Tykocki v Royal Bournemouth And Christchurch Hospitals (NHS Foundation Trust)

In a misconduct dismissal involving grave and disputed allegations, the investigation required by section 98(4) of the Employment Rights Act 1996 must be proportionate to the seriousness of the charge and its consequences. The inquiry must consider reasonably available material which may be exculpatory, including evidence capable of affecting the complainant’s credibility in the wider factual context.

An Employment Tribunal may not confine its assessment to evidence bearing directly on the particular allegation if uninvestigated allegations, inconsistencies or witness material might materially affect the reliability of the account as a whole. Procedural shortcomings before dismissal may be cured on appeal where the employee has a fair opportunity to test the evidence. An appellate tribunal must nevertheless ensure that the Employment Tribunal actually applied the correct test to all relevant circumstances.

The Claimant, a long-serving healthcare assistant, was summarily dismissed for gross misconduct after a patient alleged that she had acted abusively and assaulted her during a night shift. The Claimant denied the allegation. The patient’s complaint also concerned other staff and later included a new allegation about another patient.

The Southampton Employment Tribunal dismissed the Claimant’s unfair-dismissal claim. It held that the Respondent’s investigation was reasonable, that it had reasonable grounds for its belief, and that dismissal fell within the range of reasonable responses.

The Claimant appealed, contending that the Tribunal had failed to apply the heightened standard of investigation required for serious allegations and had inadequately addressed undisclosed nurses’ evidence and the uninvestigated new allegation. The central issue was whether the Tribunal had assessed the fairness of the investigation in its wider credibility context.

1. Appeal allowed. The Employment Tribunal correctly directed itself on section 98(4) of the Employment Rights Act 1996, the Burchell guidance and the range of reasonable responses. The absence of express references to particular authorities did not itself establish an error of law.

2. Procedural deficiencies before the initial dismissal had been adequately cured at the appeal stage. The Claimant’s representative attended the later meeting with the patient, could ask questions, and the Tribunal was entitled to find that the patient’s evidence had been sufficiently tested. The Tribunal was also entitled to rely on evidence of the Claimant’s conduct during the internal hearings.

3. However, the allegations were grave and carried serious consequences for the Claimant. The investigation therefore required careful consideration of evidence capable of supporting innocence as well as evidence supporting guilt. Although the nurses could not directly corroborate the curtained-bed incident, their evidence might have affected the broader credibility of the patient’s account of events during the shift.

4. The same applied to the patient’s detailed new allegation at the appeal stage concerning another patient. If that allegation had been investigated and proved false, it might have affected the reliability of the patient’s account generally. The Tribunal considered the omissions only by reference to the specific allegation against the Claimant. Its reasons did not show that it had assessed their possible effect on credibility and the wider factual picture.

5. The EAT could not therefore be sure that the Tribunal had applied the statutory reasonableness test to all relevant circumstances. Its conclusion that the dismissal was fair was unsafe. The decision was set aside and remitted to the same Tribunal, if practicable, for reconsideration. The Claimant was awarded £1,000 costs under Rule 34A(2)(a) of the Employment Appeal Tribunal Rules 1993.

• Employment Appeal Tribunal: Allowed the appeal, set aside the dismissal of the unfair-dismissal claim, and remitted the matter to the same Employment Tribunal.
• Southampton Employment Tribunal: Rejected the Claimant’s unfair-dismissal claim in a judgment sent to the parties on 10 August 2015.