Industrial Tribunals Northern Ireland Decisions

THE INDUSTRIAL TRIBUNALS

 

CASE REF: 715/16

 

 

 

CLAIMANT: Rodney Patterson

 

 

RESPONDENT: Western Health and Social Care Trust

 

 

 

DECISION

 

The decision of the tribunal is that the claimant's claim of unfair dismissal is dismissed.

 

 

 

 

Constitution of Tribunal:

 

Employment Judge: Employment Judge Wimpress

 

Member: Mr I Carroll

 

Appearances:

 

The claimant was represented by Mr Andrew Scullion, Barrister-at-Law, instructed by James T Johnston & Co Solicitors.

 

The respondent was represented by Mr Patrick Ferrity, Barrister-at-Law, instructed by Directorate Legal Services - Business Services Organisation.

 

 

SOURCES OF EVIDENCE

 

1. The tribunal received a bundle of documents by agreement which was supplemented during the course of the hearing and heard eviden ce from the cl aimant,
Mr McGarvey, Ms Doherty, Ms McElhinney, Dr Mullan and Ms Casey. Each of the witnesses provided a written witness statement which they adopted as their evidence. An agreed Schedule of Loss was also provided to the tribunal.

 

THE CLAIM AND THE RESPONSE

 

2. The claimant brought claims in respect of unfair dismissal and holiday pay of £3,150.00. The claim in respect of holiday pay was not pursued. The respondent accepted that the claimant had been dismissed for misconduct and contended that the decision to dismiss the claimant was fair and reasonable. At the outset of the hearing the claimant abandoned his requests for reinstatement and re-engagement. As the claim was submitted before the internal appeal process had been completed the tribunal permitted the claim and response to be amended to reflect the up to date position as follows:

 

"The Disciplinary Appeal Hearing took place on 17 May 2016, The respondent confirmed by way of letter dated 3 August 2016 that it had determined that Charge 1 was proven and Charge 2 was "partially proven." The respondent upheld the decision to summarily dismiss the claimant. This was following a complete re-hearing and reconsideration of charges, witnesses, evidence and sanction by a fresh panel with no previous involvement."

 

THE ISSUES

 

3. The main issues were whether the claimant had been fairly dismissed and whether there had been a reasonable investigation.

 

FACTS

 

4. The claimant commenced employment with the respondent as a Nursing Assistant on 23 March 2001 and following a disciplinary process his employment ended on 4 December 2015. The claimant performed general duties which included feeding, toileting and taking care of the personal hygiene of elderly patients. The events that gave rise to these proceedings took place in Ash Villa at the Tyrone and Fermanagh Hospital Omagh.

 

5. On 1 June 2014 an incident occurred in Ash Villa involving Patient N, a 63 year old female with a diagnosis of dementia. Patient N sustained an injury to her left thumb when she was being attended to by three nursing staff, the claimant, Nursing Assistant Alicia O'Connor and Nursing Assistant Deirdre Keenan.

 

6. On 2 June 2014 Nursing Assistant O'Connor made a handwritten statement in which she described the incident with Patient N on 1 June 2014. She described how the Nursing Assistants went about getting Patient N out of bed and dressed. This was not an easy exercise and Nursing Assistant O'Connor described how Patient N became aggressive and was spitting, kicking and shouting. They managed to change Patient N's incontinence pad and to lower her unto the floor. However, Patient N continued to be aggressive and was spitting, kicking and flinging her arms. She described the claimant as having a tight grip of Patient N's left hand and pushing it inwards. Nursing Assistant O'Connor goes on to state that the claimant began to show signs of aggression and that his facial expression was very cross. According to Nursing Assistant O'Connor Patient N shouted "Ah my hand" on two occasions. Patient N was reassured by Nursing Assistant O'Connor and they proceeded to weigh her using the hoist. Nursing Assistant O'Connor stated that at no time did Patient N's hand come into contact with the hoist. After Patient N was lowered unto the bed the claimant shouted - "Look at her hand [her thumb]. I'm reporting this. You need to report these things straight away." The claimant then left the room and reported the matter to Ward Manager Noreen Monaghan. Nursing Assistant O'Connor then said to Nursing Assistant Keenan - "Note what side I am on" as she felt uncomfortable with the claimant's behaviour and the blackness in Patient N's left thumb.

 

7. Nursing Assistant Keenan also made a handwritten statement on 2 June 2014. In her statement she said that while being cleaned Patient N became physically and verbally aggressive. Nursing Assistant O'Connor was on the right holding Patient N's hand and the claimant was to her left holding her hand. Patient N then kicked out as if to throw herself on the floor. The claimant and Nursing Officer O'Connor supported Patient N so that she went gently onto the floor. Once Patient N settled Nursing Assistant Keenan continued to attend to her personal hygiene and helped her get dressed. Nursing Assistant Keenan then set the hoist to record Patient N's weight. During this time Nursing Assistant Keenan heard Patient N call out two times - "My hand. My hand." She did not witness the claimant hurt Patient N's thumb. Patient N remained physically aggressive and began spitting out. Nursing Assistant Keenan and the claimant attached the sling to the hoist during which time Patient N was verbally abusive. Nursing Assistant Keenan then stated as follows:

 

"Rodney [the claimant] responded by being verbally abusive back to her and was rough in his approach."

 

Patient N's weight was recorded and she was let down from the hoist. With the procedure complete, the claimant noticed that Patient N's hand was badly bruised and informed the nurse in charge, Noreen Monaghan.

 

8. On 2 June 2014 Pauline Casey, Acting Head of Older People's Services and Lead Nurse advised the claimant that Nursing Assistant O'Connor had alleged that he had assaulted a patient on 1 June 2014.

 

9. On the same day the claimant gave an account of the incident in a handwritten letter to the respondent. In the letter the claimant stated as follows:

 

"I am making a statement due to an allegation made against me on 1 ^st June 2014, during my work in Ash Villa, at approximately 11.30 am. I, Rodney Patterson, was called by Dierdre [sic] Keenan then Noreen Monaghan to come and assist her and Alicia O'Connor with a patient named [Patient N] to help them get her out of her bed and to attend to her personal hygiene and to weigh her. During these procedures the patient [Patient N] was confused, agitated and putting up a fight, She was spitting & striking out with her hands & feet. Dierdre [sic] was trying to put the hoist on her to get her weighed. I was holding her left arm & Alicia was holding her right arm to keep her from striking out. In this process she got her arm free from my hold and hit the bar on the hoist. I noticed her thumb turning blue. I then went and reported this to the nurses, Colette McElduff and Noreen Monaghan, who were on duty. I went back to my post to assist Alicia and Dierdre [sic] in removing the hoist. When the hoist was removed Patient N slid to the floor from the chair and was lying on the floor. Myself, Alicia and Dierdre [sic] got her from the floor onto the chair and she seemed more settled. Dierdre [sic] gave her a drink. This is a true and accurate account of what happened."

 

10. Ms Casey wrote to the claimant on 2 June 2014 and suspended him on full pay pending the investigation of an allegation of abuse towards the patient made by a member of staff and pending the outcome of any disciplinary proceedings that may ensue.

 

11. The matter was also reported to the PSNI and the Vulnerable Adult Safeguarding Board.

 

12. On 5 June 2014 Nursing Assistant Keenan changed the portion of her statement quoted at paragraph 7 above to read:

 

"Rodney [the claimant] responded by speaking to her in a loud tone of voice and could have been more gentle in his approach."

 

The references to "being verbally abusive back to her" and being "rough in his approach" were crossed out and initialled as were the additions. The original text was not obliterated and remained clearly visible.

 

13. A PSNI investigation commenced into the incident.

 

14. On 13 June 2014 Nursing Assistant Keenan made a statement to the PSNI. In her statement she described the early part of the incident in a similar manner to her handwritten statement. She stated that the claimant drew attention to Patient N's thumb which was very black from the tip to the base. Nursing Assistant Keenan then continued as follows:

 

"During the procedure I felt [the claimant's] approach could have been more calm and gentle towards Patient N - instead of ignoring her verbal abuse he answered her. He had a loud voice which is part of his personality. This may have contributed to Patient N's agitated state and she is also uncomfortable with men. However I do not believe [the claimant] deliberately hurt Patient N. I have never seen anything in his behaviour to indicate that he would hurt anyone."

 

15. Nursing Assistant O'Connor made a statement to the PSNI on 17 June 2014. She described how she was supporting Patient N's right hand and how she and the claimant lowered her onto the floor. She then stated that while they were undressing Patient N she became worse throwing her hands outward and cursing - "Go on you fucker you." Nursing Assistant Keenan started to wash and dress Patient N. According to her statement the claimant pushed Patient N's left hand from the wrist downwards and she could not see Patient N's hand inside the claimant's hand. Patient N shouted - "Ah my hand" and then became verbally abusive towards the claimant saying - "you're a bastard, you're a cunt" and she heard the claimant saying back to Patient N - "No I'm not you're a fucker, you're a cunt, you're a bastard". Nursing Assistant O'Connor saw the claimant pushing Patient N's hand down from her wrist and heard Patient N saying - "Ah my hand" for a second time. After Patient N was dressed she calmed down and she was weighed. The claimant then said - "look at her hand, you have to report these things. I am going up to report it to Noreen." Nursing Assistant O'Connor saw that Patient N's left thumb was black from the base to the top along the pad. The top of the thumb was dark but underneath it was really bad. After the claimant left the room Nursing Assistant O'Connor told Nursing Assistant Keenan to note what side she was on because she was not happy about this. Nursing Assistant O'Connor thought that the claimant had caused the injury by the way that he was holding Patient N's hand. The claimant returned to the room and said that Patient N must have hit her hand on the hoist. Nursing Assistant O'Connor claimed that about two weeks before the incident staff were talking about MAPA training and she heard the claimant say that they were not allowed to use the thumb holds any more but if need be he would use them.

16. On 10 July 2014 the claimant was interviewed under caution by the PSNI. The claimant described how he used a MAPA hold on Patient N. There was some discussion of Patient N reacting to males working with her and the claimant stated that he was directed by his ward manager to deal with Patient N. The claimant was shown the internal and police statements made by Nursing Assistants O'Connor and Keenan. The claimant commented that Nursing Assistant O'Connor had told a lot of lies and that he had never cursed at a patient and that he agreed more with Nursing Assistant Keenan's statement than Nursing Assistant O'Connor's.

17. A file was subsequently sent by the PSNI to the Public Prosecution Service.

 

18. On 5 September 2014 the Public Prosecution Service wrote to the claimant and informed him that it had decided not to prosecute him in relation to an incident on 1 June 2014.

 

19. As noted above the incident was also the subject of an investigation by the Vulnerable Adult Investigation Team which produced a detailed report. It concluded that Patient N's care plan had not been followed as it indicated that she was to be cared for by females only and that she was subjected to emotional and physical abuse by having a male attend to her. The investigation also found that Patient N was verbally abused by the use of foul language. It also supported the PSNI outcome that there was no evidence to substantiate the allegation of physical abuse.

 

20. On 14 April 2015 Ms Michelle McElhinney, Senior HR Advisor invited Nursing Assistants O'Connor and Keenan to separate investigatory meetings with herself and Acting Ward Manager Nora Burke on 21 April 2015. The letter advised that the purpose of the meeting was to discuss concerns arising from an Adult Safeguarding Investigation that they participated in. The claimant was also invited to an investigatory meeting with Ms McElhinney and Ms Burke on 28 April 2015 by letter dated 21 April 2015.

21. On 21 April 2015 at the start of the investigatory meeting with Nursing Assistant O'Connor Ms McElhinney stated that the purpose of the meeting was to provide clarification on the statement provided by her to management and the statement taken by the PSNI. Ms Burke read Nursing Assistant O'Connor's statement and Nursing Assistant O'Connor was then asked a series of questions about the events in question. By way of clarification Nursing Assistant O'Connor stated that Nursing Assistant Keenan was in the room when the claimant used inappropriate language to the patient.

 

22. The investigatory meeting with Nursing Assistant Keenan followed the same pattern. Nursing Assistant Keenan said that she was still happy with her statement and that she didn't recall hearing any foul language.

 

23. On 28 April 2015 the investigatory meeting with the claimant took place as arranged. It was conducted by Ms McElhinney and Ms Pauline Casey, Acting Head of Service, who had taken over from Ms Burke who, due to personal circumstances, was unable to fulfil her role in the investigation. The claimant was accompanied by a colleague, Mr Seamus McGarvey. The claimant was asked about the events that resulted in the injury to Patient N's thumb and the allegation that he had sworn at Patient N. In answer to questioning the claimant said that at the time of the incident he did not know that Patient N could not have males working with her and that he only found out later that day. During the hoist procedure the claimant said that he had the patient in a MAPA hold and that the patient was cursing and swearing. The claimant emphasised that at no time did Patent N cry out that she had hurt herself. After Nursing Assistant Keenan went to push the hoist in the patient got angry and Nursing Assistant O'Connor said - "She's f'ing spitting on me." The claimant said that the two Nursing Assistants did not talk to the patient whereas he spoke to her throughout and had to raise his voice. Nursing Assistant O'Connor was swearing and Nursing Assistant Keenan was terrified. Ms Casey asked what the patient was shouting and the claimant replied - "She said you fucking bastard, cunts. She was terrified". Ms Casey asked the claimant whether he shouted back using those same words and the claimant replied - "No I've never cursed at anyone - I'm from a family of 11. I've given 100%. I would never swear at a patient". Ms Casey said that Nursing Assistant Keenan felt that the claimant shouted. The claimant denied shouting but said that he had to raise his voice over the patient's with Nursing Assistant O'Connor and the patient shouting. The claimant was also asked about his relationship with Nursing Assistant O'Connor and contacting Nursing Assistant Keenan outside work about the incident.

24. Mr McGarvey made a number of points on behalf of the claimant. He referred to the claimant's 16 years of service and having been highly praised by the Charge Nurse on numerous occasions. He also said that it was the claimant's perception that he had been the victim of harassment. Mr McGarvey also referred to an incident on 27 May 2014 involving the two Nursing Assistants and Patient BK which the claimant had reported and asked whether it had been investigated. Mr McGarvey said that the incident was reported on DATIX and that the claimant reported it to Collette McElduff. Ms McElhinney said that the investigation team had not been made aware of it. Mr McGarvey claimed that it had a significant bearing on this issue because possibly some people wanted to get their own back. Mr McGarvey suggested that it was a serious incident reported to management involving inappropriate management of a patient. Returning to the events of 1 June 2014 Mr McGarvey questioned whether it was stated on the notes that a male couldn't work with the patient and Ms Casey replied that there was no written record. Mr McGarvey also asked whether they were aware that the incident was not assessed by trained staff and stated that if a Nursing Assistant reported an injury to a senior nurse on the ward you would expect them to see the patient and asked Ms Casey to confirm who saw the patient. Ms Casey said that she would need to check it out. Mr McGarvey also raised a number of other matters which it is not necessary to set out here. Ms McElhinney indicated that any complaint of harassment by the claimant would have to be made under the Trust's policy on harassment and she then concluded the meeting saying that all of the information would be looked at and that she would get back to them as soon as possible.

 

25. On 5 May 2015 Ms Casey wrote to the claimant and informed him that the matter would proceed to a formal disciplinary hearing.

 

26. On 20 May 2015 the claimant was invited to attend a disciplinary hearing on 1 July 2015. He was advised of his right to be represented by a Trade Union Representative or a colleague. The letter did not set out what disciplinary offences the applicant was charged with.

 

27. On 26 May 2015 Ms Casey wrote to Mr McGarvey and addressed the various queries that he had raised at the investigatory meeting. For present purposes it is only necessary to make mention of two of these. In relation to the alleged serious incident with Patient BK on 27 May 2014 Ms Casey stated that she had checked DATIX records relating to any incidents reported by Collette McElduff and advised that there was no reference to any of the witnesses identified. On the issue of whether males could work with Patient N, Ms Casey stated that it was clarified at the meeting on 28 April 2015 that the information in the Adult Safeguarding Report was incorrect and that on 1 June 2014 Patient N's care plan did not stipulate that females only should deal with Patient N.

 

28. On 18 June 2015 a further letter was sent to the claimant inviting him to attend a disciplinary hearing on 1 July 2015. This time the letter did set out the disciplinary charges which the Panel would consider which were as follows:

1.             On 1 June 2014 you verbally abused Patient N by swearing at her when provoked, contrary to the Safeguarding Vulnerable Adults Regional Adult Protection Policy & Procedural Guidance.

 

2.             During investigation into an allegation of abuse you were dishonest and failed to act in good faith by blaming your colleagues for injuring Patient N's thumb on 1 June 2014. This has resulted in a breach of trust between you and your employer.

The letter also advised that potential sanctions ranged from a formal warning to dismissal.

 

29. An undated letter was received by Ms Casey from Mr McGarvey in which he requested the attendance of a number of witnesses - Noreen Monaghan, Collette McElduff, Nuala Burke, Alicia O'Connor and Deidre Keenan. He also requested copies of documents including correspondence with the Vulnerable Adult Investigation Team about the inaccuracies in their report about males not working with Patient N.

30. On 22 June 2015 Ms Casey and Ms McElhinney met with Nursing Assistants O'Connor and Keenan respectively to advise them about the disciplinary process and the question areas. Nursing Assistant Keenan was advised that she would be asked by Ms Casey why she changed her handwritten statement. Nursing Assistant Keenan was upset and said that she was being pulled in all directions. She said that she felt under pressure at the time and that there were two factions - Team Alicia and Team Rodney. She was also concerned that the claimant was suicidal. Ms McElhinney asked Nursing Assistant Keenan to consider how she wanted to answer the questions and that she needed to let the Panel know the situation as it was in June 2014 and that she needed to be totally honest when answering all the questions.

 

31. On 1 July 2015 the disciplinary hearing was adjourned due to the claimant's ill-health.

 

32. On 2 July 2015 Ms Casey wrote to the claimant and advised that he would be informed of the arrangements for the hearing in due course.

 

33. On 6 November 2015 Mrs Kate Harvey, Senior HR Advisor wrote to the claimant and advised that the disciplinary hearing would take place on Tuesday 24 November 2015 at 10.00 am in Interview Room 1, Tyrone & Fermanagh Hospital, Omagh. The letter informed the claimant that if he required any witnesses to attend the Disciplinary Hearing he should ensure that they were aware of these arrangements.

 

Disciplinary Panel Hearing

 

34. On 24 November 2015 the disciplinary hearing took place. The Panel comprised Ms Marina McShane, HR Manager and Dr Gillian Mullan and was chaired by Dr Mullan. Ms Casey was the Presenting Officer and Mr McGarvey represented the claimant.

 

35. At the outset Mr McGarvey raised two preliminary issues. The first issue related to the accuracy of the Adult Safeguarding Report on the issue of whether males were allowed to work with Patient N. Ms McShane responded that the Adult Safeguarding Team would need to clarify what they looked at. The second issue concerned the absence of a copy of the interview with Noreen Monaghan and that no-one in charge of the ward was available. Ms Casey said that she spoke with Ms Monaghan and that she could supply those notes. The hearing then proceeded. Ms Casey read her presentation of the case.

36. Nursing Assistant O'Connor was then called and gave her evidence. She described how the claimant repeated back to Patient N what she was saying; saw that the claimant had Patient N's hand pushed down and heard Patient N say - "Ah my hand" twice and that the claimant had noticed her bruised thumb first and said that he was going to report it. Nursing Assistant O'Connor was then questioned by Mr McGarvey. Mr McGarvey asked Nursing Assistant O'Connor whether she had any relationship difficulties with the claimant and what the claimant was like as a worker. Nursing Assistant O'Connor's reply is recorded in Dr Mullan's witness statement as follows:

 

"Ms O'Connor informed Mr McGarvey that she had worked with the claimant for 4-5 years and initially stated that she had no relationship difficulties with him. However, she stated that some days she liked working with him and some days not. She stated that some days he could be very challenging towards staff. She said she could see the anger in him at times and that he is a very dangerous person and she would not want to go up against him"

 

Nursing Assistant O'Connor was then asked about the previous incident with Patient BK and she replied that the claimant tried to make something up as revenge and that she wasn't with the patient alone on that day. Mr McGarvey asked Nursing Assistant O'Connor a number of further questions about the incident including whether she was surprised that Nursing Assistant Keenan couldn't recall foul language being used; whether she was surprised that the claimant had not been charged with bending Patient N's thumb and why she hadn't reported it until the next day. Nursing Assistant O'Connor stated that as far as she knew Nursing Assistant Keenan did [recall foul language]; that she was surprised that the claimant had not been charged with bending Patient N's thumb and that she reported the incident due to her conscience and having talked it over with her husband and Nursing Officer Keenan who said that she couldn't let it go.

 

37. Nursing Assistant Keenan was called and gave her evidence. She described Patient N as very agitated and the attempts to put on her pad and record her weight and that she was spitting and kicking. Ms Casey asked her about Patient N calling out "Ah my hand" and Nursing Assistant Keenan said that she thought that they were attempting to do the hoist at that time. Ms Casey asked whether the swearing was repeated and Nursing Assistant Keenan's reply as recorded was that the language was colourful and the claimant did say - "Do not call me a cunt/bastard. I am not a bastard/cunt".

38. Mr McGarvey also asked Nursing Assistant Keenan a number of questions. He asked her for details of the claimant's language and her reply was that she remembered this very clearly and that the language was very colourful but that she didn't know whether it was appropriate or not and didn't think that it was done in an unreasonable way. Nursing Assistant Keenan had never known the claimant to be verbally abusive to a patient. In relation to the gender of staff Nursing Assistant Keenan said that Patient N generally preferred females which must have been to do with her personal care. As to why the claimant was asked to assist Nursing Assistant Keenan commented - "We needed a third pair of hands and [the claimant] was the first person I saw". Nursing Assistant Keenan was not aware that the claimant was the only one there who was MAPA trained. She agreed with Mr McGarvey that it was fair comment that she didn't know who had hurt Patient N's thumb.

 

39. Dr Mullan commented that what Nursing Assistant Keenan was saying now as to the language used was different from the version in her police statement. Dr Mullan said that it seemed that she was clearer now and queried how that could be as she had started off hazy. Nursing Assistant Keenan responded that she was hazy as to who was to the left and who was to the right.

 

40. Mr McGarvey also questioned Ms Casey about the matter. Mr McGarvey asked why no-one from the ward was present. We understand this to be a reference to Ward Manager Noreen Monaghan and Staff Nurse McElduff. Ms Casey responded that she didn't feel the need to request this. The main thrust of Mr McGarvey's questioning of Ms Casey was in relation to the second charge. Mr McGarvey asked Ms Casey about the evidence of dishonesty and where the evidence was that the claimant blamed others. Ms Casey in reply referred to some evidence that was not presented and drew attention to the claimant's police statement in which he said that he would believe Nursing Assistant Keenan's evidence over Nursing Assistant O'Connor's evidence. Ms Casey also said that the claimant lied about not receiving support from his line manager; questioned the accuracy of the information when he reported the incident; alleged that Nursing Assistant O'Connor let go of the patient causing the patient to hurt her hand and the making of an allegation of harassment.

41. Mr McGarvey then made a number of submissions. He criticised the fact that a substantial part of Ms Casey's presentation was about the injury to Patient N's thumb which wasn't part of the charges. He drew attention to a credible witness [Nursing Assistant Keenan] being unable to recall the claimant using foul language and that the other witness [Nursing Assistant O'Connor] had a history with the claimant and didn't mention the use of foul language initially. He suggested that Nursing Assistant O'Connor was on a revenge mission. Mr McGarvey said that he had references if the Panel wanted to look at them but the Panel did not take up this offer. Nor did Mr McGarvey press the panel to receive the references. He placed the references on the table in front of him. The Panel members did not ask him to pass the references to them and did not look at them. The hearing concluded and the claimant was advised that he would be informed of the outcome.

 

Decision Letter

 

42. 4 December 2015 - The Panel Chair issued the Panel's written decision. The main points were as follows:

 

Charge 1 - Dr Mullan drew attention to changes in Nursing Assistant Keenan's statement. Both witnesses said that the claimant swore and raised his voice at the patient and provided a different context in which this occurred. Nursing Assistant Keenan was more confident now than the day after the incident occurred. The Panel's view was that the charge was proved.

 

Charge 2 - Both witnesses said that they heard Patient N say - "Ah my hand" twice as she was in pain. Nursing Assistant O'Connor was clear that Patient N stated this when they were both supporting her and that she could see that the claimant had Patient N's hand pushed down. In the investigation notes, however, the claimant had been very adamant that the patient had not cried out in pain, which he had confirmed twice to the investigating team. The claimant also stated that he saw Patient N hit her hand off the hoist and saying that Nursing Assistant Keenan brought in and lowered the hoist too soon thus implying that this was the reason that Patient N hurt her hand on it. The claimant's statements were completely contradictory to the statements given by both his colleagues which called into question how truthful he was during the investigation process. The Panel therefore considered the charge proven.

 

43. Dr Mullan then commented on mitigating circumstances put forward by Mr McGarvey. She stated that there was no information presented to the panel with regard to evidencing his statements that Nursing Assistant O'Connor had made the allegations as part of a 'revenge mission' or that they had been left to deal with the most difficult patient on the ward that day.

 

44. In relation to sanctions Dr Mullan drew attention to the serious nature of the misconduct and the level of dishonesty throughout the investigation and the Panel's concern about similar future incidents and therefore did not consider that a final warning was appropriate. Dr Mullan said that trust and confidence had been irretrievably damaged and therefore the claimant was summarily dismissed. Dr Mullan concluded by advising the claimant that any appeal must be made within 7 days.

 

Disciplinary Appeal Panel Hearing

 

45. On 8 December 2015 the claimant wrote to the respondent and appealed against the decision to dismiss him on a number of grounds.

 

46. On 24 February 2016 Mr Martin Gallagher Senior HR Assistant wrote to the claimant and advised that the appeal hearing would take place on 11 April 2016 and that the Disciplinary Appeal Panel would consist of Ms Deirdre Walker, Assistant Director and Ms Ursula Doherty, Senior HR Manager. In the event the hearing date was postponed and ultimately took place on 17 May 2016.

 

47. On 17 May 2016 the appeal proceeded with Ms Casey again the Presenting Officer and on this occasion the claimant was represented by Mr Joe McCusker of UNISON. The hearing was chaired by Ms Walker who having made the introductions and clarified that the appeal hearing would be held as a fresh hearing, proceeded to read the charges. After the first charge was read the claimant asked - "What do you mean by provoked?" Mr McCusker advised the claimant that Ms Walker was just reading out both charges. After the charges were read Ms Casey indicated that she wished to call two witnesses, the claimant remarked that he was not able to get his witnesses and clarified that he had requested witnesses to attend but they had never appeared.

48. After Ms Casey had presented her case she called her first witness, Nursing Assistant O'Connor. Ms Casey asked her a number of questions about the incident. During her evidence Nursing Assistant O'Connor commented that the claimant had made her life hell since this incident. Mr McCusker stated that this comment was inappropriate and the claimant declared "I did not. How did I?" Ms Doherty stated that Ms Walker was the chairperson and Mr McCusker asked for an adjournment to speak to the claimant. When the hearing resumed the claimant apologised but said that he had been hurt and had felt that the appeal hearing was going the same way as the original hearing. Ms Walker said that she understood that the claimant was anxious and advised that he would get his opportunity to question both witnesses and Ms Casey. She advised that the Panel were required to establish the facts of the case and therefore asked all parties to keep their opinions to themselves and that if further interruptions occurred the Panel might postpone the Appeal Hearing. Mr McCusker then asked Nursing Assistant O'Connor a number of questions about the changes in Nursing Assistant Keenan's evidence. Nursing Assistant O'Connor responded that Nursing Assistant Keenan may have suffered slight intimidation and clarified that the claimant had gone to her home and that this may have been the reason Nursing Assistant Keenan changed her statement. Mr McCusker then turned to the alleged incident with Patient BK and suggested that three days prior to the incident the claimant had reported her to Staff Nurse McElduff about her handling of Patient BK. Nursing Assistant O'Connor described this as 'dropping a bomb' on her. Mr McCusker said that he was not dropping a bomb but just asking a question. He then asked Nursing Assistant O'Connor if the claimant had reported her regarding her handling of Patient BK. Nursing Assistant O'Connor denied being reported. The claimant then asked if Nursing Assistant O'Connor was with Patient BK that day. Ms Walker stated that Patient BK could not be discussed. The claimant was then given an opportunity to ask questions and the record of the portion of the hearing reads as follows:

 

"Mr Patterson stated that he held Patient N's hand in a proper MAPA hold whilst Ms O'Connor was screening herself with a towel from Patient N spitting and was shouting - "she is fucking spitting on me". Ms O'Connor responded that at this stage Patient N was sitting on the chair and the towel was not present. Mr Patterson stated that it happened whilst Patient N was standing. He remarked that he was de-escalating the situation. He added that Ms O'Connor and Ms Keenan were not trained. Mr McCusker reminded Mr Patterson that he was required to ask questions. Mr Patterson asked Ms O'Connor why she had said - "fucking bitch is spitting on me?". Mr McCusker interjected by asking Mr Patterson if he had further questions for the witness. Mr Patterson stated that he when he went and reported what had happened Ms Noreen Monaghan did not come up to see the patient. Mr McCusker reaffirmed that Mr Patterson needed to ask questions. Ms O'Connor said that the patient's top half would not be dressed whilst she was in a standing position.

 

Ms Walker made clear that the Appeal Hearing would be postponed if the process was not followed. Mr McCusker and Mr Patterson confirmed that they had no more questions for Ms O'Connor."

 

Ms Doherty then asked if Nursing Assistant O'Connor was aware of the patient's care plan. Nursing Assistant O'Connor replied that as far as she had known no care plan had been in place. That concluded her evidence.

 

49. Ms Casey then called her second witness, Nursing Assistant Keenan. Ms Casey asked her a number of questions about the incident. Nursing Assistant Keenan stated that Patient N had been using foul language to all three staff members and that the claimant used the patient's language and redirected it by saying - "No I'm not a cunt, no Alicia's is not a cunt, no Deidre's not a cunt". Ms Casey asked Nursing Assistant Keenan what she had meant when she described the claimant as being rough with Patient N. Nursing Assistant Keenan stated that she would describe it as hasty or quick whereas slower and gentler may have been better. Nursing Assistant Keenan could not recall her police statement where she had said that she wondered if the claimant had held Patient N's hand too tight. Ms Casey read an extract from the claimant's police statement about Nursing Assistant Keenan bringing in the hoist too quickly and Patient N lashing out and catching her finger on the hoist. Ms Casey suggested that the claimant was blaming her for hurting Patient N's thumb. Mr McCusker objected to this question which Ms Casey then rephrased by asking Nursing Assistant Keenan if she believed that the claimant's account was accurate. Nursing Assistant Keenan said that she didn't know and that the incident happened two years ago. She could not recall bringing in the hoist too quickly and could not recall Patient N's thumb being in the way or making contact with the hoist or her thumb turning blue. In answer to Mr McCusker's questions Nursing Assistant Keenan said that it was possible that the injury was sustained by accident. Mr McCusker then referred her to the statements that she had made to the PSNI and the Trust in which she said that the claimant responded to the patient in a loud voice but did not mention that he had sworn and later stated that she did not recall foul language being used but was now advising the Appeal Panel that foul language was used but it was in the context of using the patient's foul language back to her. Nursing Assistant Keenan said that the claimant had used foul language in this way. Nursing Assistant Keenan said that she was absolutely not intimidated by the claimant and denied being involved in or party to Nursing Assistant O'Connor being reported for her handling of Patient BK. The panel members then asked Nursing Assistant Keenan some questions and her evidence concluded.

50. Ms Walker asked Ms Casey if she had further information that she wished to present and Ms Casey proceeded to summarise the evidence in relation to the charges. In the course of the summary she stated that it was obvious that Nursing Assistant Keenan had changed her version of events but that she did not know why she had done this. Ms Casey concluded the summary by stating that the evidence presented proved Charge 2 and the trust and confidence in the claimant as a Band 3 Nursing Assistant had irretrievably broken down and asked the Panel to uphold the decision of the disciplinary panel to summarily dismiss the claimant. The claimant asked why confidence in him had broken down and then stated that it was Ms Casey that did this. Mr McCusker reminded the claimant that at this stage of the Appeal Hearing he was required to ask questions. The claimant asked why Ms Casey felt that confidence had been broken. Ms Casey replied that it was her opinion that the claimant had done this once and therefore it could happen again. The panel members then asked questions about care plans and MAPA. Mr McCusker queried what would happen if help was required and the only MAPA trained person was male. Ms Casey replied that staff should have waited until the patient calmed down. The claimant commented that it was the Ward Manager who had asked him to help but later denied doing so.

 

51. After an adjournment the claimant and Mr McCusker were given the opportunity to present their case. Mr McCusker advised that he was not calling any witnesses. On this occasion the claimant did avail of the opportunity to give evidence which he did by way of answering a number of questions that Mr McCusker put to him. Mr McCusker described the first charge as verbal abuse and asked the claimant to explain to the Panel what had occurred. The claimant said that Patient N had been very aggressive, agitated and had been spitting, swearing and was being difficult for all three staff members. He was required to use a MAPA hold which was done correctly. He did not swear back at the patient. Mr McCusker then drew attention to the different accounts given by Nursing Assistants O'Connor and Keenan. The claimant commented that Nursing Assistant Keenan could not remember and that Nursing Assistant O'Connor had a vendetta against him and did not like him because he had reported her to Ms McElduff. Ms Casey said that no staff had been mentioned in the DATIX report. The claimant responded that he reported the incident to Ms McElduff who advised that she would investigate. The claimant also suggested that Nursing Assistant O'Connor had attempted to blame someone else.

52. Mr McCusker described the second charge as an allegation of blaming colleagues and asked the claimant to outline his point of view. The claimant stated that he had not tried to blame Nursing Assistant O'Connor or Nursing Assistant Keenan - he was telling the story as it happened. He stated that the hoist was pushed in and the bar was lowered too soon. The patient did not get her medication and that staff had been told that they should weigh her after dinner time as she would be more settled. The claimant said that he was a kind person and did not hurt or swear at Patient N. He went on to say that he loved patients and did everything to help them and had done his work 100%. Ms Casey had only just started and did not know him or his work. Ms Doherty asked the claimant to demonstrate the correct MAPA hold but Mr McCusker objected on the basis that the charge was not related to anything physical.

 

53. Ms Casey then made a short closing statement. Mr McCusker also made a closing statement on behalf of the claimant. He stated that the case was being blurred with Patient N hurting her thumb and pointed out that the PSNI and the Adult Safeguarding Team had cleared the claimant of any physical abuse. There were three different accounts of the charge of swearing and this called into question the credibility of the witnesses. In relation to Ms Keenan he stated that the most contemporaneous of her statements which was made on 2 June 2014 only mentioned the claimant speaking to Patient N in a loud voice. He pointed out that the claimant's account was the only statement that remained consistent throughout the process. In relation to the second charge Mr McCusker submitted that throughout the investigation process the claimant had described what he believed had happened and was not blaming colleagues. He suggested that the patient may have hurt her thumb because the other two staff members were not MAPA trained.

 

54. Ms Walker advised that the Appeal Panel would review all of the evidence and attempt to give its decision within 7 working days.

55. On 3 August 2016 Ms Walker wrote to the claimant and informed him of the Appeal Panel's decision in a detailed five page letter. This letter is of central importance to these proceedings and the relevant portions are therefore set out in full.

" Charge 1

 

The accounts provided by you and the other two members of staff who were with patient N on 1 June 2014 during the intervention are consistent in stating that she was verbally abusive and/or physically aggressive. There were a number of inconsistencies in the statements given by the three of you, however the panel has focussed on the matters that we found to be consistent. Whilst you consistently deny swearing at the patient; Ms O'Connor was consistent in stating that you had used the language that the patient used back to her. Whilst Ms Keenan was less consistent, on the day after the intervention she does refer to you as speaking in a loud tone of voice to the patient and stated that you could have been gentler in your approach. Also in her statement to the PSNI she said that "instead of ignoring the patient's verbal abuse (you) answered her" and also reiterated that a more gentle approach would have been appropriate. She appeared to have no recall of the use of any foul language when she met the disciplinary investigation team, however at the disciplinary appeal hearing she stated that you had repeated Patient N's foul language back to her by saying "No, I'm not a******, Alicia isn't a ******, Deidre isn't a ******".

 

56. The next paragraph of the decision letter is of importance and reads as follows:

 

"Ms O'Connor and Ms Keenan's accounts taken together created a reasonable doubt in your version of events which has led the panel to conclude that on the balance of probability, it is more likely than not that you swore at Patient N. The panel considered that although the claimant may have been provoked it did not excuse his use of foul language to a vulnerable patient. We recognise that during the intervention the atmosphere was tense due to the patient's presenting behaviour and that this could have led to you being provoked. However, your MAPA training would have stipulated the dangers of escalating an already tense situation with a patient with challenging behaviour and we would have expected you to use your training appropriately in this situation. We further recognise that your presence, when this patient was known to be resistive when her personal case needs were being addressed, may have contributed to her behaviour. While we consider that you may have been provoked into speaking as you did, it does not excuse your use of foul language to a vulnerable patient in your care who the Trust would expect to be treated with respect and dignity at all times."

 

57. The Panel considered the definition of abuse contained in the Regional Adult Protection Policy and Procedural Guidance : Safeguarding Vulnerable Adults September 2006, section 2.7 of the Department of Health's 'No Secrets' Guidelines which outline psychological abuse as including "verbal abuse" and definition of abuse contained in the Operational Guidelines for Adult Safeguarding in the WHSCT. That definition is set out below and according to Ms Doherty the Panel identified the parts of the definition that applied to the claimant's behaviour in bold typeface:

 

"the physical, psychological, emotional, financial or sexual maltreatment or neglect of a vulnerable adult by another person. The abuse may be a single act or repeated over a period of time. It may take one form or a multiple of forms. The lack of appropriate action can also be a form of abuse. Abuse can occur in a relationship where there is an expectation of trust and can be perpetrated by a person/persons in breach of that trust, who have influence over the life of a dependent, whether they be formal or informal carers, staff or family members or others. It can also occur outside such a relationship."

 

The Panel took account of the report of the Vulnerable Adult Investigation carried out by the Trust's Adult Safeguarding team in relation to Patient N and concluded that the way in which the claimant swore at Patient N met the definition of verbal abuse being a single act of one form of abuse that the claimant carried out in breach of the trust that both the patient and the Trust should be able to rely on in a member of staff.

 

58. In relation to Charge 2 the Panel found that the claimant tried to implicate Nursing Assistants O'Connor and Keenan by stating that Nursing Assistant O'Connor let go of the patient's arm causing her to lash out and injure her thumb and by stating that Nursing Assistant Keenan pushed the hoist in too early causing the patient to injure her thumb on the bar of the hoist. In the absence of evidence to substantiate the allegation of physical abuse against the claimant it was unclear whether he was dishonest during the vulnerable adult investigation. However, as the evidence indicated that the claimant did try to blame both of his colleagues for causing the injury to the patient the panel agreed that this had damaged the confidence that the Trust had in him as an employee and found the charge partially proven. The panel did not take into account Ms Casey's allegation of dishonesty regarding the information that the claimant shared with his Trade Union representative during the investigation. The Panel also expressed concern about the claimant's behaviour during the disciplinary appeal hearing and considered that this provided an insight into the claimant's volatility.

 

59. In terms of mitigation the panel acknowledged that the claimant was the only person with MAPA training and that he may not have been aware of the impact on the patient of a male participating in personal care. It was also not necessary to weigh the patient at that time. The panel were particularly concerned about the claimant's behaviour during the appeal hearing which they considered provided an insight into his volatility. The panel took the claimant's 13 years of service into account and that raising concerns about Nursing Assistant O'Connor's behaviour with Patient BK may have been a factor in her raising concerns about the claimant. However, regardless of the context the panel concluded that the claimant's behaviour was unacceptable.

60. The panel then considered the appropriate disciplinary sanction. They considered that the verbal abuse of Patient N was more than the use of foul language which would have constituted misconduct and amounted to ill treatment of a patient which destroyed the confidence that the Trust must have in an employee and as such amounts to gross misconduct. The panel did not have confidence in the claimant's ability to work with patients without constant supervision, nor could they envisage a facility to where the claimant could transfer, where that level of supervision would be possible. This and the panel's lack of trust and confidence in the claimant's ability to treat patients with dignity and respect and not to ill treat them in the future, led the panel to dismiss the claimant summarily.

 

Additional Evidence in relation to Loss

 

61. A letter from the claimant's General Practitioner, Dr P Gallagher of the Drumragh Family Practice dated 18 June 2016 was produced at a late stage of the tribunal hearing which read as follows:

 

"During 2014 this man suffered stress at work. Since then he has been unable to work due [to] severe stress and anxiety. He requires significant daily medication to control his condition.

 

He has daily symptoms of anxiety and tried to manage these as best he can with activities and relaxation. He is unable to work at present due to this anxiety and depression.

 

He remains under regular review here at the surgery."

 

SUBMISSIONS

 

62. The tribunal had the benefit of both oral and written submissions from both parties which are appended to this decision. The main points in the respective submissions were as follows:

 

Claimant's Submissions

(1)           Mr Scullion accepted that the respondent held a genuine belief in the claimant's guilt of the misconduct alleged.

(2)           Mr Scullion also accepted that if the facts which formed the basis of alleged misconduct of the first charge were proven the decision to summarily dismiss the claimant would be justified.

(3)           Mr Scullion submitted however that the decision to dismiss the claimant was a decision that no reasonable employer could have made because the investigation was flawed. In a well presented submission on the relevant case law Mr Scullion drew attention to the decisions of the Employment Appeal Tribunal in TDG Chemical Ltd v Benton [2010] UKEAT 0166 and the Court of Appeal in Graham v Secretary of State for Work and Pensions (Jobcentre Plus) [2012] EWCA Civ 522.

 

(4)           Mr Scullion submitted that the officer charged with undertaking the investigation, Ms Casey, failed to gather and put all relevant evidence before the Disciplinary Panel and Disciplinary Appeal Panel and failed to follow up relevant and reasonable lines of enquiry. Thus the panels were not able to fully assess the impact of the claimant's poor relationship with Nursing Assistant O'Connor. Ms Casey also failed to put Nursing Assistant Keenan's evidence accurately. Mr Scullion described it as a one sided investigation with the intention of ensuring that the claimant was disciplined. From the claimant being charged the process was railroaded towards his dismissal regardless of the evidence.

(5)           Reliance was placed on Nursing Assistant Keenan's evidence despite it being accepted that her evidence was very inconsistent throughout the process and the Disciplinary Panel and Disciplinary Appeal Panel used evidence that Nursing Assistant Keenan clearly did not intend to be used namely the portions of her initial statements which were crossed out and initialled.

(6)           Dr Mullan accepted that it was open to her to hear evidence from the claimant and she would have been interested in hearing his evidence.

(7)           References were made available to the Disciplinary Panel which were not read or considered.

(8)           The Disciplinary Appeal Panel misapplied the standard of proof.

(9)           The second charge was misconceived. It was not reasonable to charge the claimant on the basis that he put forward a different version of events from the witnesses who gave evidence in the investigatory process.

(10)        Ms Doherty accepted that the second charge did not amount to gross misconduct but nonetheless it played a part in the decision to dismiss the claimant.

(11)        The Disciplinary Appeal Panel added other factors to their decision when it was conceded that claims about the claimant's behaviour during the hearing were not borne out by the minutes.

(12)        Relevant evidence was not given the correct weight.

(13)        The respondent made its decision to dismiss first and then picked out points from the case to suit that end.

63. Respondent's Submissions

(1)           Mr Ferrity submitted that the conduct alleged was correctly classified as gross misconduct and the decision of the Disciplinary Panel to regard it as gross misconduct was not perverse, eccentric or outside the range of decisions open to a reasonable employer.

 

(2)           The claimant accepted that the conduct alleged was capable of amounting to gross misconduct. The claimant also accepted that the Disciplinary Panel and Disciplinary Appeal Panel genuinely believed that he was guilty of the misconduct complained of but contended that they did not have reasonable grounds for that belief. The issue, according to Mr Ferrity, was whether the respondent carried out an investigation that was reasonable in the circumstances of the case and reasonably fair hearings.

 

(3)           Mr Ferrity submitted that the claimant's main point in relation to the investigation was that the respondent should not have accepted the evidence of Nursing Assistants O'Connor and Keenan as suitable and sufficient to charge the claimant. Mr Ferrity referred to the suggestion that Nursing Assistant O'Connor had a grudge against the claimant because he had reported her over a similar incident and the submission that Nursing Assistant Keenan's evidence should not have been relied upon because she had changed it shortly after giving her statement. Mr Ferrity drew attention to Nursing Assistant Keenan's later statement in June 2014 in which she moved back and said - "instead of ignoring Patient N's verbal abuse he answered it". Mr Ferrity submitted that the investigation was quite entitled to take this evidence as complementary to or corroborative to Nursing Assistant O'Connor's and that there was nothing unreasonable in charging the claimant on the basis of what his two colleagues on the day were saying about him. Mr Ferrity also pointed out that Nursing Assistant Keenan gave specific evidence of the swear words that the claimant had used to or back to Patient N at the two hearings which the claimant accepted could constitute abuse and therefore gross misconduct.

 

(4)           In relation to Nursing Assistant O'Connor Mr Ferrity pointed out that the investigatory panel was not aware of the allegation of bias until it was raised by Mr McGarvey at the meeting on 28 April 2015 when he referred to the reporting by the claimant to Collette McElduff of a serious incident on 27 May 2014 involving the two witnesses. The DATIX record was checked and there was no reference to either Nursing Assistant O'Connor or Nursing and Keenan. Nor was this incident mentioned in the claimant's previous statements despite the police having raised the issue of his relationship with Nursing Assistant O'Connor during his interview. The claimant also failed to follow this up or call Ms McElduff as a witness.

 

(5)           Mr Ferrity submitted that the claimant's criticism of the Disciplinary Hearing on the grounds that he wasn't allowed to call witnesses on his own behalf or tell his side of the story was misplaced. Mr Ferrity pointed out that the claimant's representative was not able to secure the attendance of his witnesses and failed to seek an adjournment. Dr Mullan's evidence that the claimant was given every opportunity to present his case was not challenged nor was her statement that his representative seemed to not want the claimant to speak. When it came to the appeal the claimant and his representative would or should have been doubly aware of the need to bring their own witnesses and to take the opportunity to speak up and present their case.

 

(6)           Mr Ferrity submitted that both panels were in possession of quite a lot of evidence from work colleagues, eye witnesses on the day in question, such as would enable them to make a decision which could not be condemned as eccentric, capricious or outside the range of decisions that a reasonable employer could come to. There were some inconsistencies in the evidence but not on the main issue of swearing.

 

(7)           The disciplinary appeal was a full re-hearing and was capable of correcting any unfairness which may have occurred at first instance. In this regard Mr Ferrity placed reliance on the decision in Taylor v OCS Group [2006] EWCA Civ 702 (also Harvey on Industrial Relations and Employment Law paragraph 1528) as authority for the proposition that deficiencies in a first instance disciplinary hearing could be cured by a properly conducted appeal. Mr Ferrity also relied on the recent reaffirmation of this principle in Khan v Stripestar [2016] UKEAT (Harvey paragraph 1015). Mr Ferrity submitted that the appeal hearing in the present case was conducted fairly and reasonably.

 

(8)           In relation to the criticism of the second charge Mr Ferrity submitted that the claimant was not dismissed for the second charge rather it compounded the first charge. The first charge was the principal charge which if proven amounted to gross misconduct. The Disciplinary Appeal Panel was not satisfied that the claimant had been dishonest but he blamed others more and more as the matter progressed and this undermined the respondent's trust and confidence in him.

 

(9)           In relation to penalty Mr Ferrity submitted that the tribunal should not substitute its own view as to the appropriate penalty and the decision to summarily dismiss the claimant was not out with the range of reasonable responses by the employer who has a considerable discretion as to penalty which the tribunal should not lightly interfere with.

 

(10)        Mr Ferrity submitted that if the claimant was unfairly dismissed any award of compensation should be reduced by between 25% and 50% but it was a matter for the tribunal.

 

(11)        In relation to loss Mr Ferrity drew attention to the claimant's contention that he was too unwell to apply for other jobs and his ill-health was caused by the respondent. Mr Ferrity submitted that there was no proper medical evidence to support the claimant's proposition that he was only off work because of the way the respondent treated him.

 

THE LAW

 

64. Article 130 of the Employment Rights (Northern Ireland) Order 1996 ("the 1996 Order") insofar as relevant provides as follows:-

 

"130. - (1) In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show -

 

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

 

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

 

(2) A reason falls within this paragraph if it -

 

(b) relates to the conduct of the employee,

 

(4) 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."

 

In the application of this statutory guidance the tribunal is mindful of the considerable body of case law and in particular the guidance stemming from the case of  Iceland Frozen Foods Limited  v  Jones  [1982] IRLR 439  (reaffirmed by the Court of Appeal in England in the cases of   Post Office  v Foley/HSBC Bank  v Madden  [2000] IRLR 827 ) which includes (inter alia) that in many (though not all) cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, another quite reasonably take another and that 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.  In this regard the tribunal is also assisted by the guidance given by  the Court of Appeal   in Dobbin  v Citybus Ltd [2008] NICA 42 as to how an industrial tribunal should approach the task of determining the fairness of a dismissal and in the case of Rogan  v South Eastern Health and Social Care Trust [2009] NICA 47.

 

In  Dobbin  v Citybus Ltd [2008] NICA 42 the Court of Appeal provided guidance as to how an industrial tribunal should approach the task of determining the fairness of a dismissal.  The judgment of Higgins LJ reads as follows:-

 

"[48]... The equivalent provision in England and Wales to Article 130 is section 98 of the Employment Rights Act 1996 which followed equivalent provisions in section 57 of the Employment Protection (Consolidation) Act 1978.

 

[49] The correct approach to section 57 (and the later provisions) was settled in two principal cases - British Homes Stores v Burchell [1980] ICR 303 and Iceland Frozen Foods Ltd v Jones [1983] ICR 17 - and explained and refined principally in the judgments of Mummery LJ in two further cases - Foley v Post Office and HSBC Bank Plc (formerly Midland Bank Plc) v Madden reported at [2000] ICR 1283 (two appeals heard together) and J Sainsbury v Hitt [2003] ICR 111.

 

[50] In Iceland Frozen Foods Browne-Wilkinson J offered the following guidance -

 

'Since the present state of the law can only be found by going through a number of different authorities, it may be convenient if we should seek to summarise the present law.  We consider that the authorities establish that in law the correct approach for the industrial tribunal to adopt in answering the question posed by  section 57(3)  of the [ Employment Protection (Consolidation) Act 1978]  is as follows:

 

(1) the starting point should always be the words of  section 57(3) themselves;

 

(2) in applying the section 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 for that of the employer;

 

(4) in many, though not all, cases there is a band of reasonable responses to the employee's conduct within which one employer might reasonably take one view, 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.'

 

[51] To that may be added the remarks of Arnold J in British Homes Stores where in the context of a misconduct case he stated -

 

'What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground 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 circumstance be a reasonable conclusion'."

 

As we have noted the parties made submissions on the relevant law which are appended to this decision. There was no dispute as to the applicable legal principles. It is not therefore necessary either to repeat these here.

 

CONCLUSIONS

 

65. As indicated at the outset of this decision the main issues were whether the claimant was fairly dismissed and whether the decision to dismiss him was made following a reasonable investigation. There was no dispute that the claimant's alleged behaviour was capable of amounting to misconduct and thus falling within Article 130 (2) (b) of the 1996 Order. No argument was advanced or submission made in relation to procedural unfairness and we are satisfied that it does not arise. In addition, we are satisfied that the basic three step statutory process was adhered to. In accordance with the case law referred to above and as cited in the parties' written submissions once a valid statutory reason for the dismissal has been established, in this case misconduct, the tribunal must consider - (1) Whether the employer carried out an investigation into the matter that was reasonable in the circumstances of the case; (2) Whether the employer genuinely believed that that the employee was guilty of misconduct; (3) Whether the employer had reasonable grounds for that belief. If the answer to each of these questions is in the affirmative the tribunal must decide whether the employer acted within a band of reasonable responses to the misconduct found.

 

The Investigation

66. The issue at the heart is this case is whether the respondent carried out a reasonable investigation . The tribunal's role is to determine whether the respondent carried out a reasonable investigation and having done so whether the respondent had a genuine and reasonable belief in the claimant's alleged misconduct.

 

67. Unusually there were three independent investigations. In addition to the disciplinary investigation the matter was considered by the Vulnerable Adult Investigation Team Report and a criminal investigation was undertaken by the PSNI. Both the Vulnerable Adult Investigation Team Report and the outcome of the PSNI investigation were taken into account by the Disciplinary Panel and the Disciplinary Appeal Panel.

 

68. The decision to categorise the alleged offence falls comfortably within the category of gross misconduct on any view. Not only is this our view but it was accepted by Mr Scullion on behalf of the claimant. This was an entirely proper concession to make.

 

69. The main thrust of the claimant's case was that the investigation carried out by the respondent was inadequate and that no reasonable disciplinary body could have found on the balance of probabilities that the claimant had committed the alleged offence. We will consider this broad ground of challenge first and then address a number of discrete points.

 

70. As indicated above the claimant's behaviour was arguably over investigated rather than inadequately investigated. There were three separate investigations that touched on the claimant's behaviour. No criticism is made of the police investigation. Its focus was on an allegation that Patient N had been assaulted by the claimant not the allegation of verbal abuse. Nor is any direct criticism made of the Adult Safeguarding investigation that concluded that the claimant had verbally abused Patient N. It had a somewhat broader remit which went well beyond the claimant's behaviour and examined issues such as Patient N's care plan. Understandably the claimant's case focussed on suggested inadequacies in the disciplinary investigation and the decisions made by the Disciplinary Panel and the Disciplinary Appeal Panel. These complaints do not strike us as being of substance particularly when viewed in the context of an internal disciplinary process which will inevitably be far removed from a criminal investigation carried out by the police. It must nonetheless be undertaken fairly as required by case law and be reasonable. It may be properly regarded as reasonable even if it contains imperfections.

 

71. One flaw relied upon by the claimant was the failure by Nursing Assistant Casey to follow up relevant and reasonable lines of enquiry namely to examine the impact of the claimant's alleged poor relationship with Nursing Assistant O'Connor. Whether this was an inadequacy at all is open to doubt but we do not regard it as being sufficiently serious certainly on its own to undermine the reasonableness of an investigation undertaken in a work disciplinary context.

 

72. Criticism was also made of the alleged failure to investigate information recorded by DATIX which was said to support the claimant's allegation of bias on the part of Nursing Assistant O'Connor. This was first raised on behalf of the claimant at the investigatory meeting on 28 April 2015 and was addressed by Ms Casey when she wrote to Mr McGarvey on 26 May 2015 and advised that nothing was recorded on DATIX to support the claimant's contention that any of the witnesses had been reported for involvement in a separate incident in which a patient sustained an injury. The claimant failed to call any evidence to challenge this at the disciplinary hearing and we do not consider that there is any substance in this complaint.

 

73. We were troubled by the second charge which was added on the basis of the claimant's alleged dishonesty during the investigation and in particular the blaming of his colleagues for the injury sustained by Patient N in circumstances in which the claimant was not charged with injuring the patient. In our view it was not unlawful or unfair to bring this charge but it was unwise as it introduced an element into the equation that was difficult to address given that the panels were not adjudicating on an allegation that the claimant assaulted Patient N. When it comes to examining the panels' decisions this becomes all the more clear.

 

Disciplinary Panel Hearing

74. Mr Scullion sought to undermine the decision by criticising the Disciplinary Panel's reliance on portions of Nursing Officer Keenan's statements which were subsequently amended by her. There were undoubtedly inconsistencies in Nursing Officer Keenan's evidence. It is clear from the evidence that we have heard that Nursing Officer Keenan was an unsatisfactory witness. Our impression is that she was caught between two camps - the claimant's and Nursing Assistant O'Connor's - and was trying to steer a middle course. Thus her initial account was more favourable to Nursing Assistant O'Connor but she then changed her evidence thus softening her view as to the claimant's behaviour. The Disciplinary Panel was criticised for giving weight to the initial wording in her statement` which was subsequently crossed out but not obliterated. We consider that the Disciplinary Panel was acting reasonably in taking account and giving weight to the version of events that she provided when she was first asked about the incident. She was also the only witness who initially attributed abusive language to the claimant and ultimately when she came to give evidence to the Disciplinary Panel her evidence was more damning of the claimant's behaviour than her colleague's. It was the task of the Disciplinary Panel (and subsequently the Disciplinary Appeal Panel) to weigh up the evidence including the undoubted inconsistencies and make a judgement as to where the truth lay. We are satisfied that they went about this task diligently and arrived at an honest decision which was well within the range of reasonable responses open to them. In our view the Disciplinary Panel was quite entitled to take her initial statements into account.

 

75. Nor was the claimant prevented from calling witnesses. It was made clear in the invite letter that it was the claimant's responsibility to secure the attendance of any witnesses that he wished to give evidence. The claimant's representative could have sought an adjournment in order to secure the attendance of witnesses but did not do so.

 

76. The Disciplinary Panel was criticised for not hearing evidence from the claimant. It is clear however that the claimant's representative did not want the claimant to give evidence and preferred instead to present the case on the claimant's behalf. Mr McGarvey was quite entitled to do so and no evidence was given to suggest that he was acting in any way contrary to the claimant's wishes. We are entirely satisfied on the basis of Dr Mullan's testimony that the Panel would have willingly heard evidence from the claimant had it been told that he wished to give evidence.

 

77. The Disciplinary Panel was also criticised for not receiving references that were proffered by Mr McGarvey. It is unfortunate that the Panel did not read the claimant's references. We can see how this occurred. However, it is not necessary for the Tribunal to determine where the fault lies but rather to consider whether the non-viewing of the references by the Panel resulted in substantial unfairness to the claimant or would have made any difference to the outcome. Having considered the content of the references we are not persuaded that these would have made any impact on the Panel's decision to dismiss the claimant for gross misconduct.

Disciplinary Appeal Panel Hearing

 

78. Whatever criticisms may be made of the Disciplinary Panel hearing and its decision it is clear from the evidence and was not disputed that the Disciplinary Appeal Panel Hearing involved a complete re-hearing. Thus any flaws in the initial hearing could, as Mr Ferrity suggests, be cured. This is largely what occurred. However, the appeal hearing and consequent decision letter gave rise to new and in some instances similar complaints. It is therefore necessary to examine each of these.

 

79. The claimant had a different representative on appeal, Mr McCusker of UNISON. As Mr Ferrity points out both the claimant and his new representative would have been well aware after the experience of the first hearing of the importance of securing the attendance of any necessary witnesses. The claimant gave his account of the incident in answer to questions put to him by Mr McCusker. No witnesses were called on behalf of the claimant and clearly a judgement was made about this. The claimant and his representative were quite entitled to present the case to the disciplinary appeal panel as they saw fit.

 

80. The impact of the second charge was somewhat less on appeal. The Disciplinary Appeal Panel was not satisfied that the claimant had been dishonest but rather that he blamed others and that this undermined the respondent's trust and confidence in him. The decision to bring the second charge was heavily criticised. We have expressed doubt as to the wisdom of bringing the second charge but we are satisfied that the Disciplinary Appeal Panel based its decision on its findings in relation to the first charge and on the basis of those findings we are satisfied that it was justified in deciding that the claimant was guilty of gross misconduct.

81. In relation the Disciplinary Appeal Panel's application of the standard of proof we are satisfied that it properly understood and applied the law namely the requirement to make factual findings on the balance of probabilities notwithstanding the reference in the decision letter to the witnesses' accounts creating a reasonable doubt in the claimant's version of events. The wording complained of must be read in context of the letter as a whole and the Panel's conclusion that "on the balance of probability, it is more likely than not that [the claimant] swore at Patient N." H aving carefully considered Ms Doherty's evidence as to the Panel's understanding of the standard of proof we are satisfied that the correct standard of proof was applied.

 

82. We reject the suggestion that the process was railroaded towards dismissal from the moment the claimant was charged regardless of the evidence. Rather it was the case that there was a significant body of evidence in relation to the first and most serious charge which the claimant was unable to overcome. The first and principal charge was based on the definition of abuse contained in the Trust's Guidelines and it was not suggested on behalf of the claimant that either the definition or its application was inapt to the charge. The claimant's case was rather that he did not utter the swear words alleged. We are however satisfied that the respondent was entitled to find that he did on the basis of a reasonable investigation and disciplinary process which included an appeal by way of re-hearing. We are also satisfied that the respondent genuinely believed that the claimant was guilty of the alleged misconduct both as regards the allegation of verbal abuse and his behaviour during the investigation.

 

83. We agree with Mr Ferrity that both panels were in possession of quite a lot of evidence from work colleagues, eye witnesses on the day in question, such as would enable them to make a decision which could not be condemned as eccentric, capricious or outside the range of decisions that a reasonable employer could come to.

 

84. The Disciplinary Appeal Panel also gave careful consideration to imposing a lesser sanction than summary dismissal as described in paragraph 60 above and having considered the matter ourselves we are satisfied that the decision to dismiss the claimant summarily was well within the range of reasonable responses open to the employer.

 

85. Overall, after careful consideration of all of the evidence and submissions we are satisfied that the claimant was not unfairly dismissed. We are satisfied that the respondent carried out an investigation into the matter that was reasonable in the circumstances of the case; that the respondent genuinely believed that that the claimant was guilty of alleged misconduct; that the respondent had reasonable grounds for that belief and that the decision to dismiss the claimant for gross misconduct was well within the range of reasonable responses open to the respondent.

 

86. The claim must therefore be dismissed.

 

 

 

 

Employment Judge:

 

 

Date and place of hearing: 20-22 September 2016, Belfast

 

 

Date decision recorded in register and issued to parties: