Section 98(4) of the Employment Rights Act 1996 (ERA 1996) provides that in order to determine whether a dismissal is fair or unfair, the Employment Tribunal will look at whether the employer acted reasonably in the circumstances in treating the reason for the dismissal as a sufficient reason for dismissing the employee.
Case law also suggests that where the charges against an employee are particularly serious, with the potential for significant detrimental impact on the employee's career and future, the investigation carried out by the employer should be to a higher standard and more thorough.
Ms Tykocki had been employed by the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (the Trust) as a Healthcare Assistant for 14 years until her summary dismissal.
In February 2014, a patient complained that Ms Tykocki had ignored her and was then subsequently abusive after she asked for a morphine top-up.
The Trust suspended Ms Tykocki, who denied the allegations, while they carried out an investigation. During the investigation, the Trust took statements from the patient, the other nurses on duty and Ms Tycocki. The other nurses who had been on duty claimed they were not aware of the alleged incident. Ms Tykocki was never provided with written notes from the discussions with the other nurses. The investigation report concluded that it was probable the incident occurred based on two similar complaints from patients previously and recommended disciplinary proceedings.
A disciplinary hearing took place and Ms Tykocki continued to deny the allegations. The hearing was adjourned pending further investigations, to include contacting the patient and seeking further information.
The disciplinary hearing reconvened in September 2014, but no decision was reached. The patient was contacted again to confirm her earlier statements but no record of that conversation was made and Ms Tykocki had no opportunity to respond. The Trust determined that Ms Tykocki should be dismissed for gross misconduct. Ms Tykocki appealed and attended an appeal hearing.
A further meeting was held with the patient, along with Ms Tykocki's trade union representative who was able to ask questions on Ms Tykocki's behalf. New allegations were raised by the patient during the meeting and these allegations were not investigated by the Trust nor did Ms Tykocki have an opportunity to respond to them. The appeal was dismissed and Ms Tykocki brought a claim of unfair dismissal.
The ET held that the Trust had carried out a reasonable investigation and that the Trust had reasonable grounds for its belief in Ms Tykocki's misconduct. It found that the Trust had rectified any mistakes on Appeal by allowing Ms Tykocki's TU representative to question the patient. The claim was dismissed.
The EAT found that given the seriousness of the allegations, it was not satisfied the investigation by the Trust had been carried out to a high enough standard. In particular, the EAT found that the Trust's failure to provide the statements of the other nurses to Ms Tykocki and to allow Ms Tykocki the opportunity to respond to these before a decision was made was a procedural defect, as was the failure to allow Ms Tykocki to respond to the new allegations raised at the appeal stage.
The EAT held that the ET should have taken a broader view as to whether the Trust's procedural failings impacted upon the fairness of the investigation and process, rather than limiting its investigation to the impact of the failings on the particular allegation of misconduct.
This case serves as a useful reminder to employers to ensure that they follow a fair procedure when dismissing an employee for any reason but to be particularly thorough when the allegations relate to potentially serious misconduct which could have a significant impact on the employee's future career.
It is not uncommon for an employer to decide to adjourn a disciplinary hearing in order to investigate new evidence or issues which arise, but it is important to ensure that the employee has the opportunity to respond to any new evidence gathered in order to ensure that the process is fair.