Mrs Gillian MacDonald v Western Isles Health Board — 2020

Mrs Gillian MacDonald worked for Western Isles Health Board as a Clinical Support Worker in the Radiology Department until her dismissal on 2 September 2019. The dismissal arose from an incident on 17 April 2018 between the claimant and Dr Peter Bell, Consultant Radiologist. The claimant brought a grievance alleging that Dr Bell had been abusive and aggressive, accessed her medical records, and made comments about trade union membership and lateness; Dr Bell gave a materially different account and said it was the claimant who shouted and behaved aggressively.

The tribunal preferred the respondent’s evidence on the grievance investigation. It found that the claimant had not shown, on the balance of probabilities, that she delivered two grievance letters on or about 2 May 2018, and found that the grievance was not lodged until 21 September 2018. On the substance of the incident, the tribunal accepted that the two witnesses outside Dr Bell’s office, Marie Morrison and Christina MacPhail, heard the claimant speaking angrily and shouting, but did not hear Dr Bell raise his voice or say anything consistent with the claimant’s allegation of an aggressive onslaught. The grievance was not upheld because the accounts were diametrically opposed and the claimant’s version was not corroborated.

Following the grievance investigation, the respondent commenced disciplinary proceedings on the basis that the claimant’s allegations against Dr Bell were vexatious. At the disciplinary hearing and the appeal, the claimant did not give detailed evidence to explain why her complaint was not vexatious. The tribunal held that the respondent had an honest belief that the claimant’s allegations had been made vexatiously, that there were reasonable grounds for that belief, and that the investigation was reasonable, including on the issue of possible collusion between witnesses. The appeal process also addressed that issue and, taken as a whole, the procedure was fair.

Applying the Burchell principles and the range of reasonable responses test, the tribunal concluded that dismissal for gross misconduct fell within the reasonable range open to a reasonable employer. It found that the claimant had acted dishonestly, that the allegation had been made without proper foundation, and that the conduct damaged the relationship of trust and confidence. The unfair dismissal claim was therefore dismissed.