THE INDUSTRIAL TRIBUNALS

CASE REF:	1041/07

CLAIMANT:			Patrick Joseph Rogan

RESPONDENTS:		1.	South Eastern Health & Social Care Trust
				2.	South Eastern Trust

DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent.  The matter will now be reconvened for a hearing on remedy. 

Constitution of Tribunal:
Chairman:		Mr J V Leonard
Members:		Mr Hampton
			Mr Patterson

Appearances:
The claimant was represented by Mr M McCann, Barrister-at-Law, instructed by McEvoy Sheridan, Solicitors.
The respondents were represented by Mr J Dunlop, Barrister-at-Law, instructed by Carson McDowell, Solicitors.

REASONS

Introduction

1.	The claimant’s claim to this tribunal was initiated by an application dated 8 May 2007 received by the Office of the Tribunals on 9 May 2007.  In that, the claimant claimed unfair dismissal.  The claimant had initially claimed reinstatement in his application but, as was later clarified to the tribunal, the specific remedy sought by the claimant was compensation only.  

2.	The claimant had named “Down Lisburn Health & Social Services Trust now superseded by South Eastern Trust” in his application.  By response to the claimant’s claim, the respondent indicated that Down Lisburn Health & Social Services Trust had been subsumed into the “South Eastern Health & Social Care Trust”.  By agreement, the tribunal therefore determines that South Eastern Health & Social Care Trust is the proper respondent in these proceedings.  The respondent confirmed in the response that the claimant had indeed been summarily dismissed.  The reason for that dismissal was stated to be ‘gross misconduct’.  It was contended that the dismissal was fair in all respects.  

3.	The parties’ representatives had agreed a statement of issues requiring to be determined by the tribunal 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 Trust shown that the reason relied upon by it in its decision to dismiss the claimant related to the claimant’s conduct?

(b)	Had the Trust 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 Trust 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 Trust took the decision to dismiss, had the Trust 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?”

4.	There were other issues mentioned in the statement of issues relating to remedy.  However, towards the conclusion of the hearing, the respective representatives indicated to the tribunal that an agreed schedule of loss had not been prepared.  After some discussion it was requested that the tribunal in this decision would determine only the foregoing agreed issues and matters of liability.  If unfair dismissal were to be found against the respondent, it was agreed that the matter could be thereafter listed for a further hearing on remedy.  

THE SOURCES OF EVIDENCE

5.	The tribunal had before it two lever arch files of documents and an additional bundle.  Additional documents were submitted in the course of the hearing, by agreement.  The tribunal heard the oral evidence of Mrs Isobel Tweedie, Mrs Jennifer Rooney, Mrs Yvonne Walsh, Mr Michael O’Reilly, Mrs Sheelagh Bell, Mrs Bronagh Kerr, Mr William Walsh, Mrs Eileen Harvey, Mr Laurence Clarke, Mrs Maura Devlin, Ms Francesa Graham, and also from the claimant, Mr Rogan.  The tribunal had the benefit of detailed oral and written submissions from the parties’ respective representatives.
 
THE TRIBUNAL’S FINDINGS OF FACT

6.	In consequence of the evidence adduced before it, on the balance of probabilities the tribunal determined the following findings of fact, material to the issues:-

6.1	The respondent is a Northern Ireland health and social care trust.  It is charged with running a residential care facility located at the Downshire Hospital, Ardglass Road, Downpatrick, County Down, BT30 6RA, which cares for vulnerable adults.  Ward 32 of the Downshire Hospital provides facilities for elderly male adults, some of whom are long-term care patients.  It was accepted that caring for some patients in this facility could be a demanding and a difficult task as many of the patients on Ward 32 had advanced dementia and other significant health difficulties.  The tribunal understands that during daytime hours the ward is staffed by one or more Staff Nurses assisted by at least two Nursing Auxiliaries; at night time there is a Staff Nurse in charge, again, assisted by two Nursing Auxiliaries.  A senior Night Charge Nurse is responsible for administering all of the wards in the hospital and works shift hours.  At the material time that concerns this tribunal, there was a Ward Manager in charge of Ward 32, Mr Michael O’Reilly, who worked daytime hours and who was also on call as required.

6.2	The respondent Trust has a number of written codes or policies to be followed by staff.  These include General Terms and Conditions of service including a disciplinary procedure code that is amended as required from time to time.  The tribunal was referred to the service terms and to the disciplinary procedure code that was applicable to the employment of the claimant in this case at the material time.  In addition to that, any qualified Nurse is governed by the Nursing Midwifery Council Professional Conduct: Standards of Conduct Performance and Ethnics code.  This latter code applies to any Registered Nurse but does not apply to Nursing Auxiliaries.  

6.3	The claimant was at the material time a qualified State Enrolled Nurse and Registered Mental Nurse.  After employment with the respondent in the Lagan Valley Hospital as a General Staff Nurse, and then working as a Community Psychiatric Nurse, the claimant then was relocated to Downshire Hospital, Ward 32, as a Registered Mental Nurse.  That was at some time in 2003, possibly September, but the tribunal is not certain of the precise date.  

6.4	The claimant’s work in Ward 32 appears to have been largely unremarkable until the particular events that transpired at the very start of August 2006.  An Auxiliary Nurse named Mrs Isobel Tweedie made contact with another Auxiliary Nurse, Mrs Geraldine Murphy.  Discussions took place between the two and as a result Mrs Tweedie made contact with a Staff Nurse, Mrs Jennifer Rooney. Mrs Rooney shortly thereafter called with Mrs Tweedie at the latter’s home.  Mrs Rooney then wrote a letter on behalf of Mrs Tweedie.  Mrs Tweedie signed the letter and then Mrs Rooney took the letter to Downshire Hospital and give it to Mrs Yvonne Walsh who was the Night Charge Nurse on duty the particular evening in question, that being 2 August 2006.  

6.5	The tribunal had sight both of a copy of the handwritten version of that letter and also of a typed version which is dated ‘1 August 2006’.  At the foot the letter purports to be signed and dated by Mrs Tweedie, “2/8/06 9.45 PM”.  The letter contains a statement referring to an alleged incident involving the claimant and a patient (“WM”).  It describes an allegation of assault by the claimant upon WM.  It contains the following:-

“Out of the blue S/N Rogan buried his boot to the side (right) side of [WM’s] head said ‘you are going to break our backs’.  We once again tried to assist him up.  Had to set him back down.  Joe then punched him in the stomach.  He then kicked him a second time.  I left the area to go to get the hoist.  When I came back with the hoist and 2 slings which was close by and when deciding which size sling to use, S/N Rogan twisted [WM’s] pyjamas at the neck attempting to raise [WM] himself of the floor using the pyjama’s twisted at the neck.  He was unable to raise him from the floor so lowered him down again himself.  I took [WM’s] hand, he took the other and raised his body off the floor but he kept sliding, I said to [WM] ‘Please put your feet on the floor’.”

6.6	Mrs Yvonne Walsh then telephoned at home the hospital’s Clinical Services Manager, Mr William Walsh (the latter being her husband). Mr Walsh directed Mrs Walsh to put the foregoing letter into an envelope addressed to him.  Mrs Walsh was of course aware that the claimant at the time was on duty (somewhat unexpectedly, for the claimant was actually covering for another absent nurse).  Although she was aware of the serious nature of the allegation made, seemingly she felt that she had no power to do anything concerning the fact that the claimant was continuing to work on the ward that evening.  Upon finishing her shift the following morning, 3 August 2006, Mrs Walsh returned home and she gave to Mr Walsh the envelope containing the letter from Mrs Tweedie.  She had no further involvement with the matter at that time.

