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Q and A
Impact of procedural flaws on the fairness of the resulting dismissal
In the case of Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust [2016] the Employment Appeal Tribunal (EAT) considered whether an Employment Tribunal (ET) erred in finding that procedural failings in an investigation into serious misconduct
Facts
Ms Tykocki had been employed as a healthcare assistant by the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (the Trust) for 14 years when a patient made a serious complaint about her (and another person). The patient alleged that, after an hour of begging for morphine, Ms Tykocki came behind the curtains around the patient's bed, put her hand to the patient's face to cover her mouth and told her to “shut up”. Ms Tykocki then allegedly leant in close to the patient's face and said that the patient could “report” her.
Ms Tykocki denied the allegations but was suspended while the Trust carried out an investigation. The Trust spoke to the patient, Ms Tykocki and to the other nurses on duty, who did not know anything about the alleged incident. Written notes of the investigatory meetings with the other nurses were not supplied to Ms Tykocki.
At a disciplinary hearing, Ms Tykocki continued to deny the allegations and suggested that the patient could have been hallucinating. The hearing was adjourned pending further investigations. The disciplining manager then contacted the patient again directly and the patient confirmed her earlier statements. No record was made of that conversation and Ms Tykocki was not given the opportunity to respond.
The Trust dismissed Ms Tykocki summarily for gross misconduct. Ms Tykocki appealed and attended an appeal hearing.
A further meeting was held with the patient, where Ms Tykocki's trade union representative was allowed to attend and ask questions on Ms Tykocki's behalf. The patient raised new allegations during this meeting. She alleged that Ms Tykocki had told her she would have to say “please” before being given any morphine and that another patient was also neglected on the same evening. These allegations do not appear to have been investigated by the Trust and no further appeal hearing took place to enable Ms Tykocki to respond to them.
The appeal was dismissed. Ms Tykocki presented a claim of unfair dismissal to the ET.
The tribunal was satisfied that the decision to dismiss fell within the band of reasonable responses of a reasonable employer:
ï‚· Given Ms Tykocki's denial that the incident ever occurred and that no witnesses were identified who were likely to have relevant evidence, it was reasonable for the Trust not to obtain additional statements from anyone else on the ward.
ï‚· It was an innocent error on the part of the Trust not to provide Ms Tykocki with copies of the written notes of the investigatory discussions with the other nurses.
The fact that further evidence had been taken from the patient after the disciplinary hearing, without this being put to Ms Tykocki, did not make the dismissal unfair, as the patient had simply confirmed her earlier account and this conversation was not taken into account at the appeal stage. Ms Tykocki's trade union representative also had the opportunity to ask the patient questions during the appeal stage. This rectified any procedural defect.
The ET dismissed the claim and Ms Tykocki appealed to the EAT.
Law
When considering the fairness of an investigation into misconduct which results in dismissal, the starting point must always be the reasonableness test set out in section 98(4) Employment Rights Act 1996 (ERA 1996).
A dismissal for misconduct will only be fair if, at the time of dismissal:
• The employer believed the employee to be guilty of misconduct.
• It had reasonable grounds for believing that the employee was guilty of that misconduct.
• At the time that it formed that belief on those grounds, it had carried out as much investigation as was reasonable in the circumstances.
The standard of inquiry required of a reasonable employer will depend upon the state of the case against the employee. Where the issue is one of pure insinuation, and when the charges are particularly serious or if the effect on the employee would be far-reaching, for example, if it would impact on their reputation or future employment prospects, then the amount of inquiry and investigation required is likely to be greater.
The size and resources of the employer will also be taken into account.
A tribunal should not substitute its own view of what a reasonable investigation should be, it should ask whether the employer's actions were within the “band of reasonable responses”.
Decision
The EAT allowed the appeal and remitted the case for further consideration.
The ET had directed itself correctly on the law, but given the seriousness of the charges against Ms Tykocki, the EAT was not satisfied that the tribunal's decision had properly taken into account all relevant circumstances, including the degree of investigation necessary to determine the broader question of credibility. In particular, the Trust had made the following errors that had not been properly taken into account by the ET:
The statements of the other nurses on duty were not given to Ms Tykocki and she was not permitted to make submissions on those before the decision was made to dismiss her.
ï‚· The Trust did not carry out further investigations into the new allegations raised at appeal or allow Ms Tykocki to make submissions on them. If the Trust had investigated and found them to be entirely false, this might have cast a different light on the credibility of the patient's account more generally.
The tribunal had erred in considering these issues purely in terms of the very specific allegation against Ms Tykocki. The ET's reasoning did not show that it had considered more broadly whether these failings impacted upon the overall fairness of the investigation and process. As a result, the EAT was unable to be sure that the tribunal had properly engaged with the issue of whether an appropriate level of investigation had been undertaken into the broader question of credibility.
The decision was therefore unfair.
Comment
Christine Jamieson, a Paralegal in Lindsays Employment Team, states:
“When dismissing for alleged serious misconduct, an employer must be extremely careful if it seeks to rely on an internal appeal to remedy procedural errors at an earlier stage. Any such dismissal will be open to challenge if the employer does not consider the impact of procedural failings and take the appropriate remedial action to ensure that the investigation is impartial and that all relevant evidence has been obtained. In many cases this will require the employer to conduct the appeal as a full rehearing, otherwise it will need to be able to satisfy an employment tribunal that its approach did not compromise the overall fairness of the procedure and the reasonableness of the decision to dismiss.
“Where there are conflicting accounts with little or no evidence to provide corroboration one way or the other, an employer is not obliged to simply believe one account over the other. An employer must test the evidence of the accuser, where it is possible to do so, to establish the credibility of the allegations.”