Cardwell v Trust Caring & Nursing Agency Trust Caring & Nursing Agency [2011] NIIT 00015

THE INDUSTRIAL TRIBUNALS

CASE REFS: 15/11

271/11

CLAIMANT: Wendy Anne Cardwell

RESPONDENT: Trust Caring & Nursing Agency

DECISION

The unanimous decision of the tribunal is that the claimant was not unfairly dismissed and did not suffer an unlawful deduction from wages.

Constitution of Tribunal:

Chairman: Mr P Kinney

Members: Mr M Roddy

Mr J McClean

Appearances:

The claimant was represented by Mr Cardwell.

The respondent was represented by Mr Phillips, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Issues

1. There are two issues in this case:-

(1) Whether or not the claimant was unfairly dismissed.

The respondent accepts that it dismissed the claimant but asserts it was for a potentially fair reason, namely gross misconduct.

(2) Whether the claimant suffered an unlawful deduction from her wages during her period of suspension.

Findings of fact

2. The claimant commenced work with the respondent as a Carer in the Community in April 2002.

3. The claimant was informed by a letter of 1 September 2010 that she was suspended with pay pending an investigation into allegations of misconduct against her.

4. By letter of 22 September 2010 the claimant was invited to a disciplinary meeting which was held on 7 October 2010 with Shirley Baird, Deputy Ward Manager, at the North West Independent Hospital and Avril Loughrey, Manager of the respondent, at the time. Mrs Baird had no prior knowledge of the claimant. The claimant was informed that disciplinary action was being considered against her regarding incidents of inappropriate rough handling and abuse of clients. She was told this may be considered an act of gross misconduct and may result in immediate dismissal. She was informed of her right to be accompanied by a work colleague or trade union official at the disciplinary meeting. She was also sent all the information gathered during the course of the investigation into the incidents.

5. The disciplinary panel had a complaint that the claimant had roughly and forcibly removed false teeth from a client (Client ‘A’). Client ‘A’ suffered from dementia. The report was made by a co-worker, Valerie McKee, who was present at the time. It was witnessed by a new member of staff shadowing Ms McKee that day. Statements were taken from the witnesses. Ms McKee also told the panel that a relative of another client (Client ‘B’) complained of the claimant’s removal of Client ‘B’s teeth on a different occasion.

6. The panel then conducted interviews with other staff members. Some raised no concerns about the claimant, however some did raise concerns about rough handling of clients.

7. One colleague identified an incident when the claimant pushed a client (Client ‘C’) causing his back to be marked. The colleague reported the incident to the client’s wife. The disciplinary panel spoke to the relations of both Client ‘B’ and Client ‘C’ as part of their investigation. These relatives expressed their concerns about the claimant’s treatment of the patients.

8. The minutes of the disciplinary meeting were accepted by the claimant at the tribunal. At the meeting the claimant described removing Client ‘A’s teeth. She described the client making a gagging sound and then grunted. The claimant continued to attempt to remove the client’s teeth. She did not check Client ‘A’s mouth after removing the teeth. At the meeting the claimant contested the correct date of the incident and contended that another private carer was present at the time. The panel felt that the gagging and grunting described by the claimant indicated a degree of discomfort by Client ‘A’ who suffered from dementia and had limited communication. They were surprised the claimant continued to attempt the removal of teeth and that no check was made by the claimant of Client ‘A’s mouth after removal of the teeth for signs of injury.

9. The panel put the complaint made by Client B’s relative to the claimant. She denied removing Client B’s teeth at any time.

10. The claimant was unsure as to the precise date or circumstances of the incident with Client ‘C’; but gave a description of pushing him back in his chair as she was concerned he was going too far forward and might fall. The claimant confirmed that she saw Client ‘C’s skin was marked, but did not report the incident.

11. After the incident, Mrs Baird spoke again to Valerie McKee who complained of the incident with Client ‘A’. Ms McKee confirmed her statement. Mrs Baird also spoke to the private carer, who confirmed she had not been in the room when the claimant removed Client ‘A’s teeth.

12. The disciplinary panel concluded that on two occasions the claimant had abused two clients, Client ‘A’ and Client ‘B’. They concluded that the claimant failed to report either incident. They concluded that the claimant had caused injury to Client ‘C’ and failed to report that incident. They characterised the claimant’s treatment of clients as rough and heavy-handed. They took into account the statements they had obtained and the evidence from the claimant. They remarked on the claimant’s failure to accept at the disciplinary meeting that her conduct was in any way unacceptable and also the need for very high standards of care required of staff working with vulnerable clients. They concluded that the behaviour of the claimant was gross misconduct and dismissed the claimant with immediate effect.

13. The claimant appealed the decision. A meeting was held on 23 November 2010. The claimant appealed on various grounds. These included that she felt that the suspension was irregular, that the disciplinary findings were vague and ambiguous; and that she had not had the right to be accompanied to the disciplinary meeting. The claimant contended that on suspension she was told not to contact work colleagues. This prevented her from having a colleague accompany her to the disciplinary hearing. However, the letter advising her of the disciplinary meeting clearly set out the right to be accompanied.

14. The appeal was heard by a Mrs Dallas, Director of North West Independent Hospital, and Sister Carmichael, Ward Sister, at the hospital. The appeal panel reviewed the statements gathered by the disciplinary panel and heard evidence from the claimant.

15. The claimant agreed to proceed with the appeal hearing without accompaniment. At this hearing the claimant’s evidence was inconsistent at times with what she said at the disciplinary hearing.

16. The panel wrote to the claimant on 1 December 2010 upholding the decision of the disciplinary panel. They based their decision on a review of the documents before the disciplinary panel and the evidence of the claimant, both at the disciplinary and the appeal meetings. They were concerned at the discrepancies in the claimant’s replies and a lack of understanding by the claimant of the standard of care required in dealing with vulnerable adults. Neither of the appeal panel had previous knowledge of the claimant.

17. The claimant also complained of not receiving full pay during suspension. The claimant was employed on a zero hour’s contract. In calculating pay during the suspension period the respondent provided pay based on the claimant’s rota immediately before the suspension. If the claimant had had additional hours previously it was for covering colleagues. As this was a zero hour’s contract, if the claimant was not working she was not entitled to pay. This meant that, for example, if one of the claimant’s clients no longer required care she would no longer have those hours and would not be paid for those hours.

The law

18. Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has a right not to be unfairly dismissed. By Article 130 of the same Order to determine whether a dismissal of an employee is fair or unfair, it is for the employer to show that the reason for the dismissal falls within the terms of that Article. By Article 130(2)(b) one such reason relates to the conduct of the employee. If a potentially fair reason is established the tribunal should then consider whether the respondent acted reasonably in all the circumstances. Dismissal must be within the band of reasonable responses which a reasonable employer might take and the tribunal must not substitute its own view for that of the employer.

19. Following the authority of British Home Stores v Burchell [1978] IRLR 379, the tribunal must be satisfied that the employer at the time of the dismissal had a genuine belief in the employee’s guilt of that misconduct, had reasonable grounds to hold that belief and carried out such investigation as was reasonable in all the circumstances. The penalty which the employer then imposes as a sanction must also be within a range of reasonable responses which a reasonable employer might take. The employer’s decision is taken on the balance of probabilities. In Burchell, Mr Justice Arnold said:-

“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 a 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.”

20. In Dobbin v Citybus Ltd [2008] NICA 42, Lord Justice Higgins considered the question of whether or not the employer’s actions were reasonable in all the circumstances. He said at Paragraph 57:-

“In other words, it is not for the tribunal to determine whether the conduct of the investigation was reasonable but whether in the particular circumstances of the case the investigation was one which a reasonable employer would consider fell within the range of reasonable investigations to enable the particular allegations against the employee to be investigated and determined. Thus the nature and depth of any investigation will vary with the circumstances and conduct under consideration.”

21. In Rogan v South Eastern Health & Social Care Trust [2009] NICA 47, the Court of Appeal reminded tribunals that the function of a tribunal is to consider the reasonableness of the employer’s conduct and not simply whether they (the members of the industrial tribunal) considered the dismissal to be fair. In judging the reasonableness of the employer’s conduct a tribunal must not substitute its decision as to what was the right course to adopt for that of the employer. The Court of Appeal also stressed that the tribunal should not re-hear or re-investigate allegations but should consider whether the employer acted reasonably having regard to the material available to it and the investigation carried out by it.

22. An employer may not make deductions from wages in respect of an employee unless the deduction is authorised by statute, by contract, or by previous consent in writing on the part of the employee. (Article 45 of the Employment Rights (Northern Ireland) Order 1996)

Conclusions

23. The tribunal is satisfied that the respondent carried out a reasonable investigation and provided the claimant with every opportunity to challenge the evidence presented. There was an investigation carried out which required interviews with a wide range of staff members. The investigation raised a list of concerns and a disciplinary hearing was arranged of which the claimant had full notice. She was advised of her right to be accompanied. The claimant had every opportunity to make any points she thought appropriate. Indeed, she raised further issues at the disciplinary hearing which required further evidence to be obtained by the disciplinary panel. There was an appeal process where, again, the claimant had an opportunity to challenge the evidence of witnesses and every opportunity to make any points she thought appropriate. The tribunal is satisfied that the investigation was thorough. It was reasonable for the disciplinary panel to have a genuine belief in the claimant’s guilt of the misconduct alleged. It was reasonable for the appeal panel to also have a genuine belief in the claimant’s guilt of the misconduct alleged. The appeal panel, not only had the information available to the disciplinary panel, but took into account the inconsistencies of the responses of the claimant in the two meetings. At the tribunal hearing, the claimant highlighted delays in the process from the original complaint made in early August 2010 to the suspension of the claimant and then from suspension to the disciplinary hearing. The respondent explained the nature of the investigation carried out. The tribunal draws no inferences from any delay and does not consider the delay unreasonable. The claimant also pointed to minor discrepancies in the documentary evidence. In particular, the claimant sought to emphasise that during the process the dates of the alleged incidents were not made clear. The tribunal did not feel that any discrepancies in the evidence were such as to make the investigation unreasonable or the disciplinary panel’s conclusion unreasonable. The claimant contested the date of the incident with Client ‘A’. The disciplinary panel found corroborating evidence from various witnesses, including the claimant herself who at the disciplinary meeting described the incident and spoke of Client ‘A’ gagging and grunting. The tribunal unanimously concluded that a reasonable employer would consider that the investigation and the reasons identified by the respondent are within a range of reasonable responses for an employer.

24. The tribunal further finds that the sanction of summary dismissal was within the range of reasonable responses that a reasonable employer might make. The claimant was found guilty of gross misconduct. The claimant is required to work, sometimes unaccompanied, with elderly vulnerable adults. The claimant, in her own words, caused at least one client to gag and grunt and in the disciplinary panel’s view lacked insight into her behaviour. There were complaints from relatives. The claimant had failed to report any such incidents. The tribunal determines that the claimant was not unfairly dismissed.

25. The tribunal is also satisfied that there is no unlawful deduction from wages. The claimant’s case was based on previous wages where additional hours had been worked. The tribunal is satisfied that the correct payment was made to the claimant during her suspension. The tribunal determines that there was no unlawful deduction of the claimant’s wages.

Chairman:

Date and place of hearing: 14 – 15 September 2011, Belfast

Date decision recorded in register and issued to parties:

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	Industrial Tribunals Northern Ireland Decisions
You are here: BAILII >> Databases >> Industrial Tribunals Northern Ireland Decisions >> Cardwell v Trust Caring & Nursing Agency Trust Caring & Nursing Agency [2011] NIIT 00015_11IT (08 November 2011) URL: http://www.bailii.org/nie/cases/NIIT/2011/00015_11IT.html Cite as: [2011] NIIT 00015_11IT, [2011] NIIT 15_11IT

Industrial Tribunals Northern Ireland Decisions