6.7	 Returning to the events of the evening of 1 August 2006, Mrs Walsh had for a time relieved Mrs Tweedie from duty as Mrs Tweedie had been tasked with work at another location.  Thus Mrs Walsh was on Ward 32 that evening for a period of time.  At no time in the course of that evening did Mrs Walsh observe the patient WM in any state of distress nor was any complaint made to her by WM or indeed by any other person.  As the tribunal understands it, the time at which Mrs Walsh was first present on the Ward 32 that evening was quite shortly after the time when Mrs Tweedie alleged that the claimant’s assault upon WM had occurred.  Mrs Walsh’s evidence to the disciplinary hearing and to the tribunal was that she had assisted the claimant with WM.  Mrs Walsh observed that WM appeared to be his “normal self”.  She neither observed any signs of aggression between WM and the claimant, nor any signs of distress nor of any injury on WM’s part.  Further, Mrs Walsh observed that evening that Mrs Tweedie herself showed no signs of distress and had made no complaint to her.  Mrs Walsh expressed the view to the tribunal that she would have been surprised if an assault had indeed occurred in the manner described by Mrs Tweedie in that there would have been some signs of such an event occurring.  Mrs Walsh confirmed to the tribunal that at the disciplinary hearing which took place some time later, there was no specific enquiry made by the disciplinary panel concerning the foregoing facts and concerning her observations of the state and condition of WM on the evening of 1 August 2006 notwithstanding that that had been mentioned in her statement.  

6.8	On 3 August 2006 Mr Walsh brought the matter of Mrs Tweedie’s letter to the attention of Mr Dessie Bannon, the Hospital’s Operations Manager.  Mr Bannon later tasked Mr Walsh with the role of “investigating officer” under the respondent’s disciplinary procedure.  That disciplinary procedure states that disciplinary action will not be taken against a member of staff until any complaints have been fully investigated by an investigating officer appointed by the disciplinary authority.  A report is to be provided under the procedure to the designated “presenting officer” before any disciplinary hearing proceeds.  These two are two distinct functions under the procedure. 

6.9	When Mr Bannon received notice of the allegation from Mr Walsh on 3 August 2006, he spoke with the respondent’s Human Resources department and he was informed that the claimant was on annual leave at that time.  He requested Mr Walsh to have WM examined by a doctor.  Mr Bannon then issued a letter of suspension dated 7 August 2006 to the claimant.  The tribunal believes that that letter was received by the claimant on 10 August 2006.  It indicated that he was being suspended under Rule 3.3 of the respondent’s disciplinary procedure.  He was told he would be notified of the identity of the investigating officer.  The tribunal understands that Mr Walsh was formally appointed as investigating officer in or around 14 August 2006.  The claimant was notified of that appointment of Mr Walsh as investigating officer by a letter of 14 August 2006.  Although Mr Walsh was not officially appointed investigating officer until (probably) 14 August 2006, nonetheless he was tasked by Mr Bannon with meeting with Mrs Tweedie on 3 August 2006 in order to substantiate her allegation, and he met with Mrs Tweedie accordingly.

6.10	Mr Walsh seems to have regarded his function as investigating officer as requiring him to obtain witness statements from relevant parties.  Mr Walsh clarified to the tribunal that he regarded his function as being confined merely to obtaining these statements, rather than perhaps conducting a thorough and a searching investigation into any facts alleged.  Mr Walsh did not thereafter produce a ‘report’ as such to Mr Bannon in the sense of, as it were, pulling together and making something coherent out of the various witness statements in an analytical or critical fashion.  Instead, he merely presented the various statements to Mr Bannon and he regarded his investigating officer’s functions as being discharged by doing that.  The various witness statements obtained were inspected by the tribunal. These disclose a number of specific allegations against the claimant which are summarised below. 

6.11	The respondent’s disciplinary procedure provides at Rule 2.0 (ix) that “The investigating officer will prepare a report of her/his findings based on the facts involved in the complaint”.  Mr Laurence Clarke was appointed as presenting officer under the disciplinary procedure.  Mr Clarke informed the tribunal that he had received from Mr Bannon the investigating officer’s report.  He stated to the tribunal that he regarded the collection of witness statements as presented to him by Mr Bannon as being a ‘report’.  Mr Clarke indicated that he had received this report possibly in late September or early October 2006.  Mr Clarke then arranged a meeting with Mr Walsh to discuss the documentation that he had received.  Mr Clarke spoke with Mr Walsh about a particular statement made by a Nursing Assistant, Mr Nigel Fitzpatrick.  Mr Fitzpatrick’s statement did not seem to bear out an allegation that had been made by the Nursing Assistant, Mrs Sheelagh Bell, concerning a particular allegation of assault by the claimant alleged upon a patient, (‘BM’).  That particular allegation made by Mrs Bell was that on 29 May 2006 Mrs Bell had been working on an afternoon shift in Ward 32.  Whilst in the kitchen, she had heard a commotion in the Day Room.  She had looked through the glass and she alleged that she had seen Mr Fitzpatrick escorting BM to his chair.  She then alleged that the claimant came from the other side of a trolley and had punched BM three times in the stomach.  Mrs Bell had further alleged that she was afraid to report this at the time because of the claimant’s threatening and bullying manner.  That allegation had been contained in a statement given by Mrs Bell to Mr Walsh on 17 August 2006.  In his statement, Mr Fitzpatrick said that he remembered an incident occurring on that day, 29 May 2006.  However, he had not actually seen the claimant strike BM.  Mr Fitzpatrick further stated that he had never witnessed any untoward incidents regarding verbal or physical abuse to patients.  Mr Fitzpatrick’s statement was also dated 17 August 2006.  Upon being further approached by Mr Walsh at the direction of Mr Clarke, it appears that Mr Fitzpatrick indicated that he did not wish to change his statement in any respect.  Mr Fitzpatrick was not called as a witness before the tribunal.

6.12	Mr Clarke, as presenting officer, also requested to see any relevant medical notes and records and any nursing reports in respect of the alleged incident regarding WM.  He reviewed these records and reports (which were later available for inspection by the tribunal).  Mr Clarke then, in conjunction with the respondent’s Human Resources department discussed the situation with a view to framing possible disciplinary charges against the claimant.  The tribunal will detail more fully below the specific nature of the allegations made against the claimant.  It should suffice to say at this point that it seems that Mr Clarke did not find any specific description or categorisation of various types of classified misconduct as set out in the respondent’s disciplinary procedures to be appropriate.  The charge against the claimant as then drawn up was of ‘inappropriate conduct’.  Mr Clarke took the decision that the claimant ought properly to face disciplinary proceedings. 

6.13	By letter dated 27 October 2006 the respondent’s Human Resources Manager, Mrs McCreanor, wrote to the claimant requesting him to attend a disciplinary hearing on 9/10 November 2006.  The allegations were stated as follows:-

“You have behaved inappropriately towards patients under your care.  Your actions are in breach of - 

•	your contract of employment;

•	the NMC ‘Code of Professional Conduct; Standards for Conduct, Performance and Ethnics’.

The allegations have been categorised as Gross Misconduct.”

The claimant was advised of his right to be represented by a trade union or other professional association.  A copy of what was referred to as the ‘preliminary investigation report’ and relevant witness statements were provided to him.  That appears to have consisted of the same bundle of statements as had been provided by Mr Walsh to Mr Bannon and thence to Mr Clarke.  A copy of the respondent’s disciplinary procedure was also provided to the claimant.

6.14 The statements of various allegations contained in the collection of witness statements in the report of the investigating officer were in summary as follows:-

(a)	Mrs Tweedie’s statement dated 2 August 2006 containing allegations regarding the alleged assault by the claimant upon WM (as referred to above).

(b)	A Nursing Assistant, Mrs Sheelagh Bell, made a statement on 17 August 2006 alleging that on 29 May 2006 she had been on duty and a patient (“BM”) who had become aggressive earlier in the day was in the day room.  Mrs Bell heard a commotion whilst in the kitchen.  She looked through the glass and saw Mr Fitzpatrick escorting BM to his chair.  The claimant came from the other side of the trolley and punched BM three times in the stomach.  BM then became aggressive and a struggle took place with BM ending up on the floor and having to be restrained.  BM received a cut above his eye which had to have “steri-strips” applied.  Mrs Bell stated that she was afraid to report this at the time because of the claimant’s threatening and bullying manner.  

(c)	A Nursing Assistant, Mr Aby Matthew, on 16 August 2006 made a statement alleging that more than six months before he had witnessed the claimant punching a patient (‘KG’).  The reason was that the patient had eaten a piece of the claimant’s cake.  Further, about six to eight months prior to August 2006 a patient (‘RS’), by then deceased, had been allegedly slapped in the face by the claimant.  Further to this, a patient (‘NR’) had been allegedly grabbed by the claimant by the shirt collar with both hands and allegedly verbally threatened by the claimant.  

(d)	On 16 August 2006 a Nursing Assistant, Mrs Anne-Marie Campbell, made a statement alleging that on 2 August 2006 a patient (‘GMcG’) was allegedly possibly assaulted by the claimant although she was not a direct witness to any assault. 

(e)	In addition to the foregoing, Mrs Kerr, on 17 August 2006 made a statement alleging that on 8 June 2006 she noticed a “mepore dressing” on the left forehand of a patient (‘JT’).  She spoke with the claimant who informed her that he had had a bit of a scuffle with JT.  The following day JT was complaining of pain to his left side ribs, bruising to his left elbow and scratch marks to his left forehand.  On account of this Mrs Kerr felt that, although she was not a direct witness to anything, “something more had happened” than had been reported.

6.15	Mr O’Reilly informed the tribunal that three members of staff had come forward each independently of the other, but at the same time, in order to provide information for the investigation, these being the Staff Nurse, Mrs Kerr, and the two Nursing Assistants, Mr Matthews, and Mrs Bell.  Mr O’Reilly stated that concern had been expressed by these three members of staff about possible repercussions if they did come forward.  It was in contention in the course of the hearing of this matter whether some type of indemnity or reassurance of no further action against these three persons was indicated by Mr Walsh or whether, as Mr Walsh stated, the persons were merely reassured that they would not be disadvantaged.  This latter of course was in respect of the issue of any delay in the reporting of any alleged incidents to Management.  

6.16	Mr Clarke as investigating officer then prepared a booklet containing appendices which put together copies of the various witness statements in respect of the foregoing allegations, any relevant medical notes and records and any incident report forms, the claimant’s employment and training record, any correspondence with the claimant, the NMC Code of Professional Conduct and the respondent’s disciplinary procedure. 

6.17	The disciplinary hearing proceeded on 29 January and on 1 and 5 February 2007.  It was chaired by Mrs Maura Devlin who was acting Director of Primary Care with the respondent, together with Mr Billy Bateman who was Human Resources Manager of the respondent.  Notes were taken of the disciplinary hearing by both Mrs Devlin and Mr Bateman and these notes were inspected by the tribunal.  The disciplinary panel members also arranged a panel visit to Ward 32 which took place on 8 February 2007.  A report was thereafter produced by the disciplinary panel which was signed and dated by Mrs Devlin and Mr Bateman on 26 February 2007.  That report serves to provide a summary of the allegations, the record of events, an outline of the various incidents alleged and a summary of the panel’s conclusions in respect of these allegations and, further, lists certain additional information which was stated to have been considered by the disciplinary panel, including character witnesses and reference information which was introduced on behalf of the claimant.  

6.18	Particularly material to this tribunal’s decision is the fact that the disciplinary panel’s records indicate that the disciplinary panel had considered six separate incidents which were allegedly observed and stated to be subsequently reported by three separate witnesses.  The panel discussion section in the report further details the factors which are stated to have been considered by the panel members.  The report confirms in its conclusion that, taking everything into account, the decision was that the claimant was to be summarily dismissed from the employment of the respondent.  That decision was then communicated to the claimant by letter dated 15 February 2007.  A right of appeal was afforded.

6.19	By letter of 15 February 2007 the claimant requested an appeal.  Further to that, the claimant took other legal steps which do not directly concern this tribunal.  He also wrote further correspondence in connection with his appeal.  The claimant was invited by the respondent by letter dated 2 May 2007 to attend an appeal hearing and the appeal hearing duly proceeded on 17 May 2007.  The appeal panel was chaired by Ms Francesa Graham, a non-executive director of the respondent Trust, together with Mrs Charlotte McArdle, Director of Primary Care and Elderly/Executive Director of Nursing of the respondent Trust.  Any new evidence which the claimant wished to submit to the appeal panel was requested to be submitted three days prior to the appeal hearing.  The claimant did not make a request for any additional evidence to be submitted.  At the hearing, the claimant attended, represented by Mr Mulholland, a trade union official. The presenting officer was again Mr Clarke.  Mr Mulholland outlined the case for the claimant.  Ms Graham, on behalf of the appeal panel, indicated that the appeals panel’s view of its remit was to consider any flaws in the procedural process conducted by the original disciplinary hearing.

6.20	In the notes of the discussion of the appeal panel made after conclusion of the appeal hearing, the possibility was considered of a particular procedural issue regarding a conflict in the function of Mr Walsh.  However, it was concluded that no procedural error arose on that account.  The appeal panel considered that the disciplinary panel had given due weight to the evidence from the witnesses in their statements and, in the absence of a complete rehearing of the matter (which latter had not been requested and which the appeal panel felt to be inappropriate), the panel found that no particular procedural difficulty or conflict had been satisfactorily made out.  The appeal panel also determined that there were no mitigating circumstances considered by the disciplinary panel as the claimant had denied all of the allegations and did not make any submissions in mitigation.  The appeal panel concluded that the allegations were of a very serious nature and had been thoroughly investigated by the respondent.  The disciplinary panel had considered carefully all of the evidence; the appeal panel was not satisfied that the disciplinary panel had failed to consider anything material.  The disciplinary panel’s decision to dismiss the claimant was within the band of reasonable responses taking into account the full circumstances of the case.  Accordingly the appeal was dismissed.  

THE APPLICABLE LAW

7.	In respect of the applicable law, the Employment Rights (Northern Ireland) Order 1996 (hereinafter referred to as “the 1996 Order”) provides at Article 126 of the 1996 Order that an employee has the right not to be unfairly dismissed by his employer.  Article 130 of the 1996 Order provides for the test of fairness concerning the dismissal by an employer.  It is for the employer to show the reason (or, if more than one, the principal reason) for the dismissal, and that it is either a specified reason as set out in Article 130 or some other substantial reason of a kind such as to justify the dismissal.  The specified reasons set out in Article 130 [at Article 130(2)(b)] include conduct.  Article 130(4) of the 1996 Order provides that where the employer has shown the reason for dismissal and that it falls within one of the specified categories (or some other substantial reason) the determination of the question whether the dismissal is fair or unfair, having regard to the reason shown by the employer, 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 shall be determined in accordance with equity and the substantial merits of the case.

In the application of this statutory guidance, the leading authority remains the case of Iceland Frozen Foods Limited v Jones [1982] IRLR 439 which includes the following:-

(i)	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 fair.

(ii)	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.

(iii)	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.

Regarding misconduct cases in the nature of this case, the ‘Burchell test’ as it is called was established by the Employment Appeal Tribunal in England in British Home Stores Limited  v  Burchell [1980] 1CR 303 and was approved by the Court of Appeal in England in W Weddel & Co  v  Tepper [1980] IRLR 96 CA.  The Employment Appeal Tribunal in Burchell (per Arnold J) stated as follows:-

“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.” 

