Industrial Tribunals Northern Ireland Decisions

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URL: http://www.bailii.org/nie/cases/NIIT/2012/00846_11IT.html
Cite as: [2012] NIIT 00846_11IT, [2012] NIIT 846_11IT

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THE INDUSTRIAL TRIBUNALS

CASE REFS: 2807/10

846/11

CLAIMANT: Edward Jervis

RESPONDENTS: Belfast Health and Social Care Trust

DECISION

The unanimous decision of the Tribunal is that the claimant's claims are dismissed.

Constitution of Tribunal:

Chairman: Ms P Sheils

Members: Mr J Hughes

Mr P Killen

Appearances:

The claimant appeared and was represented by Mr Michael Potter, Counsel, instructed by Thompsons McClure Solicitors.

The respondent, the Trust, was represented by Mr Gerry Grainger, Counsel, instructed by The Directorate of Legal Services, Business Services Organisation.

THE CLAIMS AND THE RESPONSES

1. The claimant, Mr Jervis, lodged two claims namely 2807/10 on 30 November 2010 and 846/11 on 24 March 2011. In the first claim Mr Jervis claimed that he had been unfairly dismissed by reason of the Trust’s treatment of his poor work performance; that he had been subjected to direct disability discrimination and that the Trust had failed to make the reasonable adjustment to do this to take account of Mr Jervis’ disability.

2. In his second claim Mr Jervis claimed that the Trust had subjected him to direct disability discrimination and/or unjustified disability related discrimination and that the Trust had failed to comply with its duty to make reasonable adjustments as regards the process that should have been applied in failing to treat the matter as a capability issue; in failing to impose a lesser sanction; in failing to facilitate a rehabilitative return to work and in failing to implement a reasonable adjustment by way of redeploying the claimant to a suitable alternative (post) including (a) non clinical role.

3. The Trust presented responses to each of these claims, on 20 January 2011 and 19 April 2011 respectively. The first response denied that Mr Jervis had been subjected to disability discrimination and stated that he had been dismissed for gross misconduct.

4. In the second response the Trust denied that they had subjected Mr Jervis to direct disability discrimination and/or unjustified disability related discrimination and denied that the Trust had failed to comply with its duty to him to make reasonable adjustments.

SOURCES OF EVIDENCE

Oral Evidence

5. The Tribunal heard oral evidence from the following:-

For Mr Jervis

Mr Jervis

Doctor Brian Fleming

For the Trust

Doctor Helen Harbinson

Sister Kate McKenna

Sister Marcella Jenkinson

Mrs Samantha Whann

Ms Joyce Shaw

Mr Aiden Dawson

Documents

6. The Tribunal was presented with a number of bundles containing documents running to several hundred pages.

Submissions

7. The Tribunal received extensive, well-written and helpful submissions from both counsel.

FINDINGS OF RELEVANT FACTS

The Tribunal found the following facts as agreed or proven on the balance of probabilities;

8. The claimant, Mr Jervis, whose date of birth is 12 February 1960, commenced his working career as a nurse in 1979 and at the time of his dismissal he was employed by the respondent, (the Trust), as a Staff Nurse on the Orthopaedic Surgical Ward, Ward 6A, in Musgrave Park Hospital. Mr Jervis worked on Ward 6A on night duty from 1995 until December 2009.

9. It was Mr Jervis’ case even at hearing that he had had a clear disciplinary record. However it transpired at hearing that during the period between 1982 and 1987 Mr Jervis had received a written warning.

10. In June 2009 Mr Jervis was told that due to his high level of sick absence he was being put on a six month period of attendance monitoring. He was advised at that stage that if he took another episode of sick absence during this monitoring period further action would be taken.

11. In late November 2009 Mr Jervis suffered symptoms of flu and was concerned that he might have contracted swine flu which was epidemic at that time. As a precautionary measure Mr Jervis secured himself some Tamiflu tablets and stayed away from work to reduce the risk of infection.

12. However this episode occurred just before the end of the six month attendance monitoring period and on 27 November 2009 Mr Jervis’ line manager, Sister Kate McKenna, wrote to him and advised that, given that he represented 50% of her trained staff on night duty, in order for her to be able to meet service needs, she could no longer sustain his level of absence on night duty.

13. Sister McKenna also advised Mr Jervis that in an attempt to improve his health and well-being he would now form part of the day duty nursing team effective from 7 December 2009.

14. Sister McKenna also advised Mr Jervis that he was on a further six month period of attendance monitoring and that if his attendance did not improve during this period it would be necessary to meet to discuss the implementation of Stage 1 Capability.

15. Mr Jervis began working on day duty on Ward 6A on 9 December 2009. However Mr Jervis was dismissed from his employment on 1 September 2010 for gross misconduct on the basis of a number of serious offences he committed during the course of his work between January and February 2010.

16. In particular Mr Jervis was accused of seven separate incidents in relation to his failure to carry out jobs properly. Most of these incidents occurred between 11 February 2010 and 17 February 2010, Mr Jervis’ last working day. All the charges were of a serious nature and some had the potential to be life-threatening to patients.

17. Mr Jervis did not dispute the contents of any the charges against him and also did not dispute that any of the incidents had occurred, with one exception (allegation 5). At the disciplinary appeal Mr Jervis challenged his alleged involvement in this incident where he had been accused of fraudulently recording a patient’s clinical observations.

18. Mr Jervis stated that from in or about November 2009 he had become ill, had begun suffering from an adjustment disorder arising out of anxieties and crises in his personal life and that this mental illness had been exacerbated by his transition from night to day duty in December 2009 where the different challenges involved in day duty brought his illness to a critical point on 17 February 2010.

19. From the outset of these allegations being put to him and throughout his medical histories, the investigation, the disciplinary hearings and this hearing, Mr Jervis’ case was that he had no memory of any of the events or incidents from which the charges arose nor of any details of the meetings that had been held with him at that time to discuss his performance.

20. Mr Jervis’ case was that his poor performance and this memory loss were symptoms of the mental illness he had sustained and that the medical evidence obtained by the Trust supported his contention. It was Mr Jervis’ case that this mental illness amounted to his having a disability and that the Trust had failed in their duty to make reasonable adjustments for this. In particular it was Mr Jervis’ case that at the point where the Trust failed further to investigate or properly take into account the implications of the occupational health practitioner’s reference to Mr Jervis’ (having a) “medical condition which may have impacted on his capacity to remember and concentrate prior to his going off work”.

21. The Trust did not accept either that Mr Jervis’ poor work performance was due to his mental illness or that he had sustained any or as complete a memory loss as Mr Jervis claimed. The Trust’s case was that Mr Jervis did sustain an adjustment disorder but did so in February 2010 and as a direct result of the different level of supervision and scrutiny to which his work was subjected by his managers while on day duty.

22. The Trust’s case was that on being asked for feedback, questioned or challenged about his work and in particular, the errors he had been making, Mr Jervis became hostile, angry and verbally abusive.

23. It was also the Trust’s case that Mr Jervis demonstrated these behaviours on an increasingly obvious level so that the Trust began to have concerns about his mental health on 15 February 2010 and that this came to a head on the 17 February 2010, at a meeting convened by his managers and the Assistant Services Manager to which they had invited Mr Jervis to discuss his poor work performance.

24. The Trust contended that Mr Jervis did not have a disability as defined by statute and that the Trust had no reason to put in place any reasonable adjustments for Mr Jervis.

25. The Trust investigated the incidents of poor work performance and brought a total of eight disciplinary charges against Mr Jervis. Mr Jervis was dismissed for gross misconduct on 1 September 2010 and his appeal against that dismissal was rejected on 11 October 2010.

26. Although there were some discrepancies of fact between the different versions of Mr Jervis’ personal and family history as reported by him to the various doctors to whom he was referred there was no dispute that Mr Jervis had suffered a number of particularly tragic family bereavements over a short number of years prior to November 2009. Further to these, in late November 2009, Mr Jervis’
brother-in-law was diagnosed with cancer. When he and his wife were visiting him in hospital Mr Jervis’ wife collapsed due to heart problems and was seriously ill.

27. Also in November 2009 Mr Jervis developed a swelling on his leg which gave him increasing cause for concern in November and December 2009 and in early January 2010 he was advised that he needed urgent investigations to explore the possibility of sarcoma (ultimately ruled out in February 2010).

Events prior to the dismissal

28. Performance on day duty

The Tribunal saw a document that was described to it as a “rolling” file note/memo. This document described in some detail the observations of Sisters McKenna and Jenkinson of Mr Jervis’ performance at work from even before his arrival on day duty. The document was written in the first person but the author was either Sister Jenkinson or Sister McKenna. The observations were sometimes recorded at a time after they were first noted. The document was described to the Tribunal as a “living document” and it incorporated seamlessly notes of meetings that might have been thought to have been contained in separate minuted documents.

