Mr Downey (Counsel) For the v Respondent — 2022

Mr George was employed as a band 5 staff nurse from 17 June 2004 and was working nights on Melstock Ward in November 2019. The disciplinary allegations arose from events on 4 November 2019 concerning whether he had slept on duty, whether he had failed to observe a patient take medication, whether he had failed to complete an incident report when medication was found in the patient's bedroom, and whether he administered a further dose against advice. After investigation, a disciplinary hearing, a reconvened hearing and an appeal, the respondent dismissed him for gross misconduct.

On unfair dismissal, the tribunal accepted Ms Orchard's evidence that she held a genuine belief in misconduct on reasonable grounds after a reasonable investigation, and that the process was not diverted from the respondent's normal approach because the allegations were treated as capable of gross misconduct. It found the dismissal fair and within the range of reasonable responses, including on procedural fairness, noting that the delay was caused by external factors during the COVID period and that Mr George had representation and an appeal.

On race discrimination, the tribunal held that Mr George did not establish facts from which it could infer dismissal because of race. He referred to Mr Sibanda and to a hypothetical comparator, but the tribunal found the comparator evidence lacking and the circumstances materially different, including differences in role and the mixed allegations involving medication and incident reporting. The direct race discrimination complaint was dismissed.

For wrongful dismissal, the tribunal applied the separate question whether the respondent proved on the balance of probabilities that Mr George had actually committed a repudiatory breach. It held that the respondent had not proved that he was asleep on duty or that he failed to observe the medication being taken, so the summary dismissal was wrongful and the claim succeeded; remedy was left to be determined. The complaints for accrued holiday pay and the remaining breach of contract issues were withdrawn before evidence commenced.