A recent Employment Appeal Tribunal (EAT) decision has provided useful guidance on gross misconduct dismissals.  In this case, the nurse raised a claim of unfair dismissal following her dismissal on the grounds of gross misconduct.  The NHS Trust took the decision to dismiss following an allegation of patient abuse.  The allegations were found to be proven on the basis of one witness account of events, which the NHS Trust decided was more convincing than the nurse’s account of what had happened. 

The case focussed on whether the NHS Trust had carried out a sufficiently detailed investigation into the allegations, and whether it was reasonable to rely on one witness statement when the nurse refuted this version of events.  Was it reasonable for the NHS Trust to believe the witness, should the Trust have carried out further investigations, and/or given the nurse the benefit of the doubt?

The nurse was from the Philippines and her right to be in the UK was dependent upon her having a work permit.  Therefore, her dismissal meant that she had to leave the UK.  She was also subject to a police investigation.

The EAT stated that an employer should consider the consequences of a dismissal for the employee when deciding upon the appropriate level of investigation and disciplinary sanction. In view of the very serious consequences of the dismissal for the nurse, and the fact that the evidence relied on was effectively one persons word against another’s, it was held that NHS Trust had unfairly dismissed the nurse.

This case clearly demonstrates that it is essential to carry out thorough investigations, especially where a dismissal will have serious consequences for the employee.  The EAT also provided useful clarification that where the evidence is conflicting, the employer should normally give the employee the benefit of the doubt.

Source: Empire HR