The claimant was a Band 5 Staff Nurse. Against the background of ongoing conduct concerns, an initial meeting was held followed by suspension from work with immediate effect pending further investigation. An investigatory meeting was followed by a formal disciplinary hearing which narrowed down the charge to the issue of removal of an inhaler from a medical unit. The claimant was informed that the charge was taken as proven and that the actions of gross misconduct led to the outcome that she was to be summarily dismissed. The claimant exercised her right to appeal, albeit unsuccessfully.

The tribunal was critical of the Trust’s investigation, mainly that a number of material issues of fact were not established. It continued that the investigation got ‘distracted’ from the main issues in contention. It confirmed that: "It is for the investigator to gather factual material and evidence in a fair and appropriate manner", yet the investigation failed in its task of construction of a clear and precise timeline of events. Whilst the tribunal criticised the claimant’s own contribution to the confusion of facts, it made clear that an employer must conduct a proper, rigorous and thorough investigation. 

In dealing with the issue of a ‘band of reasonable responses’ the tribunal held significant doubts that the conduct of the employer was reasonable in the circumstances. A troubling fact contributing to this finding was that the panel which heard a separate grievance procedure also heard the ultimate disciplinary hearing in this present case. The fact that both matters dealt with ‘workplace conflict’ was relevant and there was no separation of functions put into place by the employer. These factors, inter alia, brought the matter outside the range of what was fair and what is reasonable and the decision to dismiss the claimant was deemed procedurally unfair. 

The tribunal ultimately held that the appeal hearing served to restore fairness to the matter. It highlighted that its role was not to ‘second guess’ the appeal panel members who formed their view. The claim was, therefore, dismissed.

Practical lessons

This case should highlight the real dangers an employer puts itself in by not conducting a thorough investigation into alleged misconduct. The tribunal made it abundantly clear that the factual context of the case i.e. where the career of a healthcare professional is at stake, demands a meticulous approach. The need for this was heightened by the fact that a fine line often exists between the need for dismissal and a lesser sanction which would enable the individual to continue in their career. Whilst the appeal process ultimately restored fairness to the decision, the failures of the Trust’s disciplinary process revealed serious shortcomings.