Another interesting decision from the Republic of Ireland Employment Appeals Tribunal (EAT) on elder abuse at a nursing home. Background: On 6th May 2014, a senior staff nurse observed a resident sitting on his bed having been fully undressed by the claimant without either pulling the curtains around his bed, or closing the door to the corridor. When the nurse questioned the claimant about this neglect, the claimant told her she was taking the resident for a shower and that she had left the door open as she believed another care assistant was following her. At an investigation meeting on 12th June 2014, conducted by the Clinical Nurse Manager from another nursing home, the claimant admitted the infractions and told the investigation that she had made a mistake. As the claimant admitted to the actions, the Manager did not interview another witness, and did not interview the resident in the course of her investigation. The director of this nursing home and a director of another nursing home, conducted a disciplinary hearing with the claimant on 29th July 2014. The following day they notified the claimant that her behaviour constituted gross misconduct as it was elder abuse. It was the company’s view that elder abuse violates an elder person’s civil and human rights and it is so serious that HIQA must be notified of such incidents. For these reasons, they had a zero tolerance policy and it was the company’s view that it is not necessary that a resident be embarrassed, distressed or observed by a third party, as the violation of the person’s dignity and privacy is sufficient to constitute abuse. Legal Principles: This would come under a “conduct” dismissal under s.6(4) of the UD Acts. Guidance from the HSE and HIQA can be very useful here and they define elder abuse as ““a single or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust which causes harm or distress to an older person or violates their human and civil rights.” EAT Decision: The EAT concluded that the dismissal was unfair and awarded the employee €22,000 in compensation. They cited multiple reasons in reaching this decision:
- On zero tolerance policies: “A zero tolerance policy does not mean that the most serious sanction is or must be imposed for all breaches, irrespective of the seriousness of the breach. The sanction must be commensurate with the seriousness of the act or neglect or omission committed by the employee. A policy which prescribes the ultimate sanction for both the most egregious breach and a more minor breach towards the other end of the scale is not a reasonable or fair policy.”
- On suspension: The EAT noted that the employee was allowed to continue working, without supervision, from 6th May when they became aware of the incident, until 29th July when the disciplinary hearing was held. They concluded that “allowing the claimant to continue in the employment without any sanction or restrictions of her duties for almost three months following the incident is inconsistent with its position that the breach was of such nature as to constitute gross misconduct and justify dismissal.”
Learning Points:
- Suspension with pay is recommended in circumstances where the alleged misconduct is potential gross misconduct.
- This case is also a useful reminder that just because something is listed as “gross misconduct” in a handbook, or the employer has a “zero tolerance policy”, does not of itself mean that dismissal is always warranted. In respect of abuse of vulnerable people, it is worth noting the following EAT past decisions on this area:
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