THE INDUSTRIAL TRIBUNALS

CASE REF:	  911/13  

CLAIMANT:			Ofelia Heaney

RESPONDENT:		The Cornfield Care Centre Limited

DECISION 

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

Constitution of Tribunal:

Chairman:		Mr S A Crothers

Members:		Mr N Jones
			Mr T Wells

Appearances:

The claimant was represented by Mr P Moore of PM Associates.

The respondent was represented by Mr T Sheridan of Peninsula Business Services Limited.

The Claim 

1.	The claimant claimed that she had been unfairly dismissed by the respondent.  The respondent denied her allegations in their entirety.

The Issue

2.	The issue before the tribunal was whether the claimant was unfairly dismissed.

Sources of Evidence

3.	The tribunal heard evidence on behalf of the respondent from Christine Thompson, Operations Manager and Jervis Nutt, Managing Director.  The claimant also gave evidence.  The tribunal was presented with bundles of documentation and took into account only documentation referred to in the course of evidence.

4.	During the hearing the tribunal referred to the Northern Ireland Court of Appeal decision in Patrick Joseph Rogan v South Eastern Health and Social Care Trust (“Rogan”) – judgement delivered on 13 October 2009.  

In paragraphs 15 and 26 of his judgement, Morgan LCJ states:-

[Referring to Article 130 of the Employment Rights (Northern Ireland) Order 1996]

		“Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and …… to demonstrate that it was a reason relating to the conduct of the employee.  If the employer successfully does so the tribunal then applies its judgment as to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal…

		The judgement as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal.  In this instance it appears that the tribunal has strayed into the forbidden territory of making its own determination of the evidence.”

	The tribunal therefore sought to avoid straying into the “forbidden territory” of making its own determination of the evidence.

Findings of Fact

5.	Having considered the evidence insofar as same related to the issue before it, the tribunal made the following findings of fact on the balance of probabilities:-

(i)	The claimant was employed by the respondent as a care assistant from 9 September 2006 until the effective date of termination of her employment on 15 February 2013.

(ii)	In correspondence of 31 January 2013 the claimant was informed that she was suspended on full pay pending an investigation into “alleged vulnerable adult abuse, further particulars being it is alleged on 27 January 2013 that you hit a resident on the arm”.  On 7 February 2013 the claimant was invited to attend a disciplinary hearing on 12 February relating to the allegation that she had hit a resident on the arm.  The resident involved was one of a number of vulnerable adults suffering from dementia with severe cognitive impairment.  

(iii)	The tribunal was directed to various polices regarding vulnerable adults together with the respondent’s disciplinary policy and evidence that the claimant had been trained in relation to safeguarding vulnerable adults in 2010, 2011, and 2012.  Part of the slide presentation at that training (which accompanied the oral presentation), related to physical abuse of vulnerable adults and had sub-headings including pushing, shaking, pinching, slapping, punching and restraint.  Mr Nutt, who heard the claimant’s appeal from her dismissal for gross misconduct recollected that, in his training, the concept of “zero tolerance” had been referred to.  The claimant, who was not present with Mr Nutt at any of the training sessions, had no such recollection.  However, the tribunal is satisfied that, in effect, the respondent viewed any contact whether termed as tapping, slapping, or hitting as amounting to the physical abuse of a resident. Furthermore, Christine Thompson, who conducted the disciplinary hearing, concluded that what happened on 27 January 2013 amounted to either the claimant hitting or tapping the resident’s arm.  She further concluded that this amounted to gross misconduct as being physical abuse of a resident, and that dismissal was the only sanction, however clear the claimant’s record was up to that date.  The claimant had been informed during her training that in circumstances such as these, she should ensure that the patient was secure in the bed and either withdraw from the situation to obtain the assistance of another member of staff who could accompany her, or to have another member of staff alone deal with the resident.

(iv)	The tribunal was directed to a detailed investigation conducted by Christine Thompson before the disciplinary hearing.  The tribunal is satisfied that given the management structure, it was not unacceptable for Christine Thompson to conduct the investigation process as well as the disciplinary hearing.

(v)	The disciplinary hearing outcome letter sent to the claimant, dated 15 February 2003 states the following:-

“The matters of concern to me were:

Vulnerable adult abuse further particulars being it is alleged on 27th January 2013 that you hit a resident on the arm.

That if proven your actions may result in a gross breach of trust and confidence.

At the hearing you stated that when the resident hit you that you pushed them away to protect yourself and then Nula came in and how Nula did not pass as she came to the room.  You confirmed that you had been trained on physical abuse in 2012 and how you were aware of the Protection of Vulnerable adult’s policy.  You later went on to say in the disciplinary hearing that there is a difference between a tap and a hit and that you only tapped the patient.  This contradicts your earlier statement where you stated that you pushed the resident away to protect yourself.  Also in the investigation meeting held on 27 January 2013 you stated that you tapped the resident which again conflicts with you indicating in the hearing that you pushed the resident.  You then confirmed that it was a tap.

I consider your explanation to be unsatisfactory because:

Your role is to care for and protect vulnerable adults.  In the investigation meeting you clearly indicated that you had tapped the resident.  You had indicated to June Hazlett that you hit the resident and that you were caught.  This is a clear indication that you were fully aware of your actions and how they were unacceptable.  You made reference to the fact that Nula did not pass the room, this is irrelevant as she still witnessed your actions.  You have been trained in what constitutes physical abuse and therefore aware that tapping a resident will not be tolerated.  A resident being violent does in no way [justify] you retaliating with physical abuse.

Having carefully reviewed the circumstances and taken into consideration your length of service, I have decided that summary dismissal is the appropriate sanction.

You are therefore dismissed with immediate effect.  You are not entitled to notice or pay in lieu of notice.

You have the right to appeal against my decision and should you wish to do so you should write to Jervis Nutt Proprietor within five days of receiving this letter giving the full reasons why you believe the disciplinary action taken against you was inappropriate or too severe”.

(vi)	On 19 February 2013 the claimant appealed the decision to dismiss her stating that “in my view this decision was unduly severe.  I consider my actions in this matter to be purely self defence given I was assaulted ... and she then tried to assault me for a second time”.

(vii)	The appeal hearing was heard on 4 March 2013 by Jervis Nutt, Managing Director, who states in the appeal outcome letter that:-

“Having given the matter full consideration, I am now writing to confirm that the original decision by Christine Thompson stands.

I refer to your investigatory meeting dated the 27th January 2013 where you stated “the resident hit you and you pushed/tapped them to protect yourself.

You confirmed that you received safeguarding vulnerable adult training for which you had signed as attending.

The training given states that physical abuse is pushing, shaking, pinching, slapping etc.  Therefore the company policies and procedures reference vulnerable adults, for this is not acceptable for anyone to abuse them.

You have now exercised your right of appeal under our procedures and this decision is final”.

(viii)	The tribunal also noted that the claimant and Jervis Nutt had agreed and signed the minutes relating to the appeal hearing.  Both the claimant and Christine Thompson signed the minutes of the investigatory meeting held on 27 January 2013 with the claimant.

The Law

6.	(i)	The law in relation to unfair dismissal is set out in Rogan as follows:-

	“… the statutory provisions governing the determination of the fairness of the dismissal were found in article 130 of the Employment Rights (Northern Ireland) Order 1996.

“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."

Those provisions make it plain that the burden of proof is on the employer to establish the reason for the dismissal and in this case to demonstrate that it was a reason relating to the conduct of the employee.   If the employer successfully does so the tribunal then applies its judgment to whether the employer acted reasonably in treating the conduct as a sufficient reason for dismissal.

[16] The manner in which the tribunal should approach that task has been considered by this court in Dobbin v Citybus Ltd [2008] NICA 42. Since there was no dispute between the parties in relation to the relevant law I consider that it is only necessary to set out the relevant passage from the judgment of Higgins LJ.

“[48]… The equivalent provision in England and Wales to Article 130 is Section 98 of the Employment Rights Act 1996 which followed equivalent provisions contained 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’.”

	(2)	At paragraph 26 of Rogan, Morgan LCJ states as follows:-

	“The judgment as to the weight to be given to evidence was for the disciplinary panel and not for tribunal.  In this instance at appears that the tribunal has strayed into the forbidden territory of making its own determination on the evidence”.  

		Again at paragraph 27 of his judgment, Morgan LCJ states:-

		“In our view the conclusion by the tribunal that “the panel found as proven fact incidents of assault as having occurred against the clear weight of the evidence” is a firm indication that the tribunal engaged in the weighing of these matters when it was for the disciplinary panel to carry out that task”.

		In paragraph 28 he continues:-

		“The tribunal’s conclusion that the disciplinary panel had not approached this matter in a fully open and enquiring manner appears to have been reached because of its view about the weight of the evidence.  None of this is an indicator of a lack of reasonable investigation”.

		Girvan LJ in paragraph 7 of his judgement states as follows:-

			“The investigation was one which was reasonable in the circumstances.  It is clear from the authorities that the employer’s reasoning must not be subjected to the kind of scrutiny to which an appellate court would subject a tribunal decision.”

Submissions

7.	The tribunal carefully considered the oral submissions made by both parties.  

Conclusions

8.	The tribunal, having carefully considered the evidence together with the submissions from the parties’ representatives, and having applied the principles of law to the findings of fact concludes as follows:-

		(i)	The tribunal finds it helpful to replicate the statement of issues in paragraph 15 of Rogan, duly adapted as follows:-

			(1)	Was the dismissal of the claimant by the respondent fair in all the circumstances?  In determining this primary issue the Tribunal should consider the following:

(a)	Has the respondent shown that the reason relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?

				(b)	Had the respondent a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at the time of its decision?

(i)	Had the respondent reasonable grounds at the time of its decision on which to sustain its belief in the misconduct of the claimant?

(ii)	At the stage the respondent took the decision to dismiss, had the respondent carried out as much of an investigation/enquiry into the matter as was reasonable in all the circumstances?

				(c)	Was the dismissal a fair sanction in the circumstances?

				(d)	Was the claimant afforded an effective right of appeal in the circumstances?

(ii)	The tribunal answers all questions in the affirmative and therefore dismisses the claimant’s claim.

Chairman:

Date and place of hearing:     20 January 2014, Belfast.

Date decision recorded in register and issued to parties: