Care home briefing 109 – Investigations: How to conduct them properly

A recent Judgement by the Court of Appeal (Crawford and Another v Southwark Mental Health Partnership NHS Trust [2012] EWCA 138) provides useful guidance to employers about the procedures that should be applied when issues of misconduct arise.

This case is extremely important for the care homes sector as the issues considered in this case often arise when caring for patients/residents. More specifically, the allegation, which led to the dismissal of the two nurses in question, was that they had abused patients suffering from dementia.

The two nurses were employed by Southwark Mental Health Partnership NHS Trust and they worked on a ward dealing with patients suffering from depression or anxiety. It was alleged that the nurses tied a patient, who was suffering from dementia, to a chair with a sheet. Both nurses were immediately suspended, pending further investigation for “the alleged assault of a client” and the matter was also referred to the police. The Trust suspended its own investigation pending the police investigation. One month later, the police confirmed that they would not be taking action against the nurses.

The Trust resumed its investigations, which took a further couple of months. After the investigation was concluded, the nurses were called to a disciplinary hearing. Both nurses accepted that they had tied the patient’s chair to the table, but they denied tying him to a chair with a sheet. One of the nurses gave an explanation as to how a sheet had been wrapped around the patient’s chest. The disciplinary officer tested the nurse’s theory (without informing the nurse), but did not believe the sheet could be wrapped in the way the nurse explained. Both nurses were dismissed for assault (even though this was not one of the charges identified in the letter inviting them to a disciplinary hearing), negligence and professional misconduct. Their internal appeal failed and they lodged a claim at the Employment Tribunal, alleging unfair dismissal.

The Employment Tribunal held that the nurses had been unfairly dismissed. The Employment Appeal Tribunal (EAT) held that they had not been unfairly dismissed.

The Court of Appeal determined that the nurses had been unfairly dismissed. The Court of Appeal held that given the seriousness of the allegations, which would affect their ability to continue to work as nurses, it was right that the Employment Tribunal looked carefully at the procedures followed by the Trust. The Court of Appeal also agreed with the Employment Tribunal that the experiment carried out by the disciplining officer testing the nurse’s theory about the sheet was unfair; he should have informed the nurse of it and she should have then be given an opportunity to demonstrate what had occurred.

The Court of Appeal also considered the Trust’s decision to suspend the nurses and stressed that suspension must not be a knee-jerk reaction, even where there is evidence supporting an investigation.

In his Judgement, Eliza J specifically stated:

“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. 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”.

The Court of Appeal held that particular consideration should have been given to the unblemished service of the relevant staff when considering issuing disciplinary sanctions such as dismissal. In addition, the Court was critical of the Trust’s decision to refer the matter to the police. It was noted that such a referral would put an employee under considerable stress and, as such, should only subject the employee to that burden if, after very careful consideration. The Judge went on to state:

“…whatever the justification for the suspension, I confess that I do find it a 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 those steps. 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 have duties to their long-service staff, and defensive management responses, which focus solely on their own interests to do them little credit. When 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, will justify the epithet criminal being applied to the employee’s conduct.”

The decision did not make reference to the Mental Capacity Act 2005, which would have been helpful as it would have been interesting to see how the Judges deal with the issues of fairness as set out in the Employment Rights Act and the ACAS code of Practice with the Mental Capacity Act.

It is clear that where a case involves very serious allegations, particularly those affecting a future career, the Employment Tribunal will subject the procedures that were followed to very careful scrutiny. It is therefore very important that the investigation is thorough, that any conflicting evidence is resolved and that the decisions reached by the disciplinary officer are fair and reasonable.

In addition, if further enquiries are carried out, the employee should be notified of these and given an opportunity to respond to them.

Finally, employers should consider matters very carefully before suspending or referring an employee to the police and consider the employee’s length of service and previous disciplinary record and a thorough and careful review of all of the circumstances of the case. It might be appropriate to undertake a quick investigation before a suspension or a referral to the police is considered. Employers conducting an internal appeal into a misconduct dismissal in circumstances where the decision is likely to affect the employee’s future career may wish to conduct the appeal as a re-hearing.

If you have any further questions in relation to this article, please contact:

Sejal Rajal
E. sejal.raja@rlb-law.com
T. 020 7227 7410


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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