Salford Royal NHS Foundation Trust v Roldan

In deciding whether a misconduct dismissal was reasonable, an employment tribunal must examine whether the employer genuinely believed the employee guilty, had reasonable grounds for that belief, and had undertaken as much investigation as was reasonable. The required care reflects the gravity of the allegation and its potential consequences for the employee.

Where credibility is decisive, an employer should test objectively verifiable aspects of conflicting accounts. An employer may also conclude that the conflict cannot fairly be resolved and give the accused employee the benefit of the doubt. An appellate tribunal may interfere with the employment tribunal’s evaluative decision only on a proper evidential or perversity ground.

An experienced nurse was summarily dismissed for alleged mistreatment of a patient. The employer preferred the account of a healthcare assistant. The dismissal also jeopardised the nurse’s immigration status and career and led to a criminal prosecution, of which she was acquitted.

The Employment Tribunal found the dismissal unfair because the employer had failed adequately to investigate an objectively testable aspect of the complainant’s account and had not sufficiently particularised an earlier alleged incident. It later awarded compensation, reduced by 30% for contributory fault. The Employment Appeal Tribunal, in UKEAT/0323/09, overturned the liability decision and directed reconsideration of matters including section 98A(2) of the Employment Rights Act 1996.

The central issues were whether the Employment Tribunal had been entitled to find the investigation unreasonable, whether liability should have been reopened under section 98A(2), and whether further evidence should have been admitted.

1. Appeal allowed. The Employment Tribunal’s finding of unfair dismissal was restored. Elias LJ gave the judgment, with which Etherton LJ and the Chancellor agreed.

2. The Employment Tribunal had correctly directed itself under British Home Stores Ltd v Burchell [1978] IRLR 379. Its evaluative decision could be disturbed only if it lacked a proper evidential basis or was perverse. That was a very high threshold, requiring an overwhelming case that no reasonable tribunal, properly appreciating the law and evidence, could have reached the decision.

3. The Employment Appeal Tribunal had misunderstood the Employment Tribunal’s reasons. The possible absence of documents was not a ground of the unfairness finding. The material lack of particulars concerned the earlier alleged incident, which formed one of the stated grounds for dismissal. More detail might have enabled the nurse to recall, explain or disprove that allegation, while the existence of more than one incident could materially affect the perceived gravity of the misconduct.

4. Because the case depended on directly conflicting accounts, the employer could reasonably be expected to test the complainant’s account where objective inquiry was possible. Whether the window blinds would normally have been closed bore on the complainant’s reliability, the alleged premeditation and malice, and the possibility of other witnesses. The Employment Tribunal was therefore entitled to find the investigation inadequate, particularly given the grave professional and immigration consequences.

5. Section 98A(2) of the Employment Rights Act 1996 did not alter the result. The remedies decision established that no evidence put the statutory issue in play. The Tribunal therefore had no obligation to address it of its own motion. Once liability had been determined, and in the absence of a review application covering that issue, the Tribunal had no jurisdictional basis for reopening the finding. It also properly refused further evidence where the parties had been directed to address liability and remedy together.

6. Where evidence consists of irreconcilable accounts, an employer need not invariably believe one employee and disbelieve the other. It may properly find the allegation unproved and give the accused employee the benefit of the doubt. In split hearings, the parties should clarify which issues and evidence are to be addressed at each stage.

1. Court of Appeal (Civil Division): Allowed the appeal and restored the Employment Tribunal’s finding of unfair dismissal. The Employment Appeal Tribunal’s ruling on one aspect of compensation was not challenged and the appeal on that aspect succeeded by consent.
2. Employment Appeal Tribunal: In UKEAT/0323/09, overturned the unfair-dismissal finding. It held that the investigation and notice of the allegations were not unfair, that section 98A(2) of the Employment Rights Act 1996 should have been considered, and that further evidence should have been admitted.
3. Employment Tribunal: Found the dismissal unfair because the investigation was inadequate and an earlier allegation was insufficiently particularised. It refused reinstatement or re-engagement, awarded compensation, declined a Polkey reduction, and reduced compensation by 30% for contributory fault.