Mrs Sarah Rees v Nuffield Health (a company limited by guarantee): 1300565/2017

EMPLOYMENT TRIBUNALS

Case No 1300565/2017

Between

Mrs Sarah ReesClaimant

Nuffield Health (a company limited by guarantee) FINAL HEARINGRespondent

Before

Employment Judge Camp

Mr J Gidney (instructed by counsel) for claimant

Mr I Hartley (instructed by solicitor) for respondent

Date 3 October 2017

REASONS

[1]These are the Reasons, reserved pursuant to rule 62(2) and with the parties’ agreement, for the decision given orally on 27 September 2017, recorded in a written judgment signed on 3 October 2017. The decision was that the claimant had been unfairly dismissed, but that any compensation should be limited pursuant to the ‘Polkey principle’ and for contribution / fault, but also increased because of the respondent’s unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures.

[2]The claimant, Mrs Sarah Rees, was employed by the respondent from 1 August 2010 until her dismissal for alleged gross misconduct with effect on 24 November 2016. She worked as a part time Senior Operating Department Practitioner at the respondent’s hospital in Hereford.

[3]Operating Department Practitioners are regulated health care professionals. The claimant, who is in her forties, qualified as one in or around 2001. Prior to that, she had been a Health Care Assistant. Her dismissal was potentially career-ending.

[4]This claim – for unfair dismissal only – has been made to appear much more complicated than it really is. In particular, various historical allegations have been made by the claimant and her witnesses against members of the respondent’s staff of no or very little relevance to the issues in the case. The misconduct for which the claimant was dismissed – completing and signing sections of a patient’s notes on 1 November 2016 before the patient even came in – was substantially admitted by her. On any sensible view, it was a very Case No: 1300565/2017 2402464 2 of 18 serious matter, and was a breach of the respondent’s policies and procedures as well as of the Health & Care Professions Council’s standards, specifically, the obligation to “keep full, clear, and accurate records for everyone you care for, treat, or provide other services to … as soon as possible after providing care, treatment or other services”. She went through a full disciplinary process, including an appeal. She was given a reasonable opportunity to tell the respondent anything, and present any evidence, she wanted to by way of mitigation; albeit the respondent fell well short in terms of procedural fairness. The respondent’s decision-makers – the dismissing officer and appeal officer – were suitably independent and neither had any axe to grind so far as the claimant was concerned. And the claimant accepted that the reason for dismissal was a reason relating to her conduct in accordance with section 98(1) and (2) of the Employment Rights Act 1996 (“ERA”).

[5]In theory, the issues in the case were:5.1 was the dismissal fair or unfair pursuant to ERA section 98(4);

5.2 remedy – the claimant sought compensation only;

5.3 the ‘Polkey issue’ (a.k.a. ‘Polkey principle’) – what adjustment, if any, should be made to any compensatory award to take into account the possibility that the claimant might, in time, have been dismissed in any event, pursuant to Polkey v AE Dayton Services Ltd

[1987] UKHL 8

, paragraph 54 of the EAT’s decision in Software 2000 Ltd v Andrews

[2007] ICR 825

;

5.4 would it be just and equitable to reduce the amount of the claimant’s basic award because of any blameworthy or culpable conduct before the dismissal, pursuant to ERA section 122(2), and, if so, to what extent;

5.5 did the claimant, by blameworthy or culpable actions, cause or contribute to her dismissal to any extent and if so, by what proportion, if at all, would it be just and equitable to reduce the amount of any compensatory award, pursuant to ERA section 123(6);

5.6 did the respondent unreasonably fail to comply with a relevant ACAS Code of Practice, if so, would it be just and equitable in all the circumstances to increase any award and if so, by what percentage (up to a maximum of 25%), pursuant to section 207A of the Trade Union & Labour Relations (Consolidation) Act 1992 (“section 207A”)?

[6]In practice, this was plainly an unfair dismissal and almost as plainly, any basic and compensatory awards were going to be reduced significantly for contribution / fault and any compensatory award increased to some extent pursuant to section 207A. The real questions for me were: the Polkey issue; just how high should the reductions for contribution / fault be?; what should the percentage increase pursuant to section 207A be?

[7]So far as concerns the law potentially in play, this appears substantially in the issues as set out above. My starting point in relation to whether the claimant was unfairly dismissed was the wording of ERA section 98 itself. I also had in mind the well-known ‘Burchell test’, originally expounded in British Home Stores Limited v Burchell

[1978] IRLR 379

. I note that the burden of proving ‘general Case No: 1300565/2017 2402464 3 of 18 reasonableness’ under ERA section 98(4) is not on the employer as it was when Burchell was decided; the burden of proving a potentially fair reason under subsection (1) is [on the employer], but the burden is neutral under subsection (4). The claimant conceded during the hearing that the first limb of the Burchell test was satisfied, i.e. that the respondent’s decision-makers decided she should be dismissed because they genuinely believed she was guilty of gross misconduct.

[8]In relation to ERA section 98(4), I considered the whole of the well-known passage from the judgment of the EAT in Iceland Frozen Foods v Jones

[1982] IRLR 439

at paragraph 24, which includes a reference to the “band of reasonable responses” test. That test, which I may also call the “band of reasonableness” test, applies in all circumstances, to both procedural and substantive questions: see Sainsbury’s Supermarkets Ltd v Hitt

[2002] EWCA Civ 1588

[9]Hand in hand with the fact that the band of reasonableness test applies is the fact that I may not substitute my view of what should have been done for that of the reasonable employer. I had to guard myself against slipping “into the substitution mindset” (London Ambulance Service NHS Trust v Small

[2009] IRLR 563

at paragraph 43) and to remind myself that only if the respondent acted as no reasonable employer could have done was the dismissal unfair. Nevertheless (see Newbound v Thames Water Utilities Ltd

[2015] EWCA Civ 677

): the ‘band of reasonable responses’ test is not infinitely wide; it is important not to overlook ERA section 98(4)(b); Parliament did not intend the tribunal’s consideration simply to be a matter of procedural box-ticking.

