Employment Appeal Tribunal employment law gross misconduct procedure unfair dismissal

Another reminder of the need to apply correct procedures

The judgment of the Employment Appeal Tribunal in the case of Mrs B Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust concerns the standards to be applied when carrying out a disciplinary investigation and whether failure to follow procedures can of itself render a dismissal as unfair.

Mrs Barbara Tykocki worked for the Trust as a Healthcare Assistant from August 1989 until she was summarily dismissed for misconduct on 15 September 2014. The dismissal resulted from an incident during a night shift on 3-4 February 2014. A patient complained that Mrs Tykocki had been abusive to her and had effectively assaulted her when she asked for morphine to manage her pain. The patient alleged that Mrs Tykocki had put her hand over her face and told her to shut up. Mrs Tykocki, having denied the allegations, was suspended pending an investigation. The investigation noted two similar previous complaints from patients about Mrs Tykocki and concluded that the latest even had probably occurred as described by the patient. A disciplinary hearing followed on 12 August during which Mrs Tykocki’s union representative suggested that the patient might have been hallucinating. The hearing was adjourned to allow for further investigations in this regard. The hearing reconvened on 3 September by which time the patient had confirmed her earlier statement. A decision was made to dismiss Mrs Tykocki and this was confirmed to her in a letter sent on 15 September. An appeal against the decision to dismiss was unsuccessful.

Mrs Tykocki presented a complaint of unfair dismissal and the tribunal accepted that the incident on 3 February was the basis for her dismissal, was related to conduct and that is was potentially fair.

The tribunal then considered whether the Trust had carried out a reasonable investigation. It concluded that the enquiries made were adequate, that failure to provide all relevant documents to Mrs Tykocki and her representative this was an innocent error and the documents merely confirmed what was apparent from those that were disclosed. It also determined that the Trust was entitled to conclude, following investigations, that there was no evidence that the patient was hallucinating. The tribunal had reasonable grounds for its belief that there had been misconduct and the decision to dismiss was within the range of reasonable responses available to a reasonable employer. Mrs Tykocki appealed.

In the Employment Appeal Tribunal Her Honour Judge Eady QC referred to one of the most well-known decisions in employment law, British Home Stores Limited v Burchell (1980) and the “useful guidance” which has become a staple when considering reasonableness in the context of investigating misconduct:

What the tribunal have to decide every time is, broadly expressed, whether the employer who discharged the employee on the ground of the misconduct in question (usually, though not necessarily, dishonest conduct) entertained a reasonable suspicion amounting to a belief in the guilt of the employee of that misconduct at that time. That is really stating shortly and compendiously what is in fact more than one element. First of all, there must be established by the employer the fact of that belief; that the employer did believe it. Secondly, that the employer had in his mind reasonable grounds upon which to sustain that belief. And thirdly, we think, that the employer, at the stage at which he formed that belief on those grounds, at any rate at the final stage at which he formed that belief on those grounds, had carried out as much investigation into the matter as was reasonable in all the circumstances of the case. It is the employer who manages to discharge the onus of demonstrating those three matters, we think, who must not be examined further. It is not relevant, as we think, that the tribunal would themselves have shared that view in those circumstances. It is not relevant, as we think, for the tribunal to examine the quality of the material which the employers had before them, for instance to see whether it was the sort of material, objectively considered, which would lead to a certain conclusion on the balance of probabilities, or whether it was the sort of material which would lead to the same conclusion only upon the basis of being “sure”, as it is now said more normally in a criminal context, or, to use the more old-fashioned term, such as to put the matter “beyond reasonable doubt.” The test, and the test all the way through, is reasonableness; and certainly, as it seems to us, a conclusion on the balance of probabilities will in any surmisable circumstance be a reasonable conclusion.

It was also necessary to take into account the gravity of the charge and the potential effect on the employee. In this case the allegations made were very serious and the stakes were very high for Mrs Tykocki. The tribunal was at fault when it came to considering the adequacy of the investigation in the context of both the possibility of reaching different conclusions based on the available evidence and the potential impact on her career of the sanction being imposed on Mrs Tykocki. Her Honour Judge Eady QC could not be sure that her criticisms in this regard did not undermine the tribunal’s conclusion. Her conclusion was that the tribunal’s conclusion was undermined and the appeal was successful.

The matter was therefore remitted to the same tribunal for further consideration. It is possible that, after that consideration, the tribunal could still conclude that the decision to dismiss for misconduct was fair.

I am bound to observe that there is a fine line between a tribunal (at first instance or on appeal) legally testing the actions taken by an employer on the one hand and directly interfering with the employer’s decision making process on the other. Tribunals are frequently reminded that it is not their place to substitute their decision, based on the facts, for that of the employer. I think that what underlies this case is the gravity of the allegations made against Mrs Tykocki. I have encountered many situations in which the employer believes the allegations more or less from the outset and that then clouds the need nonetheless to carry out a full disciplinary process, even though that might be regarded as almost superfluous. It is also a useful demonstration of why summary dismissal for gross misconduct is used much less frequently than it used to be on the basis that a period of suspension to allow investigation, even if relatively short, demonstrates that time was allowed for at least some investigation.


Martin Malone

By Martin Malone

I'm a solicitor and the chief operating officer at Canter Levin & Berg. I was formerly head of the employment department.
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