Mrs J Davies v Phoenix Medical Supplies Ltd t/a L. Rowlands & Co.: 1600098/2017
JUDGMENT
The judgment of the Tribunal is that the claimant was fairly dismissed by the respondent for a reason related to her conduct on 26th October 2016. Her claim that she was unfairly dismissed fails and is dismissed. JUDGMENT having been sent to the parties on 23 February 2018 and reasons having been requested by the claimant in accordance with Rule 62(3) of the Rules of Procedure 2013, the following reasons are providedREASONS
[1]The Issues In a situation where the Claimant was employed by the Respondent as a Pharmacy Technician deployed at a General Practitioners' Practice at Strathmore, Chester Road, Wrexham from 7 September 1997 until her dismissal on 24 October 2016 ostensibly for a reason related to her conduct the Tribunal had to determine the following issues:1.1 The reason for the dismissal, and whether the reason, and if more than one the principal reason for the dismissal, was a potentially fair one such as a reason relating to the conduct of the Claimant.1.2 Whether the dismissal was fair or unfair in all the circumstances having regard to the reason shown by the employer for it with considering:1.2.1 Whether the Disciplining Officer had a reasonable and genuine belief that the Claimant was guilty of the conduct for which she was dismissed.1.2.2 Whether the Disciplining Officer’s belief was founded upon and made following a reasonable investigation.1.2.3 Whether dismissal fell within the band of reasonable responses of a reasonable employer, and in fact whether all of the actions of the Respondent in reaching and effecting its decision satisfy that test.1.3 The Claimant specifically requested consideration of the following issues:1.3.1 Whether the Respondent took due notice of her 19 years of service with a clean disciplinary record.1.3.2 Whether the issues of conduct for which the Claimant was dismissed were ever raised with her either informally or formally prior to the commencement of these disciplinary proceedings.1.3.3 Whether the Respondent gave adequate consideration of redeployment or some other sanction short of dismissal.[2]Facts2.1 The Respondent is a large employer with multiple stores, and sites within General Practitioners' surgeries, supplying prescription medication and pharmaceutical services. It has a HR Department and a separate Business Integrity Department dealing with employee relations and issues such as security including some disciplinary matters. It has an Operations Policy; it operates a number of written policies such as an anti- Bullying and Harassment Policy (page 44 of the trial bundle, to which all further page references refer unless otherwise stated) and its pharmacy staff are subject to General Pharmaceutical Counsel Standards of Conduct Ethics and Performance (page 26).2.2 The Claimant was employed by the Respondent at Strathmore Surgery, Wrexham as a Pharmacy Technician. She commenced her employment on 7 September 1987 and was employed until 20 October 2016 when she was dismissed for a reason related to conduct. Her contracted hours at Strathmore were 9am to 6pm and she would occasionally work additional hours at the Respondent's pharmacy at St George’s Crescent, Wrexham. The Respondent employs a number of staff at Strathmore including:2.2.1 Manager - Caroline Jones (CJ)2.2.2 ACT - Tiffany Lewandowski (TL)2.2.3 Pharmacist - Margaret Allen (MA) (and, in support, Gemma Davenport)2.2.4 Dispensers - the Claimant, Lisa Stenhouse (LS) and Chloe Jones (CJ)2.2.5 Counter staff - Lynne Manuel (LM) and "KP" until she left employment sometime around the matters in question but who was not involved in them.2.3 In September 2016 LS complained to her Area Manager, whilst other colleagues expressed general concerns, about the Claimant’s relationship with LS. LS and other colleagues made a number of allegations of misconduct by the Claimant towards LS. The staff also had a perception that the Claimant’s mood, attitude and work ethic (or perceived lack of it) was having a negative effect on some colleagues creating an adverse working atmosphere generally. These concerns were shared by the majority but were not shared unanimously by the Claimant’s colleagues.2.4 In the previous May, prior to any allegation of bullying and harassment, the Claimant’s Line Manager Caroline Jones (CJ) raised some issues of concern with the Claimant at the Claimant’s appraisal (page 51). CJ indicated that the Claimant needed to improve her working relationships (that is team work, inter-personal and communication skills). Whilst the Claimant said at the time that communication is a two-way process and that she found the working environment difficult at times, CJ concluded that the Claimant’s morale was low and that this affected her communication skills and practice as regards the remainder of the team and her general work output. Communication between the Claimant and some of her colleagues had become strained. Improvement was required from the Claimant within 6 months, that is between May and November 2016. LS’s formal complaint and the concerns voiced by other colleagues about the Claimant arose during this period that was specified by the Area Manager for C’s required improvement.2.5 That said the Claimant to that date had an unblemished 19 years record of employment with the Respondent during which time she had gained both experience and relevant qualifications. Her customer service and time keeping were acknowledged as being consistently good. The perceived problem related to the claimant’s communication with some colleagues, moods, creation of a bad atmosphere for colleagues and her poor work ethic when in a bad mood all of which was said to have a detrimental effect on the respondent’s operation at Strathmore.2.6 As a result of LS’s complaint Peter Copeland (PC) was appointed to investigate the matter and the Claimant was suspended on full pay pending investigation on 7 September 2016. I understand that PC is employed by the Respondent as a Business Integrity Officer; there is no suggestion that he was an inappropriate appointee.2.7 The chronology of the events regarding invitations to meetings, meetings and formal steps in the procedure is not in dispute. Both the disciplinary hearing and the appeals hearings were rearranged to accommodate the Claimant’s Trade Union Representative upon application to the Claimant without any issue. The Claimant was represented by USDAW at both hearings and was advised by it throughout up to and including receipt of the appeal outcome letter.2.8 Due notice was given by the Respondent to the Claimant of each meeting, that is the investigatory interview, the disciplinary hearing and the appeal hearing. The Claimant was provided with all relevant documentation so that she could prepare adequately. The Claimant was given all statutory procedural rights and was dealt with in accordance with the Respondent's policies and procedures which are in themselves consistent with the ACAS Code.2.9 The Disciplinary Officer was Mr. D. Tehan (DT) a Business Integrity Officer and a suitable candidate to hear the disciplinary hearing and decide an appropriate sanction if any was required. DT had 12 years’ experience and relevant training being familiar with the applicable ACAS Code and what is acknowledged as being “best practice”. DT received the investigation pack and read it. The pack included notes and recordings of the Claimant’s interview and nine statements from the Claimant’s colleagues, the Area Manager and a representative of HR. Some statements confirmed that the witness had not observed or been aware of bullying and harassment and suggested in mitigation of any perceived behaviour of that nature that the Claimant may have been having bad days but nothing more than was usual. Two of the nine interviewees gave evidence to that effect explaining away any perception which they would consider mis-perceptions of the Claimant. The other seven statements contained comments and observations putting forward pros and cons in respect of the Claimant and appeared to DT to be balanced views. He concluded on balance that there was significant evidence corroborating LS’s complaint against the Claimant and he did this on the basis of his consideration of the available witness evidence both supportive and not supportive of the Claimant.2.10 LS had complained of several occasions when the Claimant criticised her or ignored her or referred to her disparagingly such as by not using her name but only as "she" or "her". LS complained of being demeaned about a social event arranged in part by LS. She said that the Claimant on occasions stared at her in an intimidating manner and in general that the Claimant created an intimidating, hostile, environment at work. LS at the time was a trainee who had only commenced her training in 2016 and completed it in September 2016. She felt she was pitched against the Claimant who was a long-serving and well established senior employee. She felt that she was being undermined.2.11 Amongst the statements considered by DT which he felt were significant was that of CJ (Branch Manager) that the branch could not continue to function effectively in circumstances described above where there was evident hostility and the Claimant displayed an uncooperative attitude, producing what was considered to be a terrible atmosphere. She said that the Claimant’s working relationship with some colleagues had significantly broken down and that the Claimant was critical of new members of staff generally.2.12 DT said that most significant to him in his consideration of the disciplinary allegations into the Claimant was the statement of the selfemployed, and therefore independent, professional pharmacist Margaret Allen. She referred to examples of the Claimant staring at LS, being personally concerned about the Claimant’s conduct towards LS which she found to be unpleasant over a protracted period of time amounting to nastiness, with the Claimant creating a bad atmosphere and setting a bad example from a qualified person to a new member of staff.2.13 LS complained (page 60 and following) that she was not happy at work because of the Claimant, that she was upset on a couple of occasions and had been reduced to tears, that she felt “crap” on a number of occasions, feeling hurt, and sensing an “aura of fear”. She said that she was made to feel like as if she was worthless and said she had never experienced such feelings before encountering the Claimant.2.14 DT heard the Claimant’s side of the issues where the Claimant denied each specific example of alleged bullying and harassing conduct. The Claimant told DT, as she told the Tribunal, that the allegations against her were all fabricated as part of a witch-hunt or at very least, in respect of some of the allegations, there was a misunderstanding or she had been misheard and misquoted. I find that the Claimant was aware that LS and others were conscious of her bad moods at particular times and she knew that LS was both wary of her and upset by her conduct with which she persisted despite LS’s upset. The Claimant was at the time, and remains, in complete denial of wrong doing. She did not, and does not, acknowledge responsibility for the upset caused to LS and the concern or upset caused to others and has not displayed throughout (through the investigation, the disciplinary process and to date) any intention of changing her ways; she does not accept that her conduct or attitude was blameworthy.2.15 Having heard and read what he did DT concluded that the Claimant had bullied and harassed LS and had breached the Respondent's policies. He found that in so doing the Claimant had made her colleagues feel as they each described in their various statements. In the light of those findings, the Claimant’s denial, and her refusal to accept responsibility, DT concluded that the Claimant had breached the implied term of trust and confidence owed to the Respondent. The Respondent has a zero-tolerance policy in respect of bullying and harassment and does not accept it. That said it was not the Respondent's or DT’s view that dismissal was the only potential outcome of the disciplinary hearing; it was not. I accept DT’s understanding that each case would be dealt with on its own merits and that each and every allegation of bullying and harassment would not automatically lead to dismissal but that the appropriate sanction would depend on the severity of the misconduct and its frequency together with consideration of the effect of the conduct on a “victim”, whether or not there was acceptance of fault and contrition and a willingness to amend. I accept DT's evidence that the Respondent adopts a consistent and hard line but adjudges individual cases on their respective merits and imposes and seeks to impose appropriate sanctions taking all of the above factors into account. That was the approach adopted by DT.2.16 DT considered all the evidence, the relevant policies, the Claimant’s denial and mitigating circumstances including her record. DT considered all options before deciding that this was a case where a summary dismissal was appropriate. The Claimant was absent from work on 20 October 2016 and therefore DT confirmed the decision in writing on 25 October 2016 (pages 170 to 175).2.17 DT gave his evidence in a clear, cogent, and credible manner and his evidence was reliable in that it was supported where appropriate by the available documents. I find that his statement is a true reflection of his thought processes and conclusions.2.18 The Claimant appealed against the decision to dismiss her with the assistance of her Union. On request from the Respondent for further details of her grounds of appeal the Claimant provided further grounds at pages 176 to 179.2.19 Mr. I Fulton (IF) was appointed as Appeals Officer. IF is employed by the respondent as Regional Manager for Scotland. He is a member of staff experienced in dealing with disciplinary matters including appeals and he was a suitably appointed and appropriate Appeals Officer. IF’s evidence was given in a clear, cogent and credible way and his evidence seems reliable based on the other evidence before me. I find without repeating it verbatim that IF’s statement is a true reflection of his thought processes and conclusions. IF rejected the Claimant’s appeal by letter dated 13 December 2016 at pages 198 to 200. That letter accurately reflects IF’s conscientious consideration of the appeal and the reasons for his rejecting it.2.20 Other than assertions by the Claimant in her evidence to the Tribunal I found no other evidence to support allegations of any ulterior motive on the Respondent's part, that is any motive for the dismissal other than the reasons stated by DT and IF, or that this was a redundancy dressed up as a dismissal, or that there was any witch-hunt against the Claimant by her colleagues. The Claimant was dismissed for the reasons stated by DT and the appeal was rejected for the reasons stated by IF.[3]The Law3.1 Section 94 of the Employment Rights Act 1996 (ERA) sets out the right of an employee not to be unfairly dismissed by their employer and section 95 ERA provides for the circumstances in which an employee is said to be dismissed including where contract under which the employee is employed is terminated by the employer whether with or without notice.3.2 Section 98 ERA specifies potentially fair reasons for dismissal and at section 98(2)(b) includes as a potentially fair reason reasons that relate to the conduct of the employee.3.3 Section 98(4) ERA provides that where an employer has fulfilled the requirement of proving that the dismissal is for a potentially fair reason the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer, in this case conduct) depends on whether in the circumstances the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee. That question shall be determined in accordance with equity and substantial merits of the case. The relevant circumstances include the size and administrative resources of the employers undertaking.3.4 Whilst the above is an explanation of the statutory provisions, and the right not to be unfairly dismissed is a statutory right, case law assists by suggesting appropriate guidance to be taken into account including whether the Disciplining Officer had a reasonable and genuine belief that the employee conducted themselves as alleged to amount to misconduct in the light of, and therefore following and based upon, a reasonable investigation and whether dismissal fell within the band of reasonable responses of a reasonable employer. All steps taken by the employer ought to fall within that band of reasonable responses.3.5 It is not for the Tribunal to substitute its judgment. It is not relevant, and I have not considered, whether I would have dismissed the Claimant in the circumstances as that is not a consideration or an issue to be resolved at this hearing.[4]Application of Law to Facts4.1 Investigation: The Respondent's investigation was conscientious, thorough and comprehensive. All relevant individuals with evidence pertinent to the matters in question were interviewed and given an opportunity to say what they wanted. The Claimant was also given every opportunity to state her defence and mitigating circumstances. She was given sight of all relevant documents and an opportunity to respond to them and to the allegations facing her. The investigation was not limited to the interviews conducted by PC but, to varying degrees, it was continued appropriately and satisfactorily by DT and IF during the disciplinary and appeal hearings. At every stage exculpatory evidence was canvassed and considered by the Disciplining and Appeals Officers. The Respondent found evidence (denied by the Claimant) that the Claimant had bullied and harassed LS which had an adverse effect on the running of the Respondent's branch and a significant number (indeed the majority) of her colleagues.4.2 The Dismissing and Appeals Officers considered all relevant and appropriate information and factors in reaching the conclusion that the Claimant’s conduct amounted to misconduct and that the appropriate sanction was dismissal. Notwithstanding the Claimant’s denials, they had reasonable grounds for their conclusions. The majority of statements gave grounds for concluding that the Claimant was guilty of bullying and harassing LS and that this did affect the branch and staff not only as regards the general morale but its effectiveness in providing the service that the Respondent sought to provide professionally and efficiently at Strathmore. The Claimant remained adamant in her denials and did not acknowledge any responsibility for the alleged wrongdoing. She felt that the allegations were unfair and she did not show any self-reflection, awareness or insight. I conclude that the Disciplining and Appeals Officers held genuine and reasonable beliefs in the Claimant’s misconduct based upon the investigation and informed by it. The findings are of a serious nature and sufficient to base the conclusion of DT and IF that the Claimant’s conduct had seriously damaged and indeed destroyed trust and confidence with the Respondent. This conclusion in turn fed into the decision not to redeploy her to any other of the respondent's business outlets.4.3 Sanction: The main issue in the case revolved around whether dismissal fell within the range of reasonable responses of a reasonable employer. It is not a question of deciding whether all employers would have dismissed the Claimant in these circumstances or whether none would have. The question is whether some might reasonably dismiss. There was a genuine and reasonable finding that the Claimant was guilty of bullying and harassment which in the given circumstances, including her refusal to accept any responsibility whatsoever, seriously damaged or destroyed the relationship of trust and confidence. It is not enough for an employer to use the expression “breach of trust and confidence” as a catch-all and a handy way to bypass having to satisfy the legal requirements and tests described above. Trust and confidence is an implied contractual term and forms the basis or foundation of the relationship. The parties do not need to be personal friends or to enjoy each other's company but they must at least have trust and confidence in each other that the other will abide by the mutual obligations in the contract of employment. In this case it is clear that the Respondent no longer enjoyed trust and confidence that the Claimant would reciprocate on those mutual obligations. It felt she could not be trusted. This was not only because there was a poor, bad, or no proper working relationship between the Claimant and LS but because the Claimant’s general conduct demeanour and behaviour adversely affected the running of the branch and had a deleterious effect on the atmosphere and so affected most staff. The Respondent properly considered not only the Claimant’s conduct but particularly how that conduct was perceived by LS considering all of the circumstances including LS’s sensitivities, and concluded it was reasonable for LS to feel that she had been harassed and bullied by the Claimant. The Respondent satisfied itself that the behaviour was of such nature and duration that the situation could not be allowed to continue and was serious both as regards its effect on LS and on the remainder of the staff but also on the professional and efficient running of the branch. The Respondent was unable to satisfy itself on the basis of all that, that there would be no re-occurrence or that either redeploying the Claimant or administering a warning short of dismissal would correct behaviour which she felt did not need correction.4.4 I was referred to the case of A -v- B [2003] ILR 405. This is Authority for emphasising the importance of the investigation in circumstances where there was potential criminal liability and where a decision to dismiss would have an adverse long-term effect on an employee’s career prospect because of the implication of criminal activity. The instant case does not involve alleged criminal activity but even so and considering the high standard embraced by A -v- B I find that the Respondents investigation was reasonable and was sufficient. My findings, and indeed the findings of DT and IF, were specific to the Claimant’s relationships with LS and her colleagues at Strathmore and the environment that her conduct created which does not necessarily prevent the Claimant from enjoying future employment elsewhere with a different employer. In this regard the case is to be differentiated from findings of abuse of vulnerable adults or children or some other criminal activity such as is envisaged in A -v- B.4.5 I consider in the circumstances that dismissal fell within the range of reasonable responses of a reasonable employer. I re-iterate that it is not a question of what I would have done had I been the employer and I have made that a consideration.4.6 For all the above reasons my Judgment is that the Claimant was fairly dismissed on 20 October 2016 for a reason relating to her conduct.