Workplace disciplinary investigations

Posted: 16th December 2016

EATAll workplace disciplinary investigations must be fair, but even greater vigilance is needed where alleged misconduct is very serious and credibility is in issue. The Employment Appeal Tribunal (EAT) made that point in boosting the compensation hopes of a care assistant who was sacked after 25 years’ service.

A patient had accused the woman of being abusive towards her during a night shift. The latter denied that the alleged incidents had ever occurred and suggested that the patient may have been hallucinating. She was nevertheless suspended and, following a disciplinary hearing, she was dismissed for gross misconduct. Her internal appeal against that decision was unsuccessful.

Despite having identified various procedural failings in the initial disciplinary process, an Employment Tribunal (ET) rejected her unfair dismissal claim against the NHS trust for which she worked on the basis that those flaws had been put right at the appeal stage. Summary dismissal was, the ET found, a reasonable response to the findings made against her.

In upholding the woman’s challenge to that decision, the EAT noted that the stakes for her were particularly high given the gravity of the patient’s allegations, which were potentially criminal in nature. Her credibility, and that of the patient, were central issues to be decided. In those circumstances, the investigatory burden on the trust was a high one and it had erred in focusing on one specific allegation, rather than the broader picture of what had occurred during the shift in question. The case was sent back to the same ET for reconsideration in the light of the EAT’s ruling.