Chen v BUPA Care Home Ltd
Section 98(4) of the Employment Rights Act 1996 states that, in cases of unfair dismissal, tribunals have to consider whether the employer acted reasonably, given all the circumstances of the case. In Chen v BUPA Care Home Ltd, it decided that BUPA had not.
Ms Chen’s union, UNISON, instructed Thompsons to act on her behalf.
History of the case
Ms Chen started work as a newly qualified staff nurse for BUPA in October 2004. She was given some induction training, but very little on the care home’s policies about the administration of drugs. Instead, she was just told where these were kept and advised to read them.
On 3 March 2006, she was the only registered nurse on duty with four care workers (one of whom was from an agency) looking after 27 patients. At about 9.30am she started doing a medicine round and realized that she needed to administer a controlled drug at 10am (which requires two qualified staff). She asked another unit to send a nurse over and was told that someone would come.
In the meantime she drew up the dose and signed the drugs sheet. This was contrary to BUPA’s policy which said it should be done in the presence of two nurses.
She phoned the other unit another couple of times but when no one turned up, she eventually administered the drug herself as the patient was in pain. She signed the drug sheet “not available” in place of the “second nurse” and then reported what she had done to a senior nurse on 5 March.
Disciplinary hearing
She was then asked to attend a meeting on 17 March where she admitted that she had not read BUPA’s controlled drugs policy. She was told she would have to attend a disciplinary hearing and that she would most probably receive a final written warning.
The date for the hearing was set for 24 March, but Ms Chen only received the recorded letter that morning. She was asked if she was happy to continue and agreed to do so, although she would have decided otherwise, had she known she might be dismissed.
At the hearing, she explained how busy she had been on the day and that it was common practice to draw up the drug before the other nurse arrived. She was told that, as a university graduate, she should have been familiar with basic drugs policies and that being busy was no excuse. She was summarily dismissed.
She appealed unsuccessfully against that decision. Her employer said that, as a registered nurse, she should have understood her professional responsibilities. This was not something that could be corrected by training. She then lodged a claim for unfair dismissal with the employment tribunal.
Tribunal decision
Ms Chen argued before the tribunal that the decision to dismiss was unfair because she had not had time to prepare, nor had she understood the potential seriousness of the outcome. The tribunal agreed that it was unfair, but that this had been rectified at the appeal which was, in essence, a re-hearing.
But was the decision to dismiss unfair? The tribunal looked at the advice and guidelines issued by the Nursing and Midwifery Council (NMC) about the administration of controlled drugs. These say that one nurse can do so without involving a second person. It concluded that she had only failed her professional responsibilities by not recording the accurate time when she actually gave the drug.
She was, however, in breach of her employer’s policy on administering controlled drugs. The tribunal decided that she had not received the training she had asked for and that it was commonplace for nurses to breach the policy. She did not know that she could have asked a care assistant to act as a witness, not least because the record sheet asks for the signature of a “second nurse”.
It also pointed to the fact that she had not tried to cover up what she had done and reported the incident promptly. The NMC guidelines specifically state that drug errors should be dealt with leniently to avoid a culture of cover-up. And it felt that she had acted in the best interests of her patient.
It concluded, therefore, that in the circumstances dismissal was an overreaction and ordered that Ms Chen be reinstated.