Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:   4119/09

 

 

 

CLAIMANT:                      Monica Connolly

 

 

RESPONDENT:                Western Health & Social Care Trust

 

 

 

DECISION

The unanimous decision of the tribunal is that the claim is not well-founded and it is therefore dismissed.

 

Constitution of Tribunal:

Chairman:    Mr P. Buggy

Members:    Mr J. Kinnear

                    Mr P. Archer

 

         

 

Appearances:

The claimant was represented by Mr P Gorman

 

The respondent was represented by Mr E McArdle, Barrister-at-Law, instructed by the Directorate of Legal Services.

 

 

 

REASONS

 

1.              The claimant was an employee of the respondent (referred to below as “the Trust”) from 1995 until 24 October 2008.  She was dismissed with effect from the latter date.  In these proceedings, the claimant makes a complaint of unfair dismissal.

 

2.              Before setting out our reasons for rejecting that complaint, we wish to make certain general observations.  The claimant was dismissed because of what she said and did during one incident on one particular night on 11 April 2008.  For many years beforehand, the claimant had been employed by the Trust as a care worker.  (At the time of her dismissal, she was a senior care worker).  From the evidence which we have seen and heard, we are satisfied that, throughout that period, the claimant was an efficient and diligent worker, doing a difficult and stressful (but very important) job, for relatively low pay.  In considering the controversies which are at the heart of the present proceedings, it is important not to lose sight of that very lengthy and uncontroversial earlier period of constructive endeavour.

 

3.              There are two versions of events in relation to the incident of 11 April 2008 (“the incident”).  The claimant’s version of events is different from the version of events which was accepted by the Management of the Trust.  Which version of events is the true version of events?  We do not need to arrive at a definitive answer to that question for the purpose of determining this unfair dismissal claim.  Accordingly, nothing in this Decision should be construed as a conclusion on the part of this tribunal as to which of the two competing versions of events is the true version of events.

 

 

The facts

 

4.              We have made various findings of fact which are relevant to the issues which we have determined.  In the interests of readability, and in order to avoid duplication, those findings have been set out at paragraphs 1-15 of this decision and are also set out below (under the “Conclusions” heading).

 

5.              Mr Aidan Gordon carried out a disciplinary investigation.  He recommended that disciplinary charges should be brought in respect of the three disciplinary “charges” which are detailed below.  Those charges were set out in a letter dated 22 July 2008, in the following terms:

 

“1.      You failed in your responsibility as a Senior Care Assistant to provide a safe, high standard of care by failing to treat a resident with dignity and respect on your night shift which commenced on 11 April 2008 in that you inappropriately waved a pair of scissors in his face and threatened to cut out his tongue.  This conduct is considered as breaching health and safety obligations and also a breach of the Northern Ireland Social Care Council codes of practice …

 

2.          During handover to other staff on 12 April 2008 you inappropriately described this incident in a joking manner.  This is considered as failing in your responsibility to lead others by example in a professional manner.

 

3.          These actions are considered as unacceptable and [call] into question the trust and confidence placed in your role as a Senior Care Assistant”.

 

6.              By far the most serious of the allegations was Allegation 1.

                                                                                                                          

7.              Mr Gorman realistically accepted that, if an employer reasonably accepted that Allegation 1 was in substance true, such an employer would not be acting outside the range of reasonable responses if it decided to dismiss the employee on account of that misconduct.

 

8.              The claimant did not deny showing a pair of scissors to the relevant resident and she did not deny telling him that she would cut out his tongue.  According to the version of events ultimately accepted by the disciplinary panel and appeal panel within the Trust, the claimant waved the scissors and told X that she would cut out his tongue and, when she did so, she was angry, and the relevant actions and words were not part of a shared joke.

 

9.              During this tribunal hearing, it was accepted on the claimant’s behalf that she ought not to have shown the scissors or made the relevant statement.  In relation to Allegation 1, the main differences between the claimant’s version of events and the version of events ultimately accepted by the management of the Trust were as follows.  The claimant was resistant to the idea that what she had done was improper; and she asserted that she had never threatened the relevant resident (who was referred to by the claimant, and by the Trust, as “X”).  Instead, according to the claimant, what had been said and done during the course of that incident was a joke; and X was well aware at the time that it was a joke.

