When it comes to dismissing an employee, following proper procedures and having carefully drafted disciplinary procedures in place is essential. Knowing the potential risks of dismissing an employee unfairly is the first step towards protecting a business from unfair dismissal claims.
In the following case study we will draw upon examples from real legal matters to illustrate how employers can risk getting it wrong and the potential consequences of their actions.
When Things Can go Wrong
The case of Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust is an example of how an employer can take the wrong steps when going through a disciplinary procedure to dismiss an employee. The case focuses specifically on the issue that a lot of employers deal with, namely trying to correct a flawed procedure at the appeal stage of the process.
In this case, Ms Tykocki had been employed as a healthcare assistant by the Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust (the Trust) for 14 years when a Patient made a serious complaint about her (and another person).
The patient complained that two "nurses" ignored her when she asked for more morphine. From the physical descriptions given, one of these "nurses" was identified as Ms Tykocki. The patient alleged that, after an hour of begging for morphine, Ms Tykocki came behind the curtains around the patient's bed, put her hand to the patient's face to cover her mouth and told her to "shut up". Ms Tykocki then allegedly leant in close to the patient's face and said that the patient could "report" her.
Ms Tykocki denied the allegations but was suspended while the Trust carried out an investigation. The Trust spoke to the patient, Ms Tykocki and to the other nurses on duty, who did not know anything about the alleged incident. Written notes of the investigatory meetings with the other nurses were not supplied to Ms Tykocki.
The final investigation report referred to other similar complaints against Ms Tykocki, but did not suggest that any previous disciplinary finding had been made. It also stated that the patient's other allegations were being dealt with separately. The report recommended disciplinary proceedings.
At a disciplinary hearing, Ms Tykocki continued to deny the allegations and suggested that the patient could have been hallucinating. The hearing was adjourned pending further investigations. The patient was contacted by telephone and asked whether she knew that some staff were nurses and some were healthcare assistants; the patient confirmed her understanding that all the staff were nurses. The disciplinary hearing reconvened, but no decision was reached. The disciplining manager then contacted the patient again directly and the patient confirmed her earlier statements. No record was made of that conversation and Ms Tykocki was not given the opportunity to respond.
The Trust dismissed Ms Tykocki summarily for gross misconduct. Ms Tykocki appealed and attended an appeal hearing.
A further meeting was held with the patient, where Ms Tykocki's trade union representative was permitted to attend and ask questions on Ms Tykocki's behalf. The patient raised new allegations during this meeting. She alleged that Ms Tykocki had told her she would have to say "please" before being given any morphine and that another patient was also neglected on the same evening. These allegations do not appear to have been investigated by the Trust and no further appeal hearing took place to enable Ms Tykocki to respond to them.
The appeal was dismissed and Ms Tykocki presented a claim of unfair dismissal to the employment tribunal.
The employment tribunal dismissed the claim on the basis that it found that the Trust had carried out a reasonable investigation in the circumstances and had regard to the relevant facts, both when taking the initial decision to dismiss and again at the appeal stage. The Tribunal considered that the Trust had reasonable grounds for its belief in Ms Tykocki's misconduct.
Ms Tykocki decided to appeal to the Employment Appeal Tribunal. The EAT allowed her appeal and remitted the case for further consideration. Specifically, the EAT identified the following flaws with the Trust’s process which the original Tribunal had not taken into account and should have:
- The statements of the other nurses on duty were not given to Ms Tykocki and she was not permitted to make submissions on those before the decision was made to dismiss her. Although those nurses had no direct evidence regarding the alleged incident (due to the curtains around the patient's bed), Ms Tykocki was entitled to question whether their evidence might have added something to the wider context. They may have had relevant information on whether it was likely that the events had taken place as alleged and, in that broad sense, their evidence might have been seen as exonerating Ms Tykocki.
- The Trust did not carry out further investigations into the new allegations raised at appeal or allow Ms Tykocki to make submissions on them. If the Trust had investigated and found them to be entirely false, this might have cast a different light on the credibility of the patient's account more generally.
- Ultimately the tribunal's reasoning did not show that it had considered more broadly whether these failings impacted upon the overall fairness of the investigation and process.
What employers need to take from this case is that when dismissing for alleged serious misconduct, an employer must be extremely careful if it seeks to rely on an internal appeal to remedy procedural flaws at an earlier stage in the process. Any such dismissal will be vulnerable to challenge if the employer does not consider the wider impact of procedural failings and take appropriate action to ensure in particular that the investigation is even-handed and that all relevant evidence has been obtained. In many cases this will require the employer to conduct the appeal as a full rehearing. If an employer does not do so, it will need to be able to satisfy an employment tribunal that its approach did not compromise the overall fairness of the procedure and the reasonableness of the decision to dismiss.
When Things Can go Right
The case of Stratford v Auto Trail VR Ltd is an example of a case where the EAT had to consider whether an employer taking account of a history of expired warnings meant that the employee's dismissal was unfair. The issue of whether previous warnings can or cannot be considered when disciplining an employee is a question we are often asked by employers and can be a tricky one to address.
Mr Stratford started work for Auto Trail VR Ltd (Auto Trail) in November 2001. He had a poor disciplinary record, the last two in a list of 17 items were a nine-month warning for failing to make contact while off sick in December 2012 and a three-month warning for using company machinery and time to prepare materials for personal purposes in January 2014. There were no live warnings on Mr Stratford's file at the time of the events that led to his dismissal.
On 15 October 2014, Mr Stratford was seen with his mobile phone in his hand on the shop floor. This was “strictly prohibited” by Auto Trail's employee handbook. Following a disciplinary hearing, the Production Manager, Mr Bristow, decided to dismiss Mr Stratford with 12 weeks’ pay in lieu of notice. His reasoning, set out in a letter, was that:
- Despite Mr Stratford being aware of the correct procedure regarding emergency contact through the switchboard and despite there being no reason for him to have had his phone on the factory floor, there had been unfortunate circumstances. Taking these into account the offence was not one of gross misconduct and would attract a final written warning.
- However, in addition to many informal conversations, this was the eighteenth time that Mr Stratford's behaviour had been the subject of formal action. While Mr Stratford had asked for one more chance, stating that he loved his job, was highly skilled and passed on his skills to new employees, there was no reason to believe that there would not be a similar conversation in the near future. While Mr Stratford's actions may not always be intentional, he did not understand their consequences and it was not believed that this would change.
After his internal appeal was unsuccessful, Mr Stratford claimed unfair dismissal.
The tribunal rejected the claim. An employment judge held that Mr Stratford had been dismissed for conduct consisting of his disciplinary history and, as expressed in Mr Bristow's letter, Auto Trail seeing no reason to believe that this would change.
The employment judge also held that having put the facts into the balance and taking account of the normal employment practice that once a warning had expired that the slate should be wiped clean, AutoTrail had been entitled to have regard to Mr Stratford's disciplinary record and his attitude to discipline in general and had been entitled to decide that enough was enough. In those circumstances, the dismissal was fair.
Mr Stratford appealed to the EAT and the EAT dismissed his appeal. Mr Stratford had argued that the original tribunal had failed to apply the correct legal principle, namely that when an employee is guilty of misconduct falling short of gross misconduct which, in itself, does not justify the sanction of dismissal, it is not reasonable for the employer to rely upon earlier misconduct as the principal reason for dismissal where any warnings given in respect of that misconduct have expired.
The EAT however, considered leading cases dealt by the Court of Appeal in this area of law, which the original tribunal had also done, and noted that as a result of those cases the law that applied was as follows:
- It was open to a tribunal to find that a dismissal for misconduct was fair, even though the employer, in its response to the reason for which the employee was dismissed, had taken account of the employee’s previous similar misconduct, which was the subject of an expired final warning.
- The fact of the previous misconduct, the fact that a final warning was given in respect of it and the fact that the final warning had expired at the date of the later misconduct would all be objective circumstances relevant to whether the employer acted reasonably or unreasonably and to the equity and the substantial merits of the case. The legislation did not single out any particular circumstance as necessarily determinative of the questions of reasonableness, equity, merits or fairness.
On this basis, the EAT found that the employment tribunal had correctly applied the law. The employer had been entitled to take into account the employee's previous record and the manager’s prediction as to how the future was going to go when making its decision.
The question at the heart of this matter was whether the employer, when considering dismissal of an employee for misconduct, must, for all purposes and in all circumstances, ignore an employee's previous misconduct because a final written warning received for it has expired. The answer provided by this case is no. As for identifying when an employer can take expired warnings into account, there is no set situation – it will depend on the facts of the case.
However, this case whilst potentially helpful to employers should still be relied upon with caution. The employer found that the offence in question was not one of gross misconduct and issued a final written warning. However, the employer went on to have regard to the employee's disciplinary history of spent warnings and its expectation of future conduct issues and decided to dismiss. There was no suggestion that the employee knew that this was going to be part of the disciplinary proceedings against him or that the tribunal considered whether this unanticipated assessment impacted, even if only procedurally, on the fairness of the dismissal. Therefore, the case actually illustrates the need to have carefully drafted disciplinary policies which anticipate dealing with serial misconduct offences and what sanctions can be imposed. It is also important that employers take care when giving warnings, particularly final warnings, to tailor them to the particular circumstances and to ensure there are allowances are incorporated in the disciplinary procedures for time lengths of warnings to be changed as a possible sanction.
In 2015/16, the highest figure awarded for an unfair dismissal claim was £470,865(Practical Law). As the examples above illustrate, procedural failings and overlooking relevant evidence when faced with Employment Tribunals can leave employers extremely vulnerable.
Hopefully this case study has highlighted the importance of taking practical and well considered steps to reducing the risk of unfair dismissal claims when dismissing an employee.
On March 20th 2017, the Employment team at Wildings Solicitors will be holding a free webinar for employers on this very subject. During the session, led by Employment Solicitor Neelam Afzal, attendees will learn the proper way to dismiss an employee, the 5 fair reasons for dismissal and practical ways to reduce the risk of unfair dismissal claims.
Register for free and reserve your place today.