An NHS worker who said he wanted to rip his colleague’s beard off because he suspected he had used his cup was unfairly dismissed, a tribunal has ruled.
The remote tribunal found that Mr S Mullen, who admitted to threatening and being verbally aggressive to his colleague, was unfairly dismissed as a result of “procedural defects”.
While his employer, the NHS Greater Glasgow Health Board (GGHB), now part of NHS Greater Glasgow and Clyde (NHSGGC), operated with a zero-tolerance policy to aggression and abuse, the tribunal found the procedural defects – such as failure to inform Mullen of the allegations and a breach of policy – rendered the dismissal process unfair.
Mullen began working for GGHB in 2002 as a technician based at the Glasgow Royal Infirmary, and was promoted to production supervisor and transferred to the Central Decontamination Unit at Cowlairs in 2008. He was then transferred back to the Glasgow Royal Infirmary in 2018 to undertake another promotion to supervisor in the Endoscopy Decontamination Unit (EDU).
On 11 March 2021, Mullen was involved in a verbal altercation with the assistant technician officer, Mr Hutchison, in the washroom regarding Mullen’s cup. The tribunal heard that Hutchison made a complaint to the assistant manager, Ms T Ward, about Mullen’s behaviour, which Hutchison described as “agitated” because someone had used Mullen’s cup. Hutchison claimed he tried to calm Mullen down but he had repeatedly sworn at him and apparently made threats.
Later that day, Ward asked Mullen about the incident, but did not tell him that Hutchison had made allegations that he had “shouted and sworn” at him and that Hutchison “felt threatened”.
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The tribunal heard that Mullen later admitted to Ward that if there had not been a barrier between himself and Hutchison that it would have “led to an actual fight”, and that he told Hutchison that he wanted to “rip his f***ing beard off his f***ing face”.
Additionally, the tribunal heard that Mullen was alleged to have said that he knew where Hutchison parked his car and that Mullen would “get him outside”.
On 17 March, at the request of head of decontamination Mr Gracie, Ward secured a statement from Mullen regarding the incident. The tribunal noted that, at this stage, Mullen was still unaware of the allegations against him. Mullen’s statement said he was “angry and disappointed” someone had used his cup, and that when he grabbed it [off the shelf] some liquid fell out of the cup and on to him. He also said he was “concerned” for his health and safety as he had previously contracted Covid.
Hutchison provided a further statement to Ward on 24 March, describing feeling “anxiety and fear” from Mullen's “hanging threat” of action at a later time, and said this was impacting his mental health.
On 29 March the central decontamination unit service manager, Mr McIvor, attended Mullen’s place of work and told him that Hutchison raised a grievance and informed him that his temporary place of work would be Stobhill EDU while the investigation took place. The tribunal noted this was the first occasion Mullen was told of the allegations against him.
It also noted that the GGHB’s grievance and bullying and harassment policies – which it would have been working from in this instance – required an early resolution process to occur in the first instance; however, McIvor did not inform Mullen this would not take place, nor did he give any reason for this.
The tribunal found that there was indeed a “lack of transparency” in terms of which policy was being followed, and a breach of the grievance and bullying and harassment policies, which both state concerns must be raised at the “earliest opportunity”, and that Mullen was unaware of the allegations made against him.
After a lengthy five-month investigation, Mullen was dismissed without notice on 28 October 2021 for gross misconduct. Mullen appealed the decision in November but was unsuccessful. He told the tribunal that the GGHB was “in breach of its own conduct policy” because the early resolution process was “completely bypassed” with no explanation. He also said he was not informed of Hutchison’s complaints in good time and that there was “no note” of a formal grievance being lodged.
The tribunal said that the process took an “unreasonable length of time” and that this was a further breach of policy, which states an investigation “should be undertaken in a timely manner to establish the facts of the case”.
Employment judge Rosie Sorrell found there were “procedural defects” in the dismissal and that their impact “rendered the whole process unfair” and that the GGHB didn’t act reasonably.
Mullen was awarded £8,956.26 in compensation. However, Judge Sorrell ruled it should be reduced by 75 per cent to £2,312.50 because of the “serious nature of misconduct” and the impact on Hutchison’s mental health.
Andrew Willis, associate director of legal at Croner, said Mullen’s 20 years of service should have warranted a “robust investigation” given that he was well within the two-year threshold to raise an unfair dismissal claim. “In any dismissal situation, employers must ensure there is a fair reason to dismiss and that a fair procedure is followed,” said Willis.
“These factors, alongside written invites to the investigation and disciplinary meetings, clearly outlining the allegations against the claimant, would have helped to make the dismissal fairer.” Willis added that mediation and professional training should have been given as a first port of call.
A spokesperson for NHSGGC said: “Given the judgment in this case being [a result of] procedural issues rather than a matter of substantive unfairness, NHSGGC is undertaking a review of the process and considering learning in relation to procedural aspects.”
Mullen could not be reached for comment.