Summary: Do procedural defects in serious misconduct investigation impact on the fairness of dismissal, even if rectified on appeal?
Yes, says the EAT in Tykocki v Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust available here.
Facts: The employee, Ms Tykocki, in this case was a long-serving Health Care Assistant, who was dismissed for gross misconduct by her employer, Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust (‘the Trust’) after it was alleged that she had mistreated a patient during a night-shift.
The patient alleged that Ms Tykocki and another nurse on duty at the time had acted in a cruel and uncaring way towards her and that Ms Tykocki had been abusive and effectively assaulted the patient when she cried out for pain relief, then 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.
The final investigation report referred to other similar complaints against Ms Tykocki, but did not suggest that any previous disciplinary finding had been made. It also stated that the patient’s other allegations were being dealt with separately. The report recommended disciplinary proceedings.
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 patient was contacted by telephone and asked whether she knew that some staff were nurses and some were healthcare assistants; the patient confirmed her understanding that all the staff were nurses. The disciplinary hearing reconvened, but no decision was reached. 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 permitted 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 brought a Tribunal claim for unfair dismissal.
The Tribunal rejected Ms Tykocki’s claim on the basis that overall, the employer had carried out a reasonable investigation and the decision to dismiss fell within the band of reasonable responses in the circumstances. Also, the Tribunal held that any procedural failings at the investigation/disciplinary stage were corrected by the employer at the appeal stage.
Ms Tykocki appealed. The EAT held that this was clearly a case where the allegations made by the patient were very serious and the stakes were high for Ms Tykocki, given the potential career-ending consequences of a dismissal. It followed that, when applying the reasonable responses test, a higher standard was expected of this employer in these particular circumstances.
Although the Tribunal had considered procedural various failings by the employer, it had only done so in a way limited to the question of the individual allegation of abuse made against Ms Tykocki. For instance, the Trust failed to obtain/disclose statements from other nurses on duty that night. The Trust’s justification for this was that the allegation of abuse by Ms Tykocki took place behind a curtain, so the nurses could not have added anything to that. However, on the facts of this case, the complaints made against Ms Tykocki were broader than just one allegation of abuse/assault; it was of a cruel and uncaring response over a period of time, in which another nurse was also involved. What the Trust failed to recognise was that the nurses’ statements could have added something to the broader picture in terms of the patient’s credibility and the account that the patient gave of the events of that night-shift. This evidence might have been exculpatory of Ms Tykocki and was therefore relevant to determining the truth of the more specific allegation against her.
Ultimately, the EAT found that the Tribunal had failed to consider all relevant circumstances, including the degree of investigation required into the broader question of credit, given the gravity of the charges against Ms Tykocki. The case was sent back to the Tribunal to reconsider its judgment in the light of this decision.
Implications: The case is a useful reminder of some of the issues that employers should bear in mind when investigating misconduct, particularly where the allegations are serious:
The nature and extent of an investigation will depend on the seriousness of the matter. The more serious it is, the more thorough the investigation should be. Serious allegations of criminal misbehaviour require a very careful investigation. It need not be to the standard of a criminal investigation, but a careful and conscientious investigation of the facts is important.
The investigation must be even-handed. The investigator charged with carrying out the inquiries should keep an open mind and look for evidence which supports the employee’s case as well as evidence against. A fair investigation is particularly important where the employee’s reputation or ability to work in his or her chosen field is at risk. In such cases, the standard of fairness and thoroughness required from the employer will be high and the employer should expect a Tribunal to scrutinise the procedures followed particularly carefully.