[This article is a supporting document to the article 'The Facts Which Informed the Decision to Sack Eddie Daly and an Appeal to Jason Killens'. Names of junior personnel have been redacted at the request of LAS.]
EDDY DALY OUTCOME - 3rd JUNE 2014
1. Thank you for attending on Friday and for adjusting arrangements through the day to enable us to make progress
2. We started by confirming the papers and confirming areas of remaining grievance and further issues associated with the hearing
3. The issues were summarised and agreed as:
a. Grievances
b. Delays
c. Character references
d. Investigating officer
e. Ms Motin not being present
f. Confirmed witnesses for both management and Mr Daly
g. Noted concern regarding perceived lack of support
h. Sickness v Suspension primacy
i. Delay in sharing tape and transcript
4. We took a short adjournment to consider these points following which I confirmed my position and rationale on each of them and it was agreed by all parties that the hearing would continue.
5. We took frequent adjournments throughout the 12 hours of the hearing.
6. Prior to management presenting their case it was confirmed that all 3 allegations were denied by Mr Daly
7. Keith Miller then presented the management case and we heard from [redacted] and then listened to the tape recording of three conversations between Mr Daly and staff within Emergency Operations Centre where it was confirmed that Mr Daly and his crewmate were to proceed with the emergency call that had been dispatched to them
8. I noted that Mr Daly was laughing and joking through the tape recorded conversations, that he did not say he was unwell and did not appear unable to continue his shift as a result of illness
9. In my view [redacted] was a credible witness, she offered a clear recollection of events and was clear in her mind that the emergency was appropriate to task to Mr Daly and his crewmate, that there was no other suitable resource to assign, that Mr Daly was within his shift and able to respond to the call and that Mr Daly did refuse to attend the emergency call having discussed with him the circumstances of his shift times and calls being held
10. [redacted] confirmed that a conversation took place with Mr Daly on the balcony at HQ after he had returned to station where he did not appear unwell nor did he report sick, when questioned by Mr Miller [redacted] said Mr Daly's demeanour and appearance was normal saying "it was just Eddie"
11. Mr Daly suggested to [redacted] that his shoulders were down, she said she didn't recall that save for Mr Daly saying he was tired and continued by remarking that everyone looks tired at that time in the morning.
12. [redacted] was clear that if she had been made aware that Mr Daly was unwell that the ambulance would have been taken off the road and that the emergency call would have been re-assigned or held for further resource
13. Mr Miller continued to present the management case and called [redacted], HR manager who was present at some of the investigation interviews
14. [redacted] was not in my view a compelling witness and whilst his statements were available he struggled to recall much of the supporting details although he did set out to confirm that the content of the statements were a true account of what was said and that the statements presented arose from contemporaneous notes
15. Given the concerns raised over the notes being so full and so clear as Mr Kane remarked in the hearing I have referred these concerns for consideration to Tony Crabtree, Assistant Director of Workforce
16. Mr Smith concluded his evidence by confirming that the notes were and accurate reflection of what was said at the meeting
17. After Mr Miller concluded the management case all parties present agreed to Mr Kane's request to hear, out of sequence, from the character witnesses that had been proposed
18. These witnesses went further than simply providing testimony on Mr Daly's character as it was agreed by all parties present that scenario testing, the bolam test would take place - I agreed to this request given the seriousness of the case as I believed it to be reasonable in the circumstances
19. Three of the four character witnesses were clear when questioned that they would not refuse an emergency call when passed with the fourth witnesses suggesting a challenge would take place dependent on the category of the call but that ultimately the fourth witness confirmed they would respond if they were "forced"
20. After hearing from these four witnesses Mr Kane posed a number of questions to Mr Miller pertaining the details within the management case during which Mr Kane noted that it was detrimental to Mr Daly's case not to have certain witnesses available to the hearing
21. I set out my position I would not proceed further with the hearing if it was believed that not having the witnesses would be detrimental to Mr Daly, Mr Daly confirmed after a short adjournment that he was content to proceed without the witnesses being present saying that it would not affect his case as they were not central to it.
22. Mr Kane raised concerns that members of the management team had prior knowledge of the alleged incident where Mr Daly refused to attend the emergency call and that they had failed to act on it, I can now confirm that these matters have been referred for separate investigation
23. Mr Kane presented Mr Daly's case noting that he was unwell during the shift and that he was looking forward to going back to station, he remarked that Mr Daly had never been in these circumstances before and noted that he was ashamed of his behaviour on the day going on to say that if the circumstances arose again he would say that he was ill
24. At the conclusion of Mr Kane's presentation there followed some questions from the panel that explored the statement of 23 June which noted that Mr Daly replied yes when asked did you refuse the call and made no mention of him being ill; I noted that this was the first written record following the incident the content of which was not challenged during the course of the hearing and that this was follwoed by the statement of 26 June where for the first time illness was introduced as the reason for not accepting the call
25. I noted that the recording of the conversations between Mr Daly and EOC made no mention of illness being the reason for refusing the emergency call and that this was also not a feature of the conversation on the balcony with Patricia Smith nor had Mr Daly made mention in the four weeks between the incident and the meeting of 23 June of the refusal to a DSO or AOM being caused by illness
26. Illness was only introduced as a reason for refusal on 26 June after suspension had taken place
27. I summarised the salient points of the hearing ahead of adjourning prior to summing up as focusing around one central point that being do I believe on balance of probability the version of events contained in the tape and the interview of 23 June or what has been said at the hearing and since Mr Daly's statement of 26 June
28. Mr Daly said that I should believe what had been said at the hearing on Friday at which point we adjourned for colleagues to prepare their final submission for summing up where I confirmed that Mr Daly would have the last word
29. Both parties summarised their case and placed before the panel the salient points of their presentation throughout the 12 hour hearing and due to the lateness of the hour all parties agreed it would be unreasonable to reach a decision on Friday
30. I have reflected for 72 hours on the content of the hearing, considered carefully what was said, revisited my notes, the papers, the notes of [redacted] and the tape of the conversations and the fact that Mr Daly denied all 3 allegations in coming to my decision
31. For ease, I will take each allegation in turn. The first allegation, "that you failed to respond to emergency call CAD 707" was denied. It is a fact that Mr Daly did not respond to this call and from the tape it is also clear that [redacted] asked if Mr Daly wished for her to "cancel you down and say you are refusing a call". After subsequently stating that she would not argue, [redacted] said "We are going to cut you down. I will say you are not going to take the call". Mr Daly responded "yeah! Thank you!" Mr Daly's case was that he was ill and as a result did not respond to the call. Additionally at the hearing, Mr Kane said that the conversation between Mr Daly and [redacted] then ended and Mr Daly did not have the opportunity to state he was unwell. As stated at the hearing there were an number of options open to Mr Daly to state this either by phone or radio; in the conversation on the balcony; by speaking to a DSO or AOM or to Resource. Mr Daly did not do any of these, however. As a result, Mr Daly did not report that he was unwell and was not stood down or shown as sick. It is my view therefore that you failed to respond to this call and thus I find this allegation proven. I must state that in my view this is the most serious allegation against Mr Daly.
32. The second allegation "By your actions you failed to act in the best interests of the patient (CAD 707)" was also denied. It is clear that Mr Daly did not respond to this call. From the tape, it is also clear that Mr Daly was informed that there was no other resource available and that there was "no possibility of any vehicles coming up". Mr Daly was also aware that the call had been held "for some time". Given all of these facts, I do not believe that Mr Daly acted in the best interests of the patient at the time; hence I find this allegation proven.
33. The third allegation "You failed to exercise appropriate leadership behaviours as a Team Leader" was also denied. I must note, however, that although Mr Daly denied this allegation, he also stated that it was not in his behaviour "to act in that way as a Team Leader or an individual" stating he was "ill at the time". I am aware that on this occasion Mr Daly was attending and Paramedic [redacted] was the driver. Although both crew members are HCPC register paramedics, Mr Daly is a Team Leader and was therefore the most senior member of staff. Mr Daly undertook all the conversations with EOC regarding this call and was very clear, when I asked, that there was no suggestion that [redacted] had asked Mr Daly not to respond to this call. By Mr Daly's actions he did not display the leadership and direction I would reasonably expect from a Clinical Team Leader, I therefore find this allegation proven.
34. having found all three allegations proven, I have considered what I believe to be aggravating and mitigating factors surrounding this incident.
35. Aggravating features - what makes this matter serious in my view:
a. Mr Daly is a Clinical Team Leader and as such a role model for other staff
b. Mr Daly knew the call had been held and was told that there was no other resource to attend
c. It was clear to Mr Daly as he confirmed it in the conversations with control room staff that he was within the operational times of his shift.
d. That this is a "never event"
e. Mr Daly knew he was shown as green and available for calls as this was said by control room staff
f. The initial refusal to respond was immediately escalated by the control room dispatcher to his line manager indicating the gravity of the situation
g. Mr Daly's tone and approach to control room staff changes following the allocation of the call and Control's insistence that Mr Daly needs to respond.
h. The number of opportunities for Mr Daly to report his inability to respond to the call through illness were that to have been the case
36. Mitigating features cited by Mr Daly
a. Mr Daly has 30 years service
b. The number of positive character reference provided
c. Mr Daly's underlying health conditions and the fact that he is a very private person hence he did not state he was unwell as he was hiding his illness
37. I have again considered the delays in the investigation process - as a result of all parties and the issues raised generally around and throughout the investigation. Although I have some concerns (which I have taken forward) and appreciate some elements such as witness availability were not ideal, I do not believe any or all of these matters fatally flaw this case and make it unreasonable for me to proceed.
38. Having considered all 3 allegations and the fact that I have found, on balance, that they are proven I have carefully considered the aggravating and mitigating features of this case before deciding what action is reasonable and appropriate in the circumstances. I must now state that I do not accept Mr Daly's case that his reason for not accepting the call was that he was too unwell to do so but did not state this. Mr Daly's demeanour on the tape and the number of opportunities to state he was unwell if that was the case, do not for me make this a credible argument
39. I am of the view that these proven allegations constitute gross misconduct and go to the very heart of our contract of employment with Mr Daly as such I have considered the full range of sanctions available to me withing the Trusts disciplinary procedure
40. I believe that these proven allegations cannot be rectified through remedial training, education or a sanction designed to change behaviour as clear and unequivocal refusal of an emergency is clearly a matter of gross miss conduct [sic]. "Avoidance of, or non response to calls, or not activing once a call has been accepted are all listed in the Disciplinary as issues that fall into potential gross misconduct.
41. I have therefore decided that you will be dismissed without notice from the London Ambulance Service
42. You have the right of appeal against my decision the details of which will be set out in the outcome letter from the hearing which will follow next week