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You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Klosinska v Countrywide Care Homes Ltd ... [2013] NIIT 628_13IT (06 December 2013)
URL: http://www.bailii.org/nie/cases/NIIT/2013/628_13IT.html
Cite as: [2013] NIIT 628_13IT
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THE INDUSTRIAL TRIBUNALS
CASE REF: 628/13
CLAIMANT: Barbara Klosinska
RESPONDENTS: 1. Countrywide Care Homes Ltd
2. Bronagh Donaghy
3. Lisa Mullen
4. Coleen Toner
5. Erin Abernethy
6. Deborah Hawthorne
DECISION
(1) The majority decision of the tribunal is that the claimant was unfairly dismissed and we order the first-named respondent to pay to the claimant the sum of £4,097.28.
(2) The unanimous decision of the tribunal is that the claimant was discriminated against on grounds of her race contrary to Article 3 of the Race Relations (Northern Ireland) Order 1997. For the reasons set out at Paragraph 60 below we order the first-named respondent to pay to the claimant the sum of £5,500 by way of compensation.
Constitution of Tribunal:
Chairman: Miss E McCaffrey
Members: Mrs K McCrudden
Mr H Stevenson
Appearances:
The claimant appeared in person and represented herself.
The respondents were represented by Mr Morton, Barrister-at-Law, instructed by Hicks Watson, Employment Practice and Motor Industry Legal Services.
Interpreters: Marta Jeziorska
Anna Pietrzak
ISSUES
1. The issues for the tribunal to decide fell into two main categories:-
1. Unfair dismissal
The
claimant claimed she had been unfairly dismissed from her job as a
care assistant at Geanann Care Home, Dungannon, where she was employed by
the first-named respondent. There were a number of issues raised by the
claimant in relation to this procedure. In particular, the claimant alleged
that she had been unable to present her case fairly because the
first-named respondent had not provided an interpreter. The claimant also alleged
that the first-named respondent had not carried out a proper investigation into
the allegations made against her, and had not interviewed all the relevant
staff and other witnesses.
We therefore have to consider:-
(1) Whether the respondent unfairly dismissed the claimant contrary to Article 130 of the Employment Rights (Northern Ireland) Order 1996 (“the ERO”).
(2) Whether the first-named respondent acted reasonably in the investigation it carried out?
(3) Did the first-named respondent, as a result of that investigation, genuinely believe that the claimant was guilty of misconduct?
(4) Did the first-named respondent have reasonable grounds on which to base that belief?
(5) Did the decision to dismiss fall within the band of reasonable responses which a reasonable employer would have adopted in these circumstances?
Race Discrimination
The claimant alleged that she had been discriminated against on grounds of her race (she is Polish) by a number of her colleagues during her employment. Specifically she made allegations against the second to sixth-named respondents, about the way they treated her at work, although she withdrew the allegations against the second-named respondent. She also alleged that when she brought a grievance in relation to the way she had been treated the first-named respondent failed to address her grievance adequately and they delayed in addressing her grievance.
FACTS
2. The panel heard evidence and considered numerous documents which were opened to us in the course of a five day hearing. We heard evidence from the claimant and from Marzena Porzycka on her behalf. On behalf of the respondents we heard evidence from Deborah Hawthorne, Deputy Manager of the first-named respondent’s home at Dungannon, Caron Conroy, Quality Manager, Coleen Toner, Staff Nurse, and Bronagh Donaghy, Lisa Mullen, Erin Abernethy and Bernice Abernethy, who were all care assistants at the nursing home. In addition, we heard evidence from Vicki Rundle, Human Resources Manager, Jill Shearer, Senior Operations Manager and Ms Jenny Delic, Human Resources Director of the first-named respondent. On the basis of the evidence heard we make the following findings of relevant facts.
3. The claimant was employed as a care assistant at a residential and nursing home owned by the first-named respondent at Geanann Care Home, Dungannon, Co Tyrone. She was employed there from 25 January 2010 until 31 December 2012, almost three years. There are approximately 60 staff employed at Geanann; and the first-named respondent is a large concern, with nursing homes throughout the UK. The claimant had come to Northern Ireland from Poland in 2007 and had worked in a number of different jobs prior to going to work for the first-named respondent. At the time of the alleged incident which resulted in her dismissal, she worked on the upper floor of Geanann Care Home, caring for residents, many of whom were suffering from dementia or other illnesses which meant that they were particularly vulnerable. The ground floor of the premises was devoted to residential care.
4. We set out the relevant events in relation to this matter as far as possible in chronogical order. The claimant developed tendonitis in her wrists and was off sick for a period of approximately two weeks in April 2012. Her sick line referred to her having tendonitis. When she returned to work she still had some difficulties with her wrists but continued working up until August without any major difficulty.
5. On 25 June 2012, the claimant wrote a letter addressed to the first-named respondent’s premises at Geanann Nursing Home, complaining about Coleen Toner’s behaviour towards her on the night of 22/23 June 2012. She alleged that Ms Toner effectively had failed to help her look after 20 patients who needed care during the night, leaving the claimant to do most of the work with some help from a care assistant from downstairs. The claimant also alleged that Ms Toner left her alone for a long time on the floor, which was dangerous. She also indicated that she had advised Ms Toner of the pain in her wrist, but this was ignored by Ms Toner. The claimant had asked not to work night shifts and, in particular, had asked not to work this particular night because she was due to help with a Polish event in the area the next day and was due to be there from early in the morning. She confirmed that an agency nurse had arranged for another care assistant named John to come in early the following morning to let the claimant away before her usual finish time of 7.45 am. The claimant indicated that she had been left to work on her own to change patients who needed two people to move them and that her wrists were painful. Ms Toner’s account was that the claimant only told her of this the following morning at 6.30 am and at that stage Ms Toner helped her. The claimant alleged that she had been shouted at by Ms Toner and that she had been reduced to tears by the pain in her wrists. Ms Toner denied that she had seen any evidence of the claimant being so distressed. On balance, it is our finding that the claimant was suffering from painful wrists on this night and that she did inform Ms Toner about this. We accept that the claimant would have benefitted from extra help in light of her wrist condition, but it did not seem she had an abnormally heavy workload. It certainly appears that Ms Toner was unsympathetic to the claimant’s situation. Ms Toner denied having any difficulty in her working relationship with the claimant.
6. Following this on 24 July 2012, the claimant wrote a letter to the first-named respondent, asking that she should not be signed up for night shifts any longer. She indicated that she was a single parent who needed to take care of a disabled child and also pointed out that she had had two serious accidents at work during night shifts. She specifically said in that letter that she had recently suffered from an inflammation of her wrist (tendonitis) and she believed that this had happened because there was insufficient numbers of staff on night shifts and she had an accident with her wrists when she was the only care assistant on her floor. There does not appear to have been any further investigation of this by the first-named respondent, but the claimant was not placed on night shifts following this written request.
7. The claimant had also written an undated letter to the respondent in relation to Bronagh Donaghy. It is not clear when this letter was written; but there was a date referred to in the letter referring to a meeting with Manager, Jeff Raines, on ‘8/27/12’. If this is the date recorded in the American fashion, we can only assume that this date was 27 August 2012 and therefore the letter must postdate that meeting.
8. Deborah Hawthorne was employed as deputy manager by the first-named respondent. Her evidence was that she initially worked for the first-named respondent as an agency nurse from 18 June 2012 and then started as a direct employee on 18 July 2012. Both the claimant and Ms Porzycka gave evidence that prior to Deborah Hawthorne starting with the first-named respondent, they had been present at a meeting at the nurses’ station when Jeff Raines advised them that Ms Hawthorne would be starting and referred to her as his ‘good friend’. What is clear is that Ms Hawthorne was a reasonably recent addition to the staff of the first-named respondent when the incidents in this case occurred.
