Industrial Tribunals Northern Ireland Decisions

You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Morrow v Shauna Stanford, T/A Innisfree... [2010] NIIT 6787_09IT (26 May 2010)
URL: http://www.bailii.org/nie/cases/NIIT/2010/6787_09IT.html
Cite as: [2010] NIIT 6787_9IT, [2010] NIIT 6787_09IT

[New search] [Printable RTF version] [Help]

THE INDUSTRIAL TRIBUNALS

CASE REF: 6787/09

CLAIMANT: Elaine Morrow

RESPONDENT: Shauna Stanford, T/A Innisfree Residential Home

DECISION

The unanimous decision of the tribunal is that the claimant’s dismissal was fair and the claimant’s claim of unfair dismissal is dismissed.

Constitution of Tribunal:

Chairman: Ms M Bell

Panel Members: Mrs S Doran

Mr S White

Appearances:

The claimant was represented by Mr M C W Lavery, Barrister-at-Law instructed by Conor Agnew and Co Solicitors.

The respondent was represented by Mrs Sheridan of Penninsula Business Services Limited.

1. The claimant complained in her claim that she was unfairly dismissed on grounds of gross misconduct for conduct which she denies and considered even if proven did not constitute gross misconduct and justify dismissal.

2. The respondent in its response resisted the claimant’s claim and contended that the respondent at the time of dismissal genuinely believed based on reasonable grounds that the claimant was guilty of misconduct, its dismissal procedures were reasonable and that the claimant was fairly dismissed by reason of her conduct.

3. It was confirmed at hearing that the respondent’s correct title is Shauna Stanford trading as Innisfree Residential Home. The title of the proceedings are accordingly now amended from “Elaine Morrow-v-Innisfree Residential Home” to “Elaine Morrow-v-Shauna Stanford, T/A Innisfree Residential Home”.

Issues

4. In determining the question whether the claimant was unfairly dismissed by the respondent the following issues were before the tribunal:-

(i) Has the respondent shown the reason for dismissal?

(ii) Was it for a reason relating to the conduct of the claimant?

(iii) Did the respondent act reasonably in treating the conduct as a sufficient reason for the dismissal, that is:

· Did the respondent have a reasonable suspicion amounting to a belief in misconduct of the claimant and reasonable grounds upon which to sustain the belief?

· Did the respondent carry out as much investigation into the matter as was reasonable in all the circumstances?

· Was the misconduct in question a sufficient reason for dismissing the employee?

Evidence

5. The tribunal considered the claim, the response and agreed bundle of documentation, a second bundle of documentation prepared by the claimant and provided on the second day of hearing, which the respondent indicated was not fully agreed but confirmed that it was happy for it to be provided to the tribunal and that it would in the course of the hearing raise objections it had to any particular document referred to therein, should an objection arise, however, no objections were subsequently raised to any document contained therein. The tribunal also heard oral evidence from Mrs Eimer Bevin, sister of the respondent, Mrs Shauna Stanford, the respondent, Mr Sean Macklin, father of the respondent, Mrs Caroline Conly, the respondent’s manager and from the claimant.

Findings of Fact

6. The claimant was born on 27 March 1967.

7. Approximately 12 years ago the claimant worked for about one year as a care assistant in a residential home in Ballymena. From then until commencement of her employment with the respondent in November 2007 the claimant had a number of jobs in catering.

8. On 23 November 2007 the claimant commenced employment with the respondent, Shauna Stanford trading as Innisfree Residential Home, as a care worker, working forty hours per week. The claimant did not work nightshifts, finishing at 8.00 pm at the latest.

9. Innisfree Residential Home is a 22 bed residential home accommodating residents with various degrees of need, the majority of residents being elderly. The home is regulated under legislation and registered with a number of relevant agencies. All residents have a care plan and daily record sheets kept in respect of them which are available to care assistants and confirm what care is required by residents, these are updated and added to regularly.

