26 April 2012 #Employment
The Court of Appeal (‘CA’) has recently provided useful guidance in the case of Crawford and another v Suffolk Mental Health Partnership NHS Trust , as to the procedural standards an employer is expected to meet when a disciplinary procedure could have serious career long implications for an employee. The CA took the opportunity to offer guidance as to the appropriateness of suspension during disciplinary proceedings and when matters involving an employee should be referred to the police.
The Claimants, two nurses, were dismissed by Suffolk Mental Health Partnership NHS Trust (the ‘Trust’) for gross misconduct in connection with their handling of an elderly patient who suffered from dementia and had exhibited aggressive behaviour. A senior staff nurse witnessed the nurses, assisted by two health care workers, restraining the agitated patient by securing him to a chair which was in turn tied to a table and subsequently reported the incident to the Trust.
Following a preliminary investigation meeting, the nurses were suspended pending a disciplinary investigation. The police were later alerted to the incident by the Trust’s Vulnerable Adult Protection Committee but concluded that no further action would be taken in respect of the allegations.
At the disciplinary hearing, the nurses admitted tying the chair in which the patient was sat to the table, which was an unauthorised form of restraint. However, they denied tying the patient to the chair, insisting that they had merely placed a sheet over the patient to make him feel as though he were in bed.
The nurses were ultimately dismissed for assault, negligence and professional misconduct. In reaching this decision, the dismissing officer and an HR adviser conducted an experiment to determine whether or not the patient had been tied to the chair. However, the nurses were not informed that this experiment was being undertaken and nor were they given the opportunity to comment upon it.
The nurses appealed against their dismissal on the grounds that: the investigation was inadequate; the facts were not sufficiently substantiated and the sanction was disproportionate. The internal appeal constituted a review of the original decision rather than a re-hearing of the case and upheld the decision to summarily dismiss the nurses.
The Tribunal concluded that the nurses had been unfairly dismissed. In this regard, the Tribunal identified a number of defects in the disciplinary procedure which rendered the dismissals procedurally unfair, particularly given that the outcome of the disciplinary process was likely to significantly impact upon the nurses’ continuing professional careers. In particular, the Tribunal found that:
The Tribunal was also critical of the Trust’s delays in the case, which were some 6 months from suspension to dismissal.
Employment Appeal Tribunal (‘EAT’) Judgment
The EAT overturned the finding of unfair dismissal, holding that whilst the Tribunal had properly directed itself in law, it had in fact substituted its own view for that of the employer.
Court of Appeal Judgment
The CA held that the Tribunal’s original decision should be reinstated and upheld the majority of the Tribunal’s findings. In this regard, the CA accepted that Tribunal was entitled to look particularly carefully at the procedures adopted by the Trust given that the nurses’ ability to pursue their chosen careers was ultimately at stake. Accordingly, the CA held that the Tribunal had been entitled to find that the procedural defects were fatal to the process, thereby rendering the dismissals unfair.
However, the CA found that the Tribunal went too far in concluding that no reasonable employer could have accepted the evidence of the witness over that of the two nurses and the two health care workers. Whilst agreeing that it was a surprisingly conclusion to reach, the CA held that the Tribunal was wrong to conclude that no reasonable employer could have concluded that the patient had been tied to the chair.
Accordingly, the case was remitted to the Tribunal to determine whether it would be appropriate to reduce the nurses’ compensation in accordance with the Polkey principles by assessing the likelihood of the nurses being fairly dismissed if a fair procedure had been followed.
As a footnote to the case, the CA expressed concern about suspension being a “knee-jerk reaction” by employers to allegations of misconduct. The CA suggested that where an employer acts in such a way, it may breach the duty of trust and confidence owed to the employee. Consequently, before deciding whether it is appropriate to suspend an employee, employers are advised to consider the likelihood of the complaint being upheld, the seriousness of the allegations, the risk of a further incident as well as the employee’s past record.
The CA was also highly critical of the Trust’s decision to report the incident to the police given the obvious justification for restraining the patient. In this regard, the CA stated that employers should not subject employees to the very heavy burden of possible criminal proceedings without the most careful consideration and a genuine and reasonable belief that a crime has been committed.
In view of the decision in Crawford, employers that inappropriately report a matter to the police or suspend an employee without justification put themselves at risk of being found to have fundamentally breached the implied duty of mutual trust and confidence, thereby entitling the employee to resign and claim constructive dismissal. Consequently, employers should take a great deal of care when deciding whether to report an incident concerning an employee to the police or whether suspend an employee, even where there is a contractual right to do so.