In-depth investigations are key to fair disciplinary processes
The recent case of Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust demonstrates the importance of a fair and thorough investigation process in disciplinary cases where the allegations are serious and could consequently have career limiting implications for the employee involved.
Mrs Tykocki was a long-serving Healthcare Assistant at the Trust. She was the subject of serious allegations made by a patient, effectively that she had assaulted the patient (who had asked for a pain-relief top up) by treating her in an uncaring and cruel way. Mrs Tykocki was suspended whilst the Trust undertook an investigation. She denied the allegations.
During the Trust’s investigation the patient was contacted. The Trust also spoke to the nurses who were on duty that day, who confirmed that they did not know anything about the alleged incident. The Trust’s investigatory documentation, including the notes from the meetings with the nurses, were not provided to Mrs Tykocki at any time.
During the disciplinary hearing Ms Tykocki suggested the patient may have been hallucinating and the hearing was adjourned to consider this further. The Trust conducted further investigations and contacted the patient again; although no record of the conversation was made. It was the Trust’s position that the patient had confirmed her earlier statement with regard to what had happened. Mrs Tykocki was not given the opportunity to respond to the patient’s further statement.
Following the disciplinary process, the Trust summarily dismissed Mrs Tykocki for gross misconduct.
Mrs Tykocki appealed the decision in accordance with the Trust’s disciplinary policy. There was an appeal hearing and subsequently a further meeting was held with the patient, this time in the presence of Mrs Tykocki’s TU representative who was allowed to ask her questions on Mrs Tykocki’s behalf. At that stage the patient amended her version of events, making new allegations against Mrs Tykocki. Specifically, that Mrs Tykocki had told her to say “please” for the pain relief and that she had mistreated another elderly patient on the same day. Mrs Tykocki was not provided with the opportunity to respond to the Claimant’s allegations. Ultimately Mrs Tykocki’s appeal was dismissed.
Mrs Tykocki subsequently brought a claim for unfair dismal in the ET.
The ET considered the various failings that Mrs Tykocki alleged the Trust had made during the disciplinary process. These included a failure to provide her with the statements from the nurses on duty, a failure to obtain a statement from the doctor and other patients on the ward and a failure to investigate the new allegations made by the patient at the appeal stage. The ET concluded that despite various procedural failings during the disciplinary process, the Trust had rectified these failings at the appeal stage.
The ET determined that since no one else on the ward had witnessed the incident, it was reasonable for the Trust not to have obtained statements from anyone else that had been on the ward. It also concluded that it had been an ‘innocent error’ by the Trust not to have provided Mrs Tykocki with all the investigatory documentation and that Ms Tykocki’s representative had been given the chance to question the patient on her further allegations, which had not been taken into account at the appeal stage in any case.
The ET concluded that the dismissal was fair, since the Trust had carried out a reasonable investigation and the decision to dismiss Mrs Tykocki had been within the range of reasonable responses in the circumstances. Mrs Tykocki appealed the ET’s decision.
The EAT considered that the real issue raised by the appeal was whether the ET’s decision properly took into account all relevant circumstances, including whether the appropriate level of investigation had been undertaken by the Trust during the entire investigatory process, given the seriousness of the allegations and the impact these could have on Mrs Tykocki.
The EAT confirmed there had been a failure to provide Mrs Tykocki with the evidence from nurses, which could have added something to the “broader picture” by providing evidence exculpatory of Mrs Tykocki. In essence, the nurses may have been able to provide information regarding whether it was likely that the incident had taken place as alleged and in relation to the patient’s credibility more generally. The EAT also determined that there had been a failure to investigate, and allow Mrs Tykocki to respond to, the new allegations made by the patient at the appeal stage.
The EAT held that the ET should not have limited its investigation to the impact of the failings on the particular allegation of misconduct, but should have considered more broadly whether the failings impacted upon the overall fairness of the Trust’s investigation. The EAT concluded that it could not be sure that the ET applied the test of reasonableness to the full circumstances.
The EAT therefore allowed Mrs Tykocki’s appeal and considered it proportionate for the matter to be remitted to the same ET for reconsideration.
This case acts as a valuable reminder for employers (particularly those operating in the health-care sector) that when serious allegations of misconduct are made against an employee, a comprehensive investigation must be undertaken in relation to which an employee must be provided with full details/ documentation and given the opportunity to respond before a decision is made.
Employers must ensure that all the potentially relevant evidence is obtained so that the investigation is equitable. This is particularly important when the dismissal is likely to have a highly detrimental effect on the employee’s career (i.e. where staff work in regulated sectors/roles).
Employers should ensure that any new information which comes to light during the disciplinary process is considered and should seek to remedy any procedural failings as early as possible. This may mean that the appeal should be conducted as a full rehearing to reduce the risk of subsequent litigation and to enable a more robust position to be taken in the defence of an unfair dismissal claim.