Mr K Donnachie v Greater Glasgow Health Board: 4102597/2023
EMPLOYMENT TRIBUNALS (SCOTLAND)
Case No 4102597/2023Venue GlasgowHearing 25, 26, 27 & 28 August & 28 & 29 October 2025
Between
Mr K DonnachieClaimantGreater Glasgow Health BoardRespondent
Before
Employment Judge O’DonnellDate 19 November 2025
JUDGMENT
The judgment of the Employment Tribunal is that the claim of unfair dismissal is not well-founded and is hereby dismissed.
REASONS
[1]The claimant has brought a complaint of unfair dismissal under the Employment Rights Act 1996 which is resisted by the respondent. Preliminary issues[2]The allegations of misconduct that led to the claimant’s dismissal related to a service user. It was agreed by both parties that the identity of the service user was not relevant to the issues to be determined in this case and that they should be referred to as “Patient A” or “A” during the evidence. The Tribunal will adopt the same approach in this judgment and will avoid, as far as possible, making reference to anything which might allow patient A to be identified.
Evidence
[3]The Tribunal heard evidence from the following witnesses:-a. The claimant.b. Tracy Buchanan (TB) – a community service manager with the respondent who carried out the disciplinary investigation.c. Colin McCormack (CMcC) – the respondent’s head of mental health services who made the decision to dismiss the claimant.d. Suzanne Miller (SM) – the respondent’s chief executive who chaired the appeal hearing.[4]With the agreement of both parties, Mr McCormack gave evidence remotely by way of Cloud Video Platform. All other witnesses gave evidence in person.[5]There was an agreed file of documents prepared by the parties running to 360 pages. A reference to a page number below is a reference to a page in that file.[6]This is not a case where the relevant facts were in dispute. The sequence of events leading to the claimant’s dismissal was broadly a matter of agreement with very little, if any, dispute between the claimant’s evidence and the evidence given by the respondent’s witnesses. The oral evidence was supported by contemporaneous documents (for example, minutes of meetings, emails, letters and other correspondence) which all witnesses agreed were accurate.[7]The Tribunal did not, therefore, have to resolve any dispute of fact between the parties. The Tribunal did consider that all the witnesses sought to give accurate evidence and anything they could not recall was due to the passage of time. The Tribunal found all the witnesses to be credible and reliable in terms of their recollection of events. Findings in fact[8]The Tribunal made the following relevant findings in fact.[9]The claimant had been employed by the respondent for 32 years at the time of his dismissal. He is a registered nurse and worked in a variety of roles over his career with the respondent.[10]At the time of the events giving rise to this claim, the claimant was employed as a community living disability charge nurse. He had held this role for 14 years. The role involved working with a multi-disciplinary team organising care for service users who had learning or physical disabilities.[11]One of the service users whose care was overseen by the claimant was A. They were an adult with care needs; they were non-verbal (that is, they did not use words to communicate but would make sounds and gestures) and had mobility issues. A also had a disturbed sleep pattern, sometimes being awake for several days in a row and then sleeping for long periods.[12]A lived independently in their own home but required round the clock care. This was not provided directly by the respondent but by a care organisation called Living Ambitions. They provided carers who would look after A on a daily basis. The claimant oversaw this care and coordinated with other health professionals (for example, A’s GP) to provide the care needed by A.[13]The respondent has internal systems for recording matters relating to service users; a system called Datix is used to record concerns about how a service user is being treated; a separate system called EMIS is used for general record keeping. Only employees of the respondent have access to these systems and staff at Living Ambitions could not use these systems.[14]The respondent has a number of internal policies relevant to this case; an Investigation process (pp63-73); a guide to expected standard of behaviours (pp74-77); a conduct policy (pp78-88). Relevant extracts from these policies are as follows:-a. An employee can be dismissed for gross misconduct with examples of gross misconduct being listed at p76.b. The policies allow for an employee to be suspended if there is considered to be a risk to the respondent in terms of clinical care or the safety of others (p82). Regular contact should be maintained during any suspension.c. Before any formal conduct process is started, an investigation must be carried out (p82).d. Where an investigation concludes that the matter should proceed to a conduct hearing then written notification will be sent to the employee within 7 calendar days (p83). It is not said what the written notification should contain.e. Both parties (management and employee) are entitled to call witnesses at the conduct hearing and it is each parties’ responsibility to inform their witnesses of the arrangement for the hearing (p83).[15]In February 2022, managers at Living Ambitions received emails from staff involved in the care of A which expressed concerns about the claimant’s conduct towardsa. A. The emails appear at pp92, 95,198, 356 and set out the following matters:- a. That one member of staff had heard from other staff that the claimant had “crawled” under A’s duvet when A was sleeping and tried to wake them.b. That the claimant had taken two bouncy footballs and put them up A’s top to make it look like they had large breasts.c. That the claimant gets in A’s face which they do not like and pushes him away.d. On 15 February 2022, the claimant asked one of the care staff to marry him.e. That on one occasion, he cuddled A restricting them walking down the hallway.f. That he was seen pulling up A’s top to tickle their stomach, pinching their nose, pull their cheeks and ruffle their hair. It was said that this visibly upset A who made crying or growling noises in response.g. On 14 February 2022, he put his face next to A’s face and stroked their hairs. A pushed him away but he continued saying that A “really doesn’t like me”.[16]The management from Living Ambitions raised these concerns with managers at the respondent who decided that an investigation should be carried out. The claimant was informed that complaints had been made about his conduct at a meeting on 18 February 2022 with Laura McWilliams (Nurse Team Lead) and Yvonne Johnstone (Service Manager). He was not suspended at this stage but was restricted from patient-facing duties. A letter dated 18 February 2022 (p89) was sent to the claimant confirming that complaints had been made and that an investigation would be carried out. A further letter was issued on 22 February 2022 (p96) confirming that the claimant was to have no patient contact.[17]TB was appointed to carry out the investigation. Yvonne Johnstone prepared a document (pp97-99) setting out the terms of reference for the investigation including the allegations to be investigated as follows:-a. You were witnessed by a member of staff crawling into the service user’s bed, under the covers whilst [A] was asleep and trying to wake [A].b. That on a separate occasion, on 1st February 2022, you were witnessed by a member of staff, using 2 of the service user’s bouncy footballs, and put them up the service users top to enlarge [A’s] breast area.c. That on a separate occasion you were witnessed by a member of staff cuddling the service user when [A] was leaving the bathroom and restricting [A] walking down the hall. The service user was upset by this and pushed you away.d. That on a separate occasion, you were witnessed by a staff member pulling up the same service user's top up to tickle [A’s] stomach, pinch [A’s] nose, pull [A’s] cheeks and ruffle [A’s] hair. The service user was visibly upset by this as [A’s] growling/crying became more frequent and louder, again witnessed by a member of staff.e. On 14th February 2022, you were witnessed by a staff member walking behind the service user, putting your face right next to [A’s], whilst stroking [A’s] hair. [A] pushed you away twice and you ignored [A] which resulted in him commenting to the worker that "[A] doesn’t like me does [A]?" to which the staff member responded "No".f. On the 15th February you called the service to check on the service user and were inappropriate with the staff member asking her to “marry you”.[18]On or around 21 March 2022, TB sent a letter to the claimant (pp100-101) inviting him to an initial meeting on 29 March 2022 to be held by Teams. The letter sets out the allegations in the terms above and explains the purpose of the meeting is to investigate these.[19]On 28 March 2022, the claimant contacted TB to inform her that he could not attend the meeting on 29 March. None of the witnesses could recall the precise reason for this. The meeting was moved to 19 April 2022 but it was subsequently identified that the claimant’s trade union representative was not available on that day. Due to the availability of TB and the member of HR supporting her, the next available date was 25 April 2022. This was all set out in an email to the claimant and his union rep on 28 March (p107). The date for the meeting was set for 25 April and a letter was sent to the claimant confirming this (pp112-113).[20]On 14 April 2022, TB was contacted by the police; the same complaints about the claimant had been made to the police and they were carrying out their own investigation. Given that they would be speaking to the same witnesses as TB, they asked her to pause her investigation until they had concluded their own investigation. TB agreed to this.[21]The police investigation did result in the claimant being charged with assaulting A (p359). The case proceeded to a trial in the Sheriff Court and the claimant was found not guilty (p360).[22]On the same day as the police made contact, TB was contacted by the claimant’s trade union representative who indicated that the claimant may not be fit to attend the proposed investigation meeting. The representative subsequently indicated that the claimant did not feel fit to attend (pp116-117 & p122) and asked if the meeting could be delayed until May.[23]On 20 April 2022, the claimant drafted a statement replying to the allegations (pp118-121). This statement was provided to his trade union representative but was not passed on to either TB as part of the investigation nor CMcC as part of the conduct hearing. The first time it was presented to anyone from the management side was at the appeal hearing.[24]On 22 April 2024, the claimant and his union rep met with Yvonne Johnstone. The claimant was suspended at this meeting but this was lifted as the claimant had presented a fit note declaring he was unfit for work. If he subsequently declared fit then his suspension would be revived. The reason given for his suspension was that the allegations related to abuse of a patient.[25]TB remained in contact with the police to find out when she could resume her investigation. Eventually the police confirmed that they had concluded their investigation and TB could resume her investigation. TB could not recall the date of this but the Tribunal finds that it was at some point shortly before 20 June 2022 given that the claimant was invited to an investigatory meeting on this date (pp126-127). The meeting was again to be held remotely by Teams (given the social distancing rules in place at the time during the covid pandemic).[26]The 20 June meeting did not proceed as planned and alternative dates were proposed. The claimant’s union rep explained that there was an issue with using Teams and so TB tried to find a room big enough to safely accommodate all those attending. She could not do so and the meeting was to be held by Teams. It was clarified that the claimant was unsure how to use this app (rather than not having the necessary IT to attend remotely) and TB offered to help him have a practice run. The meeting was arranged for 18 July 2022. All of this is set out in an email exchange at pp134-135.[27]The meeting went ahead on 18 July 2022 with the claimant and TB. The claimant was represented by his trade union rep, June Ramsay. A note of the discussion was recorded using a pro-forma template (pp152-158). The claimant signed this on 5 August 2022 confirming that the note was accurate. The note sets out the following relevant matters:-a. The claimant described his relationship with the Living Ambitions staff as generally very good. He did state that there was one member of staff whom he described as difficult towards him and the consultant psychiatrist. He also made reference to a call from A’s GP who had expressed concerns about some of the staff in terms of their capability and language used around A. He accepted that he had not raised these concerns at the time and that he wished that he had done so.b. He stated that he had only been in A’s bedroom twice; once with the psychiatrist to test the bed and the second time when A was asleep. He described sleep as the most precious commodity A could have and so he would not try to wake A if A was sleeping.c. He denied putting balls up A’s top.d. He stated that he would not restrict A’s movement. He would observe A moving about and may provide support but no more than that.e. The claimant confirmed that he was aware that A did not like physical contact.f. He denied the allegations about pulling up A’s top, tickling A, pinching A’s nose and putting his face close to A’s.g. In relation to the allegation about asking one of the staff to marry him, the claimant explained that there had been a period where things had been very difficult with A and there was discussion about admitting them to hospital. When he contacted the house on the morning of 15 February 2022, he spoke to a member of staff who had worked with A previously. This staff member had made some simple changes to A’s routine which had resulted in A having a peaceful night. The claimant explained that he was so pleased he said “I could marry you” to this person and apologised if that had caused offence.[28]Whilst TB was arranging the meeting with the claimant, she was also taking steps to gather information from the staff at Living Ambitions in relation to their complaints. She asked those who had raised the complaints to complete a template setting out what they had witnessed and then invited them to an interview. These individuals were not employees of the respondent and so TB could not compel them to cooperate with her.[29]The staff from Living Ambitions cooperated to different degrees; three witnesses completed the template and attended an interview with TB; one witness only attended the interview; the remaining two witnesses did not cooperate at all and so TB only had the initial email sent to the managers at Living Ambitions.[30]TB complied an investigation report (pp159-206) which was completed on 30 August 2022 and submitted on 1 September 2022. The report summarises what is said by the claimant and the other witnesses. The interview notes for the claimant and each witness are appended to the report along with the statements returned by three of the witnesses. The initial emails from the two witnesses who did not cooperate were also appended to the report.[31]The initial emails from the four witnesses who attended an interview with TB were not included in the report. A consequence of this is these were not seen by the claimant as part of the internal process. Although the information provided by these witnesses to TB in their interviews is broadly similar, there were some differences. For example, the word “crawling” in the first allegation was used in the initial email by one witness but not during her interview with TB. Similarly, although the allegation about putting footballs up A’s top was made during the interview with TB, it was not said that this was being done with the purpose of enlarging A’s breast area. That particular element of the allegation was only made in the initial email.[32]The Tribunal does not propose to set out the contents of each interview in detail. It is sufficient to find that the interview notes, statements and emails appended to TB’s report set out evidence which supported all the allegations against the claimant.[33]TB’s report concluded with a recommendation that the case proceed to a conduct hearing.[34]By email dated 10 October 2024 (p229), a copy of the investigation report was sent to the claimant’s union representative along with a letter (p223-225) inviting the claimant to a conduct hearing to be chaired by CMcC. It was not clear from the evidence whether the report and invitation was sent separately to the claimant but it is not in dispute that he was provided with these.[35]The invitation set out the allegations against the claimant which were a repeat of those set out above. The conduct hearing was to be held on 20 October 2022 by way of Teams. It was explained that CMcC would be supported by an HR manager and a nursing adviser but that any decision would be made by him. The letter also explains that the claimant was entitled to present a written case, be represented at the hearing and was entitled to call witnesses. The potential sanctions available to the hearing were also set out and these included dismissal.[36]The conduct hearing did not take place as planned on 20 October due to issues with the availability of the panel. It was rescheduled for 3 November 2022 and was now to take place in person. A letter was issued to the claimant explaining this (pp226-228) and setting out the same information as the first invitation letter in terms of the allegations and arrangements for the hearing.[37]The conduct proceeded as planned on 3 November 2022. The claimant produced a “personal reflection” (pp232-233) which he read out to the panel during the hearing. This is different in terms of content from the statement prepared by the claimant in April 2022 (p118-121).[38]A note of the conduct hearing was prepared and appears at pp234-237. It was accepted as being an accurate, albeit not verbatim, record of the hearing. It sets out the following relevant matters:-a. TB presented the management case as set out in her report.b. TB was asked if all of the witnesses had directly seen the alleged incidents and she explained that some had been informed by others.c. CMcC asked TB why some of the witnesses only provided statements rather than being interviewed. She explained that one witness had only provided a statement while another had given a statement to the police and did not want to be involved further. CMcC also asked why witnesses had not been called and she explained this was due to them being involved in the police investigation as well as an investigation by the Nursing & Midwifery Council (NMC), the claimant’s professional regulator.d. The claimant’s trade union representative presented his case and raised questions with TB about the following matters:- i. She asked if any form of recording system was used for the incidents and TB confirmed that this was not asked. She also confirmed that any patient notes would not be ones maintained by the respondent. ii. TB confirmed that only one member of staff was present with A at any given time. iii. TB was asked why the doctors referred to by the claimant in his interview were not interviewed and she replied that this was because they were not said to present at any of the incidents.e. The trade union rep set out the claimant’s length of service and experience. She stated that the police investigation had affected the timescales and that there was only one witness to each allegation. It was submitted that much of what was said was hearsay and personal comments rather than factual evidence.f. The claimant was asked why he felt that the staff would make up the allegations. He replied that he had asked this himself as he thought there was a good relationship. He stated that there was some unrest when A had not been admitted to hospital when some staff thought A should have been.g. The claimant confirmed that he denied the allegations, repeating the point that he had only been in A’s bedroom on two occasions as described in his interview with TB.h. The claimant agreed that, if the incidents had occurred, these were inappropriate.[39]CMcC issued his decision by letter dated 11 November 2022 (pp238-242). This is one day longer than the seven days for a decision to be issued in terms of the respondent’s conduct policy.[40]CMcC upheld the allegations against the claimant. In the outcome letter, he considered each of these in turn and concluded that there was sufficient evidence to uphold each of these. He noted that there was a direct witness to each incident as well as others who had been informed of each incident. He also noted that the claimant denied the incidents (except for the “marry you” incident) but gave no more detail in terms of any denial.[41]The letter goes on to say that CMcC was satisfied with the explanation why no witnesses were called to the hearing.[42]In the letter, CMcC gives consideration to why the witnesses would have made these allegations and notes the difficulties there had been with the care for A. However, he did not feel that this explained the allegations. In his evidence at the hearing, which the Tribunal found credible and reliable, he explained that he felt that if there had been an effort by the staff to make something up about the claimant then there would have been more consistency in terms of the allegations indicating some collusion rather than the different allegations coming from different people. He decided that there was nothing which suggested that the staff had made up these allegations.[43]It was also noted that the allegations against the claimant were considered sufficiently serious by the NMC for them to issue an interim suspension order against him.[44]CMcC concluded that the actions of the claimant breached the expected standards as set out in the NHS Guide (pp74-77). He decided that the appropriate sanction was dismissal. He considered whether an alternative sanction could be applied such as an alternative role but concluded that, given the seriousness of the claimant’s actions, there was a breakdown in trust and confidence as well as a potential adverse impact on public confidence that meant that dismissal was the appropriate sanction.[45]The claimant was informed of his right to appeal the decision to dismiss. The claimant’s appeal was lodged by email of 22 November 2022 (p244) by his trade union rep, who was now a senior official, Barbara Sweeney. The appeal (p243) was prepared by the claimant and was on the grounds that he felt that the investigation was not sufficiently thorough, the mitigations he presented had not been given sufficient weight and that too much weight had been given to the criminal proceedings as well as the NMC proceedings.[46]SM was appointed to chair the appeal along with a panel consisting of a nonexecutive director of the respondent, the head of human resources and the chief nurse.[47]From 28 November 2022 to 1 February 2023, there was an exchange of emails between Ms Sweeney and HR (pp247-253) trying to find a suitable date for the appeal hearing. For reasons relating to the availability of various people involved, a suitable date could not be found until 10 March 2023. A letter dated 16 February 2023 (pp254-255) was sent to the claimant confirming that the appeal hearing would take place in person on 10 March 2023 and setting out the arrangements for the hearing, including an exchange of cases in advance of the hearing.[48]At the claimant’s request, the format of the appeal hearing was changed to a remote meeting by Teams.[49]Unfortunately, due to one of the panel members being ill on the day, the hearing did not proceed on 10 March 2023. In further email correspondence (pp284-290 and 295-305) over March, April and May, parties sought to find a suitable alternative. Again, the availability of various people involved in the hearing impacted on the ability to find a date for the hearing.[50]Eventually, 2 June 2023 was identified as a date on which all those involved could attend and the appeal hearing proceeded on that date by way of Teams.[51]A note of the hearing is at pp339-345. Again, this is not verbatim but accepted by the parties are broadly reflecting what was discussed at the meeting.[52]At the start of the hearing, Barbara Sweeney raised an issue with correspondence which she had received from HR which contained details of a further interview with one of the witnesses carried out by TB (pp306-308). The panel was not aware of this and did not know about any further interviews.[53]The claimant’s April statement was presented to the respondent for the first time at this hearing and the claimant was asked about it. In particular, there was a discussion about whether the doctors mentioned in the statement were present at the incidents in question. It was said on behalf of the claimant that they may have been and that one of the doctors had made the decision not to admit the claimant to hospital which the claimant believes triggered the complaint.[54]SM wrote to the claimant on 9 June 2023 (p346-347) to explain that, given the complexities of the case, a decision was delayed until 14 June 2023.[55]SM issued her decision by letter dated 14 June 2023 (pp348-351) and did not uphold the appeal. The letter sets out the following relevant matters:-a. It was explained that the later interview was part of the respondent’s preparations to defend the Tribunal claim which had been lodged by the time that the appeal hearing was being held.b. It was noted that additional witnesses referenced in the claimant’s April statement had not been interviewed as part of the investigation but that the claimant also did not call these witnesses at the conduct or appeal hearing.c. It was accepted that the wording of some of the allegations was misleading and the appeal panel revised the wording to remove the reference to “crawling” into A’s bed and trying to enlarge A’s breast area.d. However, the appeal panel did not consider that this affected the ultimate decision by CMcC. It was considered that it was reasonable for him to conclude that the other witnesses were credible and to conclude that the conduct took place.e. In light of that, the appeal panel also considered it was reasonable for CMcC to conclude that the conduct was serious misconduct justifying dismissal. Submissions[56]Both agents produced written submissions which they adopted. For the sake of brevity, the Tribunal does not intend to set out the submissions in details. These have been noted and the Tribunal will refer to any point raised that requires to be specifically addressed in its decision below.
Relevant Law
[57]The test for unfair dismissal can be found in s98 of the Employment Rights Act 1996 (ERA).[58]The initial burden of proof in such a claim is placed on the respondent under s98(1) to show that there is a potentially fair reason for dismissal. There are 5 reasons listed in s98 and, for the purposes of this claim, the relevant reason is conduct.[59]The reason for a dismissal was described by Cairns, LJ in Abernethy v Mott Hay and Anderson [1974] IRLR 213 (approved by the House of Lords in subsequent decisions such as W Devis & Sons Ltd v Atkins [1977] AC 931 and West Midlands Co-operative Society v Tipton [1986] IRLR 112) as follows:- “A reason for the dismissal of an employee is a set of facts known to the employer, or it may be of beliefs held by him, which cause him to dismiss the employee.”[60]It is a matter of law as to whether any such set of facts or beliefs falls into one of the categories of potentially fair reasons for dismissal and, if so, which one(s).[61]The test then turns to the requirements of s98(4) for the Tribunal to consider whether dismissal was fair in all the circumstances of the case. There is a neutral burden of proof in relation to this part of the test.[62]The test for whether a dismissal on the grounds of conduct (or misconduct) is fair is set out in the well-known case of British Home Stores Ltd v Burchell [1978] IRLR 379.[63]The test effectively comprises 3 elements:-a. A genuine belief by the employer in the fact of the misconduct;b. Reasonable grounds for that belief;c. A reasonable investigation.[64]It is important to note that, due to changes in the burden of proof since Burchell, the employer only has the burden of proving the first element as this falls within the scope of s98(1) with the second and third elements falling within the scope of s98(4).[65]In order for there to be a reasonable belief, especially where there is a dispute as to whether or not the employee committed the misconduct in question, the employer must have some form of objective evidence on which to base their conclusion.[66]Delay in carrying out an investigation is capable of rendering the dismissal unfair (on the basis that the investigation is then not reasonable) even with no evidence of actual prejudice cause by the delay (RSPCA v Cruden [1986] IRLR 83 and A v B [2003] IRLR 405, EAT).[67]On the question of whether the investigation was reasonable, the case of Sainsbury’s Supermarket v Hitt [2003] IRLR 30 is authority for the proposition that the band of reasonable responses test applies to conduct of the investigation.[68]If the Tribunal is satisfied that the requirements of Burchell are met then it still needs to consider whether dismissal was fair under s98(4) in all the circumstances of the case.[69]In considering s98(4), the Tribunal should take into account all relevant factors such as the size and administrative resources of the employer. There are two matters which have generated considerable case law in respect of fairness under s98(4) and which are worth highlighting.