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”. In an interesting footnote to the judgment he added:
This case raises a matter which causes me some concern. It appears to be the almost automatic response of many employers to allegations of this kind to suspend the 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. As Lady Justice Hale, as she was, pointed out in Gogay v Hertfordshire County Council  IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is. I appreciate that suspension is often said to be in the employee’s best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging. Even if they are subsequently cleared of the charges, the suspicions are likely to linger, not least I suspect because the suspension appears to add credence to them. It would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously start from the assumption that the employee suspended in this way is guilty and look for evidence to confirm it. It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him.
I am not suggesting that the decision to suspend in this case was a knee jerk reaction. The evidence about it, such as we have, suggests that there was some consideration given to that issue. I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk; and perhaps they did.
Lord Justice Elias was also very concerned about the Trust’s decision to refer the matter to the police. There is undoubtedly a tendency, which has recently been on the marked increase in the context of preoccupation with safeguarding, to call in the police and/or other regulatory bodies as soon as any such activity is identified or even suspected. However, Lord Justice Elias continued:
However, whatever the justification for the suspension, I confess that I do find it little short of astonishing that it could ever have been thought appropriate to refer this matter to the police. In my view it almost defies belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step. I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit. Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. 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. I do not think that requirement was satisfied here. No-one suggested that the appellants were acting other than in the best interests of JE and the other patients. The restriction was not essentially different to the physical restraint which had been carried out in the day shift. I can only assume that the relevant committee was influenced, as I suspect Mr Mansfield was, by the fact that technically tying JE to the chair was an assault, with the implication that this is a grave matter. But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed, and in my view the police should never have been involved.