[10]This is a ‘gross misconduct’ case and in Arriva Trains v Conant

[2011] UKEAT 0043_11_2212

(22 December 2011), the EAT provided a helpful summary of the law to be applied by employment tribunals in such cases in paragraphs 23 to 32 of their Judgment, paragraphs that should be deemed to be incorporated into these Reasons. Claimant’s counsel, rightly, highlighted the need for an employer to take particular care in relation to potentially career-ending dismissals, in accordance with (amongst other relatively recent Court of Appeal decisions) Salford Royal NHS Foundation trust v Roldan

[2010] IRLR 721

and Crawford & anor v Suffolk Mental Health Partnership NHS Trust

[2012] IRLR 402

[11]In relation to the issue of fairness under ERA section 98(4), I also took into account the ACAS Code of Practice on Disciplinary and Grievance procedures, at the same time bearing in mind that compliance or non-compliance with the Code is not determinative of that issue.

[12]So far as concerns remedy, in addition to the cases mentioned above, in relation to ERA sections 122(2) and 123(6) I considered Nelson v BBC (No 2)

[1980] ICR 110

, CA, paragraphs 27 to 30 of the decision of the EAT in Langston v Department for Business Enterprise and Regulatory Reform

[2010] UKEAT 0534_09_0903

and paragraphs 8 to 12 of the decision of the EAT in Jinadu v Docklands Buses Ltd

[2016] UKEAT 0166_16_3110

. Case No: 1300565/2017 2402464 4 of 18

[13]In these Reasons, I am not going mechanistically to go through the Burchell test, nor am I going to address every single allegation and argument that has been made and raised by the claimant and on her behalf. Instead, I shall focus on the things that have led me to decide the dismissal was unfair and on one or two other matters the claimant relies on as making the dismissal unfair, but in relation to which I disagree.

[14]By way of background, I refer to the parties’ cast list and chronology of events, annexed to these Reasons and which forms part of them.

[15]During 2016, the claimant got into the habit of preparing patient notes in advance of admission. She did this not from any bad motive but because she was very busy in her work; doing so helped her keep up to date. By the end of the hearing, my understanding of the position was as follows:15.1 a distinction can be drawn between ‘pre-preparing’ patient notes, which is acceptable, and ‘pre-completing’ patient notes, which is not. The claimant did not make or understand the distinction during her employment, nor during the hearing before me;

15.2 there is potential for legitimate disagreement as to precisely where the line between permissible pre-preparation and impermissible precompletion of notes is to be drawn, but not as to whether what the claimant did fell on the wrong side of the line;

15.3 for example, prior to a patient’s admission, at least in relation to a patient who is well known to the respondent: everyone seems to agree that it is permissible for someone in the claimant’s position to write in the care record details of their GP, the name of the consultant, and details of the procedure they are being admitted for; there is room for disagreement as to whether it is acceptable to write in details of their next of kin and (without signing the relevant part of the notes) whether they have any allergies; nobody except for the claimant seems to think it might be appropriate, or at least permissible, to complete and sign the patient discharge form, the care record, and the post-procedure care checklist, as if the patient had been admitted and operated on, had received all necessary post-operative care and checks, and had been discharged with medication to take home;

15.4 the claimant was to an extent encouraged, or at least permitted, to preprepare notes by the respondent. On two occasions, in late June and early July 2016, Sébastien Seal, the Theatre Manager and the claimant’s direct line manager, and on one occasion, in September 2016, the Matron, Val Gardiner, had either asked the claimant to, or knew that the claimant was (or was going to) pre-prepare notes for theatre lists. In theory, her case seemed to be that the respondent “knew and approved”1 of her practice of pre-completing patient notes. However, on the evidence (including the claimant’s own evidence, taken as a whole), a couple of her managers condoned the pre-preparation of notes, but they were completely unaware of, and gave no direct or indirect indication to the 1 Paragraph 2 of claimant’s counsel’s skeleton argument. Case No: 1300565/2017 2402464 5 of 18 claimant that they approved of, her completing and signing notes in such a way as to give the appearance that clinical steps had been taken in relation to a patient who had yet even to be admitted.

[16]On 1 November 2016, the claimant pre-completed a patient’s notes in the way just described. The patient was due to have cataract surgery on that day. For whatever reason, the surgery did not take place; the patient did not even attend hospital that day. The notes were left in their pre-completed state. Although they were not fully completed, anyone from outside looking at the notes would probably assume that the patient had come in and had had the operation, but that due to an oversight the procedure hadn’t been properly written up. It seems to me that someone looking at the notes was much more likely to make that assumption than to guess the true position.

[17]It appears to have been a ward clerk who first noticed the discrepancy between the notes and reality. Exactly what happened next is a little unclear, but around 9 November 2016, Mr Seal, Val Gardiner, and Trude Thomas from HR were made aware of it and Val Gardiner, possibly in conjunction with Trude Thomas, decided that Mr Seal should be the investigating officer.

[18]On 11 November 2016, Val Gardiner prepared a statement about what had happened, to which I refer. The statement didn’t do substantially more than record the fact that notes had been completed by the claimant in relation to a patient whose operation had in fact been cancelled.

[19]Much was made on the claimant’s behalf during the hearing before me about the following phrase in Val Gardiner’s statement: “the patient care record had been completed for the 1st November 2016, recording that [particular medication – two lots of eye drops] had been administered x 4 at regular intervals”. The reason much was made of this was because (or so it was said on the claimant’s behalf) the care record did not record this; although the claimant had written in the words “one drop” and the date “1-11-16” four times in the appropriate place in the records in relation to two types of eye drop (i.e. eight times in total), in anticipation of them being administered four times each at regular intervals, she had not put a time or her initials in the records as she would have done had they actually been administered.

[20]In my view, this is a non-issue. I think Val Gardiner could genuinely have taken the view that the way in which the claimant had pre-prepared or pre-completed this part of the notes could give the misleading impression that the eye drops had actually been administered but that, say, the claimant had neglected to write her initials. More importantly:20.1 Val Gardiner was not a decision-maker;

20.2 by the time the decision-makers came to make their decisions, they had looked at the records themselves and had formed their own views about what they did and didn’t show;

20.3 neither of them made their decisions on the basis a false belief that the claimant had pre-completed this part of the notes (which I’ll call the “drug chart”); Case No: 1300565/2017 2402464 6 of 18

20.4 their concerns about improper pre-completion of notes wholly or largely stemmed from other parts of the notes, which had indeed been improperly pre-completed and not merely pre-prepared – or, at the very least, which they reasonably believed had been improperly precompleted.

[21]On or about 15 November 2016, out of the blue from her point of view, the claimant was called into a meeting with Mr Seal and a notetaker from HR. At the start of the meeting, she was told no more than that Mr Seal was investigating an irregularity relating to patients’ notes. During the meeting, the claimant and Mr Seal went through at least some of the relevant notes together, although Mr Seal retained them and did not provide the claimant with a copy. There are meeting minutes, which I accept as broadly accurate. The claimant criticises the way in which the meeting was conducted. But, although there was no need for the respondent to act as it did in relation to this investigatory meeting and although it could reasonably have given the claimant some warning and time to arrange for someone to accompany her, and although the questioning could have been less interrogative than it seems to have been, I don’t think the respondent’s actions were outside the band of reasonableness in this respect.

[22]At the end of the meeting, the claimant was suspended, on full pay. This was unreasonable. No thought went into whether or not to suspend her; it was done automatically. Mr Seal was not planning on carrying out any further investigations and nothing I can discern might have made suspension appropriate. She was provided with a suspension letter (dated 15 November 2016; clearly a pro forma) which referred to an “investigation into allegations of falsification of medical notes”. The letter stated, inaccurately, that “A thorough investigation will be carried out during the period of your suspension”, and, unnecessarily, that she was not to “discuss the investigation with your colleagues”. This last comment echoed something inappropriate Mr Seal had said to her at the investigatory meeting, recorded in the meeting notes as, “Do not discuss this with anyone as any sanctions may be uplifted”.

[23]On the same date, Mr Seal completed his investigation report. From his point of view, he was investigating two allegations: essentially, whether the claimant had indeed done what she had done on 1 November 2016 in relation to the patient’s records; whether or not this was her common practice. His basic conclusion was to the effect that the claimant admitted both. That was a reasonable conclusion for him to draw. A gloss he put on his conclusion was that the claimant “freely admitted” that she “knowingly” broke the HCPC Code of Conduct. That would not have been my interpretation of her words, but it was a permissible ‘take’ on the whole of what she had told him during the investigatory meeting.

[24]One part of Mr Seal’s report that was wrong was his statement that the claimant, when she was being interviewed, “quickly appreciated the severity of her actions”. She didn’t. She continued not to do so even up to trial. In her claim form, she naïvely stated, “This whole incident could have been sorted out with a ‘quiet chat’ and a possible re-appraisal of management instigating and therefore condoning the practice of ‘pre-preparing’ notes.” Similarly, in paragraph 46 of her witness statement, she accused the respondent of trying to “upgrade my Case No: 1300565/2017 2402464 7 of 18 paperwork error into something far more serious”. Had she appreciated the seriousness of what she had done, and had she expressed real contrition at the disciplinary hearing, it is possible that things would have turned out differently for her.

[25]At some stage between 9 November 2016 and the disciplinary hearing on 24 November, for his own purposes, Mr Seal spoke to a couple of members of staff and went through patient case notes from various surgical out-patient lists looking for any signs of impermissible pre-completion by anyone other than the claimant. Signs of pre-completion would have been things like lots of crossings out of entries, particularly signed entries. He found none. What he did was described as an audit of patient records, but my impression was that that was rather overstating the case.

[26]Mr Seal didn’t refer to this ‘audit’ in his report, nor did he tell anyone about it until after the claimant had been dismissed, when he responded to an email from Trude Thomas of 20 December 2016 concerning whether he was aware of the claimant pre-completing patient notes. It was argued on the claimant’s behalf that his failure to raise it earlier – if an audit was done at all – made the dismissal unfair. I don’t accept that argument. Had he uncovered something that supported her case and had he then failed to tell the decision-makers about it, that would be one thing; but there is no evidence of anything of that kind. Him failing to pass on information which undermined a defence or partial defence the claimant was putting forward could only help her.

[27]In closing submissions, the claimant’s primary case on the ‘audit’ had become that it wasn’t done at all and that Mr Seal was lying about it. The main basis for that submission was an argument to the effect that it was inconceivable Mr Seal would have failed to mention it in his report had he done it. Even were I to assume the ‘audit’ had been done before the report was completed – and the evidence about this was less than clear – I don’t find it particularly surprising that Mr Seal didn’t refer to it. He was not investigating whether others precompleted notes and the claimant had not alleged to him that they did. He did not undertake the ‘audit’ as part of his investigations but in his capacity as Theatre Manager, to set his mind at rest. The allegations he was actually investigating were, from his point of view, cut and dried.

[28]On 16 and 18 November 2016, the claimant wrote to and had a reply from the Hospital Director, Gareth Morris, about her situation. In her letter, amongst other things, she mentioned a very distressing personal situation she was having to deal with. Mr Morris stated in his letter that he would “pass on your concerns to the investigating officer for consideration”. Unfortunately, for whatever reason, her letter did not find its way to Mr Seal, nor to the dismissing officer, nor to the appeal officer. Clearly, it should have done; but the claimant didn’t try to discuss the letter at any stage of the disciplinary and appeal process and there was nothing preventing her from doing so had she wanted to. I don’t think this has any bearing on the fairness of dismissal.

[29]On 21 November 2016, the claimant was invited to a disciplinary hearing on the 24th “in regards to the falsification of clinical notes”. The hearing was conducted by Jason Finney, a Theatre Manager from another of the respondent’s hospitals Case No: 1300565/2017 2402464 8 of 18 with no significant connection to the claimant, Mr Seal, Val Gardiner, or anyone else involved. In advance of the hearing, the only things sent to the claimant were Mr Seal’s report and Val Gardiner’s statement. She wasn’t provided with the investigatory meeting notes, nor with copies of the clinical notes she was alleged to have falsified. This was a clear breach of paragraph 9 of the ACAS Code.

