Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 2343/14

 

 

 

CLAIMANT: Diane Hill

 

 

RESPONDENTS: 1. Bleary Busy Bees Pre-school Group

2. Jill Neill

3. Emma Maneely

4. Helen Hamilton

5. Gillian Bradley

6. Janine Major

7. Heather Reynolds

8. Kenneth Milligan

9. Julie O'Neill

 

 

DECISION

 

The decision of the tribunal is that the claimant was not unfairly dismissed.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Murray

 

Members: Mr A Crawford

Mr P Sidebottom

 

Appearances:

 

The claimant was represented by Ms B McKeown, a practising Solicitor who stated that she appeared as the claimant's friend.

 

The respondents were represented by Mr N Phillips, Barrister-at-Law, instructed by Ms L McAloon of Worthingtons Solicitors.

 

 

The Claim

 

1.             The claimant claimed unfair dismissal. The respondents' case was that the dismissal was for gross misconduct and was fair.

 

The Issues

 

2.             The issues for the tribunal were as follows:

 

(i)             Did the decision-makers in the first-named respondent believe that the claimant was guilty of the alleged misconduct;

 

(ii)           Did they have reasonable grounds for that belief following a reasonable investigation in the circumstances;

 

(iii)          Were the process and penalty within the band of reasonable responses for a reasonable employer in the circumstances;

 

(iv)          If the claimant was unfairly dismissed did she by her conduct contribute to the dismissal and if so should compensation be reduced;

 

(v)           If a procedural irregularity rendered the dismissal unfair should compensation be reduced on a Polkey basis on the basis that the claimant would have been dismissed anyway;

 

(vi)          Was the claimant's inability to work due to medical issues, a result of the dismissal or were there other reasons at play which mean that compensation should be reduced.

 

3.             It was the claimant's case that:

 

(i) Her dismissal was prejudged and the process was a sham;

 

(ii) That the respondents wanted her out of the post because there was an animus against her by Mrs Whittaker and Miss Wright due to the fact that the claimant was appointed as leader in September 2013 when that job was earmarked for Miss Wright;

 

(iii) That this antagonism led both women to encourage two parents that they were friendly with to concoct false allegations against the claimant in respect of an incident of unreasonable force and a toileting incident;

 

(iv) That a charge of breach of confidentiality was "resurrected" when it had been dealt with;

 

(v)           That there were procedural irregularities in that: Mrs Maneely carried out the investigation and dealt with the appeal; Mrs Maneely told the social worker in a telephone conversation that the claimant would be dismissed showing that she had prejudged the issue; neither Miss Wright nor Mrs Whittaker were questioned; and the disciplinary process did not have regard either to the bad relationship between those two women and the claimant, or to the possibility that they were behind allegations which essentially were concocted; and

 

(vi)          The other procedural irregularity alleged was that the disciplinary hearing went ahead in the claimant's absence. The respondents' case on this point was that the hearing was reconvened several times and that, on the advice of the LRA and to avoid a stressful prolonging of the process, the hearing went ahead in her absence. At hearing the claimant gave no indication as to what would have been put forward if she had been in attendance, or if someone had attended for her, or if she had put something in writing for that hearing. The claimant did attend the appeal hearing.

 

4.             The respondents' case was that:

 

(i)             Child protection issues were raised with them when Mrs Whittaker tendered her resignation on 27 March 2014;

 

(ii)           That a parent raised a breach of confidentiality issue in relation to a child's medical care plan;

 

(iii)          That they had to investigate these matters; and

 

(iv)          On the information before them they had reasonable grounds for dismissing the claimant for gross misconduct.

 

Sources of Evidence

 

5.             The tribunal heard evidence from the following respondent witnesses: Julie O'Neill a committee member who dealt with the disciplinary hearing, Emma Maneely a committee member who carried out the investigation and dealt with the appeal; Jill Neill who was a committee member and principal of the associated primary school.

 

6.             The tribunal heard evidence from the claimant and from the following witnesses on her behalf: Fionnuala Anderson; Sinead Bartley the claimant's friend who attended the investigation and appeal meetings; Aine Falloon the social worker whose telephone records were in issue in the case.

 

7.             The tribunal also had regard to the documentation to which it was referred, together with the claim and response forms, the witness statements and the oral evidence of the witnesses.

 

The Law

 

8. The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 ("ERO"). At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2). One of the potentially fair reasons for dismissal, listed at Article 130(2)(b), relates to the conduct of the employee. If the tribunal finds that the employer has dismissed for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

 

9. The employer does not have to prove beyond reasonable doubt that the employee was guilty of the misconduct, but merely that it acted reasonably in treating the misconduct as sufficient for dismissing the employee in the circumstances known to it at the time. The reasonableness of the employer's decision is looked at at the time of the final decision to dismiss namely at the conclusion of any appeal hearing. The tribunal's task, in essence, is not to conduct its own investigation and come to its own view of the offence but rather, to assess whether the employer's actions in relation to procedure and penalty fell within the range of reasonable responses which a reasonable employer might have adopted in the circumstances. This approach has been endorsed by the Northern Ireland Court of Appeal in the case of Rogan v South Eastern & Social Care Trust [2009] NICA 47.

 

10. The statutory disciplinary and dismissal procedures (SDP) must also be followed in relation to any dismissal. In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting. The meeting must take place at a reasonable time, on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting. There was no breach of the SDP in this case.

 

11. The parties referred to the following authorities all of which were considered by the tribunal when applying the legal principles to the facts found in order to reach its conclusions:

 

(1) Jones v the City and County of Swansea [2010] EAT/0090/10/0505.

 

(2)   Dignity Funerals Ltd v Bruce [2005] IRLR 189b .

 

(3) Whitbread plc t/a Whitbread Medway Inns v Hall [2001] ICR 699 CA.

 

(4) BHS Ltd v Burchell [1978] IRLR 379 EAT.

 

(5)           A v B [2003] IRLR 405 EAT. This case makes clear that the tribunal, in determining whether an employer had carried out such investigation as was reasonable in the circumstances, must look at the relevant circumstances which include the gravity of charges and their potential effect upon the employee. It also makes clear the principle that, where an investigation is not reasonable in the circumstances, the dismissal is unfair even if no actual prejudice to the claimant is demonstrated. The defects in this case related to an extremely long delay in seeking witness statements and the failure to obtain statements from potentially relevant witnesses and the failure to share witness statements which could have supported the claimant's version of events.

 

(6)           Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA . This case endorses the approach in the A v B case by confirming that if the consequences for the employee are very serious then the employer has to be particularly even-handed and fair in the way it conducts the investigation.

 

Findings of Fact and Conclusions

 

12. The tribunal found the following facts proven on a balance of probabilities. The tribunal then applied the law to the facts found to reach the following conclusions.

 

13. The first respondent is a pre-school group which relies on fees from parents. It is a "feeder" nursery for the primary school of which Mrs Neill is principal.

 

 

14. The claimant was employed by the first respondent from 15 November 2012 until she was dismissed for gross misconduct with effect from 11 July 2014.

 

15. At first the claimant was a temporary assistant, and then became a permanent assistant and deputy leader in the morning session from April 2013. The leader of that session at that point was Mrs Whittaker. In September 2013 Mrs Whittaker became deputy instead of leader and the claimant became leader of the morning session. The claimant had been leader in the afternoon session from March 2013.

 

16. Miss Wright had worked as a temporary assistant and it was the claimant's case that, from the point at which she became the permanent assistant in April 2013, Mrs Whittaker and Miss Wright were hostile to the claimant because she had got the post that was earmarked for Miss Wright. In fact Miss Wright had not met the shortlisting criteria and this was known to Mrs Whittaker. The claimant further alleged that Mrs Whittaker became unco-operative once the claimant became leader of the morning session in September 2013.

 

17. Mrs Whittaker tendered her resignation at the end of March 2014 and in a subsequent conversation with the Chairperson of the Management Committee, Mrs Maneely, Mrs Whittaker indicated that the reason for her resignation was because of stress and bullying by the claimant. This conversation, which took place on 1 April 2014, was the precipitating factor which led to the disciplinary process and, ultimately, the claimant's dismissal.

 

Investigation

 

18. Such was Mrs Maneely's concern at what she was being told that she spoke to Miss Wright the pre-school assistant who said that she too had been unfairly treated by the claimant and, indeed, that she would resign without the support of Mrs Whittaker. At that point Miss Wright reported two alleged incidents which later formed two of the charges of gross misconduct against the claimant. These were the incidents which allegedly took place on 11 March 2014 (the toileting issue) and 31 March 2014 (the unreasonable force issue).

 

19. As a result of the two incidents being reported to her on 3 April 2014 Mrs Maneely spoke to the previous deputy leader, who was on a career break, and that individual also made criticisms of the claimant stating that she was highly critical of staff, expected the children to do things they were not capable of and that the claimant became frustrated if they could not do as she asked.

 

20. On 4 April 2014 Mrs Maneely spoke to the social worker Mrs Falloon due to her concerns about child protection and pastoral care issues. Following that conversation the claimant was suspended that same day pending investigation.

 

21. Mrs Maneely carried out the investigation which therefore involved the following:

 

(1)           She spoke to staff including someone on career break;

 

(2)           She met and took statements from the parent of the child in relation to the toileting and unreasonable force allegations;

 

(3)           A meeting of the Staffing Sub-Committee was convened on 10 April 2014 when it was decided that a questionnaire survey should be sent to all parents;

 

(4)           She met with the claimant on 17 April 2014 to go through the allegations;

 

(5)           She obtained a witness statement from a parent who had allegedly witnessed the unreasonable force incident;

 

(6)           She considered the results of the questionnaire survey;

 

(7)           She considered relevant policies.

 

22. At the investigatory meeting on 17 April 2014 an allegation of a breach of confidentiality was also put to the claimant. This allegation related to an incident which took place on 18 February 2014 when a child's medical care plan was shown to another parent.

 

23. Mrs Neill had previously spoken to the claimant about this incident, on Monday 3 March following a discussion with the parent who raised an issue on 26 February 2014. Mrs Neill's account of that discussion is that the claimant defended herself by saying that she had only "flashed" the care plan to the parent. Mrs Neill denied that the claimant had said that she had obtained the consent of the parent.

 

24. At the investigatory meeting Mrs Maneely records that the claimant said that she had only shown part of the care plan and made no mention of having obtained the parent's consent. The parent later confirmed in a written statement that she had not given consent to the claimant. Both Mrs Maneely and Mrs Neill said that if the claimant had said that she had got consent the conversation would have gone in a different way and they would had checked if the parent had given consent. Mrs O'Neill's evidence to us was that if consent had been obtained there would have been no question of covering up names. We do not accept the claimant's contention that she told Mrs Neill and Mrs Maneely that she had obtained the parent's consent. This damaged her reliability and credibility for us.

 

Disciplinary

 

25. The outcome of the investigatory stage was that disciplinary action was recommended. The claimant was invited by letter of 12 May 2014 to a disciplinary hearing. That letter complied with Step 1 of the SDP. The five charges outlined in the letter were as follows:

 

"12 ^th May 2014

 

Dear Mrs D Hill,

 

I wish to advise that Bleary Busy Bees Pre-school Management Committee is considering taking disciplinary action against you which may result in your dismissal.

 

 

This action is being considered with regard to the following circumstances:

 

 

1)         An allegation has been made that you restrained a child using unreasonable force;

 

2)         An allegation has been made that a child was traumatised after an incident when you brought the child to the toilet;

 

3)         An allegation has been made that you broke confidentiality by showing a parent another child's confidential medical information;

 

4)         There is evidence that you caused damage to the pre-school customers (parents and carers), risking the reputation and future sustainability of Busy Bees Pre-school;

 

5)         There is evidence that suggests you are unable to lead and form effective working relationships with staff.

 

6)         You are invited to attend a disciplinary meeting on Thursday 15 ^th May 2014 from 6pm - 7:30pm , which is to be held in Bleary Primary School where these matters will be discussed.

 

7)         Two Staffing Sub-committee members (Miss J Neill and Mrs H Reynolds) will attend the meeting. You are entitled, if you wish, to be accompanied by another work colleague or your trade-union representative.

 

Yours sincerely

Emma Maneely

Chairperson"

 

26. The disciplinary hearing was originally due to take place on 15 May 2014 but was rearranged several times due to the ill-health of the claimant which meant she could not attend. Ultimately the disciplinary hearing took place in the claimant's absence on 9 July 2014. The claimant's criticism of that decision to go ahead is as follows:

 

(i)             She was not invited to send someone in her stead or to send written representations;

 

(ii)           They should have waited until she was well enough to attend;

 

(iii)          They should have waited until the experts (that is the outside agencies) had conducted investigations. The outcome of those investigations was a letter from the PPS on 1 April 2015 and a letter from the Southern Health and Social Care Trust dated 20 April 2015 both of which confirmed that no further action would be taken against the claimant and confirmed that there was no evidence to indicate that she posed a risk of harm to children. No restrictions were placed on her contact with children.

 

27. At tribunal hearing the claimant gave no indication that there was anything else that she would have brought forward to the disciplinary hearing if she had been invited to provide written representations or to send a representative.

 

28. In general the burden is on the employer to see whether there are alternatives to proceeding with a hearing in the claimant's absence. For example, the employer in this case could have; asked the claimant if she wanted to produce a written submission or could have asked the claimant for an indication from her doctor as to when she would be fit. The issue for us is whether the speed of the process was a flaw that rendered the decision to dismiss unfair. The other issue for us is whether the claimant's absence was a defect rendering the decision to dismiss unfair, and if so whether any such defect was cured on appeal when the claimant did attend the appeal hearing.

 

29. Mrs O'Neill's evidence made clear that she found the unreasonable force allegation particularly serious; she did not find enough evidence to find the toileting incident against the claimant and she found against the claimant on the confidentiality issue. She regarded each of the substantiated charges as very serious. Allegations four and five seemed to be subsidiary for her. The claimant did not impugn the integrity of Mrs O'Neill and specifically did not include her in the "witch hunt" to get her out of the school.

 

30. Mrs Neill's conclusion at the disciplinary hearing was that the claimant was guilty of all the allegations. She felt that there was enough evidence to show that she was guilty of the toileting issue. It was her evidence that allegation 4 followed from the findings in relation to the first three allegations in that the school was dependent on fees from parents and any such behaviour would likely have an adverse effect on school numbers and income.

 

31. The outcome of the disciplinary process was communicated to the claimant by letter of 10 July 2014 when the five charges were listed and she was told that she was dismissed for gross misconduct. We find that decision to be within the band of reasonable responses given the testimony of Mrs O'Neill in particular and for the reasons set out below.

 

32. We are mindful of the comment of the Court of Appeal in Whitbread :

 

"It is, of course, important not to place too heavy a procedural burden upon employers. The employment tribunal is required to take into account the size and administrative resources of the employer's undertaking in deciding what falls within the band of reasonable procedural responses in each case".

 

33. In reaching our conclusions we have considered the following factors which are relevant to the circumstances in this case:

 

(i)         The gravity of the allegations against the claimant;

 

(ii)        The potential effects on her of one or more of them being found against her;

 

(iii)       The nature and extent of the investigation carried out by Mrs Maneely;

 

(iv)       The size and administrative resources of the first respondent and in particular the fact that it was peopled by volunteers and parents;

 

(v)        The fact that there were several staff unavailable because: Mrs Whittaker was leaving; another member of staff was on a career break; and the claimant was suspended. Given the size of the pre-school group and the fact that it was dependent on parents paying to send their children there and that this had a knock on effect on the likely numbers registering with the primary school, moving with reasonable speed through the process was important for the first respondent. We do not find that the process moved unduly speedily in this case;

 

(vi)       The fact that the claimant was not able to appear at the disciplinary hearing because of ill-health was not a flaw in this case that rendered the decision on appeal to be unfair as the claimant did actually appear on appeal and was able to put all the points she wanted to. (See below).

 

Appeal

 

34. The claimant appealed against that decision and the appeal hearing was heard by Mrs Maneely accompanied by Mrs Bradley who was Vice-Chairperson. The appeal hearing took place on 26 August 2014 and the claimant attended accompanied by her friend Mrs Bartley.

 

35. The claimant criticised the involvement of Mrs Maneely as she had carried out the investigation. Mrs Maneely tried to have the hearing taken by someone else but for various reasons (which we accept) was unable to do so and she chaired that hearing after seeking advice from the LRA

 

36. Whilst it is not ideal that the person carrying out an investigation deals with the appeal, good practice, as set out in the LRA Code of Practice, sets out circumstances where the person taking the decision to dismiss can also deal with the appeal. This was a small organisation peopled by volunteers at management level and in the circumstances of this case we find that there was nothing untoward with Mrs Maneely dealing with the appeal.

 

37. The claimant denied emphatically the allegations against her and stated that everyone was "ganging up" on her and that she was the one being bullied. In support of this the claimant said that she had confided in Mrs Anderson (who was employed by Early Years) and made two statements about what Mrs Anderson could say to support her. Mrs Anderson did not in fact support the claimant when Mrs Maneely spoke to her.

 

38. Indeed when Mrs Anderson attended the tribunal to give evidence to us she did not support the claimant. The divergence between the claimant's account and Mrs Anderson's evidence was one of the matters which tainted the reliability of the claimant's evidence for us generally.

 

39. The outcome of the appeal was that the decision to dismiss was upheld by letter of 8 September 2014 and this decision was a reasonable one to take.

 

 

Conclusion

 

40. Our task is not to retry this matter nor do we determine whether or not the claimant was guilty of the allegations against her. Our task is to look at the information before the disciplining panel and the appeal panel and to assess whether they conducted a reasonable investigation in the circumstances. We then look at whether their decision and process was within the band of reasonable responses looking at the equity and the substantial merits of the case.

 

41. The claimant accepted in evidence at tribunal that the allegations which were raised were serious, that there were grounds for her to be suspended and that the committee had grounds to investigate and proceed with a disciplinary procedure. Her point was that the committee members involved in the disciplinary procedure then "bought into" the witch hunt to get her out of the school as they wanted to keep Mrs Whittaker. We do not accept that because Mrs Whittaker had already obtained another job, she had tendered her resignation and, even though the claimant was sacked, Mrs Whittaker did not come back to Bleary Pre-school Group. We also do not accept that there was a 'witch hunt'.

 

42. The fact that these matters went no further with outside agencies is of no relevance to our assessment of the employer's actions at the time of dismissal and the confirmation of that decision following the appeal. The outcome of the outside agencies' processes was communicated in 2015. We do not find it unreasonable for the employer to go ahead with its processes in the absence of further communication from those agencies.

 

43. The claimant gave evidence to us that she overheard a conversation between Mrs Whittaker and Miss Wright on 31 March 2014 when she says they essentially agreed to allege that she bullied them. At no stage did the claimant mention this either at investigatory stage or appeal stage. We find that inexplicable as the claimant offered this as key evidence in her case to tribunal. The claimant also criticised, in tribunal, the investigatory notes alleging that there were important omissions yet she did not raise those at the appeal stage. In particular she alleges that she told Mrs Maneely at investigatory stage that she had obtained the consent of the parent in relation to the care plan. Mrs Maneely emphatically denied this. We find it inexplicable that the claimant did not say to Mrs Maneely at appeal something to the effect that Mrs Maneely knew that the claimant had obtained the parent's consent. We therefore do not accept the claimant's evidence on either of these points. These are further examples of the unreliability of the claimant's evidence.

 

44. The first question for us is whether the first respondent in the form of the disciplinary panel and appeal panel believed that the claimant was guilty of one or more allegations of gross misconduct. It seemed to be common case that the unreasonable force allegation and the breach of confidentiality allegation were each individually acts of gross misconduct. We find the evidence of Mrs O'Neill to be very important as she was someone whose integrity was not impugned by the claimant. Her evidence was candid in that she did not find evidence against the claimant on allegation 2 namely the toileting issue. She was clear that she found the claimant guilty of two of the allegations namely using unreasonable force and breach of confidentiality. Mrs Neill was clear that she found all the allegations proven. We find both panels believed that the claimant was guilty of gross misconduct.

 

45. This leads us to the second question which is whether the first respondent had reasonable grounds upon which to base that belief in guilt following a reasonable investigation in the circumstances. The claimant's criticism of the investigation really boils down to three allegations:

 

(i) That no account was taken of the background namely the animus by Mrs Whittaker and Miss Wright to her;

 

(ii) That the complaining parents were friends of these women. We note Mrs Maneely's evidence which was that complaints were raised with her as a result of her enquiries about why Mrs Whittaker wanted to leave: it was not therefore the case that the process was driven initially by Mrs Whittaker or Miss Wright; and

 

(iii)       That the social worker's note of the conversation with Mrs Maneely which the claimant says shows prejudgement on the part of Mrs Maneely. The social worker accepted that her note was not a verbatim record and that there was a delay between the conversation taking place and her note. Mrs Maneely emphatically denied that that was the extent of the conversation and she gave us a full description of a wide-ranging conversation about possible outcomes. We accept the evidence of Mrs Maneely on this point and do not accept that the entry in the social worker's note was reflective of the whole conversation, and we do not accept that it shows prejudgement by Mrs O'Neill.

 

46. We find that the first respondent had conducted a reasonable investigation in the circumstances and had reasonable grounds for belief in the claimant's guilt. (See below).

 

47. The third question for us is whether the process and penalty were within the band of reasonable responses for a reasonable employer in the circumstances.

 

48. On the "witch hunt" point the issue for us is whether the disciplinary panel and the appeal panel had evidence before them which should have led them to doubt the truth of what they were being told, in particular about the unreasonable force and breach of confidentiality allegations. We conclude that it was within the band of reasonable responses for the employer, looking at the information it had before it, to decide that the parent's complaint and the account of the witnesses to the reasonable force incident could be taken at face value. The alternative would have been that they would have had to accept the claimant's case that, firstly, two colleagues hated her so much that they were able to influence a parent and a witness to concoct an incident when none occurred and, secondly, having concocted this story, they waited until Mrs Maneely questioned Miss Wright to bring these matters up.

 

49. On the issue of the breach of confidentiality point and whether or not it was resurrected, the claimant wanted us to accept this as evidence that this process was a sham. Mrs Neill spoke to the claimant on 3 March 2014 and she intended to raise it at the next committee meeting to take place on 3 or 4 April. A letter from a parent stating that she was shown another child's care plan was before the investigatory panel. This was the basis for the disciplinary charge against the claimant of breach of confidentiality. That parent's statement was sent to the claimant in advance of the investigatory meeting and she answered that allegation by agreeing that she showed the care plan but denying that the parent could have seen names. She accused Mrs Whittaker of having revealed the name. We do not accept that this charge was 'resurrected' as Mrs Neill was due to take it further with the committee and a specific written complaint was raised by a parent. In these circumstances it was within the band of reasonableness for the investigator to ask the claimant about it and, given the claimant's response, for it to be one of the disciplinary charges against her.

 

50. The claimant criticised the questionnaire sent out to parents alleging that it was designed to elicit negative comment about her by singling her out. The claimant did not criticise the fact that it was sent out.

 

51. We find nothing sinister about the questionnaire and, in particular, we reject the suggestion that the claimant was inappropriately singled out. As leader it was obvious that there would be some questions about her. The first respondent must have taken account of the results in relation to charges 4 and 5 as set out at paragraph 25 above. We do not find that the questionnaire tainted the process or decision in issue in this case. In particular we do not accept the claimant's argument that, as a majority of questionnaire replies did not complain about her, that the replies which did raise concerns should be disregarded. In addition the questionnaire replies were not relevant to the unreasonable force and breach of confidentiality charges.

 

Summary

 

52. The claimant was dismissed for gross misconduct. That dismissal, as regards process and penalty, was within the band of reasonable responses for a reasonable employer in the circumstances. We therefore find that the dismissal was not unfair.

 

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 20, 21, 22 and 24 April 2015 at Belfast.

 

 

Date decision recorded in register and issued to parties: