09-07-2010
Focus on Dismissals
There have been a number of cases reported recently confirming how employers should carry out investigations and what a Tribunal will be used for when considering whether a fair procedure has been followed.
We set out a couple of the most important cases for you to consider.
Salford Royal NHS Foundation Trust v Roldan (Court of Appeal)
Ms Roldan, an experienced Pilipino Staff Nurse, had been employed by Salford NHS Trust for 4 years. A complaint was made against her via a Health Care Assistant (“HCA”) that she had mistreated a patient and was therefore suspended pending an investigation.
Following that investigation, the investigating officer considered that Ms Roldan’s recollection of events was vague and imprecise. He recommended that the matter proceed to a disciplinary hearing. At the disciplinary hearing, Ms Roldan was dismissed for gross misconduct as the disciplining officer felt that the HCA’s evidence was more believable than Ms Roldan’s. Ms Roldan appealed her dismissal, however her appeal was rejected. As a result of her dismissal, Ms Roldan lost her work permit and she no longer had a right to live in the UK. She was also subjected to a criminal investigation although charges were not brought.
Ms Roldan submitted a claim for unfair dismissal to the Employment Tribunal. The case was appealed to the Court of Appeal which held that her dismissal was unfair. The Court reminded itself that one of the factors to be taken into account in a conduct dismissal is whether the investigation was fair and adequate, and whether the employer carried out as much investigation as was reasonable in all of the circumstances of the case. In this case, an investigation would have concluded that Ms Roldan had worked for the Trust for 4 years without any complaints. They should also have taken into consideration the possibility that due to her work status she would lose her ability to work in the UK and as a result be deported and her ability to rebuild her career in the UK following being dismissed for this reason.
Employers are therefore encouraged to ensure that they conduct a fair and thorough investigation, taking into account all the circumstances of the case. They should also take into account the seriousness of the allegations and the potential repercussions on the employee.
We set out a couple of the most important cases for you to consider.
Salford Royal NHS Foundation Trust v Roldan (Court of Appeal)
Ms Roldan, an experienced Pilipino Staff Nurse, had been employed by Salford NHS Trust for 4 years. A complaint was made against her via a Health Care Assistant (“HCA”) that she had mistreated a patient and was therefore suspended pending an investigation.
Following that investigation, the investigating officer considered that Ms Roldan’s recollection of events was vague and imprecise. He recommended that the matter proceed to a disciplinary hearing. At the disciplinary hearing, Ms Roldan was dismissed for gross misconduct as the disciplining officer felt that the HCA’s evidence was more believable than Ms Roldan’s. Ms Roldan appealed her dismissal, however her appeal was rejected. As a result of her dismissal, Ms Roldan lost her work permit and she no longer had a right to live in the UK. She was also subjected to a criminal investigation although charges were not brought.
Ms Roldan submitted a claim for unfair dismissal to the Employment Tribunal. The case was appealed to the Court of Appeal which held that her dismissal was unfair. The Court reminded itself that one of the factors to be taken into account in a conduct dismissal is whether the investigation was fair and adequate, and whether the employer carried out as much investigation as was reasonable in all of the circumstances of the case. In this case, an investigation would have concluded that Ms Roldan had worked for the Trust for 4 years without any complaints. They should also have taken into consideration the possibility that due to her work status she would lose her ability to work in the UK and as a result be deported and her ability to rebuild her career in the UK following being dismissed for this reason.
Employers are therefore encouraged to ensure that they conduct a fair and thorough investigation, taking into account all the circumstances of the case. They should also take into account the seriousness of the allegations and the potential repercussions on the employee.
