How reasonable do employers have to be in dismissing when the stakes are high?

Employers have a higher threshold to meet as to the extent of investigation into misconduct when the possible outcome for the employee is particularly serious.

Ms. Tykocki was employed as a healthcare assistant by the Royal Bournemouth & Christchurch Hospitals NHS Foundations Trust (the ‘Trust’). She was the subject of a complaint by a patient .The patient alleged that a nurse fitting her description had ignored requests for morphine before putting her hand to the patient’s mouth- telling her to ‘shut up’ and that she could ‘report her’. The Trust spoke to Ms. Tykocki and other nurses on duty as well as interviewing the patient. The Trust did not give her copies of the investigation notes with the other nurses. At the disciplinary hearing Ms. Tykocki denied the allegations and suggested the patient had been hallucinating. The patient was re-interviewed but no record was made of that meeting and the defendant was not given the opportunity to respond.

M.s Tykocki was dismissed for gross misconduct and her appeal was unsuccessful. During the appeal process, the patient was interviewed again and fresh allegations were raised. Whilst her representative was allowed to question the patient the fresh allegations were not put to her for a response. Ms. Tykocki subsequently brought a claim for unfair dismissal.

The Tribunal held that although there were procedural defects, this did not render the dismissal unfair. In particular, the failure to give Ms. Tykocki copies of the interviews with other nurses was an innocent mistake and that whilst she was not given opportunity to respond to the additional allegations raised during the appeal hearing, this was remedied by the fact her representative was able to put questions to the patient. Ms. Tykocki appealed.

The EAT held that the standard of procedural fairness was higher given the potential consequences for Ms. Tykocki, and the Tribunal had failed to consider all relevant circumstances, including the degree of the investigation undertaken by the Trust.

Of particular importance was the fact Ms. Tykocki could not question the witness evidence of the other nurses on shift that night which may have added to the wider context of what had actually happened. Furthermore, had the Trust investigated the additional claims made by the patient and found these to be false this would have had a bearing on the patient’s credibility in general. The EAT held that the decision as it stood was unsafe and sent the case back for consideration.

This case demonstrates the importance of a rounded and thorough investigation process when a potential outcome could be dismissal, particularly when that dismissal will have a greater impact on future employ-ability.