Aside from the COVID-19 pandemic, a key theme of 2020 has been diversity and inclusivity. This two-part update addresses this theme in detail
So, what are the implications of the case for your organisation?
The case concerned two nurses employed by the Trust and dismissed on the grounds of gross misconduct due to the way in which they handled a patient. During the case the basic legal principles of fairness in dealing with a conduct dismissal case were considered. The Court provided a helpful reminder to employers that in order for a dismissal to be fair you must be able to establish that, at the time of dismissal and throughout the disciplinary process, your actions were reasonable. It emphasised that you must take seriously your responsibility to conduct a fair disciplinary investigation where the employee’s reputation or ability to work in his/her chosen field is likely to be affected by a finding of misconduct.
Of particular interest are the observations made by Judge Elias about suspending employees during disciplinary proceedings and reporting matters under investigation to the Police.
Judge Elias pointed out that: “it appears to be the almost automatic response of many employers to allegations of this kind [alleged mistreatment of a patient] to suspend employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made, and quite irrespective of the likelihood of the complaint being established”.
He felt that even where there seems to be evidence supporting an allegation, that does not mean that suspension is automatically justified. He highlighted that suspension “should not be a jerk reaction” and that it would be “in breach of the duty of trust and confidence towards the employee if it is”. In his view suspension was inappropriate in this case, as he thought it was difficult to believe that the Trust could have thought that there was any risk of treatment of the kind in question being repeated.
Although there is no doubt that suspension should not be an automatic reaction to a disciplinary allegation, the comments made by Judge Elias are disappointing and surprising considering the individuals in this case were qualified nurses and the allegations made against them were that the way they handled a patient was in serious breach of good practice and potentially contravened their professional codes of practice.
Nevertheless, the message for health and social care providers from this decision is that before suspending any employee you should consider whether suspension is appropriate, taking into consideration factors such as: the employee’s employment history with the organisation; whether they have a clear disciplinary record and whether the employee poses a risk to service users if they continue to work whilst the investigation is being undertaken. It is very important to document your rationale for suspending or not suspending an employee who is the subject of a disciplinary investigation, where the allegation if proven could constitute gross misconduct.
Reporting to the Police
Judge Elias also gave his views on the Trust’s referral of the matter to the Police and he again criticised the Trust for doing so. Judge Elias explained that he recognised: “that it is important that a hospital in this situation [where there is alleged mistreatment of a patient] must be seen to be acting transparently and not concealing wrongdoing”.
However, his view was that employers also: “owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit”.
He pointed out that being under criminal investigation is a very heavy burden for an employee to face and “employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct.”
The conclusion to be drawn is that, before any report to the Police is made, organisations should carefully consider (and where appropriate take advice) whether the alleged conduct could constitute a criminal offence. It would seem that a court is likely to be highly unimpressed if an “unnecessary” referral is made to the Police. If such action is not justified then it could be viewed by a court as an indication that the employer has made a decision about the employee’s alleged conduct, before a proper investigation has been carried out. This could render any disciplinary action unfair.
Reporting to ISA
Judge Elias did not comment on referrals to the Independent Safeguarding Authority (ISA). However, the ISA rules are that organisations working with children and/or vulnerable adults (in what is legally defined as regulated activity) have a legal duty to inform ISA if they dismiss or remove a member of staff/volunteer from working with children and/or vulnerable adults because they have harmed a child or vulnerable adult.
It is our view that a similar approach should be adopted when making referrals to ISA as when reporting matters to the Police. Therefore referrals to ISA should only be made where necessary and where the employee has been dismissed or removed from working with vulnerable people because they have harmed a child or vulnerable adult.
For more information
If you would like further advice or training on suspending or dismissing, please contact Anna Dabek on 0121 212 7494, email@example.com or Matthew Wort on 0121 212 7494, firstname.lastname@example.org.
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