Merson v Royal Devon University NHS Foundation Trust: lessons for employers

It is often difficult for any employer to manage situations that involve their employees but occur outside the workplace. An example is where an employee is arrested, investigated or charged with criminal activity, as was the case of Merson v Royal Devon University NHS Foundation Trust.

It can be tempting in these situations to jump to serious sanctions, often on the basis of the difficulties in managing an employment relationship during that time or the potential reputational damage to the organisation.

However, employers should take caution in acting too swiftly and inadvertently treating an employee unfairly as a result, as evidenced in this first tier Employment Tribunal case.

Merson v Royal Devon University NHS Foundation Trust: Background

In this case, Mr Merson had worked for his employer for almost 20 years when the police commenced an investigation into allegations of rape and voyeurism following complaints made by one of Mr Merson’s colleagues, with whom he had been in a previous relationship (referred to in proceedings as VJ).

Prior to the police investigation, the employing NHS Trust had been undertaking its own investigation into concerns that had been made both by VJ and another employee with whom Mr Merson had been in a relationship. At the end of 2022, VJ had decided against pursuing a formal allegation against Mr Merson, but the Trust still had concerns about Mr Merson’s behaviour and in January 2023 he was invited to a formal investigation in relation to potentially inappropriate conduct/interaction with female colleagues as well as an arrest for drink-driving.

However, this investigation was never concluded because of the accusation regarding Mr Merson made by VJ in March 2023 to the police.

Prior to these investigations, there had been no concerns about Mr Merson’s professional conduct or any suggestion that he presented a risk in respect of his care to patients.

Mr Merson was subsequently arrested on 18 April 2023 and informed the Trust. The next day, the police confirmed that Mr Merson had not been charged with any offence and that the matters were in the investigation stage, which was likely to last 12 months or more. Bail restrictions were placed on Mr Merson, including not attending the hospital where he worked, though there were no restrictions on Mr Merson working at any of the Trust’s other sites.

On 27 April 2023, the Trust suspended Mr Merson. He was invited to a meeting to discuss his role within the Trust, the conditions of the police bail and the potential reputational harm that could be caused to the Trust, and whether those circumstances amounted to a substantial reason to bring his employment to an end.

In a meeting on 26 May 2023, Mr Merson maintained that he was innocent. At the end of the meeting, which lasted 24 minutes including a 12 minute break, Mr Merson was dismissed. The reasons for dismissal included that he was subject to bail conditions that prevented him from attending Trust premises (the Tribunal judge accepted that this was an incorrect belief), it would not be possible to redeploy Mr Merson because of safeguarding concerns, and the risk of reputational damage.

Tribunal’s findings and lessons learnt

Mr Merson succeeded in his claim for unfair dismissal. The Tribunal gave several reasons why the dismissal was unfair, and there are some substantial lessons for employers to consider in the Tribunal’s reasoning.

  1. The Trust’s HR advisor had an undue involvement and influence over the matter

The Tribunal found the HR advisor had been providing substantial support to VJ throughout the process, and the judge questioned whether this meant he was able to remain sufficiently impartial to the decision making process.

The judge also found that the HR advisor had guided the decision maker at the hearing to consider dismissal for Some Other Substantial Reason, and had told him that suspension was not appropriate. This was not a decision for the HR advisor to make, and the judge felt that the HR advisor was guiding the decision maker to an outcome.

Employers should ensure that HR advise according to their role, and do not guide a decision maker to a particular outcome. If someone has had significant contact or connection with an employee involved, consider whether they are sufficiently neutral to be able to advise on the matter going forwards.

  1. Undue weight was placed on reputational damage

It is certainly true that preventing reputation damage can be a sufficient “Some Other Substantial Reason” justifying dismissal, however the question will be whether an employee acted reasonably or unreasonably in treating it as a sufficient reason to dismiss. In this case the Tribunal found that the decision maker should have taken account of the fact that they were dealing with an employee with long service and an unblemished record, and that he had not been charged by the police and was entitled to the presumption of innocence.

Whilst it is understandable that potential reputational damage will cause alarm for employers, care should be taken to avoid hasty or panicked decisions and not to disregard other important factors. An employer should be wary of dismissing purely because of the presence of potential reputational damage, and it may be that the reputational damage from an unfair dismissal would outweigh the original risk.

  1. The Trust did not consider suspension

The Tribunal found that HR had advised the decision maker that suspension was inappropriate in Mr Merson’s case, and that the decision maker had relied on that advice.

In contrast, when looking at the facts the Tribunal considered that the issues faced by the employer (reputational damage and patient safety) could both potentially have been managed via suspension of Mr Merson, thereby avoiding his dismissal. Without considering suspension at all, the employer had not had an opportunity to establish whether or not it was appropriate. The Tribunal took the view that it was outside the range of reasonable responses for the employer to (1) not consider suspension, and (2) not suspend as an alternative to dismissal.

This reinforces the importance of considering all options, even in situations where the employer considers the option inappropriate. Had the employer been able to show that they considered suspension, and the reasons why they came to a conclusion that it was inappropriate, the Tribunal may not have found the dismissal unfair on this point. Without being able to refer to the decision making process, the employer had no basis on which to argue this point successfully.

  1. Failure to properly consider redeployment

The Tribunal was also critical of the employer’s failure to properly consider redeployment. The employer’s position was that redeployment had been inappropriate because redeployment could threaten the integrity of the police investigation into Mr Merson. The Tribunal found the employer’s position unsatisfactory because the police bail restrictions themselves did not prevent Mr Merson working at another site within the NHS Trust.

Because it had already come to the conclusion that the dismissal was unfair, the Tribunal did not need to make a decision on whether the failure to redeploy Mr Merson into another role was outside the range of reasonable responses, however the judge was critical of the employer, highlighting the importance of reasonableness when considering the actual impact of restrictions or redeployment.

  1. Mr Merson was not given a right to appeal

The Tribunal found that the employer’s failure to give Mr Merson a right to appeal the decision to dismiss him made the decision unfair. In coming to this conclusion, the Tribunal emphasised Mr Merson’s long length of service and the very short meeting that led to dismissal. Employers should ensure that they maintain procedural fairness regardless of the circumstances.

To takeaway

This case is an interesting example of an employer putting excessive weight on potential reputational damage and as a result facing the consequence of adverse tribunal findings. It reminds employers of the importance of a balanced, reasonable approach and resisting acting impulsively, regardless of the severity of the allegations against an employee.

Rachel Levine is a solicitor in our employment law team.