The recent case of Tykocki v Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust UK EAT/0081/16/JOJ is a useful reminder of the legal principles behind a fair misconduct dismissal, where the allegations are very serious.

The facts

The Claimant (“T”) in this case was a long-serving Health Care Assistant, who was dismissed for gross misconduct after it was alleged that she had mistreated a patient during a night-shift.

The patient’s statement is an unsettling read; it is alleged that T and another nurse on duty at the time had acted in a cruel and uncaring way towards her, and that T had been abusive and effectively assaulted the patient when she cried out for pain relief.

At the Employment Tribunal

The Employment Tribunal rejected T’s unfair dismissal claim on the basis that overall, the employer had carried out a reasonable investigation and the decision to dismiss fell within the band of reasonable responses in the circumstances. Also, the tribunal held that any procedural failings at the investigation/disciplinary stage were corrected by the employer at the appeal stage.

T appealed.

At the Employment Appeal Tribunal

The EAT held that this was clearly a case where the allegations made by the patient were very serious and the stakes were high for T, given the potential career-ending consequences of a dismissal. It followed that, when applying the reasonable responses test, a higher standard was expected of this employer in these particular circumstances.

Although the ET had considered procedural various failings by the employer, it had only done so in a way limited to the question of the individual allegation of abuse made against T.

For instance, the employer failed to obtain/disclose statements from other nurses on duty that night. The employer’s justification for this was that the allegation of abuse by T took place behind a curtain, so the nurses could not have added anything to that. However, on the facts of this case, the complaints made against T were broader than just one allegation of abuse/assault; it was of a cruel and uncaring response over a period of time, in which another nurse was also involved. What the employer failed to recognise was that the nurses’ statements could have added something to the broader picture in terms of the patient’s credibility and the account that the patient gave of the events of that night-shift. This evidence might have been exculpatory of T and was therefore relevant to determining the truth of the more specific allegation against her.

Ultimately, the EAT found that the ET had failed to consider all relevant circumstances, including the degree of investigation required into the broader question of credit, given the gravity of the charges against T. The case was sent back to the ET to reconsider its judgment in the light of this decision.

Points to note

The case is a useful reminder of some of the issues that employers should bear in mind when investigating misconduct, particularly where the allegations are serious:

  • The nature and extent of an investigation will depend on the seriousness of the matter. The more serious it is, the more thorough the investigation should be.
  • Serious allegations of criminal misbehaviour require a very careful investigation. It need not be to the standard of a criminal investigation, but a careful and conscientious investigation of the facts is important.
  • The investigation must be even-handed. The investigator charged with carrying out the inquiries should keep an open mind and look for evidence which supports the employee’s case as well as evidence against.
  • A fair investigation is particularly important where the employee’s reputation or ability to work in his or her chosen field is at risk. In such cases, the standard of fairness and thoroughness required from the employer will be high and the employer should expect a tribunal to scrutinise the procedures followed particularly carefully.

Need help?

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This course will help you understand exactly what you need to do when dealing with disciplinary matters to ensure that a tribunal will understand and agree with the steps you have taken and the decisions you have reached.