Two recent Employment Appeal Tribunal (EAT) cases demonstrate the potential pitfalls in dealing with disciplinary issues involving staff interactions with patients, particularly those involving patient confidentiality and complaints by patients against staff.
Portsmouth Hospitals NHS Trust v Corbin [05.01.17]
In Portsmouth Hospitals NHS Trust v Corbin, the claimant, a long-serving senior radiographer, utilised confidential patient information when preparing her defence to earlier disciplinary proceedings against her. The claimant had made some redactions to this information, but in the Trust’s opinion did not sufficiently mask the identity of the various patients concerned.
The Trust considered this conduct was in breach of its policies, although the disciplinary investigation acknowledged that those policies did not expressly address the position of employees facing disciplinary proceedings.
The decision was taken that the claimant should be summarily dismissed for gross misconduct and the decision was upheld on appeal.
Closed mind
The Employment Tribunal (the Tribunal) found that the Trust had acted with a closed mind. It upheld the claimant’s claims for wrongful dismissal and unfair dismissal and made no reductions to compensation on the grounds of contributory fault. The relevant manager had considered a breach of the policy in respect of confidential patient information justified summary dismissal but did not consider whether or not the claimant had:
The Trust appealed. The EAT upheld the Tribunal’s decision in relation to the unfair dismissal claim. However, the EAT held that the Tribunal had failed to give adequate consideration to the issue of whether or not the claimant had, in fact, committed a repudiatory breach of contract. Therefore, the findings on wrongful dismissal and contributory fault were remitted back to the Tribunal for reconsideration.
Consideration
This case is a classic example of the importance of decision-makers to always consider the range of sanctions available to them and not approach the issue of sanctions with a closed mind. In particular, managers should always consider whether there are any mitigating factors that might make the decision to dismiss fall outside the range of reasonable responses, even in the clearest of cases.
Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust [17.10.16]
In Tykocki v Royal Bournemouth and Christchurch Hospitals NHS Foundation Trust, a healthcare assistant was summarily dismissed by her employer following a disciplinary and appeal process.
The origin of the disciplinary process was a complaint by a patient that the claimant had assaulted her whilst working on a night-shift, when she had asked for a morphine top-up for her pain.
Procedural failings
The Tribunal held that the dismissal had been fair, while acknowledging that there had been some procedural failings in the disciplinary process. This included not obtaining statements from the nurses on duty and not investigating new allegations made by the patient at the appeal stage. The Tribunal acknowledged that there was very little corroborating evidence for both the claimant’s version of events and the patient’s.
The EAT allowed the claimant’s appeal and remitted the case for a re-hearing. The EAT found that more would be required of the Trust’s investigation process, given the seriousness of the allegations against the claimant and what was at stake for her. However, the EAT found that the Tribunal had not given proper consideration to whether the Trust’s investigation was adequate.
In particular, the Tribunal had not considered whether the gaps in the Trust’s investigation impacted upon the reasonableness of the investigation, and the fairness of the wider disciplinary processing terms of the patient’s and the claimant’s credibility.
The Tribunal’s decision was therefore considered unsafe and should be set aside, and remitted to the same Tribunal for further consideration.
Investigation
This case demonstrates the importance of conducting a thorough investigation and ensuring that statements are taken from all potentially relevant witnesses. They may provide indirectly corroborative evidence even if they may not have directly witnessed the misconduct. This is particularly the case involving one person’s word against another’s. It also demonstrates the importance of ensuring that fresh allegations are investigated, even if they are not raised until the appeal stage.
These two cases demonstrate the care and attention to detail that is required when carrying out disciplinary investigations and procedures, particularly where allegations of misconduct involving patients are concerned.
Read related items in Healthcare Brief - March 2017
