Employers considering disciplining an employee should, where the allegations and/or consequences are particularly serious, ensure their investigation takes into account all factors relevant to the reasonableness of their decision, including the credibility of the employee, and is not just limited to the specific allegations.
An employee, a healthcare assistance, was summarily dismissed after a patient alleged she had acted in an uncaring and cruel way, been abusive and all but assaulted the patient. She claimed unfair dismissal.
The Employment Tribunal (ET) found that the employer’s investigation into the allegations was reasonable (procedural failings at an earlier stage in the disciplinary process had been remedied at the appeal stage); and the decision to dismiss her was within the range of reasonable responses open to an employer.
The Employment Appeal Tribunal (EAT) found that the allegations, and the potential consequences for the employee, were very serious. The ET should therefore have reviewed the circumstances not just in order to decide whether the specific allegations by the patient were made out, but in order to assess the employee’s credibility generally – including whether it was likely that events had taken place as the patient alleged. If the ET had done so it may have come to the conclusion that the employer had not acted reasonably when it accepted the truth of the patient’s allegations.
The matter was therefore remitted to the ET to reconsider.
• Employers considering disciplining an employee should, where the allegations and/or consequences for the employee could be particularly serious, ensure their investigation takes into account all factors relevant to the reasonableness of the employer’s decision, including the credibility of the employee, and is not just limited to investigation of the specific allegations
Case ref: Tykocki v Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust UKEAT/0081/16/JOJ
Jonathan Waters is the founder of Helix Law. Before qualifying as a Solicitor he worked in industry and in investment banking for over a decade. He was also the Partner in charge of Commercial Litigation, Employment Law and Property Litigation at Stephen Rimmer LLP. Jonathan has wide experience of helping and advising businesses to avoid or to deal with commercial disputes and in particular construction disputes.
This article is written to raise awareness of the issues it discusses and it may not be updated after it is first written, even if the law changes. It is not intended to be legal advice and cannot be relied on as such. Helix Law is not responsible or liable for any action taken or not taken as a result of this article. If you think the matters set out affect you and you wish to apply them to your particular circumstances then we are happy to give you free initial telephone advice.