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Importance of reasonableness

The Employment Appeal Tribunal in the case of Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust has decided that an Employment Tribunal erred when finding that a dismissal for gross misconduct was fair despite procedural failings.

Background

The Claimant was employed as a healthcare assistant by Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (“the Trust”) for 14 years when a serious and disturbing complaint was raised about her by a patient. The patient alleged that the Claimant and another had denied her pleas for morphine and that the Claimant had covered the patient’s mouth with her hand and told her to “shut up”.

The Claimant was suspended while investigations were carried out but she denied all allegations. As part of the investigations the Trust spoke to the other nurses who were on duty but did not disclose these statements from the other nurses to the Claimant.

At the disciplinary hearing the Claimant continued to deny the allegations, suggesting that the patient could have been hallucinating. The hearing was adjourned so that the Trust could speak to the patient again to confirm her version of events. No record of this further conversation with the patient was made and the Claimant was not given the opportunity to respond.

The Claimant was dismissed for gross misconduct. At her appeal against dismissal, the Claimant’s representative attended and asked questions on her behalf. However, further allegations were also raised by the patient which were not investigated by the Trust and no further hearing took place to allow the Claimant to respond to these new allegations.

The appeal was dismissed and the Claimant brought a claim for unfair dismissal.

The law

To dismiss an employee fairly, after establishing a fair reason for dismissal, an employer must show that it acted reasonably. This includes acting reasonably when carrying out a disciplinary investigation or hearing.

An investigation should be “reasonable in all the circumstances” and in instances where the allegations are sufficiently serious as to potentially impact on the employee’s reputation or future employment prospects, as was in this case, the employer should be more thorough and rigorous in its investigations.

Decision

The Employment Tribunal dismissed the claim finding that the Trust had carried out a reasonable investigation. However, the Employment Appeal Tribunal (“EAT”) disagreed. It found that the Employment Tribunal had not taken into account all of the relevant circumstances including the degree of investigation necessary to determine the broader question of credibility of witnesses and the patient given the gravity of allegations made against the Claimant.

The EAT highlighted:

  • The Claimant should have been given the statements made by the other nurses on duty, despite the fact that they had no evidence regarding the alleged incident, as their evidence may have added something in a broader sense which could have been favourable to the Claimant.
  • The Trust did not carry out investigations into the new allegations raised at appeal and the Claimant was not allowed to respond to them. The Trust could have investigated these allegations and found them to be false which could have potentially cast doubt on the patient’s credibility.

Comment

When investigating serious allegations of misconduct employers should make sure that a thorough investigation is carried out. Employers should remember that the investigating officer should be impartial and even-handed, looking for evidence which may support the employee’s case as well as evidence that may be against it.

Employers should also be wary that a dismissal may be vulnerable to challenge if a procedural failing from earlier in the disciplinary process is only remedied at appeal. In these circumstances, it may be more appropriate to conduct a full rehearing to ensure the fairness of the procedure.

If you would like to speak to us about disciplinary procedures, please feel free to email us  or contact us on 0191 282 2880 for a no obligation chat.

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