[70]First, there is the question of whether an employer has followed a fair procedure in dismissing the employee. The well-known case of Polkey v AE Dayton Services Ltd [1987] IRLR 503 it was held that a failure to follow a fair procedure was sufficient to render a dismissal unfair in itself (although the compensation to be awarded in such cases may fall to be reduce to reflect the degree to which the employee would have been fairly dismissed if the procedural errors had not been made – the so-called “Polkey” reduction).[71]Procedural fairness includes giving an employee the opportunity to explain their actions or provide some form of mitigation. In a conduct case, the reasonableness of the investigation would fall under the heading of procedural fairness but that heading is not restricted just to the investigation stage of any dismissal process but also the disciplinary/dismissal hearing and the appeal hearing. The Tribunal has to consider the whole process followed in dismissing a claimant when assessing whether any dismissal was procedurally fair.[72]The Tribunal should have regard to the ACAS Code of Practice on Disciplinary Practices and Procedures in Employment (“ACAS Code”) in assessing the procedural fairness of any dismissal as well as considering whether the employer had complied with their own procedures and policies.[73]On the question of whether the procedure followed by the employer was reasonable, the case of Sainsbury’s Supermarket v Hitt (above) is authority for the proposition that the band of reasonable responses test applies to conduct of the process leading to dismissal.[74]The second broad issue in considering s98(4) is that the Tribunal needs to consider whether the dismissal was a fair sanction applying the “band of reasonable responses” test. The Tribunal must not substitute its own decision as to what sanction it would have applied and, rather, it must assess whether the sanction applied by the employer fell within a reasonable band of options available to the employer.[75]The Tribunal will make a few preliminary comments of general application before addressing the specific issues to be determined in deciding whether or not the claimant was unfairly dismissed.[76]First, the Tribunal is not concerned with whether or not the claimant actually did the alleged misconduct that led to his dismissal. The Tribunal is not determining this and the respondent does not need to prove that the claimant committed the misconduct (and, vice versa, the claimant does not need to prove that he did not). The question for the Tribunal is whether the respondent had a genuine and reasonable belief that the claimant had done what is alleged.[77]The Tribunal raises this because there was evidence led by both sides and questions asked of all witnesses that was geared more towards the issue of whether the claimant actually did the alleged misconduct rather than the question of the respondent’s reasonable belief.[78]Second, and related to the first point, the Tribunal does not consider that the outcome of the criminal proceedings against the claimant arising from the same matters has any bearing on the issues to be determined in this case. A criminal trial involves very different questions of law, standard of proof and burden of proof than the proceedings in the Employment Tribunal.[79]Having made these comments, the Tribunal now turns to the issues to be determined in this case.[80]The first issue is whether there was a potentially fair reason for dismissal. The respondent relies on conduct as the potentially fair reason and there is no doubt that the matters giving rise to the claimant’s dismissal are capable of falling with the scope of “conduct”. Indeed, the claimant accepts this in the submissions made on his behalf.[81]The Tribunal finds that the respondent had a genuine belief that the claimant had committed the misconduct in question. There was no evidence of any other reason for the claimant’s dismissal being in the mind of CMcC and the claimant has not suggested an ulterior motive on the part of the respondent for his dismissal.[82]The submissions made on behalf of the claimant make reference to there being no genuinely and reasonably held belief on the part of the respondent but the focus of the submissions is on the reasonableness of the respondent’s belief rather than whether it was genuine.[83]In these circumstances, there is no reason for the Tribunal not to take the reasons given by the respondent for dismissing the claimant at face value and so the Tribunal finds that the respondent genuinely believed that the claimant had committed the acts of misconduct in question.[84]Turning to the question of whether the respondent had a reasonable belief that the claimant had committed these acts of misconduct, the Tribunal will first deal with the question of whether there had been a reasonable investigation. This is important given that it will be very unlikely that any belief in the claimant’s misconduct could be reasonably held if that was based on a flawed investigation.[85]The Tribunal reminds itself that it is applying the “band of reasonable responses” test when assessing procedural matters such as investigation (Hitt, above) and should not be substituting its own decision. The question is not whether the respondent should have done something else but whether what they did was within a reasonable band.[86]There is no question that the respondent investigated the allegations against the claimant; they sought to gather as much information as possible about the allegations, interviewing staff from Living Ambitions where possible or obtaining some form of witness statement from them; the claimant was interviewed in order to give his version of events.[87]The Tribunal considers that, in these circumstances, the investigation was one which falls with the band of reasonable responses and was a reasonable investigation. However, the claimant makes a number of specific criticisms of the investigation which the Tribunal will address.[88]First, the claimant criticises the fact that the respondent did not interview additional witnesses beyond the complainers from Living Ambitions and himself. In particular, there were three doctors that he mentions in his investigation interview whom he says that the respondent should have interviewed.[89]The Tribunal considers that not interviewing these other people was within the band of reasonable responses. None of the people who complained about the claimant’s conduct suggested that there were other witnesses (either the specific people relied on by the claimant or anyone else) to the incidents about which they complained. Indeed, even the claimant did not suggest to the respondent during the disciplinary process that these other people could provide any particular assistance; at most, he suggests one of the doctors was present with him on one of two occasions when he was in A’s bedroom but the complaints relating to his conduct when in the bedroom stated that he was alone.[90]The Tribunal notes that the claimant himself did not seek to call these doctors as witnesses or provide statements from them, something which he was permitted to do under the respondent’s disciplinary process.[91]In these circumstances, the Tribunal can see why the respondent would not have interviewed these other people given that no-one, including the claimant, had suggested that they could provide relevant information.[92]Second, and in a similar vein, the claimant complains about the respondent not checking their records (either EMIS or Datix) or any equivalent system used by Living Ambitions.[93]Again, the Tribunal does not consider that this was outside the band of reasonable responses in terms of the investigation given that there was nothing said, during the process, that would have indicated to the respondent that these systems contained any relevant information. It was certainly not suggested by the claimant during the internal process that these records would disclose anything relevant.[94]For example, EMIS and Datix were used by the respondent’s staff and those from Living Ambitions had no access to these. It is difficult to see what, if anything, these records would have disclosed about the complaints made by the Living Ambitions staff.[95]In terms of Living Ambitions own records, there was no evidence that this organisation maintained systems similar records to those used by the respondent although it is reasonable to assume that they would do so. In any event, the Tribunal cannot see why the respondent would be prompted to ask for those records given the information they had obtained from the Living Ambitions staff as part of their own investigation.[96]In these circumstances, the Tribunal does not consider that it was outside the band of reasonable responses for the respondent to have not looked at either their own records or those of Living Ambitions.[97]Third, there is a complaint about the length of time the whole process took to conclude with the initial allegations being made in February 2022, the investigation concluding in August 2022, the disciplinary hearing being held in November 2022 and the appeal hearing being held in June 2023.[98]There is no question that the process took some time but the Tribunal does not consider that this is something which can be blamed on either the respondent or the claimant. It is quite clear that there were delays in arranging hearings in order to accommodate the claimant and his trade union representatives as well as delays to accommodate those within the respondent who made up the panels that heard the disciplinary and appeal hearings.[99]There was also a delay early in the process at the request of the police whilst they conducted their own investigation.[100]When looked at as a whole, this is a case where, for reasons beyond the control of both parties, the process was delayed but, taking account of those factors, the Tribunal does not consider that the length of the internal process was such that it was outside the reasonable band.[101]Fourth, there was a criticism that certain information was not provided to the dismissing manager, CMcC, in particular the claimant’s statement at p118. However, there was no evidence that the claimant had provided this during the investigation. The claimant’s evidence was that he gave this to his trade union representative and no more than that. He does not assert that it was produced to either TB or CMcC. The evidence of both TB and CMcC, which the Tribunal accepts, was that they had not seen this either during the investigation or at the disciplinary hearing. This is consistent with the contemporaneous documents (for example, TB’s investigation report and the note of the conduct hearing). The Tribunal concludes that, in light of the evidence available, this statement was not provided to the respondent during either the investigation or the disciplinary hearing.[102]It is correct that it was produced at the appeal hearing and the evidence from SM was that this was considered but made no difference to the outcome. In particular, the issue of interviewing the doctors mentioned in the statement was put to SM in cross-examination and she confirmed this was discussed at the appeal but it was felt that this was balanced by the fact that the claimant did not produce evidence from these doctors.[103]Fifth, the claimant complains about certain documents (for example, an email from one of the complainers at p356) not being provided to him. However, the claimant was provided with the statements and interviews prepared by TB which set out the allegations against him and which were available to CMcC as the dismissing manager. There is no suggestion that he did not know the allegations against him. To take the example of the email at p356, this sets out information which was available in the statements and contains nothing new.[104]It was also the case that these documents were not provided to CMcC who had the same documents as the claimant, that is, the investigation report and the appendices to it. There is no suggestion that CMcC had anything else before him when making the decision to dismiss which the claimant had not seen.[105]Sixth, there are broad complaints made by the claimant that the investigation, and the process as a whole, was slanted, assumed his guilt and was predetermined. The Tribunal considers that there was no evidence of this whatsoever.[106]Seventh, there is a criticism that the allegations were framed in terms which did not reflect what was ultimately said in the statements produced as part of the investigation. However, the wording of the allegations was based on what was said in the original complaints and so it was not the case that there was no basis for this wording at all. The wording of allegations is almost inevitably done before the investigation given that, otherwise, the investigator would not know what they were investigating.[107]It would have been better for the respondent to have re-framed the wording (as was eventually done at the appeal) at an early stage to reflect the information obtained in the investigation but the failure to do so does not take the investigation (or the disciplinary process as a whole) beyond the band of reasonable responses.[108]In these circumstances, whilst the investigation (and the process as a whole) was not a counsel of perfection, the Tribunal does not consider that it fell outwith the band of reasonable responses.[109]Having found there had been a reasonable investigation, the Tribunal also considers that the respondent had a reasonable belief that the claimant had committed the misconduct in question. There was certainly evidence from a number of complainers from which the respondent could reach this conclusion and this was not a case where the respondent had no or little evidence.[110]This was also not a case where the claimant had presented evidence which undermined or cast sufficient doubt on the reasonableness of the respondent’s conclusions such that the Tribunal could conclude that the respondent’s belief was not reasonable. The claimant broadly denied the allegations and the respondent was left in the position of deciding which version of events to believe.[111]There was nothing before the Tribunal from which it could conclude that the decision to believe the complainers was unreasonable; the weight of evidence was on the side of the complainers and the respondent was entitled to rely on that.[112]In these circumstances, the Tribunal is satisfied that the respondent had a genuine and reasonable belief, formed after a reasonable investigation, that the claimant had done the conduct in question.[113]Having reached this conclusion, the Tribunal turns to the question of whether the dismissal was procedurally fair. The Tribunal has already addressed the fairness of the procedure insofar as it relates to the investigation and now turns to the broader process.[114]This is a case where the respondent held a disciplinary hearing where the claimant was given the opportunity to answer the charges against him, was allowed to be represented and could bring his own witnesses to support his case. He was also given the right of appeal which he exercised and an appeal hearing was convened to consider that appeal.[115]In these circumstances, the respondent complied with the ACAS Code and, broadly, with their own procedures. There were issues, as set out above, in relation to the length of time which the whole process took and the timings of the process did not wholly follow the respondent’s own procedures (for example, the outcome of the disciplinary hearing was sent to the claimant one day late in terms of the respondent’s own procedure).[116]There is also mention in the respondent’s disciplinary policy (p83) that “written notification” must be sent to an employee within 7 days of the investigation report being submitted. However, the policy does not say of what the employee is to receive written notification; one reading of the relevant section is that it is the fact that the investigation has concluded and is being referred to conduct hearing but another reading is that it is notification of the conduct hearing itself (that is, date and venue). If it was the latter then the claimant did not receive this notification within 7 days.[117]However, the Tribunal does not consider that these matters render the dismissal unfair in themselves.[118]Certain of the criticisms of the procedure made by the claimant as set out above (for example, the length of time, the allegation that the process assume his guilt) applied to more than just the investigation stage and the Tribunal has already addressed why it does not consider that there was any unfairness in respect of these matters.[119]For these reasons, the Tribunal finds that there was no procedural unfairness.[120]Finally, turning to the question of sanction, the Tribunal reminds itself that it is not to substitute its own decision but, rather, it applies the band of reasonable responses test.[121]The Tribunal considers that it is almost inarguable that dismissal falls within the band of responses open to an employer in relation to the conduct in question. The conduct in question was serious and it clearly falls within a number of examples of gross misconduct in the respondent’s code of conduct.[122]The claimant relies on his length of service and clear disciplinary record but these do not provide any real assistance in cases such as this where the conduct is so serious as to warrant dismissal. Further, length of service can often be a “double-edged sword” as an experienced and senior employee such as the claimant can be expected to understand what sort of conduct is and is not acceptable.[123]A submission was made that the conduct did not amount to abuse or neglect and, whilst this may be correct, the conduct does not need to amount to such matters for dismissal to be within the band of reasonable responses. It was clearly mistreatment of patient A which annoyed and upset them being carried out by an experienced and senior employee. The Tribunal considers that dismissal was clearly within the band of reasonable responses for the conduct in question.[124]The Tribunal is satisfied that CMcC put his mind to alternatives but concluded that a lesser sanction was not appropriate given the conduct in question.[125]For all these reasons, the Tribunal finds that the claimant’s claim of unfair dismissal was not well-founded and it is hereby dismissed.