When Misconduct Arises, Think of the Consequences

Originally published 28 July 2010

Keywords: Employment, unfair dismissal, disciplinary hearing, employee misconducts

The standard of investigation to be carried out by employers before dismissing an employee for misconduct has come under the spotlight again in a recent Court of Appeal case. Where the consequences of dismissal for the employee are serious, employers must conduct a particularly careful and even-handed investigation into the alleged misconduct.

Facts

Ms Roldan was an experienced Filipino nurse employed by Salford NHS Trust. In September 2007, Ms Denton, who worked with Ms Roldan, complained that Ms Roldan had ill-treated a patient. Pending an investigation into this allegation, Ms Roldan was suspended. Ms Roldan, Ms Denton and one other individual were interviewed as part of the investigation. The outcome of this was that Ms Denton's evidence was preferred to that of Ms Roldan, whose recollection of events was found to be inconsistent and vague.

The matter proceeded to a disciplinary hearing. The allegations against Ms Roldan were not set out in any precise way but in advance of the disciplinary hearing she was given the witness statements taken by the Trust during the investigation. Ms Roldan was summarily dismissed for gross misconduct; her subsequent appeal was not upheld. Ms Roldan was also prosecuted following a criminal investigation into the allegations. Although she was eventually acquitted, she lost her work permit and her right to remain in the UK. She brought a claim for unfair dismissal against the Trust.

The Employment Tribunal found that Ms Roldan had been unfairly dismissed. Since the consequences of the dismissal for her included potential criminal charges and deportation, the Tribunal's view was that the Trust had to be particularly even handed and fair in the way it conducted the investigation. The Tribunal did not consider that this had happened. In particular, it had concerns about the way in which the Trust had conducted the disciplinary procedure, specifically the failure to question the reliability of Ms Denton's evidence which the Tribunal considered to be open to challenge in certain respects. The case ended up in the Court of Appeal.

Consequences of Dismissal are Relevant to the Standard of Investigation

The Court of Appeal restored the Tribunal's original finding of unfair dismissal. The key factors in the decision were:

The Trust had not properly informed Ms Roldan of an earlier incident that formed...