The Court of Appeal has recently handed down its judgment in the case of Crawford v Suffolk Mental Health Partnership NHS Trust, a case in which two nurses accused of assaulting a patient argued that they were unfairly dismissed as a result.

The patient in question, JE, suffered from dementia. A complaint was made by a member of staff after she observed an incident in which both nurses had apparently secured his chair to a dining room table using sheets to restrain him. The nurses were questioned about the incident and were suspended to allow investigations to take place into what the employer termed the "alleged assault of a client."  Both employees were subsequently dismissed on the grounds of gross misconduct following the taking place of disciplinary and appeal hearings.  

The case initially came before the Employment Tribunal which found the dismissals to be unfair. They concluded that the employer did not have sufficient evidence to support its belief that the patient was tied to the chair and that no effort had been made to release him.  

The case eventually reached the Court of Appeal which agreed with the Tribunal’s findings and found that the dismissals had been unfair.  In Elias LJ’s judgment, it was reasonable for the Claimants to want to keep the patient in the chair given that he was on a drip, despite the means used being inappropriate. Elias LJ was particularly critical of the Trust’s characterisation of the incident as an assault and expressed the view that he did not think it open to a reasonable employer to dismiss members of staff with twenty years service simply for adopting this method of securing JE in his chair.  

Interestingly, Elias LJ commented that he found the referral to the police by the employer to be "little short of astonishing". In his view, employers should only report matters to the police after "the most careful consideration" and in circumstances in which they have a genuine and reasonable belief that the case, if established, might be of a criminal nature. He also expressed concerns over the use of suspension and clarified that this should not be a "knee-jerk" reaction for employers in circumstances where misconduct is alleged.  

Accordingly, employers must bear in mind that they owe duties to their staff and they should be careful of automatic suspension and defensive reporting to the police as they may face criticism in Employment Tribunal proceedings in situations where this is deemed to be unmerited.