Carers sacked from Royal hospital for taking smoke break

Two carers with "unblemished records" were unfairly sacked by the Royal Liverpool Hospital for taking a smoke break when a patient fell and broke his leg.

Long-serving Janet Clark and Lorraine Ingham were carrying out close observations of a patient in a bay of Ward 5X at the Royal, but believed there was enough cover and nipped outside for a smoke at around 10.30pm on March 2, 2018.

However when a fellow health care assistant (HCA), who had agreed to take over, was buzzed to another bay, the man fell out of bed sustaining a fracture to the neck of his femur.

Both Mrs Clark and Mrs Ingham were dismissed for gross misconduct after an internal investigation concluded they were guilty of "wilful neglect of patients and causing injury through serious negligence."

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After an appeal failed, Mrs Ingham took her bosses to an Employment Tribunal claiming unfair dismissal and breach of contract, while Mrs Clark pursued a claim of breach of contract only.

The tribunal found the hospital's investigation and disciplinary process was flawed and the pair had been unfairly dismissed and had their contracts breached.

Employment Judge Nicola Benson, sitting at the Civil and Family Courts in Vernon Street, Liverpool City Centre, criticised the disciplinary panel for getting the time of the accident wrong by an hour and a half.

Both HCAs had continued with their night shifts after the incident and went for another short break shortly after midnight, and confusion led investigators to believe the accident happened during this second break.

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Judge Benson said: "The consequences of this failure were that the questions which were asked of the claimants and other staff about the events of that evening were on the basis that the incident happened at midnight.

"This influenced the manner in which Mrs Ingham and Mrs Clark responded to questions in the disciplinary and appeal meetings. Both focused on timings and that their colleagues were telling lies."

Exterior of Liverpool's Civil and Family Court on Vernon Street.

The tribunal noted that Marie Dewhurst, chair of the disciplinary panel, had at one stage got the mistaken impression the pair had been off the ward for an hour and a half rather than the 10 minutes they claimed.

Judge Benson did find that Mrs Clark and Mrs Ingham should have sought permission from the nurse in charge of the bay before heading for a cigarette break, but suggested the lack of a "formal" policy on the wards meant this was not always done.

However while she found the pair may have been guilty of misconduct, she ruled their error fell short of gross misconduct and they should not have been sacked.

She said: "A fair procedure was not undertaken by the respondent. Had a fair procedure been followed, I do not consider that there was any real chance that Mrs Ingham would have been dismissed.

"The investigation was flawed in a number of respects and as a result, the decision to dismiss Mrs Ingham was influenced by suggestions that she had been dishonest as to how long she had been absent from the ward and in respect of her version of events.

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"Her actions were more properly categorised as misconduct with the Trust’s procedures.

"Mrs Ingham had a clean disciplinary record and had been a Trust employee for a number of years. As such I consider that she would have received a warning and that she would not have been dismissed."

Judge Benson said the manner in which staffing on this ward and the allocation of breaks was run was "flexible and without any real structure."

The tribunal decided both HCAs had satisfied themselves their colleagues were able to cover the patients in need of close observations while they nipped out.

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A spokesman for Liverpool University Hospitals NHS Foundation Trust said: “We are providing additional training to managers as a result of this case.

"We are reviewing all the findings and will also consider any further steps needed.

"The tribunal found that Mrs Ingham was unfairly dismissed but also concluded that she had breached her obligations to her patient. As the tribunal process has not finished, we cannot comment any further at this stage."

A hearing to decide on compensation due to Mrs Ingham and Mrs Clark will be set after restrictions due to coronavirus are lifted.

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