Mrs J Willis v Portsmouth City Council: 1406166/2019
JUDGMENT
[1]The claimant’s claim that she was unfairly dismissed is not well founded and is dismissed. ---1---REASONS
[1]By this claim the claimant brings a claim of unfair dismissal. I have heard evidence from Ms Kim Willis, the claimant’s daughter; and for the respondent from Ms S Midgley, Mr A Biddle, and Mr J Hill. The claimant herself suffered a stroke in November 2018 from which she has not made a sufficient recovery to participate in these proceedings. She has, however provided a witness statement to which I will give appropriate weight. For the avoidance of doubt, however, the claimant’s evidence, in which she denies the allegations that led to her dismissal, is not of central significance in this case. I am not making any findings of fact as to what occurred but, in summary, determining whether the conclusions the respondent reached as to the alleged misconduct, and the sanction for it, were ones reasonably open to the decision makers on the information available to them at the time. It follows that the claimant’s inability to give oral evidence results in little or no prejudice to her in the circumstances of this case. Amendment[2]The hearing of the claim took place on 4th / 5th May 2021 but there was insufficient time to give an oral judgment on the day and Judgment was reserved. On 9th May 2021 the claimant’s daughter who represents her emailed applying to amend to include claims of “discrimination/harassment and disability discrimination”. No details of the allegations were provided. Unfortunately the case has concluded in that all the evidence has been heard and submissions made. All that remains is for the judgment to be delivered. Even if it is still technically possible to make an application to amend, in circumstances in which the case has effectively concluded in my judgement the prejudice of having to re-open the issues and potentially re-hear the whole case if the application were granted means that it is simply too late for the application to be considered. To be clear if the application were granted it would require permission to be given to the respondent to respond to the allegations, and it could not be determined on the existing evidence and would require a further hearing. In those circumstances in my view the application is bound to fail. If the application had any prospect of success I would have to give directions for the claimant to lodge a draft Amended Particulars of Claim and to give the opportunity for the respondent to respond and object. However in my judgement something truly exceptional would be required for a claimant to be permitted to amend to add wholly new legal and factual claims after the evidence has been heard and in the circumstances that does not appear to me to be a useful or practical course to take. Facts[3]Respondent operates an adult day care centre at the Henderson Road Centre in Portsmouth. The claimant was employed from November 2013 as a Support Care ---2--- Worker. The Unit Manager was Ms Janice Webb, the assistant manager Mr Duncan Mathewson, and two of the claimant’s colleagues were Ms Donna Hughes and Ms Kayley Newham.[4]The events which led to the claimant’s dismissal began on 3rd October 2018. The exact events are in dispute but in broad terms it is not in dispute that the claimant entered the lounge with a service user GO. In the course of her interaction with him within the lounge she was observed to act in ways which were considered by three witnesses (Donna Hughes/Kayley Newham/Duncan Mathewson) as physically and verbally inappropriate and unacceptable. The claimant does not accept this and maintained throughout that her conduct, albeit “firm but fair”, was appropriate and in accordance with her training and the respondent’s policies. The specifics of the allegations will be set out below in the discussion and analysis of the claimant’s contention that the accounts of her alleged misconduct are too inconsistent to be reliable.[5]The central question in the case is, therefore, whether it was reasonably open to the respondent to accept the accounts of the witnesses as broadly accurate. As is set out below a number of the allegations include breaches of the Violence Incident (work related) Reporting and Management Policy; the Code of Conduct; and that she had committed gross misconduct as defined within the Formal Action Policy. It is not, and never has been, the claimant’s case that if she had acted as described by the witnesses, and as found by the disciplinary panel, that she was not in breach of those policies and had not committed gross misconduct; and it is not the respondent’s case that she had done so even on her own account of events. It is, therefore, not necessary to set them out in detail; but for the avoidance of doubt and given that there is no dispute before me I accept that if it was reasonably open to the respondent to accept the factual accounts and make the factual findings that it did, that it also reasonably considered the claimant to be in breach of those policies.