Pinto v. Gloucestershire NHS Primary Care Trust

In an unfair-dismissal case involving alleged professional misconduct, the reasonableness of the employer’s investigation and sanction must be assessed in context. A serious allegation against a healthcare professional may require a high standard of investigation. However, where the employee does not challenge the material evidence, the investigation required may be more limited. The Employment Tribunal must focus on the employer’s decision-making and the information available to the employer. It must not substitute its own view of the professional standards or the risk posed to patients. A dismissal is fair where it falls within the range of reasonable responses. A procedural challenge to material raised before the Tribunal may be refused where the appellant has not complied with directions requiring the point to be properly particularised.

The Claimant, an experienced health visitor, was dismissed for gross misconduct after investigations into deficiencies in patient-record keeping and clinical practice. An initial disciplinary process resulted in a final written warning. Further matters emerged during the investigation, including seven alleged examples of clinical practice said to have put patients at risk. With the Claimant’s consent, the original and new matters were considered together at a second disciplinary hearing, which resulted in dismissal.

The Employment Tribunal applied the three-stage guidance in British Home Stores Ltd v Burchell, finding that the Respondent genuinely believed the Claimant was guilty, had reasonable grounds following a reasonable investigation, and had acted within the range of reasonable responses. The central issues on appeal were the adequacy of the Tribunal’s reasons, an alleged procedural ambush concerning evidence about a child, the adequacy of the disciplinary investigation, and the consolidation of the allegations.

1. Appeal dismissed. The Employment Tribunal’s reasons satisfied the requirements identified in Meek and English. The Claimant could understand why her claim had been dismissed: her record-keeping was poor and the evidence that her clinical practice put patients at risk had not been challenged.

2. The procedural challenge concerning the paragraph 15 child could not properly be raised because the Claimant had not followed the procedure required by the orders made at the preliminary stages. In any event, the material had been disclosed, the relevant matters appeared in the investigation report, and the point had no realistic prospect of success. Practice Direction paragraph 11 was relevant to the case-management consequences of seeking to rely on material not apparent from the Tribunal’s written reasons.

3. The standard of investigation may be particularly high where misconduct allegations against a healthcare professional could result in dismissal. The duty to investigate is not necessarily confined to guilt or innocence and may require relevant background to be examined so that the misconduct is placed in context, as explained in Chamberlain Vinyl Products Ltd v Patel, drawing on Polkey v A E Dayton Services Ltd. But the intensity of scrutiny changes where the employee admits or does not challenge the evidence. In those circumstances, Royal Society for the Protection of Birds v Croucher supports a more limited investigation.

4. The Tribunal correctly focused on the employer’s actions and the information available to it, as required by London Ambulance Service v Small. It was for the NHS Trust, in the first instance, to determine whether the Claimant had breached professional requirements and whether her conduct amounted to gross negligence under its rules. It was not for the Employment Tribunal to substitute its view of what conduct put patients at risk.

5. The consolidation of the original and later allegations was not unfair. The further matters emerged during the investigation, were of a different and more serious character, and were considered together with the Claimant’s consent. The circumstances were materially different from Sarkar v West London Mental Health NHS Trust, where a previously minor matter was exposed to dismissal after a change in the disciplinary course.

• Employment Appeal Tribunal: appeal from the Employment Tribunal’s judgment registered with Reasons on 1 June 2009. Appeal dismissed.