Where are employment disputes coming from in the age of Covid?
At B3sixty we have been keeping an eye on the kind of employment disputes arising during, or likely to emerge as a result of the Covid Pandemic. In this round up we pick out seven …
Standard of investigation critical in career-threatening dismissal
In Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust the EAT considered the standard of disciplinary investigation required where a dismissal had career-threatening consequences.
Tycocki was a healthcare assistant against whom allegations of patient mistreatment were made. The allegations included one specific incident during a night shift when a patient had begged for morphine. Allegedly Tykocki put her hand over the patient’s face and told her to shut up. She was suspended pending an internal investigation.
The trust interviewed both her and the patient. The nurses on duty at the time were also spoken to, but no formal statements were taken, and no notes were provided to Tycocki. Following the investigation, she was subjected to disciplinary proceedings. Tykocki was re-interviewed and the Trust also investigated whether the patient involved in the incident had been hallucinating as a result of the drugs she was receiving. The manager dealing with the case spoke to the patient twice more, although the second conversation was not properly recorded and Tycocki was not given the opportunity to respond to the new evidence. She was dismissed for gross misconduct.
She appealed against her dismissal and, during the appeal, a further meeting was held with the patient, this time with the healthcare assistant’s trade union representative present and able to ask questions. During that meeting, the patient made a further allegations. The Trust did not reconvene the appeal hearing to discuss the new allegations with the employee, nor did it undertake any further investigation into them. Instead, the employer dismissed the appeal, relying on the findings of the investigation and disciplinary meeting when reaching its decision to dismiss. Tycocki claimed unfair dismissal.
The employment tribunal found failings in the investigation/disciplinary procedure but decided the employer had reasonable grounds for its decision to dismiss. It believed that the employer had remedied any original procedural defect caused by not providing the employee with notes of the second conversation with the patient, and not giving her the opportunity to respond to that evidence, because it had allowed her trade union representative the opportunity to question the patient. Tykocki appealed.
The EAT allowed the appeal. The trust had failed to interview formally other nurses working at the time of the original night-shift incident and did not investigate the additional allegations raised during the appeal. The EAT believed that these further investigations could have provided evidence relating to the credibility of the allegations and given a wider context to the patient’s complaint.
The EAT said that whilst in other cases it may not have been necessary to obtain additional evidence, the tribunal should have considered whether failing to obtain this evidence was reasonable, given the ramifications of a finding of gross misconduct on Tykocki’s career. As it had failed to do so, the case was sent back to the employment tribunal for reconsideration.
An effective appeal can remedy earlier faults in the disciplinary process
The EAT decided in Khan v Stripestar Ltd that a defective first stage disciplinary procedure can be fully remedied by a subsequent internal appeal.
Mr Khan was responsible for running the repairs workshop for his employer. He purchased a car from a customer and used the workshop to carry out repairs. When his employer became aware of this they made enquiries and subsequently held a disciplinary hearing. Mr Khan was dismissed on the grounds that he had made an unauthorised purchase of a customer’s car, used the customer’s name on a job card to carry out the repairs and removed the car from his employer’s premises without paying for the repairs.
At the appeal and following an investigation two workshop technicians gave evidence that they had been told not to record the job for carrying out the repairs. Mr Khan’s dismissal for gross misconduct was confirmed and he made a claim to Employment Tribunal.
The Employment Tribunal found that the initial disciplinary process was substantively and procedurally unfair. However, the appeal had been scrupulously carried out. The person conducting the appeal interviewed relevant staff, considered the business’s disciplinary policy and the worker’s behaviour, and whether it amounted to gross misconduct – and made his decision impartially and fairly. The Tribunal also ruled that the ultimate decision to dismiss was made, on behalf of his employer, by the person who carried out the appeal. The person conducting the first stage played no part in it. As the appeal was fairly carried out, this cured the defects at the first stage of the process and the dismissal was therefore fair.
In an appeal to the EAT Mr Khan argued that the unfairness of the initial stage was such that the whole process should be treated as unfair. The fairness of the appeal did not cure the lack of fairness at the first stage. However the EAT upheld the dismissal, ruling that there were ‘no limitations on the nature and extent of the deficiencies in the first stage of the process that can be cured by a thorough and effective appeal’. Despite the lack of a proper investigation at the initial stage, the subsequent appeal had been ‘sufficiently robust’ to provide the overall fairness required by law.
HR must not influence disciplinary outcomes
A recent Employment Appeal Tribunal decision has emphasised the importance of HR and in-house legal professionals limiting their role to matters of law and procedure in disciplinary matters, set out recently in the case of Ramphal v Department of Transport.
In Dronsfield v University of Reading an earlier decision by a Tribunal that Dronsfield’s dismissal was fair was overturned by the EAT. This was in part because the EAT found that an investigatory report produced as part of the disciplinary process had been heavily influenced and amended by the University’s HR and in-house legal departments.
The EAT held that the final version of the investigatory report omitted various findings which were favourable to Dronsfield and that these alterations were made following the HR and in-house legal teams’ involvement. Although the author of the report had signed it off, the EAT felt that standards of objectivity and fairness had been compromised. The Tribunal had failed to consider properly why the author had changed his view on Dronsfield to the employee’s detriment.
The case was sent back to the Tribunal to decide whether it was reasonable to dismiss Dronsfield.
“Right to Privacy” not infringed by disciplinary investigation
The EAT has dismissed an appeal in the case of Garamukanwa v Solent NHS Trust in which the claimant argued that his employer had been in breach of Article 8 of the European Convention on Human Rights (ECHR) – that everyone has a right to respect for their private and family life, their home and their correspondence – by examining his emails during the course of a disciplinary investigation.
The claimant was employed by the Trust as a manager. He formed a relationship with a staff nurse but after the relationship ended he suspected the nurse of having a relationship with another colleague. Following a series of malicious but anonymous emails to the Trust’s management and her colleagues the nurse became concerned about the claimant’s behaviour and reported him to the Trust’s management. Following an investigation it was found that the claimant’s mobile phone linked him to the anonymous emails.
He was dismissed for gross misconduct and his subsequent claim for unfair dismissal was turned down by an employment tribunal. The tribunal rejected the claimant’s argument that the Trust had infringed Article 8 because the emails on his phone had a potential impact on work and dealt with work related matters. They were therefore not ‘private’.
The EAT agreed with the tribunal. Although Article 8 does protect private correspondence and communications sent at work with a reasonable expectation of privacy, there was no such expectation in this case as the emails were sent to the work email addresses of the recipients and had impacted work related matters.
Care needed when dealing with multiple disciplinary allegations
The need to take care over disciplinary cases when there is more than one allegation, has been highlighted by an EAT decision in the case of Pennine Care NHS Foundation Trust v Mundangepfupfu
A nurse who had worked for the Trust for ten years was dismissed for gross misconduct. The disciplinary process addressed three allegations: an ‘assault’, a safeguarding issue involving a patient, and a failure to follow a reasonable management instruction. The employer decided to aggregate the allegations, so that any decision to dismiss would need to be based on all three allegations together adding up to gross misconduct. If the employer was unable to prove just one of the allegations, the dismissal would thus be unfair, even if any one of the other allegations may have warranted dismissal in its own right.
A Tribunal had taken the view that the employer had not properly investigated the first two allegations, and that calling one an ‘assault’ meant the investigation was inherently biased. It also found that the employer had failed to take proper account of the employee’s explanation for refusing to follow the instruction and commented that the reasonableness of it was “questionable”. The Tribunal decided the dismissal was unfair.
The EAT rejected the employer’s appeal – that the Tribunal’s decision was perverse and had substituted its own view of what was reasonable – despite a number of criticisms of the Tribunal’s conclusions. It decided that because the allegations were considered ‘in the round’ by the employer, these made no difference to the overall finding that the employee had been unfairly dismissed.
Employees should have chance to address all issues used in disciplinary decisions
In John-Charles v NHS Business Services Authority the EAT allowed the appeal that John-Charles had been unfairly dismissed because he had not been told about the significance of his written warning or been given the chance to make representations on what had been a decisive issue in the disciplinary process. This made the dismissal unfair and a ‘breach of the rules of natural justice’.
John-Charles was employed as an IT network engineer from September 2009, with a history of failing to follow reasonable management instructions. In October 2012, it was alleged that he had breached the employer’s IT policies, risked corrupting its systems by using an unauthorised device, and had gone in to an office building against the employer’s instructions. A formal disciplinary hearing was heard in March 2013.The employer told John-Charles that the manager in charge of the disciplinary hearing would not be told about a written warning – that had post-dated the October 2012 incidents – unless the allegations regarding the October 2012 incident were proven.
Some of the allegations were upheld and the manager conducting the hearing decided that John-Charles had committed gross misconduct, but did not decide on the sanction. Whilst considering giving the employee a final written warning she became aware of the written warning before making a final decision, and was told by her HR advisor that giving him a final written warning would lead to his dismissal as he already had another warning on file, even though the events involved in the current disciplinary action actually pre-dated those that prompted the first written warning. The manager in charge of the disciplinary process decided the employee had to be dismissed because he had continually failed to follow reasonable management instructions. He was dismissed for gross misconduct.
Whilst the EAT said that it was reasonable for the employer to take the written warning into account since it related to his conduct and failure to follow management instructions, the fact that he had not been given the opportunity to address it had made the dismissal unfair.
HR must not improperly influence the disciplinary process
In Ramphal v Department of Transport the EAT decided that HR improperly influenced a disciplinary process, making the decision unfair. Mr Ramphal (R) was employed by the Department of Transport as an Aviation Security Compliance Inspector. An investigation into possible misconduct about expenses and use of hire cars was launched and a manager was appointed to conduct the investigation, and act as dismissing officer if necessary. The manager was inexperienced in disciplinary proceedings and received advice from HR whilst preparing the investigation report and recommendations. This advice included comments on issues of R’s credibility and level of blame, going beyond matters of law and procedure and the level of appropriate sanctions in order to achieve consistency. In particular a recommendation that R should be issued with a final written warning was changed to a recommendation of summary dismissal.
In overruling the original Tribunal decision the EAT believed that HR had unduly influenced the outcome of the investigation, and the change to a recommendation of summary dismissal. The EAT took the view that it had no longer been the investigator’s decision, and that there was no other adequate explanation or evidence showing good reason as to why the investigator changed his mind so dramatically.
The EAT was therefore upholding a previous Supreme Court decision that it is an implied term that the report of an Investigating Officer must be their own, especially when the investigator has the dual role as dismissing officer. The EAT thereby suggested a more limited role for HR, focusing on procedural advice and law, and not influencing outcomes. This view is summarised in the the Judge’s comment, “In my opinion, an Investigating Officer is entitled to call for advice from Human Resources; but Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability, let alone advising on what was the appropriate sanction…. It was not for Human Resources to advise whether the finding should be one of simple misconduct or gross misconduct.”
What is a “reasonable investigation”?
A Court of Appeal decision has emphasised the need for an employer to have a reasonable explanation as to why its investigation only went as far as it did, and why certain questions were not asked or followed through. In Shrestha v Genesis Housing Association Ltd an employee frequently travelled as part of his work, for which he could claim mileage. The employer, having investigated the employee’s mileage for a period in 2011 found that the expenses claims were in excess of the recommended mileage for the relevant journeys claimed. The investigation also found that the employee had made the exact same journeys in 2010, but that the mileage had been substantially lower. The employee said that he had to take longer routes due to road-works, one-way systems and parking difficulties. Following an investigation, the employee was dismissed for gross misconduct.
The issue was over the reasonableness of the employer’s investigation. Whilst the claim for unfair dismissal was dismissed by both the ET and EAT, the employee took the case to the Court of Appeal, claiming that the employer not only had to investigate the original allegations but also should have carried out a reasonable investigation into his response to the allegations. He argued that the investigation process should have been broken down into separate parts. Since he had given a number of reasons in his defence (road-works, one-way systems and parking difficulties), the employer was obliged to investigate each of these separately. In not doing so the employer was investigating unreasonably.
The Court of Appeal upheld the earlier decisions, finding that the investigation process should always be looked at as a whole and not as separate processes depending on whether it was considering the initial allegations or mitigation evidence. As part of this overall process the employer must consider any defences advanced by the employee in response to the allegations put to them. However, whether it is necessary to carry out a specific inquiry into each defence will depend on the circumstances of the case. The employer’s investigation had revealed that the mileage claimed was almost twice that recommended by different travel and route planning websites, the expense claims in 2011 had exceeded those for the same journey in 2010, and the disciplinary hearing had given consideration to all of the defences put forward by the employee. The assessment made was that none of the defences plausibly explained why every single journey had a higher mileage. The tribunal had considered not only what the employer did, but also why it was unnecessary for the employer to pursue any further inquiry into the explanations. Consequently it was entitled to reach the conclusion that a reasonable investigation had been carried out.
Fair procedure must be used in all cases
In Harvey v Vista Hotels, a chef convicted and jailed for assault on a Police officer has been awarded £11000 compensation for unfair dismissal. A Guernsey tribunal, whilst agreeing that the nature of the misconduct was a potentially fair reason for dismissal, criticised the employer’s complete lack of process. There was no attempt to interview the employee for his version of events, or any witnesses, or to make a record of the events. The chef learned of his dismissal six months after it took effect and was not offered an appeal. It was, the tribunal said “a critical failure … in relation to an essential employment process”.
BBC case shows proper use of disciplinary procedures vital
The recent successful unfair dismissal claim by John Linwood, the BBC’s former chief technology officer shows that even large organisation can get HR procedures wrong, leading to reputational damage and the possibility of a maximum compensatory award. Linwood was dismissed after the BBC’s £100 million ‘Digital media initiative’ failed. Although the corporation held an investigation into how the IT project had failed, the tribunal decided this investigation had not addressed the specific allegations of gross misconduct against him. It was critical of the way in which the BBC sought to justify Linwood’s dismissal for gross misconduct, calling the disciplinary process “profoundly, substantively and procedurally flawed”.
It pointed in particular to the BBC starting disciplinary action before a proper investigation had taken place; to the HR Director making a reference to the outcome of the process before the hearing took place; to it ignoring Linwood’s defence or his documents; to sanitising meeting records or holding discussions “off the record”; and to it giving Linwood only two to three days to consider 16,000 documents before his disciplinary hearing, in an attempt to “fast-track” the process. Observers have also commented on the BBC missing the opportunity to settling the claim before the hearing relatively cheaply, provided that it admitted liability for Linwood’s unfair dismissal.
Tribunals warn on use of disciplinary procedures when disability issues involved
Six-figure tribunal awards were made in three cases, all relating to employers’ failure to adapt their disciplinary procedures when dealing with staff with disabilities. In Richman v Knowsley Metropolitan Borough Council, a disabled support worker with a bipolar disorder was awarded £101,183 for the way in which disciplinary allegations over an altercation with a member of the public were handled. In a second case Benedetto v Guys’ and St Thomas’ NHS Foundation Trust, the disciplinary process was not adapted for a kitchen assistant with a “very significant” learning disability who was accused of spitting in a colleague’s coffee. An award of £121,863 for unfair dismissal and disability discrimination resulted. In the third case O’Doherty v Royal Bank of Scotland, a tribunal awarded a former Royal Bank of Scotland employee with depression £126,348 over the bank’s handling of allegations that he inappropriately accessed a number of accounts.
Covert recordings may be admissible as evidence
In Punjab Bank v Gosain the EAT considered whether the secret recordings an employee made during adjournment discussions at disciplinary and grievance hearings could be admitted as Tribunal evidence.
Gosain lodged claims alleging sexual harassment, sex discrimination and constructive dismissal, and prior to her resignation attended a grievance hearing and a disciplinary hearing. She recorded conversations connected with those hearings both ‘public’ (remarks made in the meetings) and ‘private’ (remarks allegedly exchanged between managers during the breaks). The employer objected to the recordings of the so-called ‘private’ conversations being used as evidence in a tribunal.
Although there was some case law to the contrary, the Tribunal decided that the circumstances of the case were different, and that recordings were admissible as evidence,particularly as the comments which Gosain alleged had been made during the private deliberations were about issues not directly relevant to the matters being decided by the disciplinary and grievance panels. The tribunal said there was no reason why these particular comments, even though made in private, should be protected or treated as an exception to the general rule that relevant evidence is admissible. The employer appealed.
In upholding the Tribunal’s decision the EAT said that a Tribunal has a wide range of choices when making case management orders and had not made an error in distinguishing the circumstances from other cases. The fact that the recordings were made covertly was not, by itself, a reason for ruling them inadmissible. The Tribunal had carried out the balancing exercise required between the general rule that relevant evidence is admissible and the need to preserve the confidentiality of private deliberations during internal grievance and disciplinary proceedings.
This judgement reinforces the need for employers to make it clear in their disciplinary and grievance procedures that employees should not make recordings of any part of a hearing without the consent of those present, checking at the start of any meeting that mobiles and other portable devices are switched off, and making sure that employees and their representatives belongings are removed during adjournments. An alternative is to record all the public elements of the proceedings and provide typed transcripts to all parties, retaining the recordings for future reference.
Capability dismissals require full investigation of the medical evidence
In NHS Fife Health Board v Stockman the EAT has decided it was unfair to dismiss an employee on grounds of capability without fully investigating all the medical evidence surrounding the case.
Dr Stockman, convicted of driving while under the influence of alcohol, had his registration with the General Medical Council (GMC) suspended on an interim basis for 18 months. He was signed off unfit for work and undertook treatment for alcoholism. Given the suspension by the GMC, the employer said he should be dismissed on grounds of capability unless he could be redeployed. No alternative role was available.
At an appeal hearing against the dismissal, evidence was presented that he was likely to respond to alcoholism treatment; his suspension from the GMC was likely to be revoked; most doctors in his position did recover; and other NHS employers would not dismiss at an early stage of receiving treatment. The appeal failed, and Stockman claimed unfair dismissal.
A tribunal found the dismissal unfair and outside the range of reasonable responses. It said that if the employer had taken a less strict approach to the operation of its policy, it might have considered that an up to date medical report and other related evidence would have been valuable in reflecting on what was reasonable in the circumstances. In particular an HR specialist, who had worked at the doctors professional body, the BMA, stated that she had never known of a doctor being dismissed in these circumstances.
The employer appealed, arguing that the tribunal had substituted its own view for the employer’s and had wrongly admitted evidence of the supposed attitude of other health service employers.
The Employment Appeal Tribunal rejected the appeal. It said the tribunal was entitled to decide that the employer had applied its policy in such a way as to make its decision to dismiss inevitable, and had acted unfairly in deciding to dismiss Stockman without having considered vital information. The medical opinion evidence was admissible and the tribunal was entitled to hold that the employer had not carried out a reasonable investigation and had not acted fairly in all the circumstances.
Using evidence from recordings
Tribunals have discretion to determine what evidence is admissible and, for example, can choose to exclude evidence of recordings made by an employee without the employer’s knowledge. In the case of Vaughan v London Borough of Lewisham the EAT upheld the decision to refuse to accept such evidence as the claimant had not provided enough information to allow a view to be formed on the relevance of the recordings. However, the EAT made clear that this did not mean that covert recordings would always be inadmissible. Whilst secret recordings might be “very distasteful”, they are not inadmissible simply because of the way in which they were obtained.
No undue pressure on witnesses
The significance of conducting investigations fairly and, in particular, of not placing undue pressure on witnesses to give evidence was highlighted by a Court of Appeal judgment. The way investigations are conducted can undermine trust and confidence – the core of the employment relationship. In Singh v Moorlands Primary School, the claimant brought a claim for discrimination whilst still employed at the School. During the School’s investigation, it obtained a witness statement from a colleague that Ms Singh had claimed was only given after undue pressure by the School, forcing a statement that was untrue. She alleged that this was a breach of trust and confidence, entitling her to resign. Although the ET and the EAT believed that the School’s procurement of the witness statement was protected by judicial proceedings immunity and did not therefore amount to a breach of contract, this was overturned by the Court of Appeal. It pointed out that if an employer, to the knowledge of an employee, is prepared to use underhand and improper means to defeat a claim of discrimination, it is destructive of trust and confidence.
Investigations must be careful and conscientious – and look for evidence that points away from guilt
In the case of Miller v William Hill Organisation Ltd the EAT drew attention to the need for disciplinary investigations to be “careful and conscientious”, particularly given the potential impact of dismissal in gross misconduct cases on the individual’s personal and professional life. This must be considered in deciding on the level of investigation to be carried out. The EAT emphasised the need for employers look for evidence that points away from the employee’s guilt and not just towards it. The EAT found in this case that the employer’s investigation was not thorough enough. Although accepting that there are limits to the steps employers should take to investigate whether there is evidence that might absolve the employee, in this case such steps had not been sufficient. The employer had only regarded as relevant part of its CCTV footage that appeared to incriminate the employee, and did not go through the whole five hours of footage to see if it supported the employee’s explanation.
Disciplinary Investigations must be through and well-conducted
A Tribunal has found in Austin v West Sussex County Council that the employer had discriminated against an employee, as a result of the way it conducted the disciplinary process. The judgment highlights the importance of a thorough, well-conducted disciplinary investigation where the fact-finding process is balanced and fair to employees, regardless of the nature of the allegation made. The ET found numerous procedural failings by the Council, including a failure to follow its own policy as well as the ACAS Code. No further details about the nature of the complaint or the name of the employee who had brought the complaint were given to the accused, and it proposed going ahead with a hearing despite the fact that he was unfit to attend. The employee’s complaint of constructive unfair dismissal was also successful. The ET recommended that the Council, within certain time limits, review its procedures and policies to ensure compliance with the ACAS Code, and train its HR staff, managers, and those involved in investigations.
Failure of process can be “final straw”
In Wright v North Ayrshire Council the EAT found that failing to deal properly with complaints or badly handling misconduct allegations can be seen as the ‘final straw’ for resigning and claiming constructive dismissal, even if there are other circumstances to take into account. The EAT overturned an earlier Tribunal decision that there had been no constructive dismissal, despite the Council failing to respond entirely to two grievances or to a third in a timely manner. It also wrongly accusing Mrs Wright of theft, deciding instead that Mrs Wright’s decision to resign was due to her difficult caring responsibilities. The EAT’s view was that by looking for the ‘effective cause’ of her resignation the ET had given too much weight to Mrs Wright’s personal circumstances. The key question was whether the Council’s breaches of contract played a part in the dismissal, even if this was not the only reason for the resignation.
No “knee jerk” reaction to suspend or to refer to Police
In Crawford v Suffolk Mental Health Partnerships NHS Trust the dismissal of two nurses for tying a patient to a chair was unfair due to defects in the investigatory and disciplinary procedure followed. Two nurses employed by the Trust were accused of tying down a patient with dementia who had been agitated and aggressive that day. The nurses were suspended alleging “assault” and the matter was referred to the Police. When they declined to take action the Trust resumed its own investigation. This included an experiment by a manager, who attempted to re-enact the scene with the patient, but in private, and without the nurses present. If the nurses had been present they would have been able to explain what they did and challenge the “experiment”.
The Appeal Court was highly critical of the employer and especially critical of the decision to suspend and refer the matter to the police. Suspension must never be a “knee-jerk” reaction and if used inappropriately, could amount to a breach of the duty of trust and confidence. Employers should not subject employees to a police investigation without reasonable grounds for believing that the term “criminal” should be applied to the employee’s conduct.