This article was written by Gina Unterhalter, Managing Associate.
How should you deal with the situation where a disciplinary or grievance investigation comes down to the word of one person against another?
The Employment Appeal Tribunal (“EAT”) in the case of Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust has cast some light on this tricky but common situation.
Ms Tykocki was employed as a healthcare assistant at the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (the "Trust") for 14 years when a patient made a serious complaint about her. She was alleged to have ignored the patient's request for morphine, using her hand to cover the patient's mouth and telling her to shut up. She denied the allegations but was suspended whilst investigations were carried out. As part of the investigations, the Trust spoke to the other nurses who were on duty but did not disclose these statements from the other nurses or the notes of the investigation to Ms Tycocki. At the disciplinary hearing Ms Tykocki continued to deny the allegations and the patient was contacted to confirm her version of the events. No record was made of the conversation with the patient and Ms Tykocki was not given the opportunity to respond.
Ms Tykocki was summarily dismissed for gross misconduct. She appealed and attended an appeal hearing. At this meeting the patient made further allegations, stating that she was told she would have to say "please" before she received any morphine. These allegations were not investigated and no further appeal hearing took place to allow Ms Tykocki to respond to them. The appeal was dismissed and Ms Tykocki presented a claim of unfair dismissal to the ET.
At the ET the claim was dismissed and it held that the Trust had carried out a reasonable investigation in the circumstances when taking the initial decision to dismiss, and again at the appeal stage. Ms Tykocki appealed to the EAT.
Employers will be well aware that to dismiss an employee fairly for misconduct they must show that they acted reasonably, including when carrying out a disciplinary investigation or hearing.
An investigation should be “reasonable in all the circumstances” and in instances where the allegations are sufficiently serious as to potentially impact on the employee’s reputation or future employment prospects, as was in this case, the employer should be more thorough and rigorous in its investigations.
The EAT allowed the appeal and remitted the case for further consideration. The EAT found that the ET had directed itself correctly on the law, but given the seriousness of the allegations it was not satisfied that the ET's decision had properly taken into account all relevant circumstances including the degree of investigation necessary to determine the broader question of credibility given the gravity of allegations made against the Ms Tykocki. In particular, the EAT highlighted the following:
- Ms Tykocki should have been given the statements made by the other nurses on duty, despite the fact that they had no evidence regarding the alleged incident, as their evidence may have added something in a broader sense which could have been favourable to her.
- The Trust did not carry out investigations into the new allegations raised at appeal and Ms Tycocki was not allowed to respond to them. The Trust could have investigated these allegations and found them to be false which could have potentially cast doubt on the patient’s credibility.
What does this mean for employers?
This case offers important practical tips for employers who are faced with a disciplinary situation which involves one person’s word against another’s. It can be tempting for an employer to focus only on the "he said, she said" evidence, and to attempt to reach a finding on that alone, based on "gut feeling" perhaps, or an assumption that a Tribunal won't second guess their finding as long as it appears reasonable.
This case provides a useful example of other steps employers should consider, such as looking more broadly and rigorously at the relevant circumstances including evidence that casts cast light on the credibility of the witnesses. Employers must also give the employee the opportunity to review and respond to such evidence, as this could in itself cast light on whether the central allegations are upheld. In short, where the allegations are serious and the consequences of a “guilty” finding potentially career-ending, employers must take a particularly thorough approach to investigation. Where the evidence for the central allegation is thin or comes to down to “he said, she said”, the investigator should cast their net wide for evidence that might help them reach a reasonable conclusion.