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1st December 2016

Procedural Failings and Unfair Dismissal

The Employment Appeal Tribunal (EAT) has held that a dismissal for allegations of gross misconduct was unfair in circumstances where there had been serious procedural failings.

In this case, the employee had been employed for 14 years as a healthcare assistant and a patient made a complaint against her. The patient gave descriptions of the nurses and the employee in question was identified.

The employee was suspended whilst an investigation was carried out. During the investigation, the Trust spoke with the patient, the employee (who denied the allegations) and other nurses on duty who did not know anything about the incident. The employee was not supplied with notes of the investigatory meetings with the other individuals. Disciplinary proceedings were recommended.

At the disciplinary hearing the employee again denied the allegations and suggested that the patient may have been hallucinating. The hearing was adjourned and the patient was contacted again by the Trust with no right of reply being offered to the employee.

After a subsequent appeal was dismissed, the employee made a claim to the ET which found that there had been a reasonable investigation and the dismissal was fair.

On appeal, the EAT confirmed that the ET had not taken into account all of the circumstances necessary in this case in light of the seriousness of the allegations. For example, the statements of other staff members were not given to the employee and she was not given the opportunity to address these before she was dismissed. Furthermore, the Trust did not investigate further allegations raised by the patient at the appeal stage which could have shed light on the situation generally.

The case highlights the need to ensure a fair and reasonable process is adopted throughout an investigation and disciplinary procedure, particularly in circumstances where there is only an inference of gross misconduct and the consequences of a dismissal are severe.

Source: Chadwick Lawrence

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