The EAT considered whether procedural defects in an investigation into serious misconduct were capable of being remedied during the internal appeal process.
In this case, the Employment Appeal Tribunal (EAT) considered whether procedural defects in an investigation into serious misconduct were capable of being remedied during the internal appeal process.
Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust, EAT
Ms Tykocki was employed as a Healthcare Assistant by the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (the Trust) for 14 years before she was dismissed for gross misconduct following a serious complaint by a patient.
During the investigation of the complaint, Ms Tykocki was suspended. The final investigation report recommended that disciplinary proceedings should be commenced. Ms Tykocki was not supplied with notes of the investigatory meetings held with the other nurses on duty.
At the disciplinary hearing, Ms Tykocki denied the allegations. The hearing was adjourned pending further investigations, at which point the patient was contacted to confirm her version of events. No record was made of the conversation with the patient and Ms Tykocki was not given the opportunity to respond.
Ms Tykocki appealed against the Trust’s decision to dismiss her. A further meeting was held with the patient, at which Ms Tykocki’s representative was permitted to ask questions. Further allegations were raised by the patient, but these were not investigated and Ms Tykocki was not permitted to respond to them. Her appeal was rejected and she brought a claim for unfair dismissal. The employment tribunal dismissed her claim; the Trust had carried out a reasonable investigation and had reasonable grounds for its belief that she had committed the misconduct.
The EAT upheld the claimant’s appeal and remitted the case to be reheard.
Given the seriousness of the allegations and the consequences for Ms Tykocki, the EAT was not satisfied that the tribunal had taken into account all the relevant circumstances, including the level of investigation.
In particular, the EAT was concerned that the statements of the other nurses on duty were not provided to Ms Tykocki (described as an “innocent error” by the original tribunal) and she was not permitted to make submissions on them. In addition, the Trust did not carry out further investigations into the new allegations raised at the appeal stage, which might have assisted in establishing the credibility (or otherwise) of the patient’s account.
It was open to the tribunal to make a finding that certain procedural failures had been remedied on appeal. However, the EAT was not satisfied that the tribunal had properly engaged with the issue of whether an appropriate level of investigation had been undertaken into the question of credibility, meaning that the decision was unsafe.
An internal appeal stage can serve to rectify procedural defects made at an earlier stage of the disciplinary process. However, when the allegations involve serious misconduct and the stakes for the employee are high, an employer must consider the wider implication of any procedural failings and whether they may have impacted the overall fairness of the investigation. To avoid a finding of unfair dismissal, it might be necessary to conduct the appeal as a full rehearing.
The content of this article is for general information only. For further information regarding misconduct investigations please contact a member of Birketts’ Employment Team. Law covered as at December 2016.
The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at December 2016.