In the case of Balogun v South London and Maudsley NHS Foundation Trust the claimant, a registered mental health nurse, was dismissed for gross misconduct after it was found that she had slapped a patient. The employment tribunal (ET) found that the dismissal was unfair because the Trust had not "discharged the burden of showing a potentially fair reason for dismissal", the Trust had not interviewed the service user in accordance with its disciplinary procedure and Polkey did not apply.

The employment appeal tribunal (EAT) found that:-

  1. The principal reason for dismissal was misconduct and that the failure by the claimant to admit this misconduct "was an additional, subsidiary, reason for the dismissal". In any event, the EAT stated that the former reason related to the conduct of the employee.
  2. The Trust's explanation for not complying with its disciplinary procedure because it wanted to protect the service user as a vulnerable patient and not wanting to prejudice the police investigation were important factors that should have been taken into account when deciding whether the Trust had acted reasonably.
  3. The Employment Judge in finding that there was a "possibility that the outcome would have been different in the absence of the defects involves an implicit finding that there was a possibility that the outcome would have been the same ". That is, the claimant would have been dismissed for gross misconduct even had the correct procedure been followed (Polkey principle).

The EAT remitted the matter to a fresh ET to re-consider the case to consider whether the Trust had acted within the band of reasonable responses in dismissing the claimant and, if a Polkey reduction is relevant.