NI: Court of Appeal: Tribunal wrong to find nurse who used hospital inhaler was fairly dismissed
Reading time: 4 minutes
A nurse summarily dismissed after using an inhaler she took from the medical cupboard on her ward has successfully appealed the finding that she was fairly dismissed.
About this case:
- Judgment:
Delivering the majority judgment, Lord Justice Deeny held that her actions could not constitute “deliberate and wilful misconduct” justifying summary dismissal, the Industrial Tribunal had erred in law and in its appreciation of the facts.
Background
In October 2012, Ms Caroline Connolly, a nurse in Altnagelvin Hospital, felt the onset of an asthma attack whilst at work, and used a Ventolin inhaler that she took from a locked cupboard in the medicine room in the ward.
The Court heard that she did not inform the Ward Sister that she had taken the inhaler until two days later when she was next on duty, but said the sister had given her a non-prescription cough medicine on a previous occasion.
The following day, Ms Connolly was informed that she was suspended from work with immediate effect pending further investigation. She was dismissed following a disciplinary hearing in June 2013 by reason of gross misconduct, and an Appeal Panel of the Western Health and Social Services Board confirmed the decision to dismiss her.
Since then, the decision was upheld by the Industrial Tribunal, set aside by the Court of Appeal, and subsequently upheld again by the Tribunal in December 2016.
The Tribunal stated: “We accept the submissions that this case involved an admission of guilt and that although misconduct can take many forms there is no hierarchy in the range test.”
Court of Appeal
The Court of Appeal had previously concluded that the panel’s decision and the investigation were flawed. Counsel for the Trust accepted that by the time of the second Industrial Tribunal it could not stand over the Disciplinary Panel and the investigation but argued that the Appeal Panel remedied any defects.
It was emphasised at the outset that the role of the Court of Appeal was not to conduct a rehearing, and was confined to considering whether the decision of the Tribunal was wrong in law or the conclusions on the facts were “plainly wrong” or with “no or no sufficient evidence to found them”.
In the present appeal, Lord Justice Deeny said it appeared indisputable that the appeal process was fatally flawed in the following respects:
Lord Justice Deeny stated “…it is clear that in one sense there is a hierarchy or graduation i.e. from minor misconduct which could not possibly justify dismissal ranging up to gross misconduct about which, again, if proved, there could be no argument.”
Ms Connolly “took five puffs of the inhaler when undergoing an asthmatic attack without permission and that this was aggravated by her failure to report the matter until two days later”. According to Lord Justice Deeny, this could not constitute “deliberate and wilful misconduct” justifying summary dismissal; the relevant Terms of Employment did not expressly prohibit such a use, and the Code of Conduct was “ambiguous at best”.
Considering the Employment Rights (Northern Ireland) Order 1996, Lord Justice Deeny concluded that the Tribunal erred in law and in its appreciation of the facts; and said that remitting the matter to another tribunal would be clearly inappropriate.
In the majority judgment (Lord Justice Weir concurring), Lord Justice Deeny concluded that Ms Connolly had not been fairly dismissed, and quashed the Tribunal’s decision.
In a dissenting judgment, Lord Justice Gillen said that he would have affirmed the decision of the Tribunal.
Share this article:
Subscribe to our newsletter to not miss articles like this one:
SUBSCRIBE
