The claimant commenced work with the respondent in 2002 as a Technician. He was subsequently promoted and transferred to the role of Supervisor in the Endoscopy Decontamination Unit. In 2017, the claimant raised a concern that his line manager failed to follow procedure in relation to cleaning instruments. This was investigated with a finding that there was no case to answer. From that point, issues persisted between the claimant and his line manager. It did lead to a recommendation that the claimant be on a supported improvement action plan relating to conflict and challenging behaviour.

In March 2021, an issue arose in which an allegation was made against the claimant by a colleague saying that he had used their cup. The claimant had line managerial responsibility over the individual who made the complaint. It was alleged that the claimant had sworn at the employee and made threats. This was the subject of a grievance. It was not until July/August 2021 that the report was completed. It was recommended that the case be referred to a formal hearing under the Conduct policy. It was found that the claimant had used threatening and abusive language against the employee. The claimant outlined that he had lost his temper but that he had not been given an opportunity to rectify the situation. The claimant also outlined that he did not directly threaten to assault the other employee. Despite the claimant’s comments the decision was made to dismiss the claimant for the reason of gross misconduct. The claimant appealed that decision yet the appeal was unsuccessful.

The claimant brought a claim for unfair dismissal. The Tribunal assessed the Burchell criteria. The Tribunal found that there was a reasonable belief that the alleged misconduct had taken place. However, the Tribunal examined the procedural issues relating to the dismissal. Principally, there were issues raised throughout the investigation of the claimant having a pattern of inappropriate behaviour and having issues with several colleagues yet this was not put to the claimant as the reason for the investigation and conduct hearing. Furthermore, this fed into the final decision that was made with the Tribunal outlining that there was a lack of certainty surrounding the real reason for dismissal. As a result, it was found that the dismissal was unfair due to procedural issues.

Practical Lessons

This case, yet again, demonstrates the importance of being procedurally robust in any disciplinary action being taken. In Northern Ireland this is through the statutory minimum process yet each aspect of that process has many strands to it which needs to be complied with to ensure that the procedural aspect is fair. To this end, the issues here related to the fact that the claimant was being assessed against matters which were not formally put to him. This renders the decision unfair considering that the claimant did not have a full and proper opportunity to put his view across in relation to those other allegations which were regarded as material concerns when the decision was made.

https://www.gov.uk/employment-tribunal-decisions/mr-s-mullen-v-greater-glasgow-health-board-4101715-slash-2022