THE INDUSTRIAL TRIBUNALS

CASE REF:	161/10

CLAIMANT:			Edith Margaret Burnside

RESPONDENT:		Brian Macklin and Mary Macklin
				T/A The Macklin Group

DECISION
The unanimous decision of the tribunal is that the claimant was not unfairly dismissed by the respondents and was not discriminated against on the grounds of her disability.

Constitution of Tribunal:
Chairman:		Mr P Kinney
Members:		Ms Ailish Hamilton
			Mr Robert Gunn

Appearances:
The claimant appeared in person and represented herself assisted by Mr McLaughlin.
The respondent was represented by Mr Clarke of Peninsula Business Services Limited.

Issues

1.	The parties agreed the following issues were to be determined by the tribunal:-

(1)	Does the claimant fall within the definition of disability under the Disability Discrimination Act 1995?  It was clarified that the claimant relies on the disability of depression.  

(2)	If so, did the respondent discriminate against the claimant on the grounds of her disability in relation to the investigation and disciplinary process which lead to her dismissal?

(3)	Was the claimant unfairly dismissed?

The respondent accepts they dismissed the claimant but assert it was for a potentially fair reason, namely gross misconduct.

2.	The tribunal also ascertained that the correct respondent in this case is:-

		Brian Macklin and Mary Macklin
		Trading as The Macklin Group

	The title of the respondent is therefore amended.

Findings of fact

3.	The claimant was employed by the respondent as a Level 1 Registered Nurse at the respondent’s premises of Ratheane Nursing Home, Coleraine.

4.	On 12 October 2009, Mrs Gill McIlroy was approached by a care assistant, Gill Eggerton.  Ms Eggerton informed Mrs McIlroy that she had witnessed an incident in the room of a patient, Patient X.  She stated that at 6.30 pm on the previous Friday evening she had seen the claimant drinking from a wine bottle in Patient X’s room.  Mrs McIlroy subsequently spoke to Patient X who confirmed that the claimant took a drink of wine from a wine bottle in his room.

5.	On 14 October 2009 Mrs McIlroy wrote to the claimant to advise she was being suspended on full pay to allow an investigation to take place into allegations that she was drinking whilst on duty.  It was pointed out that the matter was potentially gross misconduct and it was also confirmed that suspension from duty was not regarded as disciplinary action.  The claimant was invited to identify any employees who the claimant felt could provide a witness statement to assist in investigating the matter.  The claimant was invited to an investigation hearing on 16 October 2009.

6.	The investigatory meeting took place on 16 October 2009.  The claimant denied the allegation that she had been drinking.  

7.	On 19 October 2009 Mrs McIlroy wrote again to the claimant requiring the claimant to attend a disciplinary hearing on 21 October 2009.  In this letter the claimant was warned again that the matter was regarded as potentially gross misconduct and that her employment may be terminated.  Mrs McIlroy also reminded the claimant that she had already a Final Written Warning on her file and that even if there was a finding that she had committed an act of misconduct that was not gross misconduct her employment may still be terminated.  

8.	The disciplinary meeting was conducted by Mr Trevor Gage, an independent HR Consultant.  Notes were taken by another employee of the respondent, Roberta Gurney.  The claimant confirmed in evidence that the notes were an accurate record of the meeting.  Mr Gage considered the statements that had been provided to him and provided the claimant with an opportunity to make her comments regarding the alleged incident.  The claimant, in particular, challenged a sequence of questions asked by Mr Gage as to whether or not the care assistant was in the room.  The claimant’s case was that the care assistant was standing at the doorway and not in the room.  However, she found these questions oppressive.  Mr Gage confirmed that he was simply attempting to establish the factual situation at the time.  The claimant did not deny that she had been in the room and had a conversation with Ms Eggerton.  She did, however, deny drinking from the wine bottle.  Having heard the evidence of the claimant and Mr Gage and having seen the notes of the disciplinary meeting and the questions that were asked by Mr Gage, the tribunal does not consider that these questions were oppressive or inappropriate.  

9.	On 22 October 2009 Mr Gage wrote to the claimant informing her of his decision.  He confirmed that he had listened to her explanations which he considered to be unsatisfactory because two persons witnessed the incident and that the claimant’s explanations were not consistent.  As he found the claimant’s action to amount to gross misconduct she was summarily dismissed.  The letter also offered a right to appeal.  The claimant subsequently sought an appeal.  The appeal was conducted by Orlagh Darling, also an independent HR Consultant.  The appeal meeting was held on 8 December 2009.  The appeal meeting lasted almost two hours.  Again the notes of the meeting have been accepted by the claimant as a true and accurate record of the meeting.  The claimant also said that she had no complaints as to the conduct of the appeal but simply disputed the decision reached by Ms Darling.  

10.	As a consequence of the appeal hearing, Ms Darling then re-investigated the issues.  She spoke to Ms Eggerton and asked Ms Eggerton to accompany her to Patient X’s room where she was shown what had transpired.  She spoke again to Mr Gage and to Mrs McIlroy.  She had the notes of the appeal hearing typed up and sent to the claimant for comment.  The claimant’s comments were then received and considered.  Having completed that investigation, Ms Darling arrived at her decision.

11.	The claimant, at appeal, raised a number of issues.  Amongst those were her concerns that the statement of Patient X should not be taken into account as he was unreliable and suffered from dementia.  She also challenged the statement of Ms Eggerton and said that there were reasons why Ms Eggerton could possibly have imagined the sequence of events.  Thirdly, she challenged Mr Gage’s conduct of the disciplinary hearing and, in particular, comments made by Mr Gage at the end of the disciplinary meeting notes where he said:-

“Trevor observed her leaving the building and she appeared to be unsteady on her feet.”

12.	Ms Darling wrote to the claimant on 18 December 2009.  She confirmed, that having reviewed all the evidence, she believed the claimant had been drinking from Patient X’s wine.  She gave the reasons that the witness’ statement and account of events was credible and that the witness was able to describe clearly what happened and her evidence was consistent.  On the other hand, Ms Darling found the claimant’s evidence was not consistent and was contradictory.  In making her decision she also took into account that the disciplinary procedures clearly state that drinking was gross misconduct and that the claimant had a Final Written Warning already on personnel file which was active.  Ms Darling confirmed, that on reaching her decision, she discounted the statement of Patient X given his medical history.  Ms Darling upheld the decision to dismiss the claimant.  She confirmed that she had considered the manner in which the disciplinary hearing was conducted and found no evidence to say that the disciplinary hearing had been conducted in an intimidatory manner.  She accepted Mr Gage’s explanation of his comments ‘appeared unsteady on her feet’ as an observation and noted at the end of the disciplinary matter.  

13.	The claimant was also concerned about the confidentiality of a letter which the claimant stated had been pinned up in the nurses station.  The claimant had earlier sought a copy of the minutes of the investigatory meeting and copies of the statements.  Whilst the claimant accepted that most documents were               hand-delivered to her at home, she said that this document was simply pinned to the notice board in the nurses station by Ms McIlroy and that she had to return to the home whilst on suspension to collect it.  Ms Darling confirmed that she had considered this issue and had taken evidence from Ms McIlroy who said that she had hand-delivered the letter to the claimant’s home address in the company of Roberta Gurney.  Ms Darling checked the file copy of the letter which stated:-

		“Copy hand-delivered.”

	Ms Darling found that all the other correspondence had been hand-delivered to the home address and that the claimant was not working in the home on the date in question and did not uphold the claimant’s concerns.  

14.	The claimant was first presented with problems of sleep and difficulties at work in August 2008.  In October 2008 she suffered an acute stress reaction on the bereavement of her sister.  She continued to attend her GP throughout 2009 and received medication, her mood began to improve from December 2009.  Dr Donnelly gave evidence, on behalf of her patient.  However, when asked of the potential effect on the claimant’s normal day-to-day activities, Dr Donnelly was unable to provide any evidence.  She had no record on her notes of how the claimant’s condition would affect her day-to-day activities.  She considered that the medication was absolutely necessary at the time prescribed; but was unable to offer any opinion as to the effect on day-to-day functioning should the claimant not have that medication.  

15.	During episodes of depression, the claimant was very tearful and very negative at home.  She lost weight as her appetite was low.  She had to force herself to go to work but she made it clear that her work was not affected in any way by her depression.  The claimant gave no other evidence despite prompting from the tribunal as to the impact on her normal day-to-day activities beyond saying that sometimes at home she might not bother to get dressed and that she did not like to go out at such times.

The law

16.	In order to establish that an individual has a disability within the definition of the disability discrimination legislation, the individual must show that she suffers from a physical or mental impairment which has a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities.

17.	The claimant claims direct disability discrimination on the grounds of her depression.  A person discriminates against another person when they treat that other person less favourably on the grounds of their disability.  Under the Burden of Proof Regulations, the burden of proof is on the claimant to show facts from which a tribunal could, in the absence of a reasonable explanation, infer that there had been discrimination.  

18.	Under Article 126 of the Employment Rights (Northern Ireland) Order 1996 an employee has a right not to be unfairly dismissed.  By Article 130, to determine whether a dismissal of an employee is fair or unfair, it is for the employer to show that the reason for the dismissal falls within the terms of that Article.  By Article 130(2)(b) one such reason relates to the conduct of the employee.  If a potentially fair reason is established, the tribunal should then consider whether the respondent acted reasonably in all the circumstances.  Dismissal must be within the band of reasonable responses which a reasonable employer might take and the tribunal must not substitute its own view for that of the employer. 

19.	Following the authority of British Home Stores  v  Burchell [1978] IRLR 379, the tribunal must be satisfied that the employer, at the time of the dismissal, had a genuine belief in the employee’s guilt of that misconduct, had reasonable grounds to hold that belief, and carried out such investigation as was reasonable in all the circumstances.  

The tribunal’s conclusions

20.	During the course of evidence the claimant confirmed that whilst the disability she complained of was depression, she also suffered from diabetes and from       alcohol-related problems.  In her evidence the claimant made complaints of less favourable treatment going back to 2007.  However, Dr Donnelly’s evidence was that the claimant’s depression commenced in and around August 2008.  In the course of her evidence the claimant also stated that she believed that the reason for her treatment was her illness which she defined to be alcoholism.  On further questioning by the tribunal the claimant confirmed that she believed that her treatment was because of alcoholism.  The Chairman explained again to the claimant the nature of her case and that statutory test and, in particular, that it was her case that the treatment was on grounds of her disability, namely depression.  The claimant then said “I believe that I would have been treated the same way whether I had depression or not”.  Having considered all the evidence and the facts found by the tribunal, the tribunal is not satisfied that the claimant has shown facts from which the tribunal could conclude, in the absence of a reasonable explanation, that there has been discrimination on the grounds of her disability.  The burden of proof has not shifted to the respondent and the claimant’s claims for disability discrimination fail.

21.	In any event, on the basis of the evidence and facts as found the tribunal is not satisfied that the claimant has shown that there were substantial and adverse effects on her ability to do normal day-to-day activities.  Despite questioning of both the claimant and of the doctor, specifically on the question of day-to-day activities, no information was provided as to tasks that the claimant was not able to do or was only able to do with some difficulty.  The tribunal accepts that the claimant did suffer from stress, anxiety and low-mood and that this condition lasted from at least August 2008 to December 2009.  However, the tribunal did not consider that there was sufficient evidence to show any adverse effect on the claimant’s ability to do normal day-to-day activities.  For that reason, the tribunal would determine that the claimant does not suffer from a disability within the terms of the Disability Discrimination Act 1995.

22.	The tribunal has also considered whether or not the claimant was unfairly dismissed.  The respondent has established that the potentially fair reason for dismissal was conduct.  The respondent carried out an extensive investigation and provided the claimant with every opportunity to explain or challenge the allegations.  There was a completely fresh appraisal of the matter on appeal.  Ms Darling, on appeal, allowed the claimant a full opportunity to set out her case, a fact which the claimant acknowledged.  Ms Darling then conducted fresh interviews with the witnesses and spoke to Mr Gage about the comment he made.  She discounted the statement of Patient X and set out the reasons for her decision.  The tribunal is satisfied that the respondents, in the circumstances, carried out an investigation which was reasonable in all the circumstances.  The tribunal also finds that the sanction of summary dismissal is within the range of reasonable responses which a reasonable employer might make.  Drinking whilst on duty was a matter defined as gross misconduct and the claimant also had a Final Written Warning active on her file.  

23.	The claimant was concerned about the posting of potentially confidential material on the nurses notice board.  At hearing she produced a letter signed by another employee at that time who confirmed that she witnessed the claimant taking that envelope from the notice board.  The claimant was also critical of the absence of Ms Eggerton who was not available to be challenged on the evidence she had provided during the disciplinary process.  The tribunal reminded the parties throughout the hearing and again on conclusion, that it was not appropriate for the tribunal to seek to substitute its own view for that of the employer.  The issue of the envelope on the notice board was considered by Ms Darling at appeal and the reasons for her decision were given in the appeal letter.  Ms Darling also, not only considered the statement of Ms Eggerton but after having received the evidence of the claimant, met with Ms Eggerton and took her back to Patient X’s room to consider her evidence.  The matters were considered by Ms Darling and a conclusion reached which is reasonable in all the circumstances.

24.	The tribunal, therefore, concludes unanimously that the claimant was not unfairly dismissed and was not discriminated against on the grounds of her disability.

Chairman:

Date and place of hearing:	17 – 18 January 2011, Belfast

Date decision recorded in register and issued to parties: