Court of Appeal Advises on Dealing With Allegations of Misconduct

August 24, 2012

Court of Appeal Advises on Dealing With Allegations of Misconduct

The Court of Appeal has ruled (Crawford and another v Suffolk Mental Health Partnership NHS Trust) that procedural defects in the disciplinary process adopted by their employer rendered unfair the dismissals of two long-serving nurses who worked on a ward for patients suffering from depression, anxiety or dementia.

Mrs Crawford, Mr Preston and two health care assistants were the only staff taking care of 17 patients on the night-time shift. One of the patients, an 87-year-old man suffering from dementia, was in an agitated state and they attempted to restrain him. Their efforts were overseen by Paula Jeffrey, a staff nurse who was on her way out of the ward. A few days later, she made a complaint about the method of restraint the four members of staff had used. She said that the patient’s chair was tied to a table with a sheet and there was another sheet across his stomach. She was asked to make a statement in writing. Suffolk Mental Health Partnership NHS Trust suspended Mrs Crawford and Mr Preston pending investigations into the alleged assault and notified the police of potential criminal offences. A police investigation concluded that no action should be taken, however. There followed an internal investigation, which recommended that the incident be dealt with under the Trust’s disciplinary policy and advised that areas of development for the individuals be identified and appropriate training provided.

Mrs Crawford and Mr Preston accepted that they had secured the patient’s chair to the table to prevent him falling but denied trying to tie him to the chair by wrapping a sheet around his chest. Mrs Crawford said that the sheet was intended to make the patient feel as though he were in bed. Mr Mansfield, the manager responsible for the decision regarding sanctions, attempted to recreate the scene in order to test this evidence, but neither Mrs Crawford nor Mr Preston was invited to take part in the re-enactment. In the event, Mr Mansfield dismissed them. When their appeal against his decision failed, they brought claims for unfair dismissal.

The Employment Tribunal (ET) upheld their claims. Both Mrs Crawford and Mr Preston were experienced nurses with no prior disciplinary record, and against whom no malicious intent was alleged. In its view, the dismissal of a qualified nurse in such circumstances is a ‘career-changing decision’ and it therefore follows that the evidence of misconduct must be clear and cogent for a dismissal to be found to be reasonable. In this case, the ET identified specific errors in the way the disciplinary process had been handled by the Trust, including the failure to obtain, at the investigation stage, Ms Jeffrey’s original written statement of what she had seen and carrying out the experiment with the chair without the involvement of Mrs Crawford or Mr Preston. Furthermore, the ET found that no reasonable employer could have concluded that the nurses’ actions in restraining the patient amounted to a physical assault.

The Trust appealed against this decision and won. The Employment Appeal Tribunal (EAT) found that the ET had substituted its own view for that of the employer in concluding that the decision to dismiss the nurses was unreasonable. In addition, it was not open to the ET to conclude that no reasonable employer would have deduced from the evidence that the patient had been tied up as suggested by Ms Jeffrey. As regards their exclusion from the experiment with the chair, the EAT found that it was open to Mrs Crawford and Mr Preston to remedy this omission at the internal appeal stage but they had failed to do so.

Mrs Crawford and Mr Preston took their case to the Court of Appeal, which has restored the decision of the ET, observing that the ET was entitled to look particularly carefully at the disciplinary procedures given that not only the jobs of the nurses but also their ability to pursue their chosen careers was at stake.

The Court held that the ET was entitled to conclude that the experiment with the chair, carried out by Mr Mansfield without the claimants being given the opportunity to demonstrate what happened, was an unfair procedure and that this failure with respect to a vital piece of evidence meant that the disciplinary procedures as a whole were rendered unfair. It is for the employer to ensure that a fair procedure is adopted, not the responsibility of the employee to alert him to any errors.

The ET was also entitled to conclude that the failure to obtain Ms Jeffrey’s initial statement was a failing in the process that a reasonable employer would not have made. Whilst the Court of Appeal agreed with the EAT that the ET had gone too far in concluding that no reasonable employer could have preferred the evidence of Ms Jeffrey to that of the four staff members on duty at the time, this finding did not invalidate the finding of unfair dismissal. The procedural defects alone were sufficient to render the dismissals unfair.

The Court remitted the case to the ET to consider the ‘Polkey’ points – i.e. to determine whether the nurses would have been dismissed even if fair procedures had been followed and, if so, whether such a dismissal would have been fair.

As a footnote to this case, the Court of Appeal expressed regrets that in too many cases an employer’s automatic response to allegations of this kind is to suspend the employee as soon as a complaint is made, irrespective of the likelihood of it being upheld. Whilst not suggesting that the decision to suspend in this case was a ‘knee jerk reaction’, Lord Justice Elias expressed the view that such a reaction may breach the duty of trust and confidence owed to the employee. He also criticised the employer in this case as whatever the justification for the suspension, it was ‘little short of astonishing’ that it could ever have been thought appropriate to refer this matter to the police.