 

10.           The claimant accepted that, during handover to other staff on 12 April 2008, she described the incident in a joking manner so there was no difference of opinion between the claimant and the Trust in respect of the primary facts which are relevant in the context of Allegation 2.  (The claimant of course denied that this conduct was inappropriate).

 

11.           Allegation 3 is not really a freestanding allegation at all.  Instead, it is a commentary upon the implications of the conduct referred to in Allegation 1 and Allegation 2.

 

12.           The Disciplinary Panel was chaired by Mrs Geraldine Hillick, the Trust’s Assistant Director of Primary and Community Care.  That panel decided that the charges were proven, and decided that the claimant should be dismissed.  The claimant was notified of the Panel’s decision in a letter dated 24 October 2008.  According to that letter:

 

“Having given careful consideration to all of the information above, the members of the panel concluded that the charges were proven and as such that your action in relation to [X] amounted to gross misconduct.  Therefore you are summarily dismissed from your employment with [the Trust] with effect from the date of this letter ie 24 October 2008”.

 

13.     The letter of 24 October 2008 asserted that, in coming to its decision, the Panel had given careful consideration to:

 

      “… your admission in your presentation to the Disciplinary Panel on 26 October 2008 that on 11 April 2008 you had shown the patient, who was the subject of the disciplinary charges, a pair of scissors and “jokingly” said that you would use them to cut off his tongue”.

 

14.           The claimant appealed to a Disciplinary Appeal Panel which was chaired by Mr Vincent Ryan.  The appeal hearing took place on 2 February 2009.  The appeal was by way of re-hearing.  The Appeal Panel upheld the decisions of the Disciplinary Panel.  According to the Appeal Panel, the charges were “proven”:

 

 

“… and, as such, your action in relation to [X] amounted to gross misconduct.  Therefore the Appeals Panel has upheld the decision of the primary Panel to dismiss you from your employment with [the Trust].”

 

15.           In a letter dated 5 February, Mr Ryan, on behalf of the Disciplinary Appeal Panel, in giving the reasons for the Appeal Panel’s determinations, commented on Charge 1 (the scissor-waving and “threatening” charge) in the following terms:

 

“You failed in your responsibility as Senior Care Assistant to provide a safe high standard of care by failing to treat [X] with dignity and respect on your night shift that commenced on 11 April 2008 and that you inappropriately waved a pair of scissors in [X’s] face and threatened to cut his tongue out.  This conduct is considered as breaching health and safety obligations and also a breach of the NI [Social] Care Codes of Practice …

 

In the evidence presented to the Panel on 2 February 2009, you freely admitted waving a pair of scissors in front of [X].  During the course of your representation, you stated that this was conducted in a joking manner and that there was no threat intended.

 

From submissions and interview evidence from one of the witnesses presented at the Panel by Mr Gordon, your account of events was not supported.  This witness clearly stated that your conduct was threatening and not carried out in a joking manner.  This was corroborated by his second witness.

 

However you intended this to be received by the client, it was viewed as a threat by the two witnesses and, in light if this, and on the evidence presented [to this] Panel, we will be supporting the findings of the first Disciplinary Panel, in that you failed in your responsibilities of Senior Care [Assistant] to provide a safe and high standard of care”.

 

 

The sources of evidence and the arguments

 

16.           We received oral testimony from the following witnesses, who gave evidence on behalf of the respondent:

 

(1)            Mr Gordon

(2)            Mrs Hillick and

(3)            Mr Ryan.

 

17.           We also received oral testimony from the claimant, who gave evidence on her own behalf, and from her brother, Mr Patrick Connolly.

 

18.           We saw the following documents:

 

(1)            A bundle, consisting of over 200 pages.

 

(2)            Some miscellaneous documents which were provided to us during the course of the hearing.

