Two nurses employed by the NHS Trust worked in a ward dealing with patients suffering from dementia, depression or anxiety. Both were very long serving employees with no prior disciplinary record.
They were accused by a colleague of tying an agitated and aggressive patient to a chair with a sheet on a date in September 2009.
After a preliminary investigation meeting, the nurses were suspended pending further investigation for "alleged assault of a client". A week later, the employer decided to refer the matter to the police to investigate and put its own internal investigations on hold in the meantime. The police confirmed a month later that they did not intend to take any action.
The disciplinary investigation was recommenced and ultimately concluded with recommendations that the nurses should be subject to "performance development review training and some disciplinary sanction". However the nurses ultimately were eventually dismissed for assault, negligence and professional misconduct – though no "malicious intent" was alleged to have been present. The dismissals occurred some six months after the event in question during the whole of which time they had been suspended.
There was an appeal panel review of the dismissals but this did not re-hear the evidence and it upheld the original decision.
An employment tribunal found that the nurses had been unfairly dismissed.
It noted that the dismissal of a qualified nurse in such circumstances was a career-changing decision as the nurses might not be able to find further employment within their profession. Any evidence of misconduct justifying dismissal in the circumstances had to be "clear and cogent".
The tribunal identified various substantive and procedural defects in the employer’s handling of the cases:
- The dismissing manager’s conclusion that the act of tying the chair to the adjacent table was a physical assault was wrong and unreasonable and that in light of all the evidence, no reasonable employer could have concluded the patient had been tied down
- While a reason cited for dismissal had been "negligence", no such accusation had ever been made of the nurses
- Delay in the conduct of the disciplinary process
- Failure to obtain the first written statement of the colleague who had reported the incident, and whose account arguably differed from the evidence given at the hearing
- The carrying out of an attempted reconstruction of the events in question without involving the nurses
In the round, the tribunal found that the employer did not have sufficient evidence from an adequate investigation to ground the belief that misconduct had occurred.
Further, though the hospital's decision to suspend the nurses and refer the matter to the police may not seem unreasonable, the tribunal held that suspension may not have been necessary and it was particularly unnecessary to involve the police.
The EAT, however, overturned the finding of unfair dismissal. It stated that, although the tribunal had properly directed itself in law, it had in fact substituted its own view for that of the employer, both in concluding that there had been procedural defects, and in its finding that no reasonable employer could have found that the patient had been tied up in the way alleged.
Court of Appeal judgment
On hearing the employees’ appeal, the Court of Appeal held that original tribunal decision should be reinstated.
Given that a likely consequence of dismissal was to place the ability of the nurses to pursue their chosen careers at stake, the employer was obliged to ensure that a fair procedure was adopted and that the evidence of misconduct was clear and cogent.
The tribunal had been entitled to find that the attempted reconstruction, or "experiment" without the employees involved, given the importance the dismissing manager attached to the exercise, was an aspect of unfair procedure and the appeal had done nothing to rectify that unfairness.
Furthermore the tribunal had been entitled to find in the circumstances that the failure by the employer to obtain and produce the original written statement from the key witness was another element of unfairness given that it contained evidence of assistance to the employees.
As a footnote, the Court of Appeal expressed concern about the "almost automatic response of many employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established".
Suspension should not be a "knee jerk reaction" to an accusation – indeed for an employer to approach suspension in such a way would be to breach the duty of trust and confidence to the employee. Suspension can have a profound and damaging impact on the suspended employee so the reasonable employer should in each and every case consider whether suspension is truly appropriate.
Furthermore employers should give very careful consideration to the question of whether behaviour that comes to their attention can reasonably be classified as "criminal" before referring the matter to the police. There is a balance to be struck between open and transparent conduct on the part of the employer and the duties owed to long-serving employees. On any reasonable interpretation of the facts in the present case, no criminal behaviour could reasonably be thought to have occurred.