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 was fairly dismissed by the respondent.

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Bell

 

Members: Mr A Carlin

Mr E Grant

 

 

 

Appearances:

 

The claimant was represented by Mr Michael O'Brien, Barrister-at-Law, instructed by John Fahy & Company Solicitors.

 

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

 

 

1.             The claimant complained that she was unfairly dismissed by the respondent on 21 June 2013 by reason of gross misconduct.

 

2.             The respondent contended that the dismissal was fair and whilst not relying upon its initial disciplinary hearing, contended that any deficiencies therein were corrected by the appeal process and that summary dismissal was a fair sanction for the charge of misconduct admitted by the claimant.

 

THE ISSUES

 

3.             The relevant issues for the tribunal were as follows:

 

(1)           Did the respondent believe that the claimant was guilty of the misconduct alleged?

 

(2)           Did the respondent have reasonable grounds upon which to sustain such a belief in the claimant's guilt following a reasonable investigation?

 

(3)           Were the procedures adopted and the penalty imposed within the band of reasonable responses for a reasonable employer in all the circumstances?

 

EVIDENCE

 

4.             The tribunal considered the claim, response, agreed bundles of documentation, lists of Matters Agreed and Matters in Dispute between the parties, witness statements and oral testimony from the claimant and from Mrs Shirley Young, former Assistant Director of Human Resources of the respondent Trust, who chaired the disciplinary appeal panel. The tribunal was referred by the parties to the decision made by a previous tribunal dated 10 October 2014 set aside by the Northern Ireland Court of Appeal in its decision dated 1 February 2016 and confirmed their agreement that this tribunal may adopt a portion of the findings of fact as detailed in the decision of 10 October 2014, in particular the findings in relation to the incident of misconduct, the investigation and the disciplinary hearing detailed from paragraph 3 to 3.24 (inclusive) and 7 to 22 (inclusive) therein.

 

RELEVANT FINDINGS OF FACT

 

5.             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 from 7 February 2011 served as a Staff Nurse, Band 5, in the Acute Medical Unit of the Altnagelvin Hospital. The claimant's terms and conditions of employment signed when commencing her employment, required her, inter alia, to adhere to and to maintain regulations regarding controlled drugs and the custody and proper administration of medicines and under administrative responsibilities to be familiar with Disciplinary and Grievance Policies of the Unit of Management.

 

6.             The respondent maintained a written disciplinary procedure which enshrined the general principles that:

•                     As part of the formal disciplinary procedure, an investigation would be conducted as quickly as was reasonable, taking account of the extent and seriousness of the allegations, by an investigating officer responsible for establishing the facts of the case and ensuring that any witnesses were interviewed and all relevant documentation examined before making a decision on the appropriate course of action.

 

•                     The investigating officer would meet with the employee, who might be accompanied and/or represented by an employee representative.

 

•                     In deciding upon appropriate disciplinary action, consideration would be given to the nature of the offence, any mitigating circumstances and previous good conduct.

 

•                     If it was considered that there was a case to be answered, the employee would be called to attend a disciplinary hearing.

 

•                     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.

 

7.             Under the respondent's procedure the disciplinary panel was to be made up of two managers at an appropriate level and it provided for witnesses to be called by either party and recalled if required by the panel. After conclusion of the hearing, the disciplinary panel was to review all of the evidence presented before determining, on a balance of probability, whether the actions were or were not proven and consider any mitigating circumstances put forward at hearing and take account of the employee's record before deciding on the appropriate disciplinary action to take.

8.             A right of appeal was provided to be a full rehearing of the case organised within 12 weeks of the original hearing. Possible disciplinary actions specified were a formal warning, a final warning, transfer and/or downgrading, dismissal and summary dismissal. It was expressly stated 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 and that in some cases, where gross misconduct had been established, an employee might be summarily dismissed without payment of contractual or statutory notice.

 

9.             The disciplinary procedure set out in its definitions:

 

'Misconduct is a breach of discipline which is considered potentially serious enough to warrant recourse to formal disciplinary action (please refer to Disciplinary Rules).'

 

'Gross Misconduct is a serious breach of discipline which effectively destroys the employment relationship, and/or confidence which the Trust must have in an employee or brings the Trust into disrepute (please refer to Disciplinary Rules).'

 

10.          The disciplinary rules list examples of offences under 'Misconduct', other than gross misconduct, which may result in disciplinary action and/or counselling/informal warning in light of the circumstances of each case. These included ' Dishonesty', 'Failure to comply with the Trust's Rules and Procedures, Policies and Practices', 'Misuse of Trust Property' and ' Alcohol/Drugs misuse'.

 

11.          Under 'Gross Misconduct' the disciplinary rules set out examples of offences considered as serious breaches of contractual terms which effectively destroyed the employment relationship, and/or the confidence which the Trust must have in an employee and warned ' Gross Misconduct may warrant summary dismissal without previous warnings'. Example offences given included ' Issues of probity', 'Serious Breaches of Trust Rules, Policies, Procedures and Practices', 'Breaches of contract of employment and/or Professional Codes of Conduct' and 'Misuse or unauthorised use of Property. - Unauthorised use or removal of Trust property....'

 

12.          Whilst the respondent did not have an express written policy, as acknowledged by the claimant, she was aware that the use or the removal of medicines for personal use was not permitted.

13.          Leaving aside issues of workplace conflict the claimant had a fairly uneventful employment history with the respondent until certain events occurred at the start of October 2012. It is the claimant's account that:

 

On the morning of 4 October 2012 she reported to work and had with her a Ventolin inhaler, her own property, which Sister Palmer, the Ward Sister who was on duty on that morning saw her using.

 

On 7 October 2012 whilst at work she felt the onset of an asthmatic attack but did not have an inhaler with her. Sister McGarrigle, the Ward Sister in charge that day was not present at the time and the claimant had sole responsibility for the Ward. Being under some stress she went to the medicine room in the Ward and took a Ventolin inhaler, the property of the respondent, took about five puffs from it and then left the inhaler on the desk in the medicine room. Whilst she had an inhaler in her car parked nearby she was concerned about being unfit to continue with her work and took the decision to use the respondent's Ventolin inhaler.

14.          The claimant continued with her duties for the remainder of her shift and did not inform the Ward Sister nor any other person in appropriate authority on 7 October 2012 that she had used the respondent's inhaler.

 

15.          The claimant was next on duty on 9 October 2012 and had a conversation that afternoon with Sister Palmer, the Ward Sister, during which she told Sister Palmer that she had used a Ventolin inhaler belonging to the respondent whilst on duty on the 7 October 2012. It is the claimant's account that:

 

She reported for duty and endeavoured to approach Sister Palmer to discuss matters but Sister Palmer was busy and asked the claimant to speak to her later. Sister Palmer saw the claimant using her own Ventolin inhaler on the 9 October 2012. That afternoon she spoke with Sister Palmer and discussed what had occurred on 7 October 2012. She was instrumental in approaching Sister Palmer and in bringing her use of the respondent's Ventolin inhaler to Sister Palmer's attention in a relatively unprompted manner. In response Sister Palmer told her, ' You are going to get me hung'.

16.          Sister Palmer reported the matter to a Mr Raymond Jackson the respondent's Unscheduled Care Coordinator, Emergency Care and Medicine.

 

17.          Mr Jackson after an initial meeting with the claimant, wrote to her on 10 October 2012 confirming that she was suspended from work with immediate effect pending further investigation of a number of concerns, namely, ' conduct, attitude and behaviour at work which could impact on your practice'; 'removal of an inhaler from the Ward for your own personal use'; and 'argument with a colleague on the Ward on [29 and 30 September 2012]'.

 

18.          The claimant raised a number of health matters and there was a concern that she might not be fit to attend an investigatory hearing. The claimant was referred to the Occupational Health Department on 10 October 2012 and following examination by the occupational health doctor was found to be fit to attend disciplinary meetings.

 

19.          Following an initial invite letter from Mr Jackson to the claimant on 6 December 2012 to attend an investigatory meeting on 17 December 2012 the investigatory meeting eventually took place on 1 February 2013 with the claimant represented by Mr Kevin Bell from the Royal College of Nursing.

 

20.          The investigation covered not only issues concerning the removal of the Ventolin inhaler from the Ward for the claimant's own personal use, but mainly focused on the investigation of other alleged conduct, attitude and behaviour at work, including specific alleged incidents of conflict with other work colleagues. Approximately 1½ out of 9½ pages of typed notes recording the investigatory meeting related to the investigation of the inhaler issue.

 

21.          The respondent's typed record of the investigatory meeting was subsequently sent out to the claimant for consideration, the claimant added numerous handwritten annotations where she took issue with the accuracy of what had been recorded relating to what she had said at the meeting and where she considered there to be confusion caused by the absence of dates having been recorded.

 

22.          Mr Jackson conducted an investigatory meeting with Sister Palmer on 8 March 2013, less than half of the notes taken relate to the inhaler incident, the majority dealing with the other alleged workplace conflicts concerning the claimant. During this meeting Mr Jackson did not endeavour 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 an inhaler and the date or dates upon which Sister Palmer understood the respondent's Ventolin inhaler to have been appropriated and used by the claimant.

 

23.          Mr Jackson then, also on 8 March 2013, conducted an investigatory meeting with Sister McGarrigle, the notes of which make little reference to the inhaler incident save brief mention that 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 she clarified 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 respondent's Ventolin inhaler on 7 October 2012. Reference 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.

 

24.          By letter dated 23 May 2013 the claimant was informed that a disciplinary hearing would take place on 12 June 2013. The letter stated:

 

'The charge the panel will consider are (sic) : You removed a Ventolin inhaler from the acute medical unit for your own use'.

The hearing was not to deal with the other allegations for which the claimant had also been suspended.

 

The letter added:

 

' A copy of the disciplinary procedure is attached and I would refer you to Section 6.5 of the procedure, which relates to the range of possible disciplinary actions. This describes the potential sanctions, which a disciplinary panel may consider appropriate depending on the nature of the misdemeanour and ranges from a formal warning to dismissal from your employment.'

 

25.          The disciplinary hearing took place on 12 June 2013 before a panel consisting of Mrs Donna Keenan, General Service Manager for Cardiology and Respiratory, and Ms Marina McShane, Human Resources Manager. The Presenting Officer was Mr Jackson and the claimant was again represented by Mr Bell from RCN.

 

26.          By letter dated 21 June 2013 Mrs Keenan advised the claimant of the outcome of the disciplinary hearing.  The disciplinary panel had determined that the claimant had removed a Ventolin inhaler from the drugs cupboard for her own use which she had admitted to doing and that she had informed Sister Palmer two days later that she had done so because she had felt an asthma attack coming on.  The letter continued, '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'.  The letter further made comment that it was unclear whether the claimant had used the inhaler from the medicine cupboard on more than one occasion.  The disciplinary panel viewed the claimant's actions as totally inappropriate and noted that the claimant's refusal to accept same raised concerns about the likelihood of similar behaviour in the future.  The disciplinary panel considered that the unauthorised use or removal of Trust property constituted gross misconduct under the disciplinary procedures; that, given the claimant's lack of insight as to the seriousness of her actions and the possibility of future incidents, a final warning was not appropriate; and, due to the irreparable damage caused to the trust and confidence placed in the claimant, the claimant was summarily dismissed with effect from 21 June 2013.

 

27.          There were a number of procedural deficiencies in the disciplinary proceedings as a result of which the respondent did not at hearing rely upon the disciplinary procedure to establish the fairness of the respondent's dismissal of the claimant. The parties agreed that these procedural deficiencies were as follows:

 

a.             The investigation carried out by Mr Jackson had focused on the other workplace conflicts and failed to investigate the inhaler incident so as to establish a definitive timeline of events, whether there was one or two different inhalers being referred to and what became of the respondent's inhaler after the claimant had used it.

 

b.             Prior to commencing the disciplinary hearing the same panel members on the same day also dealt with a formal grievance lodged by the claimant in relation to the workplace conflicts.

 

c.             The papers placed before the disciplinary panel contained the full investigation of the workplace conflicts which did not directly concern the specific disciplinary charge levelled against the claimant and were potentially prejudicial against her.

 

d.             Whilst the claimant was formally charged with having 'removed' an inhaler which might be considered to fall under the respondent's disciplinary procedure as ' misuse of Trust property', in the course of the disciplinary hearing reference was made by the panel to the claimant's actions having constituted 'theft' which was a graver allegation and one with which the claimant had not been formally charged.

 

e.             Whilst there was no medical evidence in respect of the Claimant's condition at the time and albeit that Ms Keenan the chairperson of the disciplinary panel was a trained and experienced nurse, the panel conducted a ' clinical assessment' of the claimant's medical condition at the relevant time.

 

f.              It could have been made clearer by the respondent to the claimant that the alleged conduct could amount to gross misconduct.

 

28.          By letter dated 26 June 2013 the claimant confirmed her wish to appeal the respondent's decision to summarily dismiss.

29.          In a report dated 26 September 2013, the claimant's General Practitioner, Dr McSorley, stated that the claimant suffered from ' suspected asthma' diagnosed in 2007 and that the claimant remained on treatment for depression at the time of the report.

 

30.          Mrs Young was approached by the respondent's Employee Relations Department in Human Resources and asked to chair the appeal panel. We accept Mrs Young declined the officer's additional request that she sit on the claimant's Stage 2 Grievance because she did not wish to put herself in a position where evidence could be confused or an impression of unfairness be given at the outset. Mrs Young did not ask nor was told what the grievance was about.

31.          An appeal in the form of a re-hearing took place on 2 December 2013 before Fiona Beattie (Assistant Director of Diagnostics and Clinical Support) and Mrs Young. The presenting officer was again Raymond Jackson and the claimant was represented by Kathryn Gault of the Royal College of Nursing. Whilst notes of the disciplinary appeal hearing record Ms Beattie as 'Chair' in the introduction, Mrs Young in fact chaired the hearing.

32.          The appeal panel had no involvement in dealing with any formal grievance matters raised by the claimant in relation to workplace conflicts.

 

33.          At the outset of the appeal Mrs Young confirmed that the appeal panel would be considering the original charge 'By your own admission you removed a Ventolin inhaler from the Acute Medical Unit for your own use'. The claimant confirmed that she had received the charge letter and copy of the disciplinary procedure. Mrs Young explained that if the two hours she had scheduled for the hearing were not sufficient it would be reconvened.

 

34.          Documentation initially before the appeal panel included the statements of Sister Palmer and Sister McGarrigle, and redacted notes of the disciplinary investigation which on the first page and as pointed out by Mr Jackson at the outset of the appeal hearing made reference to another incident which had been dealt with informally. The full investigation notes including details of the workplace conflicts were however in the course of the appeal hearing produced to the panel when clearer copies of the annotations made to the notes by the claimant relating to the investigation of the inhaler incident were sought by them. The statements of Sister Palmer and Sister McGarrigle both contained detail of other workplace issues.

 

35.          It was Mrs Young's usual practice not to read disciplinary files in advance but to let hearings take the normal course with the presentation of evidence and witnesses and for her to note items for questioning or checking at a later point in the hearing. We find credible Mrs Young's evidence that she adopted her normal approach for this appeal hearing and that she did not read the investigatory report or statements of Sister Palmer and Sister McGarrigle prior to the appeal hearing but first listened to the oral evidence and presentations made at the appeal hearing.

 

36.          As recorded in notes of the appeal meeting oral evidence given by Sister Palmer was that:

The claimant had admitted when questioned on the evening of 9 October 2012 that she had taken the inhaler. Sister Palmer stated she had first noticed the claimant using an inhaler during report on the morning of 9 October 2012. When Sister Palmer asked the claimant where she got the inhaler the claimant informed her that she had taken it from the medication cupboard. The claimant did not tell Sister Palmer that she 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 appear to be breathless. She had not ever had concerns about the claimant and the removal of drugs from the ward. She did not think that the claimant appreciated the seriousness of the issue. There was not a policy on the ward for when staff became unwell. Ventolin was a prescribed drug. Sister Palmer considered that it was not acceptable to take medication from the ward for personal use or with the intention of replacing it as all medication should be prescribed and this was not. Sister Palmer had not witnessed an emergency situation with the claimant on 7 or 9 October 2012.

37.          Mrs Young ensured that the claimant's representative was given the opportunity to ask Sister Palmer questions at the end of her oral evidence and again after panel questions. Before allowing the witness to leave Mrs Young first checked again with Ms Gault and Mr Jackson if there were any areas they wished to re-question Sister Palmer on, both advised they had no further questions and Sister Palmer was allowed to leave.

 

38.          Mr Jackson then pointed out how Sister Palmer's evidence differed from that of the claimant, it being Sister Palmer's account that the claimant only admitted taking the inhaler after being questioned and that she did not advise Sister Palmer of an intention to replace it with her own inhaler.

39.          Sister McGarrigle was next called as a witness by Mr Jackson. As recorded in notes of the appeal hearing she gave oral evidence to the appeal panel that:

 

She had never witnessed the claimant having an asthma attack or appearing breathless. The claimant did not discuss her health with Sister McGarrigle and never informed her that she had asthma or an asthma attack. If the claimant had an asthma attack she would have expected her to either attend A&E or to be seen by the doctor on the ward. It was not the 'norm' for staff to take medication on the ward for personal use. Sister McGarrigle was on duty on the 7 October 2012. Sister McGarrigle considered that it was never acceptable to take medication from the ward nor was it acceptable to replace medication that had been taken. She had not observed any emergency situation with the claimant on 7 October 2012 and one was not reported to her.

40.          Mrs Young gave Ms Gault the opportunity to ask questions at the end of Sister McGarrigle's oral evidence and again after panel questions. After Ms Gault confirmed that she had no further questions for Sister McGarrigle, the witness was allowed to leave.

 

41.          Mr Jackson pointed out inconsistencies between the claimant's evidence to the investigation team, it being the claimant's account that she had advised Sister McGarrigle of her asthma, whereas Sister McGarrigle's evidence was to the contrary and that the claimant did not have a cough or cold that week and of the view had she been unwell the claimant would have brought this to her attention as she was prone to do.

 

42.          Mr Jackson put to the appeal panel that whilst the claimant acknowledged that she removed the inhaler it was his view she had tried to mislead the investigatory team by stating that she had informed Sister Palmer that she had taken the inhaler with a view to replacing it with one that had been prescribed for her, in light of Sister Palmer's and Sister McGarrigle's evidence. Mr Jackson then referred to the claimant's annotations to notes of the disciplinary investigation that she had used the inhaler ' on 4 and 9 October 2012' and 'Asthma attack took place on 7 October' by which he submitted she had admitted that she had taken the inhaler on 4 October prior to the acute asthma attack on 7 October contrary to her advice to the appeal panel that she took it as a result of an acute asthma attack. Ms Gault queried what Mr Jackson was referring to. A short adjournment took place to allow Mr Jackson to obtain clear copies of the annotations he was referring to, in doing so Mr Jackson provided to the appeal panel un-redacted copies of the investigatory meeting notes. Mr Jackson referred then to annotations therein by the claimant ( 'I used it on the 4 Oct in the morning' and 'It was the afternoon when I borrowed the inhaler on 7 October' ) and submitted that from the claimant's annotation ' on 7 October, Sunday' made above a note that she had informed the investigatory team her asthma attack took place on the previous night, she had therefore confirmed her asthma attack took place on the night of Sunday 7 October 2012 and in the same paragraph she had added that she used the inhaler on 4 October and the afternoon of Sunday 7 October.

43.          Mr Jackson submitted that the claimant had tried to mislead the investigatory team and appeared to have been less than truthful. Mr Jackson put to the appeal panel that he would have expected the claimant to adhere to the Nursing and Midwifery Council Code of Conduct, to, ' Be open and honest, act with integrity and uphold the reputation of her profession', and, 'Act with integrity'. The Code had been breached and he did not consider the claimant to appreciate the seriousness of her actions nor was he confident they would not happen again. Mr Jackson put, rather than having borrowed, that the claimant actually stole the inhaler, had no intention of replacing it and only admitted that she took it after being challenged about it. The claimant's role required her to administer medication to patients, have access to drugs and to be open and honest whilst carrying out her duties. Mr Jackson stated that the claimant's actions had damaged trust and confidence.

 

44.          Ms Gault on the conclusion of Mr Jackson's presentation was invited to question Mr Jackson. Ms Gault in response expressed concern and queried if any record was kept, in response to the implication made by Mr Jackson that the claimant was prone to reporting all ailments. Mrs Young questioned the relevance of the matter given that there was an admission of the charge and advised that if it was necessary clarification on this matter could be sought from Sister Palmer. Ms Gault put to the appeal panel that these points were raised by Mr Jackson in his presentation after the witnesses had left so she was unable to question them on this matter. Mrs Young confirmed the appeal panel had not noted this as being an issue, did not consider that the claimant was disadvantaged because the witness was not present and pointed out that what Mr Jackson had been reading was in relation to what the claimant had written in her notes. Ms Gault put that it was strong wording from Mr Jackson to say that the claimant had 'stolen' the inhaler in response to which Mrs Young advised that the charge stated ' removal'.

 

45.          Ms Gault proceeded then to read out a lengthy written presentation prepared on behalf of the claimant followed by a written statement from the claimant seeking to influence the appeal panel as to their view of the seriousness of the charge admitted through consideration of mitigating circumstances so as to reduce the severity of the sanction imposed to a final written warning. Ms Gault in her presentation referred, amongst other things, to; the claimant's acceptance in not contesting the facts, that she had breached Trust policy; that she was keen to demonstrate that she had reflected on the incident and that she now had sufficient insight; that the claimant's personal relationships with colleagues were not as harmonious as should be and in the claimant's view her asthma attack was most likely triggered following an inappropriate altercation with her colleague; the claimant's view that her depressive illness had not been fully stable at the disciplinary hearing and adversely impacted on her ability to demonstrate sufficient insight compacted by the same panel dealing with disciplinary and grievance hearings on the same day. Ms Gault acknowledged that the appeal hearing would rectify this procedural irregularity. Ms Young queried whether the claimant was well enough to participate in the appeal hearing in response to which the claimant confirmed that she was. Ms Gault put to the panel that with the claimant's medication stabilised and the efflux of time she trusted that the claimant would exhibit an appropriate level of insight to inspire trust and confidence that sufficient learning had taken place. Mrs Gault in her presentation put to the panel that the claimant was ' mindful of her responsibilities and accountability for her own actions in light of her misconduct', had undertaken ' a root and branch review of her professional responsibilities as a registered nurse and as an employee', ' reflected on her actions, attitude and behaviour relating to the inappropriate removal of the Ventolin inhaler..', considered her judgement fatally flawed, deeply regretted her actions and would tender in good faith a genuine and remorseful apology and seek to demonstrate that she now had sufficient insight and had learnt from the incident. On conclusion of her presentation Ms Gault then questioned the claimant, in response to which the claimant explained that she had taken an asthma attack on the afternoon of 7 October 2012; she did not have her inhaler; she had the keys to the medication cupboard; she removed the inhaler and she took five puffs from it; she could not recall Sister McGarrigle working that day; in the past Sister McGarrigle would have offered her linctus for her cough but she had refused this; On 8 October 2012 she met with her RCN representative to discuss the bullying and harassment of her on the ward; on 9 October 2012 she had informed Sister Palmer that she had had an asthma attack and that she had used the inhaler; Sister Palmer had seen her use her inhaler before and had seen her use it earlier that morning. Mrs Young queried what point the claimant was making given that Sister Palmer was no longer present, the difficulty being that there was a dispute that the claimant believed to be relevant, but that there was no witness to question. The claimant 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.

 

46.          On questioning by Mrs Young the claimant advised that she had been coughing and felt that she was losing her breath and knew she needed an inhaler; she was under a lot of stress on the ward at the time; she had the keys in her pocket and she took the inhaler; in hindsight she should not have taken the inhaler and she apologised for her actions. Mrs Young raised concern as to why the claimant took the inhaler from the drugs cupboard, the claimant said she was aware of other staff taking medication for headaches and stated it was common place for staff to take prescribed medication. On being asked the claimant confirmed that Linctus was not prescribed medication and acknowledged that she knew she should not take anything from the medication cupboard. The claimant explained that she had wanted to tell her supervisor that she had taken it because she knew she needed to replace it. Mrs Young put to the claimant her concern that she chose not to challenge this when the witness was there and the difficulty was the appeal panel now had no way to question this. The panel called a short adjournment during which they gave consideration to recalling Sister Palmer but concluded that full opportunity had been given for the claimant to cross examine Sister Palmer on conclusion of her evidence and again after panel questions and that it would serve little useful purpose to recall Sister Palmer.

47.          On recommencement after the adjournment Ms Gault submitted that the removal of the Ventolin inhaler was the issue and there was an admission to this. The claimant was then invited to make her presentation which she did by reading out her written statement. In her statement the claimant told the panel ' the unfortunate chain of events that has happened, were and are events that I deeply regret. I took an inhaler, but I borrowed it. I did not do it with the intention of permanently depriving the Trust of it. I did it because I felt I could, however, I accept now that this was the wrong course of action. I made a judgement call based on what I believed I could do.

I would also accept that there was a breakdown in relationships which for my part, I deeply regret....

... I want to assure you... that I would not betray your faith in me should you re-instate me......Do please consider that the inhaler was a non-controlled drug. No one was hurt and I had fully intended to replace it. I didn't have to admit to taking it but I readily did because I thought I was ok to do it....

I can be a trusted colleague within our profession....I appear here today humbler than I may have been previously and ready to resume my career....' The claimant ended her statement and Ms Gault re-iterated that the claimant's job prospects were limited. Ms Gault asked the appeal panel to reconsider the sanction and in conclusion confirmed that, 'Nurses occupy a position of privilege and trust in society and are expected at all times to act professionally. Patients and their families must be able to trust nurses. To justify that trust, nurses must make sure that their conduct at all times justifies both their patient's and the public's trust in the profession' and ' the RCN does not condone the behaviour of members' who fail to follow their employer's policies or procedures or fail to act within the NMC Code of standards of conduct, performance and ethics for nurses and midwives' and Ms Gault assured the panel, in particular, that the claimant recognised that taking the inhaler for personal use was wrong; accepted that she had displayed an error of judgement; she had shown remorse for and insight into her offending behaviour; and would tender a genuine apology for her actions.

 

48.          From the claimant's description of having borrowed the inhaler and how she intended to replace it, Mrs Young considered ' the possibility, that if the truth had not become apparent, that the claimant intended to conceal her actions by replacing the hospital inhaler from one of her own prescription' having got the impression that the claimant had described a 'covert substitution'. Mrs Young found it ' shocking' that a qualified nurse would think it alright to replace medication without consideration of the serious potential consequences in respect of pharmacy supply chain, governance and safety issues . Mrs Young in response put further questions to the claimant, in particular asking her what she had meant when she said she ' borrowed' the inhaler and she intended to replace it. The claimant replied that she wanted to replace the inhaler, she had intended to replace it with one prescribed by the GP and return it to the ward manager. Mrs Young asked would the claimant have considered it acceptable to take antibiotics from ward stock, she replied she did not. When asked about labels and barcodes on medication products the claimant advised that she was not thinking about that at the time, she just thought she could replace the inhaler.

 

49.          On being asked if her admission was unprompted the claimant confirmed that it was. Mrs Young explained to the claimant that she struggled with what the claimant had said in her statement that the inhaler was not a controlled drug and no one was hurt. The claimant replied that she did not wish to come across in this way; that she would never do this again; at the time she had panicked when she took the acute asthma attack; she had been embarrassed by the cough and comments that were being made to her; she had an acute asthma attack, she needed the Ventolin inhaler and she had the keys there. When asked by Mrs Young why she had not told whoever was in charge that she had the attack the claimant stated that she felt very alone on the ward, that there was no one she could turn to and that staff would not care less. Mrs Young commented that that the care of the patients could have been compromised because the claimant did not inform anyone that she had this attack. In response, the claimant then stated that she may have told one of her colleagues but she did not want to mention their name and could not recall if this was at the time or if she had told her colleague later on. We accept Mrs Young's evidence that resulting from this she considered the claimant inconsistent in her evidence and to appear to have changed her answer under the impression that she had misjudged her initial answer to the appeal panel.

 

50.          Mrs Young explained to the claimant her struggle with the claimant's account that her asthma attack was so acute that it warranted her taking an inhaler from the medication cupboard, yet she failed to mention this attack to her colleagues, or the ward sister. The claimant responded that she did not say anything due to ongoing circumstances. The claimant told the appeal panel that when she had used Ventolin in the past it had eased her symptoms; she first presented with asthma in 2007; had used her own inhaler on 4 October, but not on 7 October 2012; did not have her own inhaler and was aware that she needed to get her repeat prescription. Mrs Young confirmed that the panel would take into consideration everything presented at the hearing and the appeal hearing concluded.

 

51.          We find credible Mrs Young's evidence that in then considering the appeal the panel relied only upon the evidence presented at hearing relating to the inhaler incident and disregarded the additional content in the documentation supplied. We accept whilst aware that there was a grievance and that the claimant had raised relationships with colleagues as an issue, these were not matters taken into account by the appeal panel in their deliberations.

 

52.          By letter dated 13 December 2013 Mrs Young confirmed to the claimant the appeal panel's determination of the disciplinary charge that, 'You removed Ventolin (salbutamol) inhaler from the Acute Medical Unit for your own use.' The undisputed facts established by the appeal panel on hearing evidence from Mr Jackson, Ms Gault, the claimant, Sister Palmer and Sister McGarrigle, were:

 

•          'You removed a Ventolin (salbutamol) inhaler from ward stock for your own use.

•          In discussion with Sister Palmer, you confirmed same and advised her of you[r] intention to replace the item from your own prescription.

•          Your actions were wrong.'

It was the panel's view that these actions were gross misconduct. In respect of consideration then given to mitigating factors presented: ' That you are very sorry for your actions and have a full understanding of their impact on the trust placed in you' the panel set out its conclusion ' This perspective was presented to us and despite the clarity with which this was communicated by Ms Gault on your behalf, when we questioned you direct, this reassurance was not substantiated. You continued to attempt to justify why you removed and used the inhaler. This leaves the panel with the belief that you continue to hold the view that these actions are justifiable in certain conditions. This is not the case. The removal of medicines is never appropriate and the intention to replace them is dangerous. We are not reassured that you will make an appropriate judgement in this or any similar matter in the future.' In respect of the mitigation point that the claimant was 'experiencing an acute asthma attack and needed medicine urgently', the panel set out that ' There is no medical evidence or corroboration that this was the case. Even in the circumstances that you had experienced an acute episode, you returned to duty. There is then no explanation for your failure to report both your medical situation and the removal of the inhaler as a matter of priority, if as you, stated you understood the latter to be wrong. Only these latter actions could be possibly construed as any form of mitigation. We did not find your explanation plausible.' Finally the panel stated that it did not consider the statements and character witnesses submitted in mitigation provided evidence relating to the charge and were not sufficient to alter their views in respect of the first two points in mitigation.

The panel confirmed its decision that the charge was proven and in the absence of credible mitigation and sufficient reassurance that similar conduct would not reoccur upheld the sanction of the disciplinary panel that the claimant be summarily dismissed with effect from 21 June 2013. This concluded the disciplinary and appeal process.

 

LAW RELEVANT TO LIABILITY

 

53.          Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has the right not to be unfairly dismissed by his employer.

 

54.          Article 130(1) of the 1996 Order provides that in determining for the purposes of this part whether the dismissal of an employee is fair or unfair, it is for the employer to show:-

 

(a) the reason (or, if more than one, the principle reason) for the dismissal, and

 

(b) that it is either a reason falling within Paragraph (2) or some other substantial reason of a kind such as to justify the dismissal of an employee holding the position which the employee held.

 

Reasons falling within Paragraph (2) include at Article 130(b) if it relates to the conduct of the employee.

 

55.          Under Article 130(4) of the 1996 Order 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.

 

56.          It is well established that the approach the tribunal should take in deciding whether an employer acted reasonably in treating an employee's conduct as a sufficient reason for dismissal is set out in the case of Iceland Frozen Foods  v  Jones [1983] ICR17, such that:-

 

1. The starting point should always be the words of Article 130(4).

 

2. In applying the Article an industrial tribunal must consider the reasonableness of the employer's conduct, not simply whether they (the members of the industrial tribunal) consider the dismissal to be fair.

 

3. In judging the reasonableness of the employer's conduct an industrial tribunal must not substitute its decision as to what was the right course to adopt from 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 industrial tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted, if the dismissal falls within the band the dismissal is fair, if the dismissal falls outside the band it is unfair.

 

57.          This approach was endorsed by the Court of appeal in Rogan V South Eastern Health and Social Care Trust [2009] NICA 47 and Dobbin V Citybus Limited [2008] NICA 42.

 

58.          In the context of a misconduct case Arnold J in British Home Stores  v Burchell [1980] ICR303 stated:

" what the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there 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, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further.

 

It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employer had before them, for instance, to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being 'sure', as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter 'beyond reasonable doubt'. The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstances be a reasonable conclusion".

 

59.          It is not for a tribunal in then determining whether or not dismissal was a fair sanction to ask whether a lesser sanction would have been reasonable, the question being whether or not dismissal was fair.

 

60.          Drawing from Harvey on Industrial Relations and Employment Law paragraphs [1550] - [1566] dismissals for a single first offence must be particularly serious. For 'gross misconduct' to be found the conduct is likely to be considered 'such as to show the servant to have disregarded the essential conditions of the contract service'—per Lord Evershed MR in   Laws v London Chronicle (Indicator Newspapers) Ltd   [1959] 2 All ER 285,   [1959] 1 WLR 698 (at 701). Whilst common law authority merely indicates a range of potential lawful summary dismissals for first offences of conduct which has on occasion been thought sufficient to justify dismissal without warning (examples of which include unauthorised use of/ or tampering with a computer, irrespective of the motive of the employee and even if in fact he derives no benefit from his actions ), dismissal may still be unfair under the Statute if in all the circumstances the employer has acted unreasonably, for example in refusing to consider extenuating circumstances.

 

61.          Gross misconduct is misconduct by the employee so serious that it completely undermines the employer's trust and confidence in the employee to perform his duties. In Sandwell & West Birmingham Hospitals NHS Trust V Mrs A Westwood [2009] UKEAT/0032/09/LA, the EAT took the view that what is, or is not, gross misconduct cannot be confined to the employer's own analysis subject only to reasonableness but is a mixed question of fact and law for the Tribunal in the context of the reasonableness of the sanction in unfair dismissal or breach of contract: As a matter of law, for an employee's conduct to impliedly or expressly amount to a repudiation of the fundamental terms of the contract it must involve a deliberate and wilful contradiction of those terms or amount to very considerable negligence.

 

62.          As per paragraph [1401] of Harvey, 'Although a clear set of rules is desirable, it does not follow that a dismissal will be unfair if no specific rules can be pointed to by the employer. Inevitably certain acts of misconduct are so well known that there is hardly any need for them to be spelt out.'

 

63.          An employer's discretion to decide on a range of penalties, all of which might be considered reasonable is not untrammelled and dismissal may still be too harsh a sanction. The Court of Appeal accepted in Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721, that the severity of the consequences to the employee of a finding of guilt may be a factor in determining whether the thoroughness of the investigation justified dismissal. At Paragraph 13 of the judgment, Lord Justice Elias stated:-

 

"Section 98(4) focuses on the need for an employer to act reasonably in all the circumstances. In A v B [2003] IRLR 405, the EAT (Elias J presiding) held that the relevant circumstances include the gravity of the charge and their potential effect upon the employee. So it is particularly important that employers take seriously their responsibilities to conduct a fair investigation where, as on the facts of that case, the employee's reputation or ability to work in his or her chosen field of employment is potentially apposite"

 

"In A v B the EAT said this:- Serious allegations of criminal misbehaviour, at least where disputed, must always be the subject of the most careful investigation, always bearing in mind that the investigation is usually being conducted by laymen and not lawyers. Of course even in the most serious cases it is unrealistic and quite inappropriate to require the safeguards of a criminal trial, but a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the enquiry should focus no less on any potential evidence that may exculpate or least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him."

 

64.          The EAT in Monji v Boots Management Services Ltd   UKEAT/0292/13   (20 March 2014, unreported)   subsequently suggested whilst the basic principle was not doubted that care may be needed in the application of the Roldan   principle, one of the suggested caveats being that it may be most applicable in a case where there is an acute conflict of fact with little corroborating material either way, and/or where the case against the employee starts to ' unravel' as it proceeds, in which case it makes sense to expect a higher level of investigation and adjudication on the part of the employer in the light of the severe effects of dismissal on that employee.

 

65.          As set out by Harvey at paragraph [1535.02] ' One final point to note is that, although misconduct can take so many forms, there is no hierarchy or graduation of the 'range' test, which simply has to be applied in all the circumstances.'

 

66.          Taylor V OCS Group Ltd [2006] IRLR 613 CA provides authority that procedural defects in the initial disciplinary hearing may be remedied on appeal provided that in all the circumstances the later stages of the procedure are sufficient to cure the earlier unfairness. It is for the tribunal to consider whether the overall process was fair, notwithstanding deficiencies at an early stage, in particular giving consideration to the thoroughness and open-mindedness of the decision maker.

 

67.          It is important therefore for the tribunal to remember that it has a limited jurisdiction in relation to claims of alleged unfair dismissal. It may not rehear and re-determine the disciplinary decision originally made by the employer; it cannot substitute its own decision for the decision reached by that employer. In the case of a misconduct dismissal, such as the present case, the tribunal must first determine the reason for the dismissal: that is, whether in this case the dismissal was on the basis of conduct and must determine whether the employer believed that the claimant had been guilty of that misconduct. The tribunal must then consider whether the employer had conducted a reasonable investigation into the alleged misconduct and whether the employer had then acquired reasonable grounds for its belief in guilt; not whether the tribunal would have reached the same decision on the same evidence or even on different evidence. The tribunal must then consider finally whether the decision to dismiss was proportionate in all the circumstances of the case.

 

 

 

 

APPLICATION OF THE LAW TO THE FACTS FOUND

 

68. It was not in dispute that the claimant admitted to having removed the respondent's Ventolin inhaler from ward stock for her own use and that the respondent's genuine reason for the claimant's dismissal related to her conduct. Misconduct is a potentially fair reason for dismissal.

 

69. The respondent in view of the procedural deficiencies in the disciplinary procedure did not seek to rely upon the disciplinary proceedings to establish fairness of the dismissal but contended that the appeal process cured these.

 

70. The relevant point in time for our consideration is on conclusion of the appeal decision. It is the tribunal's role to apply the objective standards of the hypothetical reasonable employer to all aspects of the question whether the claimant was fairly and reasonably dismissed.

 

71. The claimant admitted that she removed a Ventolin inhaler from ward stock for personal use and it was accepted in submissions on behalf of the claimant that the respondent had reasonable grounds to believe that the claimant took and used the respondent's inhaler without authorisation and that she did not immediately alert anyone in her line management. We reject however the claimant's argument that as a further element of misconduct for which the claimant was dismissed the appeal panel had perversely found as proven that the ' claimant intended to replace the inhaler with one of her own prescription thereby concealing her use of the inhaler' in effect adding an additional charge of attempting to conceal the use of the respondent's inhaler, which was not put to the claimant, contrary to evidence and stated findings, not properly investigated and adversely affected the panel's assessment of the claimant's integrity and ability to have trust and confidence in her. It was submitted the decision to dismiss on this point was procedurally and substantively unfair. We note Mrs Young's evidence was that in response to the claimant's comment that she had borrowed the inhaler and description of how she would replace it, Mrs Young considered ' the possibility, that if the truth had not become apparent, that the claimant intended to conceal her actions by replacing the hospital inhaler from one of her own prescription'. We note Mrs Young got the impression that the claimant had described a 'covert substitution' and in response she specifically queried with the claimant what she meant by ' borrowed'. We note Mrs Young found it 'shocking' that a qualified nurse would think it alright to replace medication and considered an intention to conceal was a possible explanation for the delay in reporting the matter and do not consider an inference drawn to this effect based on the available evidence of a clear intention to replace, the belief it was alright to do so and failure to report the matter at the time was a perverse one. We find that the panel's point of concern however in this regard and which aggravated the seriousness of the admitted matters was not attempting or intending to conceal the use of the respondent's inhaler but the claimant's belief that it would be alright to replace the inhaler with one of her own in light of her clearly stated intention and to do so, with no appreciation of pharmacy supply chain, governance and safety issues which Mrs Young found 'shocking'. We note Mrs Young investigated this concern further by asking the claimant about whether she would consider replacing antibiotics and then about labels and barcodes on medication products, to which the claimant replied that she was not thinking about that at the time, she just thought she could replace the inhaler. We find that it was the intention to replace and foremost the belief it was alright to do so which detrimentally affected the panel's assessment of the claimant and particularly so the apparent continuing belief at the appeal stage, still with no appreciation of pharmacy supply chain, governance and safety issues, which did not reassure the appeal panel that matters had been genuinely reflected upon by the claimant as asserted by her representative and that they could have confidence in the claimant's judgement.

 

72.          It was submitted that the major thrust of the claimant's case was outlined in the list of agreed procedural difficulties, rather than list of matter still in dispute provided to the tribunal at the outset of the hearing, the question being whether these deficiencies were considered and resolved by the appeal panel or whether they persisted.

 

73.          Agreed procedural difficulties were as follows:

 

74.          The investigation carried out by Mr Jackson had focused on the other workplace conflicts and failed to investigate the inhaler incident so as to establish a definitive timeline of events, whether there was one or two different inhalers being referred to and what became of the respondent's inhaler after the claimant had used it.

 

The tribunal is mindful that reasonable investigation is important as a procedural safeguard in particular to enable the employer to discover relevant facts upon which to decide whether an offence has been committed, to provide the employee with an opportunity to respond to allegations and raise substantive defences and opportunity to put forward factors in mitigation of the conduct. However, where an employee admits the misconduct, generally there will be little purpose in carrying on any investigation and the employer will be acting reasonably in believing that the misconduct has been committed. It is not reasonable though for an employer to simply ignore matters which they ought to reasonably have known, which would have shown that the reason was insufficient. We note the confusion at the earlier stage of the disciplinary hearing as to whether the claimant had used the respondent's inhaler on more than one occasion; whether she used it on 4 or 7 October and what had become of the inhaler after it was used. At the appeal hearing we are satisfied that the panel were clear that the charge against the claimant for their consideration was ' removal' as clearly pointed out by Mrs Young during the appeal hearing when Ms Gault took issue with Mr Jackson's suggestion that the claimant had ' stolen' the inhaler and we are satisfied that no suggestion of theft was entertained by the panel and find that none of the confusion there had been at the disciplinary hearing as to what the claimant was charged with persisted at the appeal hearing. We furthermore find that Mrs Young noted the conflict in evidence which remained after hearing from the relevant witnesses at the appeal hearing and that she accepted the claimant's account that she had used the inhaler once on 7 October 2012, which was the most favourable basis for the claimant. We consider that given the admission of the charge and acceptance of the claimant's account as to the time line and her use of the inhaler that the confusion which existed at the disciplinary hearing did not persist at the appeal hearing and consider that the investigation of the respondent into these matters was reasonable.

 

75.          Prior to commencing the disciplinary hearing the same panel members on the same day also dealt with a formal grievance lodged by the claimant in relation to the workplace conflicts.'

 

We accept Mrs Young declined the request to chair the claimant's Stage 2 Grievance because she did not wish to put herself in a position where evidence could be confused or an impression of unfairness be given and that she did not know what the claimant's grievance was about. We are satisfied that the appeal panel had no dealings with formal grievance matters raised by the claimant but dealt only with the claimant's appeal hearing. We find this procedural deficiency did not persist at the appeal hearing.

 

76.          The papers placed before the disciplinary panel contained the full investigation of the workplace conflicts which did not directly concern the specific disciplinary charge levelled against the claimant and were potentially prejudicial against her.

 

We are satisfied that the appeal panel formed its own view of the claimant from Mrs Young's questioning of her at the appeal hearing. We find credible Mrs Young's evidence that potentially prejudicial content relating to workplace conflict involving the claimant in the statements of Sister Palmer and Sister McGarrigle, which should not have been put before the appeal panel, was not read by Mrs Young and did not form part of the deliberations of the appeal panel; that similar content referred to at the start of the redacted investigatory notes and in the subsequently produced un-redacted version was not presented by Mr Jackson during the appeal hearing to the appeal panel and did not form part of the deliberations of the panel. We find that the appeal panel was in any event made aware from the case presented on behalf of the claimant that personal relationships were not as harmonious as should be expected, that the asthmatic attack was considered by the claimant as most likely triggered following an inappropriate altercation with a colleague and that the claimant accepted that she needed to improve her relationships and vice versa in the Acute Medical Unit, and was keen to minimize any aggravation which could trigger an asthmatic attack. Matters of workplace conflict were, as put by Mr Ferrity, an ' open secret' and we do not consider on balance that the procedural error of their inclusion in the appeal papers in this case caused sub conscious bias of the panel against the claimant. We find credible Mrs Young's evidence that she was initially of the view that a final written warning would be an appropriate sanction, but on questioning of the claimant that the initial substantial reassurances given all became ' worrying and inconsistent'. We find Mrs Young formed the view that the claimant was inconsistent in her evidence on being questioned and considered that she had appeared to change her answer under the impression she had misjudged it when the panel questioned her initial account that she told no-one at the time about her asthma attack but then on further questioning indicated she may have told a colleague but did not wish to name them, and that this is what detrimentally affected the appeal panel's assessment of the credibility of the claimant, not the unrelated content about other workplace conflicts included in the papers provided.

 

77.          Whilst the claimant was formally charged with having 'removed' an inhaler which might be considered to fall under the respondent's disciplinary procedure as 'misuse of Trust property', in the course of the disciplinary hearing reference was made by the panel to the claimant's actions having constituted 'theft' which was a graver allegation and one with which the claimant had not been formally charged .

 

As set out above we are satisfied that the appeal panel were clear that the charge against the claimant for their consideration was ' removal' as clearly pointed out by Mrs Young during the appeal hearing when Ms Gault took issue with Mr Jackson's suggestion that the claimant had 'stolen' the inhaler and are satisfied that no suggestion of theft was entertained by the panel. We find the charge considered and upon which the appeal panel based their decision was ' removal' of the inhaler and not one of ' theft'.

 

78.          Whilst there was no medical evidence in respect of the Claimant's condition at the time and albeit that Ms Keenan the chairperson of the disciplinary panel was a trained and experienced nurse, the panel conducted a 'clinical assessment' of the claimant's medical condition at the relevant time.

 

We are satisfied the appeal panel accepted that the claimant had asthma and that it was her reason for taking the respondent's inhaler. We find that whilst the appeal panel had some doubt over the plausibility of the claimant's account that her asthma attack was so severe that it warranted taking an inhaler from ward stock but then failed to mention it or seek some level of medical assistance, the appeal panel in its rehearing did not endeavour to conduct a clinical assessment of the claimant's medical condition at the relevant time.

 

79.          It could have been made clearer by the respondent to the claimant that the alleged conduct could amount to gross misconduct .

 

The respondent's disciplinary rules clearly include in its list of example offences of gross misconduct issues of probity and misuse or unauthorised use of property, including the unauthorised use or removal of trust property. We note that the claimant was aware that the removal and use of prescription medicine for personal use was not allowed and it was accepted at the appeal hearing that her actions were in breach of trust policy. We are satisfied that in particular given the outcome of the disciplinary hearing having been dismissal, that by the stage of the appeal hearing the claimant was fully aware of the seriousness of the charge against her, that the alleged conduct could amount to gross misconduct and the possible outcome be dismissal.

 

80.          Agreed matters in dispute were as follows:

 

81.          The investigation, disciplinary and appeal processes between them failed to investigate and establish if there was a culture of staff using Trust drugs for personal use.

 

This point was not advanced at the appeal hearing save for the claimant's comment that Sister McGarrigle had offered her Linctus from ward stock. We note Mrs Young established that Linctus differed from Ventolin in that was not a prescribed drug and consider that it was a reasonable distinction for a reasonable employer to have drawn.

 

82.          The investigation, disciplinary and appeal process between them failed to establish if there was a policy in place regarding staff becoming ill while on duty .

 

This point was established. We accept the submission that overall this is of little bearing upon the admitted misconduct.

 

83.          The appeal panel failed to act fairly by not recalling Sr Palmer and Sr McGarrigle after it was indicated that they could leave and were no longer required.

 

The claimant was in receipt of the statements of Sister Palmer and Sister McGarrigle prior to the appeal hearing and on notice of what their evidence would be. Full opportunity to challenge the evidence of Sister Palmer and Sister McGarrigle was given at the appeal hearing, both after their evidence and panel questions and confirmation was sought by Mrs Young that there were no further matters to be put before the witnesses were allowed to leave. We accept that the panel concluded that it would serve little useful purpose to recall Sister Palmer to respond to the claimant's later suggestion that Sister Palmer would have seen her using her own inhaler before and on the morning of 9 October but not questioned her about it and she had volunteered the information to Sister Palmer . We note that no request was made to recall Sister McGarrigle to respond to the suggestion that the claimant reported all ailments to her and by implication may not have had a cold that week. In the circumstances, given the admission of the relevant charge, we consider the appeal panel's decision to proceed without recalling either witness was within the band of reasonable responses of a reasonable employer.

 

84.          The disciplinary and appeal panels did not take account of the claimant's points in mitigation .

 

We are satisfied that the panel accepted that the claimant suffered from asthma and that this was her reason for taking the inhaler in the absence of having her own to hand. We find Mrs Young approached the rehearing of the charge against the claimant with an open mind and accept that she considered it part of the purpose of the hearing to consider whether the charge fell into ' misconduct' or ' gross misconduct'. We in particular find credible Mrs Young's evidence that based upon Mrs Gault's presentation and the written statement of the claimant, both of which provided substantial reassurances to the appeal panel and points in mitigation before the claimant was questioned, Mrs Young was of the view that a final written warning would be an appropriate sanction. It was however the claimant's performance on questioning that led the panel to consider the claimant's evidence as ' worrying and inconsistent', in particular the claimant changing her answer as to whether she told anyone at the time she had had an asthma attack. Mrs Gault in her presentation had confirmed that the claimant was ' mindful of her responsibilities and accountability for her own actions in light of her misconduct', had undertaken ' a root and branch review of her professional responsibilities as a registered nurse and as an employee', ' reflected on her actions, attitude and behaviour relating to the inappropriate removal of the Ventolin inhaler..', considered her judgement fatally flawed, deeply regretted her actions and would tender in good faith a genuine and remorseful apology and seek to demonstrate that she now had sufficient insight and had learnt from the incident. The claimant's remarks thereafter that no-one was harmed and the inhaler taken was not a controlled drug, we accept gave the panel the impression that the claimant had a continuing belief contrary to the reassurances given that the unauthorised removal of drugs could be justified and to appear to miss the point that it was the unauthorised removal of a prescription drug from a locked drugs cabinet in breach of trust which was of concern to them and they sought reassurance going into the future that she and her judgement could be trusted. We are satisfied that the panel took into account the claimant's points in mitigation but find as a fact that it was the claimant's approach to the charge and attitude displayed at hearing which led the panel to conclude that the substantial reassurances in the pre-prepared statements presented were not supported, to question whether the points put forward in mitigation were correct and to doubt the claimant's integrity and credibility going ' into the future'.

 

85.          The panels failed to adequately deal with the 'removal' of the inhaler in the context of the charge as formulated.

 

No suggestion or charge of theft was made at the appeal hearing. It was admitted by the claimant that the inhaler was taken from stock and used for personal use. The appeal panel accepted the claimant's account that the inhaler was used only once. We accept the respondent's contention that whatever then subsequently happened to the inhaler thereafter, whether it was left on a table or removed, the upshot of the admitted actions was that it could not be re-used and the employer was effectively permanently deprived of the inhaler. We do not find in these circumstances for the appeal panel not to seek to investigate further or make findings relating to the ' removal' was outside a band of reasonable responses and are satisfied their consideration of the ' removal' of the inhaler in the context of the charge as formulated at the appeal stage was reasonable.

 

86.          The Assistant Director of HR, who sat on the appeal panel, may have been influenced by the report of the disciplinary panel in regards to both the disciplinary hearing and the grievance hearing.

 

We found Mrs Young a credible witness and consider that she approached the appeal with an open mind and was not affected by extraneous matters.

 

87.          The appeal panel created an unfair pressurised environment due to time constraints.

 

We note that at the outset of the appeal Mrs Young indicated that they would reconvene if the hearing was not finished and that this point was not pursued at the appeal hearing. We do not consider that the appeal panel created an unfair pressurised environment due to time constraints.

 

88.          The hearings were unfair because the claimant did not have certain witness statements .

 

This point was not pursued at the appeal hearing or before this tribunal.

 

89.          The claimant was not afforded the opportunity to access some pre-prepared documents prior to entering the appeal hearing which allegedly contained the wrong framing of the charge .

 

This point was not pursued at the appeal hearing or before this tribunal.

 

90.          The appeal panel saw all the un-redacted material produced to the appeal panel.

 

As set out above, we accept that un-redacted material was not read, nor taken into consideration in the appeal panel's deliberations. Workplace conflict involving the claimant was an ' open secret' and was referred to by the claimant in the appeal hearing. We do not consider that the un-redacted material produced resulted in sub conscious bias against the claimant.

 

91.          The panel failed in its inquisitorial role to find facts around Sr Palmer's comments at the disciplinary hearing as to why she thought that the claimant did not appreciate the seriousness of the issue.

 

We found Mrs Young credible in her evidence and are satisfied that she solely from her own direct questioning of the claimant at the appeal hearing formed her own view that the claimant did not appreciate the seriousness of the issue. We do not consider that the appeal panel relied upon the comments of Sister Palmer in forming their opinion. We do not consider the appeal panel to have failed in its inquisitorial role to find facts around Sister Palmer's comment.

 

92.          In light of the matters discussed above we consider that the procedural deficiencies at the earlier stage of the process either did not persist, or were adequately remedied at the appeal stage.

 

93.          Mr O'Brien contended that the acts admitted by the claimant, of taking and using the inhaler without authorisation and not immediately alerting anyone in her line management, could not reasonably be considered to be acts of gross misconduct and reasonable in all of the circumstances to dismiss the claimant. He argued that following the Westwood case, the bare charge of removal of the inhaler for personal use is not a charge reasonably capable of amounting to gross misconduct given the respondent's acceptance that it was not an act of theft, was not an act of dishonesty and it did not without significant aggravating factors alone serve to repudiate the contract and that for a first offence to be considered gross misconduct sufficiently serious for dismissal it should be exceptionally serious, Mr O'Brien submitted the admitted charge was not exceptional in that way. It was contended that Mrs Young did not appear to attach any weight to factors such as the importance of establishing a time line and if the inhaler was used more than once, but relied only on the bare fact admitted and did not undertake any analysis which would help characterise the nature and gravity of the offence between being misconduct or gross misconduct.

 

94.          Mindful of the Roldan principle and the severity of the consequences for the claimant's career in nursing in Northern Ireland we note that the principle relates to the thoroughness of the investigation and is most applicable in disputed cases where principle findings of fact need to be the result of investigations most thorough. We accept the respondent's submissions that this case involved an admission of guilt and that although misconduct can take many forms there is no hierarchy in the range test. Whilst the respondent did not have an express medicines use policy we note the claimant's evidence that she knew not to take medication without authorisation and accept as per Harvey that ' certain acts of misconduct are so well known that there is hardly any need for them to be spelt out'. We find in light of the conflicting accounts before the appeal panel with no evidence to provide corroboration one way or the other the panel accepted the claimant's account as to the time line and number of uses of the inhaler, which was the most favourable approach to her. We find that the matter of concern to the appeal panel was the claimant's failure to make the report for a significant period of time, rather than the undetermined matter of whether it was made unprompted. We accept that the respondent considered the claimant's taking of a prescription drug from under lock and key for her own use as aggravated by her failure to report the matter until two days later, compounded by her contemplating replacing it with one of her own and in particular her ongoing failure to see that that there was much wrong with this, together with concern over the claimant's integrity and credibility arising from her inconsistency in her evidence on challenge before them. We note that the claimant was aware that the removal of medication without authorisation for personal use was wrong, that she admitted the charge put and acknowledged before the appeal panel that her actions were wrong and in breach of the respondent's procedures and that at the appeal hearing the claimant sought the next least severe sanction to dismissal, of a final written warning.

 

95.          We consider that at the end of the appeal stage when the decision to dismiss was made, the appeal panel held a genuine belief in misconduct by the claimant based upon reasonable grounds, following a reasonable investigation, being that the claimant took and used the respondent's inhaler without authorisation and that she did not immediately alert anyone in her line management.

 

96.          Whilst it is not for the tribunal to substitute its opinion for that of the employer, following the Westwood case, as a mixed question of fact and law in these circumstances we do not consider unreasonable the respondent's analysis of the nature and gravity of the offence, or a conclusion that the conduct in question was a wilful contradiction of the fundamental implied term of trust and confidence and capable of amounting to gross misconduct sufficient to repudiate the contract of employment. We consider that the respondent considered a lesser sanction of a final written warning and took account of the claimant's points in mitigation.

 

97.          We are satisfied in the above circumstances that the respondent genuinely believed that the claimant was guilty of the misconduct alleged, had reasonable grounds upon which to sustain such a belief in the claimant's guilt following a reasonable investigation and notwithstanding the deficiencies at the earlier stage of the procedure, that the appeal process was conducted in an adequately thorough and open minded way, such that overall the procedures adopted and penalty imposed, whilst at the extreme end, fell within a band of reasonable responses for a reasonable employer in all the circumstances of the case.

 

CONCLUSION

 

98.          We find that in all the circumstances of the case the respondent acted reasonably in treating misconduct as a sufficient reason for dismissing the claimant, determined in accordance with equity and the substantial merits of the case, and that the claimant's dismissal was fair under Article 130 of the 1996 Order.

 

 

Employment Judge:

Date and place of hearing: 13-15 September 2016, Belfast.

Date decision recorded in register and issued t o parties: