12 June 2014
Dear Mr Daly
Outcome of disciplinary hearing
I write to confirm the outcome of the disciplinary hearing which you attended on Friday 30 May and Tuesday 3 June 2014 at London Ambulance Service Headquarters, Waterloo.
I was advised by [redacted], Senior Human Resources Manager, Ambulance Operations Manager Keith Miller presented the management case, assisted by [redacted], Human Resources Manager. You were represented by Josef Kane.
At the start of the hearing I gave introductions and explained the process for the hearing. I also informed you that one potential outcome of the hearing could be your dismissal from the London Ambulance Service. This has also been outlined in both the letter inviting you to attend the hearing. I confirmed that all parties had copes of the same documentation and stated that should anyone require an adjournment at any time that this should be requested through me. I then listed the issues to be considered as I saw them that sat outside the allegations being considered at the hearing, these being your grievances; the delays in this process; your wish to have character witnesses present at the hearing; the availability of the Investigating Officer, your crewmate on the day being unavailable to attend the hearing; your view that there had been a lack of support given throughout the process, the lack of transcript and copy of the EOC tape; the priority of sickness absence over suspension.
I took an adjournment to consider all eight issues. As you are aware, I explained my position on these and then dealt with the grievances in more detail. You agreed that the grievances regarding Kevin Brown not chairing the hearing had been dealt with and that bar apologising again for the inclusion of your OHD report in the pack, I could not see what more could be done with regards redress. You agreed with this, stating that it "felt reasonable" and that there was "learning for the LAS" in this going forwards. In regards to the lack of support, we were awaiting contact from your support officer and I said that we would return to this point later in the hearing. With all parties' agreement, we then proceeded with the hearing.
The purpose of the hearing was to examine the findings of [redacted]'s investigation into the following allegations:
1. You failed to respond to emergency call CAD 707 of 29 May 2013.
2. By your actions you failed to act in the best interests of the patient.
3. You failed to exercise appropriate leadership behaviours as a Team Leader.
You denied all three allegations, taking a brief adjournment before denying the third. You stated that this was because it was not your "behaviour to act in that way as a Team Leader or an individual" but because your were "ill at the time".
Mr Miller presented the management case as per the documents which had been previously circulated. I heard that on 28 May 2013 you were crewed with Paramedic [redacted] on F102 for an 1830-0630 shift. Mr Miller stated that the failure to respond to an emergency call occurred on 29 May 2013 at 0524 following your request to return to Waterloo to allow [redacted] to return to Westminster for an 0600 hours finish (as no rest break had been allocated during the shift). Whilst the conversations between yourself and the Emergency Operations Centre (EOC) regarding the call were on-going, [redacted] was driving back to Waterloo and away from the call. Mr Miller stated that there was no record of amber to scene being pressed signalling to the control room that you were responding to the emergency call, nor were either of the cancellations accepted when sent. Your vehicle was then made unavailable by EOC at 0540 hours. Mr Miller highlighted Ambulance Service Policy TP/003 Statement of Duties to Patients which states "Staff are required to be ready and willing to work at all times during their contractual hours". Mr Miller then provided some detail regarding your conversations with EOC.
[redacted], Area Controller, was then called to the hearing as a witness. We heard the tape of your conversations with EOC, including the conversation with [redacted]. During the initial conversations, you were heard to say " this is not really acceptable". "sorry mate, I'm not accepting this", "I think this is unacceptable because I have never had a problem before", "it is not acceptable and I am not accepting it either", "I am not accepting it and I think it is dangerous". During the conversation with [redacted], you were heard to say "you can make us patients too because right now I am tired... I am tired and I am sure my colleague who has been driving all night is tired", "I think it is dangerous and it is unreasonable", "it is not fair" (3 times), "it is still not right. I don't feel this is right". When [redacted] said "I will say you are not going to take this call and then that is it" you replied with "yeah, thank you". At the hearing, [redacted] recalled the conversation with you , saying that you had said you were "tired", but not that you were unwell, nor that you needed to use the facilities on station. [redacted] was clear that in the conversations you had with EOC you could have said "I don't feel well; I feel sick" but that you did not do so. When asked if you looked different when you spoke to [redacted] on the balcony, [redacted] replied "no" and that you were "just Eddy". On questioning from Mr Kane, [redacted] said she would "never have thought that you would refuse a call" and that she had "never come across a crew that had refused a call" in her 18 years working in EOC. After some further questioning. [redacted] was released from the hearing as a witness and an adjournment was taken.
On reconvening, Mr Miller continued with the management representations, referring to your investigations interviews and the alleged 31 disparities in the notes cited by you following your interview of 3 July 2013. At this stage, [redacted], HR manager, was called to the hearing as a witness. [redacted] stated that his handwritten notes were contemporaneous notes and that there were no other notes from the meeting. When asked if he considered the notes to be a true account of the meeting, [redacted] replied "yes". After some further questions, [redacted] was released from the hearing as a witness. As an adjournment was not required, Mr Miller concluded his presentation citing his belief with his supporting rationale that each of the allegations were proven.
You confirmed that your crewmate for the shift had not made a request to return to station nor for you to decline a call.
Mr Kane then commenced the presentation of your case. Due to the time, Mr Kane requested that I hear from the character witnesses first, including their views on a specific scenario (the Bolam test). I agreed to this request and we then heard from your four character witnesses individually. All spoke highly of your character and stated when they thought it would be reasonable to ask to return to station prior to the end of a shift. All four also agreed, albeit one stated if forced, that they would respond to an emergency call which was allocated after they had requested to return. Mr Kane then continued with a number of questions regarding Mr Miller's presentation. Concerns were raised regarding managers allegedly being aware of the issue, but failing to act. I undertook to take this forward separately and can confirm that I have now done so. Mr Kane also stated that there should have been the opportunity to question certain parties who were not available at the hearing. I questioned how relevant these people were to the central facts as they were not present on 29 May 2013; however I stated that if you had a genuinely held belief that they were central to your case and by not being able to question them it was detrimental to it, I said we would need to adjourn the hearing. I asked that you take a break to consider this.
On reconvening, Mr Kane said that you wished to proceed. As I informed you, I was very clear that the hearing needed to be a fair one and if you felt that it would hinder your case not to question people, I could not continue the hearing on that day. You said that you wanted to go ahead and that it would not affect your case. On that basis, I agreed that the hearing would continue.
You then presented your case, saying that you had been absent due to sickness earlier that month and had had symptoms for the previous 18 months/2 years. At the start of the shift you said you were "a bit queasy", but that your pain did not commence until around 0300. You said that you knew you could not have made that call and that you were "desperate to get back". You said you sounded happy on the original call to EOC as you were looking forward to getting back. You thought the job coming down was "a mistake". You said you had not reported sick as you were "embarrassed" and spoke at length regarding the Camberwell fire. You said you hadn't handled things as well as possible and that you were "ashamed" of yourself. You said you felt "let down" by the investigation team and did not know how they had reached their decision. You said you could not have done the call that day "physically or mentally". You said you would now say you were ill were the situation to arise.
I then asked for the tape to be played again. I informed you that I did not hear you say "I don't feel right", but "it don't feel right". I then referred to your first interview on 23 June 2013 (which was not challenged at the hearing) where you were asked "did you refuse the call" and you replied "yes". I put it to you that during the three calls with EOC; the time in between (circa three weeks) and at your interview on 23 June at no point did you say you were not well. Following your suspension, you then stated that illness was the reason for your failure to respond. You said this was because you had "time to reflect". You then said you had not said you were sick "due to annual leave". When I repeated this to you, you said this was not the case and that you had been "hiding" your illness. Again you said you regretted "not saying it" and said I should believe what you had said at the hearing.
As there were no further questions, I adjourned the hearing to allow all parties to prepare for summing up.
On reconvening, we heard from Mr Miller, Mr Kane and finally your summing up.
Due to the lateness of the hour, I adjourned the hearing at 2210 hours to consider all that I had heard, having agreed to reconvene on Tuesday 3 June.
On reconvening, I informed you that I would read from a prepared narrative which I attach to this outcome letter for ease.
having found all three allegations proven, I informed you that I did not accept your case that your reason for not accepting the call was that you were too unwell to do so, but that you did not state this. I was of the view that your demeanour on the tape and the number of opportunities you had to state you were unwell did not make this a credible argument. I informed you that I did not believe the proven allegations could be rectified through training, education or a sanction designed to change behaviour as clear and unequivocal refusal of an emergency call is clearly a matter of gross misconduct. "Avoidance of, or non-response to calls, or not acting once a call has been accepted" are all listed in the Disciplinary Policy as issues that fall into potential gross misconduct.
I informed you that my decision was to dismiss you without notice from the London Ambulance Service; your last day being Tuesday 3 June, 2014 the date of the decision hearing.
You are entitled to appeal against this decision. Should you wish to do so, you should write to David Prince, Director of Support Service at London Ambulance Service.