[30]There are notes of the relatively brief disciplinary hearing, which I again accept as broadly accurate, having no good reason to do otherwise. During the disciplinary hearing, the only part of the patient’s notes the claimant and Mr Finney looked at was the drug chart. Also, the claimant alleged that “senior colleagues” and “senior staff” were aware of what she was doing. Mr Finney did not look into that allegation at all before making his decision to dismiss. He did, however, adjourn the meeting in order briefly to look into the claimant’s suggestion that she pre-completed notes because she was busy on account of the number of patients on the list. He found that there had been only four patients on the list on the day. He reconvened the hearing to give his verdict: the claimant was guilty of gross misconduct and the sanction was summary dismissal. His decision was confirmed in a short letter dated 25 November 2016 that speaks for itself.

[31]The claimant appealed against dismissal by a letter of 1 December 2016. She had three grounds of appeal, one of which was misconceived but the other two of which were: that she hadn’t been provided with all relevant documentation; that what she had done was not gross misconduct and did not merit dismissal in any event. There was then a delay of two weeks or so in her appeal being acted upon; I don’t think this affects the fairness of dismissal to any extent. By a letter of 14 December 2016, the claimant was invited to an appeal hearing on the 19th with Lesley Turnbull.

[32]Ms Turnbull was a Theatre Manager from yet another of the respondent’s hospitals, again with no significant connection to anyone else involved, including Mr Finney. It is generally good practice for the appeal officer to be senior to the dismissing officer, in case an appeal officer would be reluctant to overturn a decision made by one of their peers. However, there was nothing in the evidence causing me to doubt Ms Turnbull’s word that she would have had no hesitation in allowing the claimant’s appeal had she thought that that was the right thing to do.

[33]The appeal hearing duly took place on 19 December 2016. The claimant was not provided with any additional documentation before it started. (Again, an oversight by HR seems to be to blame). In particular, she was not provided with the patient’s notes until part way through the hearing.

[34]Mr Seal was present during the hearing, partly as a witness and partly to present the ‘case for the prosecution’. In response to a question from Ms Turnbull, he mentioned alleged discrepancies in timesheets the claimant had submitted. This was not, I find, something Ms Turnbull thought relevant or took into account in her decision-making. Mr Seal had with him a bundle of patients’ records showing other instances where the claimant had carried out precompletion. Although these should have been shared with the claimant before Case No: 1300565/2017 2402464 9 of 18 the hearing, given the claimant admitted she had pre-completed notes a number of times, I don’t think this failure to share them with her is particularly significant in terms of the fairness of dismissal; other failures are much more important.

[35]I refer to the appeal hearing notes, which seem to be largely accurate, if not entirely complete. During the hearing, the claimant repeated her allegation that other staff knew what she was doing and in addition alleged that she had been encouraged to do it and that it was a widespread practice within the Theatre department at the Hereford hospital.

[36]Ms Turnbull, who from her point of view was undertaking a re-hearing and not merely a review of Mr Finney’s decision, decided to investigate these allegations. As already mentioned, Trude Thomas sent an email on her behalf on 20 December 2016. The email went to Val Gardiner as well as to Mr Seal. The gist of their email responses, sent on 20 and 22 December 2016, was that the allegations were false.

[37]I have carefully considered claimant’s counsel’s submission to the effect that Mr Seal’s response in particular was dishonest or at best disingenuous. I acquit him of the charge of wilful dishonesty; and I am not sure that even disingenuousness is made out. His email comes across as him wanting, defensively, to make things worse for the claimant. But I don’t think this stemmed from knowledge that her were true and that if she was guilty then so was he, which was the gist of the claimant’s case. Instead, I think it came from anger at the claimant’s implied allegation that he had committed gross misconduct by asking her to pre-complete notes. As I shall explain in more detail below, I find it surprising enough that anyone in the claimant’s position and with her experience should have done this; I would find it staggering were a Theatre Manager, someone who qualified as a registered nurse in 1990, should have encouraged or even condoned it.

[38]For no better reason than that it did not occur to her to do so and that she was not advised by HR to do so, the results of Ms Turnbull’s further investigations were not passed on to the claimant. This was a breach of the spirit, if not the letter, of the ACAS Code and of a requirement of basic fairness, namely that (absent special circumstances) the employee should be told about, and given an opportunity to comment on, the evidence the employer intends to take into account when taking a disciplinary decision.

[39]On 22 December 2016, after receipt of Mr Seal’s email, Ms Turnbull wrote to the claimant informing her that her appeal was unsuccessful. There was no further right of appeal.

[40]As is probably clear from the above, one of the reasons I found the claimant to have been unfairly dismissed was the respondent’s repeated failures to provide her with relevant evidence and to give her a reasonable opportunity to digest it and comment on it. However, this was not the main basis or focus of my decision. The reason it wasn’t is my view that had the evidence, e.g. the patient records, been passed to her at the appropriate time, there was no significant chance of this making any difference to whether or not she was dismissed, nor Case No: 1300565/2017 2402464 10 of 18 to when she was dismissed. Putting to one side evidence to do with whether pre-completion was a common and encouraged practice, that evidence spoke for itself and showed no more and no less than that which the claimant admitted.

[41]Other than in relation to the provision of documents, I make no particular criticism of the respondent’s process up to the disciplinary hearing that is relevant to fairness of dismissal; not even of the investigation undertaken by Mr Seal. Her being unnecessarily and unreasonably suspended, for example, had no effect on the fairness of dismissal. The claimant admitted she had done what she was accused of doing and that she knew it was inappropriate. She did not suggest to Mr Seal that pre-completion was a common practice, nor that management knew what she was doing, let alone that she had been asked by management to do it. Mr Seal should not be blamed for failing, as part of his investigation, to look into things the claimant did not tell him about.

