Mrs Y Price v The Royal Leicestershire Rutland and Wycliffe Society for the Blind (a registered charity) T/a VISTA: 6007921/2024
JUDGMENT
[1]The claim of unfair dismissal is not well founded and is dismissed.REASONS
[1]At the start of the hearing, I discussed with the parties whether the respondent named in the proceedings: ‘VISTA’, was a legal entity capable of employing the claimant and having legal proceedings brought against it. The respondent’s witnesses informed me that VISTA is the trading name of the registered charity known as The Royal Leicestershire Rutland and Wycliffe Society for the Blind, and that the claimant’s employer was the registered charity.[2]With the agreement of the parties, I stated I would substitute the trading name of the charity for its registered name so that the name of the employer was named as the respondent in the proceedings.The claims
[3]The claimant, Mrs Price, accepted that the only claim pleaded in her claim form was one of unfair dismissal. However, from her witness statement and schedule of loss, it appeared that she may be seeking to pursue the following additional claims not identified in her claim form and not communicated to the respondent in these proceedings before she served her witness statement two weeks before the final hearing:a. Breach of contract for unpaid notice pay.b. A redundancy payment on the basis that the real reason for the dismissal was redundancy.c. Disability discrimination in relation to the dismissal.[4]After discussing the new potential claims with the parties and standing the matter down to give Mrs Price time to consider her position with her companion, Mrs Price decided not to apply to amend her claim form to pursue the additional potential claims.[5]With the agreement of the parties, the tribunal therefore moved on to decide the only claim before it: unfair dismissal for alleged gross misconduct. The response[6]It appeared to the tribunal from the response, that, in addition to conduct as a reason for the dismissal, the respondent may be seeking to rely on some other substantial reason, namely breach of trust, as an alternative reason for the dismissal.[7]After discussing the alternative reason for the dismissal with the respondent’s representative, Mrs Richards stated that the sole reason relied upon by the respondent for the dismissal was conduct: namely two medication errors within a 3 month period.Remedy
[8]Mrs Price stated that she was not seeking re-engagement or reinstatement as the care home at which she had previously worked for the respondent had closed at some point after her employment ended. Written evidence[9]Mrs Price sought to rely on a witness statement from herself served 3.5 months late and only two weeks before the final hearing. As Mrs Price stated that she had not received the case management order dated 9/8/24 (“the CMO”) from the tribunal and the respondent took no objection to her relying on her out-of-time witness statement, I allowed Mrs Price to rely on it as it was in the interests of justice that I do so.[10]Two weeks before the hearing, Mrs Price filed with the tribunal four emails purporting to contain witness evidence from four former colleagues. As Mrs Price alleged that she had not received the CMO, I indicated that I would disregard the fact that the evidence of the colleagues had not been filed and served in the format and by the date ordered in the CMO. However, the 4 former colleagues had not attended the hearing so their evidence could not be tested by the respondent and the respondent indicated that it would object to Mrs Price relying on the emails as evidence as it was either too vague to be investigated or it had been received too late for a fair opportunity to investigate it. The respondent had not received the emails from the tribunal until 6 days before the hearing.[11]I indicated to Mrs Price that I could still consider the emails and attach appropriate weight to them given their lateness and the fact that the witnesses had not attended the hearing; alternatively, I could consider any application for an adjournment if she wished fully to rely on the evidence of her former colleagues.[12]After an opportunity to consider her position, Mrs Price decided she did not wish to rely on the emails as evidence in support of her claim and I therefore indicated that I would disregard them.[13]The respondent sought to rely on three witness statements filed and served a week out of time from three witnesses who had attended the hearing to give evidence. Mrs Price did not object to the respondent relying on the out-of-time witness statements and it was apparent that she had prepared to ask questions of the witnesses. I therefore permitted the respondent to rely on the out-of-time witness statements as it was in the interests of justice that I do so. The bundle[14]At the start of the hearing, I was provided with a 364-page electronic bundle which had not been received by the tribunal in advance. The respondent stated that hard copies of the bundle had been sent to Nottingham Employment Tribunal in advance of the hearing for the judge and the witness table. However, I was informed that no such bundles had been received.[15]The respondent’s representative provided the tribunal clerk with an electronic copy of the bundle and persuaded him to make two paper copies. These were provided by the time that the preliminary matters set out above had been dealt with.[16]Given the size of the bundle and the lateness with which it was provided, with the agreement of the parties, I stated that I would only consider pages to which I was referred by the parties during the course of the hearing.The issues
[17]The parties agreed that the sole claim for determination was one of unfair dismissal for alleged gross misconduct for two alleged medication errors within 3 months. The parties agreed that liability issues should be decided by the tribunal before any remedy issues were considered. The parties agreed that the claim was brought in time, that the claimant was an employee of the respondent, and that the claimant had been dismissed for the potentially fair reason of conduct. The parties agreed the following issues for determination:a. Did the respondent genuinely believe that the claimant had committed the alleged misconduct?b. Did the respondent act reasonably in all the circumstances in treating that as a sufficient reason to dismiss the claimant? i. Were there reasonable grounds for that belief? ii. At the time the belief was formed had the respondent carried out a reasonable investigation? iii. Did the respondent otherwise act in a procedurally fair manner? iv. Was the dismissal within the range of reasonable responses? Agreed factual background[18]The claimant, Mrs Price, aged 58 at the date of her dismissal, was an employee of the respondent for 26 years from 13/10/97 until 20/5/24 when she was dismissed without notice for alleged gross misconduct. Throughout the period of employment, Mrs Price worked at a residential home run by the respondent and known as the Kathleen Rutland Home for the Blind, 117 Hinckley Road, Leicester Forest East, Leicester (“the home”). From November 2022, Mrs Price was employed as the assistant manager of the home. At the time of the dismissal, Mrs Price was working 30 hours a week and earning approximately £21,650 per annum.[19]The respondent is a registered charity in Leicestershire and Rutland supporting and providing care and specialist services to people with sight loss, learning disabilities, dementia, and dual sensory impairment. The respondent was responsible for the home. It employed 64 people at the home and 187 people in Great Britain.[20]On 30/1/24, Mrs Price made a medication error by giving a resident at the home someone else’s medication.[21]On 31/1/24, the respondent investigated the medication error, reviewed Mrs Price’s competency to administer medication, issued her with a certificate of successful completion of medical practice and said there were to be no further errors within 3 months.[22]On 10/4/24, Mrs Price gave another resident at the home someone else’s medication.[23]On 17/4/24, the respondent held an investigation meeting with Mrs Price.[24]On 10/5/24, Mrs Price was invited to a disciplinary hearing arranged for 15/5/24.[25]On 15/5/24, Mrs Price participated in a disciplinary hearing at which she admitted to the two medication errors above.[26]On 20/5/24, Mrs Price was dismissed without notice.[27]On 24/5/24, Mrs Price appealed the dismissal decision.[28]On 4/6/24, Mrs Price participated in an appeal hearing at which the appeal was dismissed.[29]The home at which Mrs Price worked closed at some point after the dismissal.[30]On 1/7/24, Mrs Price entered a period of ACAS conciliation which ended on 18/7/24.[31]On 7/8/24, Mrs Price presented a claim of unfair dismissal to the tribunal. Positions of the parties[32]Mrs Price alleged that the dismissal was substantively unfair because the sanction imposed for her admitted wrongdoing was too severe because she had admitted it at the first opportunity and had been open and honest and had not tried to cover up her mistakes; the residents did not suffer harm as a result of the mistakes; their families were supportive of her and did not want her to face any action; no or insufficient account had been taken of her length of service and health conditions (particularly bereavement stress and long covid causing loss of concentration); and dismissal was inconsistent with how her colleagues had previously been treated for medication errors. Mrs Price thought that the real reason for the dismissal was her poor sickness record.[33]Mrs Price alleged that the dismissal was procedurally unfair because she was not told that she may suffer disciplinary action if there was a second medication error within 3 months; she was not told that dismissal was a possible outcome from the disciplinary process; the respondent’s HR manager was present at both the disciplinary and the appeal meetings; the allegations were exaggerated because no harm had been suffered by the residents and there was no evidence that the first resident could not verbalise her thoughts and no evidence that Mrs Price had given the second resident a double-dose of medication and yet she was accused of the latter two matters.[34]The respondent alleged that the decision to dismiss without notice was within the band of reasonable responses of a reasonable employer.[35]The parties agreed that the main issue for me to decide was whether the decision to dismiss without notice was within the band of reasonable responses of a reasonable employer. Evidence at the hearing[36]I received witness statements and heard oral evidence from the following witnesses in the following sequence:a. Mr Stephen Payne – the respondent’s Director of Care and Services and the dismissing officer.b. Mr Aadil Kazi – a trustee of the respondent and the appeal officer.c. Mr Steven Briggs – the respondent’s People Manager.d. Mrs Price – the claimant. Factual findings on the balance of probabilities[37]Numbers in brackets refer to page numbers in the electronic final hearing bundle.[38]Mrs Price has the conditions of diabetes, anxiety, depression, bronchiectasis, asthma, and long covid. She had a poor sickness record.[39]Mrs Price has been administering medication to residents of the home since 2002.[40]In February 2017, Mrs Price left a medication cupboard door open and misplaced the keys for it in the office. This was investigated as an allegation of a serious failure of acceptable standards of conduct in relation to the secure storage of medications within the home. However, as Mrs Price was under increased stress at the time because another Senior had attended late for her shift, Mrs Price was informed in April 2017, following a disciplinary process, that she would face no disciplinary sanction (313).[41]In August 2018, Mrs Price signed for antacid medication but did not give it to the resident and she did not sign a controlled drug into the controlled drug book. Following a disciplinary process, on 31/8/18, Mrs Price was issued with a first written warning to remain in force for 12 months (306-7).[42]Mrs Price asserted that the above mentioned medication errors were used against her in the disciplinary process which led to her dismissal, despite the warning having expired. There was no evidence that this was the case. I find that the admitted errors in 2017 and 2018 did not contribute to the respondent’s decision to dismiss Mrs Price in 2024.[43]On 22/4/21, Mrs Price informed the respondent, after a period of sickness absence, that she was glad to be returning to work on a phased return, that she felt fatigue and back pain, and she was waiting to hear from the Covid clinic in relation to Long Covid, but that she could complete all tasks at work (280). In or about April 2021, the respondent agreed to adaptations for Mrs Price to accommodate her health conditions (189). None related to the giving of medication to residents of the home.[44]Between October 2023 and early January 2024, Mrs Price took several weeks of leave (a combination of annual and sick leave) due to illness and bereavements relating to her father, sister and mother in law.[45]Mrs Price returned to work on 8/1/24 (193). Although Mrs Price alleged in her witness statement that she felt coerced into coming back to work too soon after the family bereavements, she attended a return to work meeting on or about 15/1/24 at which she informed her supervisor that she felt able to return to work (193).[46]Mrs Price asserted during her oral evidence that she did not know how the family bereavements would affect her at work until she made the first medication error. Mrs Price felt certain she would be able to administer medication to residents. Mrs Price was unable to tell me why she had made the mistakes.[47]I find that Mrs Price was not coerced into returning to work too soon in January 2024. First medication error[48]At 20.20 on 30/1/24, while distracted, Mrs Price gave a resident a tablet intended for someone else (131 and 138).[49]On 31/1/24, the incident was investigated at an investigation meeting (140). Mrs Price accepted that she should not have allowed herself to be distracted by another resident when there were 3 seniors on duty at the time, that she “had done everything wrong” and had “no excuse” (140).[50]Mrs Price repeated medication training and was re-certified as fit to continue administering medication. Mrs Price’s manager went through medication protocols with her (136). Mrs Price was informed that there were to be no more medication errors in the next 3 months.[51]A note from Mrs Price’s line manager at (137) states that Mrs Price was told any more medication errors in the next 3 months “could result in further action being taken”.[52]A note of the investigation meeting (141) states that Mrs Price was told: “This time I will competency you but going forward we need to ensure this doesn't happen again. You need to plan your shifts better especially when there was [sic] 3 seniors. This is not good and cannot happen again. I think I have been very fair but this will have severe consequences if it happens again. I don't understand how this happened as you were blessed with 3 seniors on duty, it should have been better planned and organised. This should have avoided a meds error but didn't and this concerns me. We will re-competency you and must ensure you thoroughly read dossetts. Don't become complacent as it could cost you your job.”[53]The note suggests that Mrs Price replied: “I understand this and I accept this. I can't believe I did it and I am sorry.”[54]During the hearing before me, Mrs Price was adamant that she was unaware that disciplinary action could result from a second medication error within 3 months. However, I find otherwise. Mrs Price did not challenge the accuracy of the above-mentioned notes, and I have no reason to doubt them. On that basis, I find that Mrs Price was aware that disciplinary action including dismissal could result from a second medication error within 3 months. The notes record that Mrs Price was told that another error could result in further action being taken, could result in severe consequences and that complacency could cost Mrs Price her job.[55]I also find, on the above notes, that the respondent’s dismissing and appeal officers were entitled to believe that Mrs Price had been warned that further medication errors within 3 months may result in disciplinary action including dismissal. I accept, on the witness statement of the dismissing officer, that this is in line with the respondent’s practice. Second medication error[56]At 09.00 a.m. on 10/4/24, Mrs Price gave a resident someone else’s medication. In her report of the incident, Mrs Price stated: “I gave another person’s tablets to [X] this morning. She had already had her own tablets. I realised when they were in her mouth and it was too late to stop her swallowing them.” (123)[57]Although I accept Mrs Price’s oral evidence during the hearing that she did not give both doses of medication to the resident, Mrs Price’s error resulted in a resident receiving a double dose of medication. On the basis of the above note, the dismissing officer wrongly thought that Mrs Price had administered both doses. Although he should perhaps have checked his belief with Mrs Price by putting it to her (and he accepted before me that there is no evidence that he did) his mistake was understandable given the wording of Mrs Price’s contemporaneous note set out at para 56 above. Investigation[58]On 17/4/24, Mrs Price participated in an investigatory meeting at which both medication errors were considered (115-118). Mrs Price admitted to having given the wrong medication to the wrong person on both occasions. On the second occasion, and unknown to Mrs Price at the time, the resident had already been given her own medication by one of Mrs Price’s colleagues.[59]At the investigation meeting, Mrs Price was very apologetic. She explained that she had long covid and suffered with brain fog and loss of concentration but that it was up to her to pace herself and to cope with that when administering medication to residents.[60]On 18/4/24, a report found that Mrs Price had made the same mistake twice (120). On 30/1/24 and 10/4/24, Mrs Price had given the wrong medication to the wrong person. On the second occasion the resident had already had her medication. Although Mrs Price had admitted to the errors, been apologetic and had taken full accountability, the errors were found to be serious and in breach of 5 of the 7 Rs in relation to medication administration: Right person, Right medication, Right time, Right dose, Right route, Right record keeping, Right to refuse. The second error had also come shortly after Mrs Price had been retrained. Disciplinary action was recommended.[61]On 23/4/24, Mrs Price was invited to a disciplinary hearing to take place on 1/5/24, to consider the following allegations:(a) On 10/4/24, she administered the wrong medication to the wrong resident who had already had her medication;(b) On 30/1/24, she administered the wrong medication to the wrong resident.[62]Mrs Price was invited to bring a companion to the meeting.[63]The meeting did not take place on 1/5/24. It was subsequently rearranged for 8/5/24 but Mrs Price was off sick that day.[64]On 15/5/24, the disciplinary hearing took place at which Mrs Price was content not to be accompanied. A note of the hearing is at (155-158). Mrs Price offered no excuse. She was unable to offer any reason for her mistakes other than that she was flustered when she shouldn’t have been and may have been affected by the death of her father. Mrs Price admitted to having breached 5 of the 7 Rs. She accepted that the consequences could have been serious and could have caused someone to die. She accepted that the respondent could have ended up in court over the issue.[65]It is clear to me from a careful reading of the note of the disciplinary hearing and the oral evidence I heard from the decision-maker that he found the decision in relation to sanction very difficult because of the seriousness of the potential outcome and risk of repetition on the one hand, and because of Mrs Price’s length of service, few previous misdemeanours, contrition and determination for there to be no repetition on the other. 5 days of deliberation followed before a decision on sanction was reached.[66]On 20/5/24, the respondent dismissed Mrs Price without notice for administering the wrong medication to the wrong person on 30/1/24 and 10/4/24. The following reasons were given for the dismissal in the dismissal letter (164-165):(a) You have worked for [the home] for 27 years. Of those 27 years, 22 of those have been as a senior assistant manager as well as administrator administrating medication to residents. Whilst I accept this alone is not a factor for gross misconduct it has a significant place within this.(b) The severity of the two medication errors. The first medication error in January resulted in the resident not being able to take their own prescribed medication. The second medication error in April was an overdose of three times the normal dosage of one medication, as well as being a mixture of drugs that could have had a detrimental effect on the resident’s cardiovascular system (heart), namely, the slowing down of the heart and decreased blood pressure, as well as possible side effects including but not limited to, nausea and unsteadiness.(c) A further factor is that for both medication errors, medication was administered that was not prescribed to either of the two residents.(d) All medication is administered following the 7 Rs of medication administration. You, yourself, admitted in the disciplinary hearing that you ignored 5 of these Rs when administering the medication.(e) Both medication errors happened within a short time period of each other, this was despite you retaking medication competency checks in between the two errors.(f) All the above leads me to believe that there is now a significant risk presented by yourself to the residents of the [home] if I keep you in the position of assistant manager, even though you, yourself felt you didn't present a risk. However, both these medication errors could have led to very serious issues for the residents, which is why I feel the outcome warrants termination due to gross misconduct. Due to the termination being on the grounds of gross misconduct you will not receive any notice period.[67]Although Mrs Price considered from the wording of the allegation set out at (b) above that she had wrongly been found to have administered a triple dose of medication to the second resident, I do not accept that this is the only way of reading the letter. This was also not a finding in the disciplinary process. As I have already found above, it was not put to Mrs Price that she was being accused of administering all the medication taken by the second resident and this was not an accusation in the invitation to the disciplinary hearing. I find that the wording of the allegation merely reflects that, as a matter of fact, and as accepted by Mrs Price, the second resident received more than one dose of medication. Alternatively, the wording at (b) was a fair reflection of the respondent’s reasonably held but mistaken belief based on Mrs Price’s contemporaneous note set out at para 56 above and discussed at para 57 above.[68]On 24/5/24, Mrs Price appealed (167). Mrs Price considered that her length of service had been used against her, the sanction was disproportionate, the residents had not been harmed, the first incident could not be gross misconduct if she had continued to administer medication thereafter, her fatigue and brain fog had been overlooked, her disability of diabetes had not been considered, her poor health and sickness record and disabilities had been used as an opportunity to get rid of her, and medication mistakes by others had been covered up whereas she had been honest about them.[69]On 29/5/24, Mrs Price was invited to an appeal meeting arranged for 4/6/24 at which she was invited to be accompanied.[70]On 4/6/24, an appeal meeting took place at which all Mrs Price’s grounds of appeal were considered with her. The meeting notes are at (176-180). Mrs Price was accompanied to the appeal meeting by a trade union representative.[71]During the appeal meeting, Mrs Price submitted that her length of service should have been treated as a positive and not been disregarded because she had not made such mistakes before despite many years of service. She said that she had been open about her mistakes whereas others had covered them up and had not disclosed them. Mrs Price alleged that lots of serious errors had been made, and she had seen employees go to disciplinaries, but they had not been dismissed. She said people had done the same thing and had not been dismissed. Mrs Price complained that the disciplinary process had focused on the worst case scenario: on what could have happened to the residents rather than the fact they were unharmed. She complained that she had not been warned that a second error could lead to further action and that the effect of her fatigue, brain fog, bereavements and other illnesses had been overlooked. Mrs Price alleged that the real reason for her dismissal had been her poor sickness record.[72]On 7/6/24, all Mrs Price’s written grounds of appeal were dismissed on, what I find was a fair and reasonable basis (182-185). The appeal outcome letter addressed Mrs Price’s concerns about how the respondent had treated her length of service. In relation to the allegation of a culture of cover-ups, it stated that Mrs Price was expected to report errors and communicate mistakes to safeguard the residents. It stated that all medication errors are serious as they can have serious consequences. It disputed that the first error had not constituted gross misconduct and that no action had been taken in relation to it. It disputed that Mrs Price’s brain fog had been overlooked. It recognised that Mrs Price had raised the issue of brain fog at the investigatory meeting and that she had said it was up to her to cope with it.[73]The appeal letter does not address the allegation raised by Mrs Price at the end of the appeal hearing that: “People done same thing and not dismissed” (180). However, this allegation was not in Mrs Price’s written grounds of appeal (167). In his witness statement, Steven Briggs, the respondent’s People Manager, stated that during the appeal hearing Mrs Price suggested that: “other people not been dismissed for making the same errors. The claimant provided no evidence of this and the appeal was dismissed.”[74]Mrs Price’s claim form (8) does not allege that others have not been dismissed for medication errors. It repeats the allegation made in the grounds of appeal that medication errors have been covered up, but it does not allege that Mrs Price’s colleagues have not been dismissed for medication errors.[75]In her witness statement, Mrs Price states: “Others had made more serious errors where harm was caused and had not been subject to dismissal.” During her oral evidence, Mrs Price stated that such errors had occurred within 3 months. Mrs Price also stated that she had not known anyone to be dismissed for a medication error.[76]In making findings of fact on the issue of inconsistent treatment, I have considered the following. Mrs Price raised the allegation for the first time during the appeal hearing that people had done the same thing as her and had not been dismissed. However, no evidence was provided by Mrs Price in support of that allegation. The allegation is not repeated in the claim form, and, in its Response, the respondent denies a culture of cover-up and avers that all medication errors are investigated and dealt with in accordance with internal policies (33).[77]In these proceedings, the allegation that colleagues have caused harm with medication errors but have not been dismissed is made for the first time in Mrs Price’s witness statement dated 9/2/25 which was not received by the respondent until 2 weeks before the hearing. The difficulty for the respondent in addressing the allegation is that no more details are given, no evidence is provided in support of the allegation, and the allegation was made at a very late stage in the proceedings.[78]In the circumstances, I cannot find, on the balance of probabilities, that Mrs Price’s colleagues have been treated differently by the respondent in sufficiently similar circumstances to hers. The burden is on Mrs Price to prove her allegation. Mrs Price has provided insufficient evidence on which I can find as a fact that senior colleagues have not been dismissed despite making two medication errors within 3 months and despite having been retrained after the first error.[79]For the reasons set out above, I have not taken account of the emails from Mrs Price’s colleagues received by the respondent less than a week before the hearing.[80]The respondent’s People Manager, Mr Briggs, was present at both the disciplinary meeting and the appeal meeting as a note taker and advisor. I accepted his oral evidence that he played no part in the decision-making of either the dismissing officer or the appeal officer. I reject Mrs Price’s assertion that the disciplinary and appeal process was unfair because he was present at both meetings in an advisory capacity. Law[81]Employees with more than 2 years’ service (s. 108(1) Employment Rights Act 1996 “ERA”) have the right not to be unfairly dismissed (s. 94(1) ERA).[82]Per s. 98(1) ERA, in determining whether the dismissal of a qualifying employee is fair or unfair, it is for the employer to show the reason or principal reason for the dismissal and that it falls within subsection (2) of s. 98 ERA or some other substantial reason so as to justify the dismissal of an employee holding the position which the dismissed employee held.[83]Per s. 98(2)(b) ERA, a reason relating to the conduct of the employee falls within subsection (2).[84]Per s. 98(4) ERA, where the employer has fulfilled the requirements of subsection (1) of s. 98 ERA, the determination of the question whether the dismissal is fair or unfair (having regard to the reason shown by the employer) depends on:(a) whether in the circumstances (including the size and administrative resources of the employer’s undertaking) the employer acted reasonably or unreasonably in treating it as a sufficient reason for dismissing the employee; and(b) shall be determined in accordance with equity and the substantial merits of the case.[85]The test referred to at s. 98(4)(a) ERA is often referred to as the so-called ‘band of reasonable responses’ test. It is to be applied in line with the authority of Iceland Frozen Foods Ltd v Jones [1983] ICR 17, EAT, as follows:a. The tribunal must consider the reasonableness of the employer’s conduct, not simply whether they (the members of the … tribunal) consider the dismissal to be fair;b. In judging the reasonableness of the employer’s conduct [a] tribunal must not substitute its decision as to what was the right course to adopt for that of the employer;c. in many (though not all) cases there is a band of reasonable responses to the employee’s conduct within which one employer might reasonably take one view, another quite reasonably take another;d. the function of the … tribunal, as an industrial jury, is to determine whether in the particular circumstances of each case the decision to dismiss the employee fell within the band of reasonable responses which a reasonable employer might have adopted. If the dismissal falls within the band, the dismissal is fair; if the dismissal falls outside the band, it is unfair.[86]Dismissal for gross misconduct is not automatically fair (Brito-Babapulle v Ealing Hospital NHS Trust [2013] IRLR 854, EAT). However, it will usually be fair (whatever the circumstances), unless, for example, the mitigating factors are such that no reasonable employer would have dismissed (East of England Ambulance Service NHS Trust v Sanders EAT 0319/15).[87]Within the reasonableness test set out at s. 98(4) ERA, is the concept of ‘equity’ or fair play. In this case, Mrs Price asserts that her dismissal for misconduct was unfair because of inconsistent treatment. Colleagues who have made medication errors have allegedly not been dismissed for doing so.[88]Although inconsistency of punishment may give rise to a finding of unfair dismissal because employees who behave in much the same way should receive much the same punishment, there must be sufficient evidence of inconsistent treatment, and an employer is entitled to considerable latitude in the way it deals with a particular case (Post Office v Fennell [1981] IRLR 221, CA).[89]The EAT in Hadjioannou v Coral Casinos Ltd [1981] IRLR 352, EAT, emphasised the employer’s right to flexibility in relation to consistency of treatment. The EAT accepted that a complaint of unreasonableness based on inconsistency of treatment would only be relevant in limited circumstances:a. Where employees had been led by their employer to believe that certain conduct would not lead to dismissal;b. Where others had been dealt with more leniently supported a case that the stated reason for dismissal was not the real reason;c. Where decisions made by an employer in ‘truly parallel’ (later held by the EAT in Doy v Clays Ltd EAT 0034/18 to have meant ‘truly or sufficiently similar’) circumstances indicated that it was not reasonable for the employer to dismiss.[90]Where two employees involved in the same incident have been treated differently, the question is whether the decision to treat them differently is so irrational that no reasonable employer could have made it (Securicor Ltd v Smith [1989] IRLR 356, CA. The Securicor case is authority for the point that the question of consistency is subject to the band of reasonable responses test so tribunals should not substitute their own view for that of the employer.[91]Provided the assessment of similarities and differences between different cases is one a reasonable employer could have made, the tribunal should not interfere even its own assessment would have been different (Wilko Retail Ltd v Gaskell & another EAT 0191/18). Decision / conclusions on the issues[92]Having set out the issues for determination and the factual and legal background above, my reasoned decisions on the issues follow.[93]In my judgment the respondent genuinely believed that Mrs Price had committed the alleged misconduct because she admitted to having done so.[94]The alleged misconduct was that, on 30/1/24, Mrs Price gave the wrong medication to a resident and then, after she had been re-trained and re-certified to administer medication to residents and warned that any further medication errors within 3 months may result in further action being taken against her, she repeated the first error by giving the wrong medication to another resident on 10/4/24.[95]In my judgment, the respondent acted reasonably in all the circumstances in treating the misconduct set out above, as sufficient reason to dismiss the claimant without notice.[96]The respondent had reasonable grounds for believing that Mrs Price had committed the misconduct because she admitted to having made the medication errors. The admissions were part of a reasonable investigation into the alleged wrongdoing. Each medication error was reasonably investigated.[97]The dismissal was otherwise procedurally fair. There was no evidence of any breaches of the ACAS Code of Practice on Disciplinary and Grievance Procedures. In relation to Mrs Price’s alleged procedural breaches, I have found that she was told she may suffer disciplinary action including dismissal if there was a second medication error within 3 months. I do not find it procedurally unfair that the HR Manager was present and advising at both the disciplinary and appeal meetings because he took no part in the decision-making processes. Advising and decision-making are different roles.[98]I am not satisfied that Mrs Price was wrongly accused of giving a resident a double or triple dose of medication. The accusations are set out above. My findings on the wording of the dismissal letter are also set out above. I find that any misunderstanding between the parties as to whether the first resident could verbalise how she felt after the first medication error and as to whether Mrs Price had given the second resident all the medication which she took, did not make any difference to the dismissal decision.[99]In my judgment Mrs Price has not established her allegations of procedural unfairness set out above.[100]In relation to the allegations of substantive unfairness, I find as follows.[101]I agree with the opinion of the respondent, which was not disputed by Mrs Price, that medication errors may have very serious adverse consequences for the victim. In my judgment, Mrs Price owed a duty of care to ensure that those to whom she was administering medication received the correct medication. She was very experienced, and she had been re-trained after the first error. That the victims of her mistakes did not suffer serious harm was fortunate. It was not a reasonable basis for reducing the sanction. The respondent was entitled to take into consideration that the consequences of such errors could have been very serious. I do not find that the allegations were exaggerated because no harm was suffered by the residents. That the families of the victims of the errors were supportive and understanding of Mrs Price’s mistakes was fortunate. It was not a reasonable basis for reducing the severity of the sanction. The sanction was not a matter for the families. It was solely a matter for the respondent. If serious consequences had resulted from Mrs Price’s medication errors, I suspect that the families would have been less supportive of Mrs Price. That Mrs Price was suffering from health conditions and life experiences which may have contributed to causing the errors she made were not overlooked by the respondent and would not stop a reasonable employer from dismissing an employee in the circumstances. A reasonable employer was entitled to the view held by the respondent that Mrs Price’s second error, so soon after re-training and after a warning of the consequences of a second error, resulted in a risk to the safety of the residents of the home if Mrs Price was to continue doing her job which included administering medication. By admitting to the mistakes at the outset, Mrs Price was doing her job as a Senior at the home. Such admissions did not justify a lesser sanction.[102]In relation to the consistency of treatment, as set out above, I am unable to find that, by the dismissal, Mrs Price was treated by the respondent more harshly than colleagues in truly or sufficiently similar circumstances. As set out above, I have insufficient evidence to make such a finding and I am therefore unable to find that, for this reason, the dismissal was outside the band of reasonable responses of a reasonable employer.[103]In my judgment, Mrs Price was not led by the respondent to believe that 2 medication errors within 3 months would not lead to dismissal. I have already found that Mrs Price was warned after the first error that a repeat within 3 months could result in dismissal.[104]I have not found that others in substantially similar circumstances were treated more leniently than Mrs Price. The second Hadjioannou factor, that more lenient treatment supports misconduct not being the real reason for the dismissal, does not arise for consideration. Alternatively, there was insufficient evidence that the real reason for the dismissal was not the admitted misconduct.[105]In all the circumstances, in my judgment the dismissal was within the band of reasonable responses. I am not permitted to substitute my own view of the reasonableness of the decision to dismiss without notice. I accept that some reasonable employers would not have dismissed Mrs Price in the circumstances. However, in my judgment, some reasonable employers would have dismissed Mrs Price in the circumstances and therefore the claim of unfair dismissal is not well founded and is dismissed. Postscript[106]I would like to thank the parties, the witnesses and the respondent’s legal representative for the pragmatic way in which they participated in the hearing and for the help I received to decide this case. I wish all involved all the best for the future. I appreciate that Mrs Price may be disappointed with my decision, but I hope that she can see that I have considered her case carefully and that I have applied the law as I understand it to be to the facts as I have found them.