Abuse in care environments has become a hot topic in Ireland over the last number of years. Elder abuse and child abuse were the subject of infamous Prime Time investigations in December 2014 and May 2013 respectively. But what should an employer do if they become aware of a similar abuse scenario? In this article we consider some recent decisions of the EAT on this matter which evidence the importance of following a full and proper disciplinary procedures. A Care Assistant –v- A Nursing Home (UD 567/2013) This case concerned an allegation lodged against an employee by one of their colleagues that the employee had struck two elderly residents. The employee was placed on paid suspension on 28 December 2012 and at an investigation meeting on 03 January 2013 the claimant made conflicting comments such as initially stating that she could not remember striking the residents but subsequently stating that she categorically did not hit any resident. A disciplinary hearing was conducted on 07 January 2013 at the end of which the employee was issued with a pre-drafted dismissal letter. Both the investigation meeting and the disciplinary meeting were conducted by the same person, namely the Operations Manager. EAT Decision - The EAT found this dismissal to be unfair and awarded the employee €15,000 in compensation. In its decision, the EAT did not make any comments on whether or not the employee’s conduct actually warranted dismissal. One can only presume that if there was an independent witness to the alleged events that the employer could have formed a reasonable belief that the employee in question was guilty of the alleged misconduct. That being said, the EAT focused solely on procedural concerns, stating that “fair procedures and natural justice were not adhered to in arriving at the decision to dismiss the claimant. The claimant was not given an opportunity to respond to the allegations made against her and her dismissal was presented to her as a “fait accompli” at the disciplinary hearing”. The EAT did not greatly expand on what the procedural concerns were but it seems quite clear that the reference to the “fait accompli” can only relate to the employer attending the disciplinary hearing with a pre-drafted dismissal letter. This ultimately rendered the disciplinary hearing, and the employee’s defence, moot and a “fait accompli”. However, it is suggested that the EAT would also have been concerned with the following aspects:
- There is no mention of the employee being afforded the right to be represented at either the investigation or disciplinary meetings;
- Both the investigation and disciplinary meetings were conducted by the same person, something which the EAT often find to be unfair on procedural grounds;
A Crèche Worker –v- A Crèche (UD 49/2012) This case concerned a number of incidents involving the employee, all of which took place on 11 March 2011. These incidents were:
- A child was found crying by a radiator and the employer felt the employee ought to have comforted the child;
- Another person had to administer medication to a child in the employee’s care who had a temperature
- A toddler in the employee’s care was found to have wandered by itself into the toilet and was found playing in a toilet bowl;
- A toddler had managed to leave the room on two occasions unaccompanied;
Complaints in respect of the above were received from parents, thus bringing the employer’s reputation into disrepute. The employee was suspended on full pay pending an investigation and witness evidence was obtained. A formal disciplinary meeting took place on 5 April 2011. The employee was afforded the right to bring a representative but didn’t do so. At the hearing the employee admitted to the misconduct and stated that it had been a stressful day and that she ought to have had a colleague working with her. The employee was ultimately dismissed. The employee appealed the dismissal but the appeals officer upheld the original decision. EAT Decision - The EAT found this dismissal to be unfair and awarded the employee €15,000 in compensation. In its decision, the EAT stated that they did not feel the employee’s behaviour warranted a gross misconduct dismissal. In that respect they noted that whilst the employer asserted that the incidents were so serious that they warranted dismissal, the employer did not notify parents that these incidents had occurred, thus undermining the severity. The EAT also criticised the fact that the crèche doors did not have a locking mechanism to prevent children from leaving the room. A Nursing Home -v- A Care Assistant (UD 690/2014) - This case concerned a complaint lodged on 20 March 2013 by an elderly resident regarding the employee’s conduct, namely that the employee “had hit her on the leg and had been very rude and wagged his finger at her”. On 21 May 2013, the employee was placed on paid suspension pending a full investigation. The employer alleged that CCTV footage corroborated the resident’s complaint and that inappropriate contact and finger wagging had occurred. An investigation meeting took place on 25 March 2013 at which the employee was not offered the right to be represented. The matter progressed to a further disciplinary hearing which was conducted by a different manager after which the employee was dismissed on 1 May 2013. The appeal hearing was conducted by an independent third party who worked in the field of social care and ultimately the decision to dismiss was upheld. The employee was represented at both the disciplinary and the appeal hearing. EAT Decision - On the basis of the above information it seems as though the employer had a very strong case. It seems a fairly standard disciplinary process was followed with strong evidence from the resident and also CCTV footage. However, the EAT awarded the employee €30,000 due to procedural concerns. Similar to the first case above, the EAT did not make any finding as to whether or not the conduct warranted dismissal and issued the award purely due to procedural concerns. Those concerns were as follows:
- The employer had not followed their own procedural requirements outlined in “health board provisions”. thus, it seems that the employer had adopted the HSE’s Trust In Care Policy but had not followed certain elements of that process, such as;
- The investigation meeting ought to have been conducted by way of joint investigation, with two persons jointly responsible for determining of the matter should progress to the disciplinary stage;
- The employee ought to have been afforded the right to representation at the initial investigation meeting;
- The employee ought to have been afforded the right to review the CCTV footage before the first investigation meeting;
- The investigation officer had gone beyond his remit of finding facts and had instead reached conclusions in respect of the employee’s conduct
Based on the procedural concerns at the investigation stage, the EAT concluded that the entire process was tainted with unfairness and thus, ultimately, the dismissal was unfair. Conclusions and Learning Points The key points that can be taken from the above, in terms of unfair dismissal claims, are as follows:
- Even though employee conduct may be classified as “abuse” that does not automatically mean that it will warrant gross misconduct dismissal. The crèche case above is a prime example, particularly when you consider that the toddler was playing in a toilet bowl.
- In the two nursing home cases above the EAT did not make any finding on the severity of the employee’s conduct and instead focused solely on procedural concerns. As such, it may well be the case that had a proper disciplinary procedure been conducted that the EAT would have found these dismissals to be fair and justified. Therefore, the importance of fair process cannot be underestimated.
If your company is faced with any allegations of abuse, or any misconduct concerns in general, then please do not hesitate to contact one of our experienced consultant 24/7 on 01 855 50 50.
