Crawford & Anor v Suffolk Mental Health Partnership NHS Trust

In an unfair-dismissal case, the tribunal must assess the employer’s conduct by the standard of a reasonable employer and must not substitute its own view of the evidence or sanction. A correct self-direction does not prevent appellate review where the tribunal has failed to apply it, but such a failure should not readily be assumed.

Where serious misconduct allegations may affect an employee’s future career, a tribunal may scrutinise the fairness of the investigation closely. An employer remains responsible for a fair procedure. A material procedural defect is not cured merely because an employee could have raised it on an internal appeal, where it is speculative whether the defect would then have been remedied.

If unfair dismissal is established, compensation must reflect any real chance that a fair dismissal would have occurred after a fair procedure.

Two long-serving nurses were dismissed for alleged gross misconduct after they used sheets to secure an agitated dementia patient’s chair to a table and were alleged to have tied him into the chair. The employer treated the conduct as physical assault and professional misconduct.

The Employment Tribunal found the dismissals unfair. It identified procedural defects, including an undisclosed experiment performed during the disciplinary process and the failure to obtain and disclose the complainant’s first statement. It also held that the employer could not reasonably have found that the patient had been tied to the chair. Compensation was reduced by 25% for contributory fault.

The Employment Appeal Tribunal allowed the Trust’s appeal, set aside the decision and remitted the matter. The nurses appealed to the Court of Appeal. The central issues were whether the Employment Tribunal had impermissibly substituted its own view for that of the employer, whether the internal appeal cured the procedural defects, and whether compensation required a Polkey assessment.

1. Appeal allowed in part. The court restored the Employment Tribunal’s finding that the dismissals were unfair. The matter was remitted to that tribunal to assess any reduction of compensation under Polkey.

2. The tribunal had correctly directed itself under British Home Stores v Burchell [1980] ICR 303n. In the circumstances, including the potential effect of a misconduct finding on the nurses’ careers, it was entitled to examine the fairness of the investigation particularly carefully, consistently with Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 722.

3. The tribunal was entitled to regard the undisclosed chair experiment as an unfair procedure. It was material evidence on the central allegation and the nurses could readily have attended to demonstrate their explanation. The employer was also not entitled to withhold the complainant’s first statement, which contained material capable of supporting the nurses’ case. Those defects carried substantial weight and independently rendered the dismissals unfair.

4. The internal appeal did not cure the defects. It was speculative whether the panel would have remedied them if the nurses had identified them. The employer could not shift responsibility for an unfair procedure to the employees’ failure to complain about it.

5. The tribunal had, however, erred in holding that no reasonable employer could have preferred the complainant’s account to that of the four staff members. That conclusion imposed the exceptionally high standard of perversity. The error did not undermine the overall finding of unfair dismissal because the procedural defects were independently sufficient.

6. The Trust’s alternative justification also failed. Its characterisation of securing the chair to the table as an assault was wrong and materially exaggerated the wrongdoing. On the facts, dismissal of employees with long unblemished service for that conduct alone was not within the range of reasonable responses.

7. A tribunal awarding compensation for unfair dismissal must assess the likelihood that a fair dismissal would or might have occurred after a fair procedure. If there was a real prospect of a fair dismissal, compensation must be reduced accordingly; if not, no Polkey reduction is justified. The existing 25% reduction for the nurses’ failure to report the unusual restraint was adequately explained.

Obiter: suspension should not be an automatic or “knee jerk” response to an allegation. An unjustified suspension may breach the duty of trust and confidence.

• Court of Appeal (Civil Division): Allowed the nurses’ appeal in part, restored the finding of unfair dismissal, and remitted compensation to the Employment Tribunal for a Polkey assessment: [2012] EWCA Civ 138.
• Employment Appeal Tribunal: Allowed the Trust’s appeal, overturned the Employment Tribunal’s decision and remitted the matter for a fresh determination: UKEAT/0338/10/DA.
• Employment Tribunal: Held that the nurses had been unfairly dismissed, reduced compensation by 25% for contributory fault, and made compensatory awards.