29. This document was presented to the Tribunal in various formats. One was contained in the agreed bundle and one was subsequently presented to the Tribunal on the basis that the first was unreadable. Another version was produced in aid of clarity and yet another, which version the Tribunal named at hearing “Book 5”. This was the copy of the memo on which the Tribunal relied.

30. There were differences amongst each of the versions and these were explained by reference to layout and font changes which affected its differing appearances when printed off the computer. However the Tribunal noted that the document also differed between the versions in relation to the amount of text it contained, with only some versions containing the same details of the meetings and events recorded.

31. The claimant made no objections in relation to the compilation of this memo. However it was the claimant’s case that although he did not dispute the contents of the memo, even in relation to the notes of his own comments in it, his case was that he had no memory of the any of the events or comments contained within it.

December 2009 to 29 January 2010

32. The memo noted a discussion Sister Jenkinson had with Mr Jervis on 8 December 2009 which indicated that she had advised Mr Jervis that while the actual work on day duty was no different from night duty - ie, observations, administration of medicines, attending to patients’ activities of living, following
post-op instructions, preparation for theatre, postoperative care, admissions - she felt that Mr Jervis should make himself aware of the daytime routine that he would be less familiar with, for example, admission for theatre, discharges, multidisciplinary team roles and when to involve them.

33. The note indicated that Sister Jenkinson had advised Mr Jervis that she would be his “mentor” and as such he could approach her at any time, that she would monitor his work as she would do with anyone else but that she also did not wish to insult his intelligence so he was not to take offence if he felt she was explaining things he already knew. Sister Jenkinson noted that Mr Jervis agreed with her and offered nothing further.

34. Mr Jervis accepted that Sister Jenkinson had had some discussion with him just before he started day duty and along the lines she had noted. However, Mr Jervis did not accept that Sister Jenkinson had ever said that she would be his “mentor”. Sister Jenkinson accepted in her evidence at hearing that although she had noted the word “mentor” she had not advised Mr Jervis that she would be acting as such in the formal sense of the word.

35. Sister Jenkinson reiterated that she had been careful to tell Mr Jervis that she was not challenging his level of competence but that she would be his point of contact if he identified any difficulties or areas of work that were different on day duty in which he needed support or training.

36. The Tribunal concluded that Mr Jervis’ move from night to day duty had been as a result of his sick absence and that neither Sister Jenkinson nor Sister McKenna had had any prior misgivings about Mr Jervis’ levels of competence. The Tribunal concluded that at the outset of his move to day duty Sister Jenkinson properly indicated to Mr Jervis that although the basic nursing duties were the same on day duty as on night duty there were duties on day duty that Mr Jervis was not familiar with and that on these, and on any other unfamiliar areas where he needed to develop his skills, he could call on her for help and support. The Tribunal accepted that the use of the word “mentor” had not been a reference to the full formal concept that it usually entailed.

37. Subsequent to this conversation this memo noted three occasions, 15 and 16 December and 6 January 2010, when Sister Jenkinson noted instances of Mr Jervis’ not having signed for medications administered. There was also an insertion dated 6 January 2010 entitled “Impressions of the first week” in which Sister Jenkinson noted that Mr Jervis appeared disorganised and was often found in bays (on the ward) where he was not supposed to work, that he was not the most dependant at completing end of bed documentation or writing precise evaluations of patient care. The memo indicated that Mr Jervis required prompting to do things in a timely manner.

38. The memo went on to indicate that Sister Jenkinson had raised some of these issues with Mr Jervis who, when questioned, appeared so flustered that Sister Jenkinson had to explain that she made similar queries of every staff member. The memo indicated that on noticing this reaction Sister Jenkinson left her questioning of Mr Jervis to the end so that he could see that this was an approach she made to all staff.

Meeting of 29 January 2010

39. The memo indicated that Sister Jenkinson continued to have a number of concerns about Mr Jervis in his second and third week on day duty. Sister Jenkinson had a meeting with Mr Jervis on 29 January 2010. Sister McKenna was also present. Mr Jervis was advised by Sister Jenkinson that this was an informal conversation regarding his transition from night duty to day duty and regarding some areas of performance that were causing concern.

40. When asked how he felt he had settled on to day duty, Mr Jervis stated that he felt that he had settled in well and was getting on well with all of the staff.

41. Mr Jervis accepted that Sister Jenkinson had had occasion to address areas of concern with him regarding not signing for drugs administered, completing fluid balance charts as per ward standard expectations, and for not wearing aprons - gloves and ANTT.

42. Sister Jenkinson made Mr Jervis aware that his performance was now becoming an issue of great concern and while she had given Mr Jervis two months to settle into the ward she felt that she could not leave her concerns any longer.

43. Mr Jervis’ response to Sister Jenkinson’s concerns was to question when he would be able to return to night duty, that his wife’s impending surgery meant that she would no longer be able to work and that he could not afford to stay on day duty. Sister Jenkinson advised Mr Jervis that he did not have an automatic right to return to night duty.

44. Sisters Jenkinson and McKenna discussed with Mr Jervis the idea of drawing up for him an action plan but an action plan was not drafted at that stage.

Meeting of 11 February 2010

45. Sister Jenkinson met Mr Jervis on 11 February 2010. Sister McKenna was also present. Sister Jenkinson challenged Mr Jervis in relation to a number of specific incidents of concern she had and asked him for an explanation for his performance regarding each of them. Sister Jenkinson noted that Mr Jervis did not appear to comprehend the seriousness of the situation and that he could offer no acceptable explanations regarding the concerns.

Note 13 February 2010

46. The memo stated that an action plan for Mr Jervis, which was set out in the memo, was to be discussed with him at a meeting on 15 February 2010. However, events at that meeting meant that this action plan was not put to Mr Jervis.

Meeting of 15 February 2010

47. The memo indicates that the note of this meeting was written by Sister Kate McKenna and appeared to be written some time after the meeting. The note opens with the following two paragraphs:-

“Myself and Sister Jenkinson met with Staff Nurse Jervis on 15 February at 15.15 pm to discuss his performance and to ascertain if he could offer any explanation.

While I had great concerns in relation to his competence and performance it was during the course of this meeting that I then began to have doubts as to his mental health and general wellbeing.”

48. From the outset of the meeting, Sister McKenna noted that Mr Jervis became extremely angry, that he felt he was being brought into a room like being taken into “Castlereagh Holding Centre”, that he was extremely agitated and that he was unable to offer any explanation to the errors pointed out to him as he was unable to answer in a rational manner, he kept digressing and talking about things that were irrelevant to the conversation.

49. Sister McKenna’s note indicated that Mr Jervis’ manner at times “bordered on paranoia” as at several times during the meeting he accused both Sister McKenna and Sister Jenkinson of having a hidden agenda against him. Sister McKenna asked Mr Jervis if there were any stressors causing him concern and her note indicated that she and Sister Jenkinson were aware that Mr Jervis’ wife was awaiting the insertion of a pacemaker although Mr Jervis had previously advised them that his wife was waiting on cardiac stents.

50. The note goes on to add that Mr Jervis had had an MRI scan of his lower leg but that Mr Jervis was subsequently told on 18 February 2010 that this had revealed a herniated muscle and was nothing more sinister.

51. Sister McKenna’s note indicated that Mr Jervis appeared to be very angry and when he was asked to calm down he had replied “…angry you haven’t seen me angry and anyone who crosses my path will feel my wrath”. The note indicated that Mr Jervis became very aggressive in his tone and behaviour and he was asked not to swear and yell.

52. Sister McKenna’s note indicated that she and Sister Jenkinson attempted to explain that they would be closely supervising Mr Jervis to identify any training needs and offer him support but added that if his poor performance were to continue there would be no option but to move to first-stage capability and that she had already taken advice from Human Resources in relation to how to proceed on this.

53. Sister McKenna’s note indicated that at this point Mr Jervis became very irate and shouted “right, let’s just go to first stage now and I will get legal advice” and asked that, if this meeting between him and Sister McKenna and Sister Jenkinson had been confidential, why had it been discussed with Human Resources?

54. Sister McKenna’s note indicated that during the course of this meeting it had become apparent to her that Mr Jervis had some kind of personal dislike of Sister Jenkinson due to the way in which Mr Jervis spoke to her.

55. The note also indicated that after approximately 30 minutes Sister McKenna decided to end the meeting as neither she nor Sister Jenkinson seemed able to get Mr Jervis to understand the seriousness of his situation and neither she nor Sister Jenkinson felt it was appropriate to advise Mr Jervis of the action plan that had been drawn up by them on 14 February 2010 (this was a reference to the action plan previously referred to in the memo one drawn up on 13 February 2010).

56. Sister McKenna’s note went on to add that she would be taking further advice from Mr Ken Gallagher, Assistant Services Manager, due to “Staff Nurse Jervis’ apparent lack of comprehension and aggressive behaviour”.

57. After the meeting on 15 February 2010, Mr Jervis returned to his duties.

Meeting on 17 February 2010

58. On 17 February 2010 Mr Jervis was involved in an episode of alleged poor performance. Sister Jenkinson spoke to Mr Jervis about his handling of a specific procedure and had asked him to re-do it at which point Sister Jenkinson noted that Mr Jervis “panicked”. She sent Mr Jervis to the tea room and contacted Mr Gallagher before going to see Mr Jervis herself.

59. Sister Jenkinson’s note indicated that she found Mr Jervis flustered and unable to complete his sentences. Mr Jervis stated that he had a lot of problems and was aware that he was “in trouble” in work and stated variously; his wife’s surgery had been delayed, they would have to borrow money to bring the surgery forward privately, his dog was terminally ill, he was anxious about his MRI results and was awaiting results on 1 March.

60. Mr Jervis stated that he had not told his wife there was anything possibly wrong with his own health, and he was afraid of what he was going to do next on the ward. It was noted that Mr Jervis stated that he had never had a temper before and now found himself shouting and gave the example of his having shouted at Sister Jenkinson and Sister McKenna at the meeting on the 15^th. Sister Jenkinson noted that Mr Jervis’ hands were trembling and that he was very flushed and was perspiring throughout.

61. Sister Jenkinson explained to Mr Jervis that Mr Gallagher was going to speak to him that day and the note added that Mr Jervis “agreed that he had made serious errors”. The note went on to say that Sister Jenkinson had advised Mr Jervis that he may be suspended for a period of time - to protect himself, the patients and the ward staff.

62. Sister Jenkinson’s note added that the plan was to help Mr Jervis to reflect on his performance and to address any training and monitoring he required as an aid to help him and that the help she felt he needed was being given genuinely.

63. Sister Jenkinson’s note went on to add that Mr Jervis was concerned that Sister McKenna and Sister Jenkinson “thought the worst of him” but Sister Jenkinson explained that she and Sister McKenna were both genuinely worried for his health in general and in particular his mental health, because, as the note stated, Mr Jervis was clearly under great strain and in severe danger of damaging his career permanently.

64. At this point, Mr Jervis raised the issue of his going back to night duty and Sister Jenkinson’s note indicated that she explained to Mr Jervis that although he had been brought off nights due to unacceptable sick absence he had since clearly demonstrated poor practice. Sister Jenkinson’s note added that “while the situation has imploded for him (Mr Jervis) last Thursday (29 January 2010), she and Sister Kate McKenna had noted the issues that gave them concerns about his performance had been raised with him prior to 29 January 2010.

65. Sister Jenkinson advised Mr Jervis that he was being sent home and Mr Jervis expressed concern that this would reflect poorly on his sick record. Sister Jenkinson expressed her concern at the fact that he (Mr Jervis) “doesn’t seem to get” the fact that his professional behaviour was of such concern that he could end up losing his (nursing) registration.

66. Sister Jenkinson went to get Mr Gallagher. On her way, she met Sister Jennifer Knox. Sister Jenkinson advised Sister Knox that Mr Jervis was extremely concerned about his own health and Sister Knox acknowledged that she was aware Mr Jervis had been to see the consultant and was to have had his MRI result presented to him shortly. Sister Knox subsequently spoke to Mr Jervis on 18 February and advised him that there was nothing seriously wrong with his leg, that he had a herniated muscle.

67. Sister Jenkinson briefed Mr Gallagher on the events that had occurred that day and of her conversation with Mr Jervis. Mr Gallagher spoke to Mr Jervis and advised him that he was being given special leave to cover 17 February 2010 and the weekend, that Mr Gallagher would telephone him on Monday and that Mr Jervis was not to return to work until directed.

68. Mr Gallagher offered Mr Jervis a taxi to take him home but Mr Jervis refused. It transpired that Mr Jervis walked from Musgrave to his home in Lisburn although Mr Jervis had no clear record of having done so.

Events subsequent to 17 February 2010

69. After this meeting on 17 February 2010, Mr Gallagher wrote to Lorna Bingham, Associate Director of Nursing, outlining the events that had occurred on that date and the immediate lead up to them. This was that Sisters McKenna and Sister Jenkinson had alerted him on Monday, 15 February, to a number of incidents regarding Mr Jervis. Mr Gallagher had also been made aware of the details of the meeting Sisters McKenna and Jenkinson had had with Mr Jervis on 15 February 2010 and subsequent incidents which had occurred involving Mr Jervis on 15 and 16 February 2010 and reminded Ms Bingham of these.

70. In this correspondence to Ms Bingham, Mr Gallagher reminded Ms Bingham that he had previously suggested that Mr Jervis be placed on precautionary suspension but that Ms Bingham had advised against it at that earlier stage. Mr Gallagher went on to advise Ms Bingham that, on being advised by Sister Jenkinson that Mr Jervis was incapable of undertaking tasks in hand, he had met Mr Jervis and had sent him home on sick leave.

71. In his correspondence to Ms Bingham, Mr Gallagher stated that “it was clear to me that Staff Nurse Jervis was having difficulty with his concentration and seemed to be preoccupied by a number of personal matters”. Mr Gallagher’s correspondence to Ms Bingham also noted that he had advised Mr Jervis that he would arrange an Occupational Health appointment for him as soon as possible, that Mr Gallagher had offered Mr Jervis a taxi home which had been declined and that Mr Gallagher had advised Mr Jervis to contact his GP immediately.

72. Mr Gallagher’s note to Ms Bingham indicated that he would contact Mr Jervis again before the weekend but that as far as he and Sisters McKenna and Jenkinson were concerned at the moment Mr Jervis was on sick leave.

Referral to Occupational Health

73. On 17 February 2010, Sister Kate McKenna completed an Occupational Heath referral in respect to Mr Jervis. This was a 14 page document that contained the
pro-forma Occupational Health referral documents together with Mr Jervis’ staff sick leave record, consent form and a six page document detailing Staff Nurse McKenna’s reasons for the referral to Occupational Health. The Occupational Health referral was sent to Dr Tohill of the Occupational Health Service.

74. In her statement in this referral form, Sister McKenna referred to the incidents in which Mr Jervis had been involved in the days prior to 17 February 2010. As ultimately these were converted into disciplinary charges, it is convenient to include them at this stage even though they did not appear in Sister McKenna’s document as formal charges:-

Allegation One

That on 16 February 2010 at 8.00 am, Staff Nurse Jervis inappropriately administered 375 mg of Madapar to Patient RA when the prescribed dose was 250 mg.

Allegation Two

That on 15 February 2010, Staff Nurse Jervis omitted to administer Madapar on two occasions to Patient RA, namely at 10.30 am and 15.30 pm.

Allegation Three

That on 11 February 2010, Staff Nurse Jervis inappropriately administered 2 gr IV antibiotic to Patient JG at 16.00 hours instead of the prescribed time of 18.00 hours and that he also failed to ensure that a second nurse checked this as per NMC Policy. In addition, that he also failed to sign for same.

Allegation Four

That on 11 February 2010, Staff Nurse Jervis inappropriately fasted Patient CS for an ultrasound scan when the patient was not having a scan but a cardiac echo. Staff Nurse Jervis also omitted to administer her IV drug at 10.00 am.

Allegation Five

That on 11 February 2010, Staff Nurse Jervis fraudulently recorded that he had completed clinical observations on Patient MV at 14.00 hours when in actual fact neither he nor the patient was present on the ward at that time.

Allegation Six

That on 11 February 2010, Staff Nurse Jervis failed to administer two prescribed bags of IV fluids to Patient DL.

Allegation Seven

That on 11 February, Staff Nurse Jervis failed to remove a completed IV antibiotic from Patient DL.

“Allegation Eight”

75. When the above allegations were formulated into charges at a disciplinary stage, an eighth allegation was formulated, which was that Staff Nurse Jervis’ actions, if proven, had the potential to bring the Trust into disrepute and were contrary to the Trust’s standards of nursing care and also protocols in procedures regarding the administration of medicines.

76. Sister McKenna’s referral document to Occupational Health noted that Mr Jervis was a popular member of staff who sometimes found it hard to concentrate because he entertained staff. She also cited an example where on the 11 February, the day when Mr Jervis committed several of the alleged offences he had found the time to go to the shop and buy a Valentine’s card and chocolates for a female doctor on the ward.

77. While Sisters McKenna and Jenkinson’s rolling memo described their anxieties about Mr Jervis’ mental health or affected behaviour during their meetings with him there was no evidence in the memo, the referral document or at hearing about this while he was on the ward or otherwise.

78. Sister McKenna’s referral went on to invite Dr Tohill to see Mr Jervis as a matter of some urgency and asked Dr Tohill to consider the following questions;

“Does he (Mr Jervis) have an underlying health problem

Are personal stressors causing him stress

Is there a counselling or support service he can avail of

Is there a cognitive assessment he can have to explain his behaviour

When could he be interviewed in relation to his performance

Is he finding the ward challenging.”

79. Sister McKenna’s referral ended with advising Dr Tohill that Mr Jervis would be provided with a comprehensive programme of training and support on his return to work.

Attendances at Occupational Health

March 2010

80. Mr Jervis attended Dr Tohill for the first time on 19 March 2010. Dr Tohill assessed Mr Jervis, and took some personal history notes. These noted a number of significant crises in Mr Jervis’ personal life that spanned a number of years up to the present time.

81. Dr Tohill’s notes also recorded Mr Jervis’ complaints of feeling that everything had come on top of him, that he was losing control of everything, that he was not sleeping and had had difficulty adjusting his living pattern on coming off nights and was using Red Bull and Pro Plus to help him cope. Mr Jervis advised Dr Tohill that his concentration and memory were off.

82. Mr Jervis also described how he sat at home with the blinds pulled and although he walked his dog he had no motivation to do anything.

83. Dr Tohill’s notes recorded his conclusions as:-

“Clearly unfit. Acute onset--capability issues. Memory issues are ongoing. Access CBT via GP—quick appt there. He went on to query “???assessment by Graeme? (a psychiatrist).”

84. Dr Tohill wrote to Sister McKenna on 23 March and stated that Mr Jervis “had had an acute behavioural and capability issues related to the onset of a new medical condition”. His letter also advised that Mr Jervis was unfit to work “even with an adjustment” and advised that he would see Mr Jervis the following month for further assessment when he hoped he would be in a position to answer the queries Sister McKenna had posed to him in the referral document.

April 2010

85. Dr Tohill reviewed Mr Jervis on 16 April 2010. He subsequently wrote to Sister McKenna on 19 April and advised that there had been a very slight improvement in Mr Jervis’ health and that he was satisfied that the appropriate support services were in place to give him the greatest opportunity for health improvement.

86. Dr Tohill went on to answer some of Sister McKenna’s original queries and confirmed that Mr Jervis did have an underlying health problem, that it might be better to delay interviewing Mr Jervis in relation to his performance until further health improvement and at least until after his next assessment in May 2010.

87. Dr Tohill reported that he had spoken to Mr Jervis about the challenges in his work and that Mr Jervis had stated that he hoped to return to the same ward area when his health allowed him to do so. Dr Tohill undertook to ask Mr Jervis about night duty at the next assessment.

88. Dr Tohill recorded his approval of the comprehensive programme of training and support and rehabilitation planned for Mr Jervis when he was fit to return to work, in what Dr Tohill hoped would be about two weeks after the next assessment in May.

May 2010

89. Dr Tohill assessed Mr Jervis on 13 May 2010 and wrote to Sister McKenna the following day. He advised Sister McKenna that Mr Jervis had made some health recovery but had still not reached 100% psychological integrity. Dr Tohill stated that after discussion with Mr Jervis they had agreed that Mr Jervis’ health had sufficiently recovered for a meeting to be arranged in relation to his performance. Dr Tohill went on to suggest that a meeting be arranged with Mr Jervis to discuss his rehabilitation back to work.

90. Dr Tohill went on to recommend that Mr Jervis return to work within the next couple of weeks on day duty, initially working 50% of his hours, with a comprehensive programme of training, support and supervision over a period of times, to increase his working hours over a period of four weeks and to refer him back to Dr Tohill for further assessment six weeks after his return to work.

91. Dr Tohill asked Sister McKenna to confirm when this next assessment would be and to provide him with an update of Mr Jervis’ rehabilitation in relation to his ability to undertake the normal duties of his post under supervision so that a decision can be made as to whether he (Mr Jervis) continues on day duty under supervision or moves to nights again.

Attendance at Community Psychiatric Nurse

92. Mr Jervis attended Ms Alma Stephens, CPN on 17 May 2010 and she reported her findings to Dr Trimble in a letter dated 1 June 2010. These included her account of the history of his illness given to her by Mr Jervis who described deterioration in his mood in November 2009 when a number of adverse events occurred in his personal and family life. Mr Jervis described his having worked through this period and of his having moved from night to day duty and of his attending work on 18 March 2010, which ought to have read the 17 February 2010; no issue was taken on this. Mr Jervis told Ms Stephens that he had had to go home as “he felt unable to safely carry out his duties”.

The Investigation Meeting

93. On 2 June Sister McKenna wrote to Mr Jervis and advised him that in line with his agreement with Dr Tohill that he was fit to do so, she was inviting him to a meeting on 14 June 2010 to discuss a number of unresolved matters she had become aware of prior to his sick absence.

94. Sister McKenna set out the issues of concern and advised Mr Jervis that this meeting constituted an investigation meeting which could potentially result in some or all of the issues being referred for disciplinary and that accordingly and in line with Trust policy he could be represented at this meeting by his trade union representative or a work colleague.

95. The meeting was convened by Sister McKenna and Mr Philip Ramsey, deputising for the Clinical Services Manager. Mr Jervis attended the meeting but was unaccompanied. At the outset Mr Jervis was asked if he was going to be accompanied by his trade union representative to which Mr Jervis replied, “why would I need one?” and that he could “speak for himself”. The meeting continued.

96. Mr Jervis was asked for a response to the allegations of poor performance that had been set out in the letter. Mr Jervis replied that he could not recall anything at all about any of the points and instead stated variously, that he was being attended by a community psychiatric team due to being diagnosed as a manic depressive, was suffering from low self-esteem, was at a very low ebb and that his condition had been exacerbated by the move from night to day duty as coming off night duty had affected his circadian rhythm.

97. Mr Jervis added that he felt like a prisoner and added, “I am in the shit I’m in because of this coming on to day duty”. Mr Jervis stated that the concerns being put to him were foreign to him and that he could never see himself doing any of those things. He stated that when these concerns had been put to him before by Sister Jenkinson they had ruined his birthday.

98. When pressed for a response to the performance concerns raised Mr Jervis stated that he could not remember anything about them, that he really could not remember and that he did not know what they wanted him to say.

99. That afternoon Sister McKenna e-mailed Dr Tohill and asked him for his “slant”/views on the meeting. Sister McKenna told Dr Tohill that at the meeting Mr Jervis had claimed that he was manic depressive, was having cognitive behaviour therapy and was keeping a daily diary of happenings. She told Dr Tohill that Mr Jervis had stated that he was unable to recall any of the incidents.

100. Sister McKenna also told Dr Tohill that Mr Jervis had seemed quite agitated and that she had found his behaviour unchanged since she had last seen him in February 2010. She told Dr Tohill that she was taking advice from “employment law” as to how to proceed as it appeared that Mr Jervis was unfit to return to work or to practice. She illustrated Mr Jervis’ agitated behaviour by stating that at the start of the meeting he had felt he did not need his union representative but had ended up wanting to bring his solicitor.

101. During that afternoon Sister McKenna spoke to Dr Tohill who followed up their conversation with an e mail stating that it was his view that an independent psychiatric assessment would be the best way forward and that he would see Mr Jervis as soon as possible.

Attendance at Occupational Health

July 2010

102. During this assessment with Dr Tohill Mr Jervis stated that he could not remember the litany or list of concerns that had been presented to him at the meeting on 14 June and that he had no memory of any of the incidents of poor performance put to him. He also stated that he thought that Sister McKenna had thought he had been suffering from a one-off illness, that it seemed to him that she had not recognised all the issues.

103. At this assessment Mr Jervis also stated that he had read about manic depression/bi-polar disease and thought perhaps this had been his own take on his illness. He stated that he would be happy to attend an independent psychiatrist.

104. By letter dated 2 July 2010 Dr Tohill referred Mr Jervis to Dr Marie O’Kane, Consultant Psychiatrist. His referral letter gave her some background from Mr Jervis’ initial referral to him (“significant capability issues in relation to his nursing practice”) and about this referral to her (the unsuccessful meeting between Mr Jervis and management he had suggested to deal with “…his capability issues and the facilitation of his rehabilitation to work”).

105. Dr Tohill asked Dr O’Kane to undertake an independent assessment in relation to Mr Jervis’ mental health diagnosis as to whether he was suffering from a
reactive-type depression or a bipolar effective disorder, the stability of his mental state and on his fitness to practice.

106. Dr O’Kane reported to Dr Tohill by letter dated 21 July 2010. She stated at the outset that her assessment of Mr Jervis was to consider his suitability to consider discussions about a planned return to work.

107. Dr O’Kane confirmed Dr Tohill’s own previous diagnosis by saying “As you are aware he (Mr Jervis) became increasingly unwell until he went off work around 17 March 2010”. (It was agreed by the parties that this date should have read 17 February 2010). Having taken Mr Jervis’ personal history Dr O’Kane added that “Together with his concerns about his wife in the context of having three bereavements in the previous few years he (Mr Jervis) felt overwhelmed, became extremely anxious and eventually had to take sick leave. The escalation of his anxiety appears to have led him to become depressed”.

108. Dr O’Kane’s report stated that on examination of his mental state and in contrast to his previous sleeplessness and anxiety Mr Jervis had developed a routine in anticipation of returning to work, as advised by Dr Tohill. She reported that Mr Jervis was eating and sleeping well, that he appeared to be very proactive in dealing with his difficulties and that his mood had much improved compared with before.

109. Dr O’Kane stated that she thought Mr Jervis was “well enough to start to think with management about returning to work”. She added “I believe that in the few days before (he) went off sick that his anxiety levels impacted on his capacity to remember and concentrate and thus when he has been questioned about this the memories of this are not clear to him”. She added, “There is no evidence of cognitive deficit at present and his memory is extremely good”.

110. Subsequent to this Mr Jervis attended Dr Tohill on 26 July 2010 and Dr Tohill reported his findings from that assessment to Sister McKenna in a letter that same day. Dr Tohill stated that on the basis of Dr O’Kane’s report he was satisfied that Mr Jervis was fit to meet management and plan his rehabilitation back to work under the same conditions he had previously recommended.

111. Dr Tohill also stated that Dr O’Kane’s report indicated that “his (Mr Jervis’) medical condition may have impacted on his capacity to remember and concentrate prior to his going off work”. Dr Tohill added that Dr O’Kane’s report had advised that she had perceived no cognitive deficit and had noted at assessment that Mr Jervis had had a good memory.

112. Dr Tohill’s letter went on to advise Sister McKenna that he had requested to see Mr Jervis six weeks after his return to work for further review.

The Disciplinary Process

Decision to proceed to disciplinary proceedings

113. On receipt of this report Sister McKenna exchanged a number of telephone calls and had a number of informal meetings with Mrs Samantha Whann and Paul Ramsey in relation to Mr Jervis. Sister McKenna met Mrs Whann and appraised her of the situation about Mr Jervis including the contents of the reports from Occupational Health. Mrs Whann decided to proceed with the disciplinary process and wrote to Mr Jervis on 6 August 2010 inviting him to attend a disciplinary hearing.

114. Mrs Whann decided to do so on the basis of the volume of and the serious nature of the allegations against Mr Jervis and in light of the allegation of the fraudulently completion of patient’s observations, allegation five. Mrs Whann stated that she believed the allegations amounted to a series of deliberate mistakes, not any lack of skill or knowledge, which if proven were potentially of severe adverse risk to patients.

115. Mrs Whann stated that she had taken Dr Tohill’s most recent account into consideration and although she had noted the words “…his medical condition may have impacted on his capacity to remember and concentrate prior to his going off work” she had noted the word “may” and stated that this had not raised with her the possibility that Mr Jervis might not have been fully in control of his actions by reason of his mental health or of his having a disability. Mrs Whann also stated that she considered the medical reports from Occupational Health and had concluded from these that Mr Jervis was fit to meet with management and on that basis she decided to proceed with the disciplinary process.

116. Mrs Whann stated that although she had been aware of but not involved in an occasion in 1998 when Mr Jervis’ work performance had been affected by his mental health she had not regarded the possibility of any connection between that episode and the current situation. Mrs Whann stated that she considered the two episodes as co-incidental and that Mr Jervis had intentionally and deliberately harmed patients and that his mental health had had nothing to do with this. The Tribunal was asked to note that this element of Mrs Whann’s evidence did not form the basis of the meeting.

117. Mrs Whann refuted the suggestion that she had failed to identify the need to seek further medical advices at this stage on whether Mr Jervis had a disability and on whether the disciplinary process ought to have addressed Mr Jervis’ capability rather than his conduct.

The Disciplinary Hearing

118. Mr Jervis attended a disciplinary hearing on 23 August 2010. The disciplinary panel was Ms Joyce Shaw, Specialist Medicines Co-ordinator and Mrs Gillian Traub, Cancer Treatment Services Manager. Mr Jervis was not accompanied nor represented. Sister McKenna was the presenting officer and submitted a 13 page document as her presentation. This document was largely the contents of the rolling memo detailing events up to Mr Jervis’ departure on sick leave and contained details of the allegations of which Mr Jervis was accused.

119. The written presentation concluded with a summary that stated that from the outset of his coming onto day duty Mr Jervis’ practice was of concern as he was disorganised, found working in areas to which he had not been allocated, panicked when he was asked for updates and yet confirmed that day duty suited him better, that it suited him to be home in the evenings to care for his sick wife and that staff were all very good and supported him well. Sister McKenna added that “…he showed no indication that he was anxious/depressed nor did he come to myself or the Deputy expressing any problems”.

120. Sister McKenna concluded her submission by adding that the allegations against Mr Jervis “reflect S/N Jervis’ total lack of regard for the recovery health or wellbeing of patients in his care. Thankfully no lasting harm came to any patients in his care. I have genuine concerns the S/N Jervis’ practice is not safe and has the potential to bring the Trust into disrepute”.

121. This panel had a copy of Dr O’Kane’s report and were referred to the occupational health medicals from Dr Tohill.

122. At the disciplinary hearing Mr Jervis stated that he could not argue with the allegations but that he realised how far gone he had been just before he had gone off on sick leave and that he thought that he had been ill. Mr Jervis also stated that he had not sought deliberately to harm anyone but that that time had been very traumatic for him and that he had needed someone to tell him to go home. He added that he felt that he was now in the position to be able to tell what was right and what was wrong and that he wanted to return to work.

123. The panel reached their decision and this was conveyed to Mr Jervis by means of a letter dated 31 August 2010 written by Ms Marie Mallon, Head of Human Resources.

124. The letter stated that the panel upheld all the allegations. The letter stated that the panel had noted that he had “cited mitigating circumstances of family illness”, that he “failed to remember any of the circumstances around the seven (original) allegations”.

125. The letter went on to state that the panel had also noted that “a previous independent psychiatric assessment (Dr O’Kane’s) indicates that your medical condition may have impacted on your capacity to remember and concentrate prior to your going off sick post these incidents”. The letter stated that in this regard Mr Jervis had accordingly failed in his duty as a registered nurse to report any problems of incapacity to management and in doing so this lack of insight into the consequences of his actions had the potential for harm to patients.

126. The letter also indicated that in reaching its conclusion the panel had taken into account that Mr Jervis had been made aware of concerns about his work performance as early as January 2010 and that he had failed to report his mental incapacities to anyone at this stage either.

127. The letter advised Mr Jervis that he had been dismissed with effect from 1 September 2010 and that the Trust would be referring his case to the Nursing and Midwifery Council.

128. At this hearing Mrs Joyce Shaw, the chair of the disciplinary panel, confirmed that the panel had received Sister McKenna’s presentation and that they had also received and considered reports from Dr Tohill and Dr O’Kane. She refuted the suggestion that in spite of her own nursing background and experience she had failed to appreciate the significance of Dr O’Kane’s comment that (MrJervis’) “medical condition may have impacted on (his) capacity to remember and concentrate prior to (his) going off sick post these incidents”.

129. Mrs Shaw also stated that she had not thought that Mr Jervis had had a disability and that while she had taken all the medical evidence into account that she had balanced it with her view of the seriousness of the allegations and in particular in relation to the alleged fraud, and the fact that some of the allegations amounted to deliberate acts.

130. Mrs Shaw also stated that she had been taken aback at the disciplinary hearing and had noted that Mr Jervis demonstrated a complete disregard for the patients, their safety or the harm he had caused them.

131. Mrs Shaw accepted that she had noted that Dr Tohill’s recommendation that Mr Jervis be rehabilitated back into nursing appeared not to share her concern that Mr Jervis would be unsafe as a nurse. However Mrs Shaw stated she had found Mr Jervis to be dishonest, having had committed such a fraud and his blaming patients’ or a patient’s family for one of the mistakes, that she had lost her faith in him, that he was culpable and that patients would be unsafe with him. She stated that she found Mr Jervis to have shown no remorse, no concern for patient safety and that she felt she could not trust him.

132. Mrs Shaw also stated that although she had discussed other sanctions short of dismissing Mr Jervis she had not regarded any of them as possible in light of the fact that she had lost faith in Mr Jervis. The Tribunal noted that Mrs Shaw was saying that it was not just in relation to her faith in Mr Jervis as a nurse but as a person whom she had found to have been dishonest.

The Appeal

133. Mr Jervis appealed this decision. He stated in his letter of appeal that he now realised that he ought to have been represented at the disciplinary hearing as he had not believed that the outcome would have been so severe.

134. The appeal was heard on 4 October 2010 by Aiden Dawson, Co-Director Trauma and Orthopaedics and Patricia Shepperd, Co-Director Specialist Services. Mr Jervis was represented by his Trade Union representative Mr Tom Hughes.

135. The appeal panel stated at the outset that they were an independent appeal who would re-hear the case. Sister McKenna was the presenting officer and submitted her previous presentation to the panel.

136. At the appeal hearing and for the first time throughout all the proceedings and prior meetings Mr Jervis challenged one of the allegations against him. He stated that the initials against the record of clinical observations allegedly made when neither he nor the patient concerned were on the ward were not his.

137. Mr Jervis also challenged the presentation on the basis that he was concerned to correct the fact that the card he had bought for the female doctor had not been a Valentine’s Day card but rather a Get Well card. He stated that he had bought it because the doctor had just been diagnosed with cancer and that her mother was also unwell.

138. During the appeal hearing Mr Jervis stated that he had been overwhelmed by the move from night to day duty that he had rushed things at work, that he had been suffering from low self-esteem, that he could not take the criticism and did not feel like he could approach anyone for help because he had been in a dark place. He also stated that cared about his patients and had always given of his best.

139. In his representation to the appeal panel Mr Jervis’ representative Mr Hughes stressed that Mr Jervis was not disputing the allegations, except allegation five, and asked the panel to consider Mr Jervis’ thirty two year clear service record, his lack of memory about the incidents and to take on board his mental health issues and family difficulties. Mr Hughes also submitted the correspondence from Occupational Health and the report from Dr O’Kane.

140. The appeal panel rejected Mr Jervis’ appeal. The appeal panel found each of the allegations proven. In relation to allegation five the appeal panel considered the patient records and concluded on a balance of probabilities that the initials in dispute were Mr Jervis’ but stated that their conclusion on this had not been the only ground for their finding against him.

141. The document in question was presented to the Tribunal. The Tribunal considered it but not to decide what we concluded about the initials but to decide if the appeal panel had been reasonable in reaching its conclusions in relation to them. The Tribunal noted that one set of initials were written as LJ and the other as EJ but that the writing appeared to be similar enough to allow the appeal panel to reach the conclusion that they had probably been written by the same person, Mr Jervis.

142. In reaching its decision the appeal panel took into account the fact that Mr Jervis did not bring his mental health concerns to management attention and that he had only raised the issue of his mental health after his suspension. The appeal panel also concluded that the medical evidence submitted was insufficient to indicate Mr Jervis’ mental health at the time of the alleged incidents.

143. At this hearing Mr Dawson stated that in addition to the findings he made as a member of the appeal panel he had rejected Mr Jervis’ appeal on the basis that he had not found Mr Jervis to be credible.

144. Mr Dawson stated that he had regarded the medical evidence as evidence in relation to Mr Jervis’ memory loss and not in relation to Mr Jervis’ ability to do his job. He re-stated his finding that in this regard he had not considered the medical evidence sufficient to confirm that Mr Jervis’ has sustained any medical condition that accounted for this memory loss and he went on to state that he had not found Mr Jervis’ account of this memory loss to be genuine.

145. Mr Dawson rejected the suggestion that Mr Jervis had sustained such memory loss he described as a result of poor concentration and stated that the appeal panel had concluded that Mr Jervis had sufficient concentration to do his job as evidenced by his having falsified the patient record (allegation five). He also added that he did not accept that Mr Jervis had lost concentration to do his job.

146. Mr Dawson also rejected the suggestion that he or the appeal panel had failed to take proper account of Mr Jervis’ disability. He stated that this issue had not been raised before the appeal panel and that it had not occurred to them that Mr Jervis had a disability. He refuted that suggestion that on a date between 26 July and 11 October 2010 he or the Trust ought to have commissioned a medical report to address Mr Jervis’ medical condition and his capability to do his job.

147. In this regard Mr Dawson stated that he believed that if Mr Jervis had had a disability Dr Tohill would have made the Trust aware of this in his reports. He stated that he had understood Dr Tohill’s report had made it clear that Mr Jervis was fit to return to work but that Mr Dawson had not drawn from this the conclusion that Dr Tohill was stating that Mr Jervis was fit to be a nurse. Mr Dawson rejected the suggestion that the references to “adjustments” in Dr Tohill were indicative of Mr Jervis’ having a disability as this was a term habitually used by the Trust when rehabilitating staff returning to work where no disability was at issue.

Medical Evidence

148. The Tribunal heard evidence from Dr Brian Fleming, MB MPhil FRCPsych, Consultant Psychiatrist commissioned by Mr Jervis and from Dr Helen Harbinson, MD FRCPych., M.Med.Sci, Consultant Psychiatrist commissioned by the Trust.

149. Dr Fleming examined Mr Jervis in June 2011, Dr Harbinson in August 2011. Dr Fleming took lengthy personal history details from Mr Jervis and his report recounted these as told to him. Dr Harbinson also took lengthy personal details from Mr Jervis. However she noted that there were significant variances between the two accounts in relation to the dates and content of this history.

150. Dr Fleming’s opinion was that the range and nature of the symptoms which Mr Jervis described and which were confirmed within his records were consistent with a “significant stress-related condition”. Dr Fleming stated that this condition was either “a severe adjustment disorder of the mixed anxiety depressed type” or “a reactive depressive episode with associated anxiety symptoms”. He added that “these amount to much the same thing in this case and there was a beginning, a middle and an end to his condition”. Dr Flemming stated that Mr Jervis had a vulnerability to the development of neurotic symptoms of anxiety and depression at times of significant stress in his life.

151. Dr Flemming indicated that there had been “a significant deterioration in his (Mr Jervis’) mental health between November 2009 and the middle of February 2010, by which time he seems to have been functioning very poorly at work and was giving considerable cause for concern to his superiors”.

152. Dr Fleming had been asked to consider the issue of disability and specifically whether Mr Jervis had had a disability at the time of his dismissal. Dr Fleming considered this question with regard to the statutory definition of disability and he considered that it would be reasonable to conclude that Mr Jervis had sustained a mental impairment by virtue of the symptoms of depression, sleep disturbance contributing to a marked degree of lethargy. He stated that a preoccupation with stressors and lethargy would almost certainly, ie, with a high degree of probability, have interfered with Mr Jervis’ concentration and with his ability to carry out simple day-to-day activities.

153. Dr Flemming also considered it reasonable to conclude that this mental impairment would have had a substantial adverse effect on his ability to carry out normal
day-to-day activities and that this was more than trivial, bearing in mind that extreme lethargy was forcing him to take to bed when coming home from work and impaired concentration was sufficient to affect simple activities such as reading, which had been a normal pastime for him.

154. Dr Fleming went on to note that the depressive condition from which Mr Jervis suffered, an adjustment disorder, lasted sometime from the latter weeks of 2009 until the summer months of 2010 but took account of the fact that Mr Jervis’ impairment was subject to medical treatment. Dr Fleming concluded that if the
anti-depressants had been discontinued in the latter half of 2010, his mental condition would not have relapsed until his dismissal precipitated a depressive adjustment reaction in September 2010.

155. However although Dr Fleming concluded that he did not feel that Mr Jervis would fulfil the statutory criterion for his impairment having long-term adverse effects he noted that it could recur, “i.e.could well happen again but this will largely (be) determined by the nature and degree of any stresses that he might encounter in the future.

156. Dr Harbinson noted that Mr Jervis appeared to have experienced a remarkable number of adverse life events during his life but added that it was “difficult to have complete confidence in Mr Jervis’ account of events given the discrepancies in the chronology and details”. She noted that Mr Jervis had consulted his General Practitioner in January 2010 about a lump on his leg (the possible scarcoma,) and noted that Mr Jervis had not made any mention of his being under stress at that stage. She also noted that he first mentioned being under of stress to his General Practitioner on 17 February 2010, after his departure from work after the concerns expressed by management about his performance at work had been raised.

157. Dr Harbinson noted that Mr Jervis’ “complete amnesia for the incidents at work is unusual in (her) experience and not readily explained by his mental state. She added that “the symptoms of which he complained could be consistent with an adjustment disorder. The lack of objective information about his personality, his competency at work and his mental state prior to 17 February 2010 makes accurate authoritative assessment difficult”.

158. In relation to the potential duration of any such mental state Dr Harbinson noted the maximum duration of an adjustment disorder is by definition six months after the stressor which precipitated it. She noted that Mr Jervis had given the onset of his stress as November 2009, although he only first mentioned it to his General Practitioner in February 2010, and that Dr Tohill had found him well on the way to recovery in May 2010 and that Dr O’Kane found him completely well in July 2010.

159. Dr Harbinson stated that she did not accept that the discontinuation of his medication would have led to a relapse and concluded that she did not consider that Mr Jervis suffered from a mental impairment which had a long-term adverse effect on his ability to carry out normal day-to-day activities as defined by the Disability Discrimination Act 1995.

160. In her evidence Dr Harbinson was not persuaded that Sister McKenna’s account of Mr Jervis’ behaviour at the meeting on 15 February 2010 amounted to “objective independent evidence of Mr Jervis’ condition prior to events in February”. However she agreed that Mr Jervis had a vulnerability to develop an adjustment disorder again if faced with a cocktail of family and work pressures.

161. The Tribunal concluded that there was agreement between the consultants that, at February 2010, Mr Jervis had been suffering from an adjustment disorder. Both consultants agreed that adjustment disorders had a beginning, a middle and an end. However they disagreed over a number of significant points.

162. The consultants disagreed as to the inception of this disorder. Dr Fleming clearly rooted it and ascribed its inception to events as early as November 2009. These were family pressures at this stage as Mr Jervis had not yet moved to day duty. Dr Fleming stated that this disorder fully developed during events in February 2010.

163. Dr Harbinson was reluctant to conclude that the disorder began before February 2010. She was sceptical of Mr Jervis’ inaccurate account of his prior personal difficulties and thought the account unreliable on which to base such a conclusion. She also took into account the fact that Mr Jervis had not reported his feelings of stress to his General Practitioner, even when he had attended the surgery in January 2010 on another matter. Her scepticism was added to when she noted that Mr Jervis had only reported his feelings of stress to his General Practitioner after the confrontation at work on 17 February 2010.

164. The consultants disagreed at to the severity of this disorder. They both agreed that any such disorder would have had an impact on Mr Jervis’ concentration and his ability to perform at work but Dr Harbinson disagreed that such a disorder, even at its height, (although there was considerable disagreement between them as to what would amount to the “height” of an adjustment disorder), would have had the effect of obliterating so completely from Mr Jervis’ memory the events of the last three days at work.

165. The consultants also disagreed that Mr Jervis’ condition would have recurred if Mr Jervis had ceased to take his medication during June and July 2010.

166. The consultants agreed that Mr Jervis had not suffered from a mental impairment that had had substantial long term adverse effects. They also agreed at least on the nature of the mental impairment, which was an adjustment disorder, and agreed too that such conditions had a beginning, a middle and an end. However although both agreed that such a mental impairment could happen again (ie, was “likely to recur”), Dr Fleming suggested that this might occur if Mr Jervis was faced with similar stressful circumstances and Dr Harbinson described this as possible due to Mr Jervis’ vulnerability to such mental impairment.

167. The Tribunal took into account the evidence of the nature of Mr Jervis’ actual mental condition, an adjustment disorder, and the fact that neither consultant stated that he suffered from an underlying medical condition, beyond a vulnerability or that another adjustment disorder might recur if certain circumstances prevailed, and concluded that neither consultant had indicated that Mr Jervis had suffered a disability within the terms of the legislation.

THE LAW

Unfair Dismissal

168. The Employment Rights (Northern Ireland) Order 1996 provides at Article 126, Paragraph (1):-

“An employee has the right not to be unfairly dismissed by his employer.”

The Order goes on to state at Article 127, Paragraph (1):-

“For the purposes of this Part an employee is dismissed by his employer if (and, subject to paragraph (2) and Article 128 and only if)–

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

Article 130 of the Order goes on to state that:-

“(1) In determining ... 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.”

Disability Discrimination

169. The Disability Discrimination Act 1995 and as amended by the Disability Discrimination Amendment Regulations NI 2004 states that a person is deemed to be a person with a disability if he/she has the following:-

a. Physical or mental impairment.

b. Which adversely affects a statutorily prescribed day-to-day activity to a substantial extent.

c. Which either has a long-term affect of 12 months or longer or is otherwise deemed a disability pursuant to Schedule One of the Act. However Schedule One, paragraph 2(2) provides that “where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal
day-to-day activities, it is to be treated as continuing to have that effect if that effect is likely to recur”.

Case Law

170. The Tribunal was referred to and took into account the relevant case law. This included;

SCA Packaging Ltd v Boyle [2009] IRLR 746

Dobbin v Citybus Ltd 2008 NICA 42

Scott v South Thames Corporation EAT 157/96

Richmond Adult Community College v McDougall 2008 ICR 431 CA

Maurice McLaughlin v Northern Ireland Association for Mental Health

British Home Stores v Burchell 1978 IRLR 379

Sutton and Gates (Luton) Ltd v Boxall 1978 IRLR 486

171. The Tribunal also read the texts to which it had been referred, namely Harvey, IDS Employment Law Handbook.

THE TRIBUNAL’S CONCLUSIONS

Unfair Dismissal

172. The statutory test for what reasons amount to a fair dismissal is set out in the Order at Article 130. These include capability or qualifications, conduct, redundancy and statutory-necessary dismissal.

173. Where an employer establishes that the reason for the dismissal falls into one of the potentially fair categories, the decision as to whether the decision to dismiss was fair must be decided (by a tribunal) with reference to (a) 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 the dismissal, and (b) this decision shall be determined in accordance with equity and the substantive merits of the case.

174. Case law has given guidance on the way in which a tribunal carries out this determination. A tribunal must examine whether the employer had a reasonable belief in the reason for the dismissal and that that belief must be as sustained by his having carried out a reasonable investigation and that the process and the ultimate sanction of dismissal is “within the band of reasonable responses”.

175. If a tribunal concludes that the employer had a reasonable belief in the guilt of the employee of the misconduct as charged as informed by the employer having conducted a reasonable investigation and that the employer’s response is within the band of reasonable responses, a tribunal must not interfere beyond this. It is not a tribunal’s role to substitute its own view for that of the employer.

176. In assessing these questions in light of the guidance in British Homes Stores V Burchell as adopted in Rogan v South Eastern Health and Social Care Trust, the Tribunal can only scrutinise the quality of the evidence the employer had at the time to assess if it is reasonable, or unreasonable, and the Tribunal cannot criticise an employer for not going further, either to conduct an investigation along a more stringent basis or to supplant the employer’s conclusion with its own.

177. In approaching its role to test the reasonableness, or unreasonableness, of the Trust’s investigation the Tribunal was mindful of the importance of examining the material or evidence available to the Trust at the relevant time which is, in the words of the Order, at the time of the dismissal.

178. In light of this wording the Tribunal considered that an employer’s, and in this case the Trust’s, “investigation”, which falls to be tested for reasonableness or unreasonableness, includes the whole of the disciplinary process up to the point of dismissal.

179. Mr Jervis’ representative submitted that Mr Jervis had been unfairly dismissed for one or more of the following reasons:-

1. That the Trust had failed to further investigate Mr Jervis’ mental capacity at the time of the alleged misconduct and fairly and unreasonably decided on a disciplinary process in face of the medical evidence.

2. The Trust castigated Mr Jervis for failing to raise his capacity issues not withstanding that his mental condition potentially impaired his ability to raise these.

3. The Trust failed either to rehabilitate Mr Jervis back to his nursing role or redeploy him to a non-clinical role, either temporarily or permanently, as was appropriate.

4. The Trust failed to consider a sanction short of dismissal including redeployment.

5. The Trust failed to take into account evidence in mitigation regarding the claimant’s mental state.

6. The respondent imposed a disproportionate sanction.

Capability/Conduct

180. The question for this Tribunal is whether the Trust was reasonable in its decision to treat Mr Jervis’ work performance as a misconduct issue and not a capability issue.

181. The Tribunal considered the case of Sutton and Gates (Luton) Ltd v Boxall 1978 IRLR 486 in this regard and noted the guidance therein, that a tribunal

“should clearly distinguish in their own minds whether the case in point is one of sheer incapability due to an inherent incapacity to function or is one of failure to exercise to the full such talent as is possessed. Cases where a person has not come up to a standard through his own carelessness, negligence or idleness are much more appropriately dealt with as cases of misconduct rather than capability”.

182. It is clear from Sister McKenna’s referral to Occupational Health that from the outset of his arrival on day duty and critically on 17 February 2010 the Trust queried Mr Jervis’ capabilities to do his job. Dr Tohill kept in touch with Sister McKenna throughout Mr Jervis’ sickness absence about Mr Jervis’ progress and his fitness to return to work. However, also throughout her contact with Dr Tohill, Sister McKenna sought advice as to when it would be appropriate for her to discuss with Mr Jervis his work performance issues and it was only when he advised her that Mr Jervis was well enough to meet that she invited Mr Jervis to an investigation meeting, in June 2010.

183. The Tribunal found that the tenor of Dr Tohill’s letters conveyed his belief that at some stage in the future Mr Jervis would be returning to work. It was also clear from the evidence that Dr Tohill had had discussions with Mr Jervis to this end, up to and including a series of adjustments that Dr Tohill was recommending to facilitate that return. However it was also clear to the Tribunal that Dr Tohill knew, and conveyed as much to Mr Jervis, that it was part of his brief that he was to advise Sister McKenna when Mr Jervis had recovered sufficiently to meet management to discuss his performance prior to his sickness absence.

184. However from the outset of the meeting in June 2010 Mr Jervis failed to appreciate that the Trust would be making enquiries of him about his work performance prior to his sickness absence. Mr Jervis certainly did not appreciate the potential the discussions had for any disciplinary proceedings, regarding capability or conduct, having rejected the need to be accompanied and stating that he could speak for himself.

185. Mr Jervis’ behaviour at this meeting also made it clear he did not believe there should be any enquiry into this. He was surprised at the questions and became upset and defensive and for the first time stated that he had no memory of the events leading up to his departure from work in February 2010.

186. As Mr Jervis’ behaviour deteriorated the investigation process was halted. The Trust sought medical evidence about Mr Jervis’ state of health and proceeded again only when Dr Tohill advised them (July 2010) that Mr Jervis was fit enough for them to do so.

187. Mr Jervis’ representative suggested that the Trust had acted unreasonably in taking the decision at this point to take disciplinary proceedings on the grounds of misconduct, rather than on the grounds of capability. However the Tribunal concluded that the Trust had evidence to suggest that, before any issue of his health came into the picture, Mr Jervis had not been doing his job properly, that he had refused to accept this or acknowledge the advice and direction of his superiors in this regard and that he had refused any and all training or support that may have been of assistance to him.

188. This conclusion is based on the fact that from his arrival onto the ward in December 2009 both Sister Jenkinson and Sister McKenna became aware of the fact that Mr Jervis was not performing his job the way that he should have been. They had occasions to speak to him in late December 2009 and in early January 2010 and these had resulted only in Mr Jervis’ persistent resistance to the idea that his work was in need of improvement.

189. When Mr Jervis became ill in February 2010 the Trust reasonably allowed sufficient time for Mr Jervis to recover before confronting him with the standard of his work prior to his illness. After the investigation meeting in June 2010 the Trust sought further medical advices as to when Mr Jervis would next be fit to address the issues they had about his performance. The Trust also sought advice as to whether Mr Jervis’ illness would have had the effect that he described, that he had been left with no memory of any of the events leading up to his dismissal.

190. The Tribunal concluded that the Trust received evidence in Dr O’Kane’s report that suggested only that Mr Jervis’ illness may have had this effect and even then it related only to “the few days before he went off on sick”. The Tribunal concluded that the Trust acted reasonably in taking this into consideration along with its own findings that Mr Jervis was able to recall the incident about the chocolates and that he had falsified the patient record in allegation five to reject that idea that Mr Jervis could remember nothing of the events leading up to his dismissal.

Dismissal for Gross Misconduct

191. The Tribunal concluded that when the Trust dismissed Mr Jervis for gross misconduct the Trust genuinely believed that Mr Jervis had failed to perform in his work to an adequate standard, that he had falsified a patient record and that he was not honest in his assertion that he was unable to recall any of the events leading up to his dismissal.

192. The Tribunal concluded that the Trust had this belief at the time of the dismissal and at the end of the appeal hearing when it confirmed the original decision. The Tribunal concluded that the Trust conducted a reasonable investigation into this matter and before its ultimate conclusion reasonably concluded if their decision to dismiss could be avoided. The Tribunal concluded that the Trust reasonably balanced Mr Jervis’ (almost) clear service record against the seriousness of the allegations which they had found proven and in so doing the Tribunal concluded that the decision to dismiss was within the band of reasonable responses and that they had acted reasonably and fairly.

193. Accordingly the Tribunal dismisses Mr Jervis’ claim for unfair dismissal.

Disability Discrimination

194. Mr Jervis’ representative also submitted that Mr Jervis had a disability, an adjustment disorder likely to occur within the meaning of Schedule One of the Disability Discrimination Act 1995, as amended and that the Trust failed to make a reasonable adjustment as regards the following:-

1. That process that should have been applied ought to have been a Performance Management Process rather than a disciplinary process.

2. That the Trust failed to impose a lesser sanction and/or alternative means of addressing the issues raised given the fact that the claimant had a disability at the relevant time.

3. That the Trust failed to implement a rehabilitative return for Mr Jervis to his nursing role along the lines suggested by Occupational Health, eg, graduated return, mentoring, training, reduced workload, close supervision.

4. The Trust failed to implement a reasonable adjustment by way of redeploying Mr Jervis to a suitable alternative post including a non-clinical role.

195. The Tribunal noted that the medical evidence provided to the Trust prior to Mr Jervis’ dismissal did not disclose the fact that Mr Jervis was suffering from a disability. This is not the same thing as saying that Mr Jervis was not unwell. The Tribunal has concluded that the medical evidence before the Trust indicated that Mr Jervis had become unwell and had sustained a mental condition and it was for this reason and for the safety of the patients that the Trust required Mr Jervis to go off on sickness absence on 17 February 2010.

196. However the Tribunal concluded that the Trust had been reasonable in not concluding that Mr Jervis had a disability as defined by the Disability Discrimination Act, as amended. In reaching this conclusion the Tribunal took into account the fact that Sister McKenna, who was the first medical person to have noticed Mr Jervis’ decline in mental health and whose evidence Mr Jervis’ representative suggested was reliable medical evidence of Mr Jervis’ state of health, had no other evidence of any such decline prior to or otherwise apart from his reactions to her (and Sister Jenkinson) when challenged about his work.

197. Sister McKenna stressed that as far as she was concerned she had not noticed any disturbance in Mr Jervis’ mental health when he was on the ward in relation to other people nor had any been reported to her and that Mr Jervis appeared to act normally at these other times.

198. From the outset, December 2009, Sister McKenna and Sister Jenkinson noted two things in particular about Mr Jervis. The first of these was that Mr Jervis declined as necessary any support of additional training to facilitate his move from night to day duty. When it was observed that Mr Jervis was not performing well in his duties they also noticed that Mr Jervis did not accept that he was making the mistakes in question and that he continued to resist the idea of or the need for any professional support, even when taken to task over jobs done wrongly or badly.

199. At this stage there was no evidence before the Tribunal to indicate that Sisters McKenna or Jenkinson could or should have concluded that Mr Jervis was suffering from a mental condition or a disability. In their exchanges with Mr Jervis at that stage there are no observations of any mental disturbances in Mr Jervis’ behaviour, these only becoming apparent in February 2010.

200. However when Sister McKenna referred Mr Jervis to Occupational Health it appeared to the Tribunal that she asked reasonable questions from which to elicit evidence of Mr Jervis’ state of mental health, what may have caused it, whether he could cope with the pressures at work, which had been considerably reduced given their view of his ability to perform and the prognosis for his future at work.

201. The Tribunal noted that Dr Tohill who became familiar with Mr Jervis and his mental condition over a period of months at no stage alerted the Trust to the possibility of Mr Jervis having a disability nor was there anything in his notes or letters that he should have suggested this. His notes and letters were consistent with his treating Mr Jervis for an adjustment disorder, which necessarily had a short to medium term duration and from which Dr Tohill advised that he had recovered well in May and was ready to attend a meeting to discuss his performance and his return to work.

202. After the calamitous investigation meeting in June 2010 the Trust, through Sister McKenna, halted the investigation process and referred Mr Jervis back to Occupational Health who called in aid the services of Consultant Psychiatrist Dr O’Kane. Neither she nor Dr Tohill’s additional reports to the Trust raised the issue of Mr Jervis’ having a disability. When the Trust considered Dr O’Kane’s evidence, proffered to them by Mr Jervis on appeal, they regarded her comments as referring to the paucity or otherwise of Mr Jervis’ memory rather than her report being consistent with a diagnosis of a disability.

203. The Tribunal accepted the evidence of both medical consultants when they indicated that Mr Jervis had suffered from an adjustment disorder, at least in February 2010, and while there was some disagreement between them as to the severity of this, both agreed that it had not amounted to an impairment that would have had adverse impact for more than a year.

204. The Tribunal also noted that while Mr Jervis might suffer from such a mental condition in the future neither consultant suggested that this was because he was suffering from an underlying medical condition that would be likely to recur. Dr Fleming stated that such a mental condition would be likely to recur if Mr Jervis were confronted with similar stresses in the future. Dr Harbinson stated that Mr Jervis was vulnerable to suffering from such adjustments disorders in similar circumstances.

205. Accordingly the Tribunal concluded that there was no evidence on which the Trust could or should have concluded that the claimant was suffering from a disability, as defined by the legislation. It follows from this conclusion that the Tribunal concludes that the Trust was under no duty to make any reasonable adjustments or as described.

206. The Tribunal concludes that Mr Jervis’ claims fail.

Chairman:

Date and place of hearing: 26-30 September 2011, 3, 4 and 7 October 2011, at Belfast.

Date decision recorded in register and issued to parties: