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Non-sanction by a professional body does not make a dismissal unfair

It is generally accepted that a dismissal is fair where an employer has conducted a proper investigation and reasonably concluded the allegation has been proven based on the evidence before them. However, what happens when a dismissed employee’s professional body decides to take no action over the same incident? Does this make the dismissal outside the range of reasonable responses?

The Employment Appeal Tribunal (EAT) dealt with this issue in the recent case of Bryant v Sage Care Homes Ltd

Background

Ms Bryant had worked as a registered nurse for 40 years with an unblemished record.

Ms Bryant began working at Sage Care Group (‘Sage’) in 2005 often deputising in the manager’s absence. On 6 June 2009 while carrying out the drug round, Ms Bryant requested an unqualified care assistant to administer a sedative to one of the residents. Unfortunately the sedative was given to the wrong resident. The error came to light when the resident who should have received the medication requested it about an hour later.  

Fortunately the sedative did not cause any side effects to the “wrong patient”. The error which was commonly referred to as a “drug error” was not reported neither was advice from a doctor sought. Instead Ms Bryant kept a close eye on the patient and discussed the matter with another senior nurse who was content with Ms Bryant’s’ action.

Unfortunately for Ms Bryant the incident was reported to the Care Quality Commission (CQC) by an unknown source. CQC contacted Sage and informed them an investigation would be conducted into the incident. Consequently Sage suspended her (on full pay) to conduct their investigation.

Following the investigation she was provided with a disciplinary letter inviting her to a meeting. The letter made no reference to Sage’s internal policies.

At the disciplinary hearing Sage referred to Ms Bryant’s conduct as breaching the Nursing Midwifery Council (NMC) procedures, in particular, failing to follow the correct drug procedure, allowing others to administer drugs on her behalf, not reporting a drug error and seeking to follow medical advice following a drug error (the allegations).

She admitted that she was wrong in allowing the error to happen and not formally reporting it but she felt that she was qualified to make the judgement.

Ms Bryant was dismissed for gross misconduct and the dismissing officer expressed concern that she did not appreciate the seriousness of the NMC breaches.

Sometime after Sage made the dismissal decision the NMC concluded their investigation and took no further action against her.

Ms Bryant claimed unfair dismissal in the Employment Tribunal (ET) on the ground that Sage had failed to follow the correct disciplinary process. There was no internal policy which mirrored the NMC procedures.

The Employment Tribunal (ET) Decision

The ET found that her dismissal was fair as she admitted breaches of the NMC guidelines and her failure to appreciate the seriousness of what had occurred fell within the band of reasonable responses.

Sage were criticised for their failure to have their policies and procedures in place, and then relying on them in part to dismiss Mrs Bryant. However they concluded that the correct question to ask was whether Mrs Bryant had failed to abide by the rules of her professional body? And the answer was yes.

Ms Bryant appealed to the EAT.

The EAT decision

The EAT upheld the ET decision. They acknowledged that although the NMC had concluded that there was no case to answer 16 months later, there was no error or misapplication of law by Sage.  

Conclusion

The decision provides some reassurance to employers that if they carry out a fair disciplinary procedure, and make a balanced decision based on the evidence before them, their decision is unlikely to be challenged by the courts. However employers should always ensure internal policies they rely on for dismissal actually exist!

If you need advice in relation to a disciplinary or unfair dismisal issue please contact a member of our team on 01133 50 40 30 or at hello@scesolicitors.co.uk for a free initial consultation.


Samira Cakali

Samira Cakali is a pragmatic and approachable solicitor advocate with extensive contentious and non-contentious experience in the fields of employment law as well as civil litigation, within a range of commercial businesses from SME’s to multinationals as well as senior executives.

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