Whittington Hospital NHS Trust v Nduka

In a conduct dismissal case, the investigation must establish the relevant facts, allow the employee to answer the allegations, and allow mitigation to be advanced. Matters which the employee had an opportunity to raise, and which do not disclose a defect in those procedural functions, cannot properly found a finding that the investigation or procedure was unreasonable.

The tribunal must separately assess whether dismissal fell within the range of reasonable responses. It must not substitute its preferred sanction for that of the employer. Where serious patient neglect is established, dismissal may fall within that range despite long unblemished service, an apology, and the availability of a lesser sanction.

The claimant, a staff nurse, was summarily dismissed after three disciplinary findings arising from night shifts on a hospital ward. The principal allegation was that she administered morphine late to a patient in extreme pain. The employer also found that medication had been signed for but not given to another patient and that the controlled-drug policy had not been followed.

The Watford Employment Tribunal upheld her unfair-dismissal claim. It found that the employer had a genuine belief in misconduct, reasonable grounds, and an otherwise fair process, but considered that three matters had not received full consideration: her apology, her clean service record, and retraining as an alternative to dismissal. It made a two-thirds Polkey reduction.

The employer appealed. The central issue was whether those matters could render the investigation or procedure unreasonable, and whether dismissal fell outside the range of reasonable responses.

1. Appeal allowed. The Employment Tribunal's finding of unfair dismissal was set aside and replaced with a finding that the dismissal was fair.

2. The Employment Tribunal had correctly identified the four conduct-dismissal questions: genuine belief in misconduct, reasonable grounds for that belief, a fair investigation and procedure, and whether dismissal was a reasonable sanction. Its findings established the first two matters and, properly analysed, also established the third.

3. An employer's investigation serves three connected purposes: to discover the relevant facts, to permit the employee to answer and defend the allegations, and to permit the employee to advance mitigation. On the Tribunal's findings, each purpose had been fulfilled. The claimant had been able to state her case, apologise, rely on her employment history, and advance mitigation at investigation, disciplinary and appeal stages.

4. The three matters on which the Tribunal relied did not reveal an investigatory or procedural defect. The claimant's apology had been made during the process; her service history was a matter of record; and the Tribunal's view of the potential value of retraining differed from the employer's view. Those matters went, if anywhere, to sanction. Treating them as defects in the procedure either confused the relevant enquiry or substituted the Tribunal's preferred disciplinary outcome for the employer's.

5. The remaining sanction issue could be determined by the Appeal Tribunal. The patient neglect and resulting pain and suffering were sufficiently serious that dismissal was within the range of reasonable responses. Reasonable employers might instead have imposed a final warning and retraining, but another reasonable body of employers could properly dismiss. The claimant's unblemished service and apology did not take dismissal outside that range.

• Employment Appeal Tribunal: allowed the employer's appeal and substituted a finding that the dismissal was fair.
• Watford Employment Tribunal: by written reasons dated 27 March 2013, upheld the claimant's unfair-dismissal complaint, subject to a two-thirds Polkey reduction.