THE INDUSTRIAL TRIBUNALS

CASE REFS:	2694/11
1216/12

CLAIMANT:			Andrea Headley

RESPONDENTS:		1.	Southern Cross Health Care
2.	Southern Cross Health Care Limited
3.	Four Seasons No 8 Limited

DECISION 
The unanimous decision of the tribunal is that  the claimant’s claims are dismissed.

Constitution of Tribunal:

Chairman:		Mrs Ó Murray
Members:		Mrs D Adams
			Mr H Fox

Appearances:
The claimant appeared in person.

The respondents were represented by Mr P Sefton, Barrister-at-Law, instructed by Murphys Solicitors.

The Claims

1.	The claimant’s two claim forms were consolidated by order of 24 August 2012.  The claimant’s claims were that she was dismissed unfairly, that her dismissal was because she had made protected disclosures and that she was the victim of race discrimination.  In addition the claimant claimed that her dismissal was an act of victimisation because she had lodged the first claim to the tribunal.  

2.	The claim of unfair dismissal in the first claim was withdrawn by the claimant and was dismissed on the first day of hearing.  The claims of redundancy payment, notice pay, holiday pay and pay arrears contained in the first claim are dismissed as the claimant was reinstated and the claimant had failed to prove any loss in that regard.  

3.	In the second claim the claims of sex discrimination and in relation to part-time working were withdrawn prior to the hearing.  The remaining claims of unlawful deduction from wages and breach of contract formed part of the hearing.  

4.	The race discrimination claim comprised the dismissal, and adverse treatment in relation to the first disciplinary process and the alleged derogatory comments from 2010 onwards.

5.	It was agreed at the outset of the hearing that the third-named respondent (“the respondent”) was the correct and only respondent following TUPE transfers.

The Issues

6.	The issues for the tribunal at hearing were therefore as follows:

	(1)	Whether the claimant was dismissed for misconduct and was the dismissal unfair?

	(2)	Whether the dismissal was on grounds of her having made protected disclosures and was thus unfair?

(3)	Was the dismissal on grounds of race?

(4)	Did the claimant suffer discrimination, harassment or victimisation on grounds of race?

(5)	Was the claimant subjected to detriment on grounds of having made protected disclosures?

(6)	Did the claimant suffer loss due to unlawful deduction from wages or breach of contract?

Sources of evidence

7.	The tribunal heard evidence from the following on the substantive issues.  For the claimant the tribunal heard from the claimant and two former care assistants who worked with her namely Mr T Doey and Mr A Graur.  For the respondent the tribunal heard from Miss M Mullen, Home Manager; Mrs L Rea, Regional Manager; Mrs B Kelly, Home Manager; Mrs C Thorn, Home Manager; and Mr J Coyle, Peripatetic Home Manager.  The tribunal also had regard to the written statements and the documents referred to during the hearing.

The Law

8.	The right not to be unfairly dismissed is enshrined in Article 126 of the Employment Rights (Northern Ireland) Order 1996 (referred to as “ERO”).  At Article 130 of ERO it is stipulated that it is for the employer to show the reason for the dismissal and that the reason falls within one of the fair reasons outlined at Article 130(2).  One of the potentially fair reasons for dismissal relates to the conduct of the employee.  If the tribunal finds that the employer has dismissed the employee for a potentially fair reason, the tribunal must then go on to consider whether the dismissal was fair or unfair in accordance with Article 130(4).

9.	The task for the tribunal in a misconduct dismissal case is set out as follows by the judge in British Home Stores Ltd v Burchell 1980 ICR 303: 

		“What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the grounds of misconduct in question … 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.  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”.

10.	The Northern Ireland Court of Appeal decision in the case of Rogan v the South Eastern Health and Social Care Trust 2009 NICA 47 endorses the Burchell approach and outlines the task for the tribunal in a misconduct dismissal case.  The test is whether dismissal was within the band of reasonable responses for a reasonable employer.  The tribunal must not substitute its own view for that of the employer but must assess whether the employer’s act in dismissing the employee fell outside the band of reasonable responses for a reasonable employer to adopt in the circumstances.  This assessment applies to both procedure and penalty.

11.	The statutory disciplinary and dismissal procedures (SDP) must also be followed in relation to any dismissal.  In summary these provide, insofar as they relate to the circumstances in this case, that an employer contemplating disciplinary action must set out the grounds for the proposed disciplinary action in writing and invite the employee to a meeting.  The meeting must take place at a reasonable time on reasonable notice and the outcome of the meeting must be communicated to the employee together with the right of appeal. If the employee appeals there must be a further meeting.

12.	Article 134A of the Employment Rights (Northern Ireland) Order 1996 provides that an employee is unfairly dismissed if the reason or the principal reason for the dismissal is that he has made a protected disclosure. In the case of MOD v Sarfraz [2011] IRLR 562,  Underhill J outlined the five elements of a successful protected disclosure dismissal claim as follows:

		(1)	That the claimant had made a disclosure to his employer.

(2)	That he believed that that disclosure tended to show one or more of the things itemised at (a) to (f) under Section [67B(1)].

(3)	That that belief was reasonable.

(4)	That the disclosure was made in good faith.

(5)	That the disclosure was the principal reason for his dismissal.

13. 	In the case of Kuzel v Roche Products Limited [2008] IRLR 530 CA,  the EAT set out the four steps in relation to the burden of proof in dismissal cases as follows:

		“(1)	Has the claimant shown that there is a real issue as to whether the reason put forward by the respondent was not the true reason?

		(2)	If so, has the employer proved his reason for dismissal?

		(3)	If not, has the employer disproved the [Article 134A] advanced by the claimant?

		(4)	If not, dismissal is for the [Article 134A] reason.”

Findings of Fact and Conclusions

14.	The claimant was employed as a nurse by the respondent and its predecessors from 31 January 2005 until she was dismissed for gross misconduct on 15 June 2012.  

15.	We assessed the claimant as a lady who appeared genuinely to believe in the truth of what she put forward even when independent evidence from the documents or her own witnesses did not support her contentions.    The claimant was at times extremely confused and unable to explain certain key matters whilst being adamant about other matters which she felt supported her case.  

16.	The claimant’s unreliability was evident at various points throughout the hearing and contributed to a completely adverse view on our part of her reliability as a witness on key matters.  As the initial burden is on the claimant to prove primary facts, we found that her unreliability as a witness fatally undermined her ability to prove such primary facts in the absence of any corroborating evidence from witnesses or from documentation.

17.	One key matter which had an extremely adverse effect on her reliability and credibility was in relation to the non-attendance of her witnesses at the hearing  on Friday 20 September 2013.  On that morning the claimant had explained in answer to the chairman’s questions that she had spoken to several of her witnesses and that they had said that they had not been able to attend because of childcare difficulties. The claimant had previously repeatedly said that she had spoken to her witnesses and they had all confirmed that they could attend. The claimant then alleged on Monday morning that several of her witnesses had contacted her over the weekend to say that they had not attended because they had been threatened by the respondent with losing their jobs if they gave evidence for her.  
18.	A strike-out application was therefore heard on the Tuesday and evidence was obtained from three of the witnesses (who attended on witness summons) in this regard.  It transpired during that evidence that none of those witnesses had been spoken to by the claimant on the Friday morning, that none of them had been told of the dates of hearing and that two of them had been and remained ready and willing to attend to give evidence. The remaining witness had health difficulties which meant that she could not give evidence.  This was completely contrary to what the claimant had represented to the chairman on the Friday morning. 

19.	When this evidence was given by the claimant’s own witnesses she had no explanation to give for the contradictory versions of events.  Indeed it did not seem to strike the claimant that it was at all significant that her own witnesses were contradicting her account of events on the previous Friday.  

20.	The claimant presented copy documents which she said were extracts from a contemporaneous account which she kept in personal notebooks.  Despite repeatedly telling us that the original notebooks were in her home and would be presented for inspection during the hearing, the claimant did not produce them alleging instead that the originals were with the RCN. This proved not to be the case and in the event the notebooks were never produced.  This was another example of the claimant changing her strongly-stated position and it added to our adverse view of her reliability as a witness. 

21.	Mr Graur’s evidence was convincing and it did not support the claimant’s case. In particular we found that his evidence undermined the claimant’s allegation that RQIA did their unannounced inspection as a result of the claimant’s complaint to them.  Mr Graur’s evidence was that it was he and another member of staff who had phoned RQIA with concerns about resident care and that RQIA came in that same day to inspect.  

Dismissal in 2012

22.	There were three aspects to the claim in relation to the dismissal as follows: that it was unfair on ordinary principles, that it was on grounds of having made protected disclosures and that it was on grounds of race.

Misconduct dismissal

23.	The two charges for which the claimant was dismissed in 2012 related to:

(1) 	a sick form submitted to her employer which essentially represented that she was sick on a particular day when in fact she was working at another home for an agency; and 

(2) 	an incident involving the correct administration of insulin to a dementia patient which ultimately led to that patient being hospitalised to check if he had received an overdose.  

24.	The sick leave document represented to the employer that the claimant was sick from 7-10 March 2012 inclusive.  The claimant had cancelled a shift for the respondent (which was to have taken place on 8 March 2012) claiming that she was sick.  It transpired that she had in fact worked in another home for an agency on the previous night shift.  The claimant agreed that the sick-leave document was inaccurate in key respects but claimed that this was a mistake on her part.  The employer, following investigation and at the disciplinary hearing, formed the view that the claimant had deliberately withheld information from the home manager relating to the real reason for her inability to work on the morning shift on 8 March 2012 which was that she had worked the previous nightshift in a different home.  The conclusion reached was that the claimant falsified her statement of sickness and the decision was that that, of itself, amounted to gross misconduct as it adversely affected their ability to trust her.

25.	The insulin incident charge related to the claimant’s “poor organisational skills” when handing over the responsibility of the drug administration round to a junior nurse which led to a mismanagement of insulin administration and the transfer of the resident to hospital with a suspected overdose.  

26.	It was common case that the junior nurse had administered insulin to the patient.  The claimant was insistent that she had previously given insulin to the patient despite the fact that the later hospital assessment did not bear this out.  The claimant persisted in putting forward this account at hearing before us even though this account was at odds with the documentary evidence before us from the hospital.  The claimant was the senior nurse in charge and the documentation completed by her was, at best, wrongly completed and, at worst, was completed after the event in order to cover her lack of proper record-keeping in relation to drug administration.
  
27.	The conclusion reached by the disciplining manager was that the claimant had failed to give the insulin dose to the resident and had then falsified the relevant document to cover the deficiencies in her record-keeping.  The conclusion was that this, of itself, amounted to gross misconduct as it called into question the integrity of her position.  The decision was that she had failed to meet the standards required of a registered nurse.  We find that these conclusions were open to the disciplining manager on the information before him.

28.	It is not our task to reinvestigate the disciplinary charges and to reach our own conclusions.  We have assessed the actions of the employer in relation to the investigation and find it to be within the band of reasonable responses.  

29.	The actions of the employer in relation to both penalty and procedure fell within the band of reasonable responses.  A reasonable investigation was carried out and the decision makers were entitled to reach the conclusions they did on the evidence before them.   The penalty was likewise within the band of reasonable responses given the gravity of the allegations and of the insulin incident in particular.  The respondent also complied with the SDP.

Whistleblowing Dismissal

30.	The claimant’s case was that her dismissal was due to her having made protective disclosures.  Using the Kuzel steps we find as follows:

	(1)	We are not satisfied that there is a real issue as to whether the reason put forward by the respondent was not the true reason.  The claimant was a senior nurse in charge of drug administration.  Correct record-keeping and clear instructions from the senior nurse were obviously essential given, firstly, that an overdose could result in hospitalisation of a patient and the patient going into a coma, and secondly, that the patient was unable to give a reliable account of his medication intake due to his dementia.

	(2)	We find that the employer has proved the reason for dismissal which was gross misconduct related to two serious charges.

31.	We therefore reject the claimant’s case that she was dismissed on grounds of having made any alleged protected disclosures.  

Race Discrimination

32.	The claimant’s case was that she was discriminated against, racially harassed, victimised and dismissed because of race.  

33.	The claimant alleged that her first disciplinary process, whereby she was dismissed on 8 September 2011 but reinstated on appeal on 11 October 2011, was an act of race discrimination and related to her having made protected disclosures.  The allegation was that this was part of a course of racially-motivated adverse conduct against her culminating in the dismissal in 2012.

34.	It was clear from the documents to which we were referred that there were serious issues which were investigated and found to be substantiated in 2011 in relation to the claimant’s practice and record-keeping.  Whilst the claimant was reinstated on appeal, the outcome was that a lesser penalty of a final written warning was imposed upon her.  It was therefore not the case that the claimant was exonerated despite her representation to that effect to us.

35.	It is for the claimant to discharge the initial burden of proving facts from which we could conclude that an act of race discrimination had occurred.  We do not find that she had discharged that burden as our assessment of all the evidence does not reveal any taint of race discrimination in relation to the dismissal in 2011.  

36.	The claimant also relied on the following in support of the race case: racial comments allegedly made by Mrs Kelly and Mrs O’Connell on 9 December 2010, 16 December 2010 and 2 April 2011; derogatory comments made from that time on an ongoing basis; an allegation that Mrs Kelly tried to force her to sign a form demoting her from her position as sister to a lesser position in February 2011.

37.	We are not satisfied that the claimant has discharged the burden of proving that the alleged acts occurred.  Our reason for so finding relates to our serious doubts about the reliability of the claimant’s evidence generally in the absence of corroborating evidence (see above).

38.	We do not accept that the dismissal in 2012 was an act of victimisation following the lodgement of the first claim to the tribunal in October 2011, or the raising of the grievance in June 2011.  The respondent had ample reason for dismissing the claimant given the concerns there were about her veracity in relation to the sickness document and in relation to their belief that she had falsified an important document relating to drug administration.  We therefore do not find the dismissal tainted by race discrimination.
Protected Disclosures- Detriment

39.	There is no doubt that there were ongoing  issues about staffing levels and care at the respondent’s establishment at the Court Care Centre. The RQIA reports to which we were referred record RQIA concerns about staffing levels and the care given to residents.  It is not, however, our task to decide whether or not this home was being run properly nor is it part of our task to assess whether the home was meeting the requisite standards for care.  The issue for us is whether or not the claimant was treated adversely on grounds of having made disclosures to her employer and/or relevant statutory bodies about issues of concern.  

40.	It was the claimant’s case that she had complained on an ongoing basis to the RQIA in particular and to other outside bodies and individuals in relation to the standard of care given to patients and in relation to staffing levels.  The claimant also complained about the treatment meted out to her in the first disciplinary process.  The bodies and people to whom the claimant alleged she made disclosures were as follows: the RQIA, the RCN, Mr Mervyn Storey MLA, the Health Minister Mr Edwin Poots, the Department of Health.  

41.	The scheme of the legislation envisages that an employee should make disclosures to her employer in the first instance.  In certain circumstances an employee is entitled to go outside the organisation to make disclosures to prescribed persons listed in the relevant subordinate legislation.  The first task for the claimant, however, is to establish as a primary fact that she actually made disclosures.

42.     Other than the claimant’s bare allegation there is no actual evidence before us that she complained to any of these bodies or individuals.  All of the bodies contacted by the respondent’s solicitors confirmed in open correspondence that they could find no details of anything relating to the claimant having made contact with them. There is also no evidence that the RQIA inspections were prompted by information from the claimant.  Only the second inspection in April 2012 refers to “anonymous issues” having been raised.  The evidence from Mr Graur (the claimant’s own witness) suggests that the complaints which prompted that inspection came from him and another colleague.

43.	On the claimant’s own evidence, she raised issues with RQIA at the end of March 2012.  This post-dated the issues to do with the sickness document which were in early March 2012.  This chronology therefore does not bear out the claim that the fact that the claimant had made disclosures had a material influence on the second disciplinary process and outcome.  Given our reservations about the reliability of the claimant’s evidence we find that she had not discharged the burden of proving that she made the disclosures at all never mind whether they amounted to protected disclosures in law.

44.	The claimant’s grievance document which we were referred to was sent to her employer in June 2011 and the grievance outcome was by letter of 4 July 2011.  The grievance was therefore raised after the initial incidents which led to the first investigatory process taking place in May 2011.  That process identified serious issues to be dealt with in the disciplinary process and ultimately led to a final written warning.  The chronology therefore does not bear out the claimant’s case that she was disciplined as a result of having made a disclosure.  In contrast the disclosure was made in the course of the proceedings which had already begun against her.

45.	It was uncontested that it was the claimant’s record of complaints made by a resident about “rough handling” which led to disciplinary proceedings against two other members of staff in April and May 2012.  The incidents occurred on 19 April 2012 which was after the two incidents which grounded the disciplinary process against the claimant which in turn led to her dismissal.  The chronology does not therefore bear out the claimant’s claim that she suffered adverse consequences on grounds of having made these protected disclosures as the disciplinary process had already begun before that incident and it related to serious charges which could merit dismissal if found against her.

Unlawful deduction from wages and Breach of Contract

46.	Insofar as the claim included any separate claims under these headings we find that the claimant failed to prove any unlawful deduction from wages nor did she prove that any sums were outstanding at the time of her dismissal such as to amount to breach of contract.  As she was dismissed for gross misconduct she was not entitled to notice pay and there were no sums outstanding at the time of her reinstatement at the time of the first disciplinary process.

Summary

47.	The claimant’s claims are dismissed in their entirety.

Chairman:

Date and place of hearing:  16-20 September 2013, 23-26 September 2013, Belfast.

Date decision recorded in register and issued to parties: