Tykocki v Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust UKEAT/0081/16/JOJ
The seriousness of the allegation will impact the duty of investigation to be imposed on the employer.
The Claimant was employed by the Respondent as a Healthcare Assistant. Allegations were made by a patient that the Claimant had been abusive and effectively assaulted the patient when she had asked for a morphine top-up for her pain. An investigation was launched, which lead to a disciplinary hearing and an appeal against the decision to dismiss the Claimant. There were flaws with the initial investigation, for example, evidence was not obtained from the nurses on duty at the time of the incident.
The Claimant brought a claim for unfair dismissal to the ET. The ET was satisfied that the dismissal of the Claimant was fair, on the basis that the Respondent had carried out a reasonable investigation of the incident and that this constituted reasonable grounds for the belief in the Claimant's misconduct.
This was appealed and the EAT overturned the decision on the basis that the ET had failed to give weight to the flaws in the Respondent's investigation, particularly the Respondent's failure to undertake a standard of inquiry that reflected the gravity of the allegations made against the Claimant. This impacted the ET's decision as to the overall fairness of the investigation and process, which might, in turn, have impacted upon whether the Respondent was reasonable in accepting this allegation as true.
Employers should be alive to the fact that they will be held to a higher duty of investigation where the allegations against the Claimant are serious. This will be particularly important in financial services cases where an allegation of dishonesty could mean the individual is no longer able to work in that industry.