The case of Crawford and Another v Suffolk Mental Health Partnership NHS Trust, recently considered by the Court of Appeal, appears on its face to be concerned with relatively straightforward issues resulting from dismissals for gross misconduct following alleged mishandling of patients, particularly the deployment of a “safe handling technique” which had caused open skin tears as well as the forcible administration of medicine. The employees concerned were suspended and the police were informed about potential criminal offences. The process took its course and this resulted in a delay of six months between suspension and dismissal.

At the resulting employment tribunal it was accepted that the genuine reason for dismissal was misconduct and the question was whether dismissal was reasonable measuring the actions of this employer against the yardstick of a reasonable employer. There were factual errors so that some of the conclusions reached in the disciplinary process could not be sustained and this was accepted by the Trust. There were also procedural defects. Findings of unfair dismissal followed. The Trust appealed successfully and on further appeal to the Court of Appeal the findings of unfair dismissal were restored and the cases were remitted to a further tribunal to determine whether or not, had the employer followed a fair procedure, the employees might have been fairly dismissed and, if so, whether their compensation should be reduced (commonly referred to as the Polkey argument, after a case of that name).

So far, so unremarkable. However, Lord Justice Elias was clearly concerned about the delay between suspension and dismissal. It was pointed out to him that a delay of this length is not that unusual in practice but he was concerned that “six months’ suspension puts considerable pressure on staff” and that “it is difficult to see why the investigation of a single incident of this nature should have taken so long”. Continue reading →