 

19.           We told the parties that we would have regard, for evidential purposes, only to any document to which our attention was specifically drawn.

 

20.     The parties’ closing submissions were made in writing, with the consent of both parties.  The procedures in relation to those written submissions (“the Submissions”) broadly followed those recommended in Barking & Dagenham London Borough v Oguoko [2000] IRLR 179.  The Submissions were exchanged in the latter half of January 2010.       Each party had the opportunity to provide written comments (“Comments”) in respect of the other party’s Submission.  Comments were received from both parties.

 

21.           The parties were told that there could be a further oral hearing, at which the Submissions and Comments could be supplemented by oral arguments, if either party asked for such a hearing.  Neither party asked for such a hearing.

 

22.           In arriving at our Decision, we have of course taken careful note of all of the arguments which have been made to us, whether in the course of the hearing itself, in the course of the Submissions, or in the course of the Comments.  Specific reference has been made to some of those arguments below.  The Submissions and the Comments provide a permanent record of each party’s arguments.  In those circumstances, it is unnecessary to provide comprehensive details of the arguments in this Decision.

 

23.           The general thrust of the claimant’s attack on the fairness of the disciplinary decisions can be summarised as follows.  The claimant says that, on the basis of the information which the Trust had, or should have sought, no reasonable employer would have accepted the version of events which the Trust ultimately accepted.  Furthermore, there were important procedural shortcomings in the process which began with the suspension of the claimant and which culminated in the upholding (by the internal Appeal Panel) of the decision to dismiss.  According to the claimant, for those reasons, the decision to dismiss was unfair because it was “outside the range of reasonable responses”.

 

 

The law

 

24.           On the question of whether or not the dismissal was fair or unfair, there were potentially two main issues.  The first was whether the Trust has shown that the reason asserted by the Trust as being the reason for dismissal (the claimant’s conduct on 11 April 2008) was in fact the principal reason for the dismissal.  (See Article 130(1) of the Employment Rights (Northern Ireland) Order 1996, which we refer to below as “the 1996 Order”).  Mr Gorman realistically accepted that the claimant was dismissed because the internal disciplinary authorities of the Trust upheld the Allegations; that is a reason relating to conduct.  (In any event, it seems to us that the evidence that the claimant was indeed dismissed because of the Allegations is overwhelming).

 

25.           A reason relating to conduct is a potentially fair reason for dismissal. 

 

26.           The second main unfair dismissal liability issue is whether or not the dismissal for that conduct was actually fair or unfair, within the meaning of Article 130(4) of the 1996 Order.  The parties are in dispute in relation to that issue. 

 

27.           Article 130(4) provides that:

 

“ … the determination of the question of 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”.

 

28.           As a result of case law, it is clear that the Article 130(4) question amounts to a question of whether or not the employer, in dismissing this employee on account of the relevant alleged misconduct, was acting inside or outside the range of reasonable responses.

 

29.           The concept of the “range of reasonable responses” can be summarised as follows:

 

(1)            In deciding on the reasonableness of the employer’s conduct, we are not entitled to substitute our own views for those of the employer and decide whether we ourselves would have dismissed in the circumstances of this case.

 

(2)            Instead, we have to make a wider enquiry.

 

(3)            That approach (the “range of reasonable response” approach) is based on the premise that in many cases there is a band of reasonable responses to the employee’s conduct, within which one employer might reasonably take one view and another might reasonably take another.

 

(4)            Against that background, the function of this tribunal is to act as an industrial jury and to determine, in that capacity, whether, in the particular circumstances of this particular case, the decision to dismiss the claimant fell inside or outside the band of reasonable responses which a reasonable employer might have adopted.

 

(5)            If the decision to dismiss in this case falls within that band, the dismissal is fair if the dismissal falls outside that band, it is unfair.

 

30.           In considering whether or not a particular decision to dismiss is inside or outside the range of reasonable responses, a tribunal takes account, in particular, of three matters:

 

(1)            the sufficiency or otherwise of the evidence,

 

(2)            any shortcomings in the disciplinary process (the process which began with the investigation and culminated in the dismissal); and

 

(3)             whether the decision to dismiss was a disproportionate sanction.

 

31.           In this case, Mr Gorman, realistically, does not argue that dismissal would have been a disproportionate sanction in respect of conduct on the part of the claimant which was in substance in line with the version of events (regarding the scissors incident) which was ultimately accepted by Management.

 

32.           So, we are left with the question of whether or not the employer has stepped outside the range of reasonable responses, having regard to the relative sufficiency or insufficiency of the evidence which was available, or could have become available to the Trust, and also having regard to any procedural shortcomings.

 

33.           It is now clear law that the range of reasonable responses applies to the procedural aspects of dismissal, to the same extent as it applies to other aspects of the dismissal:  (See J Sainsbury plc v Hitt [2003] ICR 111).

 

34.           In our view, the case of Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 is relevant in the context of this case.  In that case, the employee was a registered nurse with responsibility for residential care of vulnerable adults.  He was dismissed because of alleged misconduct.  In relation to the various incidents of alleged misconduct, there were two versions of events, one put forward by the claimant and another put forward by the various people who accused him of wrongdoing.  Within the employer, the disciplinary decision-makers had all opted for the versions of events being put forward by the claimant’s accusers.

 

35.           As Morgan LCJ points out in Rogan (at paragraph 21 of the judgment), in the context of a “conduct” dismissal, the first question for the tribunal is whether the employer really did believe the relevant claimant to be guilty of the particular misconduct.  Next, the tribunal must consider whether the employer had reasonable grounds upon which to sustain that belief.

 

36.           In the context of that second question (the question of whether the tribunal considers that the internal disciplinary authorities had reasonable grounds to sustain the relevant belief), Rogan emphasises the following matters:

 

(6)            The question of whether the tribunal would itself have decided in favour of the claimant’s version of events (if the tribunal had been the internal disciplinary authority) is neither here nor there.  Instead, the task of the tribunal is to examine the decisions of the internal disciplinary authorities, so that the tribunal can determine whether those authorities had reasonable grounds for the conclusions arrived at by those authorities.  (See paragraph 24 of the judgment).

 

(7)            In particular, any determination as to the weight to be given to any evidence which was before the internal disciplinary authorities was a matter for those authorities, and is not a matter for the industrial tribunal.  (See paragraphs 26 and 27 of the judgment). 

 

37.           In R (on the application of G) v Governors of X School and Y City Council [2010] IRLR 222, the English Court of Appeal decided that a school employee, accused of abuse of trust involving an inappropriate relationship with a child, was entitled, pursuant to Article 6 of the European Convention on Human Rights, to legal representation during the course of internal disciplinary proceedings.  The rationale was that, because of the substantial influence the outcome of the hearing would have on the employee’s ability to practice his profession, and because of the seriousness of the allegation, fairness required this enhanced level of protection.

 

38.           However, we do not see the X School case as providing authority for the proposition that, in situations analogous to the situation of the claimant in X School, a person facing disciplinary proceedings is entitled to have whatever lay representative he or she chooses, regardless of any restrictions on the categories of lay representatives which may be contained within the employer’s policies.

 

39.           Instead, in our view, the Court of Appeal decision in X School is based on the assumption that lawyers, as a result of their particular expertise, might make all the difference to the outcome of a particular disciplinary case. 

 

40.           According to Laws LJ in X School, a professional advocate “might properly make a great deal of difference in relation to the flavour and the emphasis” of a disciplinary panel’s conclusions; and (if there were any contest as to primary facts) might also make a great deal of difference in relation to that panel’s conclusions on the primary facts.

 

 

Conclusions

 

41.           In our view, in deciding to dismiss the claimant for the alleged misconduct, the respondent did not step outside the range of reasonable responses.  Accordingly, this dismissal was not “unfair” in the sense in which the term “unfair” is used in the context of Article 130(4) of the 1996 Order.  We made that determination against the following background and for the following reasons.

 

42.           In relation to the incident on 11 April, there were major differences between the version of events put forward by the claimant and the version of events described by Ms Ann Maguire.  Once the internal disciplinary authorities accepted the version of events of Ms Maguire, in preference to the version of events put forward by the claimant, it was inevitable that those authorities would conclude that the substance of Allegation 1 was proven to their satisfaction.

 

43.           The Maguire version of events is inconsistent with the suggestion (made by and on behalf of the claimant) that the relevant words and gestures were all part of a joke to which X was a willing and knowing party.

 

44.           In our view, the internal panels had good reason to prefer the evidence of Ms Maguire to the evidence of Ms Connolly.  As far as the panels knew, Ms Maguire had no reason to lie about the claimant’s conduct, especially in circumstances in which Ms Maguire must have been aware that such lies would be likely to cause the claimant to lose her job.  On the other hand, the panels would have known that, if Allegation 1 was in substance true, the claimant had an incentive to recall and describe the relevant events in a way which minimised any chance that she could be found to have been involved in impropriety.  In the Submission, Mr Gorman has identified what he considers to be a considerable number of significant inconsistencies between the various versions of events which Ms Maguire gave in respect of the events of the relevant night, and he has also identified what he considers to be significant inconsistencies between the Maguire versions of events and the versions of events put forward by others.

 

45.           We have noted the points which Mr Gorman has made in relation to the alleged inconsistencies of the various Maguire accounts of events.  We do not accept that all of the “inconsistencies” really do exist.  However, there are some variances between the various accounts.  Nevertheless, in our view, those real inconsistencies do not necessarily point to deliberate falsehood.  Instead, most of those inconsistencies are the type of variances which one finds when any witness is asked, on a variety of occasions, to give an account of a particular incident.  Certainly, the various inconsistencies were not so marked or obvious that no reasonable internal panel could fail to conclude that this was a witness who could not be believed.

 

46.           We have carefully considered the various “inconsistencies”, according to Mr Gorman’s Submission, which exist between the “Ann Maguire version” and the “Fiona McGovern version”.  In our view, those inconsistencies are on matters of detail, or on relatively peripheral matters, rather than matters which are at the heart of the dispute between the Maguire version of events and the claimant’s version of events.  Again, we consider that such inconsistencies as did exist (between the Maguire version and the McGovern version) were not sufficiently important or obvious to preclude any reasonable internal panel from concluding that Ms Maguire was a witness of truth.

 

47.           It has been somewhat tentatively suggested that X ought to have been asked for his version of events.  But X was a vulnerable patient who continued to be heavily dependent upon the goodwill of the Trust carers for his well-being.  In our view, it was reasonable of the Trust to decide that X should not be pursued with a view to obtaining evidence from him.

 

48.           It would have been open to the claimant to have asked the Trust for permission to approach X, with a view to asking X to give evidence on her behalf in the course of the disciplinary hearings.  She did not do so.  If she had done so, it would of course have been open to the Trust to have declined to give her permission to approach X.  However, the reality is that she never did approach the Trust with a view to seeking the relevant permission.

 

49.           We note that the claimant asserts that Ms Marie Ward, the Personnel Officer who attended an initial investigation meeting with the claimant, attempted to manipulate the claimant’s responses to questions, and kept the claimant ignorant of precisely what the issues were.  We see nothing wrong with a degree of deliberate vagueness at the early stages of an investigation, provided a claimant is clearly informed, before the outcome of the investigation, of precisely what the issues are, so that he/she has an opportunity to adequately respond to the matters which really are in issue.  We accept that the claimant’s perception was that Ms Ward was attempting to manipulate the claimant’s responses to questions.  However, the reality is that the outcome of the investigation was fair.  (The purpose of an investigation is to identify whether there are charges which can properly be pursued against a claimant.  In the circumstances of this case, in view of the conflicts between the various versions of events, and in view of the conduct which the claimant had admitted, it was inevitable that the initiation of disciplinary charges would be the outcome of any fair and thorough investigation).

 

50.           The claimant did not ask the Trust if she could be permitted to have legal representation during the course of the disciplinary hearing.  Instead, she asked that her brother, Mr Hugh Connolly, should be allowed to represent her.  Ultimately, that request was refused.  It was refused because, according to the Trust’s policy, a person facing disciplinary action was entitled to be represented only by an accredited trade union representative, or by a work colleague.  The Trust’s policy in that connection was not inconsistent with the statutory rights explicitly conferred by Northern Ireland employment legislation.

 

51.           The Allegations against the claimant in this case were very different from the allegations which were faced by the claimant in the X School case.  However, in each instance (in the X School context and in the circumstances of the present case), the outcome of the relevant disciplinary hearing had the potential to have a substantial influence upon the relevant employee’s ability to practise their profession.

 

52.           However, there are differences also.  In the X School case the claimant demanded a right of legal representation.  In this case, this claimant did not demand a right of legal representation.  Instead, she wanted the Trust to allow her to be represented by a lay person who was not within the categories of lay representatives who were authorised (pursuant to the Trust’s policy, or pursuant to legal rights explicitly granted by Northern Ireland legislation).  In our view, X School does not provide any authority for the proposition that such a refusal was a breach of the claimant’s Article 6 entitlements. 

 

53.           Mr Connolly was a highly experienced and qualified social work manager.  He had sufficient expertise to be a useful representative for the claimant.  She wanted him to be her representative.  Because of her general state of health and because of the predicament in which she found herself, she would have benefited, at least psychologically, from the support and reassurance which would have been available to her if Mr Connolly had been allowed to act as her representative.  However, the Trust decided to refuse to allow him to represent her.  In refusing, they were merely following their policy.  They were entitled to follow that policy, unless, by doing so, they were in breach of some general legal obligations which they owed to the claimant.  In our view, there were no such general entitlements.

 

54.           As a result of a communications mix-up, the claimant was initially misled as to whether Mr Connolly would be entitled to represent her.  Originally, the Trust (through Ms Theresa Mulqueen) told the claimant that Mr Connolly could attend the disciplinary hearing.  It was only at a very late stage, when the disciplinary hearing was imminent, that the Trust adequately communicated to the claimant the fact that it had decided, after all, not to allow Mr Connolly to attend. 

 

55.           If, in that situation, the Trust had insisted on going ahead with the disciplinary hearing as scheduled, despite any protestations from the claimant, there would be a respectable argument that, in those circumstances, the dismissal was procedurally unfair (subject to the potential availability, to the Trust, of the defence provided by Article 130A(2) of the 1996 Order).  However, the realty is that the claimant was offered a postponement of the disciplinary hearing (because of the lateness of the notification in relation to the unacceptability of Mr Connolly as a representative).  For reasons which are perfectly understandable from a human point of view, she declined to accept that offer of postponement.  Nevertheless, the offer of postponement was made.

 

56.           At the internal disciplinary appeal hearing, the claimant was represented by Mr Gorman, who is an experienced trade union representative.  It is noteworthy that the general thrust of the defence at the appeal stage was very similar to the general thrust of the defence at the initial disciplinary hearing.

 

57.           According to page 13 of the claimant’s Submission:

 

“Had all other supporting evidence been sound, the lack of any statement from Patient X himself would have been irrelevant.  It remains neutral.  However to dismiss in the face of such unsound evidence and without a statement [from X] is far beyond the band of reasonable responses of an employer”.

 

58.           We are constrained to disagree with the points made in that part of the claimant’s Submission.  In our view, if credible evidence of abusive conduct can be obtained without embroiling a vulnerable patient in the information-gathering process, it will often be entirely appropriate for a Trust to decline to pursue the patient for his account of events.

 

59.           According to Mr Gorman’s Submission (again at page 13) the Maguire version of events is implausible because:

 

“[That version] suggests that the claimant, a care worker with 25 years of unblemished service to clients, mostly on night duty, suddenly grabs scissors and threatens a physically frail man in her care with extreme violence, and then calmly goes about her work as if nothing happened”.

 

60.           In our view, all that the Maguire version implies is that the claimant, in circumstances which she reasonably found to be stressful, lost her temper and behaved abusively by talking about cutting out X’s tongue.  In our view, there is nothing in the Maguire version to suggest that X was ever actually the subject of any imminent threat, or that X had any good reason to believe he was under any imminent physical threat.  Instead, the real implication of the Maguire version is that the claimant used threatening language for the purpose of expressing her displeasure with X, and for the purpose of reminding him that he was ultimately dependant upon her goodwill.

 

61.           In our view, sadly, there is nothing inherently implausible about that version of events.

 

62.           Ms Maguire did not promptly report the incident.  According to Mr Gorman (at page 14 of the Submission) that is a pointer against the credibility of the Maguire version of events.  However, the members of this tribunal live in the real world.  We know that colleagues are often reluctant to involve themselves in the controversy which often arises when one worker is accused by a colleague of inappropriate conduct.  Furthermore, the reluctance of Ms Maguire to report the event could be regarded by a reasonable internal disciplinary panel as an indicator in favour of the proposition that Ms Maguire was not motivated by any desire to do harm to the claimant.

 

 

63.           At page 16 of the Submission, it is asserted that, because of past interactions between the claimant and Ms Maguire, Ms Maguire had a reason to have a grudge against the claimant.  However, the existence of any such alleged reason was not brought to the attention of the Trust at any stage of the disciplinary process.  In our view, the existence of the relevant events was not a matter which Mr Gordon could reasonably have been expected to have become aware of, in the absence of any suggestion to that effect, made by or on behalf of the claimant, during the course of the disciplinary process.

 

64.           At page 16 of the Submission, it is asserted that the claimant’s own testimony, throughout the internal disciplinary process and throughout the tribunal process, has been consistent.  We agree that, within the claimant’s own testimony, no very significant inconsistencies have emerged.  However, we have arrived at the following conclusions in connection with that matter.  First, any consistencies between the claimant’s version of events during the course of the disciplinary process on the one hand and during the course of the tribunal process on the other hand is irrelevant to the question of whether or not the employer acted reasonably in preferring the Maguire version of events.  (That question has to be considered by reference to the state of the evidence as at the date on which the internal appeal panel announced its decision in respect of the appeal).  Secondly, the ability of the “accused” to be consistent in her denials is not the only factor, or even the crucial factor, in most situations in which a fact-finder (in this instance, the internal disciplinary authorities) has to decide between two competing versions of events.

 

65.           At page 17 of the claimant’s Submission, it is asserted that the Department of Health, Social Services and Public Safety was “seemingly unconvinced as to the reasonableness of the respondent’s case”.  We are not so sure that the relevant documentation supports that assertion.  In any event, the Department’s views, in the present context, are not relevant.  (On the question of dismissal, the only proper decision-maker in this case was the Trust itself).

 

66.           In the course of the hearing of these proceedings, it was suggested that the claimant had been unduly restricted in the issues which she was allowed to raise in the initial disciplinary panel hearing.  However, we are satisfied that the claimant was not unduly restricted.  In the interests of proportionality and expedition, a disciplinary panel, in deciding whether or not to allow an employee to pursue a particular line, is entitled to have regard to the question of whether the particular area of evidence is of central relevance or whether its relevance is peripheral at best. 

 

67.           Also during the course of the tribunal hearing (and again in the course of the Submission), it was suggested that the fairness of the process was greatly diminished because Mr Gordon put a particular, and inappropriate, slant upon the evidence, and upon the responses which the claimant had made during the course of the investigative process.  We are satisfied that Mr Gordon, having decided that there was a case to answer, was inclined, during the course of the disciplinary hearings, to accentuate those aspects of the facts which were most supportive of the view of the case which he had formed.  However, there is nothing unusual about Mr Gordon’s practice.  The claimant had the opportunity to put her own slant on the

 

 

evidence during the course of the hearings, and she did so (both personally and, during the internal appeal hearing, through Mr Gorman’s representations).

 

 

 

Chairman:

 

 

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

 

 

Date decision recorded in register and issued to parties: