Nurse wins £38,000 in claim for unfair dismissal (Ms C McCluskie v Armadale Group Practice)
In the case of Ms C McCluskie v Armadale Group Practice, a practice nurse won her claim for unfair dismissal following a flawed investigation and disciplinary process by her employer.
The Facts in Ms C McCluskie v Armadale Group Practice
Ms C McCluskie (the “Claimant”) commenced work at Armadale Group Practice, a GP practice with 10 partners (the “Respondent”) on 4 April 2016. The Claimant was one of 3 practice nurses employed by the Respondent.
The Claimant suffered from Type 1 diabetes which required her to inject insulin 5 times a day as well as additional medication to control her insulin levels. Additionally, she suffered from long-standing depression and anxiety linked to her condition. The Respondent at no time discussed with the Claimant her needs at work, considering her disability.
The Claimant claimed that during the course of her employment, she had been:
- subject to an unfair investigation and disciplinary process resulting in her contract being unjustly terminated; and
- subject to disability discrimination
The Claimant from time to time used glucogel from the Respondent’s stock when she felt she was about to have a hypo and did not have supplies of her own medication with her. She was absent from work between 25 June 2020 and 24 August 2020 due to depression and had a phased return to work.
On 12 October 2020, the Claimant emailed Dr Dalgleish (“VKD”), referring to ‘having a nervous breakdown’ and ‘struggling’. The Respondent showed no support. Also, around this time, anonymous allegations were being circulated regarding the Claimant taking cocaine at work. The Claimant believed that these allegations had been made by another member of the Respondent’s staff.
On 9 November 2020, one of the partners, Dr Ali, emailed VKD and another GP in the practice, where a ‘list’ of concerns was referred to regarding the Claimant. Thereafter, on 18 December 2020, the Claimant was unable to attend work as she had been taken to A&E.
Dr Ali raised concerns via an email, on 5 February 2021, to Mrs Conn, the Respondent’s Practice Manager, over the Claimant taking glucogel from the emergency trolley. On 9 February 2021, the Claimant was suspended pending an investigation into allegations of gross misconduct made against her.
On 24 February 2021, the Claimant was invited to an investigatory meeting. She was informed that since this is not part of the formal disciplinary procedures, she is not entitled to bring anyone along to the meeting. The issue of taking glucogel was raised and the Claimant apologised for taking the medication without permission. She stated it was for a medical need and no one had said that she could not take it. The Claimant raised the issue of partners and members of staff taking paracetamol from the stocks which should also be considered.
Subsequently, the Claimant was asked to attend a disciplinary hearing on 24 March 2021 to face allegations of repeatedly taking glucogel. Other allegations referred to an incident where she allegedly failed to follow the process in reporting a fault in the vaccine fridge. As a result, six children received vaccines they should not have. The Respondent argued that this amounted to gross misconduct.
On 24 March 2021, the Claimant attended a disciplinary hearing chaired by Dr MacRitchie and Dr Wilson who made up the panel with VKD present and Mrs Conn taking notes. VKD set out the allegations regarding the taking of glucogel and the fault in the vaccine fridge. Investigations were promised in both matters – no investigations were instigated by VKD on behalf of the Respondent.
On 29 March 2021, the Claimant was informed by a letter she was being dismissed for taking glucogel. Additionally, the letter listed a number of issues including breach of trust, probity and professional competency which amounted to gross misconduct.
The Claimant appealed against her dismissal which the Respondent rejected by letter dated 3 May 2021.
The Decision of the Employment Tribunal
The Employment Tribunal found that the Claimant had been unfairly dismissed and awarded the following as compensation:-
- Basic award £2,421
- Compensatory Award £35,079.20
- Loss of statutory Rights £500
The Tribunal did not uphold the Claimant’s claims for disability discrimination by the Respondent under section 13 of the Equality Act 2010, or victimisation for having done a protected act under Section 28 of the Equality Act 2010.
The tribunal in their analysis of the case looked at several factors leading up to the Claimant’s dismissal.
- Did the Respondent carry out a fair investigation?
The tribunal found that VKD’s approach to the investigation was not fair. There was no attempt to find any evidence to support the Claimant’s position, such as interviewing witnesses, taking statements from staff, and looking into the Claimant’s assertion that other members of staff or partners were taking paracetamol from stocks. No attempt was made to consider mitigation such as the Claimant’s admission and apology.
- Did the Respondent have a genuine belief of gross misconduct?
The tribunal found that the Respondent had not considered the allegations with an open mind. Instead, they had been compiling a list of complaints beforehand to use as an opportunity to dismiss the Claimant.
- Was the dismissal a reasonable response?
The tribunal found that the response of dismissing the Claimant was not a reasonable response as she had apologised several times for taking the glucogel.
Our Lawyers View
Steve Norton, a lawyer at Redmans, says: In this case, by attempting to build a case based on a list rather than conducting a fair and just disciplinary process, the employer’s case for unfair dismissal for gross misconduct was fatally undermined
The Decision of the Employment Tribunal can be found here