[6]As is set out in greater detail below it is alleged that the first part of the incident was witnessed by Donna Hughes and Kayley Newham. Ms Hughes then left the room to inform Mr Mathewson who came into the lounge a few minutes later and witnessed the second part of the incident. However, contact sheets setting out the accounts taken on the day were subsequently lost. The incident was not reported to Ms Webb until 17th October 2018, when she took the first accounts that were before the disciplinary panel. On 19th October the claimant was suspended. On 22nd October Ms Midgely was instructed to investigate allegations that the claimant’s “..physical interventions…were contrary to training and guidelines “; that she used an “aggressive tone which was inappropriate”; that she breached PCCs Violence Incident ..Policy sections 1,2 and 5.7”; that she had breached PCC’s “..code of conduct .. and brought the council into disrepute”; and that she had committed gross misconduct. In the course of the investigation she interviewed Donna Hughes, Kayley Newham, Duncan Mathewson and Janice Webb. The claimant, accompanied by her union representative Darin McCloud, was interviewed on 31st October 2018. Approximately a week later she suffered a stroke, the result of which was that she was not able thereafter to participate in the disciplinary proceedings or this hearing. ---3---[7]Ms Midgely concluded that Donna Hughes and Kayley Newham had given true accounts and that she did not believe that they had exaggerated what they had seen (report 9.2/9.7); and that Duncan Mathewson had given a factually accurate report of the incident (report 9.3). That “..on the balance of probabilities ..J assaulted GO by forcefully pushing him some distance across the lounge and forcefully pushing him downwards into a seat. Further I believe that Julie put herself and GO at risk of injury by placing herself inappropriately when supporting him”(Report 9.4); and that she spoke to GO using an “aggressive tone”, and that “the way she dealt with GO … was completely inappropriate and contrary to the way that vulnerable adults should be treated whilst in the care of PCC” (9.5). Although, because of his disabilities she could not interview GO she concluded that “..it is highly likely that GO felt distressed by J’s words and tone”. (9.5). Also she found (9.9) that “I believe there would be significant risk to service users in future if Julie continued to work at Henderson Road or a similar environment.” In consequence of these individual findings she concluded that “J’s physical interventions….were contrary to training and guidelines and amounted to physical assault.”; that “J used an aggressive tone…which constituted non-physical assault”; that she had breached the PCC Violence Incident Reporting Policy; breached the PCC Code of conduct and brought PCC into disrepute; and had committed gross misconduct as defined in the Formal Action Policy para 5.4; and recommended that a disciplinary panel be convened to take appropriate action up to and including summary dismissal.[8]By a letter dated 21st May 2019 the claimant was notified that as she had been absent from work for over six months and as there was no prospect of an imminent return that the respondent had decided to proceed with the formal disciplinary hearing. As the OH report of 26th March 2019 had indicated that she was not fit to participate in the process the case would be heard in her absence but she was entitled to be represented and/or make written submissions. On 10th June she was notified that the hearing had been re-scheduled at the request of Mr McCloud for 8th July 2019. The disciplinary allegations were identical to those recommended in Ms Midgely’s report.[9]The hearing was conducted Mr Andy Biddle (Director of Adult Care) as Chair, with Mr Rob Rimmer (Governance Performance and Projects Manager) with Ms Victoria Allison as HR support. The claimant did not attend but was represented by Mr McCloud and supplied a written statement setting out her account of events. The hearing lasted from 9.00 am – 6.00pm and the management case was presented by Ms Midgely. Ms Hughes, Ms Newham, Mr Mathewson and Ms Webb gave oral evidence and were cross examined by Mr McCloud and questioned by the panel.[10]By a letter dated 9th July 2019 the claimant was notified that she was summarily dismissed. The panel had found substantiated on the balance of probabilities the allegations of physical interventions which constituted physical abuse; of using a tone deemed to be aggressive commanding and inappropriate; that the claimant had breached the Code of Conduct. The allegation of bringing the council into disrepute was not upheld as there was no evidence that in fact that had occurred. The panel concluded that the substantiated allegations amounted to gross misconduct; and that ---4--- despite the mitigating factors that they decided that summary dismissal was the appropriate sanction.[11]In evidence Mr Biddle contended that the panel took the view that the claimant’s behaviour constituted physical abuse which, given her training and length of service she should have understood was unacceptable, that it was directed towards someone who due to his disability could not defend himself; and that her tone of voice was equally inappropriate. The inconsistencies in the witnesses accounts were not so significant that they undermined the central thrust of the evidence; and that the panel had seen and heard the witnesses and could therefore form an independent view of their honesty and reliability irrespective of the view Ms Midgley had taken. In respect of sanction they had considered lesser sanctions but as the claimant maintained that she had done nothing wrong that any further employment relationship was impossible.