9. On 11 August 2012 the claimant and Ms Porzycka were due to start a shift. The other people present on that occasion were Jane Woods, Staff Nurse, Lisa Mullen and another care assistant named Jill. The other nurse on duty that day was named Tiende Mazumba (we were not given the exact spelling of her name). They started the shift at 7.45 am and went to hear the report from the night staff. Just after the report, Jane Woods told the claimant to work in pairs with Jill and Lisa Mullen was to work with Ms Porzycka. The claimant and Marzena Porzycka went to the changing room to leave their handbags there and while doing so, they were speaking in Polish. There were no residents present and the claimant was clear that they did not speak in Polish when there were residents present. Lisa Mullen then came into the changing room. She saw the claimant and Ms Porzycka but did not speak to them. She went to the toilet and then quickly left the changing room. The claimant left immediately after Lisa Mullen and Ms Porzycka then followed the claimant. They were walking along the corridor when the claimant heard Lisa Mullen saying, ‘I hate immigrants’. The claimant’s evidence was that she was shocked by this and she stopped. The claimant said that Lisa Mullen then turned round slightly and said that she had no right to speak in Polish in the whole of Geanann. She then said that the claimant had to work with Jill because she did not understand Marzena Porzycka. The claimant said that it was not up to her. The claimant indicated that after this, Lisa Mullen then went to Jane Woods again and said that she wanted to work with Jill because she did not want to work with Marzena Porzycka as she did not understand her. Jane Woods replied, ‘Work with Barbara then, maybe you understand her’. The claimant said that following this, Lisa Mullen did not pay proper attention to the patients but played with her mobile phone and kept repeating to the claimant that she had no right to speak in Polish. She also asked the claimant why she had come here, as she was taking jobs from local people and that the claimant was complaining about people who were from here. The claimant said that she told Ms Mullen not to raise issues like this while there were residents present. She also indicated that Lisa Mullen was not helping the claimant as she had been directed to do. The claimant also said - and we accept - that Lisa Mullen challenged the way the claimant was caring for patients although the claimant had been working on this floor for much longer than Ms Mullen and was more familiar with the care plans for the patients concerned.
Later that morning the claimant went into the lounge room where Ms Porzycka was with the rest of the patients. Ms Porzycka was upset that there were still quite a number of the patients who were in bed. The claimant had explained to her that she had to do a lot of the work herself because Lisa was playing with her phone. She was upset about this and because her wrists were sore. Jill then came in and when the situation was explained to her, she suggested that the claimant stay in the lounge room, that Jill would work with Lisa Mullen and then Marzena Porzycka would go for a break. When, later on, the claimant went for her break she went to tell Jill and Lisa Mullen that she was doing this. Lisa Mullen then approached the claimant with what the claimant described as ‘an offensive smile’ and started to massage the claimant’s forehead. She said to the claimant, ‘Relax when you’re on your break’ and went on to say the claimant would need the relaxation because she would be working with her (Ms Mullen). The claimant was due to finish her shift at 2.00 pm but stayed to 2.30 pm to help the other members of staff complete the work. These events were denied by Lisa Mullen, whose demeanour and attitude we found to be dismissive of the claimant. Her attitude was, “Why would I say that?” and to dismiss the claimant’s allegations. We did not find her a convincing witness.
10. The claimant said that Lisa Mullen was frequently visited on the upper floor of Geanann Care Home by her colleague, Erin Abernethy, with whom she was friendly. She said that Carolina Lima, who worked on the ground floor, also came upstairs frequently although she had no reason to come upstairs. When she said that she would make a complaint about Lisa Mullen, she indicated that both Lisa Mullen and Erin Abernethy looked at her ‘like trash lying on the floor’. She said that they shrugged and then left.
11. On 12 August 2012, the claimant made a phone call to the nursing home to request a day off on 14 August 2012, (the next day she was due to work) as she had been suffering pain in her wrists. She spoke to Deborah Hawthorne. The claimant explained that her wrists were very sore but she also wanted to talk to her about Lisa Mullen’s behaviour. Deborah Hawthorne said she was sorry about her wrists and to get some rest. The claimant then indicated that she was just about to finish the call when she heard Deborah Hawthorne saying, ‘If you’re sick, just go back home’. Ms Hawthorne’s evidence was that she did not recall this phone call. She said that if she had said anything of this nature, it would have been to the effect that the claimant should go home and rest. The claimant’s reading of this, was that Ms Hawthorne was telling her that she should go back to Poland. It is our finding that there was a comment made by Deborah Hawthorne to the effect that the claimant should ‘go home’. It is not clear to us why, in the course of a telephone conversation and when the claimant was clearly not at work, Ms Hawthorne would say to her ‘go home’ when the claimant was already at home.
12. On the morning of 15 August 2012, the claimant was due to work from 8.00 am but arrived early to receive the report from the night shift as usual about 7.40 am. She recalled that Rebecca Ross and Lena Lockhart were the other nurses on that shift and that there should have been a care assistant called Martin there but he was not present. The claimant also indicated that there was an agency nurse working with them on the shift but she could not recall her name. Because of the pain in her wrists, the claimant had gone to a physiotherapy appointment on 14 August 2012 and the Physio had attached as kinesiotape (which is to decrease inflammation level and strengthen the forearm muscle) on both her arms. The claimant explained that she had these strips of tape on both arms from the elbow to the wrist and had protectors around her wrists as well which had been provided to her at the A&E Department when she had attended there in June 2012. The agency nurse had asked her what had happened to her arms when doing the morning report. When the claimant explained, the nurse then told her to supervise people in the dining room. This was after the claimant had helped the agency nurse to change bandages for a patient and accordingly the nurse asked her to supervise people in the dining room rather than deal with heavy lifting as she could see that the claimant’s arms were painful. The claimant distributed breakfasts in the dining room while Lena Lockhart and Rebecca Ross were transporting patients and getting them dressed. The claimant believed that MMcN, the resident at the centre of these incidents, was dressed by the night staff and was already sitting dressed in the corridor at 7.40 am when the claimant came to work.
13. Between 8.30 am and 9.00 am, Ms Ross and Ms Lockhart were moving residents into the dining room and the claimant was distributing food. The claimant recalled that she had given MMcN porridge in the dining room. After finishing the meal she cleared the tables and the other girls started transporting people into the lounge room. When this work had been done, the agency nurse came to the claimant and asked her to remain in the residents’ lounge room and stay there that day due to her sore arms. The claimant said that in the lounge room on that time there were three or four residents. She recalled that one of them was MMcN who was sitting on the right hand side at the entrance. There was also Mrs Theresa Devine (who suffered from dementia) and her husband, Edward Devine, a retired dentist, was visiting her that morning from approximately 9.30 am. The claimant recalled that she had a conversation with Mr Devine as he was talking about a possible trip to Krakow. He had also noticed the strips on her arms and asked her about them. The other resident in the lounge at that time was Mrs B, the same lady for whom the claimant and the agency nurse had changed bandages earlier.
14. The claimant went for a break at about 11.50 am for 15 minutes and when she came back she went to the lounge room. Her evidence was that shortly after this, Caron Conroy and Deborah Hawthorne came to speak to her and asked to talk to her at the nursing station. They advised the claimant of an allegation of abuse by her and indicated that she was being suspended on full pay. The claimant was shocked by this and asked when she had been abusive and towards whom? She was told, however, that because of the investigation they could not tell her anything.
15. Deborah Hawthorne’s evidence was that earlier that morning, she was involved in training on the upper floor of Geanann Care Home. Bernice Abernethy (a sister of Erin Abernethy) had recently started work at Geanann Care home and was in the process of receiving induction training. She was shadowing a full-time care assistant named Carolina Lima. After looking after some residents downstairs over the breakfast period, they went upstairs to see if the training was on. Ms Abernethy said that they stepped out of the lift on the first floor and were due to turn left to go towards the training room. When they stepped out of the lift, they saw a laundry trolley which was overflowing and sitting on top of the trolley there was a yellow clinical waste bag which was lying open. The trolley was against the wall, opposite the lift. There was also a hoist with legs open sitting nearly in the middle of the corridor. Ms Abernethy indicated that Carolina Lima pointed this out to her and said that it was a hazard and should not be left like that, nor should the trolley be left as it was. The layout of the floor is that, on exiting the lift, if one turned right, it leads to the lounge at the end of the corridor. The corridor is not completely straight, however, Ms Abernethy indicated that she could see in the upstairs lounge that a patient was being very loud and shouting at a care worker. In the statement she made later that morning, she went on to say:-
“the care worker stood over the patient, lifted her by the elbows and in my opinion roughly put her back down in the chair. The patient’s legs were off to the side and so the care worker lifted the patient’s legs under her knees and again roughly threw her legs down onto the floor. The patient was still shouting at the care worker as she walked away. The care worker looked up through the lounge glass and seen myself and ‘B’ looking at her”.
In the statement Ms Abernethy was referred to as ‘Witness A’ and Ms Lima was referred to as ‘Witness B’. Ms Abernethy indicated that as she had only just started work, she did not know the resident or the care worker concerned. In her evidence to the tribunal she indicated that the resident concerned was sitting at the end of the corridor just outside the lounge. She said that she and Ms Lima went down ‘the opposite way’, to the room where the staff training was due to take place. They had a conversation regarding the incident and decided it should be reported to the Residential Manager, Regina Brady. Ms Brady reported the matter to Caron Conroy, who in turn asked each of the two care workers to write statements, which they did in separate rooms. Ms Lima’s contemporaneous statement is not clear as to where exactly the resident was at the time. Ms Lima (who did not give evidence to the industrial tribunal) indicated that the incident occurred at 10.10 am and her statement was written down by Regina Brady. Ms Brady has recorded the statement as occurring at 1315 (presumably 1.15 pm). Ms Abernethy indicated the incident happened at 9.55 am. We do not believe these discrepancies are particularly significant.
16. The claimant’s response was, first of all, that the incident had simply not occurred. Secondly, she indicated that from their position as they exited the lift, Ms Lima and Ms Abernethy did not have a clear view into the lounge, where they initially indicated the incident occurred. Photographs were produced to the tribunal but there was only one of the corridor in question. It was not at all clear and was not taken from the side of the corridor where one would exit the lift. We cannot therefore draw any conclusions from the photographs which were produced to us. Marzena Porzycka gave evidence that as on exiting the lift and turning right, the corridor is not straight. She said it is possible to see the entrance into the lounge but not actually into the lounge. Her evidence was that there are glass panels on either side of the glass door into the lounge, but the wall is a solid wall with a glass panel on top.
17. Having received a report of the incident from Ms Brady, Caron Conroy directed Debbie Hawthorne to go and check the resident concerned at the time. Ms Hawthorne completed the initial observation of the patient at 10.40 am on 15 August. She checked the patient’s blood pressure, temperature and respiratory observations and her comment was that these were within normal range. At that stage, there was no evidence of redness or bruising. The resident did not appear distressed, but Ms Hawthorne indicated that she was shouting out after the member of staff involved in the incident. However, Ms Hawthorne agreed, as did the claimant and Ms Porzycka, that this resident shouted frequently and for no apparent reason as part of her suffering from dementia. Later that day at 4.00 pm, Ms Hawthorne noted that there was no redness or bruising evident. As instructed by Ms Conroy, Ms Hawthorne had also reported the incident to Anne Basketfield, the Care Manager of the Health and Social Care Trust and subsequently contacted the PSNI to report the incident. She advised the PSNI that she had written statements from the two witnesses and that the member of staff involved in the incident had been suspended. She also indicated that she had told the staff witnesses that there would be a police investigation and that they would be asked to make statements. Ms Hawthorne also completed a POVA (Protection of Vulnerable Adults) form and a Reg 30 form for the RQIA, the body concerned with Quality Assurance for residential and nursing care.
18. On 16 August, Debbie Hawthorne checked MMcN, and carried out “body mapping”, where she recorded that the resident appeared to have bruising. On 16 August Debbie Hawthorne recorded bruising to MMcN’s left leg, just below the knee, on the front of the leg. She also noted bruising on the back of both arms just above the wrist. This form was countersigned by Jane Woods. The following day Jane Woods carried out body mapping which noted “purple marks” evident at further points on the back of the resident’s right hand and slightly higher up on her left arm. There appears to have been an error in the recording of Ms Hawthorne’s record of bruising on the second occasion in that she appears to note the initial bruise on the resident’s leg as being on the front of her right shin. Miss Woods records a bruise slightly higher up on the patient’s left shin. Debbie Hawthorne, Jill Shearer (who carried out the disciplinary meeting), and Marzena Porzycka all agreed that bruising could appear after an incident and could take some time to develop. Ms Porzycka, who had worked on the upper floor of Geanann Care Centre for a year and a half and who was familiar with the care of this particular resident, indicated that she felt that in Mrs McN’s case bruising would appear reasonably quickly. She indicated that this resident scratched her skin quite often and there was redness appearing on her skin quite quickly due to that. She also pointed out that the lady was in her 80s and bruised easily. Ms Porzycka confirmed that she too was a qualified nurse of eighteen years’ standing but was working as a Care Assistant since her move to Northern Ireland.
19. Following the claimant’s suspension, Caron Conroy wrote to the claimant to notify her of her suspension on full pay. The letter indicated that the reason for the suspension was to allow the first-named respondent the opportunity to carry out a full investigation into the allegation “that you where (sic) observed to inappropriately move or handle a resident. The inappropriate move was alleged by the staff members to be conductive (sic) of abuse”. She was advised at that stage that she should remain available for meetings as part of the investigation. At this stage Ms Conroy noted that both the staff members concerned had asked for protection under the whistle blowing policy and the claimant was therefore not aware either of the identity of the resident she was alleged to have manhandled or the identity of the staff members who had made the complaint.
Ms Conroy wrote to the claimant on 15 August inviting her to attend an investigatory meeting on 22 August at Geanann Care Centre. The claimant replied on 16 August, indicating that she would not be available from 26 August to 10 September because she was due to go to Poland and had planned two important medical consultations. Ms Conroy agreed that she had met the claimant on 22 August and that minutes had been taken of that meeting but that they were not available and she did not know where they were. Ms Conroy halted the investigation meeting that she was having with the claimant on 22 August because of the claimant’s grievance against Ms Donaghy and Ms Mullen, but clearly the respondent had initially decided to go ahead with an investigation meeting at that date, even though a police investigation was ongoing. Following the meeting, the claimant wrote to Caron Conroy raising complaints about two individuals, namely, Bronagh Donaghy and Lisa Mullen. We deal below with the grievance in the context of the claimant’s allegations of race discrimination.
20. At some point the claimant also wrote to Jeff Raines, the Area Manager at the time, to express her dissatisfaction in the way that her complaints against Coleen Toner, Bronagh Donaghy and Lisa Mullen were treated. She alleges in that letter (which is undated) that these complaints were not taken seriously, in sharp contrast to complaints made by her colleagues against her which she alleges are untrue. She also points out that she was suspended and that the other complaints were not dealt with in such a manner: she believed she was being treated differently due to the fact that she is a foreigner.
21. A couple of the respondents’ witnesses - principally Caron Conroy and Vicki Rundle - indicated that the claimant had been suspended at the direction or request of the PSNI. It appears to us from the oral evidence and documents we have seen that the claimant was suspended by the first-named respondent and the PSNI were then advised of this.
22. Ms Conroy indicated that Susan Harbridge took over the investigation of the claimant’s grievances but Ms Conroy spoke to both Lisa Mullen and Bronagh Donaghy and took statements from them. She indicated that she also had generalised conversations with other staff and no other allegations were mentioned by any staff. She was not clear about exactly to whom she had spoken and specifically whether she had spoken to Marzena Porzycka. Ms Porzycka’s evidence was that no one else had asked her for a statement or spoken to her about the claimant’s allegations regarding Lisa Mullen.
23. The claimant remained suspended while the police investigation was pursued. As part of that investigation, the claimant was interviewed by the police, as were other witnesses. The claimant said that in the course of the investigation she had been asked by Constable Jordan if there were any problems with any other members of staff and she told him that she believed that Carolina Lima had accused her with Erin Abernethy. At that stage the witnesses were anonymous, under the whistle blowing policy. The claimant also indicated in her evidence that on the morning of the incident Carolina Lima (who normally worked on the ground floor and had no reason to be on the upper floor in Geanann House) was upstairs, just wandering around. She indicated that Miss Lima and Erin Abernethy regularly came up to chat to Lisa Mullen and to wander around looking to see what other people were doing. She also alleged that Miss Lima had made unsubstantiated complaints against other members of staff, but there was no other evidence to bear this out. On 2 November 2012, the claimant was invited to a disciplinary meeting. That letter was sent to her by Vicki Rundle and was to discuss the following matters as set out in the letter: “the Police have instructed that you be suspended while an investigation takes place and the length of the investigation was unknown; that you had potentially put the health and safety of service users at risk; that a serious breach of trust and confidence had taken place; and that you are unable to fulfil your contractual obligations resulting in a potential frustration of contract”.
24. The letter set out the claimant’s right to be accompanied and indicated that the format of the hearing would be to confirm the allegations against the claimant, consider all the evidence, listen to the claimant’s response, adjourn the hearing to consider what action should be taken and then reconvene the hearing to advise her of the decision. She was advised that one possible outcome of the meeting (if found to be guilty of these offences) may be dismissal from the company with notice for “some other substantial reason”. Miss Rundle’s evidence to the tribunal was that there was lack of certainty at that stage as to the likely duration of the police investigation and that they could not leave the claimant suspended for 12 months as it was not viable to keep her on full pay. She seemed to infer that there had been a previous incident involving other staff, when a police investigation had taken approximately 12 months. Her comment to the tribunal was, “It would have been frustration of contract if we had to keep her suspended for 12 months”. She also indicated that the first-named respondent was looking at dismissing the claimant for “some other substantial reason” i.e. frustration of contract, although at this stage the claimant had been suspended for less than three months.
25. There was a meeting on 12 November, notes of which appeared in the bundle of documents produced to us, and were erroneously dated 12 September 2012. The claimant raised an issue regarding a translator and there seemed to be confusion as to whether the translator should be supplied by the employer or by the claimant. She was clear that she could not afford to pay an interpreter. The claimant agreed to go ahead and at the tribunal hearing she confirmed that she had been content enough to do this because her Union representative (Alan Perry) was with her and she trusted him. The Union representative asked at the meeting what was the outcome of the grievance raised by the claimant in August. The answer was that a decision had not been made on that yet and the Union representative asked that the meeting should not go ahead until the grievance was completed. He also asked about the investigation, and asked that the disciplinary meeting should not go ahead until the police investigation was completed. Miss Rundle’s evidence was that Mr Alan Perry, the Union representative was very “obstructive”. She said that she was new in the role and did not feel it appropriate to proceed, so she passed the matter on to a colleague. Mr Perry challenged the lack of an interpreter, the company’s failure to delay any disciplinary procedure until the police investigation was completed and the claimant herself raised the question that no one had told her any details of why she was suspended. This indicates that, even in advance of a decision by the Police on how they would proceed with the matter, the company had decided to proceed potentially with the dismissal of the claimant for frustration of contract, due to the fact that she was suspended and therefore unable to work for them. The letter of invitation to the disciplinary meeting is in fact somewhat unclear because it appears to include the allegations of misconduct regarding the claimant potentially putting “the health and safety of service users at risk”.
On 27 November, the Public Prosecution Service wrote to the claimant to advise her that a decision had been taken not to prosecute her in relation to the incident. On 3 December 2012, the claimant was interviewed by Jeff Raines (with Damian McDonald present as note taker) as part of an investigation into the 15 August incident. The claimant was on her own at this meeting. Mr Raines asked the claimant if her translator was coming and she replied that she felt that work needed to organise a translator. It was agreed that they would proceed with the meeting to see how they got on. At this meeting, the claimant pointed out that her wrists were sore in August. It was put to the claimant by Mr Raines that she had pulled a resident out of the chair and then “slammed her back into it again”. The claimant denied that this had happened, she indicated that the resident had been dressed by staff on nightshift. She pointed out that her wrists were sore and that they were short-staffed. She indicated that she could not take out MMcN as she was not strong enough. She also noted the other individuals who were present and indicated that Mr Devlin had asked her what happened to her wrists, so his name was mentioned at this point. She also said, “This is revenge, stupid revenge”. When Mr Raines asked her why would they make that up, her answer was, “They don’t like me here, it’s revenge”. Mr Raines indicated to the claimant that the incident occurred at about 12.00 o’clock (which was clearly wrong). The claimant said that she was in the upstairs lunch room talking to Mr Devlin and keeping an eye on Mrs Devlin. She confirmed that she had given MMcN her porridge earlier. She went on to say that it usually needed three people to move MMcN but the claimant had a hurt wrist and a hurt back on that day and that she had not touched the resident concerned. She also indicated that she was almost sure that Lena Lockhart had moved MMcN, not her.
26. Following this, the claimant was invited to a disciplinary meeting at Oakmount Care Home in Bangor. This meeting was subsequently rescheduled for 18 December and this time the claimant was told that she was being investigated for gross misconduct in that she failed to carry out the correct moving and handling procedures when dealing with a resident, thus being tantamount to abuse. It was also alleged that she had potentially put the health and safety of service users at risk. She was advised of her right to be accompanied and advised of the format of the meeting. She was also provided with documents including copies of the statements provided by witnesses A and B, a statement from Deborah Hawthorne, copies of the body maps concerned and the respondent’s disciplinary policy. There was a record of interview notes with witness A (Miss Abernethy) but it was indicated that there had been no further investigation meeting with witness B. The notes of the meeting in relation to witness A were notes of a telephone conversation which Jeff Raines had had with Miss Abernethy, when she effectively confirmed that she had seen the claimant inappropriately handling a resident in the lounge of the care home. The statement twice refers to the incident occurring in the lounge. The statement also says, “Miss Klosinska was unable to see either witness as her vision of them was obscured by a laundry basket in the corridor, however witness A could clearly see into the lounge via a panel window”. There is no indication that the exact location of the resident on 15 August or the extent of the views to the lounge from the lift were checked by Mr Raines.
27. The claimant attended the disciplinary meeting on 18 December with her Union representative. At the outset of the meeting the claimant explained that she was currently on medication for depression. Ms Shearer explained that she had checked the notes provided, the rotas and reviewed the witness statements, she also indicated that she had not discussed this matter with too many people. In the course of the meeting, she checked that the claimant was aware of the appropriate safeguarding and handling procedures and the training which she had had, including an NVQ Level 3 in Social Care. The claimant gave an account of MMcN’s usual behaviour, the fact that she could be aggressive and shouted on occasion and that the claimant needed to keep an eye on her because of her bad mobility. She referred to the fact that MMcN had been sitting in a wheelchair in the corridor and that then at some point she was in the lounge. In the course of the interview the claimant referred to the fact that there was a bad atmosphere in the home, that there had been an incident with Lisa Mullen and that she had indicated that she would report Lisa Mullen, but Ms Mullen reported her first. Ms Shearer indicated that Lisa Mullen was not the person who reported the claimant and that the whistle blowing policy had been used. The claimant was asked by Miss Shearer if there was a record of her tendonitis with the first-named respondent. The claimant indicated that she had not told anyone formally at work because she was so busy but pointed out that she had told the Agency Nurse on 15 August. She had of course already handed in a sick line in April, mentioned tendonitis in her letter about night shifts and told Deborah Hawthorne about it on 12 August. The claimant also indicated that Rebecca Ross and Lena Lockhart had been on shift that day and referred to the patches on her arm. The claimant raised concerns regarding the accuracy of the witness statements which had been given and the accuracy of the body map. Alan Perry expressed his concerns about people “hiding behind” a whistle blowing policy. He also pointed out to Miss Shearer that she did not know the two people involved and that she had not been to the care home. The claimant also said that she could not lift MMcN by the elbow or wrist as this was not an actual position and that if she had done that, MMcN would have broken bones. The claimant also made the assertion that MMcN bruised quickly and queried whether it would have taken 24 hours or thereabouts for bruises to appear.
28. Following the disciplinary meeting, Ms Shearer indicated that she said she wanted to check the resident’s vulnerability and issues round any subsequent falls. She also wanted to check the resident’s weight as the claimant had indicated that the resident weighed 70 kilos. When this was checked, it was found that the resident weighed between 40 and 45 kilos. Ms Shearer wanted to check the body mapping which had been done and was satisfied that this had been properly recorded. She also said from her lengthy experience as a nurse that soft tissue bruising can develop over time which is why body mapping is carried out by a qualified nurse. She was satisfied that the bruising recorded on the resident mirrored what the witnesses had put in their statements. Ms Shearer also noted that it was recorded that the resident concerned was shouting after Miss Klosinska, and she was aware that the resident concerned had dementia.
29. Following this meeting, Ms Shearer wrote to the claimant on 31 December to advise her that she was being dismissed. The letter includes two sentences which read as follows:-
“With regards to the assertion, at no point during the investigation or the disciplinary have you expressly denied the allegation. Rather both yourself and your union representative attempted to claim that the anonymity of the witnesses implied that this was a false accusation.”
30. This is at variance with the notes recorded by Jeff Raines at the investigatory meeting. Ms Shearer also indicates that there were two witnesses who had witnessed the alleged behaviour. She said that one of the witnesses had been employed only recently and therefore had no knowledge of any alleged unit politics between upstairs and downstairs. She indicated that she had no reason to believe they had made a false or vexatious allegation against her. This ignores the concerns raised by the claimant about the close relationship between Lisa Mullen and Erin Abernethy, and that Erin Abernethy and Bernice Abernethy were sisters. She went on to say that the other witness was a long-serving member of staff who was a good diligent worker and had never made any complaints in the past. The claimant was advised that she was being summarily dismissed and that she had the right to appeal.
31. Between the date of the disciplinary meeting and the outcome letter, the claimant had written a three page letter dated 27 December 2012, addressed to Jeff Raines. This letter set out the claimant’s account of events and raised her concerns about the disciplinary procedure. Ms Shearer indicated that she had received this letter, but had not taken it into account in reaching her decision. None of the issues raised by the claimant at the investigatory or disciplinary meeting was investigated any further.
32. The claimant was advised of her right to appeal and did so. Her appeal was heard by Jenny Delic, the Human Resources Director. The claimant’s grounds of appeal were that the decision to dismiss her was too harsh, that she did not believe a thorough investigation had been carried out and she also alleged that she had been discriminated against because she was Polish. She also pointed out that contrary to what Jill Shearer had said, the claimant had indeed denied the allegation and she also suggested that the fact that the police had said there should be no prosecution should prove she was innocent. The appeal was lodged on 7 January 2013. Miss Delic wrote back to the claimant on 14 January arranging an appeal meeting for 12 February and the appeal was dealt with on that date. Miss Delic’s evidence was that she had not read the file in detail before going in to hear the appeal as she wanted to go with an open mind. At the meeting, where the claimant was accompanied by Alan Perry, she again clearly made the case that she had not assaulted the resident as suggested. She raised the issue that she had tendonitis and would not have risked further injury to herself and that she would not have moved the resident because it always takes two people to move her. She also noted the other Care Assistants who had been on duty that day, she pointed out the difficulties she had had with Debbie Hawthorne in relation to time off and Ms Hawthorne wanting the claimant to work nightshifts. She also pointed out the incident which had occurred with Lisa Mullen, although not in the same detail as she had done in her grievance. Alan Perry pointed out that the initial disciplinary procedure had started before the police investigation had concluded, which indicated that the company had already taken a view that they wanted to dismiss the claimant. Mr Perry made it clear that in his view the company should not be considering dismissal until the police had concluded their investigation and that that had “set alarm bells ringing” that the company was prepared to consider dismissing the claimant without an investigation being completed. The point was also made to Miss Delic that there was “an element” in the home which did not want the claimant there.
33. Miss Delic wrote to the claimant on 22 February, turning down her appeal. In relation to the comments made by the claimant in relation to discrimination on grounds of race, she indicated, “There is no evidence that any type of discrimination goes on within the home”. She also pointed out the difference between the criminal standard of proof and employment law, where there is a need for belief on the balance of probabilities. Over and above that, she pointed out the responsibility of the company to care for vulnerable adults in their care and the duty of care to residents. She believed that the alleged incident had been dealt with in accordance with the company’s policies and procedures and the safeguarding procedure.
The claimant was certified as sick for about six weeks following her dismissal. She received Income Support of £13.25 for one week and then received £45.15 from 2 February until 27 May, when she found other work. Her average pay while employed by the first respondent was £203.99 gross, £183.15 net per week. In her new employment, her average pay is £150 gross, £170.52 net. (We assume the net is greater than the gross due to tax credits).
THE RELEVANT LAW
Unfair Dismissal
34. The relevant law in relation to unfair dismissal is to be found in Articles 126 and following of the Employment Rights (Northern Ireland) Order 1996 (as amended). In particular in this case we refer to Article 130 which provides as follows:-
“130 (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 (or, 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) A reason falls within this paragraph if it -
(a) relates to the capability or qualifications of the employee for performing work of the kind which he was employed by the employer to do
(b) relates to the conduct of the employee
(ba) is the retirement of the employee;
(c) is that the employee was redundant or;
(d) is that the employee could not continue to work in the position which he held without contravention (either on his part of on that of his employer) of a duty or restriction imposed by or under a statutory provision …
(3) (a) In any case where the employer has fulfilled the requirements of paragraph (1) by showing that the reason (or the principal reason) for the dismissal is retirement of the employee, the question whether the dismissal is fair or unfair shall be determined in accordance with Article 130ZG.
(4) In any other case where the employer has fulfilled the requirements of paragraph (1) the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) -
(a) depends on whether in the circumstances (including the size of the administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employer, and
(b) shall be determined in accordance with equity and the substantial merits of the case.”
35. The representative for the respondent referred us to a number of authorities in relation to this matter. The leading authority in Northern Ireland is the case of Patrick Joseph Rogan v South Eastern Health and Social Care Trust [2009] NICA 47. Like the present case, that case related to a case of alleged misconduct on the part of the claimant for which he was subsequently dismissed for gross misconduct.
36. The Court of Appeal considered the case law and in particular the previous decision of the Northern Ireland Court of Appeal in Dobbin v City Bus Limited where they approved the decisions of the Court of Appeal of England and Wales in British Home Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1980] ICR 17 as refined and explained in the judgments of Lord Justice Mummery LJ in Foley v Post Office and HSBC Bank plc (formerly Midland Bank plc) v Madden [2000] ICR 1283 and Sainsbury’s Supermarkets Ltd v Hitt [2003] ICR 111.
37. The nub of the test which must be applied in such cases is to consider whether an employer has met a three stage test as stated by Arnold J in British Home Stores:-
“First of all there must be established by the employer the fact of that belief (i.e. the belief in the misconduct); that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds on which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those two matters, we think, who must not be examined further. It is not relevant, as we think that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance to see whether it was the sort of material, objectively considered which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only on the basis of being “sure” as it is now said more normally in a criminal context, or, to use the old fashioned term such as to put the matter “beyond reasonable doubt”. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, the conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.”
38. The Court in Rogan cited further with approval the opinion of Lord Carswell in Re D [2008] UKHL 33 where it is noted that the more serious the allegation, the greater the need for more cogent evidence to overcome the unlikelihood of what is alleged. While bearing in mind that the standard of proof required in a civil case was finite and unvarying, Lord Carswell indicated that there may be situations which make heightened examination necessary, for example, given the seriousness of the allegation to be proved or in some cases the consequences which could flow from acceptance of proof of the relevant fact. This approach has been endorsed recently by Lord Justice Elias in his detailed judgment in the case of Turner v East Midland Trains Ltd [2012] EWCA Civ 1470. At the start of his judgment Lord Justice Elias restated the established principle, that an employment tribunal has to determine whether an employer has acted fairly within the meaning of the English equivalent of Article 130 of the Employment Rights (Northern Ireland) Order 1996 by applying what is colloquially known as the “band of reasonable responses” test. He repeated that it was not for the tribunal to substitute its own view for that of a reasonable employer. He made two important observations about the test. The first was that it must not be confused with the classic Wednesbury test whereby a court can interfere with a substantive decision of an administrator only if it is perverse. The second observation is that it is relevant to have regard to the nature and consequences of the allegations which are all part of the circumstances of the case. He referred to his judgment in A v B [2003] IRLR 405 where he said, “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 enquires should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him”. It was also noted in Sainsbury’s Supermarkets Ltd v Hitt [2003] IRLR 23 by the Court of Appeal in England and Wales that the “band of reasonable responses” test does not simply apply to whether the sanction of dismissal was permissible. It bears on all aspects of the dismissal process including whether the pre-dismissal investigation was fair and appropriate.
Race Discrimination
39. The relevant legislation is to be found in Article 3 of the Race Relations (Northern Ireland) Order 1997 which provides as follows:-
3 (1) A person discriminates against another in any circumstances relevant for the purpose of this Order if -
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but -
(i) which is such that the proportion of persons of the same racial group as that other who can comply with it is considerably smaller than the proportion of persons not of that racial group who could comply with it; and
(ii) which he cannot show to be justifiable irrespective of the colour, race, nationality or ethnic or national origin to the person to whom it is applied; and
(iii) which is to the detriment of that other because he cannot comply with it.
40. In this regard Mr Morton referred us to the judgment of Mummery LJ in Martins v Marks and Spencer [1998] IRLR 326 where Lord Justice Mummery LJ set out a claimant’s comparator in the direct race discrimination case. Lord Justice Mummery LJ stated the position as follows:-
“The first part of the question is: was Ms Martins treated by Marks and Spencer less favourably than they treated or would treat another person of a different racial group in the same or relatively similar circumstances? The answer to this question requires a comparison to be made between the treatment of Ms Martins and the treatment of a 27 year old applicant of a different racial group with similar experience and qualifications applying for the same job. The tribunal did not attempt to make the compulsory comparison”.
41. With all due respect to the submission made and indeed to the judgment of the learned judge, it seems to us that in recent years there has been a movement away from using a direct comparator to considering, instead, particularly where there is no obvious direct comparator, the reason for the treatment afforded to the complainant.
42. We refer first to the judgment of Lord Nicholls in Shamoon v Chief Constable of the RUC (2003) IRLR 285 HL, where he noted that tribunals usually considered first whether the claimant had received less favourable treatment than an appropriate comparator (“the less favourable treatment issue”) and then, if so, secondly, whether that less favourable treatment was on the proscribed ground (“the reason why issue”). He pointed out that the first of the issues often could not have been decided without first deciding the reason why issue, so that the two were inextricably linked. He went on to say,
“This analysis seems to me to point to the conclusion that employment tribunals may sometimes be able to avoid arid and confusing disputes about the identification of the appropriate comparator by concentrating primarily on why the claimant was treated as she was. Was it on the proscribed ground which is the foundation of the application?”
In a line of case law stemming from Shamoon, the EAT and the Court of Appeal in England and Wales have moved away from the focus on comparators (whether actual or hypothetical) and instead focussed on the fundamental question of the reason for the act complained of (per Underhill in Amnesty International v Ahmed [2009] IRLR 884). It was also stressed by Mummery LJ in Aylett v Stockton-on-Tees Borough Council [2010] IRLR 994CA that for tribunals there is “essentially a single question: did the claimant, on the proscribed ground receive less favourable treatment than others?” (para 41).
43. In this case the claimant has alleged that she was treated in a certain way by a number of her colleagues and by her employer because she was of Polish nationality. She did not adduce evidence to show that she was treated differently to local workers, but instead that she had been on the receiving end of what she saw as unfair treatment because of her nationality.
Reasons and Decision
44. (1) Unfair Dismissal
In relation to the dismissal of the claimant, we appreciate that the allegations made against her were of a very serious nature and that the employer had an obligation to investigate these matters carefully, both for the welfare of the residents concerned and for its reputation as the owner and manager of residential and care homes. We acknowledge, as the claimant did, that the appropriate steps of the statutory disciplinary and dismissal procedures had been followed. The respondent’s disciplinary procedure was not opened to us apart from a reference by Ms Rundle to a requirement to ensure that 48 hours notice was given of a disciplinary meeting.
(2) There are a number of aspects of the procedure however which have troubled us. We were not made aware of any previous disciplinary proceedings against the claimant and we therefore assume that she had a clear disciplinary record at the time of the incident in question. Caron Conroy, who was the Quality Manager and who was at the nursing home on the day the incident occurred, gave evidence in relation to the appropriate procedure to be followed. The main issues which the claimant raised in relation to the procedure were as follows. First she alleged that she had been unable to present her case properly because she had not been provided with an interpreter by the respondent. She said that she could not afford to provide an interpreter herself, but believed that she had not been able to present her case properly and fully. Secondly, the claimant denied that the incident had occurred throughout the process. The claimant alleged that the allegations made against her were untrue and that they had been made by Carolina Lima and Erin Abernethy (as she assumed at that stage) because she had told Lisa Mullen in the presence of Erin Abernethy that she was going to report racist comments made by Lisa Mullen. The matter was investigated fully by the police, who decided not to proceed with any prosecution of the claimant.
(3) The claimant also said at the tribunal that other people had been suspended or accused of similar incidents but not disciplined and certainly not dismissed. This was not raised by her at any point during the disciplinary procedure and we had no other evidence whatsoever of it.
45. The main focus of our concern in relation to this matter is the adequacy of the investigation carried out by the employer is twofold:-
(a) the issue of providing an interpreter.
(b) the adequacy of the investigation carried out by the employer.
(a) The provision of an interpreter
We have considered this matter carefully and it is our conclusion that the lack of an interpreter did not render the procedure unfair in this case. The employer was aware that the claimant had worked for the first-named respondent for almost three years. While it is quite possible for someone to live in a country and not learn the language, Mr Raines, Mrs Shearer and Miss Delic, together with Miss Rundle at different stages of the procedure formed the impression that the claimant understood the procedure and the importance of it. That said, we formed the impression at the hearing that while the claimant understood most of what was going on very well, she had perhaps more difficulty in expressing herself orally. It is important that employers take such matters on board. We refer to the Labour Relations Agency’s Code of Practice on disciplinary and dismissal matters where it is pointed out that an employer must be careful to ensure that they do not unlawfully discriminate against employees on grounds of race, sex, religion or political belief, etc, in the processes and procedures which they adopt. In this case, the employer was aware that the claimant had undergone a number of training courses while working for the respondent, in particular, she had completed an NVQ Level 3 in Social Care. This required the claimant to do a certain amount of written work and on-line learning. The claimant’s response when questioned about this was that she had typed her work in Polish on her computer and then used an interpretive Google programme to translate her work into English. The same applied to a number of letters she had written. While there were some misunderstandings in relation to the content of her letters, there was no real reason why the claimant could not have presented a written submission at the various disciplinary meetings she attended, if she had wished to do so. We do not think that there was an obligation on the employer in this case to provide an interpreter. This was a case where the employer believed, on reasonable grounds, that the claimant had a good understanding of English.
(b) The adequacy of the investigation
This in our view is a more complex matter. The employer was faced with statements made by two members of staff indicating that the claimant had been seen manhandling an elderly resident who suffered from dementia. The resident concerned did not appear to be injured in any way at the time or shortly after it, but she did develop bruising the following day. Although the claimant disputed that the location of the bruising was consistent with the allegations made against her, there was nevertheless bruising in the lower part of the resident’s arms and on the front part of her legs.
46. The respondent appears not to have considered the protests made by the claimant right at the outset where she indicated to Jeff Raines that the incident had not happened and that she believed this was “revenge” on the part of some of her colleagues. She also referred to other people who had been rota’ed to work with her that morning, in particular, the agency nurse who had asked her to keep an eye on the residents in the lounge because of the state of the claimant’s hands and arms. No one interviewed the agency nurse, or Rebecca Ross and Lena Lockhart. None of these individuals appears to have been interviewed by Mr Raines in the course of his investigation, or by Ms Conroy who said that she made “general enquiries” when making her preliminary enquiries. The claimant also referred to Mr Devlin who was in the lounge that day and was a regular visitor to the home where his wife was a patient. The claimant was aware that he was a retired dentist and no doubt would have been aware of the responsibilities of the nursing home in terms of the care of residents. The claimant was clear that he was in the lounge at 9.30 am and that he was there for some time, but no effort appears to have been made to discuss the matter with him. Carolina Lima was not interviewed by Jeff Raines as part of this investigation and there was no reason given for this, although she was still working for the first respondent at the time. In spite of the fact that the agency nurse appears to have noticed the claimant’s bandages, that Marzena Porzycka confirmed that the claimant had strips of bandage on her arms and the claimant herself indicated that she had discussed her tendonitis with Deborah Hawthorne, no one appears to have considered whether in fact the claimant would have been fit to lift the resident as was alleged.
47. We have considered carefully the case law in relation to this matter and in particular the case of Sainsbury’s Supermarkets Ltd v Hitt [2002] EWCA Civ 1588. In that case Mr Hitt was dismissed for gross misconduct following a disciplinary hearing which had been adjourned for two weeks to enable his defence (that stolen razorblades had been planted in his locker) to be investigated further. His employer had questioned other relevant staff members and checked whether anyone else had keys which might open his locker and their movements at the time. There was an appeal hearing which was unsuccessful. The majority of the Employment Tribunal considered that Mr Hitt’s claim that someone else had put the razorblades in his locker had not been adequately investigated. The employer appealed, but they were not successful at the Employment Appeal Tribunal. In the Court of Appeal however Lord Justice Mummery, clarifying his judgment in Madden confirmed the correct test for an Employment Tribunal to apply in such cases. They must not substitute their own opinion as to what was a reasonable and adequate investigation instead they must apply the objective standard of the reasonable employer as to what was a reasonable investigation.
48. The Courts have also recognised that there is a particular difficulty where an employer is relying on anonymous informants, or where they are relying on “whistle blowers”. Guidance was given in the case of Linfood Cash and Carry Ltd v Thomson [1989] IRLR 235 by the Employment Appeal Tribunal. While it is noted that these are guidelines and a failure to follow them in every case will not necessarily be to the dismissal being unfair, it is perhaps relevant to note a few of the points made by Mr Justice Wood in that case. While emphasising that every case must depend on its facts and circumstances may vary widely, it was noted that information should be reduced to writing in statements and that these statements should initially be taken without regard to the fact that they may need to be redacted to prevent identification. It was also noted that various matters would be important such as the time, date and place of each observation, the opportunity and ability to observe clearly and with accuracy and in particular whether the informant has suffered at the hands of the accused or has any other reason to fabricate, whether for personal grudge or any other reason or principle. They noted that corroboration was clearly desirable. They also emphasised that if the informant was not prepared to attend a disciplinary hearing then they considered it desirable that the member of management responsible for the disciplinary hearing should himself interview the informant and satisfy himself as to what weight was to be given to the information.
49. In this case, it seems to us that the employer did not consider whether the fact that the claimant was unaware of the identity of her accusers was at all relevant in allowing her to answer the allegations put to her. The claimant did indeed accuse Lisa Mullen of having accused her and this was not correct. It appears however that she did indicate to the Police at least she thought that Carolina Lima had accused her and indicated that she thought Ms Lima had wrongly accused others.
50. As regards the adequacy of the investigation, the claimant told both Jeff Raines and Miss Shearer that she believed that people within the nursing home did not like her and that this was “revenge”. She had also lodged a grievance in relation to Lisa Mullen at the time. While other staff within the nursing home may have been aware of some tension between the claimant and Ms Mullen and Erin Abernethy, this was not investigated in any way, no one spoke to the agency nurse on duty at the nursing home to check if she had indeed instructed the claimant to work in the lounge and not to be involved in the lifting or moving of residents because of her tendonitis difficulties. No one interviewed any of the other staff who were on duty that day to see if they had seen anything. Carolina Lima was not interviewed by Jeff Raines when he was carrying out his investigation, although there was no explanation given for this as it appears that she was still working for the respondent at the time and indeed was still working for the first-named respondent at the date of the hearing.
51. It appears that the respondent accepted the statements given by Bernice Abernethy and Carolina Lima at face value. Miss Shearer did not check the veracity of those statements by visiting the scene to check whether or not they could actually have seen the resident in the lounge from their position as they exited the lift, although this was also challenged by the claimant as a way of disputing the truthfulness of their statements. Miss Shearer seems to have relied purely and simply on the fact that there were two statements and evidence of bruising to the respondent. No check appears to have been done as to who else attended to the resident concerned during the day of the 15th, were to check with the staff nurse on duty as to who had been responsible for getting MMcN up and dressed that morning or moving her later in the day if this applied.
52. We cannot say what the outcome would have been if these further interviews had been carried out, but it is possible that it would have been completely different and that the claimant would not have been dismissed. A majority of us consider that, given the seriousness of the allegations made against the claimant and the seriousness of the consequences for her in that she would lose her job if the allegations were proven, these further steps should have been taken to complete the investigation. The minority member of the tribunal considers that the steps taken by the first-named respondent were adequate. Contrary to what Ms Shearer said, the claimant consistently denied the incident occurred. We believe that the matters raised by the claimant and which, if established, would have weighed in her favour were not properly investigated. We are very conscious that we must not substitute with our view of a reasonable investigation for that carried out by the employer in this case, but we consider that an objective process would require a reasonable employer to look into the points raised by the claimant in her defence and this the employer failed to do.
53. As a result we do not believe that the employer had a reasonable basis on which to form the view that the claimant was guilty of the allegations made against her. It follows that dismissal of the claimant was not within the band of reasonable responses in this case, and so we find that the claimant was unfairly dismissed. We stress that this has been a difficult decision to reach and that we reach it by a majority. Our finding, however, is that the claimant was unfairly dismissed.
54. We are also conscious that the claimant is no longer working as a Care Assistant. We did not hear any evidence as to whether her opportunities to work within this sector were in any way affected by her dismissal by the first-named respondent. We are aware however, that in a relatively small town such as Dungannon it is quite possible that dismissal for gross misconduct from one care home may well affect the claimant’s ability to find similar employment in another. It certainly would put the claimant at a disadvantage in seeking a reference from the first-named respondent.
55. The claimant gave evidence that she was certified as sick for six weeks in January and February 2013. She was in receipt of Jobseeker's Allowance for a number of weeks until she found work commencing on 25 May 2013. This is part-time work working for a packing factory. She also explained that she is on a waiting list for employment at another factory.
56. We order the first-named respondent to pay the claimant the following amounts:-
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The claimant’s pay with the first respondent was: |
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£203.99 |
Gross |
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£183.15 |
Net per week |
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In her new job, the claimant’s average pay has been: |
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£150.00 |
Gross, |
£170.52 |
Net per week |
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BASIC AWARD |
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25 January 2010 à 31 December 2012 (2 Years Service) |
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Age: 38 (at date of dismissal) £203.99 x 2 x 1 = |
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£407.98 |
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COMPENSATORY AWARD: |
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The claimant was sick for 6 Weeks from 1 January 2013 à 12 February 2013 |
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She was out of Work from 12 February 2013 à 27 May 2013. £183.15 x 15 Weeks = |
£2,747.25 |
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Ongoing loss from 27 May à Date of hearing: 25 October 2013 |
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(£183.15 - £170.52 = £12.63) x 22 Weeks = |
£277.86 |
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Future Loss |
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We consider it just and equitable to award 13 Weeks’ pay for future loss. £12.63 x 13 = |
£164.19 |
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Loss of statutory rights |
£500.00 |
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Compensatory Award |
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£3,689.30 |
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Total Award: |
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£4,097.28 |
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Income Support: |
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£13.25 for one week |
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£45.15 from 2 February 2013 à 27 May 2013 |
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9 February à 27 May - 15 Weeks x £45.15 = |
£677.25 |
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This is a relevant decision for the purpose of the recoupment regulations.
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The protected period is from 25 January 2013 à 27 May 2013.
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The Compensatory Award exceeds the protected amount by £3,012.05.
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Race Discrimination
57. We have considered carefully the allegations made by the claimant against her colleagues and against the first-named respondent in relation to how they dealt with her complaints of race discrimination.
58. We listened carefully to the allegations which the claimant made in relation to the allegations against Coleen Toner. We can appreciate that the claimant felt upset and distressed because she was not being given help by Miss Toner, as she sought and she was struggling at that stage with tendonitis in her arms. However, we can find no evidence of race discrimination in the way that Miss Toner behaved towards her. Similarly, in relation to Erin Abernethy, the claimant refers to Miss Abernethy looking at her “in a scornful way” and refers to her manner. Indeed we saw a rather unfortunate display of Miss Abernethy’s manner in her attitude towards the tribunal and her manner responding to questions. However, we could not see that there was any direct evidence of race discrimination in her manner.
59. In relation to Deborah Hawthorne’s behaviour towards the claimant, we find that there was a telephone conversation between the claimant and Deborah Hawthorne on 12 August when the claimant indicated that she was having some difficulty with tendonitis in her wrists. Miss Hawthorne indicated that she could not recall this discussion while asked about it at the tribunal. We find this surprising, since Miss Hawthorne’s recollection of other events around that time appears to have been excellent. As regards to the specific exchange when Deborah Hawthorne is alleged by the claimant to have told her, “If you are sick just go back home”. We accept that this was said, but we were not sure or clear that it was a racist comment.
60. The claimant’s allegations against Bronagh Donaghy were withdrawn and this leaves the incident with Lisa Mullen. Ms Mullen in her evidence to the tribunal completely denied that any incident had occurred where she had “told off” the claimant and Marzena Porzycka about them speaking Polish and where she had said, “I hate immigrants”. She also strongly denied that she had ever said anything to the claimant along the lines that she hated immigrants because they came and took jobs which should be here for other people. We did not find Ms Mullen to be a credible witness. Indeed, we found her attitude to be truculent and at times arrogant. Having listened to the claimant’s evidence and also having listened to the evidence of Ms Porzycka, we accept that this incident happened, that Ms Mullen refused to work with Ms Porzycka, because she said she could not understand her, and that she was rude and aggressive and racist in her manner to both the claimant and Ms Porzycka. When it was put to Ms Porzycka as to why she had not complained about the matter, her reply was that she was afraid to do so: she indicated that she was a single parent and that she needed the work. It was also clear to us that Ms Porzycka, a trained nurse of many years’ experience, was extremely competent in her manner but did not have confidence that she would be believed if she made a complaint in relation to Ms Mullen. This is an appalling state of affairs and should not be tolerated by any employer. Ms Porzycka made the observation that Ms Mullen’s attitude to her and the claimant was completely different to her attitude to other local members of staff, and accordingly it is our finding that Ms Mullen acted in this way towards the claimant and Ms Porzycka because they were Polish. No evidence was adduced in relation to the respondent’s policy or training of staff in relation to matters such as race discrimination or of any induction in relation to a policy regarding Dignity at Work or racial harassment. On that basis, we find that the respondent has not discharged its duty by taking all reasonable steps to ensure that staff are trained in such issues and therefore that the first-named respondent is vicariously liable for the acts of its employees under the Race Relations (Northern Ireland) Order 1997.
61. The final matter which is to be considered is in relation to the way that the respondent addressed the claimant’s grievances, in particular the grievance in relation to Lisa Mullen’s behaviour. The claimant lodged her grievance in relation to Lisa Mullen’s behaviour on or about 24 August 2012. It appears that little or no action was taken about this for a number of months. By the time the matter was considered further, the claimant had already been suspended from her post and it seems likely that this was common knowledge at her workplace. A statement from Lisa Mullen dated 2 November 2011, completely denying any of the allegations made by the claimant was taken by Caron Conroy. A statement was also taken from Bronagh Donaghy dated 12 December 2012 in which she agreed that she and the claimant had had an argument, but not that she had behaved in any racist way towards the claimant. No statement appears to have been taken from Coleen Toner in relation to the allegations made by the claimant against her. On 6 December 2012 Ms Conroy wrote to the claimant indicating that she was unable to find any evidence that the claimant’s allegations had been substantiated and therefore she was not upholding the grievance. She had not spoken to Ms Porzycka in relation to the allegations made against Lisa Mullen, nor had she spoken to Jane Woods, the nurse who was in charge of the shift on that occasion. It is possible that if she had done so, she would have come to a different conclusion. The claimant was not initially told of her right to appeal in relation to the grievance, but she did subsequently appeal and the appeal was heard on 27 February by Vicki Rundle. The claimant noted that she was not happy with the result of the grievance as it has taken too long and witnesses had not been interviewed. Vicki Rundle upheld the original decision in her outcome letter dated 8 March 2013.
62. It is quite outrageous that a grievance of this nature (which was in fact connected with the disciplinary matter) was not dealt with more promptly and more thoroughly. It appears from the documents which we have that once the claimant had made her complaint, Miss Conroy confined her investigation only to the people the claimant had complained about. Their denials of the claimant’s allegations were accepted at face value, and no further investigation was carried out. It is perhaps not surprising that Ms Porzycka felt she could not complain. She indicated that she was aware that the claimant had complained on a number of occasions but had got nowhere. In a multicultural society such as Northern Ireland has now become, it is essential that all nationalities can see that they are valued equally, otherwise this allows scope for insidious racism and discrimination to thrive.
63. We have considered carefully the award which should be made in this case. We have no doubt that Lisa Mullen’s behaviour caused distress to the claimant, as did the failure of the employer to properly investigate the allegations. We believe that it is at the top end of the lowest band of Vento and accordingly we award the sum of £5,500.00 by way of compensation for injury to feelings.
64. This is a relevant decision for the purposes of the Industrial Tribunals (Interest) Order (Northern Ireland) 1990.
Chairman:
Date and place of hearing: 21, 22, 23, 24 and 25 October 2013, Belfast.
Date decision recorded in register and issued to parties: