Ms Mary Martins v Nightingale Hammerson Trustee Company Limited — 2021

Ms Mary Martins was employed as a Health Care Assistant at Nightingale House and was summarily dismissed on 22 January 2020 after an incident on 9/10 November 2019 involving a resident, TC, and a call bell. The Respondent investigated allegations that she had been physically aggressive or violent, thrown an object, failed to behave politely, and failed to follow person-centred care. The tribunal found that the investigation was reasonably scoped: Mr Nuno Santos Lopes interviewed the Claimant, TC, the colleague who was present that night, and other relevant staff, and gathered both supporting and contrary accounts.

The tribunal accepted that Mr Lopes asked some leading questions of TC, but found that this did not make the investigation unreasonable overall. It relied in part on other staff who said TC later complained that a member of night staff called Mary had thrown the call bell and had been horrible, and on Mr Lopes' inspection of the room, although it accepted the wall mark could not conclusively be linked to the Claimant. It also accepted Nellie Lilagan's evidence that there had been some disagreement about how the call bell was tied, but found that the Respondent had enough evidence to refer the matter to disciplinary hearing.

At the disciplinary hearing, chaired by Mr Simon Pedrizi, the Claimant was represented by her union and had a full opportunity to challenge the investigation and present her account. Mr Pedrizi accepted that the investigation was not perfect, including the issue of leading questions and the uncertainty about the wall mark, but he concluded on the balance of probabilities that there was sufficient evidence of misconduct and that the matters amounted to gross misconduct. On appeal, Ms Helen Simmons upheld dismissal after a further hearing. The tribunal rejected the Claimant's arguments that the process was biased or that a recording issue showed deliberate deletion, and found that the appeal was fairly conducted.

Applying section 98 ERA 1996 and the Burchell test, together with the range of reasonable responses approach, the tribunal held that the Respondent genuinely believed the Claimant had committed the misconduct, had reasonable grounds for that belief, and carried out a reasonable investigation. It also held that dismissal was within the band of reasonable responses, particularly given the seriousness of the allegations and the Claimant's earlier informal action in September 2019 concerning raising her voice and being verbally abusive. The unfair dismissal claim was therefore dismissed. The hearing dealt only with liability; no remedy award was made.