Mr A Manley v Represented by: Mr M Briggs Solicitor Tayside Health Board — 2019

The claimant, a mental health nurse at the respondent’s Intensive Psychiatric Care Unit, was dismissed after a disciplinary process arising from an incident on night duty on 31 May into 1 June 2016 involving Patient A, who was 16 years old. The investigation concerned allegations that the claimant had used inappropriate restraint techniques, used abusive language, and assaulted the patient. The tribunal recorded that the claimant accepted at the disciplinary hearing that he had lost control, had sworn in the patient’s presence, had stood on the patient’s calves/legs when leaving the room, and had given evidence that he accepted others’ accounts that he had kneeled on the patient’s head and neck area during the restraint.

The tribunal found that the respondent had established a potentially fair reason for dismissal, namely conduct under s.98(2)(b) ERA 1996. Applying the Burchell approach, it held that the disciplinary panel genuinely believed the claimant had committed the misconduct, had reasonable grounds for that belief, and had carried out a reasonable investigation. The tribunal relied on the witness evidence, the patient statement, the PMVA trainer’s evidence about acceptable restraint techniques, and the claimant’s own admissions when concluding that the employer’s belief was reasonably held.

On fairness under s.98(4) ERA 1996, the tribunal held that the conclusion that the claimant had committed gross misconduct was open to the disciplinary panel and fell within the band of reasonable responses. It accepted the panel’s reasoning that the conduct was inconsistent with the NMC Code, breached the claimant’s duty of care, and justified a loss of trust and confidence. The tribunal also found that the respondent’s procedure was fair and reasonable: the allegations were investigated, the claimant received the investigation report and supporting material, he was heard at a disciplinary hearing, and he exercised three levels of appeal.

Because the tribunal found the dismissal fair, no remedy was awarded and the unfair dismissal claim was dismissed.