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Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Hennighan v Belfast Health & Social Care T... [2011] NIIT 01951_10IT (05 August 2011)
URL: http://www.bailii.org/nie/cases/NIIT/2011/1951_10IT.html
Cite as: [2011] NIIT 1951_10IT, [2011] NIIT 01951_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1951/10
CLAIMANT: Jacqueline Hennighan
RESPONDENT: Belfast Health & Social Care Trust
DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed.
Constitution of Tribunal:
Chairman: Mr P Kinney
Members: Ms A Hamilton
Mr M Grant
Appearances:
The claimant was represented by Mr Coyle, Barrister-at-Law, instructed by Kelly & Corr, Solicitors.
The respondent was represented by Mr Potter, Barrister-at-Law, instructed by Directorate of Legal Services.
Issue
1. The issue in this case is whether or not the claimant was unfairly dismissed. The respondent accepts that it dismissed the claimant; but asserts that it was for a potentially fair reason, namely gross misconduct.
2. In addition to the evidence heard from witnesses, the tribunal also had an agreed statement of facts from the parties.
Findings of fact
3. The claimant was employed by the respondent as a Staff Nurse Grade E in the Paediatric Intensive Care Unit (‘PICU’) of the Royal Belfast Hospital for Sick Children. On Sunday 22 June 2008 a bottle of codeine phosphate oral solution went missing from a satellite drug cupboard in PICU. It was unclear when the bottle went missing and it was never recovered. Subsequently a daily monitoring system was implemented by senior nursing staff within PICU.
4. On Thursday 26 June 2008 members of the day shift, including the claimant, who had not already left the Department were asked by Sister McCormick to remain in the area. Julie Mulligan, Lead Nurse for PICU, and Heather McCord, Lead Nurse for Theatres, were subsequently contacted and arrived at the Royal Belfast Hospital for Sick Children at approximately 9.00 pm to investigate allegations that a bottle of codeine phosphate oral solution was missing from a satellite drug cupboard in Bay 1 of the ward. Codeine phosphate oral solution is stored in the main pharmacy stock cupboard in the unit with additional bottles in satellite cupboards within the ward if it is prescribed to patients in those areas. Codeine phosphate oral solution is a strong analgesic drug (morphine derivative) which is used for pain relief. At the time of these incidents the satellite drug cupboards remained unlocked to facilitate easy access to the drugs.
5. On the evening of Thursday 26 June 2008 a search of the area was undertaken and staff voluntarily agreed to searches of their lockers and belongings. This commenced at approximately 9.40 pm. The claimant was one of those staff who had their belongings and locker searched. Nothing was found as a result of these searches. Staff members who had been asked to remain behind were allowed to leave. The missing medicine bottle was found that evening in the staff toilet adjacent to the staff tearoom where the staff had waited. The claimant was the only member of staff seen to use that toilet while the searches were ongoing.
6. On 27 June 2008 a preliminary fact-finding investigation was conducted by Julie Mulligan and Heather McCord. A formal investigation was then commissioned by Brenda Creaney, Co-Director of Child Health and Associated Director of Nursing. The investigation panel consisted of:-
Mr Bradley, Paediatric Services Manager; and
Ms McKimm, Paediatric Transport Co-Ordinator.
A large number of members of staff were interviewed by the investigation panel. The claimant was interviewed and accompanied by her trade union representative throughout the interview. The investigatory panel prepared a full report and set out their conclusions and the reasons for those conclusions. The panel concluded that on the balance of probabilities it was the claimant who was responsible for the misappropriation of the codeine phosphate oral solution on the two occasions in question.
7. The claimant was invited to attend a formal disciplinary hearing in respect of three charges:-
(a) That she misappropriated drugs contrary to the Legacy Trust’s policy and procedure on handling alcohol and substance abuse (Royal Hospitals) on two occasions.
(b) That by these actions she could have potentially adversely affected the health and well-being of staff and patients.
(c) That her actions brought the Trust into disrepute by fraudulently removing Trust property.
8. The disciplinary hearing panel consisted of:-
Olivia McLeod, Co-Director of Nursing and Patient Experience; and
Suzanne Pullins, Cardiology Services Manager.
The disciplinary hearing heard evidence over three days, 16 July 2009, 14 December 2009 and 10 February 2010. The panel heard from eight witnesses and had available witness statements from other staff members. The claimant was represented at the hearing by her trade union representative, Mr Keating, and had an opportunity to cross-examine the witnesses.
9. By letter of 17 February 2010 the claimant was notified that the panel had upheld the allegations, that she was dismissed effective from 10 February 2010 and that a referral to the Nursing Midwifery Council would be made. The claimant confirmed by correspondence of 19 February 2010 that she wished to appeal the panel’s decision. An appeal hearing took place on 30 April 2010. The appeal panel consisted of:-
Rosaline Corvan, Co-Director for Acute Services in the Belfast Trust; and
John Growcott, Co-Director of Family & Childcare.
The appeal panel proceeded by way of a complete re-hearing of the matter. They had before them the investigation report and heard direct evidence from witnesses with the exception of two witnesses who the claimant and her representative agreed did not need to be called. The witnesses were available for cross-examination by the claimant and her representative. The claimant was notified by letter of 25 May 2010 of the appeal panel’s decision to uphold the decision of the original disciplinary panel and to dismiss the claimant from the respondent’s employment.
10. The appeal panel gave reasons for their decision. Having considered the evidence in front of them the panel made the following findings:-
(a) The claimant had what she categorised as a reliance on codeine. The panel had before it a letter from Doctor Losty, a Consultant Clinical Psychiatrist, who confirmed in a letter of 20 March 2009 that the claimant had recently engaged with her local community addictions team to tackle the problem. Doctor Losty in the same letter also confirmed that reports from the community team indicated that the claimant had not taken any codeine since September 2008. The appeal panel noted that this post-dated June 2008 when the bottle of medicine went missing.
(b) The panel noted that the claimant had admitted stealing a bottle of codeine phosphate medicine on a previous occasion in 2008 for which she had received a Final Written Warning in 2007 which was still live.
(c) On the evidence heard the claimant was in close proximity to the satellite drug cupboard. She was attending to the child in the bed immediately adjacent to the cupboard. The other nurses in the same bay had curtains pulled round their beds and did not have a view of the cupboard.
(d) The panel heard evidence that the claimant had knowledge of the nature of the medicine missing at a time when no staff members had been told what senior staff were searching for. It was acknowledged that this statement was subsequently retracted by the claimant.
(e) The claimant was the only member of staff, who had been asked to wait in the staff tearoom while searches were being conducted, to leave and use the staff toilet adjacent to the staff tearoom. The missing bottle of medicine was subsequently found in a bin contained in that staff toilet.
11. At the tribunal a number of other matters were raised by the claimant. In the course of the disciplinary hearing, Mr Bradley had alleged that the claimant, through her union representative, had admitted to the theft of medicine. The claimant denied this, as did the union representative, and Mr McAllister of the respondent’s HR Department who was also allegedly told of the claimant’s admission. However, the appeal panel dismissed this evidence and did not take it into account in arriving at their conclusions. The claimant also made the case that she had denied knowing of the nature of the medicine misappropriated on 26 June 2008. However, in her evidence before the tribunal the claimant herself was inconsistent on this point, both denying that she admitted knowledge of the medicine; but also providing evidence to explain how she had inferred what the medicine must be from comments made to her by Sister McCormick on the night in question.
12. The appeal panel heard the case afresh. They did not have access to nor consider any notes of the hearing in front of the disciplinary panel or the evidence given to that panel. They had before it the investigation report and carried out their own investigations and heard evidence from witnesses who were available for cross-examination by the claimant.
The law
13. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has a right not to be unfairly dismissed. By Article 130 of the same Order to determine whether a dismissal of an employee is fair or unfair, it is for the employer to show that the reason for the dismissal falls within the terms of that Article. By Article 130(2)(b) one such reason relates to the conduct of the employee. If a potentially fair reason is established the tribunal should then consider whether the respondent acted reasonably in all the circumstances. Dismissal must be within the band of reasonable responses which a reasonable employer might take and the tribunal must not substitute its own view for that of the employer.
14. Following the authority of British Home Stores v Burchell [1978] IRLR 379, the tribunal must be satisfied that the employer at the time of the dismissal had a genuine belief in the employee’s guilt of that misconduct, had reasonable grounds to hold that belief and carried out such investigation as was reasonable in all the circumstances. The penalty which the employer then imposes as a sanction must also be within a range of reasonable responses which a reasonable employer might take. The employer’s decision is taken on the balance of probabilities. In Burchell, Mr Justice Arnold said:-
“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 a 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 surmisable circumstance be a reasonable conclusion.”
15. In Dobbin v Citybus Ltd [2008] NICA 42, Lord Justice Higgins considered the question of whether or not the employer’s actions were reasonable in all the circumstances. He said at Paragraph 57:-
“In other words, it is not for the tribunal to determine whether the conduct of the investigation was reasonable but whether in the particular circumstances of the case the investigation was one which a reasonable employer would consider fell within the range of reasonable investigations to enable the particular allegations against the employee to be investigated and determined. Thus the nature and depth of any investigation will vary with the circumstances and conduct under consideration.”
16. In Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, the Court of Appeal reminded tribunals that the function of a tribunal is to consider the reasonableness of the employer’s conduct and not simply whether they (the members of the industrial tribunal) considered the dismissal to be fair. In judging the reasonableness of the employer’s conduct a tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. The Court of Appeal also stressed that the tribunal should not re-hear or re-investigate allegations but should consider whether the employer acted reasonably having regard to the material available to it and the investigation carried out by it.
Conclusions
17. On the evidence before it the tribunal is satisfied that the respondent carried out an extensive investigation and provided the claimant with every opportunity to challenge the evidence presented. There was an investigation carried out which required interviews with a wide number of staff. The investigation report set out a list of concerns and a disciplinary hearing was arranged of which the claimant had full notice and at which she was accompanied by the union representative. The claimant had every opportunity to make any points she thought appropriate. She had an opportunity to cross-examine the witnesses. There was a full appeal process which was conducted by way of re-hearing. Again the claimant had an opportunity to challenge the evidence of witnesses before the appeal hearing and to cross-examine those witnesses. The tribunal is satisfied that the investigation was thorough (and indeed it was accepted by the claimant in her evidence before the tribunal that the respondent conducted a fair investigation). It was reasonable for the disciplinary panel to have a genuine belief in the claimant’s guilt of the misconduct alleged. Most importantly, the appeal panel re-heard the case in its entirety and arrived at its conclusions on the reasons we have set out in our findings of fact. The claimant before the tribunal sought to challenge the findings of both the disciplinary panel and the appeal panel. It was suggested that undue reliance was placed on both the alleged admission of guilt by the claimant and on the evidence of the previous misconduct. The claimant alleged that the process was tainted by these matters. Ms Corvan however confirmed that the appeal panel did not consider the alleged admission and dismissed this from their thinking. She set out the reasons for the appeal panel’s conclusion, on the balance of probabilities, that the claimant was guilty of the misconduct alleged.
18. The tribunal unanimously concludes that a reasonable employer would consider that the investigation and the reasons identified by the appeal panel are within a range of reasonable responses for an employer. For those reasons, the claimant’s claim must fail.
19. The tribunal has concentrated on the findings of the appeal panel as they conducted a completely fresh hearing. However, on the evidence that we have heard and on the reasons provided by the disciplinary panel the tribunal has no hesitation in finding a reasonable employer would also have considered their conclusion to be within a range of reasonable responses.
20. The tribunal further finds that the sanction of summary dismissal was within the range of reasonable responses that a reasonable employer might make. The claimant was found guilty of gross misconduct. She had in existence a Final Written Warning which was live at the time of the offence and was for substantially the same offence.
21. The tribunal determines that the claimant was not unfairly dismissed.
Chairman:
Date and place of hearing: 13 – 14 June 2011, Belfast
Date decision recorded in register and issued to parties: