Author: Keith Potter
There is long-standing case law to the effect that, if a dismissal for misconduct is to be fair, the employer must investigate the facts thoroughly. It must then be able to show that it has reasonable grounds for concluding that the employee committed the misconduct of which he is accused and that the relevant misconduct is a sufficient reason for dismissing the employee. The employer’s decision must be shown to be within the range of reasonable responses – a principle which gives some latitude to employers.
Some recent cases have suggested that the Employment Appeal Tribunal is expecting higher standards of investigation and analysis on the part of employers, particularly in cases where dismissal could have serious and long term consequences for an employee and could affect their reputation and future job prospects.
One recent case involved a healthcare assistant who had been employed by a NHS Trust for some 14 years (Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust). A complaint about her (and another employee) was made by a patient, to the effect that the employee had ignored the patient’s persistent requests for further medication. It was alleged that the employee had come to the patient’s bedside behind the curtains around the bed, used her hand to cover the patient’s mouth and told her to shut up.
The Trust spoke to the employee and the patient. It also took statements from nurses and other staff who were on duty at the time but they knew nothing of the alleged incident. An investigation report by the Trust referred to previous alleged complaints against the employee. At a disciplinary hearing the employee continued to deny the allegations. The patient was contacted again. She insisted that all the staff on duty at the time were nurses. The disciplinary manager reconvened the hearing but reached no decision. After contacting the patient again the manager decided to dismiss the employee. She appealed and an appeal hearing took place. In the course of it the employee’s trade union representative was given the opportunity to put questions to the patient, who in turn raised various new allegations. The appeal was rejected and the employee submitted a complaint of unfair dismissal to the employment tribunal.
The tribunal found that the dismissal was fair but this decision was overturned by the Employment Appeal Tribunal on appeal. The EAT did not accept that the Trust had carried out a sufficiently thorough investigation to determine the broader question of credibility. It criticised the fact that the Trust had not supplied to the employee copies of the statements of the nurses and other employees, so as to prevent the employee from making submissions on the significance of those statements and on whether they shed light on the broader context in which the alleged incident took place. It also criticised the Trust for not investigating the new allegations made by the patient at the appeal hearing. It said that those allegations, if shown to be unreliable, could have cast a different light on the reliability of the patient’s principal allegation.
Another recent case (Dronsfield v University of Reading) involved the dismissal of a university academic for having a short-lived relationship with a student. The university appointed one of its academic staff to investigate and prepare a report on the circumstances. In the course of preparing the report the investigator received advice from the university’s HR and legal departments. It emerged that several statements which were favourable to the dismissed employee were removed from the final version of the investigator’s report. In particular the report omitted statements to the effect that there was no evidence that the academic had abused a position of power or unduly influenced the student or showed any particular favour to the student or that there had been any malicious or predatory behaviour on his part. The main criticism of his conduct was that he failed to report the relationship, contrary to the university’s rules.
The EAT on appeal overturned the decision that the dismissal was fair. It was critical of the fact that the employment tribunal had not explored why the statements had been removed from the investigator’s report. It was also critical of the role of the HR representative, saying that the HR contribution should have been confined to matters of law or procedure, and not extended to questions of culpability. The EAT also expressed concern that the student had not been asked whether she wished to contribute any comment to the report.
The first case illustrates how carefully and conscientiously an employer needs to consider the degree of thoroughness that is required to achieve a satisfactory investigation. Particular care is required where allegations against an employee are based on the statement of an individual and there is little or no evidence from other sources to corroborate what is alleged, so that the outcome hinges on the credibility of the parties involved in the case. Both these cases reveal the willingness of the Courts to intervene where they consider that objective standards of fairness have not been met by the employer in investigating alleged misconduct and reaching a decision to dismiss.