Ms A Badejo v Royal Free London NHS Foundation Trust: 3307409/2018
JUDGMENT
The Employment Tribunal has jurisdiction to hear the claim for unfair dismissal as this claim was filed in time (as it was not reasonably practicable for the claimant to bring the claim in time and the claim was brought within a reasonable period thereafter).REASONS
[1]The claimant was employed by the Trust as a Healthcare Assistant in the Trust’s Spruce Ward. Her employment with the Trust commenced on 14 February 2008 and continued until she was dismissed, with payment in lieu of notice, with effect from 31 January 2018.The Evidence
[2]I heard evidence from the claimant on her own behalf and from Ms Jane Woollard of the respondent, the Divisional Nurse Director for Medicine and Urgent Care for Barnet Hospital. There was also a helpful bundle of documents.The Facts
[3]In May 2017, an alleged incident occurred in the Trust’s Spruce Ward and it led to disciplinary allegations being made against the claimant which led to a disciplinary hearing on 31 January 2018. The claimant was dismissed by Ms Woollard in the disciplinary hearing for alleged conduct reasons.[4]The decision to dismiss was confirmed in a letter dated 23 February 2018.[5]The claimant has subsequently accepted that the effective date of termination of employment was 31 January 2018.[6]The claimant issued a two-page appeal letter on 8 March 2019, received by the Trust on 9 March 2019. The claimant had been taking antidepressant medication for some significant time before the termination of her employment on 5 April 2018.[7]The ordinary time limit for unfair dismissal would ordinarily have expired on 30 April 2018 absent prior ACAS conciliation.[8]The claimant became significantly unwell following her dismissal by the respondent. A few weeks after the letter confirming dismissal, and around four weeks after the end of employment, the claimant visited her General Practitioner who recorded that the claimant[9]On 5 April 2018, the GP surgery referred the claimant to the Mental Health Crisis Team.[10]On 13 April 2018 Dr Carrier noted that the claimant had ongoing “antidepressant, nil suicide/red flags, anxious and shaky when sees NHS uniforms or goes past NHS buildings/hospitals. “ Clearly the claimant continued to have significant ill-health at that time.[11]By 4 May 2018, a referral was made to Mr Rakesh, who noted: “The claimant was feeling suicidal with an intent to end her life using insulin. Trigger for suicidal thoughts lost her work following an allegation of neglect. Protective factor is her son, Tommy and family. Anxiety reactions since then, whenever she is close to Barnet sees and NHS badge or anything related to that incident when she got fired her body shakes and gets other symptoms of anxiety. Presentation: During the meeting she was in tears every time she was talking about her unfairness of being sacked. No one believing her. She will not find a job and her kids life is being affected. She said she can’t trust people anymore. Will find it hard to work with others. She spends her lone time thing about all the above and feels worst. Abisiola found it difficult to think of an alternate reality where she could find a job. Acknowledged and agreed with her that she may never forget about this incident.” The claimant commenced ACAS early conciliation on 21 May and was issued with the ACAS Certificate on 22 May. Her claim form for unfair dismissal was issued in the Watford Employment Tribunal on 24 May 2018. Relevant legal provisions[12]The legal test in a case for unfair dismissal where the ordinary time limit is not met is to consider whether it was not reasonably practicable for the claimant to present the claim within the time limit under s.111 (2) (b) Employment Rights Act 1996.[13]Case law has established that three general rules apply when approaching the question;13.1 Firstly, following the case of Dedman v British Building and Engineering Appliances Limited [1974] ICR 53CA, the Employment Rights Act should be given a liberal construction in favour of the employee.13.2 Secondly, what is reasonably practicable is a question of fact and that is a matter for the tribunal to decide. The test is empirical and involves no legal concept. Practical common sense is the key note.13.3 Thirdly, the onus of proving that presentation in time was not reasonably practicable rests on the claimant. That imposes a duty upon him or her to show precisely why it was that he did not present his complaint. See Porter v Bandridge Limited [1978] ICR 943 CA.[14]In Palmer v Southend on Sea Borough Council [1984] ICR 372 CA, the Court of Appeal conducted a general review of the authorities and concluded that reasonably practicable does not mean reasonable which would be too favourable to employees and does not mean physically possible which would be to favourable to employers but means something like reasonably feasible.[15]A claimant’s complete ignorance of his/her right to claim unfair dismissal may make it not reasonably practicable to present a claim in time but the claimant’s ignorance must itself be reasonable as Lord Scarman commented in Dedman v British Building.[16]In Scholtz v Esso Petroleum Company Limited [1999] ICR 1202 CA, the Court of Appeal stated that illness may, on occasions, justify the late submission of claims. In that case the Court found that during the last six weeks of the threemonth time limit the claimant had been too depressed to instruct solicitors and overruling the Tribunal and the Employment Appeal Tribunal held that it was not reasonably practicable for the claimant to have presented his claim in time. The Court emphasised that the test was one of practicability, what could be done, not whether it was reasonable not to do what could be done. In the Court’s view the Tribunal had failed to have regard to all the surrounding circumstances which included the fact that the claimant had been trying to avoid litigation by pursuing an appeal against his dismissal. Although it was necessary to consider what could have been done during the whole of the limitation period, it was stated that attention should be focused on the closing stages rather than the earlier ones.Conclusions
[17]In the circumstances of this case I note the following significant facts in considering whether or not it was not reasonably practicable for the claimant to file proceedings within the ordinary time limit and/or an extension of time was appropriate under s.112 of the Employment Rights Act:17.1 Firstly, the claimant clearly from 1 March 2018, only 31 days after the dismissal and 8 days after the latter confirming the date of dismissal, had a significant and unpleasant mental illness which escalated (ie got worse) over the relevant time period.17.2 During the period in which the time limit was running the claimant suffered a host of materially disabling symptoms, including shaking, completely wishing to avoid the issue, suicidal thoughts, repeated crying and tearfulness and very low mood.17.3 The illness was a prolonged illness from 1 March 2018 until May 2018. It was very much applicable in the closing stages of the time limit.17.4 The claimant had already been on antidepressants from prior to dismissal. This was not a new and sudden development, which the claimant had only recently experienced. The claimant had, for some time, been taking antidepressants as a result of concerns about matters arising in the workplace.[18]Whilst it is noted by the respondent that the claimant did, with the assistance of her partner, file a two-page letter of appeal, this was sent on 8 March 2018, only 16 days after the letter confirming the date of her dismissal and only 5 weeks after the disciplinary meeting. This was only just after dismissal. There were a further 8 or so weeks left of the time period which would normally be available to a claimant in order to consider bringing a claim for unfair dismissal. However, by just 1 March 2018 the claimant was already experiencing significant health problems. These then got worse.[19]I note that it was only when the claimant obtained the help of Mr Rakesh on 4 May 2018, over two months later, that she became aware of the time limit issue and a need to pursue the matter with ACAS. She then acted very quickly having done so, filing the ACAS certificate on 21 May 2018 and filed her tribunal claim on 22 May 2018.[20]I also find that, as a matter of fact, the claimant was genuinely ignorant of the relevant time limits during the key time frame. There was cogent evidence before me to suggest that the claimant thought she needed to wait three months before bringing a claim rather than her having to bring a claim within three months. This was yet further evidence supporting her position that it was not reasonably practicable to bring a claim in time.[21]In summary, this was a claimant who was suffering from illness for two of the three months of the time period and an illness that was significant and disabling. She was also significantly hampered in being able to seek both legal advice and external help. This is particularly so in relation to a condition which left her with serious suicidal thoughts and a desire to completely avoid going through what she felt to be the distressing events of her dismissal.[22]I do not accept the respondent’s suggestion that she could simply pass on the matter to her partner. Even if she had considered doing so, she would still have had to have addressed the thoughts that she was having about the incidents of her dismissal. This was something she was entitled to wish to avoid. This alternative possibility did not get close to making it reasonably practicable for her to file her claim in time.[23]In all the circumstances of this case I conclude there were clear and compelling reasons to find that it was not reasonably practicable for the claimant to file proceedings within the ordinary time limit and that an extension of time was appropriate under s.112 of the Employment Rights Act. I also find that she filed proceedings within a reasonable time period thereafter. In fact, she was very quick in acting once it had been explained to her how she could so and she had got some meaningful help in doing so.[24]Therefore, for all these reasons, I have found that it was not reasonably practicable for this claimant, in all the facts and circumstances of this case, to bring the claim within the ordinary time limit and the claim was lodged within a reasonable period thereafter. The claim is in time and may proceed. 9 May 2019Findings
[25]I do not accept that the commissioning officer did not make the decision to proceed. JW’s unchallenged evidence was that the initial commissioning officer had passed away. It was the respondent’s case that by the time the decision needed to be made as to whether or not to proceed to a disciplinary meeting JW was the commissioning officer. I accept this. Therefore I do not accept that the respondent’s disciplinary policy was breached in this way.[26]Mrs Hodgson sought to argue that the respondent’s disciplinary policy had not been complied with because:26.1 a workforce representative was not involved at several stages despite the policy stating that they would be. I do not accept that a workforce representative is a trade union representative or similar because the term “trade union representative” is used in the policy in a different context. When reading the disciplinary policy it seems that the term workforce representative refers to the HR Department as can be seen from section 5.3.26.2 JW asking the claimant questions at the start of the disciplinary hearing was a breach of the policy concerning how the disciplinary meeting should be run. I find that JW did ask some questions of the claimant at the start of the disciplinary meeting. However I do not accept that this is a breach of the policy because JO was then invited to call witnesses, question the claimant and the claimant was given the opportunity to say or present anything she wished to do so. JW’s evidence was that she asked the subject of disciplinary proceedings these questions to determine whether or not the disciplinary process was suitable or if a capability process should be considered. I consider that this is a reasonable and fair action.[27]Overall I find that the respondent has complied with the disciplinary policy. For completeness I record that no argument was made that this was a contractual policy. Decision and Conclusion[28]The burden of proof lies on the respondent in relation to the first aspect of the Burchell test. The burden of proof in respect of the other two elements of the test is neutral. Did the respondent believe the claimant was guilty of misconduct at the time of dismissal?[29]Mrs Hodgson argued that the employer took into account matters that were not relevant namely the views of some of the claimant’s work colleagues about her and other incidents arising from her employment. In effect this is an argument that these were the real reasons for dismissal rather than the allegations arising from the May 2017 incident. I accept that there is reference to conduct of the claimant and her attitude in work generally and not just limited to the May 2017 incident in the dismissal letter. There were also questions on these topics in the disciplinary meeting.[30]I find that JW and therefore the respondent reached conclusions on these matters after taking evidence from the claimant in the disciplinary meeting and considering objective evidence such as the notes about the claimant’s performance. I find that the inclusion of these matters does not undermine the conclusions about leaving a patient in faeces and communication and argument with patient X’s family. I find that as a result of the investigation and disciplinary meeting the respondent believed the claimant was guilty of misconduct at the time of dismissal. I find that the respondent made conclusions about the claimant’s conduct in relation to the May 2017 incident as well as some more general conclusions on related matters such as complying with the respondent’s dignity in care requirements. In addition, I find that some consideration of the claimant’s work outside the May 2017 incident is legitimate as it can pertain to the sanction imposed. I do not accept that there was some ulterior motive or reason for the dismissal or that the reasons for dismissal are other than stated in the dismissal letter. Did the respondent have in mind reasonable grounds to sustain its belief that the claimant had committed gross misconduct?[31]I find that the respondent decided that the claimant had:31.1 left patient X lying in his own faeces and chose to go on a break. This could reasonably be considered to amount to neglect and abuse of the patient;31.2 shouted at patient X’s daughter;31.3 that the claimant had not clearly and appropriately communicated with patient X and his relatives and that she was argumentative with patient X’s relatives causing distress and anxiety;31.4 was neglectful in discharging her duties in relation to the carers patient X; and31.5 failed to ensure patient X was cared for with appropriate dignity.[32]I find that the respondent did have in mind reasonable grounds to believe that the claimant had committed gross misconduct at the time of dismissal for the following reasons:32.1 the respondent relied on evidence from a number of different sources which supported the allegation that the claimant left patient X in his own faeces whilst she went on a break. The sources included but were not limited to the complaint from the family and to some extent SA’s statement. As the allegation was that only the claimant attended patient X and then left him in his faeces no other staff member would be able to confirm in an eyewitness account whether or not this happened. I find that the respondent acted reasonably in relying on the patient’s family’s account, particularly as patient X was fully mentally competent, able to express himself and had had repeated contact with the claimant previously and on the day in question. It was also undisputed that patient X was found in a soiled state. There was some dispute about how long this was for and how the circumstances arose. This is a situation involving different individuals giving different accounts of events. I find that it is reasonable for the respondent to have declined to accept the claimant’s account and relied on other evidence it had obtained in the course of the investigation. The evidence from the patient’s family was not obviously untrue and some other circumstantial evidence supported it;32.2 the respondent noted the conflict in evidence between the claimant and EV concerning whether the claimant argued with patient X’s family. I find that the respondent’s decision to prefer EV’s evidence was reasonable and open to the respondent. The evidence from all the other nurses was that the claimant was angry and that there was some sort of altercation. SA’s statement to JM stated “I cannot comment exactly what Abi and the patient’s daughter were arguing because I was not present, I could only her loud shouting (both Abi’s and the daughter’s voice).” I find that SA’s statement could reasonably be interpreted as evidence that the claimant was shouting at patient X’s daughter because “her” could be interpreted as a misspelling of “hear”. Therefore I find that the respondent took into account conflicting evidence and formed a reasonable basis for its conclusions. These conclusions went to the allegation that the claimant failed to clearly and appropriately communicate and whether she was argumentative with patient X’s family;32.3 I do not consider the fact that LD’s statement, stating that she did not hear the claimant raise her voice against patient X’s family, renders unreasonable the respondent’s conclusion that the claimant did raise her voice against patient X’s family. Investigations into situations often give rise to conflicting accounts from different individuals. The respondent had evidence from a number of sources which set out that the claimant raised her voice to patient X’s family. These sources were the patient’s family, SA’s statement and EV’s statement. It is reasonable for the respondent to have preferred those sources than the evidence of the claimant and/or LD.[33]Mrs Hodgson made criticisms of the dismissal letter that it did not set out a summary of the conflicting evidence and did not explain why some evidence was preferred and others dismissed. I do not accept that a reasonable employer is required to set out all the pieces of conflicting evidence and how they weight them in the decision letter.[34]As I have set out above the respondent considered evidence from a number of sources including the claimant, other staff members and the family of patient X before coming to its belief.[35]I find that these were reasonable grounds on which a reasonable employer could conclude the claimant had committed gross misconduct. Therefore I find that the respondent’s decision to dismiss the employee for gross misconduct was in the band of reasonable responses. The test of the band of reasonable responses means that the tribunal must not apply a test of what decision the tribunal would have made instead it must consider what a reasonable employer acting reasonably would have done. This legal test gives the respondent a margin in which it can make decisions. The test is not whether another employer would have acted differently and it is not whether I would have made a different decision. The tribunal must not substitute its judgement for that of the employer. The test is whether or not the respondent’s actions fall within the band of reasonable responses of a reasonable employer. This test applies to both the decision to dismiss and the procedure by which the decision was reached.[36]I recognise that the claimant had no written warnings or final warnings on her file. I have also considered that she had approximately 10 years of service with the respondent. The initial six years of which were as a housekeeper rather than as a healthcare assistant. 10 years is a considerable period of service. It may be the case that some employers would not have summarily dismissed the claimant however I consider that the findings against the claimant were so serious (specifically in relation to the care of patient X when combined with the communication and argument with patient X’s relatives) that a reasonable employer acting reasonably could have concluded that they amounted to gross misconduct. When the employer formed that belief had it carried out a reasonable investigation in the circumstances?[37]An employer must have carried out a reasonable investigation in all the circumstances before forming its belief in misconduct. After an investigation or disciplinary process has concluded it is almost always possible to identify how it could have been more fulsome or improved in some way. That is not the correct test. The relevant question is whether the investigation fell within the range of reasonable responses that a reasonable employer might have adopted.[38]I find that the investigation was reasonable in all the circumstances for the following reasons:38.1 witness statements were taken from relevant witnesses i.e. those who witnessed the May 2017 incident. I find that the reasons why witness statements from the healthcare assistants were not taken were reasonable: one was on sick leave and two others said that they had nothing of note to add. I recognise that the bundle did not include the emails from the latter two healthcare assistants and that is regrettable. However it is also reasonable to conclude that not everybody on the ward would have witnessed the incident and would have had relevant evidence. A reasonable investigation does not require that every person who may have been in the vicinity should be required to provide a statement Further, I accept that JO as the investigating officer turned her mind to the issue of who should properly be interviewed about the May incident and took steps to ensure that they were;38.2 as witness statements were taken from the nurses on the ward some of whom were directly involved in the immediate aftermath of the May incident, I do not accept that the failure to take a witness statement from the site manager, Nick, was a material flaw in the investigation or made it unreasonable. On the claimant’s own account she narrated to Nick what she felt had happened to her. There was no claim that Nick had witnessed the incident and therefore could provide evidence on the contentious issue of how the claimant had treated patient X and her behaviour with the family;38.3 the claimant was given fair notice of the disciplinary meeting;38.4 she was provided with the investigation report and its appendices which included the evidence from the nurses on the ward amongst other pieces of evidence;38.5 it was stated in the invitation to the disciplinary meeting letter that she could call witnesses and could submit written evidence. However she chose not to do so. I recognise that the claimant has suffered from some mental ill-health but she did not request more time or a delay to proceedings so that she could address her mental health or to enable her to fully participate in the disciplinary process. The claimant did not make any claim in these proceedings to that effect;38.6 JO, as part of the investigation, took a witness statement from LD and in her investigation report she referred to LD’s evidence (paragraph 34). Therefore I find that it was taken into account as part of the investigation and was part of the evidence before JW as the decision maker in the dismissal. JW’s evidence was that she could not recall if she considered LD’s evidence or not but she had weighed information before coming to her decision to dismiss. I accept this evidence;38.7 the respondent did not take the complaint from patient X’s family at face value and instead carried out an investigation.[39]Mrs Hodgson argued that the employer could have taken other actions in the investigation and disciplinary proceedings such as creating a timeline and assessing the differing accounts about how long patient X was left for and questioning why a mentally competent patient in distress did not use a bell to call for assistance. I find that these are things that an employer could have done but I do not find that not doing them renders the employers investigation unreasonable in all the circumstances. It is correct that there are differing accounts about how long patient X was left for, there are differing accounts as to whether the claimant shouted at the family or not however the fact that there were differing accounts does not render conclusions adverse to the claimant unreasonable. The respondent gathered the evidence and considered it. The suggestion that JO and/or JW should have asked more questions about the May 2017 incident such as why did patient X not ring the bell and why were different witnesses’ timelines different are a claim that the investigation should have been more fulsome. However, I do not find that such criticisms render the investigation that took place unreasonable. Was the dismissal within the range of reasonable responses open to the employer?[40]As I have recorded above, I find that dismissal was within the range of reasonable responses open to an employer. The claimant did not have any warnings on her file however I consider that the conduct which the respondent reasonably believed the claimant had committed can reasonably be considered to amount to gross misconduct resulting in summary dismissal. It is sufficiently serious in nature to amount to gross misconduct. Procedural fairness[41]I consider that the dismissal was procedurally fair. There was an investigation, a disciplinary meeting at which the claimant gave evidence and it was open to her to submit evidence in support of her case before that and she was given a written outcome. The claimant was given a right of appeal which she initially exercised however there was a delay of approximately four months in scheduling the appeal meeting. By this time the claimant was in contact with ACAS and communicated that she did not wish to attend an appeal meeting. The appeal meeting did not take place. I find that the appeal process was abandoned by both parties and therefore I do not accept that the failure to complete the appeal process amounted to unfairness on the respondent’s part. The situation is effectively the same as if the claimant had decided not to exercise her right of appeal. I recognise that there was a delay of over four months in the appeal process and that there had been delays in the dismissal process however I do not consider that these amounted to procedural unfairness in all circumstances.[42]Therefore I conclude that the respondent has established that the claimant was dismissed for misconduct and that this is a fair reason within the meaning of section 98(2) of the ERA.[43]For all of these reasons, I find that the claimant was fairly dismissed.[44]Therefore I am not required to consider any reductions in respect of Polkey or contributory fault.