In Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust, the EAT considered an Employment Tribunal’s finding that the dismissal of a nurse for gross misconduct was fair, despite procedural failings.
Ms Tykocki had been employed as a healthcare assistant for 14 years when a patient made a serious complaint about her. The patient alleged that Ms Tykocki had ignored her request for pain relief, and had placed a hand across her mouth and told her to shut up. Ms Tykocki denied the allegations, but was immediately suspended whilst investigations were carried out. She was not given a copy of the patient’s statement and since there was considered to be no relevant evidence from other staff on duty, who knew nothing of the incident, she was not given statements from them. The final disciplinary report referred to other similar complaints against Ms Tykocki but did not suggest that any previous disciplinary findings had been made. At the disciplinary hearing, Ms Tykocki continued to deny the allegations and suggested that the patient could have been hallucinating. The hearing was adjourned pending further investigations and the patient was contacted again to confirm her version of events. No record was made of this conversation with the patient, and Ms Tykocki was not given the opportunity to respond. The Trust concluded that the incident had more likely than not occurred and decided to dismiss Ms Tykocki.
Ms Tykocki appealed. There was a further meeting with the patient and Ms Tykocki’s union representative, at which the patient made new allegations about Ms Tykocki. These new allegations were not investigated by the Trust and no further appeal hearing was held to allow Ms Tykocki to respond to them. She was dismissed for gross misconduct and subsequently claimed unfair dismissal.
The Employment Tribunal dismissed Ms Tykocki’s claim. It held that the Trust had carried out a proper investigation in the circumstances, and had a reasonable belief in Ms Tykocki’s misconduct. The Tribunal also found that any procedural defects had been cured on appeal. For example, her union representative had the opportunity to ask the patient questions during the appeal hearing. Given Ms Tykocki’s denial that the incident occurred and that there were no witnesses with relevant evidence, the Tribunal also concluded that it was reasonable for the Trust not to have obtained additional statements from anyone else on the ward. Ms Tykocki appealed the decision.
The EAT noted that this was a case where the seriousness of the allegations meant that the employer’s investigation should be particularly rigorous. The Tribunal had considered some failings by the Trust, including failure to investigate the new allegations and to obtain full statements from other nurses. However, the EAT was not satisfied that the Tribunal had considered the broader question of whether these failings had impacted on the overall fairness of the investigation and procedure, or whether proper consideration had been given to the issue of the patient’s credibility. For example, even if these nurses did not witness the alleged incident, their evidence might have added something to the consideration of whether it was likely that the alleged events had taken place at all. In addition, if the Trust had investigated the new allegations made by the patient at the appeal stage and found them to be false, this might also have affected the patient’s credibility. The EAT therefore allowed Ms Tykocki’s appeal and the case was sent back to the same Tribunal for further consideration.
This case highlights the need for employers to take extra care in investigations and disciplinary proceedings where alleged misconduct may result in dismissal, particularly where this would impact on the employee’s reputation or future employment prospects. If the allegations are based on one person’s word against another, the degree of investigation required is likely to be even greater. It also highlights the need to take into account the wider impact of procedural failings on the overall fairness of the dismissal. This will often mean that where an internal appeal is held to remedy earlier procedural defects, this should be conducted as a full re-hearing.