Worthingtons Commercial Solicitors in Belfast have agreed to write an email every two months exclusively for Legal-Island email subscribers. These emails cover what, in the opinion of the writers, are the recent Northern Ireland employment cases that will most interest employment law practitioners.

Today's email concerns the case of Ann Porter v Amstecos Ltd t/a Parkdean Nursing Home (Case Ref 2251/11 – Decision issued 2 November 2012), where the claimant received a large award of compensation following her unfair dismissal for making a 'protected' disclosure.

The Claimant brought a case alleging automatically unfair dismissal under The Public Interest Disclosure (Northern Ireland) Order 1998 that she was dismissed for making a protected disclosure. Her case also included a case for victimisation, race discrimination and unfair dismissal under Article 126 of The Employment Rights (Northern Ireland) Order 1996.

The Claimant is a Registered General Nurse who had been nursing for 42 years. At the time of this she had almost 17 completed years of service with the Respondent. For a time she was a Nurse Manager of the Respondent but resigned as such in and around 29 June 2005 and the time with which the Tribunal was concerned, the Claimant was working for the Respondent as a part-time Staff Nurse.

The patient that was involved in these proceedings is referred to as Mr A. On 12 June 2011 the Claimant was called to see Mr A by William Carlisle, a Care Assistant on duty. At approximately 9.30am, after she had done the medicine round, the Claimant went to Mr A’s room and found that he had a leaking colostomy bag with an incontinence pad placed over it. As a consequence of the leak, his lower back and right leg were covered with faeces.

Mr A had made a complaint against Staff Nurse Kochurani Augustine (who was referred to in the hearing and for consistency and ease of reference as Staff Nurse Rani) some months before the events with which the Tribunal was concerned. There was a “vulnerable adult” investigation and Staff Nurse Rani was totally exonerated. This caused difficulties with Mr A’s relationship with Staff Nurse Rani. Therefore, Mr A was very nervous when making any complaint. He was concerned that he would not be believed. The Claimant advised him that she would take a photograph of him and she did so on her mobile phone as evidence and she did so with Mr A’s consent. The quality of the photo was very poor so Mr Carlisle, the Care Assistant who brought this to the attention of the Claimant retook the photo on his mobile phone.

Another Care Assistant, Ms Stephanie Moore was present at the time and a witness to the situation of which Mr A found himself. Additional Staff Nurse Haydé Hisole also witnessed Mr A’s circumstances.

It was Mr A’s contention that he had been left in this situation all night, but that he did not want this reported to anyone other than Ms Lynn Burton who was the Nursing Manager of the Home. Ms Burton was on leave and due to return to work on 13 June 2011 i.e. the day after.

The Claimant did not report the situation of Mr A in any way or in any way document it until Ms Burton returned to work on 13 June 2011. After the photograph was taken the Claimant ordered that Mr A be cleaned up. On the morning of 13 June 2011, when the Claimant was making her report to Ms Burton at the Nurses’ Station, Staff Nurse Rani approached the Nurses’ Station in a highly agitated condition shouting that it was illegal to take photographs of Mr A.

The care record in relation to Mr A said that he was checked two hourly through the night. However Staff Nurse Rani told that Ms Burton that she did not check the patients personally. Ms Burton requested the Claimant to delete the photograph. She asked the Claimant, Mr Carlisle, Ms Moore and Staff Nurse Haydé to write down what had occurred.

Ms Burton interviewed Mr A about the incident. On foot of the steps she had taken, Ms Burton formed the view that it was a care issue that could be resolved “on the floor” without recourse to management. On the same day, Staff Nurse Rani reported the matter to Ms Emer Bevan, the registered provider which involved formal procedures being applied.

On 16 June 2011, Ms Burton went to a meeting with Ms Bevan at the Ambassador Nursing Home, another Home owned by the Respondent. At this meeting she handed over the statements. She was told that Staff Nurse Rani had made a complaint of harassment against the Claimant and did not wish to work with her any further. The Claimant was advised of this on Ms Burton’s return to the Home.

On 20 June 2011, the Claimant received a letter from the Respondent dated 17 June 2011 requiring her to attend a disciplinary hearing. On the same day (and before the disciplinary hearing took place) Ms Bevan referred the Claimant’s behaviour to the National Midwifery Council. This is the Claimant’s professional body.

A letter of invitation to the disciplinary stated the following:

1. A failure to follow rules and procedures.
2. A failure to abide by National Midwifery Council Code of Conduct.
3. Grossly indecent or immoral behaviour.
4. Maltreatment of a service user.

The disciplinary hearing took place on 23 June 2011 and Ms Burton attended the hearing with the Claimant. On 21 June 2011, the Claimant raised a formal grievance concerning why Staff Nurse Rani was refusing to work with her. On 23 June 2011, after the Claimant had come back to the Home after a voluntary day’s excursion with patients of the Home, an informal grievance meeting was heard. During the hearing the Claimant was distressed and crying and was informed that they were not treating her complaint as a grievance.

By letter dated 5 July 2011, the Claimant was informed that she was dismissed by the Respondent. An appeal hearing was held on 2 August 2011 and the Claimant’s daughter attended the hearing with her mother. Without the knowledge of the Claimant or the knowledge and consent of the Respondent, her daughter recorded the hearing. It was plain from the transcript that it was a fraught meeting that lasted approximately 2.5 hours. By letter dated 31 August 2011, the Claimant’s appeal with dismissed.

The Tribunal considered that the disclosure made by the Claimant qualified as a protected disclosure within the terms of Article 67B because it was a disclosure of information and the reasonable actions of the worker (here the Claimant) tending to show that the health and safety of any individual has been, is being or is likely to be endangered.

There was an argument raised on behalf of the Respondent that the Claimant had acted in bad faith and was simply trying to incriminate the night staff and/or Staff Nurse Rani. The Tribunal did not see any evidence that suggested this was the case.

A further attack on the Claimant’s good faith arose from her failure to document Mr A’s condition, and her concerns for him. The Tribunal considered there is nothing in the text of the protected disclosure provisions that says that the disclosure has to be documented.

The Tribunal considered that the detrimental treatment that occurred was that the Claimant was dismissed. In this connection the Tribunal noted that the event in question took place on 12 June 2011 and the Claimant was dismissed very shortly thereafter on 5 July 2011. The Tribunal believed that the investigation had difficulties in that Ms Burton told all the participants of the event to write down a record of what had happened and this included the Claimant and she did so, however the Claimant was unaware that this statement was to be used against her in the disciplinary proceedings. There were no notes of the interview taken with Mr A. The Tribunal considers it would have been reasonable for the management to obtain a statement directly from Mr A as to what had happened. On this basis, the Tribunal believed that the investigation was inadequate. There was not as much investigation as was necessary in the circumstances of the case. Mr A should have been interviewed and he could have confirmed the Claimant’s version of events.

The Claimant was not given statements upon which the Respondent was going to rely on in considering this disciplinary matter which the Tribunal considered should have been furnished without the Claimant having to ask. The Claimant was confused and upset by the statement of grounds. The Claimant was accompanied at the hearing by Ms Burton. Not only does the Tribunal consider that it is strange that the person who was alleged to have carried out the Respondent’s investigation was allowed to accompany the Claimant as a witness but also there was no evidence that she was allowed to speak in the hearing. Ms Burton confirmed in her evidence that she was told that she was not allowed to speak. The Tribunal did not believe that the three elements of the Burchell tests were fulfilled.

The incident was reported to the RQIA and HSC Trust on 13 June 2011 i.e. before there was an investigation of any kind against the Claimant. It was not reasonable to consider the Claimant guilty of misconduct before an investigation complying with the Burchell definition had been completed. Indeed upon perusal of the Statutory Notification of Events (adult services) in respect of this matter at part 4 of this form, it stated that a “full investigation in process” had taken place.

The Claimant continued to work until 27 June 2011. If the Respondent reasonably believed that the Claimant was guilty of gross misconduct of the magnitude set out in the letter dated 17 June 2011, the usual industrial practice would have been to suspend her there and then from her duties. To say that the appeal meeting was tense was an understatement. The Tribunal refused to listen to the recording taken by the Claimant’s daughter, without the knowledge of the Respondent, but was able to obtain a very fair idea of what transpired by looking at the transcript provided.

An appeal meeting is in industrial terms a very important meeting because an appeal meeting properly conducted is capable of curing any failures at a lower level in the disciplinary process. Unfortunately, this appeal meeting was not capable of so doing. Mr John Macklin, a Director of the Respondent, alleged that he was constantly harangued by the Claimant’s daughter and unable to conduct the appeal. It did seem that the Claimant’s daughter interrupted frequently. Given the failures in procedural fairness at a lower stage in the procedure, it is perhaps not surprising that the Claimant’s daughter would wish to do everything she could to protect her mother, but she was so combative that the appeal meeting was incapable of fulfilling its proper function in the disciplinary process.

It seemed to the Tribunal that Mr Macklin had had an involvement with this case in the investigatory stages in that he had spoken to Mr Carlisle, the person who subsequently took a photograph of the colostomy leakage after the Claimant’s photograph was not clear.

It appeared to the Tribunal that the kernel of the misconduct against the Claimant was the taking of the photographs. The Tribunal noted that in actual fact nobody other than Ms Burton saw the photograph taken by the Claimant. The Claimant deleted this at her request. The Respondent was not in a position to argue that the photograph violated Mr A’s right to privacy because the evidence was that there was nothing in the photograph to identify who was the subject. Furthermore the Tribunal held that there was a breach of the statutory disciplinary and dismissal procedures by the Respondent, but taking into the account of the Claimant’s daughter's behaviour in the appeal hearing, the Tribunal considered it would be just and equitable to increase the compensation awarded by 30% rather than by the full amount of 50%. The total of unfair dismissal and discrimination compensation was £57,090.84.

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The main content of this email was provided by Maxine Orr of Worthingtons Commercial Solicitors in Belfast. Maxine works exclusively in employment law and should anyone have any queries she may be contacted on 028 90 434015. Maxine is an accredited mediator.

Website:
http://bit.ly/9NE0Ia

Maxine was a speaker at this year's Annual Reviews of Employment Law in November. As usual, she received top marks from our delegates.

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