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

The Claimant, a Band 6 midwife, brought a single claim of unfair dismissal. The tribunal found that the Respondent dismissed her for misconduct arising from concerns about the standard of care she provided to Patients 1, 2 and 3. It held that this was the stated reason for dismissal and that it was a potentially fair reason under the Employment Rights Act 1996 because it related to conduct.

On the evidence, the tribunal accepted that the Dismissing Panel genuinely believed the allegations and that belief was based on reasonable grounds after a reasonable investigation overall. It identified some limited issues with particular findings, including the allegation that the Claimant failed to document respiratory rate or urine output during Patient 1’s magnesium sulphate infusion, and the finding that she falsely said it had been six years since she had dealt with a stillbirth. Even so, it concluded that those errors did not affect the overall fairness of the dismissal because the Respondent relied on multiple other findings across the three patients.

The tribunal held that the Respondent did not fully comply with its own procedure or the ACAS Code because, before dismissal, it did not adequately specify the precise ways in which each patient’s care was said to have fallen below standard. It also noted confusion caused by date errors and by the separate Patient 4 perineal trauma point. However, it found that the later appeal stages, which involved detailed reconsideration of the allegations and gave the Claimant an opportunity to respond, did not leave the overall process unfair. It rejected the suggestion that the dismissal had been predetermined.

Applying the band of reasonable responses test, the tribunal concluded that dismissal was within the range of reasonable responses open to an employer of the Respondent’s size and resources. It accepted that the Respondent reasonably viewed the matters as misconduct rather than capability, that the Claimant knew how to perform the relevant duties, and that the Respondent was entitled to regard some statements as deliberately false or misleading. The claim was therefore dismissed and no compensation was awarded.