[12]The claimant appealed on four grounds: that the allegations were misleading and did not reflect her character or personality; that the claimant had never been physically or verbally abusive to anyone inside or outside the workplace; the claimant had worked in the care industry for many years and had acquired a depth of knowledge understanding and experience; and the decision to dismiss was unjust given that there was no tangible evidence in support of the allegations. In essence the claimant was contending that the factual conclusion that she had committed the misconduct alleged was not one reasonably open to the disciplinary panel.[13]The appeal was heard by a panel consisting of Mr James Hill (Director of Housing, Neighbourhood and Building Services) and Jason Horsley (Director of Public Health), assisted Jessica Birkett (HR). It took place on 2nd October 2019 having being rearranged from an earlier date to accommodate Mr McCloud’s attendance. The claimant did not attend but sent further written representations as did Ms Willis the claimant’s daughter. Although relatively lengthy they both essentially made the same point that given the inconsistencies in the witnesses accounts, given the witnesses apparent dislike of and animosity towards the claimant, and given the claimant’s unblemished record that it was unreasonable and irrational to accept the evidence of her accusers as either honest or accurate. In addition three statements from character witnesses which had not been before the original panel were provided.[14]The appeal was not a rehearing and it received no live oral evidence, and no new evidence other than the written character references. The hearing’s purpose was to determine whether the original panel’s decision was reasonable in the light of the evidence before it and considered against any new evidence. The management case was presented by Mr Biddle who set out the basis for the panel’s conclusions, and the claimant’s case was presented by Mr McCloud. The panel’s unanimous view was the disciplinary panel had considered all the evidence before it, had questioned the witnesses and “..reached an appropriate decision based on the evidence and the balance of probabilities.” As a result the appeal was dismissed. ---5---Conclusions
[15]As the claimant was purportedly dismissed for misconduct, which is a potentially fair reason for dismissal (s 98(2) Employment Rights Act 1996) there are four questions I have to answer. Firstly, was a belief in the misconduct the genuine reason for dismissal, in respect of which the burden lies on the respondent. Subject the answer to that question the tribunal must then go on to determine whether the dismissal was fair judged against the questions of whether the respondent had conducted a reasonable investigation; had drawn reasonable conclusions as to the misconduct; and reasonable conclusions as to dismissal being the appropriate sanction. Each of those questions is judged against the test of the range of reasonable responses.[16]In respect of the first question it has never been the claimant’s case that the disciplinary panel did not genuinely dismiss her because it believed that she had committed the misconduct alleged. In any event having heard the evidence of Mr Biddle and Mr Hill, I have no doubt that that was the genuine reason and that the respondent has therefore satisfied the burden of showing a potentially fair reason for dismissal.[17]Before looking at the individual Burchell questions I should record the respondent’s submission that whilst the claimant may not agree with the outcome of the process, that the claimant’s objections obfuscate what is essentially a straightforward claim. This is a perfectly standard disciplinary process in which the disciplinary panel was entitled to form the view it did. Specifically it heard from the eye witnesses who were cross examined by the claimant’s representative. In those circumstances unless there is some entirely exceptional circumstance it was self-evidently open to them to accept the evidence as accurate and the claimant’s case is bound to fail. In my judgment there is a good deal of force in that submission but I will deal with the individual objections as set out below.[18]The first Burchell question is whether the respondent conducted a reasonable investigation. On one analysis it clearly did. Ms Midgely was asked to investigate the specific allegations and interviewed those who witnessed the events and Ms Webb; and the claimant herself. She therefore obtained the accounts of all those directly relevant. One of the claimant’s criticisms is that Ms Midgely herself drew conclusions as to the truth of the allegations and made recommendations as to the appropriate course of action. She contends that this is not the function of the investigating officer. The respondent submits that it is, and that in any event irrespective of Ms Midgely’s conclusions, the conclusions of the disciplinary panel were its own. This will be dealt with in the discussion of the fairness of the disciplinary panel’s conclusions.[19]In terms of specific failings the claimant contends that Ms Midgely did not interview other potential members of staff who may have witnessed the incident. The claimant’s case is that there were other service users in the lounge and that there may have been other support workers present. Ms Midgely’s evidence is that she interviewed those who were known to have witnessed the incident. No one, including the claimant and Mr McCloud, suggested to her any other witnesses she should interview. Indeed this suggestion was never subsequently made by Mr McCloud on ---6--- the claimant’s behalf at any stage. The claimant suggests that by examining timesheets or staff records she could have discovered other members of staff who may have been on duty and may have witnessed the incident.[20]In my judgement this is not a reasonable criticism, and the investigation carried out by Ms Midgely was sufficiently thorough and on any analysis fell within the range reasonably open to the respondent.[21]The claimant contends that there were a number of procedural failings. I should make it clear that it was never suggested that it was inappropriate to continue with the disciplinary process; and even if it had been in my judgment waiting six months was sufficient and in the circumstances it was reasonable to determine the case in the claimant’s absence.[22]As set out above the claimant submits that it was inappropriate for Ms Midgely to form and set out her own opinion as to the reliability of the witnesses and their accounts of what had occurred and to present the investigatory case at the disciplinary hearing as this may unduly influence the panel; and for Mr Biddle to present the management case at the appeal hearing. The respondent contends that this is standard practice, that at each stage the decision makers are entirely capable of forming their own opinions and that it is not an unfair way of assessing or presenting the evidence. In my experience this is certainly a very common practice and I cannot see that in and itself it would render the dismissal unfair. Particularly in the circumstances of this case in which the disciplinary panel were able to assess the witnesses themselves, in my view the process adopted was one reasonably open to the respondent.[23]The next question, and the critical one in this case is whether the conclusions as to the misconduct fell inside or outside the range reasonably open the respondent. The claimant contends that it was not for a number of reasons. Firstly she contends that the claimant’s unblemished disciplinary record should have led the panel to conclude that she had not committed misconduct on this occasion. In my view this is very much a double edged sword. As set out in the disciplinary panel’s outcome letter the fact of the claimant’s long service contributed to the view that if she had acted as alleged that she knew or should have known that to do so was inappropriate.[24]Secondly she contends that GO was a much larger, younger and more powerful than the claimant and that it would have been physically impossible for her to have pushed him as alleged. Mr Biddle’s evidence was that he and the panel could not speculate as to matters such as this, they simply had to determine what had happened. If the evidence showed that the claimant had pushed the GO as alleged then that was what had occurred.[25]In my judgment I accept Mr Biddle’s evidence, and the respondent’s submission, that in respect of both these points they are not conclusive and that if the panel accepted the oral evidence of the witnesses that they were entitled to find that the events had occurred as described. In the end the claimant’s case stands or falls on the question of whether the witnesses’ accounts were reasonably and rationally capable of belief. ---7--- If they were the conclusions of the disciplinary panel fell within the range reasonably open to them.[26]As set out above the claimant’s case is that the inconsistencies in the evidence are so great that the accounts given could not reasonably have been relied on as the basis of any conclusion that the claimant was guilty of the misconduct.[27]The respondent submits that the conclusions reached were necessarily open to it. Firstly the panel had all the written accounts of all those who and witnessed the incident, and critically it had seen and heard the evidence of those witnesses. As a result, firstly the panel was perfectly placed to assess the significance of any inconsistency in the evidence both in and of itself, and when judged against the panel’s assessment of the honesty and reliability of the witnesses. Secondly the claimant’s case is that inconsistencies in the evidence make it inherently unreliable, whereas in truth the opposite is true. It would be far more suspicious if each witness had given identical accounts. Fundamentally, the tribunal would fall into error if it accepted the claimant’s submissions in that it would involve substituting the tribunal’s view as to the significance of any inconsistencies for that of the panel which had actually heard the evidence.[28]In my judgement the latter point is a good one to which the tribunal must remain alive; and unless the inconsistencies are so glaring and fundamental that they make reliance on the evidence impossible that it would be very difficult to hold that the panel which had heard the witnesses could not reasonably have concluded that their evidence was honest and accurate. I shall not address every point made by the claimant but will outline the primary alleged inconsistencies. If they are not sufficient to displace reasonable reliance on the witnesses’ accounts then the more minor points of necessity will not.[29]Before dealing with the inconsistencies themselves the claimant submits that in any event the panel should have discounted the evidence of Ms Hughes and Ms Newham because of the evident animosity between them, Ms Hughes in particular, and the claimant. She relies on Mr Mathewson’s comment in the disciplinary investigation that “Julie Willis and Donna Hughes really don’t like each other, and almost can’t stand each other”. She submits that with that evidence that Ms Hughes in particular should have been so discredited that no reliance could be placed on her evidence. In my judgement this is not a separate point but one reason for the claimant’s suggestion that their evidence was incapable of belief.[30]In a connected point she submits that the panel should have concluded that there had been a campaign of bullying and harassment against the claimant, of which these allegations were the culmination. The difficulty for the claimant is that this latter point was never before the disciplinary panel. It is accepted that the claimant had never made any formal complaint about it and that in her fact finding interview the claimant herself had referred to a personality clash, which is not dissimilar to Mr Mathewson’s account. In my judgement it is not a fair or reasonable criticism of the panel that they did not make findings about an issue that was not in reality before them. ---8---[31]To deal with the inconsistencies; the disciplinary panel concluded that the claimant had used both “pushing and restraint” in her dealings with GO, which constituted physical abuse. Donna Hughes first account describes GO attempting to push past the claimant, who responded by pushing GO back forcefully saying “Don’t you push me mate”, and almost colliding with another service users wheelchair. Following further conversation the claimant pushed GO forcefully down his shoulders into a chair. Her second account given on 18th October was broadly similar. She was interviewed by Ms Midgely on 30th October and again gave a similar account. The primary inconsistencies appear to be that she describes the claimant pushing GO all the way across the lounge whereas in the earlier account she had describe it as halfway; and she describes GO colliding with another service users wheelchair whilst in the earlier account she said he had almost done so.[32]In her first account Kayley Newham also describes GO pushing the claimant and the claimant responding “Don’t you dare push me” and pushing him back by holding his shoulders and forcefully pushing him into a chair at the end of the lounge. In her second account, given 18th October she gives a similar account as she did again when interviewed by Ms Midgely on 30th October. There are no obvious inconsistencies between any of her accounts but the major difference between her and Ms Hughes is that she makes no reference to a collision or near collision with another service user’s wheelchair at any stage.[33]In relation to the first incident in my judgement any inconsistencies are minimal and it is clearly reasonably possible to conclude from the evidence itself that the they are giving sufficiently similar accounts as to be reliable. Even without the disciplinary panel having heard the oral evidence of the witnesses there does not appear to me to be any inconsistency so significant that their evidence was bound to be rejected. Given that this was the most significant of the two incidents and that in my judgement the conclusions of the disciplinary panel were clearly reasonably and rationally open to them it is not necessary to consider the second incident in any detail. However for the avoidance of doubt the accounts of Mr Mathewson and Ms Newham are very similar in my judgment. Again even without the panel having seen the witnesses themselves there is nothing in the accounts which would make them obviously or necessarily incapable of belief; and the conclusions drawn as to the second incident were equally rationally open to them.[34]It follows that in my judgement the conclusion that the claimant had committed the misconduct alleged was one reasonably open them. As set out above this is primarily a factual dispute. There is no submission that even if the claimant had acted as alleged that it did not amount to gross misconduct; but for the avoidance of doubt in my judgement that conclusion was also reasonably open them.[35]In terms of the sanction once the panel had concluded that the treatment of GO by the claimant constituted physical abuse clearly very serious sanctions including dismissal were necessarily reasonably open to them; and I accept the evidence of Mr Biddle that the panel considered lesser sanctions but that in the absence of any recognition or acceptance by the claimant that she had done anything wrong there ---9--- was little by way of mitigation for them to consider. In the circumstances in my judgement dismissal fell within the range of sanctions reasonably open to them[36]As all of the four of the questions set out above have been answered in the respondent’s favour it follows that the claimant’s claim for unfair dismissal is dismissed.