one or more of the liability issues, a case management discussion will be convened to consider:

a. What medical records are to be disclosed to the respondent

b. What medical evidence is necessary and whether it is appropriate to appoint a joint medical expert

c. The arrangements for a remedies hearing by the tribunal

d. Any application by the respondent for an order for a preparation time order.

The parties indicated their agreement to this ruling.

Facts

5. Having considered the evidence the tribunal made the following findings of relevant fact to be proven on a balance of probabilities:

6. The claimant Mr Stephen Asibey was employed as a General Nurse by Annadale House Nursing Home Limited trading as Ravenhill Nursing Home (“the Home”) from 2 May 2008 until 27 October 2009. There are approximately 36 residents in the Home with an age range from 70 to 100 and with a variety of medical conditions including heart disease, diabetes, arthritis and dementia. The staff cohort comprises 8 nurses, 32 care assistants and 10 ancillary staff. Mrs Christine Kim is the Nurse Manager of the Home and has overall responsibility for staff and the daily running of the Home. She compiles the staff rota approximately a month in advance and during the claimant’s employment completed these by hand. The staff rota is also used to calculate the pay due in accordance with the hours worked by staff members. The claimant generally got on well with Mrs Kim and other staff members and following his return to work on 28 April 2008 after a long period of sickness absence, the claimant agreed that he was welcomed back by management, colleagues and residents.

7. The claimant is a British citizen of Ghanaian origin and a highly qualified and experienced nurse who has lectured on the administration of medicine. His role with the respondent was to provide nursing care to residents, including the administration of medicines. At the commencement of his employment, Mrs Kim arranged an induction programme for the claimant which included training in the respondent’s policies and procedures for the administration of medicines in the Home, including a medicine control induction programme. The purpose of this programme was to ensure that residents received the correct medicine at the correct times and in the correct dosage as prescribed by their GP and that this was recorded on the appropriate record sheet. The induction programme refers to the staff handbook which the claimant had access to.

8. Each resident has a main prescription sheet upon which regular and non regular prescriptions are recorded together with the name of the resident’s GP. There is a separate record kept for the drug Warfarin
(the “Warfarin Administration Record”) because the daily dosage may vary according to the results of a resident’s blood tests. The blood test result is notified to the GP, who decides the appropriate dosage which is then telephoned to the Home by the GP’s practice nurse. The nurse at the Home receiving the phone call must then write the new dosage onto the Warfarin Administration record. The tribunal did not consider that there was any evidence to support the claimant’s contention that this process involved the transcription by the staff member from a written GPs prescription onto the Warfarin Administration record. A new recording system was introduced in September 2009.

9. The Regulation and Quality Improvement Authority (“ the RQIA”) carried out an unannounced inspection of the Home on 19 August 2009 to assess whether services were being provided in compliance with legislative requirements and current minimum standards. The inspector observed some small discrepancies between prescribed directions, administration records and stock balances of medicine although the standard for the safe handling and security of medicines was found to be “substantially achieved”. The standard for ensuring medicine records are constructed and completed so as to comply with legislative requirements and current best practice was found to be “fully achieved”. Mrs Kim was verbally advised by the inspector that the discrepancies were in the Warfarin Administration Records, which suggested that the wrong dosage of Warfarin had been administered to a resident, Mrs B on a number of occasions. Consequently Mrs Kim conducted her own audit of the records which revealed that on Wednesday, 22 July 2009 and Wednesday, 12 August 2009 the claimant administered 3mg of Warfarin when 4mg was prescribed and on Saturday, 22 August 2009 he administered 4mg when 3mg was prescribed; and that on Saturday, 8 August 2009, Ms Joanne Neville, another nurse, had wrongly administered 3mg of Warfarin when 4mg was prescribed. The Warfarin regime which was phoned through from the resident’s GP was recorded in the remarks column of the Warfarin Administration Record as follows:

Wed, Sat – 4mg
3mg rest of week
repeat 18/8/09

10. Mrs Kim wrote to the claimant on 26 August 2009 drawing these matters to his attention and requesting from him a written statement explaining the reasons for the discrepancies. She enclosed a copy of the Warfarin Administration sheets highlighting the discrepancies. She wrote to Mrs Neville in almost identical terms on 31 August 2009. The claimant sought advice from his union, UNISON, and responded to Mrs Kim on 2 September 2009 that he would provide a statement only during the course of the pending investigation. Mrs Kim telephoned the claimant on 3 September 2009 and advised him that he was being suspended with effect from that date. The tribunal did not accept the claimant’s evidence that Mrs Kim told him not to bother sending in a written statement. She informed him that she would be writing to him about a further allegation that had been made.

11. Around this time Mrs Neville had raised with Mrs Kim an incident on
3 August 2009 in which the claimant allegedly left keys in the lock of an unattended trolley and unattended medicines on top of the trolley. Mrs Helen Scanlon told Mrs Kim that she was concerned that the claimant appeared not to know the residents and or to whom medicine should be given. She further alleged that on 7 August 2009, the claimant had brought medicine out on a tray which he left on a table in front of residents. At Mrs Kim’s request, Mrs Neville and Mrs Scanlon put their concerns in writing on 6 and 10 September respectively.

12. Mrs Kim wrote to the claimant on 7 September confirming that he was suspended on full pay with immediate effect to enable an investigation to take place into allegations of gross misconduct that he had failed to follow company rules and procedures ie Care Standard Procedures and in particular the correct drug administration procedures on 22 July 2009, 12 and 22 August 2009; that on 3 August 2009 he left the keys in the lock of an unattended medicine trolley during a medicine round; and that on 29 July 2009 he breached confidentiality and provided inaccurate information to an enquiring relative about another resident. He was advised that should the investigation indicate that the allegations had some substance he would be required to attend a disciplinary hearing. He was instructed during the suspension not to contact anyone connected with the investigation in any way or to discuss this matter with any of the respondent’s other employees. Mrs Kim asked him to contact her if he felt that any employee could provide a statement which would help in investigating the allegations so that she could make arrangements to obtain a statement from them. The tribunal was satisfied that this was in accordance with the disciplinary procedure contained in the handbook.

13. Mrs Kim wrote to the claimant on 14 September 2009 asking him to attend an investigatory hearing on 18 September 2009 for the purposes of obtaining an explanation from him about the matters raised in the suspension letter. He was advised that he would be permitted to be accompanied by a fellow employee.

14. In fact the meeting was rescheduled to 28 September due to the unavailability of the claimant’s trade union representative. On 28 September the claimant was accompanied by Mr Seamus Young of Unison and the meeting was chaired by Mrs Kim while Mrs Ann Monteith took notes. At the outset Mrs Kim informed the claimant that she had looked into the allegation that he gave information to a relative and that there was no need to investigate this further as she considered that there was no case to answer on this point. The claimant accepted that he had administered the wrong dosage of Warfarin to the resident on the three occasions. He suggested that the manner in which the Warfarin regime had been handwritten on the sheet, could be easily misinterpreted and this was why he had made the mistake. Having examined the sheet the tribunal did not accept that the prescription was unclear. The claimant, in responding to the allegations that a medicine trolley had been left unattended with the keys in the lock and that medications were left on top of a trolley, informed Mrs Kim that he normally dispensed medicines into cups and put them on a tray with the residents’ names on them. The claimant denied leaving the keys in his trolley but said that he kept them in his pocket. Mrs Kim then raised as an additional matter the incident of the 7 August which was referred to in Mrs Scanlon’s statement. The claimant was able to recall the events but said that they did not happen like that – he had simply set the tray down on the table to give medication to one of two residents having their meal at the table. He recalled that Mrs Scanlon told him to move the tray but said that she was just nitpicking. He denied leaving the tray unattended where a resident could take them. The claimant advised that when he returned from sick leave he used to mix residents up and that he had on a couple of occasions asked care assistants to give medicine to residents when they had refused to take it from him. He confirmed that he had been welcomed back to work after his return from sick leave and that staff were very welcoming, helpful and cooperative towards him – that was why this came as a shock.

15. Following her investigations Mrs Kim considered there was a basis to bring allegations of gross misconduct against the claimant which were that he had failed to follow care standards for the care of residents in particular drug administration procedures to residents: in the administration of the wrong dosage of Warfarin on three separate occasions, that he had left the keys unattended in the lock of an unattended medicine trolley during a medicine round on 3 August 2009 and that he left a tray containing cups of pre dispensed medicines unattended in the dining room on 7 August 2009. Mrs Kim wrote on 1 October 2009 inviting the claimant to a disciplinary hearing on 7 October 2009. She informed him that these matters were regarded potentially as gross misconduct which if proven could result in his summary dismissal. She enclosed a copy of the documents which were to be relied upon at the hearing and a further copy of the respondent’s disciplinary rules and procedures. The claimant was advised of his right to be accompanied by a colleague or his trade union representative.

16. The disciplinary meeting was rearranged with the mutual agreement of the parties to 23 October 2009. The meeting was chaired by
Mr Trevor Gage, the respondent’s registered controller, accompanied by Mrs Winnie Mashumba as minute taker. The claimant was accompanied by his trade union representative, Mr Seamus Young. Mr Gage put each of the allegations to the claimant and invited his explanation. In relation to the allegation that he had administered the incorrect dosage on three occasions the claimant said that this was due to the “indistinct transcription by a colleague of the doctor’s prescription onto the Warfarin Administration Record” in that the “3mg” was written boldly underneath “Wed” on the sheet, caused me to err.” Mr Gage asked the claimant to explain why then he had administered the correct dosage the rest of the time. The claimant reiterated that it was due to an unclear transcription and because on these occasions his “attention was distracted”. At the hearing the claimant told the tribunal that on 12 August 2009 the new prescription for Mrs B had not been recorded on the sheet, so he just continued with the old prescription. He suggested that the prescription was written on the sheet after he had administered the Warfarin to the resident on 12 August 2009. This was not mentioned by the claimant at the disciplinary hearing.

17. The claimant denied that he had left keys in the lock of the medicine trolley or that he had left a tray of medicines unattended. He asserted that the allegations of Mrs Scanlon and Mrs Neville were untrue and that he would hand in a document concerning their motives in making such allegations against him. The claimant was asked to describe the process used by him to administer medicines to residents. He described how he checked through the medicine Kardex and dispensed medicine into cups according to the residents’ prescription. He then made labels upon which he wrote the relevant resident’s name and room number and placed the label inside the cup if the medication was in tablet form or beside the cup if the medicine was a liquid. At the

end of the meeting the claimant handed a document to Mr Gage in which he stated that he was being treated unfairly and harshly for the incorrect administration of Warfarin as the manner in which the prescription was written on the sheet was misleading and this was supported by the fact that the respondent had introduced a new system for the administration of Warfarin since these incidents. The document also stated that he intended seeking advice as he considered that the statements of Mrs Neville and Mrs Scanlon were defamatory and untrue. He suggested that his difficulties with Mrs Neville started when she was appointed to the position of Deputy Nurse manager and when he had refused to “succumb to her instruction”. Since then he suggested that she had made a number of allegations against him with the intention of “smearing” him. He stated that he did not understand why Mrs Scanlon had made her allegations as he had only worked a few shifts with her. Mr Gage informed the claimant that he would take this into account when reaching his decision.

18. Following this meeting, Mr Gage wrote to the claimant on 27 October 2009 in which he advised that having considered the claimant’s explanations at the hearing and his written submission he considered that they were unsatisfactory because he considered that the script was clear and that the claimant had followed it correctly on other occasions. In his view this indicated carelessness on the part of the claimant. He did not consider that the change in procedure meant that the previous system was ineffective. He considered that the evidence indicated that the keys were left in the trolley and that he did not accept that Mrs Neville had an “agenda” against the claimant or that Mrs Scanlon had acted in collusion with her. The claimant had accepted that he was not physically adjacent to the tray at all times and he was aware that it is not acceptable practice to take trays of mixed drugs for residents to save time as it puts residents at risk of getting the wrong medicine. He had taken into account that the claimant is a significantly experienced nurse so could not offer lack of understanding or training as a reason for the errors in practice. Therefore due to the seriousness of the care issues involved, Mr Gage considered that the claimant’s actions amounted to gross misconduct and his decision was summarily to dismiss the claimant with immediate effect. He advised the claimant of his right to appeal against his decision.

19. On 30 October 2009 the claimant wrote to Mr McGranaghan, the Managing Director of the respondent company stating that he wished to appeal against his dismissal on the basis that mitigating circumstances were not investigated. This was arranged for 13 November 2009. Mr McGranaghan was accompanied by Mrs Edith King, Nurse Manager of Mountvale Nursing Home and the claimant was accompanied by Mr Joe McCusker, Unison branch secretary, due to the unavailability of Mr Young. Mr McCusker suggested that no weight should be given to the statements of Mrs Neville and Mrs Scanlon because the claimant had not been given the opportunity to cross examine them. The claimant confirmed that he was familiar with the NMC and the administration of medicines. Mrs King asked the claimant if he was familiar with the term “tubbing” and explained to him that this was the process whereby medicines are predispensed into cups which is prohibited by the guidelines. The claimant said that he was not familiar with this term but that he was familiar with the guidelines. He suggested that he was not the only member of staff dispensing medicine in this way and that he had acted in accordance with practices in the home. Mr McCusker informed the appeal panel that the claimant “had put his hands up” and accepted that he had made mistakes but these related to the one patient. He suggested that the decision to dismiss the claimant was too severe that a final written warning and retraining was appropriate. The claimant was very apologetic and said he would like the opportunity to prove himself and that he would do anything to ensure that he did not make any further mistakes. Mr McGranaghan informed the claimant that he would take time to consider whether the dismissal should be upheld or if some other penalty was appropriate and that he might have to consider the option of demotion and retraining. The claimant told the tribunal that afterwards he was very angry with his union representative for having suggested at the appeal that he should have retraining.

20. Following the appeal hearing Mrs King attended unannounced to observe for herself how medication was administered at Ravenhill Private Nursing Home and did not find any evidence that other members of staff were pre dispensing medicines before administering them to residents. Mr McGranaghan wrote to the claimant on 25 November 2009 advising him of his decision. He advised that he did not consider that the claimant had presented any evidence to suggest that the original decision was wrong or unreasonable. However he went on to state: “We have then moved on to the severity of the outcome. Whilst we believe that dismissal is within the reasonable range of outcomes, it is recognised that dismissal would make it difficult for you to find alternative employment. It is important to note that we have a duty of care to our patients and their safety and we do not have confidence in you working to a satisfactory standard in your present role. Therefore having considered all the factors and also taking into account the closing comments of your trade union representative we have decided rather than summary dismissal to issue you with a final written warning. Your employment will recommence but at the grade of Senior Nurse Assistant ... to facilitate the opportunity for you to retrain....Your performance will be monitored and if there is a significant improvement which is sustained for a reasonable period then there will be the potential for you to regain your previous grading as soon as a relevant vacancy is available.”

21. The claimant wrote to Mr McGranaghan on 4 December 2009 disputing the fairness of the decision and questioning the need to demote and retrain him in light of his experience. He stated that he would need to know what he was required to do to be fully reinstated and over what timescale. He stated that he felt persecuted and discriminated against as a result of the process and that he was taking legal advice. Mr McGranaghan responded by letter dated 17 December 2009 in which he reiterated that demotion and retraining were considered necessary in the best interests of protecting his own professional registration and the well being and safety of the residents but that it was not envisaged that the retraining would be long and protracted and upon completion of an independent safety assessment he would be reinstated as a registered nurse. He stated that management were willing to meet with him to discuss the process in more detail and to contact Mrs Kim if he wished to do so. The claimant did not respond to this letter. Mrs Kim wrote to the claimant on 6 January 2010 asking him to let her know as soon as possible whether he intended to return to work. She had received a request from the Social Security Agency for information about the claimant’s reason for leaving his employment. The claimant replied on 9 January that he considered that he was constructively dismissed on 27 October 2009 and that he would not accept the demoted post.

22. The claimant lodged his complaint of unfair constructive dismissal and unlawful discrimination on grounds of race, sex and age on 19 January 2010. The claimant informed the tribunal that his complaints of unlawful discrimination were founded on the fact that he is of black Ghanaian origin, male and older than Mrs Kim, Mrs Neville and Mrs Scanlon. The claimant’s case was that the disciplinary process was unfair, that the respondent “sexed up” or exaggerated the seriousness of the charges against him and had acted in such a way as to breach the implied term of mutual trust and confidence. The claimant contended that these were not serious matters as no actual harm was caused to residents as a consequence of the administration of the wrong dosage of Warfarin or his non adherence to the respondent’s policy and procedures which prohibited the pre dispensing of medication or “tubbing”. He did not acknowledge that his breach of procedures could present a risk of harm because of his extensive nursing experience. The claimant contended that he was treated less favourably than Mrs Neville in the disciplinary process.

23. The respondent denied that the claimant was constructively dismissed but contended that he was fairly dismissed for conduct related reasons and denied treating the claimant less favourably on prohibited grounds. Mrs Neville was invited to a disciplinary hearing on 24 September 2009 and she was issued with a verbal warning to remain on her record for a period of one year for administering the wrong dose of medicine on 8 August 2009. In July 2007, the respondent dismissed with one week’s notice, a female employee in her 40s who was found responsible for drug administration discrepancies and for failing to make proper drug administration records. On that occasion Mr Gage conducted the disciplinary hearing with Mrs Kim.

The Law

Unfair Dismissal

24. An employee has the right not to be unfairly dismissed by his or her employer pursuant to Article 126 Employment Rights (NI) Order 1996 as amended. (“the 1996 Order”)

Article 127 provides that an employee is dismissed by his employer if;

(a) the contract under which he is employed is terminated by the employer (whether with or without notice),

(c) the employee terminates the contract under which he is employed (with or without notice) in circumstances in which he is entitled to terminate it without notice by reason of the employer’s conduct.

Article 130 of the 1996 Order provides:

130 (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show—

(a) the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a reason falling within paragraph (2) ….

(2) A reason falls within this paragraph if it—

(b) relates to the conduct of the employee,……

(4) Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer)—

(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.

25. These provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee. If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal. In Iceland Frozen Foods v Jones [1982] IRLR 439 Browne-Wilkinson J gave the following guidance to tribunals:-

“We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by [Article 130(4) of the 1996 Order] is as follows:

(1) the starting point should always be the words of [Article 130(4)] themselves;

(2) in applying the section an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair;

(3) in judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;

(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair: if the dismissal falls outside the band it is unfair.”

Discrimination

26. The relevant legislation is set out in Article 3 of the Race Relations (Northern Ireland) Order 1997, Article 3 of the Sex Discrimination (Northern Ireland) Order 1976 as amended and Regulation 3 of the Employment Equality (Age) Regulations (Northern Ireland) 2006. Under these provisions direct discrimination on the grounds of race, sex and age is prohibited. The wording is almost identical and provides that a person discriminates against another in any circumstances relevant for the purposes of any provisions of the legislation, if on racial grounds or the grounds of a person’s age or sex, he treats that other less favourably than he treats or would treat another person. In the case of age discrimination an employer may be able to justify direct discrimination if it can be shown that the treatment complained of is a proportionate means of achieving a legitimate aim. Direct racial and sex discrimination cannot be similarly justified in any circumstances.

. Part II of the 1997 Order, Part III of the 1976 Order and Part II of the 2006 Regulations provides that it is unlawful for a person in relation to employment by him at an establishment in Northern Ireland to discriminate in dismissing him or subjecting him to any other detriment.

The legislation requires the claimant to compare his circumstances with an actual or hypothetical comparator whose relevant circumstances are the same or are not materially different from those of the claimant. Where there is no actual comparator the tribunal must identify the characteristics of the hypothetical comparator. However it is open to the tribunal to focus on the reason for the claimant’s treatment; “…employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as (she) was. Was it on the proscribed ground which is the foundation of the application? Or was it for some other reason? If the latter the application fails. If the former, there will usually be no difficulty in deciding whether the treatment afforded to the claimant on the proscribed ground, was less favourable than was or would have been afforded to others.” Per Lord Nicholls at Paragraph 11 Shamoon –v- Chief Constable of the RUC 2003 IRLR 285.

Burden of Proof

27. These provisions state that where on the hearing of the complaint the claimant proves facts from which the tribunal could apart from this Article conclude in the absence of an adequate explanation that the respondent has committed an act of discrimination or harassment against the complainant which is unlawful by virtue of the legislative provisions, the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be is not to be treated as having committed that Act.

28. Guidance on the application of this provision was given by the Court of Appeal in the cases of Igen Limited -v- Wong 2005 IRLR 258 in which the Court of Appeal ruled that the guidance issued by the EAT in Barton -v- Investec Henderson Crosthwaite Securities Limited should be applied and amended as follows:

(1) Pursuant to (Section 63(a) of the 1975 Act) it is for the claimant who complains of (sex) discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the employer has committed an act of discrimination against the claimant which is unlawful by virtue of Part 2 or which by virtue of Section 41 or 42 of the 1975 Act, is to be treated as having been committed against the claimant. These are referred to below as “such facts”.

(2) If the claimant does not prove such facts he or she will fail.

(3) It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of sex discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In such cases the discrimination will not be an intention but merely based on the assumption that “he or she would not have fitted in”.

(4) In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts bound by the tribunal.

(5) It is important to note the word “could” in section 63(a)2. At this stage the tribunal does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from the facts.

(6) In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts.

(7) These inferences can include in an appropriate cases, any inferences that it is just and equitable to draw in accordance with Section 74(2)(b) of the 1975 Act from an evasive or equivocal reply to a questionnaire or any other questions that fall within Section74(2) of the 1975 Act.

(8) Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant and if so, take it into account in determining, such facts pursuant to Section 56A(10) of the 1975 Act. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

(9) Where the claimant has proved facts from which conclusions could be drawn that the employer has treated the claimant less favourably on the ground of sex, then the burden of proof moves to the employer.

(10) It is then for the employer to prove that he did not commit, or as the case maybe, is not to be treated as having committed that act.

(11) To discharge that burden it is necessary for the employer to prove, on the balance of probabilities that the treatment was in no sense whatsoever on the grounds of sex, since “no discrimination whatsoever” is compatible with the burden of proof directive.

(12) That requires a tribunal to assess not merely whether the employer has proved an explanation from the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that sex was not a ground for the treatment in question.

(13) Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof. In particular, the tribunal will need to examine carefully explanations for failure to deal with the questionnaire procedure and/or Code of Practice.

29. The tribunal also took into account: Laing v Manchester City Council [2006] IRLR 748; Madarassy v Nomura International PLC [2007] EWCA Civ 33; Macdonald v Advocate-General for Scotland [2003] IRLR 512; Shamoon v Chief Constable of the RUC (HL) [2003] ICR 337; Nagarajan v London Regional Transport [1999] ICR 877; Hendricks v Commissioner of Police for the Metropolis [2003] IRLR 96; Vento v Chief Constable of West Yorkshire Police (No.2) [2003] IRLR and Rogan v South Eastern Health and Social Care Trust [2009] NICA 47.

Conclusions

30. The tribunal is satisfied that the respondent terminated the claimant’s employment when he was summarily dismissed on 27 October 2009. The claimant accepted that he did not resign from his employment therefore the conditions for a constructive dismissal do not exist.

31. The tribunal went on to consider the circumstances surrounding the claimant’s dismissal. The tribunal did not consider that the claimant had established facts which showed or from which it could infer that he had been subjected to unlawful discrimination on the grounds of race, sex or age. The claimant must show that he has been treated less favourably than an actual or hypothetical comparator was or would have been treated. It is not sufficient for the claimant to establish that there was a difference in treatment but that there was less favourable treatment. In this case the tribunal did not accept that either Mrs Neville or Mrs Walker were the correct comparators as they did not share the same or not materially different circumstances as the claimant. Mrs Neville immediately accepted full responsibility and apologised for her actions. She had administered the wrong dosage to a resident on one occasion and there were no other disciplinary charges against her. The tribunal considered that the correct comparator in this case was a hypothetical younger, white female who was accused of the same breaches of discipline as the claimant. However the tribunal considered that it was entitled to examine how the respondent had treated both Mrs Neville and Mrs Walker when considering how it would have treated the hypothetical comparator.

32. The tribunal did not consider that the claimant has established facts from which it can conclude that the statutory hypothetical comparator would have been treated any differently or more favourably than the claimant. The claimant’s case was that the process was unfair and discriminatory as the respondent kept adding disciplinary charges at various stages during the investigation process and essentially that Mrs Kim deliberately engineered his dismissal. The allegation that he administered the wrong amount of Warfarin came to light as a consequence of the independent RQIA report. The allegations that the claimant left keys in the lock of an unattended trolley and left a tray of medicines unattended arose as a consequence of verbal concerns raised by Mrs Scanlon and Mrs Neville. Some of the claimant’s own responses at the investigatory hearing raised concerns that he dispensed medicines to residents in breach of the respondent’s policies and procedures for the administration of medicines. The tribunal accepted that these matters did raise disciplinary issues and considered that Mrs Kim acted properly in instigating the disciplinary process against the claimant. The tribunal is satisfied that the claimant was given an opportunity to respond to the allegations both at the investigatory and disciplinary meetings. The claimant criticised the respondent for not permitting him to cross examine Mrs Scanlon and Mrs Neville about their statements at the disciplinary hearing. The tribunal did not accept that this rendered the process unfair. Neither the claimant nor his trade union representative requested this facility at the disciplinary hearing.

33. The tribunal did not consider that there was any evidence to support the allegation that Mrs Kim was motivated against the claimant on grounds of race, sex or age. She made an early decision to discontinue the disciplinary investigation into the allegation that the claimant had breached confidentiality by discussing private details with a relative, as she considered that there was insufficient evidence to support such an allegation. The claimant accepted that he had previously got on well with Mrs Kim and she had shown personal kindness towards him when he returned from sick leave and had bought him a gift for his birthday. The claimant accepted that he sent Mrs Kim a Christmas card in 2009 which the tribunal considered did not sit well with his allegation that Mrs Kim was personally motivated against him. Similarly the tribunal did not consider that there was any evidence to support the claimant’s contention that either Mrs Scanlon or Mrs Neville were motivated to make the allegations against him because of his race, sex or age. The tribunal noted that this was not raised as a possible explanation by the claimant in his written submissions to Mr Gage concerning the motives of the two women.

34. The claimant admitted that he did administer the wrong dosage to a resident on the three occasions and he acknowledged that he had not followed the policy and procedure for administering medication. However the tribunal considered that he did not accept responsibility at any stage for his mistake and blamed the manner in which the prescription was written on the sheet. Furthermore the claimant does not accept that these are serious matters simply because, happily, no harm has befallen any of the residents as a consequence. The tribunal is satisfied that the allegations against the claimant did amount to gross misconduct, the respondent had a genuine and reasonable belief, following a reasonable investigation, that the claimant was guilty of gross misconduct and that the penalty of summary dismissal in all the circumstances of this case did fall within the band of reasonable responses. The tribunal further considered that the respondent acted within the band of reasonable responses at the appeal stage and in offering the claimant a period of demotion and retraining, followed by reinstatement to his original post after satisfactory assessment.

35. The tribunal is therefore satisfied that the reason for the treatment is the conduct of the claimant and is not connected in any way with his sex, race or age. Having thus found it is not necessary to arrange a further hearing on remedy. The claimant’s claims are therefore dismissed in their entirety.

Chairman:

Date and place of hearing: 4-8 October 2010, Belfast.

Date decision recorded in register and issued to parties: