EAT Unfair Dismissal : Reasonableness of Dismissal – Unfair dismissal – fairness of decision to dismiss – section 98(4) Employment Rights Act 1996
The Claimant was a long-serving Healthcare Assistant who had been the subject of allegations by a patient, relating to a particular night-shift, when it was said she – and at least one of the nurses on duty – had acted in an uncaring and cruel way and had, individually, been abusive and had effectively assaulted the patient. The Respondent – after a disciplinary and appeal process – determined that the Claimant should be dismissed summarily due to this gross misconduct. The ET considered that various procedural failings in the disciplinary process had been made good at the appeal stage and, ultimately, the dismissal had been fair. The Claimant appealed.
Held: allowing the appeal
Given the seriousness of the allegations for the Claimant, it was accepted this was a case where – applying the band of reasonable responses test – more would be required of the Respondent’s investigation and process (see ILEA v Gravett [1988] IRLR 497 EAT, A v B [2003] IRLR 405 EAT and Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA). Although the ET had considered various failings by the Respondent – in particular, to obtain/provide statements from the nurses on duty and to investigate new allegations made by the patient at the appeal stage – it had done so in a way limited to the question of individual allegation of abuse made against the Claimant. The reasoning did not show it had considered whether those failings impacted upon the fairness of the investigation and process in terms of credibility more broadly (those matters might, in turn, have impacted upon whether the Respondent had reasonably accepted the truth of the more specific allegation made against the Claimant alone). The ET’s conclusion on the Claimant’s unfair dismissal complaint was rendered unsafe and its decision would be set aside and the matter remitted to the same ET for further consideration.
Eady QC HHJ
[2016] UKEAT 0081 – 16 – 1710
Bailii
England and Wales
Employment
Updated: 26 January 2022; Ref: scu.571778