Disciplinary Procedures : Salford Royal NHS Foundation Trust ­v­ Roldan

In this month’s Employment Law News we look at the consequences of failing to undertake a thorough investigation during the course of a disciplinary hearing; and the impact on the compensation awarded to an employee who
contributed to his dismissal.

Case round­up

Disciplinary Procedures : Salford Royal NHS Foundation Trust ­v­ Roldan [2010].

The Court of Appeal in this case held that a nurse had been unfairly dismissed because there were flaws in the investigation that was conducted by the Trust which gave rise to the Claimant’s dismissal.

The Claimant was a registered nurse employed in the Trust’s neuro high dependency unit. An allegation was made that the Claimant ill­treated a patient and, as such, the Claimant was suspended, pending an investigation. An investigation was carried out by Mrs P which comprised of interviewing Mrs D and the claimant only. Following the investigation, Mrs P, the investigating officer, recommended that the matter proceed to a disciplinary hearing. The disciplinary panel concluded that the allegations were made out and dismissed the Claimant for gross misconduct. The Claimant appealed the decision to dismiss which was unsuccessful. The impact of the dismissal was not only did the Claimant lose her job, but in addition she lost her work permit and the right to remain in the United Kingdom. She was also the subject of a criminal investigation by the police.

The Claimant brought a claim in the Employment Tribunal which made a finding that she was unfairly dismissed because there were flaws in the investigation conducted by the Trust. The case was appealed.

The Court of Appeal upheld that the dismissal was unfair. It held: “This is particularly so given that here was a woman who had given service to her employers over 4 years, apparently without complaint, and there was a real risk that
her career would be blighted by this dismissal. It would certainly lead to her deportation and destroy her opportunity for building a career in this country”.

Employers need to be aware that where the more serious the consequence of dismissal for an employee, the more thorough the investigation is needed. This case suggests that if a dismissal could blight an employee’s career in some significant way, tribunals will be required to scrutinise employers’ procedures more carefully. Therefore, employers should be aware that when conducting an investigation which gives rise to gross misconduct and the potential referral to a professional body or likelihood of criminal investigation, the investigation should be carried out extremely thoroughly. If not, the Tribunal may well find that the employee was unfairly dismissed.

Compensation : Nicolson Highlandware Limited ­v­ Nicolson [2010]

In this case, the Employment Appeal Tribunal (EAT) held that an employee who had been unfairly dismissed, but had caused his dismissal because of his fraudulent running of the respondent’s business, should have to pay his employer’s costs of defending his claim.

Mr Nicolson was dismissed when his employer discovered he had, amongst other things, been defrauding them through false accounting, running his own business out of the employers premises, and diverting customers to that business.

His claim for unfair dismissal was successful for technical reasons, but the Tribunal refused to award him any compensation because they were of the view he had caused his own dismissal by his fraudulent conduct. Unsurprisingly his employer brought a claim for costs, alleging that he had been unreasonable in bringing the case. The Tribunal refused to award costs. The Employer appealed the decision to the EAT. The EAT determined that the Claimant persisted in a claim which he knew he had acted dishonestly, and that this had caused his dismissal. The EAT also rejected the Tribunals decision that it was wrong to say it was open to pursue a claim purely for the purpose of obtaining a declaration of unfair dismissal.

The case is a helpful one for employers when facing claims which are clearly unreasonable. However, the decision in this case contradicts an earlier EAT decision, so this is an area which is yet to develop further.

In the news

Employment Tribunal Annual Statistics 2009/2010

The Tribunal Service has published its annual statistics for 2009/2010. These have revealed that there has been a 56% increase, on 2008/2009, in the number of claims accepted by the Employment Tribunal. This rise, which brings the number of claims to its highest ever­recorded level, has been attributed to both the changing economic climate and a significant increase in the number of multiple claims.

The country’s on­going economic turmoil has also been reflected in the 17% rise in tribunal claims associated with unfair dismissal, breach of contract and redundancy. The increase in the number of claims being pursued has understandably put a great deal of pressure on the efficiency of the tribunal service. This has been reflected in the drop from 74% to just 65% in the number of cases that have been allocated a first hearing within the 26­week target from the date on which the claim was first received.

The number of claims submitted has increased 56% from the previous year. The rate at which Employment Tribunals have been able to dispose of cases has not kept pace, resulting, as many of our client’s are aware, in an increase backlog of cases resulting in significant delays, and adjournments at very short notice, which are not only frustrating but costly.

It is interesting to note that the Employment Lawyers’ Association (ELA) conducted a survey to understand their experiences of tribunals. One key theme was the lack of consistency; 83% of members were of the view that
Employment Tribunals do not adopt a consistent approach to practice and procedure. It is hoped that the suggestions made for reforms will be seriously considered.

Default Retirement Age

The Government has published a consultation document setting out its proposals to phase out the default retirement age of 65 and the current statutory retirement procedures. The Government proposes to abolish the default retirement age on 1 October 2011. The consultation is underway and will close on 21 October 2010. The Government is proposing in its consultation document:­

  •  No further statutory notices of retirement to be issued after 6 April 2011;
  • Only retirements in respect of which a notice has been sent before that date is allowed to continue under the current retirement procedures;
  • No further default retirement age dismissals to occur after October 2011;
  • Any set normal retirement age dismissals will be discriminatory, if the employer is unable to objectively justify it. 
     

The BIS announcement states that: “It will remain possible for individual employers to operate a compulsory retirement age, provided that they are able to objectively justify the chosen age. Without such justification, a compulsory retirement age would constitute direct discrimination”. Anti­ageism campaigners, who have complained that forcing people to retire at 65 is discriminatory, are delighted, but we share the concerns of business groups who have said the timescale gave companies too little time to prepare.

Sejal Raja
sejal.raja@rlb­law.com
© RadcliffesLeBrasseur
August 2010


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.