Safe staffing and North Tees’ unfair sacking of ‘unblemished’ whistleblower nurse Linda Fairhall. HR Director was also the Freedom To Speak Up Guardian

“119. The tribunal found the respondent’s investigation into the claimant’s alleged misconduct to be inadequate and unreasonable in all the circumstances of the case. No explanation was given for the unreasonable delay in interviewing the relevant witnesses, particularly those who are said to have expressed concerns about the claimant’’ behaviour. No explanation was given as to what was to be the remit of the investigation or of any instructions given to the investigating officer. No explanation was given as to why the investigating officer was not called to give evidence to the tribunal. The allegations of misconduct for which the respondent says it dismissed the claimant were never specifically put to the claimant, so that she was never given a fair opportunity to prepare her case or to respond to them. The respondent’s witnesses referred to little more than “themes” or “perceptions” by the staff, none of which contained a level of detail which would have enabled the claimant to respond. Many of the questions put to the staff contained what are commonly called “closed questions” which the tribunal found to be indicative of a requirement from the questioner that the interviewee would actively seek to identify any matters which may be detrimental to the claimant. When the investigation was completed and the report produced, it should have been sent to the claimant in accordance with the respondent’s policy. No explanation was given by the respondent as to why the report was not sent to the claimant until October. The tribunal found that no reasonable employer in all the circumstances of this case, would have conducted the investigation in this manner.

120. The tribunal found that the disciplinary hearing itself was unfair and unreasonable from the outset, in that it did not set out with any precision the allegations of misconduct which the claimant was expected to answer. The tribunal found it unreasonable for the respondent to say in these proceedings that the claimant could and should have been able to discover the nature of the allegations by reading the investigation report. Bearing in mind the size of the respondent’s administrative resources and in particular its dedicated HR resources, that was an unreasonable approach to adopt. The tribunal notes that, under cross examination, Ms Grieves conceded that there were a number of flaws and defects in the disciplinary hearing. Despite those concessions, Ms Grieves insisted that the disciplinary hearing had been fair and that those flaws did not adversely affect the fairness of the outcome. The tribunal found Ms Grieves to be an unpersuasive and unreliable witness. In assessing credibility, the tribunal took particular note of her sudden introduction of a finding by the disciplinary panel that the claimant had been dishonest in her handling of the charitable monies. Equally alarming was Ms Grieves evidence that it was this finding of dishonesty which led to the claimant being dismissed, as she would not have been dismissed solely in respect of the allegation relating to her professional behaviour. It was put to Ms Grieves in cross examination by Mr Rudd that this revelation was no more than an attempt by her to “beef-up” the respondent’s case, which she could now see to have been seriously eroded by the answers given in cross examination by earlier witnesses. Ms Grieves denied that she was so doing. In the absence of any meaningful explanation as to why there had never been any allegation of dishonesty made against the claimant and why that finding was not recorded anywhere in the dismissal letter, the tribunal found that Ms Grieves was indeed trying to “beef-up” the respondent’s case. The tribunal found that Ms Grieves was being less than candid with the tribunal.

121. The tribunal found that the decision of the disciplinary panel to dismiss the claimant for gross misconduct was not supported by the evidence before the panel. The reasoning behind the decision was systematically dismantled by Mr Rudd in his cross examination of Ms Grieves.

122. The tribunal found that the appeal process conducted by Lynne Taylor was similarly flawed. The tribunal found that no reasonable appeal officer could possibly have fairly and reasonably addressed all of the claimant’s grounds of appeal in the time taken to hear the appeal and particularly for the panel to undertake its deliberations. The defects in the investigation report were put to Ms Taylor who, albeit reluctantly, accepted that a number of the claimant’s grounds of appeal should have been upheld. Ms Taylor said in her evidence that she could recall Ms Grieves saying at the appeal hearing that the dismissing panel had taken into account the claimant’s “dishonesty” in coming to its decision to dismiss the claimant. Again, no mention is made of that in the minutes of the appeal hearing or in the letter dismissing the appeal. The tribunal found that the appeal process and the appeal hearing had not been conducted in a fair or reasonable manner.

123. In terms of the unfair dismissal claim, the tribunal was not satisfied that the respondent had established that its reason or its principal reason for dismissing the claimant was a reason related to her conduct. Those responsible for the claimant’s dismissal and the dismissal of her appeal did not “genuinely believe” that the claimant had committed any acts of misconduct which are now alleged. There could be no such genuine belief because there were no reasonable grounds for that belief. There could be no reasonable grounds because there had not been a reasonable investigation. The respondent’s decision to dismiss the claimant fell outside the range of reasonable responses open to an employer in all the circumstances of this case. This was an employee of thirty-eight years unblemished service who was suspended from her role in circumstances where that suspension was unjustified and unreasonable. The investigation which followed that suspension was inadequate and unreasonable. The investigation did not produce any qualitative evidence which could have led a reasonable employer to decide to dismiss the claimant in those circumstances, for reasons related to her conduct. The procedure followed by the respondent was unreasonable and unfair. For those reasons the claimant’s complaint of unfair dismissal is well-founded and succeeds.

124 Turning now to the claimant’s complaint of wrongful dismissal, the tribunal is not satisfied that the respondent has established that the claimant’s conduct amounted to gross misconduct which could possibly have justified summary dismissal. Nothing which the claimant was accused of doing could be described as seriously inconsistent or incompatible with her duty as a clinical care coordinator. On an evaluation of the primary facts, the tribunal was satisfied that nothing done by the claimant could be described as conduct of such a grave and weighty character as to amount to a breach of the confidential relationship between the claimant and the respondent such as would render the claimant unfit for continuance in the respondent’s employment and give the respondent the right to discharge her immediately. With regard to the allegations of professional conduct, inappropriate behaviour, bullying and harassment, there were simply no facts which could lead the respondent to come to that conclusion. With regard to the allegations relating to the charitable monies, the tribunal found that the claimant’s failure to deposit those monies with the respondent’s cashier was no more than an oversight and which did not involve any element of “dishonesty”, applying the objective standards of ordinary reasonable and honest people armed with all the relevant information. For those reasons the claimant’s complaint of wrongful dismissal is well-founded and succeeds.”

“126. In the claimant’s case before this tribunal, Ms Fairhall had made a number of protected disclosures to a number of different people within the respondent’s hierarchy. That hierarchy included Julie Lane (Director of Nursing), Julie Parks (Associate Director of Community Services) and Steve Pett (General Manager). It was those three senior managers who met immediately after the claimant expressed her intention to invoke the formal whistleblowing policy, and decided that the claimant should be suspended. From the date of that decision, the respondent’s substantial HR resources were engaged in the administration of the suspension, investigation, disciplinary process and appeal process. Those same HR resources were also engaged in the administration of the claimant’s grievance, the grievance hearing and the grievance appeal. The claimant made it known to Mary Grieves and Lynn Taylor that she believed the reason why she was suspended, investigated, disciplined and dismissed, was because she had made those protected disclosures. Ms Grieves and Ms Taylor both confirmed under cross examination that they were aware that the claimant had raised a grievance, but both denied that they were aware of the exact contents of the grievance. Both denied that their respective decisions to dismiss the claimant and dismiss her appeal against dismissal, were in any way influenced by the fact that she had made those protected disclosures. The tribunal did not accept their evidence in that regard. The original decision to suspend the claimant and to instigate a formal investigation was taken by the most senior member of the hierarchy, Julie Lane. The tribunal found it likely that thereafter, the task of investigating the claimant, instigating disciplinary proceedings and ultimately dismissing her, were influenced by that hierarchy to such an extent that it was appropriate to attribute their motivation to those carrying out the process which led to the dismissal. The respondent has failed to produce any evidence to explain the claimant`s treatment and provided unsatisfactory explanations for other matters.”

“128. In coming to that conclusion, the tribunal particularly takes into account the close proximity in time between the last of the claimant’s disclosures and the declared intention to formerly engage the respondent’s whistleblowing policy, and the decision to suspend the claimant. The tribunal also takes into account the unreasonable nature of the investigation, the delay in undertaking the investigation and the length of the suspension. The tribunal particularly takes into account lack of credible evidence from the respondent’s witnesses who gave evidence to the employment tribunal. The tribunal found that Ms Grieves in particular was disingenuous in attempting to “beef-up” the respondent’s case by stating that the dismissing panel had in fact found the claimant to have been dishonest with regard to the charitable monies and that it was this “dishonesty” which led to her dismissal. Lynn Taylor’s evidence was little better, when she stated under cross examination that she did recall Ms Grieves mentioning at the appeal hearing that they considered the claimant to have been dishonest, yet there was no mention of such dishonesty anywhere in the notes of the hearing, the outcome letter, anywhere in Ms Taylor’s witness statement or indeed in any part of the respondent’s pleaded case.”