THE INDUSTRIAL TRIBUNALS

CASE REF:	7460/09

CLAIMANT:			Donna Fitzpatrick

RESPONDENT:		Monica McMullan T/a Blooming Tots Daycare

DECISION
The unanimous decision of the tribunal is that the claimant’s claim for unfair dismissal is dismissed.

Constitution of Tribunal:
Chairman:		Mr B Greene
Members:		Mr E Hesketh
			Mr J Patterson

Appearances:
The claimant was represented by Mr N Richards, Barrister-at-Law, instructed by Joe Mulholland & Company, Solicitors, from 4 May 2010.  On 7 April 2010 the claimant appeared in person, assisted by John Burns.
The respondent was represented by Mr A Brennan, Barrister-at-Law, ‘McKenzie Friend’.

Sources of evidence

1.	The tribunal heard evidence from the claimant and her witness, Linda Kennedy, and for the respondent from Monica McMullan, Carol Conn and Lyn McBriar.  The tribunal also received 24 bundles of documents amounting to 80 pages, including three photographs of the hallway and the playroom gate.

The claim and defence

2.	The claimant claimed unfair dismissal.  The respondent denied that the claimant had been unfairly dismissed.  The respondent asserted that the claimant had been dismissed for gross misconduct.  

After the hearing had concluded the parties were asked to return to address the tribunal on the English Court of Appeal’s decision in Salford Royal NHS Foundation Trust  v  Roldan [2010] IRLR 721.

The issues

3.	The issues to be determined by the tribunal were:-

		(1)	Was the claimant unfairly dismissed by the respondent.

		(2)	If the dismissal was unfair what is the appropriate remedy.  

Findings of fact

4.	(1)	The respondent and her predecessor in title employed the claimant from 9 March 2004 until 19 September 2009 as a nursery assistant.	
			
	(2)	The respondent operates a day care centre for children from birth until five years of age.  She employs six members of staff, including herself.  	
			
	(3)	The respondent took over the business in or around July 2009.  	
			
	(4)	The claimant was dismissed for gross misconduct, effective from 19 September 2009.  	
			
	(5)	The day care centre has a playroom which the children use during the day.  The playroom leads into the hallway and is closed off by means of a safety-gate.  Through the doorway to the playroom visitors arriving at the day centre can be seen.  	
			
	(6)	It was customary for the children to move to the entrance to the playroom and stand at or on the gate when the front door bell rang.  It is believed this was in anticipation of parents coming to collect the children.  	
			
	(7)	One of the children in the care of the respondent was Calum who was three years of age.  	
			
	(8)	On 25 August 2009 the claimant, the respondent (the manager) and the deputy manager, Linda Kennedy, were on duty.  	
			
	(9)	Calum had been unhappy earlier on 25 August 2009 because he was unable to have a toy being used by another child.  As a result he had been crying.  He appeared to settle down when the respondent explained to him that when the other child had finished playing with the toy that he would be able to play with it.  	
			
	(10)	In the late afternoon of 25 August 2009 the claimant was in the playroom with a number of children, including Calum, and another child that the claimant was nursing as she sat on a chair.  	
			
	(11)	The front door bell rang.  The respondent answered the door.  A number of children, on hearing the bell, ran to the safety-gate between the playroom and the hallway.  	
			
	(12)	A parent had arrived to collect a child, not Calum.  The parent came into the hallway and positioned herself at or about the safety-gate between the playroom and the hallway.  She was engaged in conversation with the respondent.  	
			
	(13)	Calum was one of the children who had gone to the gate and was standing on the gate with his feet resting on the bottom horizontal bar and protruding between the vertical bars.  The horizontal bar is two inches above ground level.	
			
	(14)	The claimant, while carrying a child, approached the gate, put her hand on the shoulder of Calum to encourage him to step down from the gate, as she believed Calum’s position was unsafe.  	
			
	(15)	As a result of the claimant’s contact with Calum, he moved backwards and ended up sitting on his bottom on the floor and began crying.  	
			
	(16)	There is a complete conflict of evidence between the claimant and the respondent as to why Calum came to be on the floor crying.  	
			
	(17)	The respondent alleges that the claimant pulled Calum from the gate causing him to fall backwards onto his bottom and injure himself and begin to cry.  	
			
	(18)	The claimant’s version is that after putting her hand on Calum’s shoulder and exhorting him to remove himself from the gate he threw himself backwards onto the floor and began crying.  	
			
	(19)	The claimant was of the view on the afternoon of the incident that Calum’s behaviour had been bad and that his parents should be so informed.  	
			
	(20)	Calum had thrown himself onto the floor on two previous occasions, although such incidents were not recorded in any of the incident or accident books.  The claimant stated that Calum’s parents had confirmed that he had engaged in similar activity at home.  	
			
	(21)	After the incident the respondent asked the deputy manager, Linda Kennedy, to go into the room and deal with Calum who was on the floor crying.  	
			
	(22)	The claimant, the respondent and Linda Kennedy made statements in relation to the incident.  Linda Kennedy had not observed the incident itself.  	
			
	(23)	The respondent was concerned about what she believed she had witnessed.  Despite this she did not say anything to the claimant about the incident or her behaviour that day.	
			
	(24)	The claimant was not due in work on the next day, 26 August 2009, and the respondent then took some advice.	
			
	(25)	On 26 August 2009 the respondent contacted the claimant and told her not to come into work on the following afternoon, 27 August 2009, but to come in after work and meet with the respondent.  	
			
	(26)	On 27 August 2009 a meeting was held with the claimant and the respondent. Wendy Johnston attended from Home Organisation to take the minutes.  	
			
	(27)	The respondent explained to the claimant that this was an informal discussion to enable the claimant to explain what had happened on Tuesday 25 August 2009 in relation to Calum.  	
			
	(28)	The respondent explained to the claimant that she had witnessed her putting her hand on Calum’s shoulder and pulling him back.  The claimant explained that she had put her hand on Calum’s shoulder in case the gate collapsed and that Calum had thrown himself to the ground and she had not knocked him over.

An earlier risk assessment had recorded that the gate was unsafe due to two bolts being missing.	
			
	(29)	The respondent informed the claimant that she could not come back to work until the incident was investigated and that she would give her a letter suspending her on full pay until the investigation was completed.  Thereupon she prepared a letter and read it out to the claimant explaining why she was suspended and told the claimant that she could bring someone with her to the investigation meeting.  	
			
	(30)	The respondent engaged an organisation called Think People to carry out an investigation into this matter.  Carol Conn, from Think People, sent the claimant a letter, dated 31 August 2009, inviting her to an investigatory meeting which she described as being informal.  	
			
	(31)	Carol Conn met with the claimant and her son, who was acting as her companion, on 3 September 2009.  The meeting is described as an informal investigation meeting.	
			
	(32)	The claimant related what had happened, as set out above.  She also indicated that Calum, after the incident, had been taken out to play and had left that evening in good form calling the claimant by his pet name for her.  

The claimant also alleged, after having spoken to her solicitor, that she was concerned about the delay in speaking to her and Calum’s parents about this incident.  

She further alleged that the respondent had stated to Donna Jess, the former owner, that she had a problem with the claimant when she took over the nursery.  The claimant had challenged the respondent about this matter on 11 July 2009 but the respondent had denied it.  

The claimant also asked Carol Conn to speak to Linda Kennedy the deputy manager. 	
			
	(33)	Carol Conn spoke to the respondent on the same day, 3 September 2009, about the incident.  The respondent outlined her position, as above.  She also commented that she had had a conversation with the previous owner, Donna Jess, who had made negative comments about the claimant and that she, the respondent, had said something to the effect that the claimant would not last as she was going to increase the standards of the nursery.  She explained the latter comment was made in jest.  She also informed Carol Conn that she had spoken to Calum’s parents on 27 August 2009.  	
			
	(34)	Carol Conn wanted to speak to the parent who was present at the time of the incident conversing with the respondent.  The respondent prevented such a discussion taking place because she feared it could damage the reputation of the day centre in a small community.  	
			
	(35)	The respondent’s disciplinary policy does not provide for an informal investigation.  	
			
	(36)	Carol Conn interviewed the claimant and the respondent.  She spoke to Linda Kennedy by telephone only, and she reported that Calum had thrown himself down twice before that week.  She did not investigate with Linda Kennedy the history of Calum throwing himself onto the ground.  She was prevented from speaking to the parent who was present when the incident occurred and neither did she pursue the enquiry with Donna Jess arising from the claimant’s allegation that conversation of a negative nature had taken place between Donna Jess and the respondent in relation to the claimant.  	
			
	(37)	Carol Conn did not present a report.  She presented the minutes of the interviews to the respondent.  She indicated that she believed an incident had occurred.  She advised that there was no independent evidence to indicate what had happened.  She advised the respondent that if she was firm in her view that the incident had occurred, as she described, then she should proceed to a disciplinary hearing.  The decision as to whether to move to a disciplinary hearing lay with the respondent and not with Carol Conn.	
			
	(38)	By letter of 8 September 2009 the respondent invited the claimant to a disciplinary meeting to be conducted by Valerie Sullivan from Think People.  The purpose of the meeting was to consider an allegation in relation to the claimant of:-	

“Holding a child by its right shoulder and pulling him off the gate at the nursery room door, pulling him down onto the floor.”

	(39)	Some evidence was provided in the letter and the claimant was advised of her right to be accompanied.  	
			
	(40)	On 11 September 2009, Valerie Sullivan chaired a disciplinary hearing.  Present were the claimant accompanied by a fellow employee, Mary Soper, and the respondent.  Valerie Sullivan prepared the minutes.  The decision as to whether the charge against the claimant had been established or not lay with the respondent.  	
			
	(41)	The claimant submitted a written statement in relation to the charge.  The statement set out the history of the incident and the subsequent events in greater detail than had appeared in the claimant’s earlier statement.  	
			
	(42)	Having considered the notes of the disciplinary meeting provided to her by Valerie Sullivan the respondent decided to dismiss the claimant.
	
	(43)	The respondent had no doubt about what she had seen and she dismissed the claimant.  She felt there was no way to support the claimant in the nursery because of the seriousness of the incident and the cost of providing supervision of the claimant in her work.
	
	(44)	The respondent notified the claimant of her dismissal, effective from 15 September 2009, by undated letter.  The letter advised the claimant of her right of appeal.
	
	(45)	The claimant appealed her dismissal by letter of 18 September 2009.  The respondent asked the claimant to give reasons for the grounds of her appeal.  The claimant’s then solicitor, Messrs Fisher & Fisher, replied by letter of 30 September 2009 exhibiting letters from the parent present in the hallway during the incident and letters from Charlene Cooney and Julie Hanna which spoke highly of the claimant.	
			
	(46)	The claimant’s solicitor disputed the respondent’s account of the incident of 25 August 2009 and contended that the investigation was fatally flawed and that the conclusion reached, following the disciplinary hearing, could not properly have been reached.	
			
	(47)	The respondent engaged the services of Lyn McBriar, an independent appeal hearer, through Think People, to hear and determine the claimant’s appeal.	
			
	(48)	The procedure followed by Ms McBriar was to speak to the claimant on 6 October 2009.  After speaking to the claimant, she spoke to the respondent.  On 16 October 2009 she spoke with the parent who had been in the hall during the incident.  She ascertained from the deputy manager that Calum had thrown himself to the ground prior to the incident on 25 August 2009 twice at the day centre.  There was not any written record of the two previous incidents.

She also consulted privately with Carol Conn and Valerie Sullivan.  What those consultations involved or what Ms McBriar was told was not revealed to the claimant.	
			
	(49)	Ms McBriar found no merit in the claimant’s grounds of appeal and upheld the decision to dismiss.  She notified the claimant by letter dated 20 October 2009 of the outcome of the appeal.	

The Law

5.	(1)	To establish that the dismissal is not unfair the employer must establish the
reason for the dismissal and that it was one of the statutory reasons that can render a dismissal not unfair.  If an employer satisfies both of these requirements then whether the dismissal was unfair or not depends on whether in the circumstances the employer acted fairly and reasonably in treating the reason as a sufficient reason for dismissing the employee.

(2)	Where an employer dismisses an employee for misconduct he must have a reasonable belief that the employee has committed an act of misconduct after having carried out a reasonable investigation (to include a reasonable disciplinary hearing and appeal) and dismissal must be within the range of reasonable responses.

(3)	Whether or not it is unfair for a witness to sit in judgment will depend on all the circumstances.  It may be unfair where it is entirely unnecessary for them to play this dual role and impossible for them to disassociate the two roles (Harvey on Industrial Relations and Employment Law D1 paragraph [1516]).

(4)	Procedural defects in the initial disciplinary hearing may be remedied on appeal provided that in all the circumstances the later stages of the procedure are sufficient to cure any earlier unfairness, according to the decision of the Court of Appeal in Taylor  v  OCS Group Ltd [2006] EWCA Civ 702, [2006] IRLR613.  (Harvey on Industrial Relations and Employment Law D paragraph [1528]).  

	In that case it was stated that ultimately a tribunal must look at the overall fairness of the procedure, in particular the “thoroughness and the open mindedness of the decision maker” and not just consider whether an appeal had taken the form of a rehearing rather than a review as had been the earlier received wisdom following the decision of the EAT in Whitbread & Co Plc  v  Mills [1988] IRLR 501. 

(5)	When determining whether or not dismissal is a fair sanction, it is not for the tribunal to substitute its own view of the appropriate penalty for that of the employer.  (Harvey on Industrial Relations and Employment Law D paragraph [1534]).  

(6)	In the decision of Rogan  v  South Eastern Health & Social Care Trust [2009] NICA 47 the Court of Appeal stated:-

“21.	… It is for the employer to establish the belief in the particular misconduct.  The tribunal must then consider whether the employer had reasonable grounds upon which to sustain the belief and thirdly whether the employer had carried out as much investigation into the matter as was reasonable in all the circumstances.  The tribunal must also, of course, consider whether the misconduct was a sufficient reason for dismissing the employee.”

		Later it added:-

“26.	… The judgment as to the weight to be given to evidence was for the Disciplinary Panel and not for the tribunal.”

(7)	In the decision of Salford Royal NHS Foundation Trust  v  Roldan [2010] IRLR 721 the English Court of Appeal reiterated that in a misconduct case British Home Stores Ltd  v  Burchell [1978] IRLR 379 EAT remains the cornerstone of misconduct dismissals.  It further approved the principle in A  v  B [2003] IRLR 405 EAT that when considering reasonableness under Article 130(4) of the Employment Rights (Northern Ireland) Order 1996, relevant circumstances include the gravity of the charges and their potential effect on the employee.

	In Roldan, Elias J observed, as recorded in the head note:-

“(2)	In cases of alleged misconduct, where the evidence consists of diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other, employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred.  But they are not obliged to believe one employee and to disbelieve another.  Sometimes the apparent conflict may not be as fundamental as it seems; it may be that each party is genuinely seeking to tell the truth but is perceiving events from his or her own vantage point.  Even where that does not appear to be so, there will be cases where it is perfectly proper for the employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved.  This is not the same as saying that they disbelieve the complainant.  For example, they may tend to believe that a complainant is giving an accurate account of an incident but at the same time it may be wholly out of character for an employee who has given years of good service to have acted in the way alleged.  It would be perfectly proper in such a case for the employer to give the alleged wrongdoer the benefit of the doubt without feeling compelled to have to come down in favour of one side or the other.” 

Application of the law and the findings of fact to the issues

6.	(1)	The tribunal is satisfied that the respondent has shown the reason for the claimant’s dismissal (misconduct) and that reason is one of the statutory reasons that can render a dismissal fair.  	
			
	(2)	The tribunal is not persuaded that the disciplinary hearing, including the investigatory process was fair.  It was flawed in a number of respects:-	

(a)	The investigator was prevented from speaking to a potentially independent witness, the parent in the hallway during the incident.

(b)	Neither was there an investigation of the deputy manager’s statement that Calum, the child in this incident, had thrown himself onto the ground twice before in that room.

(c)	The investigator did not provide a written report of her investigations or an evaluation of the evidence obtained by her.  

(d)	The investigator had a verbal discussion with the respondent only, about the investigation and the evidence collated.  

(e)	The decision as to whether there was sufficient evidence to proceed to a disciplinary hearing was not made by the investigator nor following any recommendation by the investigator but rather was left to how strongly the respondent felt her evidence was.  

(f)	The single witness to the alleged gross misconduct, ie the respondent, was also the decision-maker.  

(g)	Whilst the respondent is a small business, that she should be the decision-maker was an unnecessary situation given that the respondent had engaged the services of Carol Conn to act as investigator and Valerie Sullivan to conduct the disciplinary hearing.  Valerie Sullivan’s role at the disciplinary hearing was merely to chair the meeting and to prepare a minute of the meeting.  The decision was made by the respondent to dismiss the claimant.  

	(3)	The appeal was neither a re-hearing nor a review as such.  It appeared to embrace both.  	
			
	(4)	Ms McBriar, who conducted the appeal hearing, followed a somewhat unusual approach in that she spoke to the claimant first followed by the respondent and then made certain enquiries arising from the claimant’s representations.  At no time did she report back to the claimant about the outcome of those enquiries or offer the claimant an opportunity to comment on them.  Similarly, she had private discussions with the investigator, Carol Conn, and the chairman of the disciplinary hearing, Valerie Sullivan.  The contents of those discussions were not revealed to the claimant nor as a consequence was she afforded an opportunity to comment on them.  	
			
	(5)	On balance the tribunal considers that the appeal hearing cured the defects and flaws that were apparent at the investigatory and disciplinary hearing stages.  In so concluding, the tribunal was influenced by the following matters:-	

(a)	Ms McBriar spoke to the parent in the hall who was a potential witness.  

(b)	She similarly investigated the alleged ill-disposition that the respondent harboured towards the claimant and had articulated at discussions with the former owner of the respondent business.  

(c)	It was she who in fact made the decision about the outcome of the appeal.  

(d)	She also investigated the evidence from the deputy manager that the child, Calum, had thrown himself down onto the ground on two previous occasions while staying at the day centre.  She apparently did not attach too much weight to that because of the absence of any report of those incidents in the records of the respondent day centre.  

(e)	Despite the unusual procedure for conducting this appeal the tribunal accepts, on balance, that nothing new emerged from the various enquiries and statements taken by Ms McBriar and therefore her failure to report back to the claimant and give her an opportunity to comment was not fatal in the circumstances of this claim.  

(6)	Accordingly, as the appeal process has cured the defects and flaws that existed in the investigatory meeting and the disciplinary meeting, the tribunal is satisfied that the respondent had evidence upon which it could reasonably conclude that the claimant had committed an act of misconduct and that dismissal was within the range of reasonable responses.  

(7)	The tribunal is not persuaded on balance that the case of Roldan assists the claimant in this claim.  In so concluding the tribunal had regard to the following matters:-

(a)	The Roldan case is of persuasive value only in this jurisdiction.  It must give way to the clear statement of the law given by the Northern Ireland Court of Appeal in the Rogan decision.

(b)	The comments of Elias LJ in Roldan which provide some support for the claimant’s claim are obiter.

(c)	The factual situation of the claimants in both cases is significantly different.  In Roldan, Ms Roldan, not only lost her job but faced deportation.  While undoubtedly the claimant’s dismissal will make further employment by her with children more difficult her position may not be substantially worse than anyone seeking a job with a history of dismissal from a previous job.

(d)	In seeking other employment the claimant is not restricting her further career to working with children and appears only to have worked in that sector since 2004.

(e)	At the appeal hearing, Ms McBriar considered the evidence of the potential eye witness; the history by Calum of throwing himself to the ground and the possible antipathy of the respondent towards the claimant.  While the claimant is critical of how Ms McBriar dealt with those issues it seemed to the tribunal that the criticism of the claimant relates to the weight attached to those matters by Ms McBriar.  Were the tribunal to engage in an evaluation of the weight of the evidence it would be in danger of substituting its view for that of the employer an approach reprobated by the authorities and quite trenchantly by the Court of Appeal in the Rogan case.

7.	Accordingly, the tribunal dismisses the claimant’s claim for unfair dismissal.

Chairman:

Date and place of hearing:	7 April 2010;
					4 – 7 May 2010; and
10 September 2010, Belfast

Date decision recorded in register and issued to parties: