The claimant in Tykocki v Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust, a healthcare assistant, was dismissed for gross misconduct following a disciplinary investigation into an allegation of assault on a patient. The Employment Tribunal decided that the dismissal was fair.
The employer had not obtained statements from the nurses on duty nor had it investigated new allegations made by the patient at the internal appeal stage. The issue for the EAT was whether these failings impacted on the fairness of the employer's investigation.
Case law over the last few years has established that where allegations are very serious, or the implications for the employee very significant, there is an increased need for a rigorous investigation into misconduct allegations. The claimant had maintained that the incident did not occur and suggested that the patient could have been hallucinating. Although there were no witnesses to the incident, the employer should have made investigations of the other staff on the ward – even if this had not revealed anything about the particular incident, it would have been relevant to the overall picture.
The new allegations made by the patient at the internal appeal stage should also have been investigated. If they had been found to be false, for example, this would have put a different light on the credibility of the patient's evidence in relation to the main allegation.
These flaws in the investigation meant that the case had to go back to the tribunal to reconsider whether the investigation was reasonable. As is made clear in the ACAS guide to disciplinary procedures, employers should conduct investigations with an open mind, looking for evidence which supports the employee's case (or consistent with an innocent explanation offered by the employee) as well as evidence against.