10. When the claimant began her employment with the respondent she was given two copies of her contract of employment for signature together with a copy of the respondent’s staff handbook to take away and read. The claimant had not returned a signed contract of employment to the respondent a number of weeks later and so was asked to do so, the claimant returned a contract signed and dated 14 January 2008 to Caroline Conly along with the staff handbook following this request. The claimant gave evidence that in the interim she had placed the handbook in a drawer and had not read it before returning it. The tribunal accepts the respondent’s evidence however, that the handbook was available for staff to have as long as they needed it to read it and raise any queries they had and that thereafter a copy of the handbook was available for reference in the office along with a folder containing all the relevant practices and procedures which the home and its staff were required to observe. The claimant acknowledged that she was aware of the respondent’s folder containing its practices and procedures, she could not however, recollect clearly whether she had read the whole of the contents of the folder but confirmed that she had access to it and had signed to confirm that she had read parts of it.

11. The claimant underwent on commencement of her employment induction with another member of staff, shadowing her colleague on a shift during which she was introduced to the homes procedures, shown where the care plans and daily records were kept, given the opportunity to meet residents and she also underwent specific training in relation to areas such as medicines, infection control, fire drills, manual handling and other mandatory matters on an ongoing basis.

12. After the claimant started work with the respondent she applied for registration as a care worker to the Northern Ireland Social Care Council.

13. There was an incident between the claimant and a resident, Mrs Kathleen Manson, of Innisfree Residential Home on 13 December 2008 in which the claimant alleges that she was assaulted by the resident following which the claimant contacted the resident’s family, Out-of-Hours Social Work Department and reported the matter to the PSNI.

14. In response to the incident on 13 December 2008 the respondent notified the Regulation and Quality Improvement Authority (RQIA) about the incident and a vulnerable adult case meeting was held on 23 December 2008 with the resident’s Social Worker, the Head of Social Work and Social Care Governance, Mrs Conly, Mrs Stanford, the resident’s two daughters and a PSNI Constable. It was agreed at the meeting that provided measures were put in place to prevent the claimant working with the resident, that the resident would not be deemed a vulnerable adult at risk. The PSNI confirmed that they were not taking any further action and were closing the case. In consequence, the respondent and claimant agreed in the meantime for the claimant to cover kitchen duties during the absence of another employee on maternity leave and a rota was put in place so that the claimant did not have to work with the resident.

15. Untoward event forms were completed by Mrs Stanford and Mrs Conly in respect of the incident, the second form was filled in after the resident’s family informed the respondent that the resident had said that the claimant had provoked her by swearing at her.

16. The respondent decided that in all the circumstances the most appropriate course of action was to draw a line under the incident on 13 December 2008 and to try to prevent it happening again. The respondent put in place additional training in respect of vulnerable adults for all staff and specifically training on how to deal with aggressive and challenging behaviour. The claimant attended the additional training put in place by the respondent, for which she signed a form to confirm on 18 February 2009. Following the last training session provided to the claimant by Donna Hill from Behavioural Science Services the claimant had a final meeting with Ms Hill to ascertain how she then felt about returning to work with Mrs Manson. At this meeting the claimant confirmed that she felt better equipped to work with the resident and was now prepared to return to work as a care assistant. The claimant thereafter returned to working as a care assistant for one 12 hour shift per week, covering kitchen duties for her remaining shifts.

17. On 19 May 2009 Mrs Conly was away from the home from around 12 noon to attend a resident’s funeral, she returned at approximately 4.30 pm and remained on duty until 6.00 pm. The following day, 20 May 2009 at 11.00 am Mrs Conly went outside for a smoke and overhead two members of staff having a conversation. Mrs Conly believed that one of the members of staff, Dorothy McClure was “giving off” about something so she asked Ms McClure what she was complaining about. Ms McClure brought to Mrs Conly’s attention that whilst not herself on duty the previous day, she had called into the home on the afternoon of 19 May 2009 after the resident’s funeral and that the claimant had told her that she had told Mrs Manson to “sit and piss herself” during the time when she was trying to obtain a urine sample and said that there was talk among other staff that possibly more had gone on, but that that was all she was aware of.

18. Mrs Conly spoke to all members of staff who had been on duty or on the premises on 19 May 2009, and four members of staff informed Mrs Conly that the claimant had been verbally abusive to Mrs Manson on 19 May 2009. Mrs Stanford was out of the country at the time so Mrs Conly contacted Mrs Stanford’s sister, Mrs Bevin for advice. Mrs Bevin is a Director in a separate Company that owns nursing and residential homes and Mrs Bevin provides services on a contract basis as required for Innisfree Residential Home.

19. Mrs Bevin and Mrs Conly both considered the allegations which had been made against the claimant to be very serious and that the matter would need to be taken further. Accordingly, a letter was prepared and hand delivered to the claimant by Mrs Conly on the evening of 20 May 2009. The letter required the claimant to attend an investigatory meeting to be held on Monday 25 May 2009 at 11.00 am in Innisfree Residential Home. It confirmed that until the hearing, the claimant was suspended on full pay with immediate effect. The purpose of the hearing was stated to be to allow the claimant the opportunity to provide an explanation for the following matters of concern:

“Statement of Grounds for Commencing Formal Action

It has been alleged that you verbally abused a resident on 19.05.09. I have attached a copy of the Company’s disciplinary rules and procedures of which you are aware and to which I will be making reference. Because this allegation is so serious, we consider it to be gross misconduct.”

The claimant was given the right to be accompanied.

20. The respondent’s disciplinary and disciplinary dismissal procedures are set out in its employee’s handbook at Pages 21-28. Examples of major misconduct given at Page 22 therein include at Paragraph D1(C) “Rudeness toward Service Users, Members of the Public or other Employees, Objectionable or Insulting Behaviour or Bad Language”.

21. Examples of gross misconduct set out at Paragraph 1(M) include “Maltreatment of Service Users.” At 1(N) “Failure to Report an Incident of Abuse, or Suspected Abuse of a Service User;” and 1(Y) “Serious Failure to Abide by the Code of Conduct and Practice issued by the Northern Ireland Social Care Council, a copy of which is available for inspection in the office”.

22. The Northern Ireland Social Care Council’s Code of Practice describes standards of conduct and practice within which Social Care Workers and Employers of Social Care Workers should work and includes protection of rights and promotion of the interests of Service Users and Carers.

23. Mrs Conly asked the members of staff who had brought forward the allegations against the claimant to provide written statements, two of those members of staff were reluctant to do so, but when Mrs Conly reminded them of their duty of care to report an incident of abuse and that a failure could be seen as neglect they did so without raising any further concern.

24. Patricia Abram, one of the respondent’s employees, provided a statement on 23 May 2009 that she had heard the claimant say to Mrs Manson on 19 May 2009 “I hope you sit and pish your knickers”.

25. Ms C McAuley, an employee of the respondent, provided a statement on 22 May 2009 that at approximately 2.00 pm the claimant told her she had told Mrs Manson to “sit there and f.. king piss yourself you old bitch”, that during the rest of the day the claimant was sharp and rude with her answers to Mrs Manson and had asked Ms McAuley not to tell Mrs Conly about these incidents and enquired what time Mrs Conly would be back at “as she would have more time to wind Kathleen up”, that the claimant said to Mrs Manson when Mrs Manson was rude to the claimant “why don’t you just mind your own f..king business”, and that “another remark I heard throughout the day was Elaine said to Kathleen “you can sit there and piss yourself””. Also, as she was helping Mrs Manson to the dining room that Mrs Manson told her that the claimant said “f..k” to her and when preparing her dinner the claimant told her that during an argument with Mrs Manson about a urine sample she had told Mrs Manson “well just sit there and pish yourself”.

26. Johnny Breen, an employee of the respondent, provided a statement on 20 May 2009 that on 19 May 2009 the claimant had told him when getting a urine sample Mrs Manson was giving off at her about her being a heavy smoker and wanted Mrs Conly to take the sample and that the claimant had told Mrs Manson “you’ll have to wait till Caroline is back or just sit and “pish yourself” and that the claimant told Mr Breen later that she had called Mrs Manson “an aul pishy bitch”. Furthermore, later in the day when asking the claimant why she had done it, that the claimant had said to Mr Green “it was only a laugh, she has annoyed me today so I don’t give a shit”.

27. On 25 May 2008 an investigatory meeting was held by Mrs Bevin, the claimant attended accompanied by Pauline Brennan, and notes were taken by Mrs Conly. Copy witness statements were provided to the claimant. At the investigatory meeting it was put to the claimant that the respondent had been informed that she had used foul and abusive language to Mrs Manson in the living room following a conversation about a cruise and that she was “supposed to have told Kathleen to “mind her own f..king business””. The claimant confirmed that she did not recall using foul language to Kathleen, that she definitely would not have used the “F word” but that she “probably did say “mind your own business””. It was put to the claimant that she had advised Mrs Manson to “sit there and piss your knickers” when she refused to give the claimant a urine sample, this was witnessed by Ms Abram and that the claimant had also told three other members of staff. The claimant said that she “didn’t say that to her, I came out and said that to the staff that was what I wanted to say to her. They all joked and laughed. I thought it was a joke and that was that”. The claimant acknowledged that she had “lied to staff. I told them I said this but I didn’t actually say it to Kathleen. I just wanted to say it to Kathleen”. The claimant agreed that she had lied to all three different staff and explained that she did so “because when I came out of her room I felt “oooh I could kill her” so that was what I said to the staff.”

28. Following the investigatory meeting, and on consideration of the matter Mrs Bevin felt that it needed to proceed to a disciplinary hearing and so handed over her notes, the statements and minutes of the investigatory meeting to Mrs Stanford.

29. Mrs Stanford wrote to the claimant on 1 June 2009 requiring her to attend a disciplinary hearing on 11 June 2009 to afford her an opportunity to provide an explanation for the following matters of concern to her:

“Rudeness towards residents, objectionable or insulting behaviour or bad language.

Maltreatment of Service Users.

Suspected abuse of a Service User.

Serious failure to abide by the Code of Conduct and Practice issued by the Northern Ireland Social Care Counsel, a copy of which is available for inspection in the office.

I enclose copies of the documents that will be used at the hearing for your information. The Company views the above matters as potentially serious misconduct and therefore if you are unable to provide a satisfactory explanation for the matters outlined above employment may be terminated”.

The claimant was given the right to be accompanied and reference was made to her having received a copy of the Company’s Rules and Procedures to which Mrs Stanford would be making reference.

30. A disciplinary meeting was conducted by Mrs Stanford on 11 June 2009, the claimant attended accompanied by Pauline Brennan, a fellow employee, and Mrs Conly acted as a notetaker.

31. The meeting began with Mrs Stanford outlining to the claimant the four issues of concern as set out in the letter of 1 June 2009. The claimant acknowledged that she understood the allegations and Mrs Stanford went through the issues. The claimant acknowledged that after she had left Mrs Manson’s bedroom on 19 May 2009 that she had informed members of staff that she told Mrs Manson to “sit there and piss yourself” when she had refused to let her obtain a urine sample, but that she had not actually told the resident this. When asked why she had lied to the members of staff she said “because Kathleen had fried my brain. This is what I had wanted to say to Kathleen so I told the staff I had said it. I told them it as a laugh”. When asked did she think it was a laughing matter the claimant said “yes, I was laughing when I said it”. The claimant acknowledged that she had told different members of staff at various stages throughout the day “because it was laughed it. I found it was funny and everyone I told laughed at it”. The claimant confirmed, however, that she did not clarify to the staff at any stage that it had been a joke because she never thought to do so. It was put to the claimant that two of the witness statements confirmed that the claimant had actually been heard telling Mrs Manson at a later stage in the day to “sit there and piss yourself” but the claimant stated that it never happened and that she could only argue against the statements. The claimant acknowledged having told Mrs Manson to mind her own business but denied saying to her to mind her own “f..king business” and felt that she was justified in speaking in that manner to a resident. In response to the allegation by the resident that the claimant used foul language toward her, the claimant responded that Mrs Manson had once heard her say “f..k” during a private conversation with a member of staff and a couple of days later said that the claimant had sworn at her and that this had been ongoing since. It was put to the claimant that it had been verified in another witness statement that Mrs Manson had said the claimant had cursed at her. The claimant responded that any time Mrs Manson was annoyed with her that she would say that the claimant had cursed at her. It was put to the claimant that a member of staff had claimed that she said “don’t tell Caroline about this incident” and “I wonder what time Caroline will be back so I have more time to wind Kathleen up”. The claimant stated that she didn’t remember this at all.

32. Following the disciplinary hearing Mrs Stanford considered all the evidence available to her and gave her decision in writing to the claimant by letter dated 11 June 2009. Mrs Stanford set out again the matters of concern to her and that the claimant had denied all the allegations made against her, but that after having listened to the claimant’s explanations that Mrs Stanford considered them to be unsatisfactory because:

“Although you claim not to have made a derogatory remark to Kathleen Manson during the conversation about obtaining a urine sample, you were overheard by two members of staff making such a statement. I therefore believe beyond reasonable doubt you acted in a manner that it was not acceptable in dealing with vulnerable adults.

Regarding the use of objectionable and bad language you admit having used bad language on occasion within earshot of residents of Innisfree Residential Home. Furthermore, you were witnessed using foul and insulting language directly towards Mrs Kathleen Manson by another member of staff on 19.06.09. By your own admission you claimed to have told Kathleen Manson to “mind her own business”, which again is unacceptable.

As your actions amount to gross misconduct you are summarily dismissed and as such you are not entitled to notice or pay in lieu of notice.

You have the right of appeal against my decision ………”

33. Solicitors wrote on 16 June 2009 to the respondent on behalf of the claimant appealing the decision to dismiss her.

34. An appeal hearing was conducted on 10 July 2009 by Mr Sean Macklin, the claimant attended accompanied by Ms Brennan and notes were taken by Mrs Conly. No new evidence or mitigating factors were brought to Mr Macklin’s attention in the course of the appeal hearing, other than the suggestion that one of the witness statements had been provided under duress at which point Mrs Conly intervened and explained to the claimant that in a vulnerable adult case the withholding of information by staff can be seen as neglect and that staff could face disciplinary proceedings themselves.

35. After consideration of the matter following the appeal hearing Mr Macklin wrote to the claimant on 16 July 2009 upholding the decision to terminate her employment due to gross misconduct.

The Law

36. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer. Article 130 sets out how the question of whether a dismissal is fair or unfair is to be determined.

37.           Article 130(1) provides that 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 principle 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.

38. Reasons falling within Paragraph (2) include if, at Article 130(b), it relates to the conduct of the employee.

39. Under Article 130(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.

40. It is established that the approach the tribunal should take in deciding whether an employer acted reasonably in treating an employee’s conduct as a sufficient reason for dismissal is set out in the case of Iceland Frozen Foods-v-Jones [1983] ICR17 such that;

1. The starting point should always be the words of Article 130(4);

2. In applying the Article 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 from 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.

41. In the context of a misconduct case Arnold J in British Home Stores-v-Burchell [1980] ICR303 stated “what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.

It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance, to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt”. The test and the test all the way through is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmiseable circumstances be a reasonable conclusion”.

Application of the Law to the Facts Found

42. It is clear that it is not for the tribunal to retry the allegation of misconduct against the claimant, nor to consider whether we personally think that dismissal was fair or to substitute our decision as to what was the correct course for that of the respondent, but to apply the objective standards of the hypothetical reasonable employer to all aspects of the question whether the claimant was fairly and reasonably dismissed.

43. The burden of proof is on the respondent to establish the reason for the dismissal and that it was for a reason relating to the conduct of the claimant. Based on the respondent’s evidence which the tribunal finds credible and persuasive the tribunal is satisfied that the respondent has shown that the genuine reason for the claimant’s dismissal was misconduct which is a potentially fair reason for dismissal.

44. The next matter accordingly, for the tribunal to decide, is whether the respondent acted reasonably in treating the conduct as a sufficient reason for the dismissal. The tribunal must consider whether the respondent had a reasonable suspicion amounting to a belief in misconduct of the claimant and reasonable grounds upon which to sustain the belief, whether the respondent had carried out as much investigation into the matter as was reasonable in all the circumstances when he formed that belief on those grounds and whether the misconduct in question was a sufficient reason for dismissing the employee, that is overall whether the dismissal was procedurally fair and within a range of reasonable responses taking into account all the circumstances including the size of administrative resources of the employer’s undertaking and equity and substantial merits of the case.

45. Given the respondent’s evidence, which the tribunal finds credible, the witness statements provided by the claimant’s work colleagues to the respondent, in particular the allegations by Ms Abram that she directly heard the claimant say to the resident “I hope you sit and pish your knickers” and Ms C McAuley’s statement that she had heard the claimant say to the respondent “why don’t you just mind your own f..king business”, there being no reason or evidence of any motive by the claimant’s colleagues to collude or lie about what had happened, the claimant apparently having a good working relationship with her colleagues, and whilst denying the comment having been made directly to the respondent and the use of the “f word”, the claimant’s acknowledgement that she had told colleagues throughout the day that she had told the resident to “sit there and pish your knickers” and “to mind her own business”, the tribunal are satisfied that the respondent had a reasonable suspicion amounting to a belief in misconduct of the claimant and had reasonable grounds upon which to sustain that belief.

46. Submissions were made on behalf of the claimant as to the procedural fairness of the claimant’s dismissal, including that no proper investigation was carried out by the respondent, that Mrs Stanford did not interview or speak to any witnesses which would have been pertinent in light of discrepancies and inconsistencies between statements. On consideration of all the evidence before it and the submissions made the tribunal are satisfied on the basis of the respondent’s evidence, which it finds credible, supported by the claimant’s acknowledgement that minutes provided of the investigatory, disciplinary and appeal hearings are accurate, that a reasonable investigation was carried out by the respondent, that the hearings were all procedurally fair and accepts the respondent’s explanation that she did not find anything suspicious about the witness statements to prompt her to return to the witnesses, but would have found the statements suspicious if say, they had all been exactly the same.

47. The tribunal is not persuaded that statements were made by witnesses under threat of disciplinary proceedings but finds the respondent’s explanation that the two witnesses who were reluctant were simply reminded of their own duty of care, credible.

48. It was put on behalf of the claimant in submissions that the allegation that the claimant was involved in a prolonged deliberate campaign against the respondent was not put as part of the disciplinary proceedings, the tribunal are satisfied that this was simply a turn of phrase used by Mrs Stanford at the tribunal hearing, that this was not used in the course of the disciplinary and dismissal procedures against the claimant and did not form part of the actual allegations put to the claimant and upon which she was dismissed.

49. It was submitted on behalf of the claimant that in the invitation to the disciplinary hearing dated 1 June 2009 the grounds for commencing the action had been enlarged from the letter dated 20 May 2009 and now encompassed rudeness, maltreatment, suspected abuse and serious failure to abide by the code of conduct and that a decision had already been taken by the respondent early on to dismiss the claimant as demonstrated by evidence from Mr Macklin stating that Mrs Stanford had already asked him to confirm his availability to attend at any appeal hearing, that this was to avoid further scrutiny by the NISCC and because of the concerns of the resident’s daughter and so the respondent had put in train a process which would predetermine the outcome. The tribunal do not accept these assertions, or that there has been any procedural unfairness nor that there is any evidence to persuade it that a decision had already been taken by the respondent to dismiss the claimant. The tribunal find Mrs Stanford’s explanation credible that she had asked her father about his availability to deal with an appeal hearing if necessary because he is retired and goes on holiday frequently, so to ensure his availability if necessary and that there was nothing sinister about this. The tribunal accepts the respondent’s evidence that NISCC is a registration and inspection unit, that it does not undertake monitoring and that a decision to dismiss was not taken as suggested, to avoid further scrutiny by the NISCC, nor by reason of concerns of the resident’s daughter.

50. The tribunal is not persuaded that the decision to dismiss was procedurally unfair as a result of the respondent’s failure to take a witness statement from Ms D McClure, other witness statements having been taken and made available to the claimant and the decision to dismiss having been made based upon these and the claimant’s responses. The claimant submitted that the appeal was chaired by Mr Macklin who, it asserted by his own admission had been involved in discussions in respect of what an appropriate penalty should be and that he had been asked to attend an appeal hearing at an early stage. There is no evidence before the tribunal of any such admission by Mr Macklin and the tribunal accepts the explanation previously given by the respondent that it was simply checking Mr Macklin’s availability for an appeal hearing should the need arise. Submissions were made that the appeal hearing took the form of a review and that no consideration was given to other matters raised in submissions. The tribunal from the evidence and in particular the appeal minutes before it is satisfied that the appeal hearing was procedurally fair.

51. On the basis of the evidence before it the tribunal is satisfied that the respondent carried out as much investigation into the matter as was reasonable in all the circumstances and that the investigatory, disciplinary and appeal hearings were procedurally fair.

52. In deciding whether the misconduct in question was a sufficient reason for dismissing the employee the tribunal notes the claimant’s submissions that if the claimant was guilty of any misconduct then it should have been deemed to be major misconduct under the terms of the contract, that no proper explanation was provided as to the penalty imposed and no regard was had to the claimant’s long service and clear record and the improbability that the claimant would have made the remarks she did to fellow staff had she actually made the alleged remark directly to the resident; that no complaint was made by the resident or her family regarding any incident; that the respondent became aware of the incident by chance; that no regard was given to the previous incident between the claimant and the resident; and that no explanation or reasons were given following appeal for the penalty of dismissal in breach of her contract of employment. The tribunal are satisfied applying the objective standards of the hypothetical reasonable employer, taking into account the care environment in which the claimant was working with vulnerable adults, the respondent had taken all reasonable steps in making available to her and asking the claimant to read its handbook, practices and procedures and made available the NISCC code of practice, the body which the claimant had applied for registration to as a registered care worker, and that the respondent had provided training to the claimant, from all of which it should have been quite clear to the claimant that all residents are required to be treated with dignity and respect and as such that a hypothetical reasonable employer could reasonably consider that telling a resident to mind her own business as admitted by the respondent and overheard by a colleague, to make a joke with her colleagues about having told a resident “to sit and pish her knickers”, as admitted by the respondent, let alone to tell a resident to mind her own “f…ing business” as reported by a colleague and to directly tell a resident “sit and piss your knickers” as reported directly by a colleague and which the tribunal accepts the respondent believed was sufficiently serious to amount to gross misconduct under the heading Maltreatment under the claimant’s contract of employment and amount to sufficient reason for the respondent to dismiss the claimant despite in particular her approximate 19 months of service and her clear record to date, rather than to be treated as major misconduct. The tribunal are satisfied that the respondent at the stage she formed her belief on those grounds had carried out as much investigation into the matter as was reasonable in all the circumstances of the case, and that the respondent’s decision to dismiss was within the band of reasonable responses which a reasonable employer might have adopted.

Conclusion

53. It is the tribunal’s unanimous finding that the respondent has shown that the reason for dismissal was misconduct, that the claimant’s dismissal was procedurally fair, that the respondent’s decision to dismiss the claimant fell within a band of reasonable responses which a reasonable employer might have adopted and as such that the respondent acted reasonably in all the circumstances including the size in administrative resources of the respondent’s undertaking, in treating the claimant’s misconduct as a sufficient reason for dismissing the claimant, in accordance with equity and the substantial merits of the case and that the dismissal of the claimant by the respondent is fair under Article 130 of the 1996 Order. The claimant’s claim of unfair dismissal against the respondent is accordingly dismissed.

Chairman:

Date and place of hearing: 18 January, 23 February, 8 March and 26 March 2010, Belfast

Date decision recorded in register and issued to parties: