Obtaining evidence

The case of Salford NHS Trust v Roldan now provides some guidance as to the level of investigation required at the early stage of disciplinary proceedings. It was held that where evidence provided by a witness raises unanswered questions, is inconsistent or conflicts with the views of others then this should be followed up.

In the above case a Philippine nurse was alleged to have abused a patient. If found guilty she would lose her job, be reported to the police and lose her right to work in the UK. As part of the investigation, the nurse and a colleague who claimed to have seen the incidents were interviewed. Lengthy notes were taken of the nurse's interview but not of her colleague's interview.   The Trust's disciplinary panel rejected the evidence of the nurse as unconvincing preferring that of her colleague, stating that they could see no reason as to why she should lie.

The nurse appealed her dismissal; the tribunal found that there were elements of the colleague's evidence that required further investigation. For example the colleague had stated that the nurse had looked through a window to see if she was being observed, however the senior manager who conducted the investigation admitted to the panel that the blinds on that window would have been closed and there was no way the nurse could have looked through it. As a result of this the tribunal found that the dismissal was unfair and that the employer should have further investigated the evidence of the colleague and asked others about the nurses interactions with the patient involved.

The Court of Appeal said that when an employer is faced with conflicting evidence it does not have to decide which one it "believes" or "disbelieves". It could decide that there is a difference in perception and both parties are telling the truth as they see it. It could decide that it is a conflict that cannot be resolved and that the allegations are not proven without having to imply that the other witness is lying. A decision to dismiss (or not to dismiss) can still be made.

Failure to follow the ACAS code resulting in an uplift in compensation

Although the case set out below involved a failure to follow statutory procedures (now repealed), these are the principles that the Tribunal will apply to failures to follow the ACAS code. The maximum uplift available for failure to follow the ACAS code is 25% as opposed to 50% for a failure to follow statutory procedures.

The Employment Appeal Tribunal held that in choosing the size of the uplift the relevant factors to be considered by a tribunal include:

1. whether the procedures were ignored altogether or applied to some extent;
2. whether the failure to comply with the procedures was deliberate or inadvertent; and
3. whether there were circumstances which may mitigate the blame worthiness of the failure.

The size and resources of the employer are also capable of being taken into consideration.

In Lawless v Print Plus the employee was dismissed as redundant with no notice as the employer could no longer continue to pay him. The employee wrote to the employer requesting the reasons for his dismissal and received a rude and offensive response. The tribunal awarded 10% uplift on the basis that the employer was running a small business; that he had not handled the situation maliciously; he was under an incredible amount of pressure that clouded his judgement and there was no underlying animosity between the parties. The EAT increased this due to the complete failure to follow procedures which was held to have been aggravated by the offensive response to the appeal letter.

When considering the level of uplift to be awarded for failure to follow the ACAS code the above case would suggest that where there have been flagrant breaches of the code the starting point should be nearer to 25%.

Conducting a disciplinary hearing

Although employers are suppose to hold disciplinary hearings without unreasonable delay, it has been held by the Employment Appeal Tribunal that it will not be an unreasonable delay to adjourn a disciplinary hearing while the police investigate and prosecute  in relation to the same offence (Secretary of State for Justice v Mansfield).

In this case a prison officer had allegations made against him of orchestrating violence amongst prisoners and placing drugs on a particular prisoner. The Claimant was suspended and the matter referred to the police. Internal investigations were suspended pending the outcome of the police investigation. The police investigation lasted a year and did not result in a conviction. The internal disciplinary proceedings resumed and the Claimant was dismissed for gross - misconduct. The claimant issued proceedings for unfair dismissal and the ET found in his favour. The EAT overturned the decision stating that where an employee is facing disciplinary proceedings at the same time as being investigated by the police, it is at the employers discretion whether to continue or to postpone the disciplinary hearing. In this case it was held that the decision to delay could not be criticised as involving an unjustifiable delay. 

Disclaimer:  The information and opinions expressed in all Lee & Priestley LLP articles contained in our briefings and on our website - http://www.leepriestley.com are not necessarily comprehensive and should not be relied upon without taking in-depth professional advice.

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