Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant was transferred from her previous employer to the respondent under TUPE. The claimant’s role was as a senior care assistant providing personal care to residents in a care setting.
In July 2022 an issue occurred by which the duty manager was contacted by the police. The issue arose after voicemails were left on the district nurse’s phone in the early hours of the morning. The voicemails were made accidentally and came from the claimant’s phone. In one of the inadvertent recordings a staff member could be heard shouting at a resident. The resident could be heard saying that she was in pain. As a result, the claimant was suspended on full pay pending investigation. The issues outlined related to talking to a service user in an unacceptable manner and refusing assistance when asked for help.
During the investigation the claimant accepted that the manner in which she spoke to the claimant was wrong. She asserted though that she was offended by the resident’s actions (she alleges that the resident was masturbating and trying to get the claimant involved). That was the reason for what she described as her ‘assertive’ tone. The respondent disagreed citing that it was ‘aggressive’ rather than ‘assertive’. As a result of the investigation and following the disciplinary hearing the claimant was dismissed. It was stated that misconduct of that nature warrants summary dismissal in light of the standard disciplinary procedure.
Outcome:
The main issue arising was whether the dismissal was substantively fair. The Tribunal very aptly noted:
‘I remind myself I am not to substitute my view for that of the decision maker. It is irrelevant whether I would have dismissed the claimant in the same circumstances. My role is to adjudicate upon whether the dismissal fell within the range of reasonable responses.’
The Tribunal did note that other employers may have given the claimant the benefit of the doubt in the situation but notwithstanding that they were satisfied that the decision fell within the range of reasonable responses. It was reasonable to characterise the conduct as misconduct. As a result, the claim was dismissed.
Practical Guidance for Employers:
The range of reasonable responses test is a well-known aspect relating to unfair dismissal. The way in which it has been explained in this case demonstrates very clearly the onus placed upon the Tribunal. It may well have been the case that the Judge would not have dismissed but that is not the question. In answering the question, there is discretion given to the decision maker as the individual who is overseeing the panel and looking at all of the evidence in the context. This should be taken into account when decisions are having to be made regarding disciplinary, dismissal and looking forward to potential Tribunal action.
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