[42]If the claimant believed Mr Seal really had encouraged her to pre-complete patient notes – and my conclusion is that she didn’t – there is no adequate explanation for her failure to raise this with him during the investigation meeting. Although the claimant was evidently shocked and upset during that meeting, she was not tongue-tied. The whole conversation between the two of them at the meeting is inconsistent with her doing something that he knew about. The gist of his questions was, “Why have you done this?”, and the gist of her answers was, “This is just what I do; I know I shouldn’t”, and not, “Because you’ve asked me to”. Nowhere is there anything close to, “Why are you asking me these questions when you are well aware that I do this and have been doing it for some time?”.

[43]At the disciplinary hearing on 24 November 2016, the claimant’s defence to the allegations against her had developed a little, but it was still a long way short of where it has ended up in these tribunal proceedings. At that stage, all she was saying was that, to some extent, management knew what she was doing, in that she was “asked to prepare notes in advance”2. She was not suggesting others did the same as her. The phrase, “is common practice” appears at the start of the hearing notes, but that is a reference to what is stated in Mr Seal’s report about pre-completion being “her [the claimant’s; my emphasis] common practice”.

[44]From the disciplinary hearing onwards, and even into the tribunal final hearing, there was an ambiguity about exactly what the claimant was alleging her managers knew about and/or had encouraged her to do. This probably has a lot to do with her not distinguishing between pre-preparation and pre-completion of notes and is something I shall return to below. For present purposes, the important thing is that Mr Finney did not question the claimant about what she meant, or otherwise examine the issue at all. In particular, he made no attempt to find out whether she was making any allegation that went further than that management knew she was preparing notes and had on occasions asked her to prepare notes. If that was all she was saying then, as preparing notes was a perfectly acceptable practice, it was reasonable for him not to go any further. 2 Quotation taken from near the end of the disciplinary hearing notes. Case No: 1300565/2017 2402464 11 of 18 But given that he was deciding whether or not to dismiss in a potentially careerending way, I think it was outside the band of reasonable responses for Mr Finney to make that decision without first seeking clarification from the claimant and, if it became clear she was alleging management had asked her to precomplete notes and/or that they were aware of her pre-completing notes, carrying out further investigations into that allegation. This is a further factor making the claimant’s dismissal unfair.

[45]The next question I have asked myself is how would the Polkey principle apply if the factor just identified were the only source of unfairness in relation to the claimant’s dismissal. Applying that principle requires me to speculate and to ask: if the disciplinary hearing had progressed as it should have done, with Mr Finney asking the questions he should reasonably have asked about what the claimant meant, and him then acting appropriately on her answers, what would have happened?

[46]The phrase “senior colleagues aware” appears in the disciplinary hearing notes. I have already referred to the lack of clarity around what the claimant was alleging senior colleagues were aware of. There does seem seem to have been some evolution of this part of her case.

[47]I think that, originally, the claimant was saying no more than that managers were aware that she prepared notes. Despite her protestations to the contrary, I do not accept that she was confused in any relevant way about what was and was not permissible. Near the start of these Reasons, I accepted that there was scope for legitimate argument as to precisely where to draw the line. But what the claimant did was nowhere near any grey area. I found rather astonishing the suggestion that she could genuinely have thought it might be acceptable to sign and/or date entries in advance, particularly not (but not just) entries suggesting that things had happened which had not happened and/or that she had obtained and/or checked information when she had not done so.

[48]For example, one of the reasons for using templates for clinical and nursing notes instead of using blank sheets of paper is to provide a checklist. On the first page of the care record to which her disciplinary related, there is a box headed “Allergies / Drugs Intolerance or Contraindications”. Immediately after that heading are the words, “This section must be completed or marked “NIL KNOWN” before medicines can be administered. The section must be signed and dated for all entries.” The claimant had written “None known” and signed and dated it in advance. I think her explanation in evidence was that she knew the patient had no known allergies, intolerances or contraindications because he had been in recently.

[49]What the claimant seemed – to me and to the respondent – unable to grasp was that the whole point of this part of the care record was to remind staff to check the position every single time and to get them to sign to show they had checked the position every single time. And that what the exercise was all about was patient safety, not mindless red tape. Although, given the patient’s recent admission, it was arguably reasonable for the claimant to write “None [or nil] known” in advance, there is no sensible basis for supporting her signing and Case No: 1300565/2017 2402464 12 of 18 dating that entry in advance. By doing so, she was indicating that she had checked something at a time she had not checked it.

[50]Everything written, above, about the importance of accurate note-keeping and the dangers of pre-completing notes mirrors the thought processes of Mr Finney and Ms Turnbull at the time they made their decisions.

[51]I return to how the claimant’s case evolved. During the appeal, I don’t think the claimant was actually alleging management had told her to pre-complete notes, nor, indeed, that others pre-completed notes. During the appeal hearing, she is recorded as having said, “If Mr Seal had come to me and said this is not great practice I would have stopped and asked for more help”, and, “I only needed someone to tell me it wasn’t best practice and I would have stopped”. Something similar seems to have been said during the disciplinary hearing. The question is: if Mr Seal had told her to pre-complete notes, why was she criticising him for not coming and telling her that pre-completing notes was “not great practice”, instead of criticising him for telling her to pre-complete notes? To me, the obvious answer is that what she was alleging he knew about and had condoned was a practice of preparing notes in advance and her point was that no one had told her that what she was doing went beyond permissible prepreparation.

[52]Further, in relation to what other staff did and what other staff knew: she alleged during the appeal hearing that other staff were aware, without it ever being specified what they were aware of; she was specifically asked during the appeal hearing whether other staff “pre-prepare” and the answer she is recorded as having given was a limited allegation that, “some staff fill in recovery and in the operating book before the patient comes in”. In other words, when given the opportunity to allege that other staff did exactly as she did, and that it was common practice, she didn’t make that allegation.

[53]The highest this part of the claimant’s case is put is in the respondent’s documents. Trude Thomas, in her email to Val Gardiner and Mr Seal of 20 December 2016, stated: “Sarah has alleged that she has been encouraged over a period of time to come in on days off and during annual leave to prepare notes, and therefore that you were both aware that she was completing patient notes ahead of time.” And in the dismissal letter of 22 December 2016, Ms Turnbull stated, “I acknowledge your claim that this practice is widespread throughout the Theatre department in Hereford.” To my mind, that was a very generous slant to put on what the claimant seems actually to have said.

[54]Putting the claimant’s case at its reasonable highest it is that:54.1 she was asked to prepare notes;

54.2 management must have known, because of the time it took her to prepare notes, that she was doing more than merely collating documentation;

54.3 in other words, the amount of time she took preparing notes in advance (for example, on 7 July 2016), which management authorised and for which she was paid, was consistent only with pre-completion – that is, Case No: 1300565/2017 2402464 13 of 18 with activity on the wrong side of the pre-preparation / pre-completion line.

[55]I reject that case because:55.1 there are activities that are permissible over and above simply collating documentation, including activities that management might think are not good practice but which don’t clearly fall on the wrong side of the line. The amount of time it would take the claimant to carry out all such activities would not be that much less than the amount of time precompletion took her;

55.2 good managers trust their staff to make proper use of their time and don’t closely monitor how much time staff are taking to do particular tasks, unless there is a known problem. Moreover, even if they notice that a member of staff has taken longer than expected to carry out a particular activity, they don’t leap to the conclusion that that member of staff must have been spending her time doing something improper in addition to what she was supposed to have been doing;

55.3 given how clearly on the wrong side of the pre-preparation / precompletion line what the claimant did fell, the idea that any manager who knew about it would turn a blind eye to it, let alone require the claimant to do it, is inherently very unlikely.

[56]Bearing all this in mind, I return to the question: what would have happened had the claimant been asked appropriate questions by Mr Finney? I don’t think she would have alleged that pre-completion of notes was widespread. To the extent she made the allegation at all, she didn’t mention it until the appeal hearing. It did not, for example, feature at all in her email of 1 December 2016 appealing the decision to dismiss. But even if she had made that allegation, and all of the allegations that she ultimately made by the end of the appeal process, the realistic best case scenario for her is that matters would have ended up, evidentially, as they were at the start of the tribunal final hearing. I think it would have taken at most two weeks from the disciplinary hearing for Mr Finney to carry out the further investigations and take the other steps he would have needed to carry out and take (such as getting the claimant’s comments on the further evidence). And what would, almost certainly, have happened at the end of that two week period would have been the claimant’s summary dismissal.

[57]Next, I ask myself a similar question in relation to the claimant’s appeal: what would have happened on appeal had everything up to that point progressed as it should have done, e.g. had the claimant’s allegations been clarified, and had Mr Seal’s and Val Gardiner’s responses to Trude Thomas’s email of 20 December 2016 (and any other additional evidence that was obtained) been provided to the claimant for her to comment on? The answer is much the same as to the question posed, above, in relation to the original disciplinary hearing and decision to dismiss. There is, though, one added complication: an allegation around what the claimant did being common practice (the “common practice allegation”) would have come out. Case No: 1300565/2017 2402464 14 of 18

[58]In my view, the way Ms Turnbull (with HR’s assistance) looked into the common practice allegation was, just about, adequate. Although the allegation has been a central part of the claimant’s case in these tribunal proceedings, it was far from the forefront in the appeal process. My main criticism of the appeal was the failure to give the claimant the opportunity to comment on the emails from Val Gardiner and Mr Seal before the appeal decision was made. I have no doubt that had she been given that opportunity, Ms Turnbull’s decision would have been the same. I note that the claimant has, in the course of these proceedings, had every opportunity to comment on those emails and that Ms Turnbull has been extensively cross-examined in connection with them, and with the claimant’s comments on them, without denting to any discernible extent the basis of Ms Turnbull’s decision or her conviction that it was correct.

[59]There is, though, a small chance that the further questioning of the claimant by Mr Finney and Ms Turnbull about precisely what she was alleging that I think ought to have occurred would have led to additional investigation of the common practice allegation. I therefore ask myself where any such investigation might have ended up. This involves me asking what the chances are of that allegation being proved true; and that, in turn, requires me to assess, as best I can, whether it was true. In short, based on the evidence before me, I don’t think it was:59.1 as above, I don’t think the claimant was actually alleging at the time that pre-completion was common practice, merely that pre-preparation was;

59.2 it is an inherently highly improbable allegation, for much the same reasons given above as to why it is inherently unlikely that pre-completion was condoned by management;

59.3 the only evidence before me specifically on pre-completion (as opposed to pre-preparation) was to the effect that the claimant was the only one doing it. Taking their evidence as a whole and carefully analysing it, not even the claimant or any of her witnesses seemed to me to be stating anything different.

[60]In conclusion, having gone through every limb of the Burchell test except for the last one (whether dismissal was within the band of reasonable responses) and applying the Polkey principle:60.1 this was an unfair dismissal;

60.2 correcting all of the defects in what the respondent did in connection with dismissal that made it unfair would not have altered the outcome, but would have led to the claimant being dismissed two weeks later than she in fact was.

[61]Finally, in relation to liability for unfair dismissal, I ask whether the respondent acted as a reasonable employer could have done in deciding that dismissal was the appropriate sanction. In my view, it plainly did. I have made clear in these Reasons how seriously I view the claimant’s conduct and the respondent’s decision-makers – Mr Finney and Ms Turnbull – viewed it similarly, and reasonably so. They considered sanctions short of dismissal and decided against them. What made it worse from their point of view (and I concur in this too) was the claimant’s apparent inability to appreciate its seriousness. Even Case No: 1300565/2017 2402464 15 of 18 though a different employer might have put the claimant on a final written warning instead, and even though it was a potentially career-ending decision, it was undoubtedly within the band of reasonable responses to dismiss.

[62]Accordingly, my decisions on liability and on the Polkey issue remains as set out in paragraph 60 above.

[63]I turn to the issues of contribution and fault under ERA sections 122(2) and 123(6). I settled on an 80 percent reduction to both the basic and compensatory awards mainly because:63.1 the parties’ representatives agreed that if a reduction was to be made, it should be by the same percentage under both sections;

63.2 any compensatory award was already being substantially reduced pursuant to the Polkey principle;

63.3 what the claimant did in relation to patient records was, in the context of her job, highly blameworthy and culpable and was entirely responsible for her dismissal;

63.4 it would not be appropriate to make a nil award in circumstances where the respondent made some very basic and fundamental errors during the disciplinary and appeal process – errors that could easily have led to substantive unfairness – that I would not expect such a large organisation, and one with a dedicated HR function, to make.

[64]The last issue concerned section 207A, in relation to which I decided that there were unreasonable breaches of the ACAS Code making it just and equitable in all the circumstances to increase any compensatory award by 15 percent. My main reasons for that decision are similar to those just given in relation to ERA sections 122(2) and 123(6) and are:64.1 no good explanation or excuse was put forward by or on behalf of the respondent for the breaches of paragraph 9 of the Code. Arguably, there were related breaches of paragraphs 4, 11, and 12 too and possibly an unrelated breach of paragraph 8. There were certainly breaches of the spirit behind these parts of the Code;

64.2 the breaches of paragraph 9 were unreasonable and the respondent really ought to have known better, but they were not wilful and the respondent did, broadly, follow a reasonable process;

64.3 given the modest size of any compensatory award, any percentage increase under section 207A would not be very much in money terms. Employment Judge Camp 20 November 2017 SENT TO THE PARTIES ON 20 November 2017 FOR THE TRIBUNAL OFFICE Case No: 1300565/2017 Annex to Reserved Reasons 16 of 18 ANNEX TO THE RESERVED REASONS FOR THE JUDGMENT OF 27 SEPTEMBER 2017 PARTIES’ CAST LIST & CHRONOLOGY OF EVENTS ____________________________ CAST LIST ____________________________ Individual Role Claimant Witnesses Sarah Rees Claimant. Dismissed on 24.11.16 on purported ground of conduct. Michelle Butt Staff nurse. Claimant’s representative at disciplinary hearing. Tara Chatterley Theatre Clerk. Karen Churchill Registered Nurse. Respondent Witnesses Sebastian Seal Investigating Officer. Claimant’s Theatre Manager, alleged to have asked the Claimant to ‘pre-prepare’ patient notes on 29.06.16 and 07.07.16. Jason Finney. Theatre Manager, who summarily dismissed the Claimant. Lesley Turnbull Theatre Manager, who dismissed the Claimant’s appeal. Others Val Gardiner. Matron. Gareth Morris. Director of Hereford Nuffield Hospital. Received a letter of concern from the Claimant after her suspension. Pam Emberton HR Manager and note taker at disciplinary hearing. Trude Thomas Regional HR Director. Helen Hughes. RGN. Completed preparation of patient notes on 30.06.16. Brogan Gough Provided Email in support of the Claimant. Sarah Pound Sebastian Seal’s deputy (accused of making derogatory comments about the Claimant). ____________________________ CHRONOLOGY OF EVENTS ____________________________ [Page numbers refer to pages within the agreed bundle. ‘RB numbers’ refer to pages in the Remedy Bundle. Initials then number refer to a paragraph within a witness statement, for example ‘SR3’ refers to paragraph 3 of the Claimant’s witness statement]. Date Event Page 05.03.71 Claimant’s date of birth (46 years old at her EDT). 2 01.08.10 Claimant commenced in employment with the Respondent in the role of Senior Operating Department Practitioner3 on a part-time (27 hour week) basis. 40 10.08.12 Testimonial letter from Jo Franks regarding the Claimant. 320 Undated Testimonial letter from Jo Franks regarding the Claimant. 321 04.04.13 HR Policy and Disciplinary & Grievance Policy. 179-194 05.12.13 Manual of Operating Theatre Department Policies and Procedures. 195-230 17.02.14 Group Health Records Standards Policy. Standard Operating Procedure for Health Record Keeping Standards – SOP5. 231-241 242-247 06.11.14 Health and Social Care Act 2008 (Regulated Activities) Regulations 2014. 248-303 Undated Testimonial letter from Sarah Butterfield regarding the Claimant. 322 2015 26.10.15 Claimant undergoes major spinal fusion surgery (due to spinal deformity condition known as Scheuermann’s Disease). 336 2016 Q1 3 Earning £1,537.00 net per month [6]. Case No: 1300565/2017 Annex to Reserved Reasons 17 of 18 .16 Health & Care Professionals Council (HCPC) Standards of Conduct, Performance and Ethics. 304-319 22.01.16 Welfare review meeting with the Claimant. 56a-b, 58 25.01.16 Return to work meeting with Claimant, Mr Seal and Ms Gardiner. Ms Gardiner presses the Claimant to increase her hours. 323a 26.01.16 Claimant attends an Occupational Health appointment. 60 01.02.16 Meeting Claimant and Mr Seal at which Mr Seal says he would expect the Claimant to be back to her normal hours within 6 weeks. 323b 05.02.16 Welfare review meeting with the Claimant. 60a 12.02.16 Claimant signed off work due to sickness. Claimant asserts treated coolly when brining in her fir note. 323c 25.02.16 Welfare review meeting with the Claimant. 62a 2016 Q2 05.04.16 Claimant attends a telephone absence meeting with Trude Thomas (HR Director) to agree details of a phased return to work. 63-65 11.04.16 Claimant returns to work. 66a & 68 17.05.16 Pre-prepared notes for patient before procedure cancelled. 337-339 20.05.16 Claimant asserts Val Gardiner told her she was lucky that she was allowed annual leave. 323d 22.05.16 Claimant asserts Val Gardiner challenged her time sheet, having watched her leave on CCTV. SR17 25.05.16 Welfare review meeting. 71a-c 07.06.16 Claimant asserts Val Gardiner, the Matron asked the Claimant to resign or take a Bank job following major spinal fusion surgery, stating she was lucky to have a job. 77, 170 323d, SR16 14.06.16 Occupational Health appointment: phased return to continue. 78, 335 29.06.16 Claimant asserts she was asked by Sebastian Seal, Theatre Manager, if she could ‘pre-prepare’ the Ophthalmic List patient notes for the following day, overheard by Tara Chatterly. (The Claimant did as asked). 166, SR22 [TC13-14] 30.06.16 Claimant asserts Helen Hughes, RGN, pre-prepared patient notes. Testimonial email from Carole Davies regarding the Claimant. 19 323 2016 Q3 07.07.16 Claimant asserts she asked Sebastian Seal if she could ‘pre-prepare’ the patient notes for the following day. (Additional pay is recorded on the Claimant’s pay sheet for this work, as the Claimant had not been rostered to work that day). 166 51 82a 10.07.16 Claimant time sheet for week ending Sunday 10.07.16. 51 20.07.16 Claimant asks Trude Thomas to look into whether Val Gardiner used the CCTV to check her times. 81 25.07.16 Claimant asserts Val Gardiner pressed her to take a new contract and told her she was lucky to have a job. 18, 170 15.09.16 Claimant asserts she pre-prepared patient notes on instruction from Seb Seal, which was commended by Val Gardiner, the Matron (and overheard by Michelle Butt). 166, 52 SR25, MB4 16.09.16 Early morning (7.30am cataract list) for which notes pre-prepared with knowledge and approval of Val Gardiner. SR25 19.09.16 Claimant time sheet for week ending Sunday 18.09.16. 52 2016 Q4 28.10.16 Drug chart completed by Claimant (Claimant asserts that it shows the two drugs Cyclopentolate and Phenylephrine were not prescribed as no time or initials recorded). 86 01.11.16 Claimant pre-preparing patient notes. Operation cancelled and patient did not attend. Claimant forgot to cancel the pre-prepared patient notes. Respondent asserts the notes indicated a successful completion surgery, when the surgery did not take place. Drug chart apparently showing administration of Cyclopentolate and Phenylephrine. Patient care records completed by the Claimant in advance, in respect of an eye operation which was postponed until 15.11.16. 14, SR26 28 87-91 09.11.16 Claimant alleges Sebastian Seal told her he had no concerns with her work. SR27 10.11.16 Val Gardiner takes patient notes, but tells the Claimant that she has no concerns. SR27 11.11.16 Val Gardiner prepares a statement for Sebastian Seal accusing the Claimant of recording and administering two drugs (Cyclopentolate and Phenylephrine) to a patient and completing patient care notes for an operation that did not proceed. 92-93 Case No: 1300565/2017 Annex to Reserved Reasons 18 of 18 Claimant asserts drug chart establishes no drugs were administered. Claimant does a full day of recovery duties in Theatre on instruction from Mr Seal. 86 15 15.11.16 Claimant attends an investigatory meeting (without notice) at which she is suspended. Mr Seal’s investigation meeting preparation notes. Investigatory meeting notes. Letter of suspension. Investigation report. SR28 94-95 96-97 98 99-100 16.11.16 Claimant writes letter of concern to Gareth Morris, Respondent’s Hereford Director. Trude Thomas (HR) declines to meet Claimant until investigation process complete. 101 102 18.11.16 Gareth Morris replies to the Claimant’s letter of concern. 104 21.11.16 Disciplinary invite letter claiming falsification of patient records in breach of HCPC Code and the Respondent’s Code. 105 24.11.16 Claimant summarily dismissed by Jason Finney, Theatre Manager for failing to follow rules on records and falsifying patient records; resulting in the Claimant’s effective date of termination after 6 years’ service. Manuscript notes of disciplinary meeting. Typed notes of disciplinary meeting. Michelle Butt confirms the drug chart was not signed or initialled. 15 108-112 113-114 MB11 25.11.16 Letter confirming Claimant’s summary dismissal. Claimant’s P45. 115 50 01.12.16 Claimant submits an appeal against her dismissal. 116 19.12.16 Appeal hearing (said to be a rehearing) determined by Leslie Turnbull, Theatre Manager and presented by Sebastian Seal. 121-127 20.11.16 Trude Thomas asks Mr Seal and Ms Gardiner if they aware Claimant was prepreparing patient notes. Ms Gardiner claims the assertion is a complete fabrication. 129 22.12.16 Mr Seal confirms ‘categorically that he is unaware of the Claimant pre-preparing patient notes’. Letter confirming the rejection of the Claimant’s appeal. 130 132 28.12.16 Claimant wrote to Gareth Morris for Val Gardiner’s PIN number for the NMC, which was refused. 133 30.12.16 Claimant notifies ACAS of a dispute. 1 2017 Q1 09.01.17 Claimant self-referred herself to the Health Care Professional Council. 323i-j 10.01.17 HCPC acknowledge the Claimant’s self-referral. Email from Brogan Gough in support of the Claimant. Email from Jodie Gwillim in support of the Claimant. 323k 324-325 326 11.01.17 Character reference for the Claimant from Mr Powers (Consultant). Character reference for the Claimant from Mr Deutsch (Consultant). Email from Anna Herbert in support of the Claimant. Email from Sharon John in support of the Claimant. 327 328-329 330 331 12.01.17 Val Gardiner raises a Fitness to Practise Concern to the HCP regarding the Claimant. 331a-i 15.01.17 Claimant refers Mrs Gardiner and Mr Seal to the NMC. 331j-i 30.01.17 ACAS Early Conciliation Certificate. 1 03.02.17 Character reference for the Claimant from Dave Atkiss. 333-334 09.02.17 NMC confirm no further investigation of Val Gardiner. 334a 13.02.17 Claimant’s Claim Form. 2-20 22.02.17 Theatre Department Meeting. 136-143 23.02.17 NMC confirm no further investigation of Sebastian Seal. 334c Undated Respondent’s Response Form. 21-34 Undated Claimant’s schedule of loss. 35-37 2017 Q2 11.04.17 Medical report regarding the Claimant prepared by Mr DS Marks (Consultant). 336 21.04.17 Case Management Order (EJ Self). 39a-f 08.06.17 Case listed for final hearing (postponed). - 20.09.17 Updated Schedule of Loss. RB41-43 25.09.17 Case listed for final hearing. 39e