THE INDUSTRIAL TRIBUNALS
CASE REF: 1388/10
CLAIMANT: Sandra McNaughton
RESPONDENT: Northern Health & Social Care Trust
DECISION
The unanimous decision of the tribunal is that the claimant was unfairly dismissed by the respondent; and the tribunal makes an award of compensation to be paid by the respondent to the claimant in the sum of £3,438.00.
Constitution of Tribunal:
Chairman: Mr N Drennan QC
Members: Ms N Kearney
Ms M Galloway
Appearances:
The claimant was represented by Ms C Drake, daughter of the claimant.
The respondent was represented by Mr C Hamill, Barrister-at-Law, instructed by Ms E Ward, Solicitor, of Directorate of Legal Services.
Reasons
1.1 The claimant presented a claim of unfair dismissal to the tribunal on 12 May 2010, arising out of her dismissal by the respondent with effect from 18 November 2009 for gross misconduct. The respondent presented a response to the tribunal on 6 July 2010, in which it denied liability for the claimant’s claim, on then grounds that the claimant was dismissed for a reason related to the claimant’s conduct. The hearing of the matter was delayed, primarily, due to the ill-health of the claimant.
1.2 During the course of the hearing, the claimant confirmed that, if the tribunal found her dismissal was unfair, she wished to obtain by way of remedy an award of compensation and she was no longer seeking an Order of Reinstatement and/or Re-engagement.
1.3 It was not disputed that the claimant, who was born on 25 May 1968, was employed on a part-time contract of employment by the respondent as a Nursing Auxiliary from 20 December 1999; and, at all time material to these proceedings she was employed in that position in the Medical Assessment Unit of the Causeway Hospital, Coleraine. Further, as agreed, at the date of her dismissal, the claimant was earning approximately £400.00 net per week, which was in excess of the then limits for one week’s pay, for the calculation of the claimant’s compensation, which at the relevant date was limited to £380.00 gross per week.
1.4 It was not disputed by the parties that the tribunal had jurisdiction to hear the claimant’s claim, as the claim had been presented to the tribunal in time, pursuant to the provisions of Regulation 15 of the Employment (Northern Ireland) Order 2003 (Dispute Resolution) Regulations (Northern Ireland) 2004; as the claimant, following her dismissal on 18 November 2009, had appealed the decision to dismiss her, which appeal was not concluded until 1 April 2010. Therefore, at the date of the expiry of the normal three month period to bring proceedings, on 18 February 2011, the claimant had reasonable grounds for believing that a dismissal procedure was being followed, thereby entitling her to the said ‘one-off’ extension of three months, which had not expired at the date the claimant presented her claim of unfair dismissal, as set out above. (See further Harris v Towergate London Market Ltd [2008] IRLR 536 and Remploy Ltd v Shaw [2009] UKEAT/0452/08).
2.1 The tribunal heard oral evidence given, on behalf of the respondent, by Ms Jane Brady and Mrs Barbara Hall. The claimant also gave oral evidence to the tribunal.
Having considered the evidence given to the tribunal by the parties and their witnesses, as referred to above, the documents contained in the ‘trial bundle’, as amended, to which the tribunal was referred during the course of the hearing, together with oral and/or written submissions by the representatives of the claimant and the respondent, the tribunal made the following findings of fact, as set out in the following sub-paragraphs, insofar as necessary and relevant for the determination of the claimant’s claim.
2.2 The respondent’s disciplinary procedure, insofar as relevant and material, provided as follows:-
“2. Guidance and Definitions
‘Investigating Officer’ is any person authorised to carry out an investigation into alleged breaches of discipline to establish the facts of the case.
‘Presenting Officer’ is usually the investigating officer and presents the evidence to the disciplinary panel.
‘Disciplinary panel’ is the person or persons authorised to take disciplinary action.
‘Misconduct’ is a breach of discipline which is considered potentially serious enough to warrant recourse to formal disciplinary action (please refer to Disciplinary Rules).
‘Gross misconduct’ is a serious breach of discipline which effectively destroys the employment relationship and/or confidence which the Trust must have in an employee or bring the Trust into disrepute (please refer to Disciplinary Rules).
3. Principles
…
(b) In cases where an investigation is necessary, disciplinary action will not be taken against an employee until such an investigation is completed.
However, the Trust reserves the right to proceed with disciplinary action where an employee fails to co-operate with an investigation.
(c) Where a case is being investigated under this disciplinary procedure, the employee will be provided with a copy of this procedure as soon as possible. At every stage in the procedure the employee will be advised of the nature of the complaint and will be given the opportunity to state their case before any decision is made.
…
(g) In deciding upon appropriate disciplinary action, consideration will be given to the nature of the offence, any mitigating circ*mstances and previous good conduct.
(h) The Trust will collect information from relevant witnesses. Trust employees who are witnesses to alleged misconduct will be required to give evidence and may be required to attend disciplinary meetings or hearing.
…
(j) Any disciplinary action will be appropriate to the nature of the proven misconduct.
…
Formal Disciplinary Procedure
6.2 Investigation
The investigating officer is responsible for establishing the facts of the case … The investigating officers should ensure that any witnesses are interviewed and that all relevant documentation is examined before a decision is made on the appropriate course of action …
6.3 Hearing
(a) If it is considered there is a case to be answered, the employee should be called to attend a disciplinary hearing before the appropriate Disciplinary Panel …
(b) The Disciplinary Panel is made up of two managers at an appropriate level.
…
(f) Any witnesses required to attend the hearing should be granted the appropriate time off from their work.
(g) At the hearing, the case against the employee and the evidence should be detailed by the presenting officer and the employee should set out his/her case and answer the allegations.
(h) Witnesses may be called by either party and can be questioned by the other party and/or the disciplinary panel. The presenting officer and the employee/representative will have the opportunity to make a final submission to the disciplinary panel at the end of the hearing with the presenting officer going first. The disciplinary panel has the right to recall any witnesses but both sides and their representatives have the right to be present.
6.4 Disciplinary Decision
(a) The Disciplinary Panel will review all the evidence before taking its decision. The Disciplinary Panel will determine on a balance of probabilities whether the allegations were or were not proven. Before deciding on the appropriate disciplinary action, the Disciplinary Panel should consider any mitigating circ*mstances put forward at the hearing and take account of the claimant’s record.
7. Disciplinary Appeals
…
(b) The appeal panel will comprise two managers from the Trust who have had no previous involvement in the case and who are normally at a more senior level than the Disciplinary Panel.
Gross Misconduct
...
