Fairness and the test of reasonableness
Monday, 28th November 2016
The EAT in Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust UKEAT/0081/16 has found that an employment tribunal ("ET") erred when it found a dismissal to be fair despite procedural failings. This was even when the employer had rectified the failings on the appeal of the employee. The EAT held that an ET must take a broad view as to whether procedural failings have impacted on the fairness of an investigation.
The starting point when assessing fairness in relation to an investigation into misconduct which results in dismissal must always be the reasonableness test set out in section 98(4) Employment Rights Act 1996 (the "ERA"). Where the issue is one of pure inference the courts have ruled previously that the levels of investigation required will be greater. In A v B  IRLR 405, the EAT stated that the investigation should be particularly rigorous.
Ms Tykocki was employed as a healthcare assistant at the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (the "Trust") for 14 years when a patient made a serious complaint about her. She was alleged to have ignored a patient's request for pain killers, using her hand to cover the patient's mouth and telling her to shut up. She denied the allegations but was suspended whilst investigations were carried out. The notes of the investigation were never supplied to Ms Tykocki. At the disciplinary hearing Ms Tykocki continued to deny the allegations and the patient was contacted to confirm her version of the events. No record was made of the conversation with the patient and Ms Tykocki was not given the opportunity to respond.
Ms Tykocki was summarily dismissed for gross misconduct. Ms Tykocki appealed and attended an appeal hearing. At this meeting the patient made further allegations, stating that she was told she would have to say "please" before received any morphine. These allegations were not investigated and no further appeal hearing took place to allow Ms Tykocki to respond to them. The appeal was dismissed and Ms Tykocki presented a claim of unfair dismissal to the ET.
At the ET the claim was dismissed and it held that the Trust had carried out a reasonable investigation in the circumstances when taking the initial decision to dismiss, and again at the appeal stage. She appealed to the EAT.
The EAT allowed the appeal and remitted the case for further consideration. The EAT found that the ET had directed itself correctly on the law, but given the seriousness of the allegations it was not satisfied that tribunal's decision had properly taken into account all relevant circumstances including the degree of investigation necessary to determine the broader question of credibility. Furthermore, the ET hadn’t taken into account the numerous errors made during the disciplinary and appeal process. Due to the failure by the ET to properly consider these failings the EAT held that the decision was therefore unsafe.
When dismissing for alleged serious misconduct the employer must take extra care when investigating, and in particular if it seeks to rely on an internal appeal to remedy procedural defects from an earlier stage of the investigation. Any such dismissal will be vulnerable to challenge if the employer does not take in to account the wider impact of procedural failings.
This article was written by Stephen Moore and James Crotty.