As has been mentioned by the Employment Appeal Tribunal in England in the case of Sainsbury's Supermarkets Limited v Hitt [2003] ICR 111 and indeed in the recent case of Makro Self Service Wholesalers Ltd v Rees [UKEAT/0559/07, 20 June 2008] whilst Burchell was decided at a time when there was a burden of proof resting on the employer at the reasonableness stage of the enquiry (but not the potentially fair reason for dismissal), that is no longer the case.  The applicability of the Burchell test in cases of misconduct dismissal however was affirmed by the Court of Appeal in England in the cases of Foley  v  Post Office and HSBC Bank Plc v Madden [2000] ICR 1283.  The first limb of Arnold J's test in Burchell, that is to say the establishment of the existence of a genuine belief in the misconduct alleged, goes to the reason for dismissal.  The remaining limbs, reasonable grounds following a reasonable investigation, go to the question of reasonableness under what is in this jurisdiction Article 130(4) of the 1996 Order. Following Iceland Frozen Foods Limited v Jones and the foregoing cases, the question is whether the dismissal falls within the range of reasonable responses open to the employer.  That test applies not only to the sanction of dismissal, but also to the reasonableness of the investigation carried out by the employer, the grounds for the employer’s belief in the misconduct alleged and the procedure followed (as has been commented upon by the Employment Appeal Tribunal in Makro Self Service Wholesalers Ltd  v  Rees).

THE TRIBUNAL’S DECISION

8.	In seeking to arrive at a determination of the matter, the tribunal has before it a considerable volume of evidence and detailed submissions, for which submissions the tribunal is most grateful to the respective representatives.  This is a case of a qualified mental health nurse who had worked in a hospital establishment for some considerable time without apparent incident or criticism.  Then it seems, as a result of allegations made by a Nursing Assistant, Mrs Tweedie, a series of events was set in train which culminated in the dismissal of the claimant.  Mrs Tweedie had made quite specific and indeed what could be termed rather graphic allegations of a very violent physical assault upon an elderly patient, WM.  As one illustration of the nature of the description of the alleged assault, the expression “buried his boot” has been used by Mrs Tweedie in her written statement which was before the disciplinary hearing and which has also been seen by this tribunal.  Mrs Tweedie also used the expression “beating the living daylights”, in her description of an alleged assault by the claimant in her reporting to management, in connection with a patient, JT.  Further to that, in a description made both to the disciplinary hearing and also to this tribunal, Mrs Tweedie has talked about the patient WM having the neck of his pyjamas twisted by the claimant.  Mrs Tweedie indeed stated in her evidence to the tribunal that this latter conduct on the claimant’s part was perpetrated to the extent that one would have thought that the patient WM was “having a stroke”.  

9.	After the initial allegations had been received from Mrs Tweedie, WM was medically examined.  Whilst the doctor examining WM does not for some reason appear to have been specifically instructed by the respondent’s management that there was an allegation of assault, nonetheless it is of note that the doctor (who one must presume conducted a proper and professional examination of the patient) noted no physical symptoms which in any way bore out Mrs Tweedie’s allegations of a serious and forceful assault upon WM.  The patient WM was also seen a relatively short time after the alleged assault by Mrs Walsh.  Mrs Walsh observed nothing untoward at the time nor were any accusations made to her against the claimant either by WM or by any other person (including Mrs Tweedie).  Of further note, Mrs Tweedie appeared composed to Mrs Walsh and did not show any signs of being affected by this rather harrowing incident which she later stated she had witnessed.  

10.	Looking at the report of the disciplinary panel consequent upon the disciplinary hearing, the report notes that Mrs Tweedie’s statement confirmed that she had observed the claimant kick the patient (WM) to the “right hand side”.  The disciplinary panel for some reason seems to not have recorded that Mrs Tweedie’s allegation expressly made was that the patient WM was kicked to the “right hand side of the head”.  No explanation for that rather significant inaccuracy was afforded to the tribunal.  That error is further repeated in the summary reporting of the evidence by the disciplinary panel based on Mrs Tweedie’s account.  As Mrs Tweedie had confirmed to the disciplinary panel that there were no other independent witnesses to the alleged incident, and as there was in effect no other supporting circumstantial or medical evidence, it must have been a case as far as the disciplinary panel was concerned of setting Mrs Tweedie’s word against that of the claimant.  The claimant certainly vehemently denied this and the other allegations of assault.  In the panel discussion recorded in the report, the panel considered the issue of whether, and if so why, Mrs Tweedie would tell lies.  The panel could observe no source of motivation on Mrs Tweedie’s part.  Taking that forward, the panel concluded, “Why would Isobel Tweedie tell lies? …. We believe Mrs Tweedie’s evidence”.  In furtherance of that conclusion and broadening the focus of the allegations to those made by other staff members, the panel further records in its report that, “The witness accounts are not of fending off blows but deliberate acts of striking, kicking and man-handling different patients”, as the report puts it.  The report continues, “The issue of force off [sic] punch and kick was considered by the panel.  Force was not he [sic] issue but the act of striking a patient was the important concern in this case”.  In respect of that reference to ‘kicking’, evidentially that could have only been referred to the WM matter, as it was in respect of WM that the only allegation of “kicking” was made by any of the witnesses.  The conclusion is therefore that the disciplinary panel recorded, as a matter of established fact, that patient WM had been indeed kicked by the claimant.  That finding could of course have only been based upon Mrs Tweedie’s account of events.

11.	Mrs Devlin, as the member of the disciplinary panel appearing before the tribunal was to the tribunal a significant witness.  Generally, the tribunal found Mrs Devlin’s evidence, taken as it was over a number of days, to be in some respects unsatisfactory, certainly at times evasive and also inconsistent, in content.  In the course of Mrs Devlin’s cross-examination before this tribunal she was closely questioned by Counsel for the claimant, Mr McCann.  Mrs Devlin made what to the tribunal was a rather remarkable concession, stating to the tribunal that the disciplinary panel did not believe that WM had actually been kicked.  The tribunal’s best understanding of this evidence was that Mrs Devlin was endeavouring to suggest to the tribunal that the true conclusion of the disciplinary panel (rather than what it actually reported) was that some endeavour or attempt had been made by the claimant to kick WM but the claimant had not, as it were, ‘connected’.  That was curious evidence indeed.  It certainly seems to be quite contrary to the conclusion expressly recorded.  As Mrs Devlin put it to the tribunal, she believed that “something happened”.  However, she was apparently unable to give any better account of it than that.  However, given the comment in the report that the issue of force of kick was considered by the panel, but that force was not the issue but the act of striking a patient was the important concern in this case, the conclusion that WM was not actually kicked is even more remarkable.  There had been no “striking”, irrespective of the issue of force employed.

12.	Another area of concern for this tribunal was the somewhat disconcerting evidence from Mrs Devlin in which she stated that the disciplinary panel had not apparently considered the various allegations one by one, nor had the disciplinary panel considered the weight of any evidence in respect of any particular allegation on an individual, allegation-by-allegation, basis.  That, once again, seems to conflict with the way in which matters are set out in the report of the panel.  In that report it appears to be suggested that the allegations were indeed considered on an individual basis.  However, that approach was denied by Mrs Devlin in her testimony to the tribunal.  The tribunal is rather concerned at that evidence.  Thus, in the report of the disciplinary panel’s conclusions mention is made of the witness accounts confirming there were acts of striking, kicking and manhandling different patients.  Reading the report and hearing Mrs Devlin’s evidence and endeavouring to interpret all of this, the tribunal believes that the disciplinary panel members were endeavouring in the report to state the conclusion that, notwithstanding that there was in effect no medical evidence to support the alleged punches or kicks, that fact was not regarded as important or significant when seen in the context of the descriptions on the part of Mrs Tweedie or any other witness of these alleged physical assaults on patients.  

13.	Another area of significant concern to the tribunal was Mrs Devlin’s apparent reluctance on behalf of the disciplinary panel in the conduct of the disciplinary hearing fully to scrutinise the rather significant matter of Mrs Tweedie’s potential credibility.  This concern arises from a number of different sources.  The first is the lack of corroborative physical evidence, medical or otherwise, of physical assaults taking place in respect of any patients, most notably patients WM and JT.  There was simply no physical evidence of the assault on WM, notwithstanding Mrs Tweedie’s rather graphic description.  Regarding JT, Mrs Tweedie’s description was not borne out by any medical evidence.  JT did sustain minor injuries but these injuries were consistent with the claimant’s description of an incident where JT fell against a trolley, not with JT being punched three times in the stomach.  The disciplinary panel members do not really seem to have followed up that issue of inconsistency.  For example, the members might have chosen closely to question Mrs Tweedie as to why or how that might or could possibly have been the case.  Further to that, there was the rather curious evidence of Mrs Tweedie’s demeanour, as observed by Mrs Walsh, in the apparent immediate aftermath of the alleged assault on WM.  Everything appears to have been ‘normal’ – how could that have been?  No proper exploration as to how that possibly could have been the case seems to have been conducted by the disciplinary panel members.  It is a fact that some ten minutes or so after the alleged assault, Mrs Tweedie was released by Mrs Walsh from duty in Ward 32 to go about other business.  Mrs Tweedie indeed returned some time afterwards again in an apparently normal state of mind.  She made no allegation at the time and did not seem to be in any way distressed.  The tribunal both in regard to this point and also matters generally is cognisant of the case of Ulsterbus Limited  v  Henderson [1989] IRLR 251 where the Northern Ireland Court of Appeal held that in the context of an internal disciplinary hearing, cross-examination of witnesses is not a necessary element of fairness.  Having noted that, any disciplinary authority conducting a hearing properly and fairly must properly and fairly address its mind to obvious inconsistencies and discrepancies in the evidence and there is nothing inconsistent between that notion and Ulsterbus.

14.	In respect of the alleged assault involving JT, Mrs Tweedie described three or four deliberate punches.  Despite that, Mrs Tweedie did not include that allegation in any statement prepared for the disciplinary hearing.  The disciplinary panel members do not appear to have explored with Mrs Tweedie the reason for the delay on her part in reporting that allegation regarding JT, especially as this was alleged to have occurred on 6 June 2006 and Mrs Tweedie had already made allegations against the claimant by that date.  Clearly Mrs Tweedie had already shown a propensity to report allegations against the claimant but did not immediately proceed to report the JT incident, notwithstanding her having made the allegation in respect of WM.  It was indeed for some reason not reported until 30 October 2006 when Mr Clarke recorded in his notebook that Mrs Tweedie had told him, “(JT) – punching the living daylights out of him”.  That reporting was indeed after the date (27 October 2006) by which the respondent had invited the claimant to attend the disciplinary hearing.  Mrs Tweedie did not make any formal statement concerning the allegation relating to JT to be included in the bundle of statements presented to the claimant in advance of the hearing.  The tribunal is unclear as to why Mr Clark (who had initially recorded the allegation on 30 October) did not immediately require Mrs Tweedie to make a formal statement that might be given to the claimant in advance of the disciplinary hearing and presented to the disciplinary hearing.  The allegation regarding JT was first aired before the disciplinary panel in the course of Mrs Tweedie's oral evidence to the panel and that was also the first that the claimant heard of the allegation.  In submissions, Mr McCann, counsel for the claimant, invited the tribunal to note that the presenting officer did not inform the disciplinary hearing of the discrepancy in Mrs Tweedie’s description (”punching the living daylights out of him”) used by Mrs Tweedie in her reporting of the matter to Mr Clarke and her actual description of the matter to the tribunal.  Mr McCann submitted that this information might have gone to the issue of Mrs Tweedie's credibility.  However, that was with withheld from the disciplinary panel.  At the disciplinary hearing, Mrs Tweedie's reference to the incident regarding JT was rather different, “Joe punched him in the stomach 3 - 4 times” as recorded by Mr Bateman in his notes.  The tribunal notes Mr McCann’s submission and is concerned at the issue of procedural fairness that arises on account of the foregoing.  The tribunal notes that when asked by counsel for the claimant did the foregoing delay in reporting not affect Mrs Tweedie’s credibility in the eyes of the disciplinary panel, Mrs Devlin’s reply was simply, “No”. 

15.	In general terms, the tribunal regarded Mrs Devlin’s evidence as being rather curious.  For some reason, unexplained to the tribunal, there was a marked reluctance on the part of Mrs Devlin and her fellow panel member fully to engage with the issue of Mrs Tweedie’s credibility.  Mrs Tweedie had indeed made what the tribunal must now conclude to be at the very least greatly exaggerated accounts of incidents regarding WM and JT.  The claimant had strenuously denied any such wrongdoing.  Mrs Devlin and her colleague appear to have struggled with an answer to the question, “Why would Mrs Tweedie tell lies”?  In the course of the disciplinary hearing Mrs Devlin then indeed seems to have ‘fielded’ that question to the claimant.  In doing so the disciplinary panel members put the claimant in a position where, effectively, he had to convince the disciplinary panel as to why Mrs Tweedie would indeed tell lies.  In submissions, counsel for the claimant, Mr McCann, submitted that the key issue emerged once again of “truth” versus “lies”.  The disciplinary panel did not consider the question, “Is a witness telling the truth?”  by an examination of the evidence.  Instead it asked itself, “Why would the witness lie?”  Finding no answer to that question, the disciplinary panel then went on to find that the witness was telling the truth at which point any objective assessment of the facts became unnecessary.  Much was made of that process by Mr McCann in submissions; Mr McCann invited the tribunal to conclude that the disciplinary panel had fundamentally misunderstood the matter of burden of proof.

16.	Looking at further aspects of Mrs Devlin’s testimony, at one point in her            cross-examination, the tribunal notes that Mrs Devlin appeared to suggest that the disciplinary panel had in reality concluded that on at least two occasions the claimant had attempted to kick WM but had missed.  That was, it appears to the tribunal, the only plausible explanation for the recorded findings of the disciplinary panel which Mrs Devlin could afford to the tribunal, given the state of the evidence.  However, it is one which the tribunal finds rather unconvincing and certainly one that Mrs Tweedie's evidence to the disciplinary hearing does not support.  As Mrs Devlin put it at one point in her at evidence, “… the panel didn't believe (WM) was kicked in the head….” and then, “…the panel didn't believe … foot did connect with head".  The tribunal was particularly struck by Mrs Devlin’s apparent difficulty in reconciling the clear written conclusions of the disciplinary hearing with her subsequent explanations to the tribunal; these appeared to be quite contradictory.  Thus the tribunal’s conclusion from all of this is that in no sense is the disciplinary hearing report reflective of the later position adopted by Mrs Devlin before this tribunal.  Therefore the disciplinary hearing’s written conclusions of fact regarding the claimant’s alleged assault on WM and indeed in respect of JT are at variance with Mrs Devlin’s evidence to the tribunal.  Mrs Devlin indeed eventually adopted the position that the disciplinary panel’s report was “not a complete report”, as she put it.  Notwithstanding all of this, Mrs Devlin steadfastly maintained to the tribunal that she, “believed Mrs Tweedie”.  

17.	The first limb of Arnold J’s test in Burchell, that is to say a genuine belief in the misconduct alleged, is therefore under scrutiny in this type of case, materially as far as the specific allegation of the claimant “kicking” WM. Burchell requires the tribunal to be satisfied that the respondent had a genuine belief in the misconduct alleged.  In this case there was a recorded finding of “kicking” (in respect of WM) as described in the panel's report.  Amongst other matters, a finding of kicking having been perpetrated against WM by the claimant was of fundamental significance to the reason given for dismissing the employee.  If that part of the fact-finding underlying the reason stated in the disciplinary panel's report for establishing the commission of gross misconduct diverges from the explanation given at the tribunal hearing by one of the two co-authors of this report, that is of some concern.  Therefore part of the reason stemming from the stated genuine belief and underlying the dismissal of the claimant by the respondent must be in significant doubt.  Whilst Mrs Devlin stated to the tribunal that she believed that “something” had taken place as far as the disciplinary panel members were concerned, that rather more unspecific conclusion is no where recorded in the panel’s report.  Instead, there is a clear and unqualified finding of fact which is quite at variance with the true belief of the panel members.  The tribunal is therefore quite concerned at the motivation of the panel members who appear to have recorded a conclusion at the variance with genuine belief.  What might have been the reason for that?  The tribunal can only speculate, in the absence of any clear motivation being suggested.  On account of this the tribunal is presented with a significant difficulty in assessing whether or not the first limb of the Burchill test has been satisfactorily met by the respondent and that casts considerable doubt over the other stated findings in the report.

18.	In respect of the alleged assault on JT as described by Mrs Tweedie, the only other witness was Mrs Kerr.  As was conceded by Mrs Devlin in her testimony to the tribunal, Mrs Kerr had provided evidence which on its own account would not be sufficient to make any finding.  Mrs Kerr had a “hunch” as she stated to the disciplinary hearing, but nothing more than that.  Patient JT was examined by a doctor on 9 June 2006.  The doctor confirmed that there were no apparent injuries save for a small bruise to the elbow.  The claimant had provided an incident report giving his account of what had occurred which the tribunal believes to have been consistent with any recorded injury.  There was much made by the respondent of a delay of a day or so on the claimant’s part in completing the report, but nothing more than that.  Clearly therefore there existed no medical corroboration bearing out the occurrence of the specific allegations of punching levelled by Mrs Tweedie against the claimant.  In effect, it was Mrs Tweedie’s word against the claimant’s, with no medical corroboration of punching (and only Mrs Kerr’s “hunch” in the background, that latter being of little or no probative value).

19.	In respect of the patient, BM, Mrs Bell informed the disciplinary hearing that she had observed, somewhat at a distance, an incident involving BM and the Nursing Assistant, Mr Nigel Fitzpatrick.  Mrs Bell’s allegation was that the claimant had punched BM three times in the stomach.  Mr Fitzpatrick (who would certainly have been immediately present at any incident as had been alleged) had denied that he had observed the assault alleged to have been perpetrated upon BM by the claimant.  A subsequent medical report indicated that BM had sustained a small cut above his eye.  There certainly was an incident involving BM and Mr Fitzpatrick in the course of which BM tried to stab Mr Fitzpatrick on the leg with a fork.  The claimant denied any assault on BM.  There was objective evidence of BM becoming physically aggressive towards Mr Fitzpatrick.  The members of the disciplinary panel did indeed take steps to attend Ward 32 in order to establish whether a clear view of the locus of the alleged assault might have been available to Mrs Bell.  The members of the panel did believe that a clear view was possible from the point as described by Mrs Bell.  Therefore, it was Mrs Bell’s word on one hand, set against Mr Fitzpatrick’s and the claimant’s versions of events, the latter two of which indicated that no assault had taken place.  In their written summary report the disciplinary panel made the comment that there was indeed a conflict between Mr Fitzpatrick’s statement and that of Mrs Bell.  The panel’s conclusion was that the disciplinary panel believed Mrs Bell, as Mr Fitzpatrick did not see anything as he was otherwise engaged in a struggle with BM.  The further observation was recorded, “Why should Sheelagh Bell tell lies?”.  Nowhere in that conclusion is the lack of any medical evidence corroborating the alleged assault made the subject of any comment.  Here the tribunal sees what appear to be three pieces of evidence (the claimant’s and Mr Fitzpatrick’s evidence and the lack of medical corroboration) set against the occurrence of an assault on BM, and one witness, Mrs Bell, confirming that an assault had taken place.  The conclusion of the disciplinary panel in the context of the weight of that evidence appears to have been based in part upon the panel’s inability to find a ready answer to the question, “Why should Sheelagh Bell tell lies”?  The inescapable conclusion here is that for some reason the disciplinary panel was prepared to reach a conclusion on this individual allegation concerning BM by attaching rather considerable weight to the evidence of Mrs Bell (in the absence of a clear reason as to why she might not be believed) and little or no weight to the remainder of the evidence.  There is an additional aspect to this allegation which is worthy of note.  A witness who appeared before the disciplinary hearing, Staff Nurse Mrs Julie Smyth, in the record of her evidence to the disciplinary hearing gave an account of speaking to Mrs Bell concerning the BM matter.  Mrs Smyth (who was not a direct witness herself to the incident) told the disciplinary hearing that Mrs Bell had informed her that BM had been, “…forcefully put to the ground..”, by Mr Rogan, Nigel Fitzpatrick and other members of staff and had banged his head.  Notably there was no mention in that evidence from Mrs Smyth of BM having been punched (as far as Mrs Bell informed her).  The disciplinary panel members appear to have disregarded that aspect of Mrs Smyth’s evidence even though it was in accord with the evidence of Mr Fitzpatrick.  In the tribunal hearing Mrs Devlin ventured to suggest that the disciplinary panel members were of the opinion that Mrs Smyth was withholding the full truth.  However that suggestion nowhere appears in the record made by the disciplinary panel of the hearing nor does Mrs Smyth appear to have been questioned by the disciplinary panel concerning this issue.  Again, the tribunal finds this to be somewhat curious and takes note of Mr McCann's submission in that regard.

20.	It is worthy of note that there was another incident reported by Mrs Anne-Marie Campbell which concerned a patient, (”GMcG”).  The tribunal does not need to comment on that allegation inasmuch as that indeed was ruled out by the disciplinary panel in arriving at its decision.  Suffice to say that the disciplinary panel found that Mrs Campbell was not in any sense a direct witness to any such allegation.

21.	Mr Aby Matthews, a Staff Nurse, made an allegation of an alleged assault upon a patient by the claimant on some unspecified date but certainly more than six months before the time of his report, mid-August 2006.  He alleged that he had seen through a glass window the claimant punching a patient in the back.  The disciplinary panel concluded that Mr Matthews had a direct line of sight and saw the punch being thrown and heard its impact.  However Mr Matthews had failed to demonstrate the force of the punch.  However Mr Matthews said that he had clearly heard it.  In the written record of the panel discussion it is noted that the panel members were indeed aware of there being a difficulty in the relationship between the claimant and Mr Matthews on account of other matters.  However, without any corroboration from any other source and in the face of a strong denial on the part of the claimant, the disciplinary panel members nonetheless appear to have believed Mr Matthews.  This is so notwithstanding the considerable passage of time since the alleged occurrence and the fact that Mr Matthews did not see fit to report the matter at the time of the alleged occurrence, and notwithstanding the lack of existence of any corroboration from any other source whatsoever of the assault alleged.  In this regard the tribunal notes from the records of the disciplinary hearing the following from Mr Matthews (in response to the question “What prompted you”? (to come forward)):- “Michael (O’Reilly) brought me into office.  Any staff who have seen anything won’t be any repercussions”. Thus it seems that Mr Matthews responded to an invitation on Mr O’Reilly’s part to come forward.  Although Mr Matthews was not called as a witness before the tribunal (and the tribunal notes Mr O’Reilly’s strenuous denial that any such assurance was given), nonetheless the tribunal observes that Mr Matthews did come forward at the same time as the other witnesses for the purpose of making allegations of events which he alleged had occurred some very considerable time before.  The coincidence of Mr Matthews coming forward together with the other three witnesses was remarkable.  The strong possibility therefore that occurs to the tribunal is that there was indeed some general approach made to staff, whether by Mr O’Reilly or by any other member of the respondent’s management, to encourage witnesses to come forward coupled with some manner of assurance that previously unreported incidents would not result in any repercussions or any detriment to the witnesses who had not reported any incidents before.

22.	Mr Matthews also alleged that the claimant assaulted a patient, (“RS”), by slapping him in the face.  Again this allegation was made in respect of an incident which had occurred a rather considerable time (six - eight months) before.  Again, Mr Matthews had not for some reason seen fit to report the incident at the time.  Again, there were no other witnesses nor any complaints; again, there was no physical evidence of any assault on this patient.  In common with the other alleged incident, the disciplinary panel for some reason, unexplained in their report, chose to believe Mr Matthews, notwithstanding the fact that the panel members were aware that there appears to have existed some personal conflict or difficulty between Mr Matthews and the claimant and the fact that there was no corroboration whatsoever; further, this allegation was once again strenuously denied by the claimant.  The tribunal is rather unclear as to why this particular individual allegation was believed, when taken in isolation from any other allegations made and when seen in the face of a strenuous denial by the claimant.  Clearly, there was no independent corroboration.  In view of the apparent conflict between the two men, a certain measure of circumspection would have been advised.  

23.	Mr Matthews’ third and final allegation alleged that the claimant assaulted a patient, (“MR”), by grabbing MR aggressively by the collar and verbally threatened him without provocation.  Once again this allegation was made in respect of an incident which had occurred some six - eight months before and Mr Matthews had not reported the incident at the time.  There were no other witnesses nor any physical evidence of any assault.  Once again, the disciplinary panel chose to believe Mr Matthews.  The difficulty for the tribunal concerning the matter of the disciplinary panel's belief of Mr Matthews’ allegations concerning the three patients is that at no place in its report does the disciplinary panel provide any analysis of or explanation for the reason for its belief of Mr Matthews’ version of events, when set against the lack of any corroboration, the delay in reporting, and the claimant's strong denial of these allegations.  

24.	In the records of the disciplinary panel’s discussion of all of this, it is stated that consideration was given by the panel to the issue of whether any management interference with witnesses had occurred.  Under questioning by Mr Mulholland, the disciplinary panel records that Mr Walsh was very clear at the disciplinary hearing that all witnesses had come forward voluntarily.  Mr Walsh’s letter confirming that no action would be taken by the Trust against any witness in this case was issued only after the witnesses had volunteered to give statements, he maintained.  Unfortunately, the tribunal did not see any such letter from Mr Walsh.  The tribunal can only base its conclusions upon a note dated 14 August 2006 which records that Mr Walsh had spoken with Mr O’Reilly and had assured him that staff would not be disadvantaged for not reporting this when it had happened and such matters as the record of Mr Matthews stating to the disciplinary hearing that Mr O’Reilly had invited him into the latter’s office and had stated that there would be no repercussions for any staff who has not reported any matters to date.  The tribunal was therefore not left in a position to conclude definitively that an assurance was given to staff only after they had voluntarily come forward.  Looking at all of the evidence concerning this matter, the tribunal’s conclusion is that there is certainly a possibility that staff were approached and informally spoken to by Mr O’Reilly consequent upon his conversation with Mr Walsh on 14 August 2006.  After such conversation these staff then did come forward with their subsequent allegations.  These allegations seem to have all emerged in or around 16 or 17 August 2006.  The evidence in respect of this is somewhat uncertain as to whether or not there was indeed active soliciting of allegations against the claimant on Management’s part.  However, the tribunal concludes there certainly was word passed amongst professional colleagues that if allegations were to be made, staff would not be disadvantaged and there would be no unfavourable repercussions for not reporting any allegations at an earlier date.

25.	There were other allegations included in the (presumably intentionally) broad misconduct description labelled as ‘inappropriate conduct’ that was levelled against the claimant.  These included, for example, using foul or inappropriate language in the presence of or towards a patient and manhandling patients by failing to use a hoist.  There was some discussion of these particular allegations in the course of the disciplinary hearing.  However it was made quite clear to the tribunal that, irrespective of whether or not the claimant was responsible in that regard (for example, for not using the prescribed hoist equipment), a finding concerning these particular allegations against the claimant would probably of itself not have amounted to gross misconduct and certainly would not have resulted in his dismissal.  Whilst the claimant did concede that he ought to have attended a course or courses concerning the use of the lifting equipment and that he was inclined to use the ‘old fashioned’ method of handling patients, nonetheless that concession on the part of the claimant regarding the manner of lifting patients was not a matter of dismissal for a first offence.  Further, in respect of the use of language, the claimant himself quite openly admitted to having used inappropriate language in the course of the incident concerning WM.  However the claimant maintained that this language arose out of frustration on his part in respect of Mrs Tweedie’s lack of proper assistance to him with the patient WM and was directed by him towards Mrs Tweedie and certainly not towards the patient.  Furthermore, the evidence before the tribunal, which the tribunal accepted, was that, regrettably, such ‘industrial’ language was from time to time used by staff in stressful situations; it was not at all exceptional or out of the ordinary.  Whilst clearly inappropriate, again under these particular circumstances it would not have been the type of disciplinary matter to have resulted in a summary dismissal for a first offence.  It was therefore conceded to the tribunal by Mrs Devlin that, but for the allegations of actual physical assault on the patients, the claimant would in all probability not have been dismissed.  It was therefore, in essence, the allegations of physical assault upon these various patients that formed the basis of the gross misconduct, the core of the “inappropriate conduct” as it were, that was alleged against the claimant.  After some resistance on her part to the suggestion, that much was finally expressly conceded by Mrs Devlin to the tribunal in the cross-examination.

26.	Based upon Mrs Devlin’s evidence and the other oral and documentary evidence, it is clear to the tribunal that the disciplinary panel did not approach the disciplinary hearing with a fully open and enquiring mind.  Against the weight of a considerable volume of the available evidence, Mrs Devlin has recorded the panel’s conclusion to the effect that a number of serious and unprovoked physical assaults had occurred.  There was a number of significant written character references placed before the disciplinary panel indicating that the claimant’s character was such that he was incapable of such conduct as had been alleged.  These are merely listed but appear to have been worthy of no further comment in the disciplinary panel's report.  The panel proceeded on the basis of effectively disregarding the manifest difficulties and inconsistencies emerging from Mrs Tweedie’s evidence to the disciplinary hearing.  There was no corroboration, medical or otherwise, of Mrs Tweedie’s allegations.  Her rather graphic accounts were manifestly improbable.  The panel was prepared to “gloss over” the reported conflict between the claimant and Aby Matthew, for example, or to attach little or no significance to the substantial and largely unexplained delays between the times of alleged occurrence of some of these reported allegations and time when the parties, very much in concert, finally did come forward to make these allegations.  In summary, the panel found, as proven fact, incidents of assault as having occurred but very much against the clear weight of the evidence.  

27.	Whilst, Mr McCann, counsel for the claimant, did not try to go so far as to suggest that there was a conspiracy to incriminate the claimant, certainly the coming forward of these various witnesses all at the same time appears to have been induced by specific reassurances communicated to staff by Mr O’Reilly.  That appears to have been at some time on or shortly after 14 August 2006.  The fact of the emergence of these witnesses all at the same time certainly ought to have been scrutinised and explored by the disciplinary panel considerably more searchingly than was done, so it was submitted.  In submissions, Mr McCann suggested that there was a climate created by the Mrs Tweedie allegation and by the investigation conducted thereafter into that allegation that encouraged the respondent to seek, and encouraged people to provide, information that would assist in bringing a case against the claimant.  The tribunal has little doubt that that was the case.

28.	Looking at all of the foregoing, the tribunal harbours a considerable amount of difficulty with the manner in which the disciplinary hearing was conducted against the claimant in respect of these most serious of allegations, violent assaults upon elderly and vulnerable patients in care.  In summary, it is clear to the tribunal that the claimant did not receive a fully proper and impartial and dispassionate hearing in respect of these allegations in the course of the disciplinary hearing conducted by Mrs Devlin and by Mr Bateman.  Whilst the more minor elements constituting the “inappropriate conduct”, that is to say the admitted use of foul language and the departure from the respondent’s accepted procedures for handling patients, were the subject of a frank and forthright concession on the part of the claimant at the disciplinary hearing, and therefore misconduct of a rather more minor nature might have been properly found by the respondent, the claimant strongly contested the more serious of the charges.  It is clear that the disciplinary hearing was managed in such a manner as not to constitute a full thorough and searching enquiry as to the truth of these allegations.  In applying the first limb of Arnold J's test in Burchell, that is to say assessing whether the respondent had a genuine belief in the misconduct alleged (which of course goes to the reason for dismissal) the tribunal was significantly concerned at the content of Mrs Devlin’s evidence that the reported findings of the panel were at variance with the panel’s actual belief.  The respondent did not seek to establish to a reasonable degree the truth which lay behind these serious allegations of assault and thus did not have in its mind reasonable grounds upon which to formulate a belief in the guilt of the claimant in that regard.  In Burchell, reasonable grounds following a reasonable investigation, go to the question of reasonableness under Article 130(4) of the 1996 Order.  The question is whether the dismissal falls within the range of reasonable responses open to the employer.  That test applies not only to the sanction of dismissal, but also to be reasonableness of the investigation carried out by the employer; the grounds for the employer’s belief in the misconduct alleged and in the procedure followed.  The tribunal notes that counsel for the respondent, Mr Dunlop, has made a strong submission concerning the fairness of the procedure adopted by the respondent, emphasising the contractual and procedural steps which were taken at every stage, including the affording of a right of appeal.  Counsel has also submitted that there was nothing that might cause the disciplinary panel to conclude that the evidence had been concocted or that there was some type of adverse motivation felt against the claimant causing the case to emerge against him.  However, the tribunal looks behind the mere following of the letter of procedures in order fully to examine such of the core elements of fairness or otherwise that might exist.

29.	However the disciplinary charge might have been framed, the claimant was dismissed on the basis of the most serious of allegations, being a finding on the disciplinary panel’s part of factually-proven allegations of serious assault against a number of elderly and vulnerable patients in care.  The claimant himself informed the tribunal that his view was that any person responsible for any such conduct in the nature of these assaults as alleged ought to have been dismissed without question.  Applying the legal tests concerning fairness as mentioned above, the tribunal on balance and by unanimous decision concludes that the decision of the respondent to dismiss the claimant on the basis of the finding of such allegations of assault did not fall within the band of reasonable responses of a reasonable employer.  That conclusion is for the reason that no reasonable employer on the basis of this investigation and given the nature of the evidence before the disciplinary panel would have found these allegations of assault proven.  That is supported, for example, by Mrs Devlin’s concession that the panel members did not themselves really believe that the most serious assault, that alleged to have been visited upon WM, had actually occurred in the manner described and indeed the true belief (unexpressed in the report but later conceded at the tribunal) that WM had not actually been kicked.  It is clear that the proof of the allegations depended upon the fact of alleged assaults, both as described by Mrs Tweedie and the others, having actually occurred in the manner alleged.  However, significantly damaging the strength of the respondent’s case, is the admission by Mrs Devlin that, whilst she continued to believe Mrs Tweedie in general terms, she did not believe that the assault on WM had actually occurred in the way in which Mrs Tweedie described (Mrs Devlin’s “fall back position” being - without any apparent basis in evidence for that - that perhaps the claimant had “not connected” with his kick, notwithstanding that he had “buried his boot” as far as Mrs Tweedie was concerned).  Here the tribunal sees Mrs Devlin being carried along by the necessity to continue to support the conclusion that had been drawn and recorded by the disciplinary panel at the time of the disciplinary hearing, but then facing the reality under cross-examination that there had been really no sound and proper reason to have arrived at that conclusion on account of the significant difficulty with the credibility of Mrs Tweedie’s evidence. 

30.	Looking at all of this, the tribunal is inevitably lead to the conclusion that Mrs Devlin and Mr Bateman were overly-influenced by the substantial number of allegations coming forward all at the same time, taken together.  Under the influence of the numerical weight of the allegations the disciplinary panel members lost sight of the very important issue of weight that ought properly to have been apportioned to each individual allegation.  Looking at the respondent’s evidence to the tribunal it is quite clear that the disciplinary panel members did not conscientiously, properly and fully explore each allegation on an individual basis.  That much was indeed conceded by Mrs Devlin.  By conducting the disciplinary hearing on that basis, unfairness certainly has arisen.  The ultimate decision to dismiss the claimant for “inappropriate conduct”, in reality amounting to a finding of gross misconduct arising from allegations of assault against patients, was unfair and was not in the view of this tribunal within the band of reasonable responses of a reasonable employer.  

31.	Turning then to the conduct of the appeal, the respondent invited the claimant (in a letter of 2 May 2007) to submit any new evidence which he wished the disciplinary appeal panel to consider.  It appears that the claimant did not put forward any ‘new evidence’.  However, at the appeal the claimant and his representative, Mr Mulholland, sought to challenge the dismissal decision, firstly, on the grounds that the procedure was flawed and did not meet the requirements of natural justice and, secondly, on the grounds that that the disciplinary panel did not seek to discover the evidence in relation to the allegations.  The claimant’s representative at the appeal, Mr Mulholland, contended that the disciplinary panel was not objective in its approach and that it failed to take a balanced view.  It chose to accept the uncorroborated evidence of witnesses over reason.  The process was flawed and the respondent did not afford the claimant a fair hearing.

32.	In its deliberations, the appeal panel analysed the conduct of the disciplinary hearing and concluded that the disciplinary panel did seek to discover the evidence in the matter by hearing witnesses, having witness statements before it, hearing particularly from Mrs Walsh, visiting the ward, and meeting quite a few times to hear and consider the evidence.  It was concluded that the panel did seek to discover the evidence thoroughly.  The appeal panel had heard no new evidence.  It was determined that it was not within the remit of the appeal panel to rehear the case nor to substitute its own judgment for the judgment of the disciplinary panel.  As a rehearing had not been expressly requested by the claimant and his representative, the appeal panel felt that a rehearing was inappropriate with witnesses being recalled before the appeal panel.  Accordingly, the conclusion of the appeal was that the decision to dismiss fell within the band of reasonable responses.  

33.	It is clear to this tribunal that the appeal panel did nothing to correct any unfairness attaching to the original decision to dismiss.  It is possible that an appeal on occasions may serve to correct unfairness, with a correction of any deficiencies present in the earlier part of the process (see Taylor v OCS Group Limited [2006] IRLR 613).  However as was stated by the Court of Appeal in Taylor, the tribunal’s task is to apply the statutory test and in doing so to consider the fairness of the whole of the disciplinary process.  If the tribunal finds an early stage of the process to be defective and unfair in some way, it requires to examine any subsequent proceedings with care.  The tribunal’s purpose in so doing would not be to determine whether it amounted to a rehearing or a review but to determine whether, due to the fairness or unfairness of the procedures adopted, the thoroughness or lack of it in the process, and the open-mindedness, or not, of the decision-maker, the overall process was fair notwithstanding any deficiencies at the early stage.  However, it was not suggested that tribunals should consider procedural fairness separately from other issues, and Article 130(4) of the 1996 Order requires a tribunal to approach its task broadly as an industrial jury.  In this matter, the appeal panel however saw itself as being constrained, or placed constraints upon itself.  Thus it failed adequately to challenge some of the flawed assumptions that had been arrived at by the disciplinary panel, assumptions which indeed had been expressly flagged up to the appeal panel by the claimant and by his representative.  It was made clear that the claimant and his representative wished the appeal panel to consider that the disciplinary panel had not been objective in its approach, that it had failed to take a balanced view and that it had chosen to accept uncorroborated evidence.  However, the view taken by the appeal panel seems to have been that it would not go behind the decision taken by the disciplinary panel to accept the particular evidence that was before it (for example Mrs Tweedie’s evidence) as there were no apparent flaws observed with the procedure adopted, and particularly no conflict in respect of the dealings between Mr and Mrs Walsh.  The conclusion was therefore that the initial finding would not be upset on appeal.  In conducting the appeal in this manner, the appeal panel did nothing to correct the unfairness of the original dismissal.

34.	The foregoing being the case, the conclusion of this tribunal, by unanimous decision, is that the claimant was unfairly dismissed by the respondent.  The matter will now be reconvened for a hearing on remedy.

Chairman:

Date and place of hearing: 21-25 January 2008; 19,20,27,28 & 31 March 2008; 1 April 2008; 7, 8 &11 April 2008; 17 April 2008; 28-29 April 2008, Belfast	

Date decision recorded in register and issued to parties: