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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> McNaughton v Northern Health & Social Care ... [2013] NIIT 01388_10IT (05 November 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/1388_10IT.html
Cite as: [2013] NIIT 1388_10IT, [2013] NIIT 01388_10IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 1388/10
CLAIMANT: Sandra McNaughton
RESPONDENT: Northern Health & Social Care Trust
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent; and the tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £3,438.00.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Ms N Kearney
Ms M Galloway
Appearances:
The claimant was represented by Ms C Drake, daughter of the claimant.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Ms E Ward, Solicitor, of Directorate of Legal Services.
Reasons
1.1 The claimant presented a claim of unfair dismissal to the tribunal on 12 May 2010, arising out of her dismissal by the respondent with effect from 18 November 2009 for gross misconduct. The respondent presented a response to the tribunal on 6 July 2010, in which it denied liability for the claimant’s claim, on then grounds that the claimant was dismissed for a reason related to the claimant’s conduct. The hearing of the matter was delayed, primarily, due to the ill-health of the claimant.
1.2 During the course of the hearing, the claimant confirmed that, if the tribunal found her dismissal was unfair, she wished to obtain by way of remedy an award of compensation and she was no longer seeking an Order of Reinstatement and/or Re-engagement.
1.3 It was not disputed that the claimant, who was born on 25 May 1968, was employed on a part-time contract of employment by the respondent as a Nursing Auxiliary from 20 December 1999; and, at all time material to these proceedings she was employed in that position in the Medical Assessment Unit of the Causeway Hospital, Coleraine. Further, as agreed, at the date of her dismissal, the claimant was earning approximately £400.00 net per week, which was in excess of the then limits for one week’s pay, for the calculation of the claimant’s compensation, which at the relevant date was limited to £380.00 gross per week.
1.4 It was not disputed by the parties that the tribunal had jurisdiction to hear the claimant’s claim, as the claim had been presented to the tribunal in time, pursuant to the provisions of Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004; as the claimant, following her dismissal on 18 November 2009, had appealed the decision to dismiss her, which appeal was not concluded until 1 April 2010. Therefore, at the date of the expiry of the normal three month period to bring proceedings, on 18 February 2011, the claimant had reasonable grounds for believing that a dismissal procedure was being followed, thereby entitling her to the said ‘one-off’ extension of three months, which had not expired at the date the claimant presented her claim of unfair dismissal, as set out above. (See further Harris v Towergate London Market Ltd [2008] IRLR 536 and Remploy Ltd v Shaw [2009] UKEAT/0452/08).
2.1 The tribunal heard oral evidence given, on behalf of the respondent, by Ms Jane Brady and Mrs Barbara Hall. The claimant also gave oral evidence to the tribunal.
Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, together with oral and/or written submissions by the representatives of the claimant and the respondent, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s claim.
2.2 The respondent’s disciplinary procedure, insofar as relevant and material, provided as follows:-
“2. Guidance and Definitions
‘Investigating Officer’ is any person authorised to carry out an investigation into alleged breaches of discipline to establish the facts of the case.
‘Presenting Officer’ is usually the investigating officer and presents the evidence to the disciplinary panel.
‘Disciplinary panel’ is the person or persons authorised to take disciplinary action.
‘Misconduct’ is a breach of discipline which is considered potentially serious enough to warrant recourse to formal disciplinary action (please refer to Disciplinary Rules).
‘Gross misconduct’ is a serious breach of discipline which effectively destroys the employment relationship and/or confidence which the Trust must have in an employee or bring the Trust into disrepute (please refer to Disciplinary Rules).
3. Principles
…
(b) In cases where an investigation is necessary, disciplinary action will not be taken against an employee until such an investigation is completed.
However, the Trust reserves the right to proceed with disciplinary action where an employee fails to co-operate with an investigation.
(c) Where a case is being investigated under this disciplinary procedure, the employee will be provided with a copy of this procedure as soon as possible. At every stage in the procedure the employee will be advised of the nature of the complaint and will be given the opportunity to state their case before any decision is made.
…
(g) In deciding upon appropriate disciplinary action, consideration will be given to the nature of the offence, any mitigating circumstances and previous good conduct.
(h) The Trust will collect information from relevant witnesses. Trust employees who are witnesses to alleged misconduct will be required to give evidence and may be required to attend disciplinary meetings or hearing.
…
(j) Any disciplinary action will be appropriate to the nature of the proven misconduct.
…
Formal Disciplinary Procedure
6.2 Investigation
The investigating officer is responsible for establishing the facts of the case … The investigating officers should ensure that any witnesses are interviewed and that all relevant documentation is examined before a decision is made on the appropriate course of action …
6.3 Hearing
(a) If it is considered there is a case to be answered, the employee should be called to attend a disciplinary hearing before the appropriate Disciplinary Panel …
(b) The Disciplinary Panel is made up of two managers at an appropriate level.
…
(f) Any witnesses required to attend the hearing should be granted the appropriate time off from their work.
(g) At the hearing, the case against the employee and the evidence should be detailed by the presenting officer and the employee should set out his/her case and answer the allegations.
(h) Witnesses may be called by either party and can be questioned by the other party and/or the disciplinary panel. The presenting officer and the employee/representative will have the opportunity to make a final submission to the disciplinary panel at the end of the hearing with the presenting officer going first. The disciplinary panel has the right to recall any witnesses but both sides and their representatives have the right to be present.
6.4 Disciplinary Decision
(a) The Disciplinary Panel will review all the evidence before taking its decision. The Disciplinary Panel will determine on a balance of probabilities whether the allegations were or were not proven. Before deciding on the appropriate disciplinary action, the Disciplinary Panel should consider any mitigating circumstances put forward at the hearing and take account of the claimant’s record.
7. Disciplinary Appeals
…
(b) The appeal panel will comprise two managers from the Trust who have had no previous involvement in the case and who are normally at a more senior level than the Disciplinary Panel.
Gross Misconduct
The following are example of Gross Misconduct offences which are serious breaches of contractual terms, which effectively destroy the employment relationship and/or the confidence which the Trust must have in an employee. Gross Misconduct may warrant summary dismissal without previous warnings.
…
Serious breaches of Trust Rules, Policies, Procedures and Practices.”
2.3 The respondent’s Managing Absence Policy insofar as relevant and material provided as follows:-
“ …
3 The Member of Staff’s responsibilities
…
not work elsewhere whilst on sick leave from the Trust. If the member of staff has more than one job and their doctor considers, due to their condition, this work to be beneficial, they must advise their manager, who may seek a view from occupational health to asses their fitness for the other work.
Misconduct during absences
15.3 Working elsewhere whilst on sick leave may be considered as gross misconduct, therefore such cases will be reported to the appropriate disciplinary authority immediately for a decision to be taken as to whether or not formal disciplinary action should be taken.”
2.4 The claimant went on sick leave on 12 December 2008 until 29 March 2009 suffering from stress. It was not disputed by the parties that the claimant, at the date of her dismissal on 18 November 2009, was unfit for work due to mental health and other medical issues and remained so at the date of this hearing and that therefore she was not entitled by way of remedy to any claim for loss of earnings by way of compensatory award pursuant to the 1996 Order. (In those circumstances the Employment Protection (Recoupment of Jobseeker’s Allowance and Income Support) Regulations (Northern Ireland) 1996, as amended, do not apply to this decision.)
2.5 It was not disputed on 12 December 2008, Ms Tracey Norris, Lead Nurse in Emergency Care, conducted an unsuccessful mediation meeting to try to resolve issues/differences which had arisen, in the Medical Assessment Unit of the Causeway Hospital, between the claimant and Staff Nurse Norma Harper and another. Following this meeting the claimant went on sick leave, as set out above. In a letter dated 17 December 2008 from Ms Norris to the claimant confirming the above matters, it is noted that Ms Norris had sought further advice from Ms Barbara Hall and Human Resources and it expressed the hope there would be a future meeting with Human Resources in attendance in relation to these matters.
2.6 During the period of absence, it was reported to the respondent that the claimant had been seen working in a café in Coleraine, when she was on sick leave, by Staff Nurse Norma Harper on 10 February 2009 and by Staff Nurse Barbara Maguire on 28 February 2009. These reports were relayed to Lead Nurse Tracey Norris who, following advice from the Human Resources Department of the respondent, arranged a meeting with the claimant to discuss these allegations with her.
2.7 In the initial oral report to Ward Manager/Sister M Hunter on 10 February 2009, Nurse Harper, as recorded by Ward Manager/Sister M Hunter, stated she was in Coleraine Town Centre and had called at the Indoor Market to collect boots from the shoe mender. Whilst in the Market she observed the claimant working in the café at the indoor market, dressed in an apron and hat and cooking behind the counter.
In a written statement to Lead Nurse Norris dated 3 March 2009, Staff Nurse Maguire stated:-
“On Saturday 28 February I was shopping at the indoor market in Coleraine where I observed Nursing Auxiliary Sandra McNaughton working in a café.
She was wearing overalls and a hat and appeared to be cooking, she had her back to me but I was then able to see her side view.
I am certain this was Sandra McNaughton as I also saw her car parked outside in the staff area of the car park.”
2.8 In a letter dated 1 April 2009, Ms Norris wrote to the claimant, detailing a meeting she had held with the claimant in which it was stated, insofar as relevant and material:-
“ …
· I informed you that two allegations had been made against you regarding working in a café (Indoor Market) on 10 February 2009 and 28 February 2009. Both witnesses have formalised their observations in writing to Sister Hunter.
· You were given a copy of the Trust’s absence policy and directed to Page 9, Part 5, which states, ‘not work elsewhere whilst on sick leave from the Trust’.
· You stated you were a part-time employee in the café for three years up until December 2008.
· You deny working in the café while on long term sick leave.
· You stated that Norma Harper approached staff in the café on one of those dates to enquire about closing time and you were ‘expecting this’. As a result you contacted Andrea Lennox, Human Resources to inform her.
· You stated that you have been a regular attender to the café whilst off on long term sick leave and you have an ‘informal arrangement’ with the manager to make your lunch, which you receive free of charge.
… .”
2.9 On 29 June 2009 a meeting was held involving Ms Norris, Ms Jane Brady, Senior Human Resources Manager, and Mrs Barbara Hall, Interim Assistant Director, Medicine and Unscheduled Care.
A note of a memo by Ms Brady to Ms Norris insofar as relevant and material states:-
“Barbara and I met this am to consider the info you had submitted in relation to the above. To keep us right in terms of process, we decided that we would consider this to be a preliminary report.
Barbara and I then as the Disciplinary Panel have considered this and have decided that there should be an investigation under the Disciplinary Procedure, with yourself as investigating officer with the following terms of reference.
Terms of Reference :
To investigate an investigation report, to include signed statements, to enable the Disciplinary Panel to decide on further action required.”
2.10 By letter dated 14 July 2009 the claimant was informed, by Acting Human Resources Manager, Ms E Kelly, she was the subject of an investigation under the respondent’s disciplinary procedure, which was enclosed, which was strictly confidential and was not to be discussed with anyone; and that the investigation would be undertaken by Lead Nurse Norris.
2.11 Investigation was carried out by Lead Nurse Norris which resulted in an investigation report compiled by her. In her report she referred, in essence, to the matters set out above by way of background.
She then referred to a meeting she had held with the claimant on 5 July 2009, when the claimant had again denied working in the café while on long term sick leave. In a report of that meeting dated 12 August 2009, sent to the claimant, Lead Nurse Norris referred to the previous meeting on 30 March 2009 and, in particular, the two [tribunal’s emphasis] allegations from Staff Nurse Harper and Staff Nurse Maguire made against the claimant regarding her working in a café on 10 February 2009 and 28 February 2009 and that the claimant had, in essence, repeated what had been stated by the claimant on 30 March 2009, including “she was a regular attender to the café and she had an informal arrangement with the owner to make her lunch, which she received free of charge”. In the report it was noted the claimant had referred to issues between her and Staff Nurse Harper and also her feeling she was being victimised by the respondent.
Lead Nurse Norris also referred to a meeting with a number of employees of the respondent, including Staff Nurse Harper.
It is necessary to set out the statement provided by Nurse Harper, in full, as it refers to further incidents, not previously mentioned by her in her previous statement to the respondent:-
“14/7/09
Re: Sandra McNaughton working while on absence leave
I, Norma Harper (S/N) witnessed N/A Sandra McNaughton working in the indoor café (Lenny’s’) on three separate occasions.
The first occasion was Saturday 7th February at approximately 1 pm. I had attended the shoe repair shop to collect a pair of boots I had left for repair for a tear in the back of one boot. When I attended the shop my boots were not ready for collection and the Polish attendant advised me to come back in a few minutes and speak to the owner who was on his lunch break. I left the shop to go back to my car to sit and wait. On passing the café I witnessed N/A Sandra McNaughton standing behind the counter wearing a hat and a navy coloured apron and she appeared to be cooking. I proceeded to my car. Ten minutes later I returned to the shoe repair shop and I was advised to return on Monday and would collect the boots on my day off on Tuesday. As I was returning to my car I witnessed N/A McNaughton serving customers at the tables. I feel that N/A McNaughton did not see me witness her working in the café on this day.
The second occasion occurred on 10th February at approximately 3 pm when I returned to the shoe repair shop to collect my boots. Again she was dressed in the same uniform and she appeared to [sic] cooking in the café. I contacted Second respondent Michelle Hunter to inform her of what I had witnessed.
The third occasion was on Saturday 7 March at approximately 12.30 pm, when I accompanied my sister and nieces down the town for lunch. It was their preference to attend ‘Lennys’ for lunch so I proceeded to go into the café to enquire about what time the café stopped serving lunches at. As I approached the counter a member of staff with long dirty fair hair was serving. As I awaited for her to stop serving another customer, N/A McNaughton appeared from the kitchen with uniform on. I then asked Sandra ‘what time do you close at?’ and she replied 3 o’clock. I then left the café and I went up the town with my family.
Signature : Norma Harper
Date : 14-7-09.”
The investigation report also included, in particular, the previous statement dated 3 February 2009 by Staff Nurse Maguire and the report of Manager/Ward Sister Hunter dated 10 February 2009, to which reference has been made previously.
Ms Norris also included in her report a statement, dated 19 August 2009, from Andrea Lennox, which confirmed, inter alia, that she vaguely recalled that the claimant had telephoned her at some date prior to 27 May 2009 and the claimant had informed her Staff Nurse Harper had come into the café and had approached the claimant asking ‘what time the café closed at’, even though the girl working in the café that day was standing at the hatch, and she was a personal friend of the owner and when she was in the café she helped herself to tea or a meal.
2.12 By letter dated 15 October 2009 a letter was sent to the claimant by Ms Kelly on behalf of Ms Jane Brady, stating:-
“I wish to advise that the investigation is now complete. The Disciplinary Authority have decided that the matters should proceed to a disciplinary hearing … .”
In evidence to the tribunal, Ms June Brady confirmed that both she and Mrs McClurg, as members of the panel who conducted the disciplinary hearing, considered the terms of the investigation report, prepared by Lead Nurse Norris, before deciding the matter should proceed to a disciplinary hearing.
2.13 By letter dated 21 October 2009 from Ms Brady the claimant was informed that a disciplinary hearing would take place to answer the following allegations:-
“1. Whilst on sick leave from the Trust, you were working in a café in Coleraine on various occasions between February and March 2009.
Such action constitutes gross misconduct. The allegations if proven may lead to your dismissal from the Trust.”
A copy of the Investigation Report compiled by Lead Nurse Norris and the Trust’s Disciplinary Procedure was enclosed with the letter.
2.14 The Disciplinary Hearing took place on 18 November 2009. The Disciplinary Panel was Ms Jane Brady, Senior Human Resources Manager, and Ms Helen McClurg, General Manager, Acute Medicine and Patient Flow. The Presenting Officer was Lead Nurse Norris. The claimant attended with her trade union representative, Mr Glass of Unison.
2.15 There was no evidence before the tribunal that Mrs McClurg, who did not give evidence before the tribunal, had any previous involvement in this matter. The respondent’s representative accepted, in the course of the hearing, that it was not now the practice of the respondent for a person such as Ms Brady, given her said previous involvement in the matter, to be a member of the disciplinary panel; but he said it was normal practice in 2009. He pointed out that this involvement did not involve the actual investigation carried out by Lead Nurse Norris; albeit he acknowledged that, although it may have been normal practice, it was not best practice.
2.16 The claimant, at the disciplinary hearing, admitted, as she had done from the outset of the matter, she was present in the café on all the dates stated by Staff Nurse Harper and Staff Nurse Maguire; but again she strenuously denied she was working, relying on the reasons previously stated by her and referring again, in particular, to the arrangement she had with the owner to eat in the café, even if she was not working. It was not disputed, prior to her period of sick absence, the claimant did work at the café, as she was entitled to do, for a few hours each Saturday. In the notes of the hearing it is recorded she told the disciplinary panel, inter alia, that the issue the hearing was about would have been different if it had been someone other than Staff Nurse Harper who had reported her and that Staff Nurse Harper had a personal vendetta against her and victimised her. It is also recorded she stated Staff Nurse Harper and Staff Nurse Maguire were big friends.
2.17 Prior to the commencement of the disciplinary hearing, the claimant’s trade union representative provided in evidence, which was admitted, an undated typed signed statement from Len Gibson, the owner of the café. The claimant informed the disciplinary panel the statement had been written by Mr Gibson in November 2009, shortly before the disciplinary hearing. This statement, in essence, supported the claimant’s evidence about the said arrangement and, in the circumstances, it is necessary to set it out in full, insofar as relevant and material:-
“ …
I, as proprietor and chef of the indoor market café wish to inform whoever it may concern that Sandra McNaughton did not work or receive any money from myself between the months of December 08 and May 09. During this period as a personal friend I was aware that Sandra would not be available for work with me as she was off sick from the hospital with stress due to a situation to do with a work colleague who was harassing her and victimising her.
On the evening of the 12 December Sandra came to my house … she informed me of the situation regarding work … In the following weeks we first kept trying to keep her upbeat about the situation. By doing this we got her to call in with us at the café as we are all very close. If she didn’t appear by lunchtime we were on the phone looking to see where she was, how she was and telling you to get down for coffee and a chat …
I wish to also state that Sandra would have been witnessed on many occasions during this period in the kitchen of my café as my staff all eat free on their days off and make their own lunch or get coffee or whatever themselves. We are a close bunch and always on days off would call in to hear the crack. On no occasion did Sandra work or get paid in the months mentioned above.
… .”
2.18 The claimant’s trade union representative also provided to the panel, a signed written statement from Ms Julie Farmer, an employee at the café. Ms Farmer also attended the disciplinary hearing and gave oral evidence. In the statement she said, inter alia, her hours had increased from December 2008 until May 2009, when the claimant was off sick. She also referred to seeing Staff Nurse Harper acting strangely as she looked in the window of the café on 7 March 2009.
2.19 Staff Nurse Harper gave oral evidence to the disciplinary panel which followed closely the terms of her earlier written statement dated 14 July 2009. She was questioned by the claimant’s representative and the members of the disciplinary panel. When the claimant’s representative sought to put to Staff Nurse Harper the matters, which were set out in Mr Gibson’s statement, Ms Brady informed him “this was more for the panel and not Mrs Harper”. The claimant’s representative, in his questioning of Staff Nurse Harper, also referred to the fact there had been issues between the claimant and Staff Nurse Harper resulting in the claimant being off work with stress; but this was not explored further by the disciplinary panel with Staff Nurse Harper. Further, the disciplinary panel did not raise any issue with Staff Nurse Harper that, in her original oral statement to Ward Manager/ Sister Hunter on 10 February 2009, she did not refer to the earlier incident on 7 February 2009; and which she did not do until her later written statement on 14 July 2009. The disciplinary panel did not explore with Staff Nurse Harper and Staff Nurse Maguire the issue of the friendship between Staff Nurse Harper and Staff Nurse Maguire, which had been raised by the claimant in the course of her evidence.
2.20 Staff Nurse Maguire also repeated, in evidence to the disciplinary panel, the terms of her written statement on 3 March 2009 and was questioned by the claimant’s representative and the disciplinary panel. Whereas in her statement and initial oral evidence she said she was certain it was the claimant she saw, she accepted in evidence she only saw the side view of the claimant. She accepted it could be a case of mistaken identity but she believed it was the claimant; albeit she admitted “Ms McNaughton may say it was not”.
2.21 In the notes of the panel discussion by the disciplinary panel, there is reference to the different versions of the events given by Staff Nurse Harper and Staff Nurse Maguire and the claimant of what the claimant was doing on the dates, the subject-matter of the disciplinary hearing. There is also reference, but no more, inter alia, to the issues raised by the claimant about her relationship with Staff Nurse Harper, the friendship between Staff Nurse Harper and Staff Nurse Maguire, there could be mistaken identity, and also to the letters submitted by Mr Gibson and Ms Farmer. But there is no detailed analysis of any of this said evidence and its relevance to the decision to dismiss the claimant made by the disciplinary panel. The tribunal is satisfied these notes accurately record the extent of the panel discussion. Further, in their conclusion, set out on the ‘Disciplinary Hearing – Pro forma for decision-making/process’, there is little or no further analysis of the evidence and the reasons for the said decision. Indeed, under the heading ‘Sanction to be applied and reasons’ – it simply states :-
“Dismissal
Witnesses gave credible evidence in their statements
Different versions of events but certain facts are not disputed, ie that she was there and on certain dates which were primarily Saturdays (usual day of working).”
Under the heading ‘Burchell Test’ on the pro forma, it is stated, without more:-
“1. Yes/No
2. Yes/No
3. Yes/No.”
Under the heading ‘Previous Warnings’ it is stated, ‘None’; and under the hearing ‘Consideration of Mitigation’ it is stated ‘None – denies the allegations’.
2.22 By letter dated 18 November 2009, Ms Brady wrote to the claimant referring, inter alia, to the allegations made against her at the disciplinary hearing:-
“1 Whilst on sick leave from the Trust you were working in a café in Coleraine on various occasions between February and March 2009.
Such action constitutes gross misconduct. The allegations, if proven, may lead to your dismissal from the Trust.”
The Disciplinary Authority gave careful consideration to the information presented at the hearing and to the points put forward my Mr John Glass and yourself and is of the opinion that the allegations have been proven.
It is therefore the decision of the Disciplinary Authority that your actions as noted in the allegations are totally unacceptable and constitute gross misconduct and that you be dismissed from your post as a Nursing Auxiliary with effect from 18 November 2009 … .”
2.23 By letter dated 19 November 2009, the claimant appealed the said decision.
2.24 The appeal was heard on 1 April 2010 by Ms Barbara Hall, Interim Assistant Director Medicine and Unscheduled Care whose reference in this matter has been referred to previously and Mrs Rosemary McFerran, Assistant Director, Employee Relations. There was no evidence Mrs McFerran, who did not give evidence to the tribunal, had any previous involvement in the matter. The claimant was represented by Mrs M Murphy of Unison, her trade union representative. At the outset of the appeal, Mrs McFerran stated it was a full re-hearing but also “the panel had no previous involvement …”.
Mr Gibson provided a further statement dated 25 March 2010 which was presented by Mrs Murphy to the appeal panel and admitted in evidence by the appeal panel, which stated, inter alia:-
“I, as owner and chef of the Indoor Market Café, Coleraine would like to inform the panel at the hearing of Sandra McNaughton that Sandra did not work in my café whilst on sick leave last year from the hospital as my business insurances would not cover anyone to work in my premises whilst on the sick. Furthermore I find it shocking that Sandra lost her job due to false information given to the Trust and I feel she has been done injustice through lies. As I know the truth I feel that I have had my name blackened by Sandra by the two parties involved as witnesses …
As an employee myself now for over 10 years I have never and have no intentions of ever breaking any employment laws that would result in myself losing my business … .”
Staff Nurse Maguire and Staff Nurse Harper again gave evidence and were questioned closely by the claimant’s representative and the members of the appeal panel. The claimant and Ms Farmer also again gave evidence. All, in essence, repeated what each had stated previously. The claimant, in her evidence, again referred to her issues with Staff Nurse Harper and the friendship between the two staff nurses, Staff Nurse Harper and Staff Nurse Maguire.
The appeal panel in its notes of the panel discussion, having seen both the claimant and Ms Farmer, were satisfied they were not strikingly similar. Although, the panel recognised there were differences in the evidence, in particular, relating to the colour of the uniforms worn and issues about certain timings, it noted “Both Staff Nurse Maguire and Staff Harper were very ‘clear/adamant’ that it was Ms McNaughton, they knew her well”. Significantly, in the panel discussion, as recorded in the said notes, it is stated “the panel note that there was a lack of evidence from Ms McNaughton to say she was not working. (There was no witnesses produced to confirm she was not working.)”. The note concluded “Panel Decision – Uphold Decision of Disciplinary Panel”. There was no other analysis of the evidence and the reasons for the decision in the said note.
Mrs Hall in the course of her evidence to the tribunal could not satisfactorily explain this reference to lack of evidence; and absence of witnesses given the statement of Mr Gibson and statement and evidence of Ms Farmer; and sought to explain this is a reference to a lack of evidence rather than no evidence. She also had to acknowledge, despite the reference to no witnesses, the appeal panel had the statements from Mr Gibson and Ms Farmer; and that the latter had also given oral evidence. She said, in evidence, to the tribunal, it was not a relevant factor in the decision that Mr Gibson did not give his evidence in person and had only done so in a written statement.
In evidence to the tribunal, Mrs Hall confirmed that, in the appeal panel’s view, to work when on sick leave from the Trust was fraudulent, albeit in an ‘non-technical sense’; and since the appeal panel was satisfied this had taken place, there had to be the sanction of dismissal. There was no evidence that any other sanction was considered.
2.25 By letter dated 1 April 2010, the claimant was informed by the respondent in reference to the appeal hearing:-
“The Disciplinary Authority, having considered all the evidence presented at the hearing, has decided to uphold the decision to dismiss you. … .”
2.26 In the disciplinary hearing pro forma for ‘Decision-making process’ the appeal panel stated, inter alia, after referring to the main points of evidence given by each party, the allegations were proven. Again, under the hearing ‘Burchell Test’ on the pro forma, it is stated, without more:-
“1. Yes/No
2. Yes/No
3. Yes/No.”
Under the heading ‘Previous Warnings’, it is stated ‘no evidence presented’ and under the hearing ‘Consideration of mitigation’ it is stated ‘prior to this no problem – as per TU Rep. Mitigation considered by panel’.
Finally, under the hearing ‘Sanction to be applied and reasons’, it is stated ‘upheld decision to dismiss’.
2.27 By letter dated 1 April 2010 the claimant was informed by the respondent, with reference to the appeal hearing:-
“The Disciplinary Authority, having considered all the evidence presented at the hearing, has decided to uphold the decision to dismiss you.”
3.1 (a) Article 126 of the Employment Rights (Northern Ireland) Order 1996
(‘the 1996 Order’) provides:-
“(1) An employee has the right not to be unfairly dismissed by his employer.”
(b) Article 130 of the 1996 Order provides:-
“(1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair it is for the employer to show –
(a) the reason (if more than one the principal 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.
(2) The reason falls within this Paragraph if it –
…
(b) relates [tribunal’s emphasis] to the conduct of the employee;
…
(4) Where the employer has fulfilled the requirements of Paragraph (1) the determination of a question whether the dismissal is fair or unfair, (having regard to the reasons shown by the employer) –
(a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably as treating it as a sufficient reason for dismissing the employee; and
(c) shall be determined in accordance with equity and the substantive merits of the case.
…
(6) Paragraph (4) is subject to Article 130A … .”
(c) Article 130A of the 1996 Order provides:-
“(1) An employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if –
(a) one of the procedures set out in Part I of Schedule 1 to the Employment (Northern Ireland) Order 2003 (Dismissal and Disciplinary Procedures) applies in relation to the dismissals;
(b) the procedure has not been completed; and
(c) the non-completion of the procedures is wholly or mainly attributable to failure by the employer to comply with these requirements.
(2) Subject to Paragraph (1) failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure.”
3.2 Substantial changes to the law of unfair dismissal were introduced, following the commencement in April 2005 of the Employment (Northern Ireland) Order 2003 (‘the 2003 Order’); and the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004 (‘the 2004 Regulations’). The 2003 Order and the 2004 Regulations introduce, inter alia, statutory procedures to be complied with by an employer relating to matters of discipline and/or dismissal. These provisions came into operation on 3 April 2005. They were not repealed by the Employment Act (Northern Ireland) 2011 and were therefore applicable, insofar as relevant and material to this matter.
In essence, the statutory procedures introduced under the said legislation required employers, subject to certain exemptions which were not applicable to this case, to follow a specific procedure when subjecting employees to disciplinary action or dismissal. There are two alternatives, namely:-
(a) standard dismissal and disciplinary procedures (DDP);or
(b) a modified DDP.
There was no dispute that the latter procedure was never applicable in this matter.
Under the standard DDP it is provided at Paragraphs 1 – 3 of Schedule 1 of the 2003 Order as follows:-
“(i) Step 1 –
A statement of grounds for action and invitation to meeting –
(1) The employer must set out in writing the employee’s alleged conduct or characteristics, or other circumstances, which lead him to contemplate dismissing or taking disciplinary action against the employee.
(2) The employer must send a statement or a copy of it to the employee and invite the employee to attend a meeting to discuss the matter.
Step 2 – Meeting
(1) Meeting must take place before action is taken, except in the where the disciplinary action consists of suspension.
(2) Meeting must not take place unless –
(a) the employer has informed the employee of what the basis was for including in the statement in Paragraph (1) the ground or grounds given in it; and
(b) the employee has had a reasonable opportunity to consider its response to that information.
(3) The employee must take all reasonable steps to attend the meeting.
(4) After the meeting the employer must inform the employee of his decision and notify him of the right to appeal against the decision if he is not satisfied with it.
Step 3 – Appeal
(1) If the employee does wish to appeal, he must inform the employer.
(2) If the employee informs the employer of its wish to appeal, the employer must invite him to attend a further meeting.
(3) The employee must take all reasonable steps to attend the meeting.
(4) The appeal meeting need not take place before the dismissal or disciplinary action takes effect.
(5) After the appeal meeting the employer must inform the employee of its final decision.”
(ii) There are a number of general requirements set out at Paragraphs 11 – 13 of Part III of Schedule 1 of the 2003 Order, which provide, as follows:-
“Introductory
(11) The following requirements apply to each of the procedures set out above (so far as applicable)
Timetable
(12) Each step and action under the procedure must be taken without unreasonable delay.
Meeting
(13)
(1) Timing and location of meetings must be reasonable.
(2) Meetings must be conducted in a manner which enable both employer and employee to explain their cases.
(3) In the case of appeal meetings which are not the first meeting, the employer should, as far as is reasonably practicable, be represented by a more senior manager than attended the first meeting (unless the more senior manager attended that meeting).”
(iii) Under Regulation 12 of the 2004 Regulations, it is provided, in essence, that the failure of a party to follow the applicable DDP then releases the other party from the obligation to follow it:-
“(1) If either party fails to comply with the requirement of an applicable statutory procedure including a general requirement contained in Part III of Schedule 1, … non-completion of the procedure shall be attributable to that party and neither party shall be under obligation to comply with any further requirement of the procedure.”
(iv) Under Regulation 3(1) of the 2004 Regulations, the standard DDP applies when the employer contemplates dismissing or taking relevant disciplinary action against an employee.
(v) Existing contractual and dismissal procedures remain to the extent that they supplement the statutory DDPs – which are intended to give the employee certain ‘basic’ protections.
3.3 As the tribunal was satisfied the respondent’s disciplinary procedures, as referred to previously, were followed by the respondent and satisfied these basic statutory requirements no issue of automatic unfair dismissal, pursuant to Article 130A of the 1996 Order, therefore arose to be determined by the tribunal in this matter (see further Venniri v Autodex Ltd [UKEAT/0436/07]).
3.4 The Labour Relations Agency 2005 Code of Practice on Disciplinary and Grievance Procedures, then in force, provided that:-
“A failure to follow any part of this Code does not, in itself, make a person or organisation liable to proceedings. However, industrial tribunals shall take this Code into account when considering relevant cases.”
In Paragraph 48 of the Code, in relation to Appeals, it is provided:-
“48 A more senior manager not previously involved with the case should hear the appeal. Where a person at the most senior management level has already been involved with the case and there is a manager of the same status who has not, the appeal should be heard by the latter. In the event that neither of these is possible and the same manager who took the disciplinary action, unavoidably, has to hear the appeal, that manager should act as impartially as possible. Records and notes of the original disciplinary meeting should be made available to the person hearing the appeal where that person had no previous involvement.”
This is in similar terms to the respondent’s disciplinary procedures in relation to appeals, as set out previously at Paragraph 2.2 of this decision.
4.1 It was not disputed that, in determining the reason for the dismissal, pursuant to Article 130(1)(a) of the 1996 Order, the burden was on the respondent to establish the reason relied upon by it. The question of whether it did in fact justify the dismissal requires the tribunal to consider whether the respondent acted reasonably in all the circumstances in treating the reason as sufficient, pursuant to the provisions of Article 130(4) – (6) of the 1996 Order (see further Harvey on Industrial Relations and Employment Law, Section D1, Paragraph 808 and Mental Health NHS Trust v Sarkar [UKEAT/0479/08] where it is established in relation to the issue of fairness there is no burden of proof on either party).
4.2 In relation to a case where the reason for the dismissal is found to relate to the conduct of the claimant, which is a reason within the terms of Article 130(1) and (2) of the 1996 Order, the tribunal, as set out above, then has to determine the dismissal is fair, having regard to the provisions of Article 130(4) – (6) of the 1996 Order, referred to previously.
Applying the dicta, which originated in the well-known case of British Home Stores Ltd v Burchell [1980] ICR 301, and other subsequent cases, it is necessary for a tribunal to determine:-
“(i) whether the employer had a genuine belief in the guilt of the employee;
(ii) whether it had reached that belief on reasonable grounds;
(iii) whether this was following a reasonable investigation; and
(iv) whether the dismissal of the claimant fell within the range of reasonable responses in light of that misconduct.”
As seen above, it has long been established that in relation to the matters set out in Article 130(4) there is a ‘neutral’ burden of proof (see further DSG Retail Ltd v Mackey [2013] UKEAT/0054/13 and Singh v DHL Services [2013] UKEAT/0462/12]).
In Sainsburys Supermarkets Ltd v Hitt [2003] IRLR 23, it was made clear the range of reasonable responses test applies as much to the question of whether an investigation into suspected misconduct was reasonable in all the circumstances as it does to other procedural and substantive aspects of the decision to dismiss a person from his employment for a conduct reason. Mummery LJ also pointed out in Hitt the reasonableness of the employer’s investigation is to be considered by the objective standards of the reasonable employer, having regard to the particular circumstances of the case.
In Iceland Frozen Foods Ltd v Jones [1983] ICR 17 – Browne-Wilkinson J offered the following guidance:-
“ …
(1) the starting point should always be the words of [Section 57(3)] themselves;
(2) in applying the Section the industrial tribunal must consider the reasonableness of the employer’s conduct, not simply whether they [the members of the industrial tribunal] consider the dismissal to be fair;
(4) in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another;
(5) the function of the industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band the dismissal is fair : if the dismissal falls outside the band it is unfair.”
It has long been established in relation to a reasonable investigation the need for an employer to acquaint itself with all relevant facts before taking its decision. As Viscount Dilhourne said in W Devis & Sons Ltd v Atkins [1977] IRLR 314:-
“The employer cannot be said to have acted reasonably if he reached his conclusion ‘in consequence of ignoring matters which he ought reasonably to have known and which would have shown that the reason was insufficient’.”
In W Weddel & Company Ltd v Tepper [1989] IRLR 96, it was held that:-
“ … [employers] do not have regard to equity or the substantial merits of the case if they jump to conclusions which would have been reasonable to postpone in all the circumstances until they had, in the words of the [employment] tribunal in this case ‘gathered further evidence’ or, in the words of Arnold J in the Burchell case, ‘carried out as much investigation into the matter as was reasonable in all the circumstances of the case’. That means they must act reasonably in all the circumstances, and must make reasonable enquiries appropriate to the circumstances. If they formed their belief hastily and act hastily upon it, without making the appropriate enquiries or giving the employee a fair opportunity to explain himself, their belief is not based on reasonable grounds and they are certainly not acting reasonably … .”
The above dicta was followed and adopted in this jurisdiction by the Court of Appeal in the cases of Dobbin v Citybus Ltd [2008] NICA 42 and Rogan v South Eastern Health & Social Care Trust [2009] NICA 47 and again, more recently, in the case of Antrim Borough Council v McCann [2013] NICA 7 and Gould v Regency Carpet Manufacturing Ltd [2013] NICA 26. In London Ambulance NHS Trust v Small [2009] IRLR 563, Mummery LJ re-stated the normal rule that a tribunal is not entitled to substitute its own findings of fact for those of the employer or its investigating or dismissing officer. In the recent decision of McCann, Girvan LJ, in considering the issue of the band of reasonable responses which a reasonable employer must have adopted, expressly referred to the dicta of Longmore LJ in Bowater v Northwest London Hospitals NHS Trust [2011] EWCA Civ 63, when he stated:-
“The employer cannot be the final arbiter of its own conduct in dismissing an employee. It is for the tribunal to make its judgment always bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer.”
As Underhill LJ emphasised in Stuart v London City Airport Ltd [2013] EWCA Civ 973 the employer must carry out a sufficient investigation – “that is, such an investigation as fairness required in the circumstances of the case” before reaching its conclusion it had reasonable grounds for its belief, as seen in the Burchell test. He acknowledged that different tribunals could reach different conclusions about the minimum level of investigation by the employer which fairness required in the circumstances but also:-
“ ... two tribunals both conscientiously considering ‘the range of reasonable responses’ ... and trying to avoid illegitimate ‘substitution’, may nevertheless reach different conclusions as to where the limits of the range lie and thus substitution of its own view becomes legitimate ... .”
4.3 In a recent decision in the Court of Appeal in Davies v Sandwell Metropolitan Borough Council [2013] EWCA Civ 135, when deciding whether the employer acted reasonably in dismissing the employee, held:-
“It is not for ET to conduct a primary fact-finding exercise. It is there to review the employer’s decision. Still less is the ET there to conduct an investigation into the whole of the employee’s employment history … .” (Paragraph 33 of the judgment)
Further, in Turner v East Midlands Trains [2012] EWCA Civ 1470, Sir Stephen Sedley at Paragraph 71 of the judgement emphasised:-
In those paragraphs of his judgment, referred to by Sir Stephen Sedley, Lord Justice Elias referred, with approval, to the summary of the relevant principles contained in the judgment of Aikens LJ in the case of Orr v Milton Keynes Council [2011] ICR 704, when he stated as regards to the fairness test in Section 98(4) [Article 130(4) of the 1996 Order] as follows (Paragraph 78):-
“ …
(4) In applying that sub-section, the employment tribunal must decide on the reasonableness of the employer’s decision to dismiss for the ‘real reason’. That involves a consideration, at least in misconduct cases, of three aspects of the employer’s conduct. First, did the employer carry out an investigation into the matter that was reasonable in the circumstances of the case; secondly, did the employer believe that the employer believe that the employee was guilty of the misconduct complained or; and thirdly, did the employer have reasonable grounds for that belief. If the answer to each of those questions is ‘yes’, the employment tribunal must then decide on the reasonableness of the response by the employer.
(5) In doing the exercise set out at (4), the employment tribunal must consider, by the objective standards of the hypothetical reasonable employer, rather than by reference to its own subjective views, whether the employer has acted within a ‘band or range of reasonable responses’ to the particular misconduct found on the particular employee. If it has, then the employer’s decision to dismiss will be reasonable. But that is not the same thing as saying that a decision of an employer to dismiss will only be regarded as reasonable if it is shown to be perverse.
(6) The employment tribunal must not simply consider whether they think that the dismissal was fair and thereby substitute their decision as to what was the right course to adopt for that of the employer. The tribunal must determine whether the decision of the employer to dismiss the employee fell within the band of reasonable responses which ‘a reasonable’ employer might have adopted.
(7) The particular application of (5) and (6) is that an employment tribunal may not substitute their own evaluation of a witness for that of the employer at the time of its investigation and dismissal, save in the exceptional circumstances.
(8) An employment tribunal must focus their attention on the fairness of the conduct of the employer at the time of the investigation and dismissal (or any appeal process) and not on whether in fact the employee has suffered an injustice.”
Further, Lord Justice Elias emphasised ‘the band of reasonable responses test’ is not a subjective test and it is erroneous so to describe it – “it provides an objective assessment of the employer’s behaviour whilst reminding the employment tribunal that the fact that it would have assessed the case before it differently from the employer does not necessarily mean that the employer has acted unfairly”.
Elias LJ also at Paragraphs 20 – 22 of his judgment observed:-
“(20) When determining whether an employer has acted as the hypothetical reasonable employer would do, it would be relevant to have regard to the nature and consequences of the allegations. These are part of all the circumstances of the case. So if the impact of a dismissal for misconduct will damage the employee’s opportunity to take up further employment in the same field, or if the dismissal involves an allegation of immoral or criminal conduct which will harm the reputation of the employee, then a reasonable employer should have regard to the gravity of those consequences when determining the nature and scope of the appropriate investigation.
(21) In A v B [2003] IRLR 405, Paragraph 60, when giving the judgment in the EAT in a case involving alleged criminal behaviour by the employee, I said this:-
‘Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course, even in the most serious of cases, it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiries should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him.’
This dictum was approved by the Court of Appeal in Salford Royal NHS Foundation Trust v Roldan [2010] ICR 1457, Paragraph 13.
(22) The test applied in A v B and Roldan is still whether a reasonable employer could have acted as the employer did. However more will be expected of a reasonable employer where the allegations of misconduct, and the consequences to the employee if they are proven, are particularly serious.”
(See also Crawford v Suffolk Mental Health NHS Partnership Trust [2012] IRLR 402).
In a recent decision of the Employment Appeal Tribunal, in the case of Mitchell v St Joseph’s School, after referring to the above dicta in Davies and Turner, HH Judge McMullan QC, at Paragraph 30 of his judgment, concluded that:-
“The point is that the duty of the employment tribunal is to review the decision-making of the employer on the material that was available or ought to have been available following the completion, in a conduct case, of the stages in Burchell [1978] IRLR 379, then to stand back and decide if the dismissal fell within the band of responses of a reasonable employer.”
4.4 Procedural defects in the initial disciplinary hearing may be remedied on appeal, provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness. As the Court of Appeal held in Taylor v OCS Group Ltd [2006] EWCA Civ 702:-
“If an early stage of a disciplinary process is defective and unfair in some way then it does not matter whether or not an internal appeal is technically a re-hearing or review, only whether the disciplinary process as a whole is fair. After identifying a defect a tribunal will want to examine any subsequent proceedings with particular care. Their purpose in so doing will be to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it of the process and the open-mindedness (or not) of the decision-maker, the overall process was fair, notwithstanding any deficiencies at an early stage.”
4.5 In determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer. As stated by Philips J in Trust Houses Forte Leisure Ltd v Aquilar [1976] IRLR 251:-
“It has to be recognised that when the management is confronted with a decision to dismiss an employee in particular circumstances there may be cases where reasonable managements might take either of two decisions : to dismiss or not to dismiss. It does not necessarily mean if they decide to dismiss that they have acted unfairly because there are plenty of situations in which more than one view is possible.”
In the case of Brito-Bubapulle v Ealing Hospital NHS Trust [2013] UKEAT/0358/12, Langstaff P has emphasised that a finding of gross misconduct does not automatically mean that a dismissal is within the band of reasonable responses and a tribunal must assess whether it was reasonable in all the circumstances to dismiss an employee for such gross misconduct. This requires a tribunal to consider any relevant mitigating factors which might mean dismissal was not reasonable. Such factors might include, for example, length of service, the fact that such service was previously unblemished and the consequences of dismissal for future employment (see further Roldan, referred to above, Trusthouse Forte (Catering) Ltd v Adonis [1984] IRLR 382).
4.6 In the well-known House of Lords decision in Polkey v AE Dayton Services Ltd [1988] ICR 344 it was held that, in essence, an employer who had acted unreasonably and in breach of procedures could not contend that, since the dismissal would have occurred anyway, even if proper procedures had been followed, the dismissal should be found to be a fair dismissal. Indeed, it is only in limited circumstances that an employer would be able to successfully argue that compliance with fair procedures would be futile.
However, although the tribunal that might find that dismissal to be unfair, the tribunal, following Polkey, was able to reduce the employee’s compensation by a percentage to represent the chance the employee would have still been dismissed. A Polkey reduction therefore required an employer to satisfy the tribunal it would have dismissed the employee, even if it had complied with fair procedures.
4.7 Article 130A(2), as set out previously, made a further change to the law of unfair dismissal and resulted, in certain circumstances, in a partial reversal of the principles set out in Polkey, as indicated above.
Article 130A(2) provides that a dismissal, following a failure to follow other procedural steps, will not affect the fairness of the dismissal, provided the employer can show the employee still would have been dismissed, if he had followed the steps correctly. The Polkey decision was partially reversed and the ‘no difference rule’, which had applied before Polkey, was reinstated for a failure to follow procedures, other than the new statutory dismissal and disciplinary procedures. The reference to procedures in Article 130A(2) has been the subject of some conflicting decisions in the Employment Appeal Tribunal, but the generally accepted view would seem now to be that it applies to any procedure, written or otherwise, which the tribunal considers a reasonable employer might follow (see Kelly-Madden v Manor Surgery [2007] IRLR 17).
4.8 However, what is clear, from the legal authorities, is that Article 130A(2) is only of assistance to an employer, whenever the DDP has been complied with. Automatic unfairness cannot be cured by invoking Article 130A(2) (Butt v CAFCSS [UKEAT/0362/07]). As was made clear in the case of Goodin v Toshiba [UKEAT/0271/08], there can be a Polkey reduction of up to 100% in an automatic unfair dismissal case, where the breaches of procedure would have made no difference to the dismissal. If the employer has complied with the DDP (but the dismissal is nevertheless unfair for other reasons), but there is a greater than 50% chance that the employer would have dismissed the employee, pursuant to Article 130A(2), the dismissal will be fair. Thus, where the relevant DDP has been complied with but the dismissal is procedurally unfair for the ordinary purposes of Article 130(4) of the 1996 Order, any Polkey deduction cannot exceed 50%.
4.9 In Software 2000 Ltd v Andrews [2007] UKEAT/0533/06, Elias J, as he then was, emphasised that tribunals must consider any reliable evidence, even if speculative, in carrying out the exercise to determine whether or not dismissal would have occurred if a fair procedure had been followed. Using its common sense experience and sense of justice in the normal case, that would require to assess for how long the employee would have been employed but for the dismissal. However, it is for the employer who seeks to contend that the employee would or might have ceased to be employed in any event had fair procedures been followed, or alternatively would not have continued in employment indefinitely, to adduce any relevant evidence on which it wishes to rely; but in doing so, the tribunal must have regard to all the evidence from making the assessment, including any evidence from the employee itself. As Elias J stated in his judgment:-
“The mere fact an element of speculation was involved was not a reason for the tribunal refusing to have regard to the evidence.”
In Brinks Ireland Ltd v Hines [2013] NICA 32, Girvan LJ followed, with approval, Software 2000 Ltd v Andrews and stated:-
“ ... If an employer seeks to contend that the employee would or might have ceased to be employed in any event if a fair procedure had been followed or alternatively it would not have continued in employment indefinitely it is for the employer to adduce relevant evidence on which it wishes to rely. Where the nature of the evidence which the employer adduces or on which it seeks to rely is unreliable, the tribunal may take the view that the whole exercise of seeking to re-construct what might have been is so riddled with uncertainty that no sensible prediction based on the evidence can be made ... .”
4.10 In a recent decision of the Employment Appeal Tribunal in the case of Blackburn v Aldi Stores [2013] UKEAT/0185, the Employment Appeal Tribunal, in a case of unfair constructive dismissal, held that, where an employee was denied an effective appeal in relation to an appeal against a decision on foot of the claimant’s grievance, because it was decided by the same manager who took the original decision, this could be a breach of trust and confidence for the purposes of such a claim. The present proceedings, being a case of ‘direct’ unfair dismissal, are clearly based on a very different factual scenario. However in so holding the Employment Appeal Tribunal had regard to the provisions of the relevant ACAS Code of Practice, which is in similar terms to Paragraph 49 of the Labour Relations Agency Code of Practice (referred to previously at Paragraph 3.4 of this decision). The Employment Appeal Tribunal in the above decision emphasised that a right to an appeal is a significant right in the employment context and, on the facts, found it was not easy to see why an organisation the size of the employer was not able to make provision for an impartial hearing by a manager not previously involved. It must also be noted it has long been established that a failure to hold a proper appeal can render a ‘direct’ dismissal unfair (and will be more significant where the procedure is contractual) – see West Midlands Co-Op Society Ltd v Tipton [1986] IRLR 112.
4.11 In the case of Morrison v Amalgamated Transport & General Workers Union [1989] IRLR 361, the Northern Ireland Court of Appeal held in relation to the issue of contributory fault:-
“(i) the tribunal must take a broad common sense view of the situation;
(ii) that broad approach should not necessary be confined to a particular moment, not even the moment when the employment is terminated;
(iii) what has to be looked for in such a broad approach over a period is conduct on the part of the employee which is culpable or blameworthy or otherwise unreasonable; and
(iv) the employee’s culpability or unreasonable conduct must have contributed to or played a part in the dismissal.”
In Allders International Ltd v Parkins [1982] IRLR 68, it was emphasised that it is the employee’s conduct alone, which is relevant to the issue of whether the loss resulting from the dismissal should be reduced on grounds of contributory fault.
In a recent decision of the Employment Appeal Tribunal in the case of Steen v ASP Packaging Ltd [2013] UKEAT/0023, Langstaff P, confirmed it would be a rare case where there would be a 100% deduction for contributory fault. He also confirmed it was necessary for the tribunal to focus on what the employee did or failed to do and if any such conduct, as identified by it, which it considers blameworthy, caused or contributed to the dismissal to any extent and, if so, to what extent the award should be reduced and to what extent it is just and equitable to reduce it. Langstaff P noted that Polkey deductions and deductions for contributory fault are approached on different basis and do not directly overlap:-
“That is because the focus in a Polkey decision is predictive, it is not historical, as is the focus when establishing past contributory fault as a matter of fact. Second, Polkey focuses upon what the employer would do if acting fairly. Contributory fault is not concerned with the action of the employer but with the past actions of the employee. A finding in respect of Polkey thus may be of little assistance in augmenting reasons given by a tribunal in respect of contributory deduction.”
4.12 The Northern Ireland Court of Appeal, in the case of GM McFall & Company Ltd v Curran [1981] IRLR 455, which is binding on this tribunal, held that the general rule is that both the basic and compensatory awards should be reduced by the same amounts (see also, Rao v Civil Aviation Authority [1994] IRLR 240). In Audere Medical Services Ltd v Sanderson [UKEAT/0409], the Employment Appeal Tribunal held that:-
“If a dismissal was found to be automatically unfair, pursuant to Article 130A of the 1996 Order, then the tribunal may, in assessing compensation, find that contributory conduct and/or a Polkey deduction, as referred to previously, may be appropriate, dependent on the facts as found by the tribunal.”
5.1 In light of the facts as found by the tribunal and after applying the guidance set out in the legal authorities referred to in the previous paragraph of this decision, the tribunal reached the following conclusions, as set out in the following sub-paragraphs.
5.2 It was not disputed the respondent had shown the reason for the claimant’s dismissal by the respondent was for gross misconduct, as set out in the respondent’s letter sent to her, dated 18 November 2009. This clearly related to the claimant’s conduct and was a potentially fair reason, pursuant to Article 130 of the 1996 Order.
There was no doubt that, in relation to whether the claimant was working whilst on sick leave in the café in Coleraine on various occasions between February and March 2009, there was, in essence, a complete conflict of fact between the version of events put forward by Staff Nurse Harper and Staff Nurse Maguire and the alternative versions of events put forward by the claimant, Mr Gibson and Ms Farmer. There was no dispute the claimant was there in the café on the said dates; but, at all times, she maintained she was not working, as alleged by Staff Nurse Harper and Staff Nurse Maguire. In light of the legal authorities, the tribunal was very aware it must not substitute its own views for those adopted by the respondent; but, for the reasons set out below, it is concluded the dismissal of the claimant by the respondent was not fair and did not fall ‘within the range of reasonable options open to a reasonable employer’. (See Bowater v North West London Hospitals NHS Trust [2011] EWCA Civ 63.)
5.3 Ms J Brady, a member of the disciplinary panel, was involved in this matter from the outset. At a meeting on 29 June 2009, with Mrs B Hall, he subsequently sat on the appeal panel, it was decided, following the preliminary report from Lead Nurse Norris there should be an investigation under the disciplinary procedure and they then proceeded to set out the terms of reference for the said investigation. It is correct Ms Brady did not carry out the investigation herself, but it was carried out by Lead Nurse Norris. However, on receipt of the investigation report, and having considered its contents, Ms Brady, along with Mrs McClurg, as members of the disciplinary panel, decided that a disciplinary hearing should take place, as set out in the letter dated 21 October 2009 to the claimant where she was required to answer the allegations:-
“1. Whilst on sick leave from the Trust, you were working in a café in Coleraine on various occasions between February and March 2009.
Such action constitutes gross misconduct. The allegations if proven may lead to your dismissal from the Trust.”
Ms Brady was then a member of the disciplinary panel with Mrs McClurg. This panel concluded, after the disciplinary hearing, that the allegations were proven and the claimant was to be dismissed. As the respondent’s representative acknowledged, for Ms Brady to have such previous involvement, prior to the disciplinary hearing, was not best practice; albeit it may have been the normal practice for the respondent at the time. The failure to have a disciplinary panel, with no such previous involvement of one of its members was not a technical breach of procedures and was correctly accepted by the respondent to be a failure in best practice. The fact that it was normal practice at the time could not excuse such a serious breach of procedure by a reasonable employer and which was therefore unfair. This unfairness was further compounded by the involvement of Mrs Hall as a member of the appeal panel. Mrs Hall was at the meeting on 29 June 2009 and with Ms Brady decided to have an investigation under the disciplinary procedure. Mrs Hall had also been consulted by Lead Nurse Norris about the outcome of the mediation meeting on 12 December 2008, which related to the issues on the ward between the claimant and Staff Nurse Harper. After this unsuccessful meeting, the claimant went on sick leave. These issues, the subject of that meeting, were referred to by the claimant in the course of the disciplinary hearing and the appeal hearing. The respondent’s disciplinary procedure expressly provides at Paragraph 7 that the members of the appeal panel must have no previous involvement in the case. Indeed, at the appeal hearing on 1 April 2010, Mrs McFerran was therefore incorrect when she stated, at the outset of the hearing, that the panel had no previous involvement. In the circumstances, Mrs Hall should not have been a member of the appeal panel. Further the Labour Relations Agency’s Code of Practice 2005 says a more senior manager not previously involved with a case should hear the appeal. This, therefore, was a further breach of the respondent’s own procedures and, as seen in the recent case of Blackburn v Aldi [2013] UKEAT/0185, albeit a case of unfair constructive dismissal, to deny an employee an effective appeal can go to the root of the employment contract (see further Paragraph 4.10 of this decision).
In this particular case, this breach of the respondent’s own procedures for the conduct of appeals, by allowing Mrs Hall to be a member of the appeal panel, was particularly serious given the earlier involvement of Ms Brady, as set out above, in the disciplinary process. Thus, the appeal did not cure the unfairness of Ms Brady’s earlier involvement in the disciplinary process (see further Taylor v OCS Group Ltd [2006] EWCA Civ 702). The respondent is a reasonably large organisation and therefore should have had no difficulty in appointing members to such panels who had no previous involvement.
Therefore, by the said involvement of, firstly, Ms Brady and then Mrs Hall, the claimant was not given a full and proper independent hearing, either at the stage of the disciplinary hearing or at the appeal hearing, to which she was reasonably entitled. These were serious procedural failings, which permeated and prejudiced the whole disciplinary process and made it unfair. The tribunal was not satisfied that, in the circumstances, even if these procedural failings had not occurred, that a fair dismissal could have been achieved. In such circumstances, it is not possible to know, with any degree of certainty, what a person, with no previous involvement, would have decided as a member of either the disciplinary or appeal panel. In any event, in addition to the procedural unfairness referred to above, the tribunal also reached conclusions about the actions of the disciplinary and appeal panel, which it found to be unfair and did not fall within the range of reasonable responses open to a reasonable employer.
5.4 The tribunal accepts that the disciplinary panel and appeal panel had a very difficult task, given the different versions put forward by Staff Nurse Harper/Staff Nurse Maguire and the claimant. However, fundamental to the claimant’s version was her explanation of how she came to be in the café on the said dates. From the outset, she had referred to the arrangement she had with the owner of the café to make her lunch, free of charge, whilst she was off on long-term sick leave (see letter dated 1 April 2009 from Lead Nurse Norris to the claimant). This arrangement, which the claimant accepted in evidence to the tribunal was somewhat unusual, was central to her defence to the allegations made against her. Significantly, in the tribunal’s view, prior to the disciplinary hearing, the owner of the café, Mr Gibson, produced a letter which was admitted in evidence, in which he, in essence, confirmed the said arrangement he had with the claimant. This was further supported, albeit to a more limited extent, by an employee of the café, Ms Farmer, who also wrote a letter, which was admitted in evidence and attended to give oral evidence. In neither the notes of the disciplinary panel discussion or the pro forma, was there any proper detailed analysis of this evidence, which clearly had to be relevant to the panel’s determination, and why this evidence was rejected, as it clearly was by the disciplinary panel. This failure is all the more serious when, during the course of the hearing, Ms Brady informed the claimant’s trade union representative that what was stated by Mr Gibson was for the panel and not for Staff Nurse Harper. Despite this, there is no reference in the notes for discussion or the pro forma what view the disciplinary panel took of Mr Gibson’s statement and/or the statement and oral evidence of Ms Farmer. The disciplinary panel, in its notes for discussion, also properly referred to the fact there were issues between Staff Nurse Harper and the claimant and the friendship between her and Staff Nurse Maguire. In a decision, which clearly required the disciplinary panel to assess which version it accepted and why, no where is there any analysis of the view taken by the panel in relation to such matters and their relevance to the determination of which version to accept. The only conclusions set out by the panel was ‘different version of events but facts are not disputed, ie that she was there and on certain dates which were primarily Saturdays (usual day of working)’.
In the absence of any other conclusion by the panel and/or detailed analysis by the panel of the matters referred to above the disciplinary panel therefore did not carry out as much investigation of the matter as was reasonable in the circumstances and therefore it could not have had the necessary belief and/or reasonable grounds for finding the allegations were proven. In the absence of same, it was not enough for the panel, without more, to merely tick the boxes to state the Burchell test had been satisfied. In this context, it also has to be remembered that the allegation of working by the claimant when on sick leave from the Trust involved, as confirmed by Mrs Hall, issues of dishonesty/fraudulent conduct, albeit in a non-technical sense. Given this, it was essential the investigation was very careful and there was a necessity for the panel to ‘focus no less on any potential evidence which may exacerbate or at least point towards the innocence of the employee as it should on the evidence directed towards proving the charges against him’ (see A v B [2003] IRLR 405). The failure to carry out the necessary investigation, which would have involved, in particular, a full and proper analysis of the evidence of Mr Gibson and Ms Farmer, and the credibility of their evidence and that of the claimant vis à vis that of the Staff Nurses, meant that the guidance referred to above was not followed by the respondent. It was unreasonable for it to fail to do so, and to dismiss the claimant in the circumstances was not therefore within the range of reasonable responses by the respondent.
5.5 These failures were repeated and indeed compounded by the appeal panel. Despite the fact the claimant had produced further evidence from Mr Gibson and Ms Farmer about her arrangements with the owner, to confirm what she had said at the outset, the appeal panel noted ‘there was a lack of evidence from Ms McNaughton to say she was not working (there were no witnesses produced to confirm she was not working)’. This was clearly not correct and Mrs Hall was unable to give any satisfactory explanation for this note. She also made it clear, in evidence to the tribunal, the fact that Mr Gibson did not give oral evidence to the panel was not a relevant factor in the appeal panel’s decision. In the notes of the panel discussion, it is clear the appeal panel simply accepted the evidence of Staff Nurse Harper and Staff Nurse Maguire, without any proper analysis of the evidence of Mr Gibson and Ms Farmer. This evidence, which was confirmatory of the evidence of the claimant, and which evidence was effectively ignored by the appeal panel, as set out in the said note. Again, by these failures the appeal panel did not carry out the necessary investigation and therefore could not have had the necessary belief and/or reasonable grounds for finding the allegations were proven.
5.6 Further, having proved the allegations were proven, neither the disciplinary panel or the appeal panel properly considered the issue of mitigation and the appropriate sanction to be imposed. In the pro forma by the disciplinary panel it was noted under the heading ‘Consideration of Mitigation’ ‘None – denies the allegations’. In the pro forma by the appeal panel it was noted under the heading ‘Consideration of Mitigation’, ‘Prior to this no problem as per TU representative. Mitigation considered by panel’. However, Mrs Hall confirmed, in evidence to the tribunal, that to work, when on sick leave from the respondent, was fraudulent, albeit in a non-technical sense and that, since the appeal panel was satisfied this had taken place, there had to be the sanction of dismissal, without any further consideration of any mitigating factor.
As the decision in Brito-Babapulle v Ealing Hospital NHS Trust [UKEAT/0358/12/BA] makes clear, a finding of gross misconduct does not automatically mean that a dismissal is within the band of reasonable responses. In this matter, it is apparent neither the disciplinary panel or the appeal panel took into account, any issue of mitigation and, in particular, the claimant’s long service since 1999, without any previous disciplinary warnings. Therefore, in the judgment of the tribunal, to dismiss the claimant, without any [tribunal’s emphasis] such consideration, could not be within the range of reasonable responses of an employer in the circumstances.
5.7 For the reasons set out above, both procedural and substantive, the tribunal therefore concluded the dismissal was unfair and the claimant was entitled to an award of compensation. The tribunal then considered whether the claimant contributed to her dismissal. It has to be recognised the claimant’s arrangement with Mr Gibson was a somewhat unusual arrangement and placed her in a situation where, without knowledge of the arrangement, it could look to an outsider as if she was working in the café. Given the unusual nature of the arrangement, the tribunal concluded the claimant should have informed the respondent, from the outset of her sick leave, of this arrangement and what she would therefore be doing if seen in the café. The tribunal accepts the claimant told Ms Lennox, a Human Resource Manager, on a date unknown but following one of the later visits to the café by Staff Nurse Harper, of the above arrangement. However, the tribunal considers she should have done so at a much earlier date and certainly from in or about January 2009. If she had not informed Ms Lennox, as outlined above, the reduction for contributory fault would have been greater. In the circumstances, the tribunal therefore decided there should be a reduction of 10% for contributory fault, which it applied to both the basic and compensatory award (see GM McFall & Co Ltd v Curran [1981] IRLR 455).
5.8 The tribunal therefore assessed the compensation to be paid by the respondent to the claimant as follows:-
A Basic award
9 x £380.00 (subject to statutory cap) = £3,420.00
Less 10% for contributory fault = £ 342.00
Total £3,078.00
B Compensatory award (see Paragraph 2.4 of the decision)
Loss of statutory rights = £ 400.00
Less 10% for contributory fault = £ 40.00
Total £ 360.00
Total monetary award – A + B = £3,438.00
5.9 This is a relevant decision for the purposes of the Industrial Tribunals (Interest) (Northern Ireland) Order 1990.
As set out previously, the Employment Protection (Recoupment of Jobseekers Allowance & Income Support) Regulations (Northern Ireland) 1996 do not apply to this decision.
Chairman:
Date and place of hearing: 28 – 29 May 2013; and
6 June 2013, Belfast
Date decision recorded in register and issued to parties: