BETWEEN Mr Benjamin Balanon CLAIMANT AND States Employment Board TRIBUNAL JUDGMENT

Transcription

1 IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL IN THE MATTER: BETWEEN Mr Benjamin Balanon CLAIMANT AND States Employment Board RESPONDENT TRIBUNAL JUDGMENT Reference: [2016]TRE078 Hearing Date: 3 & 4 November 2017 Before: Mrs Hilary Griffin, Chairman Mrs Louise James & Mrs Zannah Le Moignan, Panel members Appearance: For the Claimant: For the Respondent: Advocate J-M Renouf, Benest Corbett Renouf Mrs T Macnair, Law Officers Department THE DECISION It is the unanimous decision of the Tribunal that the Claimant s claims for unfair dismissal and wrongful dismissal fail. THE REASONS Background 1. In his Claim Form, which was presented and admitted to the Tribunal on 23 June 2016, the Claimant submitted claims that he had been: a) unfairly dismissed; and b) wrongfully dismissed.

2 2. In its Response Form, admitted on 13 July 2016, the Respondent denied the claims. 3. The matter came before former Chair, Mrs Santos Costa on 15 August 2016, and the case was originally listed to be heard in November Shortly before the hearing date, a number of conflicts of interest were identified between the Tribunal panel and some witnesses. The case was therefore adjourned and re-listed but, due to difficulties securing an un-conflicted panel, there was a significant delay in the hearing of this case. 4. Both parties have been legally represented throughout the Tribunal process. 5. On behalf of the Claimant, the Tribunal heard sworn witness evidence from: a) the Claimant himself; and b) MF, a Health Care Assistant. MF provided a signed witness statement and was sworn in by the Tribunal. However Mrs Macnair then chose not to cross-examine MF on her evidence. MF s evidence was therefore unchallenged. 6. On behalf of the Respondent, the Tribunal heard sworn witness evidence from: a) JR, the Claimant s line manager and a Senior Sister and Ward Manager on Samares Ward; b) JT, Divisional Lead for Medical Specialities and Emergency Care; c) JM, an investigator and Acting Lead Nurse for the Division of Surgery; and d) JG, Chairman of the Disciplinary Panel and Divisional Lead for Theatres and Anaesthetics. 7. To assist the Tribunal, the parties provided a large agreed bundle of documents containing documents which the parties considered to be relevant to the proceedings and to which the Tribunal was referred throughout the Hearing. 8. The Tribunal received written skeleton arguments from both parties which the Tribunal read in advance. Both parties supplemented their arguments orally and the Claimant provided supplemental written submissions. The Tribunal considered all of the parties submissions, but do not repeat them here, save where relevant.

3 Evidence 9. The Respondent employed the Claimant as a Staff Nurse between 20 June 2007 and 6 May 2016, when it dismissed the Claimant summarily for gross misconduct. At the time of his dismissal, the Claimant had approximately 22 years of experience of working as a professional nurse and prior to moving to Jersey he worked in a number of different countries, including in the United Kingdom, the Philippines and Saudi Arabia. The Claimant gave evidence that prior to working in Jersey, he had never experienced any difficulties in his professional relationships with either staff or patients and had no blemishes on his professional record. 10. Like all registered nurses, the Claimant was subject to the Nursing and Midwifery Council s Professional Code of Conduct ( Code ), which sets out professional standards of care to which registered nurses must adhere. The Tribunal heard that the core principle which underpins the Code is that nurses should "treat people with kindness, respect and compassion". 11. The Claimant worked as a Senior Staff Nurse on Samares Ward ( Ward ) at Overdale Hospital. The Ward is a rehabilitation unit for: a) patients suffering from neurological-related illness such as brain injury; and b) orthopaedic patients who require rehabilitation. 12. The Tribunal heard that a significant proportion of the patients on the Ward are elderly, have suffered strokes and are extremely vulnerable. Whistleblowing incident 13. In 2008, the Claimant raised concerns about the conduct of a newly recruited nurse. When he did not believe that his concerns had been taken sufficiently seriously by his managers, the Claimant escalated the matter by writing to the then Minister for Health and Social Services. A formal investigation was carried out which concluded that there was no evidence to support the Claimant s allegations.

4 14. At the Hearing, the Claimant gave evidence that he was the victim of a long campaign to get rid of me and that by rocking the boat as he believes he was perceived to have done in 2008, he was identified by the Respondent as a troublemaker. He submitted that it was in 2008 that the slow process of being forced out of my job began. 15. The Respondent denied that there was any such campaign, pointing to the fact that this incident occurred a full eight years prior to the Claimant s dismissal. Expired warnings 16. In 2009, a member of staff made a safeguarding complaint about an incident involving a patient under the Claimant s care ( 2009 Incident ). The Claimant was suspended pending an investigation and was issued with a first written warning which was to be valid for 12 months. The disciplinary panel concluded that the Claimant s action fell short of the standard of care expected of somebody in your position in dealing with a vulnerable adult. The decision to issue a first written warning was upheld on appeal. 17. In 2010 (shortly before the expiry of the first written warning from the 2009 Incident) a patient raised a formal complaint about the Claimant s behaviour towards him ( 2010 Incident ). The patient complained that the Claimant had given him a dressing down for ringing his bell and that the Claimant s attitude was belligerent and aggressive. Following an investigation and disciplinary process, the Claimant received a second written warning which was to be valid for 24 months. This decision was also upheld on appeal. As described below, JG was involved in the appeal stage of the 2010 Incident. 18. The second written warning expired in May The Claimant gave evidence that he was suspicious that the second written warning was twice as long as the first written warning in order to leave a window of opportunity to get rid of me. The Respondent denied that this was the case. 19. The Claimant denied all of the allegations against him arising from both the 2009 Incident and the 2010 Incident. There were no further formal disciplinary incidents involving the Claimant between 2010 and One of the grounds upon which the Claimant relies in these proceedings is that the Respondent took these expired warnings ( the Expired Warnings ) into account during the

5 2016 disciplinary process and that this rendered the decision to summarily dismiss the Claimant unfair. The 2016 Allegations 21. On 19 January 2016, two elderly patients (together the Patients ) on the Ward made separate and independent complaints about the Claimant arising from his alleged conduct towards them during the night shift of 18 to 19 January 2016 ( Night Shift ). The Tribunal heard that the Patients rooms were a long way apart and there was no suggestion that they could have colluded in any way. The Patients had both suffered strokes and were recovering on the Ward and hoping to return home before long. 22. The first patient ( Patient A ) raised her complaint with JR during JR s ward round on the morning of 19 January She alleged that during the Night Shift, the Claimant: a) had stood and watched as she struggled to get her body out of bed; b) had been sharp in tone, had had an attitude which she could feel in herself, had told Patient A that he had heard about you from my colleagues and had felt that the Claimant was in collaboration with the Health Care Assistant in his treatment of her; and c) had informed Patient A that I m not supposed to help you, you won t go home if you don t do it, you ll end up in a nursing home and that Patient A had asked the Claimant why he was so angry. 23. The Tribunal heard that Patient A was particularly fearful of going to a nursing home and was desperate to be able to return to her own home. 24. The second patient ( Patient B ) raised his complaints during his morning physiotherapy session on 19 January It was therefore JE, his physiotherapist, who approached JR with her concerns under the Respondent s Safeguarding Procedure. 25. Patient B alleged that during the Night Shift, the Claimant: a) had been abrupt with him and that this had not been the first time he had received such treatment; and b) had been angry when checking Patient B s catheter, making him feel like he was a nuisance.

6 Patient B also alleged that the Claimant had been short tempered with him in the past and, when asked why you like this with me?, the Claimant responded because you have had a stroke and I haven t so I m better than you. Patient B responded today it s me, tomorrow it could be you. Investigation 26. Due to the nature of her safeguarding concerns, JR quickly liaised with her line managers and the Claimant was asked not to report for his shift on 19 January The following day, the Claimant, accompanied by his trade union representative ( Representative ) attended a meeting, at which he was suspended on full pay pending an investigation. There was then a series of safeguarding meetings before JT appointed two independent investigators ( Investigators ) to investigate the Patients allegations. JT met with Investigators the for the first time on 28 January Due to their rotas, this was the earliest opportunity to meet with the Investigators. 27. JT tasked the Investigators with investigating two allegations against the Claimant in respect of each of the Patients: a) that the Claimant had failed to treat patients in his care with the dignity and respect expected from a Registered Nurse; and b) that the Claimant treated patients in his care with a lack of compassion and an uncaring attitude which resulted in patients feeling distressed and not wishing to be cared for by him again. 28. The Investigators interviewed the Claimant twice and also interviewed the following witnesses: a) Patient A b) Patient B c) JR (Senior Sister and Ward Manager) d) KL (a Staff Nurse who worked alongside the Claimant during the Night Shift) e) JE, the physiotherapist who reported Patient B s complaint.

7 29. The Tribunal heard evidence from JM who was one of the Investigators. JM explained that she was mindful that it was important to interview the Patients as soon as possible. Therefore, despite being on annual leave on 1 February 2016, JM met with the other investigator in order to carry out those interviews. 30. JM gave the following evidence: a) The Patients were interviewed separately. Patient A was accompanied by a friend and Patient B was accompanied by a nurse. b) The Patients were both visibly distressed when recalling the events. c) The Patients both had a clear recollection of the Claimant's conduct and, two weeks after the incidents, the information which they provided was in line with the statements which they gave at the time. d) The Claimant's recollection of events was inconsistent. e) Reference in the summary of the interview with Patient A to her having trouble remembering that night and could we ask her direct questions did not suggest that Patient A was either confused or required a steer from Investigators. Rather, Patient A required the Investigators to take her through her statement step by step, asking specific questions about her statement rather than simply asking her to give a general account. Patient A was worried that she might forget to tell the Investigators something. f) At no point did either Patient struggle to understand the process and there was no sign of confusion. g) The Patients were both genuinely frightened of the Claimant and both Patients made it clear that they did not wish the Claimant to care for them again. h) In the context of the Patients having suffered strokes, the Investigators considered whether the Patients accounts of events could be relied upon. The Investigators spoke to the relevant nursing and physiotherapy staff to find out about the progression of the Patients care and to establish the reason they had been admitted to the Ward. The Investigators were satisfied that the Patients recollections were reliable. i) At no stage did the Claimant or the Representative suggest to the Investigators that his facial disfigurement or his command of English caused the Patients to misinterpret his behaviour towards them. j) JR and the physiotherapist were both genuinely concerned for the welfare of the Patients;

8 k) The Claimant stayed after his shift on 18 January 2016 to watch Patient A undertake a washing and dressing assessment with the Occupational Therapist Assistant. JM understood from her interviews with KL and JR that this was not common practice and JR was concerned for the dignity of Patient A; l) JM was satisfied that the Investigation was thorough. The Investigators did not interview the Healthcare Assistant (despite her having been on the Night Shift) as they were advised by Human Resources that she had also been suspended and was not available for interview. m) The first interview with the Claimant on 12 February 2016 ( First Interview ) was not a "fishing expedition" as submitted by the Claimant. Rather, the Investigators asked non-specific questions in order to understand how the Ward functioned. The Claimant was asked more specific questions during the second interview on 29 February 2016 ( Second Interview ) and the Claimant was accompanied at both meetings by his Representative; and n) JM had never previously met the Claimant and did not know about the Expired Warnings. 31. The Investigators considered the Code, and particularly noted the following sections: a) Treat people with kindness, respect and compassion; b) Respect and uphold people's human rights; c) Recognise and respect the contribution that people can make to their own health and well-being; d) Recognise when people are anxious or in distress and respond compassionately and politely; e) Respect a person's right to privacy in all aspects of their care; f) Act with honesty and integrity at all times, treating people fairly and without discrimination, bullying or harassment; g) Treat people in a way that does not take advantage of their vulnerability or cause them upset or distress. 32. The Investigators completed the Investigatory Report ( Report ) on 18 March 2016 and concluded as follows:

9 a) With regards to Patient A, the Investigators upheld both allegations, finding that the Claimant: i) failed to treat Patient A with the dignity and respect expected from a registered nurse; and ii) treated Patient A with a lack of compassion and an uncaring attitude which resulted in Patient A feeling distressed. b) With regards to Patient B, the Investigators upheld one allegation, finding that the Claimant treated Patient B with a lack of compassion and an uncaring attitude which resulted in Patient B feeling distressed. 33. Upon receipt of the Report, JT decided to initiate formal disciplinary proceedings against the Claimant. JT notified the Claimant of this decision at a meeting with the Claimant and his Representative on 6 April Disciplinary process 34. On 29 April 2017, the Claimant attended a disciplinary Hearing ( Disciplinary Hearing ) which was chaired by JG. The Claimant was accompanied by his Representative. 35. At the start of the Disciplinary Hearing, JG explained that she and her fellow panel member ( NC ) ( the Panel ) would not reach a decision that day, and intended to take the full five days permitted to consider the decision. In her evidence, JG explained that she was acutely aware of the impact that a finding of gross misconduct would have on the Claimant s career and family. She therefore did not want to rush that decision. 36. The minutes of the Disciplinary Hearing record the Representative s concerns regarding the manner in which the First Interview was conducted. She was concerned because the questions were posed in very general terms so that the Claimant did not know which Patients had raised complaints against him. The Representative acknowledged that the Second Interview was properly conducted and stated that she simply wanted it on record that she considered the First Interview to have been unfair.

10 37. On 6 May 2016, JG wrote a letter ( Dismissal Letter ) to the Claimant to notify him that he was to be summarily dismissed without notice for gross misconduct. The Claimant was advised of his right to appeal against this decision. 38. On 19 May 2016, the Representative wrote to JR to notify her that the Claimant had decided not to appeal against the decision to dismiss him. The Claimant subsequently confirmed this decision in a letter to JR on 25 May 2016 in which he stated that "I am not making an appeal as I severely lost trust in the organization and I do not want to be further humiliated." 39. In his evidence, the Claimant explained that there was "no point in appealing" as he did not think he would be "treated fairly". He felt that the Tribunal was a better forum in which to appeal against his dismissal. Gross misconduct 40. The Respondent's Disciplinary Policy contained the following definitions: Gross Misconduct Misconduct that is so serious that the bond of trust and confidence between employer and employee is completely broken or fundamentally breaches the contract of employment for example theft assault malicious or wilful damage to property misuse of information breaches of the Data Protection Act bullying and harassment If established the employee may be liable to summary dismissal for the first offence." Misconduct Incidents that infringed rules and regulations, including unsatisfactory or irresponsible behaviour for example poor timekeeping misuse of Employer facilities failure to comply with departmental rules on clothing, safety or hygiene. These are generally not serious enough to warrant dismissal for a first offence.

11 41. The Dismissal Letter set out in detail the grounds upon which the Panel reached its decision to summarily dismiss the Claimant for gross misconduct. In summary, these were: a) the Patients undoubtedly recalled the events in question which they recounted to the Investigators with "exceptional clarity"; b) the Claimant made the Patients feel like "vulnerable, elderly and infirm patients"; c) the Patients "felt scared and frightened to ask for the Claimant's help during the night and were afraid of being cared for by him again; d) the Claimant failed to treat Patient B with the dignity, respect or privacy expected from a registered nurse, having left Patient B without pyjamas and only being covered by blankets for much of the night; e) the Patients recalled the Claimant saying "particularly unkind comments and remarks to them" and those comments had "a devastating effect on the Patients" and may have delayed Patient A's rehabilitation process; f) the Claimant failed to show any evidence that he understood the impact of his behaviour upon the Patients and he did not demonstrate that he would learn from these incidents. He did not provide the Panel with any reassurance that incidents of this nature would not happen again. 42. In her evidence, JG reiterated that it was the severity of the impact on the Patients and how it made them feel that made the Claimant s conduct so serious that it amounted to gross misconduct. The Panel did not believe that this type of conduct could be treated in the same way that an infringement of rules (such as poor timekeeping) might be dealt with. JG repeated that she did not believe that the Claimant appreciated the impact his actions had had on these vulnerable individuals and he remained unemotional and unremorseful throughout the Disciplinary Hearing. 43. JG also gave evidence that the Panel took into account the possibility of reputational risk to both the Ward and to the wider Department of Health and Social Services. She explained that the Ward is used by many elderly and vulnerable people and it is important that that the community are not fearful about going there. She stated that the population has to trust us and that she would not have wanted her own mother to have been cared for by the Claimant.

12 Conflict 44. The Claimant submitted that JG was an inappropriate choice of Chair because of her involvement in the Claimant's 2010 appeal hearing. 45. The Respondent's Disciplinary Procedure makes it clear that line managers must declare any conflicts of interest which arise at any stage in the disciplinary process. 46. In his evidence, the Claimant expressed surprise that an organization the size of the Respondent could not have found a different Chair with no previous connection to the Claimant. However he acknowledged that the letter of 6 April 2016 which invited him to the Disciplinary Hearing did include JG's name and that he did not seek an adjournment. The Claimant stated that he did not seek an adjournment because he did not believe that it would have made any difference. 47. JG gave evidence that it was not until the Disciplinary Hearing had commenced that she had any sense that she had previously met the Claimant. She did not recognise the Claimant s name beforehand and, when JG was in the Disciplinary Hearing, she was unable to place where it was that she had previously met the Claimant. JG denied that the Claimant's name and appearance were such that she must have remembered him. 48. JG gave evidence that at no stage during the Disciplinary Hearing did either the Claimant or the Representative suggest to her that she might be conflicted or that she should recuse herself. This was despite the Representative having also accompanied the Claimant to the 2010 appeal. In short, neither the Claimant nor the Respondent raised any concerns about a potential conflict of interest. 49. After the Disciplinary Hearing, JG asked NC (the Human Resources member of the Panel) to find out whether JG had met the Claimant through a previous disciplinary process. NC subsequently confirmed that JG had been assigned as the Independent Nurse Advisor at the Claimant s appeal in JG explained to the Tribunal that an Independent Nurse Advisor attends hearings to provide medical advice to a panel when none of the panel members have a medical background. An Independent Nurse Advisor does not form part of the panel, is "independent" and does not participate in the decision-making process.

13 51. The Tribunal was shown a copy of the 2010 appeal outcome letter ( Appeal Letter ) in which JG was identified as forming part of the 2010 appeal panel. JG denied that this was the case, stating that she was present at the 2010 appeal only to provide advice to that panel on medical issues. She also gave evidence that she did not form a part of the decision-making process and believed that the Appeal Letter wrongly identified her as a member of the 2010 appeal panel. She did, however, acknowledge that she must have received a copy of the Appeal Letter and that she did not seek to correct the apparent error. 52. JG denied that she had any pre-conceived ideas about the Claimant; she had no prior involvement in the Investigation and the rules regarding conflicts related to situations where one had regular contact (be it in a business or personal capacity) with the individual. JG had no such dealings with the Claimant and considered herself to be independent. 53. Even when she learned about her past dealings with the Claimant, JG did not consider herself to be conflicted and she gave evidence that she did not believe there was any reason to have recused herself. JG also gave evidence that, had the Claimant raised any objections to her involvement in the Disciplinary Hearing due to her previous involvement in the 2010 Appeal, she would have notified Human Resources and would not have continued as the Chair. Expired Warnings 54. The Claimant submitted that the Expired Warnings were taken into account by decisionmakers during the Investigation and Disciplinary Hearing. The grounds for this submission were that: a) an earlier draft of the Management Summary showed that JT considered the Expired Warnings to be relevant to the 2016 disciplinary process; and b) JG asked the Claimant about his disciplinary history during the Disciplinary Hearing. 55. JT was the Employer s Representative at the Disciplinary Hearing and she therefore prepared a summary of the employer s case against the Claimant ( Management Summary ). 56. The Tribunal was shown two different versions of the Management Summary:

14 a) the first version ( First Version ) included details of the Claimant s previous warnings and stated that this is the third time that [the Claimant] has faced a disciplinary action in relation to perceived poor attitude and lack of compassion towards patients in his care. b) the second version ( Second Version ) did not contain any details of the Claimant s disciplinary history. 57. In her evidence, JT acknowledged that the Expired Warnings were of concern to her, as they showed that similar allegations had been made against the Claimant previously. Initially, she thought that the Expired Warnings were relevant to the current proceedings (hence her drafting of the First Version). However, upon reflection, she decided to remove all references to the Expired Warnings as she realised they were a separate issue from the current disciplinary process and could not be taken into account. 58. The Claimant acknowledged that it was only the Second Version which was presented by JT at the Disciplinary Hearing. Nonetheless, the Claimant submitted that the existence of the First Version was evidence that the Expired Warnings were unfairly taken into account during the disciplinary process. 59. JG also gave evidence regarding the Expired Warnings. She denied that the Respondent s decision to dismiss the Claimant for gross misconduct was "heavily influenced" by the existence of the Expired Warnings for similar incidents on his file. JG acknowledged that there were similarities between the 2009 and 2010 Incidents and the 2016 allegations but she was firm in her evidence that she believed that the Claimant's conduct in 2016 amounted to gross misconduct on its own and that she and NC did not take the Expired Warnings into account in its decision-making process. 60. JG acknowledged that the fact that there were previous warnings for similar conduct might suggest that the Claimant had not learnt from his previous mistakes. However, JG submitted that it was not the Claimant s failure to learn from previous mistakes which contributed to the decision to summarily dismiss him, but rather his lack of remorse and lack of understanding of what he had done on this occasion which made her believe that the Claimant would not learn in the future. Law

15 Unfair dismissal 61. Article 61 of the Employment (Jersey) Law 2003 ( Employment Law ) provides that an employee has the right not to be unfairly dismissed. Article 64(1) of the Law states that the employer must show the reason for the dismissal. In this case it was agreed that the reason for the Claimant s dismissal was his conduct; this is one of the potentially fair reasons for dismissal set out in Article 64(2). The Tribunal is required to determine whether the dismissal was fair or unfair by having regard to the reason for dismissal (here, the Claimant s conduct) and assessing whether in all the circumstances the employer acted reasonably or not in treating that reason as a sufficient reason for dismissing the employee. The Tribunal is required to have specific regard to the size and administrative resources of the employer in reaching its decision and to make that decision in accordance with equity [fairness] and the substantial merits of the case. 62. In cases involving the misconduct of an employee the Tribunal is required to follow the guidelines set out in the English case of British Home Stores Limited v Burchell [1980] ICR 303 (EAT) ( the Burchell Guidelines ). These have been followed many times in the Tribunal s previous decisions and state that in deciding whether the dismissal for misconduct is fair or unfair, the Tribunal must consider: a) whether the employer genuinely believed that the employee was guilty of the misconduct when it dismissed him; b) if so, were there reasonable grounds for that belief; and c) did the employer carry out as much investigation into the matter as was reasonable in all the circumstances before dismissing the employee. 63. In short, this means that the employer does not have to have conclusive proof of the employee s misconduct - only a genuine and reasonable belief, reasonably tested. 64. In cases where an employee s professional reputation or ability to work in his or her chosen career could be blighted by a finding of misconduct, it is particularly important that an employer take seriously their responsibility to conduct a fair and even-handed investigation [Salford Royal NHS Trust v Roldan 2010 IRLR 721]. 65. The Tribunal must decide whether the employer s decision to dismiss fell within the band of reasonable responses of a reasonable employer in all circumstances of the case.

16 However, the Tribunal must not substitute its own opinion for what the employer should have done in the case at all times the Tribunal must remain objective in its assessment of the employer s actions. The test is not whether a reasonable employer would have dismissed this employee (as opposed to imposing a lesser penalty), but whether the dismissal fell within the band of reasonable responses of a reasonable employer in all the circumstances of this case. If the decision is outside this range of reasonable responses, then it will be considered to be unfair - Midland Bank plc v Madden [2002] 2AER It must be noted that the Tribunal will take a similar approach when assessing questions of procedural unfairness in a dismissal process. Expired warnings and dismissal 67. According to the JACS Code of Practice for Disciplinary and Grievance Procedures, once a time period which has been placed on a warning has expired then the warning should be disregarded in any future disciplinary proceedings. 68. However, whilst as a general rule this is correct, there are circumstances in which an employer may legitimately take an expired warning into account when deciding to dismiss an employee for a further instance of misconduct. 69. The leading cases in this regard are Diosynth v Thompson [2006] IRLR 284 (CSIH) and Airbus Ltd v Webb [2008] EWCA Civ 49. In Diosynth, the Scottish In House of the Court of Session held that the employer acted unreasonably in taking into account an expired written warning when deciding a subsequent disciplinary outcome. However in Airbus, the Court of Appeal held that Diosynth did not mean that expired warnings could never be taken into account; rather, where the employee s misconduct on its own was the principal reason for a dismissal, it was not unreasonable for the employer to have taken into account the previous misconduct which had been the subject of an expired warning. 70. In order to reconcile the authorities and achieve consistency, the Court of Appeal drew a distinction between: a) using expired warnings to elevate conduct into a dismissible offence (which is not permissible, following Diosynth); and

17 b) having regard to previous conduct, regardless of the fact that it was the subject of an expired warning, when deciding on sanction fray dismissible offence (which is permissible, following Airbus). 71. In Stratford v Auto Trail VR Ltd UKEAT/0116/16, the EAT upheld a decision that an employee was fairly dismissed when, having decided that a disciplinary offence merited a final written warning, the employer went on to dismiss the employee after considering his history of expired warnings and its belief that there would be future conduct issues. Conclusion Unfair dismissal 72. The Claimant challenged the fairness of the investigatory and disciplinary processes and the finding of gross misconduct on the following grounds: a) the length of time taken to carry out the entire process was excessive; b) there were procedural errors, namely: i) that the Claimant did not receive minutes of his Second Interview until shortly before the Disciplinary Hearing. The Respondent disputes this, stating that the minutes were sent to the Claimant on 6 April 2016; and ii) the First Interview was an inappropriate and vague fishing expedition; c) insufficient consideration was given to the potential lack of reliability of the accounts given by the two Patients. More weight should have been given to the Claimant s account of what happened, because the Patients had memory problems whereas the Claimant was an experienced senior nurse; d) the Respondent failed to take into account that: i) the Claimant has a facial disfigurement which might be wrongly perceived as portraying anger as it impacts on the shape of his mouth; and ii) English is not the Claimant's native language which might lead to the perception that he is overly direct or blunt and perhaps therefore overly aggressive. e) the acts alleged cannot reasonably be treated as constituting gross misconduct warranting summary dismissal; f) the Disciplinary Panel may have taken into account the existence of the Expired Warnings; g) JG, the chair of the Panel was conflicted and should have recused herself because she was involved in earlier disciplinary proceedings against the Claimant in 2010.

18 73. The Tribunal first considered each of the grounds upon which the Claimant submitted that his dismissal was unfair. Length of process 74. The Claimant submitted that the time taken to investigate the allegations and bring them to a disciplinary hearing was excessive. The Tribunal noted that an investigation should be undertaken without unreasonable delay, and the Respondent s own Disciplinary Managers Guidelines states that the investigation should be carried out as promptly as possible. 75. The Tribunal acknowledged that the time taken to investigate and conduct the Disciplinary Hearing was somewhat lengthy and undoubtedly caused anxiety to the Claimant, who was suspended throughout. However, given a very serious impact that a finding of gross misconduct would have on the Claimant's career, the Tribunal accepted the Respondent's submissions that these allegations required thorough investigation. The Tribunal also accepted that JG did not wish to be rushed over the decision-making process and that it was often difficult for the Investigators and witnesses to find a mutually convenient time to meet between their normal shift patterns. 76. In the circumstances, the Tribunal did not consider the length of time taken to carry out the entire investigation and disciplinary process to be excessive. Procedural errors 77. The Claimant submitted that: a) he did not receive the minutes of the Second Interview until shortly before the Disciplinary Hearing; and b) the First Interview was a "fishing expedition" and therefore unfair. 78. Having considered all of the evidence, the Tribunal was satisfied that, on the balance of probabilities, the minutes of the Second Interview were provided to the Representative on 6 April The Tribunal noted that the Claimant did not provide any evidence to support this allegation and did not seek an adjournment during the Disciplinary Hearing to allow him to consider the minutes.

19 79. With regard to the manner in which the First Interview was conducted, the Tribunal accepted JM s evidence that the less targeted questions were designed to help the Investigators to gain an understanding of how the Ward functioned and how the Claimant worked on that Ward. Having considered the minutes of the First Interview, the Claimant s evidence and JM s evidence, the Tribunal did not consider the First Interview to have been prejudicial to the Claimant. The Tribunal also did not accept the Claimant s submission that the First Interview was fishing expedition. In any event, the Representative agreed that the Second Interview was properly conducted, and there was no suggestion by the Claimant that he was not able to put his case, either during the Investigation or at the Disciplinary Hearing. 80. The Tribunal concluded that the procedural points to which the Claimant referred did not amount to procedural errors. Reliability of Patients accounts 81. The Claimant submitted that the Respondent failed to give sufficient consideration to the possibility that the Patients' accounts may be unreliable. The Claimant submitted that, due to their having suffered strokes, the Patients were overly sensitive and suffered from conditions which could cause distress, confusion and misperception. In contrast, the Claimant submitted that more weight should have been placed on his account of the incidents due to his professional training and many years of experience. The Claimant also referred to the positive references and appraisals which he had received during his time working on the Ward. 82. The Tribunal noted that the Report stated that the evidence of both of the Patients "remained consistent throughout" and had clear recollection. In contrast, JM gave evidence that the Claimant was less consistent in his recollection of events. JM also liaised with the Patients' caregivers in order to establish the nature of their conditions so as to be able to assess the degree to which the Patients' allegations could be relied upon. The Tribunal considered it to be highly relevant that both Patients were able to recall and recount details of the 2016 Incidents nearly two weeks later. 83. Having considered all the evidence, the Tribunal was satisfied that the Investigators did properly assess the reliability of the Patients' accounts before reaching their decisions.

20 Facial disfigurement and language 84. The Claimant submitted that the Respondent failed to take into account that his facial disfigurement and use of English may have led to misunderstandings on the part of the Patients. 85. The Tribunal considered it to be relevant that the Claimant did not raise either the Claimant s facial disfigurement or his mis-use of English during either the Investigation or the Disciplinary Hearing. It was also relevant that the Respondent s witnesses considered the Claimant's facial disfigurement to be minor and barely noticeable. 86. In view of the above evidence, the Tribunal concluded that the Respondent could not have been expected to take these points into consideration during either the Investigation or the Disciplinary Hearing. Although the Respondent was obliged to carry out a thorough investigation, it was not required to forensically investigate every potential avenue. Since the Claimant did not raise these matters at any stage, the Tribunal did not consider it to be reasonable to expect the Panel to have pursued this line of enquiry. The Claimant provided no tangible evidence to suggest that it was the Claimant's appearance or his misuse of English which caused the Patients to issue their complaints. 87. Accordingly, the Tribunal rejected the Claimant s submission in this regard. Expired warnings 88. The Claimant submitted that the Disciplinary Panel may have taken into account the Expired Warnings. 89. It was clear from the evidence that the Investigators did not know about the Expired Warnings. The Investigation could not therefore have been in any way influenced by such knowledge. 90. The Respondent did not dispute that both JT and JG were aware of the Claimant's disciplinary history. However, despite her own misgivings, JT removed all reference to the Claimant's disciplinary history from the Management Summary which she submitted to the Disciplinary Panel.

21 91. The Tribunal accepted JG s evidence that when she and NC considered the Claimant's conduct towards the Patients, they concluded that the Claimant's behaviour in itself amounted to gross misconduct. This was not a case where the Expired Warnings acted to tip the balance against the Claimant (as might have been the case had the Panel been considering a final written warning). Indeed, it was clear to the Tribunal that even with an entirely unblemished record, the Claimant would have been dismissed for his conduct and the Expired Warnings did not in influence the Panel s decision. Conflict 92. The Tribunal carefully considered the question of whether JG, having been involved in the 2010 Appeal Hearing, was conflicted and should have recused herself. 93. The Tribunal considered it to be particularly relevant that, despite knowing of JG's forthcoming role in the Disciplinary Hearing since 6 April 2016, neither the Claimant nor his Representative (both of whom attended the 2010 Appeal Hearing with JG) considered it necessary to raise JG s involvement as a potential conflict. The Minutes of the Disciplinary Hearing showed that the Representative was not hesitant in raising other concerns about the process and the Tribunal was therefore confident that, had the Representative considered JG to be conflicted, she would have raised it at the time. The Tribunal accepted JG's evidence that, had the Claimant or his Representative raised this issue at any time during the process, she would have stepped down as Chair. 94. Furthermore, the Tribunal did not consider there to be any breach of the Respondent's rules regarding conflicts. JG did not know the Claimant personally and she was not involved in the investigation leading up to the Disciplinary Hearing. The question of whether or not JG was an "independent" nurse adviser at the 2010 Appeal Hearing was not, in the Tribunal's view, relevant in these circumstances because even if JG was a decision-maker at the 2010 Appeal, this did not result in her being conflicted. 95. The Tribunal concluded that there was no conflict of interest.

22 Severity of sanction 96. The Claimant submitted that the acts for which the Claimant was dismissed could not reasonably have been treated as constituting gross misconduct warranting a sanction of summary dismissal. 97. The Tribunal considered the definitions of both gross misconduct and misconduct as set out in the Respondent's Disciplinary Guidelines. The Tribunal took into account the grounds upon which the Panel reached its decision to summarily dismiss the Claimant. The Tribunal found JG to be a measured and consistent witness and the Tribunal accepted her evidence that the Panel assessed what sanction was appropriate with reference to the relevant sections in the Disciplinary Policy. 98. It was clear to the Tribunal that JG was conscious of the serious impact a finding of gross misconduct would have on the Claimant and his career. In the Tribunal s view, the evidence (in particular the Dismissal Letter) was clear that this was a carefully considered decision based upon the contents of the Report and the Claimant's responses during the Disciplinary Hearing. 99. In the circumstances, the Tribunal concluded that the Respondent acted within the band of reasonable responses in treating the 2016 Incidents as sufficient grounds to dismiss the Claimant summarily for gross misconduct. Fairness 100. Having considered each of the Claimant s submissions individually, the Tribunal then applied the Burchell Guidelines to the process as a whole. The Tribunal was mindful that, given the serious impact of the decision on the Claimant's career, the burden on the Respondent to ensure that a fair and even-handed investigation and disciplinary process was carried out was high. The Tribunal was also mindful that its role was not to decide whether it was the right decision to dismiss the Claimant. Instead, the Tribunal may only determine whether that decision fell within the range of reasonable responses of a reasonable employer The Tribunal considered whether the Panel genuinely believed that the Claimant had committed an act of gross misconduct and whether the Panel had reasonable grounds for that belief.

23 102. Having considered all the evidence, the Tribunal was satisfied that the Panel did genuinely believe that the Claimant's conduct towards the Patients in the 2016 incidents constituted an act of gross misconduct. As set out above, the Expired Warnings did not feature in the Panel's decision-making process. In reaching its decision, the Panel took into account the contents of the Report, which included interviews with the Patients, caregivers and the Claimant. Furthermore, the Panel considered the definition of gross misconduct in the context of the Claimant's role as a nurse and JG conducted a thorough Disciplinary Hearing with the Claimant Based on the evidence, the Tribunal was satisfied that the Panel had reasonable grounds for believing that the Claimant had committed an act of gross misconduct Finally, the Tribunal considered whether the Respondent carried out as much investigation into the matter as was reasonable in the circumstances before dismissing the Claimant. As set out above, the Tribunal carefully considered every aspect of the Investigation and concluded that it was fair and thorough and afforded the Claimant plenty of opportunity to put his case to the Investigators In view of the above, the Tribunal finds that the Respondent's decision to summarily dismiss the Claimant for gross misconduct fell within the range of reasonable responses of a reasonable employer in the circumstances of this case Therefore, the Claimant's claim for unfair dismissal fails. Wrongful dismissal 107. The Claimant claims that he was entitled to receive a payment in respect of his notice period Unlike in claims for unfair dismissal, in a claim for wrongful dismissal, the Tribunal must make its own finding as to whether, on the balance of probabilities, the Claimant's conduct amounted to a repudiatory breach of contract which would enable the Respondent to dismiss him summarily without notice In reaching its decision, the Tribunal noted that one of the core responsibilities of a nurse is to look after vulnerable people. Indeed, the bedrock of the Code is "kindness, respect and

24 compassion". The evidence was clear that the Claimant's behaviour during the Night Shift fell far short of what is expected from a Registered Nurse Given the role of a nurse as caregiver and the particularly unkind and uncompassionate manner in which the Claimant treated the Patients during the Night Shift, it is the unanimous decision of the Tribunal that the Claimant did commit a repudiatory breach of contract which entitled the Respondent to terminate the contract without notice and without payment in lieu of notice Therefore the Claimant's claim for damages for wrongful dismissal fails. Mrs H G Griffin, Chairman Date: