THE INDUSTRIAL TRIBUNALS

CASE REF:	781/07

CLAIMANT:			Kathleen Braniff

RESPONDENT:		Brackenwood Care Home

DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondent.  

Constitution of Tribunal:
Chairman:		Mr P Cross
Members:		Mr I Carroll
			Mr I Acheson

Appearances:
The claimant was represented by Mr Best, Barrister-at-Law, instructed by Rosemary Connolly, Solicitors.
The respondent was represented by Mr Hamill, Barrister-at-Law, instructed by Worthingtons, Solicitors.

Issues

1.	The claimant who was employed by the respondent was dismissed for allegedly mistreating patients in the respondent’s care home.  The claimant claimed that she had not mistreated the patients and the respondent’s investigation into the incident was inadequate and unfair to her.

The evidence

2.	The tribunal heard evidence from the claimant and from Mr Kevin McKinney, the Managing Director of the respondent company.  

Findings of fact

3.	The respondent company took over the Brackenwood Care Home on 1 July 2006.  The care home accommodated 15 – 16 elderly residents and had 17 staff.  There was a manager, Caroline Burns, but she left in early December 2006.  The only other manager in the home was Mr McKinney, the Managing Director.

4.	On the night of 30 November 2006, Mr McKinney was given four written statements from members of staff.  These statements complained of mistreatment of residents in the home by the claimant and by another care assistant called Lorraine.  

5.	Insofar as the statements concerned the conduct of the claimant, these were made by David Oldroyd and his sister, Rachel Oldroyd, and Alena Kingston. These three people were new members of staff, having joined the respondent after July 2006. The claimant had worked for the respondent company since 2003. A further statement from Sharon Magennis only concerned the other care assistant, Lorraine, and did not refer to the conduct of the claimant.  

6.	Mr McKinney read the statements which alleged mistreatment of certain residents and bad language from the claimant in front of residents.  Mr McKinney, on the advice of the Labour Relations Agency, called in the claimant and Lorraine and suspended them on the next day, 1 December 2006.

7.	Mr McKinney again on advice from Labour Relations Agency decided not to obtain statements from the residents concerned in these allegations and furthermore he decided not at that stage to interview either the care assistants who had issued the complaints, or other members of staff.  The respondent sent a letter to the claimant enclosing the witness statements on 13 December 2006 and asked the claimant to attend a disciplinary hearing on 15 December 2006.  

8.	To accommodate the claimant the hearing planned for that day did not in fact take place until 29 December 2006.  Present at this hearing were the claimant and her union representative, Mr Seamus Young, and Mr Kevin McKinney of the respondent accompanied by a friend, Mr Paul Savage, who acted as a witness to the proceedings but took no part in the proceedings.  

9.	This disciplinary hearing was recorded, although unfortunately the recording was not a particularly good one and there are various gaps in the transcript.  As a result of this hearing, Mr McKinney decided that the allegations made against the claimant were substantiated. He further decided to dismiss the claimant from her employment with immediate effect.  

10.	The claimant exercised her right to appeal against this decision and the appeal was heard on 27 February 2007.  At this appeal hearing, Mr Kevin McKinney took the appeal and the claimant appeared with her sister, Mrs Irwin.  

11.	Mr McKinney opened the appeal hearing by stating that he realised it would have been better if somebody else could have taken the appeal but he was the only member of senior management of the respondent company, Mrs Burns having left in December 2006.  He explained that he would conduct the appeal as a          full re-hearing and would deal with it as though it was coming fresh to him.  As a result of this appeal, Mr McKinney investigated the matter further, having interviews with David and Rachel Oldroyd and with another carer, Sean Ward.  He then made notes of these interviews and analysed the evidence that he had received. As a result of this analysis he confirmed his earlier decision and wrote to the claimant dismissing her appeal.  

The law

12.	Under Article 130(1) of the Employment Rights (Northern Ireland) Order 1996 (‘the Order’), it is for the employer to show that the reason for the dismissal of the employee falls within one of the reasons for dismissal set out in Sub-Section 2 of Article 130.  In this case the respondent had given the reason for the dismissal as the conduct of the claimant, his employee.  Once the employer has fulfilled that burden on him, then, under Article 130(4) “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.”

13.	Insofar as the claimant in this case stated that the respondent failed to follow the appropriate procedures in the disciplinary process, Article 130(A) of the Order makes provision, that where an employee who is dismissed and the correct procedures leading to that dismissal have not been complied with then at Sub-Paragraph (2) it is  stated that, “failure by an employer to follow a procedure in relation to the dismissal of an employee shall not be regarded for the purposes of Article 130(4)(a) as by itself making the employer’s action unreasonable if he shows that he would have decided to dismiss the employee if he had followed the procedure”.

Decision

14.	The tribunal reached the unanimous decision that the dismissal of the claimant was not unfair.  The respondent’s director, Mr McKinney, had been given four statements which alleged mistreatment of elderly residents in the home.  Three of these statements made allegations against the claimant.  The respondent then suspended the claimant from further duties in the home and arranged for a disciplinary hearing.  Mr McKinney made the decision not to involve the residents in this investigation and this was a decision which, bearing in mind the age and infirmity of the residents, was in the view of the tribunal a reasonable decision on the part of the respondent.  The respondent did not make any further enquiries at that stage with the people making the complaints, or with other employees in the care home.  The tribunal found it harder to accept that this was a sensible approach by the respondent’s director, Mr McKinney.  The investigation of the complaints and the disciplinary hearing involving the claimant became somewhat intertwined and there was no real investigation prior to the disciplinary hearing.  However, the claimant was supplied with copies of the statements and had her union representative at the disciplinary hearing.  

15.	After the disciplinary hearing when the claimant appealed, the respondent did, through Mr McKinney, carry out a much wider investigation.  Mr McKinney interviewed two of the care assistants who had complained of the claimant’s behaviour and also another care assistant, Sean Ward.  Mr McKinney made a careful note of these interviews and his thought processes in leading to his dismissal of the appeal.  Bearing in mind the fact that there were no other directors of the company or members of senior management,  there was no alternative than for Mr McKinney to hear the appeal himself, which whilst unsatisfactory was the only course open to him and the tribunal found that he acted reasonably in this.  

16.	Despite the shortcomings in the procedures adopted, the tribunal finds that Mr McKinney acted throughout in a fair and proper manner towards the claimant and investigated the allegations.  The tribunal would say that some of this investigation appears to have been done at the end of the appeal rather than at the beginning; but having said that, the tribunal is satisfied that Mr McKinney did thoroughly investigate the matter and acted fairly.  

17.	Bearing in mind the size of the respondent company and the resources available to it, the tribunal are content that the dismissal was fair.  If, however, the tribunal is wrong in this finding, the tribunal would rely on the provisions of Article 130A of the Order and hold, that even if the respondent failed to properly follow the statutory disciplinary procedures in relation to the dismissal, the respondent would have dismissed the claimant in any event, even if the respondent had followed all established procedures to the letter.  The claimant could give no explanation as to why the care assistants had made these complaints against her, except to allege a possible conspiracy between them.  The tribunal holds that there was no evidence of any such conspiracy and it would be highly unlikely that such a conspiracy could have been formulated amongst staff who had only recently joined the respondent company.  

18.	The tribunal reminded itself that it did not have to itself re-examine the case against the claimant, but merely had to be satisfied that the investigation carried out by the respondent was fair and reasonable in all the circumstances.  The tribunal is content that the investigation carried out by the respondent was reasonable in all the circumstances and therefore dismisses the claimant’s claim.

Chairman:

Date and place of hearing:	24 August 2007, Belfast

Date decision recorded in register and issued to parties: