When a three step dismissal is procedurally unfair

03 March 2016

Toni Fitzgerald Gunn, Solicitor, considers the Court of Appeal case of Caroline Connolly v Western Health & Social Care Trust [2016] NICA 4 whereby the Claimant's dismissal under the three step process was deemed procedurally unfair

When a three step dismissal is procedurally unfair

Ms Connolly was employed as a Band 5 Staff Nurse at Altnagelvin Hospital within the Western Health and Social Care Trust, having commenced employment in this position in February 2011. Ms Connolly suffered from ‘suspected asthma’ since 2007.

On 04 October 2012, whilst in work, Ms Connolly had cause to use her inhaler in view of a Ward Sister. On 07 October, Ms Connolly felt the onset of an asthma attack but had left her inhaler in her car. She therefore went to the medicine room in the ward of the hospital, used an inhaler which was the property of her employer, then left the inhaler on the desk in the medicine room. Ms Connolly continued with her work and did not advise any colleague or superior of her actions with regards the inhaler until two days later, when she advised a Ward Sister.

The Ward Sister reported the matter to Mr Raymond Jackson (Unscheduled Care Co-ordinator, Emergency Care and Medicine) and shortly after, Ms Connolly was suspended from work. Mr Jackson conducted an investigation in relation to the inhaler and other incidents. The inhaler incident advanced to disciplinary, the Trust having decided to address the other matters informally. Ms Connolly was dismissed for gross misconduct, and this was upheld on appeal.

Ms Connolly instigated Industrial Tribunal proceedings of unfair dismissal after the disciplinary but prior to appeal, which subsequently proceeded following the conclusion of the internal process.

The Tribunal’s decision was issued on 10 October 2014, which confirmed its concerns in relation to the investigation and subsequent disciplinary. It determined, inter alia:

  1. The investigation:
    1. Concentrated on other matters rather than the inhaler incident; and
    2. Failed to establish a correct time line of events and facts, resulting in an absence of critical evidence and clarity.
  2. And, with regards the disciplinary:
    1. The panel also dealt with a grievance raised by Ms Connolly on the same day as the disciplinary meeting;
    2. The documentation which formed part of the investigation but related to the other incidents were before the panel, albeit the Trust had decided to deal with same informally; and
    3. The charge which was the subject of the disciplinary related to the ‘removal’ of the inhaler, notwithstanding Ms Connolly’s position that she used the inhaler but did not remove it. Reference was made to ‘theft’ during the disciplinary meeting but Ms Connolly had not been made aware of this allegation prior to same.

The Tribunal determined that the above issues brought “the matter outside what is fair and reasonable” and “the decision to dismiss…was procedurally unfair.”

The Tribunal went on to consider whether such unfairness could be rectified on appeal – but determined that it was “unable and unwilling to “second guess”, as it has been put, the appeal panel members who were present…in the absence of clear evidence of bias or malice existing, or some other inappropriate attitude or approach being taken or adopted by the appeal panel members.”

Therefore, the Tribunal dismissed Ms Connolly’s claim of unfair dismissal.

Ms Connolly applied to the Tribunal for Review of the decision, which was held but rejected. Ms Connolly the appealed the decision to the Court of Appeal (outside of time, but time was extended by the Court).

The Court of Appeal delivered its decision on 01 February 2016. It referenced another NI Court of Appeal decision (Stadnik-Borowiec v Southern Health and Social Care Trust & another) stating that an appeal from the Tribunal was not to be a rehearing, in that “unless the factual findings made by the Tribunal are plainly wrong or could not have been reached by any reasonable Tribunal, they must be accepted…”

Bearing that in mind, the Court confirmed that it was “unable to discern” the factual basis for the disciplinary appeal having served to restore fairness in the disciplinary process. The Court stated “The inadequate investigation remained as inadequate as ever, the uncertainty surrounding the precise allegation made against the appellant and therefore the applicable range of appropriate sanctions had not been clarified and, whilst some prejudicial material that had been before the disciplinary panel had been redacted by the time of the appeal hearing (two witness statements) had not been…The court is not satisfied that the Tribunal, having identified the problems, addressed them adequately or at all.” The Court went on to conclude that “the Tribunal’s decision that “the appeal hearing served to restore fairness to the matter” is unsupported by the material that was available to it which rather pointed in the opposite direction and the decision was in that sense perverse.”

The Court of Appeal therefore ordered that the decision of the Tribunal be set aside and remitted the case to a differently constituted Tribunal for rehearing.

 

Belfast Telegraph 2 Feb 2016 Nurse sacked over inhaler wins bid to have new tribunal hearing

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