Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF:    1258/13

 

 

 

CLAIMANT:                      Caroline Connolly

 

 

RESPONDENT:                Western Health & Social Care Trust

 

 

DECISION

 

The unanimous decision of the tribunal is that the claimant’s claim for unfair dismissal cannot be upheld and the claim is accordingly dismissed by the tribunal.

 

 

Constitution of Tribunal:

 

Employment Judge:         Employment Judge Leonard

 

Members:                        Ms E Bailey

                                        Mr B Hanna

 

Appearances:

 

The claimant was represented by Mr Eamonn Lafferty.

 

The respondent was represented by Mr P Ferrity, Barrister-at-Law, instructed by Directorate of Legal Services.

 

 

REASONS

 

1.               The claimant, by claim form dated 27 June 2013 received by the Office of Tribunals on 1 July 2013, claimed unfair dismissal against the respondent.  By response dated 11 September 2013 the respondent confirmed that the claimant was an employee of the respondent and had been dismissed from employment following disciplinary proceedings, which included a disciplinary hearing and an appeal, with the reason for the dismissal being stated to be gross misconduct.  The respondent denied that the dismissal was unfair.  It appears that the claimant had pursued other proceedings against the respondent but these did not directly concern the instant matter and the tribunal was required in this case only to determine a claim of unfair dismissal.  The parties agreed upon this latter and requested the tribunal to reach a determination only upon liability in the matter, with any further proceedings thereafter to be arranged, as might be required, dependent upon the outcome of the tribunal’s determination of liability in the case.

 

2.       The tribunal heard oral evidence from Ms Donna Keenan, Service Manager of the respondent Trust, Ms Shirley Young, Assistant Director of Human Resources of the respondent Trust, and from the claimant.  The tribunal also received into evidence an agreed bundle of documents, running to some 188 pages.  Upon conclusion of the hearing the tribunal received oral submissions upon liability, made on behalf of the respective parties by their representatives. 

 

THE TRIBUNAL’S FINDINGS OF FACT

 

3.       The tribunal, on balance, made the following material findings of fact, relevant to the issues to be determined:-

 

3.1     The claimant qualified as a Nurse in 2009 at the age of 27 years.  She was appointed in January 2011 under a permanent contract by the respondent Trust as a Staff Nurse, Band 5, and, in the role which concerns these proceedings, the claimant served as a Staff Nurse, Band 5, in the Acute Medical Unit of the Altnagelvin Hospital, since 7 February 2011.  The claimant had signed a document dated 18 January 2011 whereby she accepted the post of employment as Staff Nurse and accordingly she had signified acceptance of the terms and conditions applicable to this post.  The terms and conditions specified by the written employment job description included a requirement to adhere to and to maintain regulations regarding controlled drugs and the custody and proper administration of medicines and also, as a specified administrative responsibility, that the claimant made herself familiar with the disciplinary and grievance procedures of the Unit of Management. 

 

3.2    The respondent Trust maintained a written disciplinary procedure and that procedure provided for specific definitions of “misconduct” and “gross misconduct”.  Enshrined within the procedure were certain general principles.  Such general principles included the principle that no employee would be dismissed for a first breach of discipline, except in the case of gross misconduct, where the disciplinary action might be summary dismissal.  It was further provided in the procedure that, in deciding upon appropriate disciplinary action, consideration would be given to the nature of the offence, to any mitigating circumstances and to previous good conduct.  There was further provision made, as part of the formal disciplinary procedure, for an investigation to be conducted by an investigating officer who would be responsible for establishing the facts of the case.  The procedure stated that the investigation was to be conducted as quickly as was reasonable, taking account of the extent and seriousness of the allegations.  The investigating officer was required to ensure that any witnesses were interviewed and that all relevant documentation was examined before a decision was made on the appropriate course of action.  The investigating officer was to meet with the employee, who might be accompanied and/or represented by an employee representative.  If it was considered that there was a case to be answered, the employee would be called to attend a disciplinary hearing.

 

3.3     The disciplinary panel was to be made up of two managers at an appropriate level.  The specified procedure provided for the calling of witnesses by either party and provided that the disciplinary panel had the right to recall any witnesses.  After the conclusion of the hearing, the disciplinary panel was to review all of the evidence presented before taking its decision.  The procedure provided that the disciplinary panel would determine, on a balance of probability, whether the actions were or were not proven and before deciding on the appropriate disciplinary action it was specified that the disciplinary panel would consider any mitigating circumstances put forward at the hearing and would take account of the employee’s record. 

 

3.4     A right of appeal was afforded.  It was provided that in all circumstances an appeal hearing would be organised within 12 weeks of the original hearing.  In respect of the various specified disciplinary actions possible, the disciplinary panel was empowered to impose a formal warning, a final warning, transfer and/or downgrading, dismissal and summary dismissal.  It was expressly provided that dismissal would apply in situations where previous warnings issued had not produced the required improvement in standards or in some cases of gross misconduct.  In regard to summary dismissal, it was stated that in some cases where gross misconduct had been established, an employee might be summarily dismissed without payment of contractual or statutory notice.  In regard to the right of appeal afforded, it was stated that the appeal hearing would be a full rehearing of the case. 

 

3.5     In an appendix to this document was provided the respondent Trust’s disciplinary rules.  Under the designation, “Misconduct”, was included a list of examples; that list included the categories of “Dishonesty”, “Failure to comply with the Trust’s Rules and Procedures, Policies and Practices”, “Misuse of Trust Property” and “Alcohol/Drugs misuse”.  Included in the appendix within the designation “Gross Misconduct” (which was defined as serious breaches of contractual terms which effectively destroyed the employment relationship, and/or the confidence which the Trust must have in an employee), it was provided that Gross Misconduct might warrant summary dismissal, without previous warnings.  Under “Gross Misconduct” were listed a number of examples.  These included “Theft”, “Being under the influence or misuse of Alcohol or Drugs” (which category included: “misuse of drugs e.g. through misappropriation or being under the influence of drugs”), “Issues of probity”, “Serious Breaches of Trust Rules, Policies, Procedures and Practices”, “Breaches of contract of employment and/or Professional Codes of Conduct” and, finally, “Misuse or unauthorised use of Property” (which included “unauthorised use or removal of Trust property”).

 

3.6     The claimant had been in post for approximately 1½ years when certain events occurred.  One particular difficulty which the tribunal encountered in endeavouring to assess in appropriate detail any relevant facts and influences upon events, relates to certain evidence in the matter which made specific allusions to particular difficulties or examples of friction in the workplace.  These matters directly concerned the claimant and formed a considerable part of the focus of the disciplinary investigations which were to be instituted at the time by the respondent Trust.  These matters, nonetheless, fell outside the direct focus of the tribunal as they related to issues and concerns which did not directly form part of the express charges which were to be levelled against the claimant in the progression of a process which would ultimately lead to her dismissal.  For example, it is noted that, at the material time, the claimant was pursuing a workplace grievance which appears to have been connected to some or all of these other matters.  The particular difficulty for the tribunal is that, whilst there were very clear and express references made to these other matters in parts of the documentary evidence adduced, including substantial parts of the written material emerging from the initial disciplinary investigation, the tribunal was denied clear and comprehensive evidence concerning the specific “context” in which these other matters might have existed or occurred.  Associated with this is the fact that the tribunal did not have a full and comprehensive overall picture or backdrop into which context there might have been placed the specific events which are connected to the disciplinary charges that were formally proceeded with against the claimant (at this point the tribunal only needs to refer to these formal charges as being connected to “the Ventolin inhaler matter”, such as is mentioned in detail below).

 

3.7     It is necessary to touch upon, briefly, the existence of some evidence emerging from a very brief medical report dated 26 September 2013 from the claimant’s General Practitioner, Dr McSorley.  Dr McSorley’s report states that the claimant suffered from “suspected asthma”, as it was put, which condition is stated to have been diagnosed in 2007.  The report also confirmed that the claimant had remained on treatment for depression at the time of the report (September 2013).  The somewhat unhelpful brevity of this report from the Doctor accordingly alludes to certain medical issues which had apparently been subsisting for a period of time but, regrettably, without providing anything further which might have assisted the tribunal. 

 

3.8     As far as the clear import of the direct evidence adduced is concerned (leaving aside for the moment any issues of background or context matters or issues of workplace conflict) the claimant otherwise appears to have had a fairly uneventful employment history with the respondent Trust until certain events occurred at the start of October 2012.  In endeavouring to construct a precise timeline of pertinent events, the tribunal did encounter a difficulty in reconciling some of the oral evidence given to the tribunal with some other evidence which seems to have emerged at the time of the initiation of the disciplinary proceedings taken against the claimant.  Examining the claimant’s evidence to the tribunal first, the claimant stated that on 4 October 2012 she reported for work on the morning of that day and a Sister Palmer, the Ward Sister, was on duty on that morning.  The claimant states that she had with her a Ventolin inhaler, this being her own property.  She maintains that Sister Palmer saw her using that Ventolin inhaler.  Sister Palmer was not called to the tribunal as a witness to assist in clarification of this portion of the evidential timeline on the basis of Sister Palmer’s own evidence.  Then, on 7 October, three days afterwards, the claimant was at work.  The Ward Sister in charge that day, 7 October, was a Sister McGarrigle.  The claimant states that she felt the onset of an asthmatic attack.  She did not have an inhaler with her.  The claimant contends that she was under some stress at the time and that she went to the medicine room in the Ward and she took a Ventolin inhaler, the respondent Trust’s property.  She states that she took about five puffs from the inhaler and that she then left the inhaler on the desk in the medicine room.  Her evidence accordingly appears to suggest that she took nothing further to do with that inhaler and that she did not remove it from the medicine room. The claimant’s account of matters was that Sister McGarrigle, at the time of the claimant taking the inhaler, was not present on the Ward and that the claimant had sole responsibility for the Ward.  The claimant’s account in evidence is that she was concerned about being unfit to continue with her work.  The claimant maintains that she had an inhaler in her car (believed to have been parked near to or within the hospital premises) but that she made at the time what she has referred to as being a “judgement call” to use the respondent’s Ventolin inhaler.  It is certainly the case that the claimant did not immediately inform the Ward Sister on duty that day of what she had done, nor indeed any other person in appropriate authority and the claimant continued with and concluded her duties on that day, 7 October.

 

3.9     The claimant’s next duty was two days later, this being 9 October.  The claimant reported for duty and Sister Palmer was the Ward Sister present.  The claimant’s evidence to the tribunal was that she endeavoured to approach Sister Palmer to discuss matters, but Sister Palmer was busy and that she asked the claimant to speak to her later.  The claimant also asserts that Sister Palmer had seen her using what the claimant states as being the claimant’s own Ventolin inhaler on that day, 9 October.  On the afternoon of the same day, 9 October, the claimant states that she further spoke with Sister Palmer and that she discussed what had occurred on 7 October concerning the claimant’s use of the respondent’s Ventolin inhaler on that date.  The implication from the claimant’s evidence to the tribunal is that she was instrumental in approaching Sister Palmer and in bringing the issue to Sister Palmer’s attention in a relatively unprompted manner.  The claimant’s assertion is that in the course of this conversation, after being informed by the claimant of her use of the Ventolin inhaler, Sister Palmer stated to the claimant, “You are going to get me hung”.  Very shortly after this occurrence, Sister Palmer reported the matter to a Mr Raymond Jackson.  Mr Jackson’s job title was “Unscheduled Care Coordinator, Emergency Care and Medicine”.  It was Mr Jackson who was thereafter to conduct the initial enquiry and the subsequent disciplinary investigation into the matter and it was Mr Jackson who was also appointed to be the Presenting Officer in respect of the disciplinary case which was to proceed against the claimant.

 

3.10    The tribunal had sight of a copy handwritten document completed by Sister Palmer and signed by her and dated 9 October 2012.  The record contained in that document indicated that Sister Palmer had had a conversation with the claimant on that day, 9 October 2012, and records that Sister Palmer was aware that the claimant had been complaining of having a cold.  Sister Palmer’s record states that she had asked the claimant if the claimant suffered from asthma as Sister Palmer had observed the claimant using an inhaler.  The specific reference recorded by Sister Palmer in the note is to the claimant being observed by Palmer using “an” inhaler “one morning” during report.  This reference accordingly appears to suggest that this observation on Sister Palmer’s part was not made on 9 October 2012, otherwise the expression “one morning” would presumably not have been employed.  Sister Palmer’s note goes on to record the claimant as having stated to Sister Palmer that she had been previously prescribed an inhaler but that she had not got a prescription repeated and had no inhaler, but she had taken one from the Ward.  There is no recording of specific dates or times in respect of any of this contained within Sister Palmer’s written note.  The manner in which the record is made however appears to suggest that both the observation of the use of the inhaler on the part of the claimant by Sister Palmer and also the claimant’s concession that she had taken an inhaler from the Ward predated the conversation which occurred with Sister Palmer on 9 October 2012.  The initiation of the particular conversation seems to have stemmed from an enquiry by Sister Palmer as to the claimant’s general health, as she had been complaining of having a cold.  From Sister Palmer’s note it thus appears that the information about the claimant using the Trust’s inhaler emerged incidentally as part of Sister Palmer’s more general enquiry.  There is nothing to indicate in the note that the claimant approached Sister Palmer and initiated the disclosure about taking the inhaler at the outset of that particular conversation.

 

3.11    Mr Jackson, by letter dated 10 October 2012, after an initial meeting with the claimant, wrote to the claimant confirming that she was suspended from work with immediate effect pending further investigation of a number of concerns.  The concerns stated in the letter were threefold, these being as follows: – “conduct, attitude and behaviour at work which could impact on your practice”; “removal of an inhaler from the Ward for your own personal use”;  “argument with a colleague on the Ward on Saturday, 6 October and Sunday 7 October 2012”.  By letter dated 6 December 2012, Mr Jackson further wrote to the claimant making a correction in the stated date of the alleged argument with a colleague on the Ward and also confirming that the claimant has raised a number of health concerns at a meeting and that Mr Jackson was ensuring that the claimant was referred to Occupational Health.

 

3.12   There had been a written referral made dated 10 October 2012 by Sister Palmer to the Occupational Health Department.  That record mentioned ongoing conduct issues and the fact that the claimant felt she was under stress at work.  There was a specific query made by Sister Palmer in the referral as to whether the claimant was fit to attend a disciplinary meeting.  Dr Gamble, the Trust’s Occupational Health Physician, recorded that the claimant had been referred on the basis that she felt under stress at work, particularly in the context of being suspended because of conduct issues.  The Doctor confirmed that, on assessment, he could find no evidence of any underlying medical issue affecting the claimant’s fitness for work. Dr Gamble found the claimant to be fit to attend disciplinary meetings and he saw no medical reason why the claimant could not return to work to carry out normal duties.

 

3.13   Mr Jackson proceeded by requesting the claimant, by letter of 6 December 2012, to attend an investigatory meeting on 17 December 2012.  The stated purpose of the meeting was to discuss the three specified concerns mentioned above (with the dates of the alleged argument being amended to refer instead to the 29 and 30 of September 2012).  The investigatory meeting indeed proceeded later than originally scheduled, on 1 February 2013.  Mr Jackson’s investigatory meeting was with the claimant, who was represented by a Royal College of Nursing (RCN) representative, Mr Kevin Bell.  The investigation covered not only issues concerning the removal of the Ventolin inhaler from the Ward for the claimant’s own personal use, but also (these other issues being investigated in some considerable detail) other matters concerning alleged conduct and attitude and behaviour at work, including discussions regarding specific alleged incidents of conflict with other work colleagues.  The tribunal examined the notes of the meeting of 1 February 2013 which run to some 9½ typed pages.  Of those pages, approximately 1½ only are devoted to the record of the investigation of the Ventolin inhaler issue, by far the majority of the focus of the meeting apparently having been directed by Mr Jackson to these other matters of workplace conflict.  The tribunal had the benefit of observing, in a copy provided in evidence, the claimant’s own handwritten annotations to these investigatory meeting notes.  Both from these annotations and also from the claimant’s oral evidence, it appears that Mr Jackson’s recording of some matters in the course of the disciplinary investigation was substantially at issue, as far as the claimant was concerned.  In regard to that part of the investigation which concerned the Ventolin inhaler matter, the claimant in an apparently forthright manner at the outset of this part of the investigation is recorded as having confirmed that she had removed this (Ventolin inhaler) from the drugs cupboard for her own use.  The claimant’s handwritten annotations suggest that there is confusion or inaccuracy conveyed on account of the absence of any recording of dates in the investigatory meeting notes as prepared by Mr Jackson or that there is an inaccurate recording of what was said at the investigatory meeting by the claimant.  Amongst other matters, the claimant’s contention was that there was confusion in the investigation concerning the date upon which the claimant had taken the Trust’s Ventolin inhaler and facts and circumstances regarding the claimant having been observed using the Ventolin inhaler by Sister Palmer and the subsequent conversation taking place.  The investigation certainly does not appear to have been specifically directed to the construction of a clear and precise timeline of any material events, circumstances and facts in connection with the allegations which were levelled against the claimant concerning the Ventolin inhaler matter.

 

3.14    Mr Jackson, after the investigatory meeting with the claimant had concluded, then met with Sister Palmer on 8 March 2013.  The notes relating to this meeting, again, concern a number of other issues apart from the specific issue of the use of the Ventolin inhaler by the claimant, which latter specific issue occupies less than one half of the core content of the issues recorded as having been discussed with Sister Palmer.  In respect of this investigation, Mr Jackson it seems did not endeavour precisely to determine, as far as Sister Palmer’s account was concerned, the date or dates upon which Sister Palmer might have observed the claimant using the inhaler (or an inhaler) and the date or dates upon which Sister Palmer understood the respondent Trust’s Ventolin inhaler to have been appropriated and used by the claimant.  Mr Jackson then met with Sister McGarrigle, again on 8 March 2013. Notes were taken of that meeting.  These notes record, like the other notes, specific references to other events and matters and there is indeed very little, if any, of the content of these notes referable in any way to the Ventolin inhaler issue, apart from a very brief mention made where Sister McGarrigle advised that if a member of staff had an asthma attack a Doctor would normally be there to assess them and, further, that Sister McGarrigle clarified that it was “not normal practice”, as she put it, for staff to take an inhaler off the Ward.  Specifically, Sister McGarrigle was not questioned about any observation or interaction with the claimant which might connect to the claimant’s suggestion that she had used the Trust’s Ventolin inhaler on 7 October.  Specific reference however is made in the notes to the topic of the claimant’s health.  Sister McGarrigle is recorded as confirming that she did not notice the claimant having an asthma attack over that weekend. 

 

3.15    The claimant, by letter dated 23 May 2013, was notified that she was required to attend a formal disciplinary hearing which was scheduled to take place on 12 June 2013.  The disciplinary charge levelled against the claimant in that letter was expressed as follows:-

 

                    “You removed a Ventolin inhaler from the acute medical unit for your own use”.

 

          The disciplinary hearing proceeded on 12 June 2013.  The claimant attended and she was represented by her RCN representative, Mr Bell.  The disciplinary panel hearing the matter consisted of Ms Donna Keenan and Ms Marina McShane, the latter being the respondent’s Human Resources Manager.  The Presenting Officer in regard to the case against the claimant was Mr Jackson.

 

3.16  At the outset of the hearing the claimant’s representative, Mr Bell, requested that the hearing should be postponed and that a referral to Occupational Health ought to be made in respect of the claimant.  Mr Bell stated that he did not feel that the claimant was aware of the potential consequences of the hearing.  However, the claimant confirmed to the panel that she was happy to proceed with the hearing and the hearing accordingly proceeded.  Mr Jackson confirmed to the panel that the claimant had been referred to Occupational Health on 10 October 2012.  By letter dated 30 October 2012 Occupational Health had advised that it found no medical issue which affected the claimant’s then current fitness for work and, further, confirmed that nothing would have impacted upon matters at the time of the alleged incident. 

 

3.17  Mr Jackson stated to the panel that as part of the investigation his team had met with four witnesses but that as a result of the investigation he had decided that part of the original concerns should be dealt with informally.  This was presumably a reference to the other matters which had formed a substantial part of the focus of the investigation, aside from the Ventolin inhaler matter.  Statements and notes of meetings with the two witnesses, Sister Palmer and Sister McGarrigle, were placed with the papers presented to the disciplinary panel.  These papers included, in full, the content of the witness statements of both Sister Palmer and Sister McGarrigle. No endeavour had been made to remove or redact any part of the content from the papers which did not relate to the Ventolin inhaler matter.  That other part of the content contained material which was potentially significantly and materially prejudicial to the claimant and which dealt with significant issues of workplace conflict.  No explanation was afforded to the tribunal as to why this material was nonetheless placed before the disciplinary panel when it had apparently no direct bearing whatsoever upon the disciplinary charges which the panel was charged with addressing.

 

3.18   Mr Jackson then proceeded, in his presentation of the case against the claimant, to make reference to Sister Palmer having advised him that Sister Palmer had observed the claimant using an inhaler during report on 9 October 2012.  The tenor of the particular assertion on the part of Mr Jackson to the panel accordingly appears to suggest that Sister Palmer had informed that “the” Ventolin inhaler which she had observed the claimant using on 9 October was “the” inhaler which had been taken by the claimant from the medicine room in the Ward.  Sister Palmer was then called as a witness to the disciplinary hearing.  Under questioning, the note made of the disciplinary hearing records Sister Palmer as stating to the panel that she had witnessed the claimant using “an” inhaler “during the morning report”. There does not seem to have been any specific questioning of Sister Palmer as to the date of that morning report upon which such an observation was made.

 

3.19   The difficulty faced by the tribunal in the interpretation of what precisely transpired is that no verbatim notes were made.  This is somewhat regrettable when there was such a significant issue at stake as the fate of a professional career.  The record accordingly appears to be a paraphrasing or gist of what was stated.  The note suggests in this manner that Sister Palmer informed the panel that she had observed the use of the inhaler by the claimant, without specifically identifying the date of use.  There is perhaps an implication to be drawn that the observation by Sister Palmer and the use by the claimant were both made on 9 October.  The notes of the disciplinary hearing further record that Sister Palmer stated to the panel that the claimant had informed Sister Palmer that she had taken “the inhaler”.  The use of the word “the” as opposed to “an” might appear to suggest to the panel that this was the same inhaler which Sister Palmer had observed being used by the claimant.  If the correct interpretation of the evidence from Sister Palmer to the panel was of an observation made on 9 October, it suggested use of the Trust’s inhaler on that date by the claimant.  Nonetheless, the recording of the matter in the written record of the disciplinary hearing leaves things in something of a state of uncertainty.  Sister Palmer advised the panel that there had been no previous incidents which had caused concern in relation to the claimant removing drugs from the Ward.  However she stated that she felt that the claimant did not realise how serious the issue had been and she mentioned particularly that she would be concerned that the incident would occur again.  Sister Palmer also confirmed to the disciplinary panel in her evidence that if the claimant had been experiencing an acute asthma attack she would have expected the claimant to alert another member of staff or to have gone to casualty for medical treatment.  In response to a question put to Sister Palmer by the claimant regarding Sister Palmer observing claimant using her inhaler on previous occasions, Sister Palmer informed the panel that she could not recall having seen the claimant use her inhaler previously.  When questioned about personal use of medication by staff on the Ward, Sister Palmer stated that she had never offered Paracetamol or any other drug to any member of staff; she disagreed that it was common practice to be offered Paracetamol from the medicine cupboard, when that suggestion was put to her.  The claimant then raised before the panel the issue that she had taken the asthma attack on 7 October when Sister Palmer had not been on duty.  She maintained that she had informed Sister Palmer at the earliest opportunity, on 9 October.    

 

3.20    Sister Palmer confirmed to the disciplinary panel that the claimant had told her that she had been diagnosed with exercise-induced asthma.  The recorded notes of the disciplinary hearing confirm the claimant’s case that the claimant had told Sister Palmer that she had intended to replace the Ventolin inhaler with one prescribed by her own GP and that she had been honest and had not hidden the fact that she had taken the inhaler and had offered to replace it.  The claimant is recorded as having produced a replacement inhaler to the disciplinary panel, stating that the inhaler could now be returned to the Ward.  In response to further questions from the panel, the claimant confirmed that she had taken the inhaler on 7 October when her asthma attack had occurred and that Sister Palmer had witnessed her use what is referred to in the notes as “the” inhaler on the morning of 9 October. This appears, such as is recorded, to be a concession on the claimant’s part that it was the same inhaler observed in use on 9 October as had been in use on 7 October.  The claimant’s case to the panel was that Sister Palmer had not questioned the claimant about the inhaler at that time (when Sister Palmer had first observed the claimant’s inhaler use on 9 October) but that the claimant had approached Sister Palmer on the afternoon of 9 October in order to inform Sister Palmer that she had taken the inhaler.  The Ward had been busy and claimant contended that that was the earliest opportunity, that afternoon, upon which she was able to speak with Sister Palmer.  The claimant also referred to a particular Staff Nurse, by name, and the claimant stated that this person would have observed the claimant using an inhaler on a previous occasion. 

 

3.21   Sister McGarrigle was then called to give evidence to the disciplinary panel.  Sister McGarrigle’s evidence was that she had not witnessed the claimant having an asthma attack or having had a cough and that she could not recall having offered the claimant linctus from the Ward stock on 30 September, which latter the claimant suggested she had done.  When the claimant asserted that Sister McGarrigle had offered another member of staff Paracetamol and Co-codamol, Sister McGarrigle denied these allegations.  The notes of the disciplinary hearing record at this point that the claimant was advised that this latter topic was not appropriate for discussion.  The note further reads that the claimant was reminded that the panel was only to consider the charge of removal of the inhaler.  It therefore seems to be the case that the disciplinary panel members were reluctant to engage in any manner of a broader discussion or exploration of the use of medication by members of staff on the Ward.  The disciplinary panel accordingly restricted the focus specifically to the charge of removal of a Ventolin inhaler.

 

3.22    In continuing with his presentation of the case, Mr Jackson suggested to the disciplinary panel that the evidence supported the contention that the claimant had admitted that she took “the” inhaler on 4 October, prior to the acute asthma attack occurring on 7 October.  The various statements and the claimant’s annotations were employed by Mr Jackson to suggest to the panel that the claimant had tried to mislead, in that the panel had heard different versions of what had occurred and Mr Jackson maintained that the claimant had been less than truthful in her version of events.  Mr Jackson referred to the NMC code of conduct and to the requirement to the open and honest, to act with integrity, and to uphold the reputation of the profession.  The general tenor of the case made by Mr Jackson was that the claimant had not only dishonestly removed the Ventolin inhaler but that she had also tried to mislead and to be dishonest in giving her account of events.  Mr Jackson expressed the view that the claimant had, as he put it, “…no intention of replacing the inhaler she stole from a drugs cupboard..”.  In response to further questions from the panel, the claimant maintained that she had used her own inhaler on 4 October and on the 9 October and that other members of staff would have witnessed her using this throughout the week.  The claimant contended that the notes were not correct.

 

3.23   As the disciplinary hearing continued, Ms Keenan made the observation that Miss Connolly’s actions would be considered as theft.  This comment drew an objection from the claimant’s representative, Mr Bell.  Mr Bell asserted that, as the charge stood, it did not constitute gross misconduct and that if it was to be considered as theft, he would request that the hearing be reconvened.  The panel’s response to this latter issue being raised by Mr Bell (if any) is not recorded as this point.  The claimant then stated to the panel that she would never consider it appropriate to take drugs from the Ward but due to the asthma attack she had not been thinking straight and she had reached for the inhaler.  She stated that she did not steal the inhaler but that she had informed Sister Palmer that she borrowed it with the intention of replacing it.  She claimed that Sister Palmer’s statement had been full of contradictions.  Mr Bell again reiterated that the charge as stated was the removal of the inhaler and that such removal would have constituted the offence of misuse of Trust property, as opposed to the theft of Trust property.  At this point the meeting notes record that the panel explained that the charge stated that the claimant had removed the inhaler for her own personal use and therefore could be considered as theft and as a nurse the claimant would have been aware that this would be considered as theft.  The claimant reiterated that she did not steal the inhaler and that she had informed Sister Palmer that she had borrowed it with the intention of replacing it.  The panel specifically questioned the claimant as to how she felt concerning her actions.  The notes of the meeting record that the claimant stated to the panel that she did not consider her actions as totally inappropriate, due to mitigating circumstances.  The claimant stated that, had she not had the asthma attack, she would not have taken the inhaler.  The disciplinary hearing then concluded, having taken this evidence and having heard these submissions.

 

3.24    By letter dated 21 June 2013, Ms Keenan wrote to the claimant confirming the outcome of the disciplinary hearing.  In respect of the charge of removal of the Ventolin inhaler, the letter reads that on “7 September 2012” (which was confirmed to the tribunal as being a typographical error and which reference was intended to read “7 October 2012”), the claimant had removed a Ventolin inhaler from the drugs cupboard for her own use, which she had admitted to doing.  The letter confirmed that Sister Palmer had stated that in the conversation with the claimant on 9 October, the claimant had informed her that she had taken an inhaler from the Ward as she felt that she had an asthma attack coming on.  Sister Palmer had stated that the claimant had not informed her of the claimant’s intention to replace the inhaler with one which her own GP had prescribed.  The charge was taken as proven.  Sister Palmer had stated that she had felt that the claimant did not seem to realise the seriousness until it was highlighted to the claimant by her and that she had concerns that it would happen again.  Ms Keenan’s letter continues with the following: - “From your response to my questions at the hearing about the symptoms of the attack it was clear that you were not suffering from a full blown acute asthma attack”.  From the use of this phraseology, it appears that Ms Keenan seems to have been conducting some manner of a clinical assessment as to whether or not the claimant had been having an asthma attack at the material time and endeavouring to assess the relative severity, or otherwise, of any such attack.  The letter also proceeded to record the observation the claimant did not think that her actions were “totally” inappropriate and that the panel’s view was that the actions were indeed totally inappropriate, which raised concerns about the likelihood of similar behaviour occurring in the future.  Ms Keenan’s letter also records that the removal of the inhaler was on 7 September but that it only became known to the claimant’s manager two days later via what was referred to as being a “casual conversation” the claimant had regarding her health.  The letter proceeds to make reference to the handwritten annotations made by the claimant to the disciplinary investigation notes which state, “I used it on 4 October in the morning”, and “it was the afternoon when I borrowed inhaler on 7 Oct”.  The letter records the observation that it is unclear if the claimant was referring to the same inhaler or to two different inhalers.  From the way in which this is expressed in Ms Keenan’s letter, it accordingly appears that the disciplinary panel seem to have not conclusively established the facts in respect of whether there was one inhaler only in issue, that is to say one inhaler being the Trust’s inhaler, or another inhaler in addition.  There seems to have been significant residual doubt concerning a significant issue on the part of the disciplinary panel and that doubt is confirmed accordingly in the letter in the way this has been expressed.  The outcome and decision of the disciplinary panel was grounded upon the view that the unauthorised use or removal of Trust property was considered as constituting gross misconduct under the disciplinary procedure.  The letter states that the panel had considered disciplinary sanctions and whether or not a final warning was appropriate, but that, given the claimant’s lack of insight as to the seriousness of the actions and the concern of similar future incidents, the panel did not consider that a final warning was appropriate in this case.  The letter records that trust and confidence placed in the claimant as a professional registered nurse had been irreparably damaged and therefore the outcome was that the claimant was to be summarily dismissed from employment, with effect from 21 June 2013.

 

3.25    The claimant invoked her entitlement to appeal the disciplinary sanction.  Ms Kathryn Gault, the claimant’s RCN representative had prepared a lengthy written statement of case, dated 2 December 2013.  This was put forward in assistance of the claimant’s appeal against the dismissal, together with a briefer written statement prepared by the claimant as part of her appeal.  The disciplinary appeal hearing took place on 2 December 2013 and was chaired by Ms Fiona Beattie, the Trust’s Assistant Director of Diagnostics and Clinical Support and by Mrs Shirley Young, Assistant Direct of Human Resources.  The claimant was represented by Ms Gault.  Mr Jackson was, again, the Presenting Officer. 

 

3.26   At the outset of the hearing, Ms Gault referred the appeal panel to the decision letter and to the correction of the date error, as mentioned above.  There was placed before the appeal panel essentially the same documentation as had been seen by the disciplinary panel save that some documents were subject, in part, to redactions of portions of the text.  The redacted portions of the documents consisted of that part of the notes of the disciplinary investigation where such notes referred to the other issues of workplace conflict (as mentioned above) which were matters stated to have been dealt with informally.  The tribunal, however, noted that the statements and notes of meetings with the two witnesses, Sister Palmer and Sister McGarrigle, were detailed in Section 4 of the report placed before the appeal panel.  As far as the tribunal understands things (for there was nothing to the contrary adduced in evidence) it appears that unredacted versions of these documents were accordingly made available to the appeal panel.  These unredacted documents refer specifically to the other matters of workplace conflict.  These are matters which contain material which was potentially significantly adverse to the claimant.  No explanation was afforded to the tribunal as to why there was partial redaction only and why some seemingly prejudicial material was permitted to be viewed by the appeal panel members, which latter material had no direct bearing upon the subject matter upon which the disciplinary appeal panel was required to focus.

 

3.27    The disciplinary appeal proceeded.  The specified procedure appears to have been that stated in the respondent’s policies.  Thus there was conducted what was, in effect, a rehearing of the matter.  Notes were taken of the appeal meeting, but not a verbatim record.  Mr Jackson outlined in some detail the background and the case which he wished to present against the claimant.  Sister Palmer was called as a witness and her witness statement, as obtained in the disciplinary investigation, was referred to.  In her evidence to the appeal panel, Sister Palmer informed the panel that the claimant had admitted, when questioned on the evening of 9 October, that she had taken “the” inhaler, as she put it.  Sister Palmer explained to the appeal panel that she had first noticed the claimant using “an” inhaler during report on the morning of 9 October 2012.  This reference on Sister Palmer’s part might appear therefore to have implied to the appeal panel that it was the Trust’s inhaler that was being used on 9 October by the claimant.  Sister Palmer’s evidence to the panel was that the claimant did not tell her that the claimant took the inhaler with the intention of replacing it with one prescribed by her GP.  Sister Palmer did not see the claimant having an asthma attack or appearing to be breathless.  It is presumed that this was taken to be in reference to the observation made on 9 October. Sister Palmer confirmed to the appeal panel that she had never had any concerns concerning the claimant and the removal of drugs from the Ward but she did not think that the claimant appreciated the seriousness of the issue.  When Mr Jackson asked Sister Palmer if she had concerns that the claimant would do this again, Sister Palmer stated to the appeal panel that she could not comment on this.  Sister Palmer, when further questioned, stated that it was “not the norm” (as she put it) for staff to remove medication from the Ward for personal use.  In response to questioning from Ms Gault, Sister Palmer clarified to the appeal panel that there was not a policy on the Ward for when staff became unwell; it would be (governed by) “custom and practice”, she stated.  In response to questions from the appeal panel, Sister Palmer confirmed that the claimant had admitted to taking the inhaler when she spoke with her.  Sister Palmer stated that it was not acceptable to take medication from the Ward for personal use, nor was it acceptable to take medication with the intention of replacing it.  At the conclusion of Sister Palmer’s evidence the appeal panel checked with both Ms Gault and Mr Jackson if there were any areas they wished to re-question Sister Palmer upon, but both advised that they had no further questions.  It is to be noted therefore that an opportunity was thus afforded to the claimant to raise any other issues with Sister Palmer, before Sister Palmer was released from the disciplinary appeal proceedings.

 

3.28   Sister McGarrigle was then called as a witness before the appeal panel.  She stated that she had never witnessed the claimant having an asthma attack or appearing breathless and that the claimant had not informed her of any such issues.  She advised that if the claimant had had an asthma attack she would have expected the claimant to either attend A&E or to be seen by a Doctor on the Ward.  Sister McGarrigle also stated that it was “not the norm” (as she put it) for staff to take medication on the Ward for personal use.   Sister McGarrigle here was employing the same expression or description as had been employed by Sister Palmer - “not the norm”.  When Sister McGarrigle was questioned further by the appeal panel, she stated that “it was never acceptable to take medication from the Ward nor was it acceptable to replace medication that had been taken”, as it is recorded. 

 

3.29   Mr Jackson then sought to draw to the appeal panel’s attention a particular section of the annotated notes of the disciplinary meeting where Mr Jackson’s assertion was that the claimant had added to the notes an annotation that she used “the” inhaler on 4 and 9 October 2012 and that she also stated that “Asthma attack took place on 7 October”.  Mr Jackson asserted to the appeal panel that at the investigatory meeting the claimant had advised that she had took “the” inhaler as a result of an acute asthma attack.  However, as the appeal panel could see, so Mr Jackson submitted, the claimant had admitted that she took “the” inhaler on 4 October prior to the acute asthma attack on 7 October.  Ms Gault, on behalf of the claimant queried what Mr Jackson was referring to, apparently endeavouring to correct what the claimant would have seen as an incorrect impression being engendered from the way things were being depicted by Mr Jackson.  After an adjournment, Mr Jackson provided to the appeal panel some copy documentation and then returned to his submissions.  He asserted that the claimant had tried to mislead, as the appeal panel had different versions of what had occurred.  Mr Jackson submitted that the claimant appeared to have been less than truthful in her version of the events.  Mr Jackson concluded with specific submissions regarding the NMC code of conduct and the requirement to be open and honest, to act with integrity and to uphold the reputation of the profession.  He submitted that the claimant did not fully appreciate the seriousness of the actions nor was he confident that this would not happen again and that trust in the claimant had been damaged.

 

3.30   Ms Gault, on behalf of the claimant, then proceeded to a presentation of the case in accordance with her somewhat lengthy written presentation.  After this had concluded, Ms Gault took the opportunity to question the claimant who then explained to the appeal panel that she had taken an asthma attack on the afternoon of 7 October.  She had the keys to the medication cupboard and she had removed the inhaler and she had taken five puffs from it.  The claimant advised the appeal panel that in the past Sister McGarrigle would have offered her linctus for her cough but she had refused this.  The claimant stated to the appeal panel that on 9 October she had informed Sister Palmer that she had had an asthma attack and that she had used the inhaler.  The claimant asserted that Sister Palmer had seen the claimant use her inhaler before and had seen her use it earlier that morning.  At this point in the hearing Mrs Young indicated that Sister Palmer was no longer present at the meeting and observed that the difficulty was that there was a dispute that the claimant believed to be relevant, but that there was no witness to question.  The claimant then stated that she had come forward and had volunteered the information and that if she had not done so, Sister Palmer would never have been aware of it.  It appears that the appeal panel at that point in matters did not consider the possibility of recalling Sister Palmer to the hearing in order further to question her about this matter. 

 

3.31   Under questioning from Mrs Young, the claimant stated that she had had an asthma attack, that she thought that she was losing her breath and that she knew that she needed an inhaler.  The claimant stated that she was under a lot of stress on the Ward at the time and she had the keys in her pocket and she took the inhaler.  She stated in hindsight that she should not have taken the inhaler and she apologised for her actions.  She raised the issue that it was common place for other staff to take medication for headaches.  However the claimant acknowledged that she knew she should not take anything from the medication cupboard.  She explained that she had wanted to tell her Supervisor that she had taken it because she knew she needed to replace it.  When questioned by Mrs Young, the claimant stated to the appeal panel that her admission was unprompted.  The claimant clearly at this point in the meeting was concerned as to how she could endeavour to present her mitigation on account of the specific circumstances which she felt were applicable at the time and yet express an appropriate apology or contrition concerning what had occurred.  When questioned as to why she had not told others on the Ward about her asthmatic attack, the claimant raised the issue of her isolation on the Ward and that she felt there was no one that she could turn to and she felt that staff could not care less.  The claimant then stated that she may have told one of her colleagues but she did not want to mention their name.  The claimant then made clear to the appeal panel her case which was that she had used her own inhaler on 4 October, but not on 7 October.  The appeal hearing concluded at that point.

 

3.32    By letter of 13 December 2013 Mrs Young on behalf of the appeal panel wrote to the claimant regarding the outcome of the disciplinary appeal and confirming that the undisputed facts established were that the claimant had removed a Ventolin (salbutamol) inhaler from Ward stock for her own use.  In discussion with Sister Palmer the claimant had confirmed this and she had advised Sister Palmer of her intention to replace the item from her own prescription and that her actions were wrong.  In the appeal panel’s view these actions were seen as constituting gross misconduct.  In terms of mitigation, the letter records that the appeal panel had considered that the claimant was very sorry for her actions and had a full understanding of their impact on the trust placed in her.  However the panel found that the reassurance endeavoured to be put across by Ms Gault on behalf of the claimant was not substantiated when the claimant was herself questioned directly.  The panel found that the claimant continued to attempt to justify why she had removed and used the inhaler.  This left the panel with a belief that the claimant continued to hold the view that these actions were justifiable in certain conditions.  The letter records the view of the panel that removal of medicines was never appropriate and that the intention to replace them was dangerous.  The panel was not reassured that the claimant would make an appropriate judgement in this or any similar matter in the future.  The letter records the finding that there was no medical evidence to corroborate the claimant experiencing an acute asthma attack and the need for medicine urgently.  There was no explanation for the claimant’s failure to report both her medical situation and the removal of the inhaler, as a priority.  The panel did not consider the claimant’s explanation to be plausible. 

 

3.33   In respect of decision and sanction, the letter records that the panel’s decision was that the charge was proven and, in the absence of credible mitigation and sufficient reassurance that similar conduct would not occur, the appeal panel accordingly had upheld the sanction imposed by the disciplinary panel and the summary dismissal from employment with effect from 21 June 2013 remained in place.  This concluded the disciplinary process and the consequent appeal.

 

THE RELEVANT LAW

4.       This is an unfair dismissal case.  In considering the appropriate application of the law concerning the issue of fairness in a conduct dismissal it is noted that the law is now well-settled and accordingly is required to be applied by the tribunal grounded upon certain guiding principles. 

4.1    The relevant statutory provisions are contained in the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) which provides at Article 126 that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning dismissal by an employer.  It is for the employer under the provisions of Article 130 (1) (a) to show the reason (or, if more than one, the principal reason) for the dismissal, and under Article 130 (1) (b), that it is either a specified reason as set out in Article 130 (2) or some other substantial reason of a kind such as to justify the dismissal.  The specified (potentially fair) reasons for dismissal that are set out in Article 130 (2) include conduct (normally in effect “misconduct”).  Where the employer has fulfilled the requirements of paragraph (1), the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer): (a) depends on whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and (b) shall be determined in accordance with equity and the substantial merits of the case.

4.2     These statutory provisions have been considered by the Court of Appeal in Northern Ireland in the case of Rogan –v- South Eastern Health & Social Care Trust [2009] NICA 47.  The Court of Appeal in Rogan approved the earlier decision of the Court in Dobbin –v- Citybus Ltd [2008] NICA 42 where the Court held that the correct approach is as provided in such cases as British Home Stores –v- Burchell [1980] ICR 303, Iceland Frozen Foods Ltd –v- Jones [1983] ICR 17, Foley –v- Post Office and HSBC Bank Plc (formerly Midland Bank) –v- Madden  [2000] ICR 1283 and J Sainsbury –v- Hitt [2003] ICR 111.

4.3     In Iceland Frozen Foods–v- Jones the Court provided the following guidance:-

(1)      the starting point should always be the words (of the statutory provisions);

(2)      in applying the statutory provisions the tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the tribunal) consider the dismissal to be fair;

(3)      in judging the reasonableness of the employer’s conduct a tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;

(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, and another quite reasonably take another;

(5)      the function of the 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.

4.4    In British Home Stores –v- Burchell the Court determined that what the tribunal has to decide is whether the employer entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time.  Firstly, it must be established by the employer the fact of that belief; that the employer did believe it.  Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief and, thirdly, 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 not relevant that the tribunal would themselves have shared that view in those circumstances.   

4.5    In Rogan –v- South Eastern Health & Social Care Trust, at paragraphs 26, 27 and 28, Morgan LCJ states as follows: - “The judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal.  In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence.”  “In our view the conclusion by the tribunal that “the Panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the Disciplinary Panel to carry out that task.”  “The tribunal's conclusion that the Disciplinary Panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence.  None of this is an indicator of a lack of reasonable investigation.”  Accordingly, the tribunal’s scrutiny must not be directed towards any manner of a critical evaluation of the evidence before the employer in the disciplinary process and the weight the employer placed upon that evidence, as that is the employer’s task not that of the tribunal, but rather the focus must be upon the other matters to which the tribunal is properly entitled to direct its focus.

4.6     Various authorities since Iceland Frozen Foods–v- Jones and British Home Stores –v- Burchell have considered and refined the approach properly to be taken.  In the case of Bowater –v- North West London Hospitals NHS Trust [2011] EWCA Civ 63, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside a decision of an employment tribunal.  In Bowater the employment tribunal had determined that a remark made by a nurse was not a sufficient basis for a fair dismissal.  The Court determined that a dismissal for a lewd comment was outside the range of reasonable responses open to a reasonable employer in the circumstances of that case.  In Bowater, the Employment Appeal Tribunal had decided that the tribunal had substituted its own judgment for that of the employer (what is now commonly referred to as “the substitution error”).  However, the Court of Appeal’s determination was that the employer cannot be the final arbiter of its own conduct in dismissing an employee.  It is for the tribunal to make its judgment, bearing in mind that the test is whether dismissal is within the range of reasonable options open to a reasonable employer. It is important, likewise, to bear in mind that it is the tribunal that has been entrusted with the responsibility to make sometimes difficult and borderline decisions in relation to the fairness of dismissal.

4.7    Other cases have considered what is undoubtedly a somewhat difficult area, many of which have considered at appellant level determinations of the Employment Appeal Tribunal to the effect that the employment tribunal below had committed the substitution error by substituting the tribunal’s own view for that of the employer (see for example Fuller –v- London Borough at Brent [2011] EWCA Civ 267 and Salford Royal NHS Foundation Trust –v- Roldan [2010] IRLR 721).  It has been observed that the “range or band of reasonable responses” form of words that is invariably alluded to in tribunal decisions is not statutory or mandatory, but it does provide a reassurance of objectivity.  If the tribunal properly applies such an objective test, it should not normally err in law.  In Salford Royal NHS Foundation Trust –v- Roldan, the Court of Appeal considered a decision of the Employment Appeal Tribunal which had set aside the decision of an employment tribunal on the ground that that tribunal had substituted their judgment of what was a fair dismissal for that of the employer.  In Roldan, the Court observed that the statutory provisions focused upon the need for an employer to act reasonably in all of the circumstances.  In A –v- B [2003] IRLR 405, the Employment Appeal Tribunal held that the gravity of the charge and the potential effect upon the employee were relevant circumstances; accordingly employers must take seriously their responsibilities to conduct a fair investigation where the employee’s reputation or ability to work in their chosen field of employment was in issue.  In  A –v- B the Employment Appeal Tribunal  observed that  serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, bearing in mind that the investigation is usually being conducted by laymen and not lawyers.  Even in the most serious cases it was unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts was necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as the investigator should on the evidence directed towards proving the charges against him or her.

 

THE TRIBUNAL’S DECISION

 

5.               Applying these principles to the determined facts of the matter, the tribunal is tasked with a determination of whether the dismissal of the claimant by the respondent was fair or unfair.  The statutory provisions of the 1996 Order mentioned above provide that it is for the employer to show the reason for the dismissal.  In this case, the respondent Trust has put forward a reason which is a specified reason as set out in Article 130 (2) of the 1996 Order; that reason is conduct, in other words the misconduct determined by the respondent’s disciplinary panel and upheld by the appeal panel in respect of the claimant.  Where an employer has fulfilled that requirement it falls to the tribunal to make a determination of the question of whether the dismissal is fair or unfair, having regard to the reason shown by the employer.  This determination shall depend upon whether, in the circumstances, including the size and administrative resources of the respondent’s undertaking, the respondent has acted reasonably or unreasonably in treating the stated misconduct as being a sufficient reason for dismissing the employee.  The matter is to be determined in accordance with equity and the substantial merits of the case.

 

6.               In reaching a determination, it is of primary importance that the tribunal must not commit what has come to be referred as the “substitution error”.  There is a substantial body of authoritative case law supporting that proposition, including case law at appellant level in this jurisdiction (for example Rogan –v- South Eastern Health & Social Care Trust) which makes this approach binding upon the tribunal.  The well-settled law in respect that approach has been interpreted in such cases as Roldan and A –v- B, where there is a recognition accorded that the gravity of the charge and the potential effect upon the employee are relevant circumstances.  Thus it is all the more important that there shall be a fair investigation in circumstances were the employee’s reputation or ability to work in their chosen field of employment is in issue.  Of course it must be borne in mind that investigations are normally conducted by laymen and not by lawyers.  This latter was recognised in the case of Ulsterbus –v- Henderson [1989] IRLR 251 where the Northern Ireland Court of Appeal recognised that any employer was not expected to conduct a quasi-judicial investigation into allegations of misconduct. Nonetheless any investigation of the material facts must be carefully-conducted and must be conscientious in character.  The person investigating for the employer should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he or she should on the evidence directed towards proving the charges against the employee.  An overly-zealous investigator who disregards potential leads of the enquiry as they might favour the employee might produce a result that leads to unfairness.

 

7.               Examining the facts of this case, there are certain matters which are not in contention.  It is an uncontroversial fact that the claimant appropriated a Ventolin inhaler for her own use, which inhaler was the property of the respondent Trust.  That inhaler (whatever was its ultimate fate) it is assumed could not be returned to proper and serviceable use by the Trust.  The claimant has conceded in the course of the disciplinary investigation that she took this action.  That primary fact is of course central to the matter.  Regrettably, that primary fact is surrounded by a considerable number of satellite allegations, contentions and matters of dispute, issues of uncertainty, and various matters casting some considerable doubt upon the true facts of the case, in all of their proper context and relevance, all of which serves considerably to cloud the salient issues in the matter.

 

8.               The tribunal bears in mind that investigations are normally conducted by laymen and not by lawyers.  However, investigations nonetheless must be carefully-conducted and conscientious in character.  This is all the more important were, as in this case, the claimant’s professional reputation or ability to work in her chosen field as a health care professional was at stake.  The person charged with the investigation, Mr Jackson, did not establish, with certainty and precision, some material issues of fact.  Examining the documentation, it appears that a substantial portion of Mr Jackson’s investigation and consequent focus was directed towards matters other than the issue of the appropriation by the claimant of the Trust’s Ventolin inhaler.  These other matters and issues accordingly occupy a substantial portion of the written material that was produced by Mr Jackson in the course of his investigation.  Mr Jackson’s focus appears to have been substantially distracted or diverted by the detail of these other matters and issues and accordingly the focus seems to have been significantly directed towards these other matters and, to an extent, away from conducting a very thorough or detailed investigation of the specific Ventolin inhaler matter and surrounding issues.  For example, Mr Jackson did not seek to establish, with precision, some fundamental issues concerning dates, times, locations of alleged matters occurring or being observed by any potential or actual witnesses concerning the issue of the claimant’s appropriation or use of the Trust’s Ventolin inhaler.  He did not endeavour to explore some apparent inconsistencies.  Such matters include, for example, the initial account given by Sister Palmer as to precisely when she first observed the claimant using an inhaler and other evidence from Sister Palmer.  Mr Jackson’s investigation permitted confusion to enter into the arena.  Such confusion or doubt included whether or not the observation (if there was only one) of the claimant’s use of an inhaler on the part of Sister Palmer was made by Sister Palmer at some earlier date or, for the first time, on 9 October 2012.  It will be remembered that the initial written reference recorded by Sister Palmer was to the claimant being observed using “an” inhaler “one morning”, as Sister Palmer put it in her record, during report.  This reference appears clearly to suggest that Sister Palmer’s initial recorded observation (if there was only one) was not made on 9 October 2012, otherwise the expression “one morning” would not in all probability have been used.

 

9.               Mr Jackson conducted the disciplinary investigation meeting with the claimant on 1 February 2013.  It will be noted that in the course of that meeting the claimant made references to Mr Jackson about confusion being present concerning the date upon which the claimant was stated to have taken the Ventolin inhaler and the facts and circumstances regarding the claimant having been observed using the Ventolin inhaler by Sister Palmer and the subsequent conversation taking place with Sister Palmer.  Having been clearly alerted to this issue, Mr Jackson seemingly failed to further the investigation in a full and proper manner.  It is for the investigator to gather factual material and evidence in a fair and appropriate manner.  However, notably absent is the construction, perhaps, of a clear and precise timeline of all material events and facts concerning the specific allegations against the claimant and the clarifying of essential matters with relevant witnesses in regard to such a timeline or sequence of events.  The allegations thereafter came before the disciplinary panel.

 

10.           Moving forward to the conclusion reached by the panel, it will be noted that this confusion or doubt about some quite central matters subsisted and indeed went so far as to be incorporated into the outcome letter from Ms Keenan sent to the claimant, dated 21 June 2013.  That letter states that the disciplinary panel found it to be unclear if the claimant was referring to the same inhaler or to two different inhalers and indeed the letter suggests that the disciplinary panel had not conclusively and definitively established the facts in respect of whether there was one inhaler in use by the claimant, that being the Trust’s inhaler, or another inhaler, in addition, observed in use and when precisely any use might have occurred.  Accordingly the inadequacy of investigation appears to have engendered significant residual doubt concerning what is quite a significant issue in the matter.

 

11.           The significance of this is that, in the case of admitted misconduct, the explanation for that admitted misconduct and the precise circumstances of and setting for the misconduct shall often be of very material significance, as they were indeed in this case.  It will be recalled that, upon the most favourable interpretation of the claimant’s case, the claimant’s evidence suggests that she used the Trust’s Ventolin inhaler on only one occasion, that being on 7 October, when she took 4 or 5 puffs from the inhaler and then left it, she indicates, in the medicine room.  If that was factually correct and if this was the only admitted misdemeanour committed by the claimant, she has certainly improperly and without due authority appropriated the Trust’s property, but she has only used it very briefly and then has left it in the medicine room.  If this is correct and it were to be no more than that, the claimant arguably has not “removed” it, in the normal sense or common usage of that expression of taking something away, as opposed to her consuming, in situ, of a part of the contents of the inhaler.  Nonetheless, the tribunal has to recognise the reality of the evidence adduced in the disciplinary hearing, insofar as it can be interpreted from the notes.  The tribunal, likewise, has to recognise the quality and strength, or weakness, of the case such as was presented by or on behalf of the claimant to the disciplinary panel in the course of the respondent’s disciplinary proceedings.

 

12.           Taking account of all of the evidence that was seemingly available to the disciplinary panel, in its entirety, there is no doubt that the claimant did not well assist her own case by producing fully cogent and consistent evidence in the matter.  It has to be said that the claimant played her own part in engendering a degree of confusion concerning the salient facts of the matter.  To give an example of this, if the claimant’s case was clearly and unequivocally that she had used her own inhaler at all times, save on 7 October when she only briefly used the Trust’s, she nonetheless appears to have permitted references to “the” inhaler to appear in a number of places in the record of proceedings without appropriately and assertively challenging, to the necessary degree, what she then asserts at this tribunal to be a fully inaccurate portrayal of matters, thereby permitting the definite article “the” to be construed by the panel, on account of the confusion and vagueness present, as referable only to the Trust’s inhaler.

 

13.           Nonetheless, the job of the employer is still to conduct a proper, appropriate and, as might be required, a rigorous and thorough investigation.  That is especially so where a career as a health care professional is at stake.  The investigation might, at first sight, seem to be less important where there is admitted misconduct, as there is in this case.  Upon further reflection, however, it must be equally important, in the view of the tribunal, that the investigation is proper and thorough.  This is so for the reason that in many cases there shall be quite a fine and quite a difficult distinction to be drawn between cases where a dismissal (and very probably the consequent ending of a professional career) ought fairly and properly to be the outcome to matters of admitted gross misconduct, in contrast to those other cases were a lesser sanction than dismissal is a proper, proportionate and fair outcome, enabling the professional career to continue, albeit upon whatever terms might seem proper.

 

14.           The context and the surrounding circumstances and the true and complete facts are accordingly of the utmost significance in many, if not most, such cases, including the instant matter.  Examining the quality of the investigation, the tribunal harbours significant concerns as to the thoroughness with which matters were investigated by Mr Jackson and the manner in which the investigating officer sought to draw out a full and complete picture of all of the relevant circumstances.

 

15.           This is not a case were the employer had to determine whether or not a specific action, classified as misconduct, did or did not occur.  Here there was admitted misconduct; but that is only one part of the matter.  The tribunal of course accepts the principle that the judgment as to the weight properly to be given to the evidence is for the disciplinary panel and is certainly not a matter for the tribunal.  That much is well-settled law.  It is thus not for the tribunal to stray into the forbidden territory of making its own determination upon the evidence (see Rogan –v- South Eastern Health & Social Care Trust mentioned above).  The “band of reasonable responses” scrutiny, nonetheless, applies as much to the nature and quality of the disciplinary investigation as it does to the decision of the employer upon disciplinary sanction (see J Sainsbury –v- Hitt [2003] ICR 111).  This scrutiny is applied not just to the issue of whether the accused party did or did not do commit an offending action or default but also to the relevant and material surrounding circumstances in which this misconduct has occurred.  The tribunal reminds itself that in A –v- B the EAT observed that a careful and conscientious investigation of the facts was necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he or she should on the evidence directed towards proving the charges against the employee.  In this case it is not so much a question of guilt or innocence but rather the essential exploration of all of the relevant facts and circumstances and the examination of the full and proper context in which the admitted misconduct is positioned.

 

16.           Examining the matter at first instance, at the stage of the disciplinary hearing, the tribunal harbours considerable doubts about whether the investigation conducted by Mr Jackson, under the specific circumstances of the case, fell within the band of reasonable responses of a reasonable employer.  The investigating officer was charged with presenting a full and complete picture in a matter where a professional career was at stake.  His investigation permitted confusion and doubt as to the proper facts, in proper context, to enter into the arena; this is reflected both in the presentation of the case and also feeds into the way in which matters are expressed in the dismissal letter.

 

17.           Another issue of procedural fairness also troubles the tribunal.  Evidence was given to the tribunal that the claimant had instituted a grievance complaint.  It seems, upon the apparent facts, sparse though they were before the tribunal, that the grievance hearing was dealt with by the same panel as had dealt with the disciplinary hearing and indeed on the same date.  Whilst the information concerning the claimant’s grievance is, as indicated, very sparse, it appears to connect to issues of workplace conflict.

 

18.           These issues of workplace conflict are also referred to in the investigatory notes placed before the disciplinary panel.  Whilst these issues did not form any part of the disciplinary charge faced by the claimant, nonetheless the tribunal observes here a disciplinary panel which had good reason to be quite familiar with the subject matter of these other issues of conflict and, whether consciously or unconsciously, which might easily have been influenced by such matters.  An objection was taken by the claimant’s representative to this, but that seems to have been disregarded by the disciplinary panel.  No explanation has been afforded as to why the same panel dealt with a grievance and also a disciplinary procedure on the same date and why the panel had before it, apart from anything it might have had to address in the grievance process, the material relating to workplace conflict in the disciplinary investigative process, which was unredacted.

 

19.           The tribunal regards it as a matter of procedural unfairness that the disciplinary panel members had placed before them the full content of the investigation papers concerning these other matters which, in the tribunal’s view, from examining the papers, appears to contain some content which might be construed as being quite prejudicial to the claimant.  The tribunal is accordingly concerned that there was not put into place some separation of functions, arrangements for which, one would have thought, might be fairly readily made in a large organisation such as the respondent Trust.

 

20.           The significance of all of this is that, when a finely-balanced decision required to be made concerning whether there should be a dismissal for gross misconduct or perhaps the imposition of a lesser sanction, the decision to dismiss might, either consciously or unconsciously, have appeared more attractive or might have been influenced by this other material which did not directly concern the specific disciplinary charge levelled against the claimant.  No reasonable explanation has been afforded by the respondent for this significant procedural deficiency.

 

21.           Another issue which troubled the tribunal is that the precise framing of the disciplinary charge as levelled gives cause for concern.  It is quite clear from the notes of the disciplinary hearing that the panel tasked with making the decision had formed a concluded view before the end of the hearing that the action of the claimant indeed constituted “theft”, notwithstanding the claimant’s case being (as is mentioned above ) that she had briefly only appropriated the Ventolin inhaler and used it.  The disciplinary charge, as it was expressed, had accordingly not been framed so as to state expressly that the misconduct included “theft”.  Accordingly, the respondent failed to spell out expressly to the claimant the full nature, extent and gravity of the charge such as was subsequently interpreted in this manner by the panel in the course of the disciplinary hearing process.  Examining the disciplinary code there is a category of “misuse of Trust property”, into which, upon one interpretation, the admitted action of the claimant might be seen as permitted to fall.  It is of course a fundamental necessity, in such serious circumstances with such far reaching consequences, that any disciplinary charge and any ancillary issues must be stated as fully, precisely and as comprehensively as is reasonably possible in order properly to alert the affected employee to the full extent and nature of the charge or the charges which the employee has to face.  As is apparent from the notes of the disciplinary hearing, the claimant’s representative took substantial issue with the way in which the classification of the matter expressly as being “theft” only emerged from the panel in the course of the disciplinary hearing.  This was procedurally unfair.

 

22.           Taking account of all the foregoing issues of concern, in what was such a serious and significant process, where a professional career was at stake, these issues bring the matter outside the range of what is fair and what is reasonable.  On account of this, the tribunal’s conclusion is that the decision to dismiss the claimant was procedurally unfair in such circumstances.

 

23.           The next issue which then requires to be considered is whether such unfairness in the disciplinary process was subsequently capable of being corrected at the appeal stage of the process.  As is mentioned above, the claimant instituted an appeal against the dismissal decision and the disciplinary appeal hearing took place on 2 December 2013.  The prescribed process provided that the appeal was to be by way of a re-hearing.  It will be noted that case of Taylor –v- OCS Group Ltd [2006] IRLR 613 EAT provides authority for the proposition that a fair and proper appeal may serve to correct procedural deficiencies present in the first part of the workplace disciplinary process.

 

24.           In preparation for the appeal there appears to have been, certainly, a consciousness directed towards the inappropriateness of including material which related to issues of workplace conflict which had been present in the documentation before the disciplinary panel below.  Accordingly, there were appropriate redactions made to the documents which excluded references to this other material and these other matters.  The tribunal is reasonably certain that the appeal panel did not have before them any of this material, with however one unaccounted for, but nonetheless notable, exception.  The bundle of documents placed before the appeal panel, the tribunal concludes from the documentary evidence, did contain in full and in an unredacted form, the statements given by both Sister Palmer and Sister McGarrigle to Mr Jackson on 8 March 2013.  If the tribunal is correct that these two statements were presented in unredacted form, the appeal panel would have seen material which referred to workplace conflict issues between the claimant and another person in both of these statements.  Indeed these issues formed by far the majority of the content of the statement of Sister McGarrigle.  If this is correct, the appeal panel was accordingly given access to material which appears to be materially prejudicial to the view that might be taken of the claimant. The potential for conscious, or perhaps more importantly unconscious, influence upon the view that the appeal panel might have taken of the claimant significantly concerns the tribunal.  It is difficult for the tribunal to gauge the degree or extent of such potential influence, if there was indeed any, without engaging in a substantial degree of speculation.  Accordingly, this emerges as a rather difficult matter and was one which troubled the tribunal in endeavouring to assess whether the appeal was procedurally fair and if the appeal served to correct any procedural unfairness engendered in the earlier stage in the process.

 

25.           Examining the course of the disciplinary appeal hearing, there was nothing generally inherently unfair in the conduct of that process.  The claimant and her representative were afforded a fair and reasonable opportunity to make representations and to advance argument.  There was a point in proceedings, which occurred after Sister Palmer had departed, where the claimant endeavoured to raise certain issues which conflicted with the evidence Sister Palmer had given to the appeal panel.  Whilst the appeal panel seems to have determined that Sister Palmer would not be recalled to the hearing, nonetheless the tribunal notes that the record indicates that, prior to this, the panel did clearly invite the parties present to ask any questions of Sister Palmer before her evidence had concluded. Accordingly, the tribunal concludes that there was nothing inherently unfair about this latter part of the procedure.

 

26.           The function of the tribunal is not to, as it was put in submissions on behalf of the respondent by the respondent’s representative, “second guess” the panel who heard the proceedings at first hand.  From the evidence given by Mrs Young to the tribunal, it is clear that Ms Gault conducted a lengthy and substantial presentation before the appeal panel in aid of the claimant.  This presentation seemed indeed to considerably impress the panel members at that point.  However, when the panel members addressed and questioned the claimant directly towards the end of the hearing concerning the issue of her insight into the matter and possible contrition, something in the demeanour of the claimant seems to have caused significant doubt to have emerged in the minds of the appeal panel members concerning the claimant’s attitude and the degree of her insight into the subject matter of the disciplinary proceedings.

 

27.           The tribunal is unable and unwilling to “second guess”, as it has been put, the appeal panel members who were present and who formed that view, in the absence of clear evidence of bias or malice existing, or some other inappropriate attitude or approach being taken or adopted by the appeal panel members.  To imply or to import a finding that there was such an adverse approach, in the absence of anything else of substance emerging from the evidence, the tribunal would need to conclude that the inclusion of the material present in the witness statements of Sisters Palmer and McGarrigle was sufficiently prejudicial so as to adversely influence the panel members to such a degree and to such an extent that they moved from a position of possibly imposing a lesser sanction to one where they concluded that dismissal was the only appropriate sanction.  The tribunal is unable to conclude that that is the case.

 

28.           Accordingly, the tribunal’s determination is that the appeal hearing served to restore fairness to the matter.  This was certainly a most difficult decision for the appeal panel to make, and especially so in view of the far reaching consequences for the claimant.  It has to be said that another reasonable appeal panel, properly conducting itself, might have emerged with a different conclusion and outcome.  It is not the function of the tribunal to determine the matter in place of the employer upon the evidence.  Rather the tribunal’s task is to determine the issue of fairness in accordance with the statutory provisions and in the light of the authorities mentioned above.

 

29.           Accordingly, taking everything fully into account, the tribunal’s conclusion is that the respondent Trust, upon the conclusion of the appeal process, fairly sanctioned the dismissal of the claimant, taking account of all of the circumstances of the matter.

 

30.           Because of this, the claimant’s claim for unfair dismissal, by unanimous decision of the tribunal, cannot be upheld and the claim is accordingly dismissed by the tribunal.

 

 

 

Employment Judge:      

 

Date and place of hearing:         18-19 June 2014, Belfast.

 

Date decision recorded in register and issued to parties: