The Court of Appeal recently considered the case of Crawford and another v Suffolk Mental Health Partnership NHS Trust. This was an appeal by the Trust from a successful claim for unfair dismissal by two nurses. The two nurses had been dismissed following an incident where they attempted to restrain a patient in his chair with bed sheets. The patient was causing harm to himself at the time so this was not a malicious or particularly negligent act, but it was against relevant guidelines. The matter had been reported to the police by the Trust, but the police had taken no further action following their investigation.
The Court of Appeal upheld the finding of unfair dismissal but remitted the case back to the Employment Tribunal to consider whether the awards of compensation made to each of the nurses (which were £29,507.42 and £73,550.00 respectively) should be reduced in accordance with Polkey principles. Very briefly, Polkey is where compensation is reduced by a percentage determined by the Tribunal to take account of the possibility that even if a fair procedure had been followed, the Claimant may have been dismissed in any event.
In the judgment, Lord Justice Elias made some additional comments which are of great interest to employers. He commented that it appears to be the almost automatic response of employers to allegations of this kind to suspend the employees concerned, and to forbid them from contacting anyone, as soon as a complaint is made; irrespective of the likelihood of the complaint being established. He said that a suspension should “not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is”. An employee will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging and raise the prospect of guilt before full investigation has been undertaken. Therefore, a decision to suspend an employee should not be taken lightly and should be for no longer than is reasonably necessary giving consideration to all the facts surrounding the matter.
In this case the suspension was for 6 months and it was felt that investigations could have been concluded in a shorter time frame and that consideration should have been given to the unblemished service of some 20 years by each of the two nurses.
Lord Justice Elias was also extremely concerned about the reporting of the matter to the police, saying that he found it “little short of astonishing” that the Trust had taken that step. He said “I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit. Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct”. No one argued that the two nurses were acting other than in the best interests of the patient and others, so the jump to reporting to the police was not a step that was reasonable to take, particularly as there could have been a significant impact on the future careers of the nurses.
This case gives guidance to employers who are dealing with investigations into disciplinary matters in regard to suspension and considering whether to report matters to the police. These decisions must be examined in relation to the facts of each case rather than an automatic response and the reasons why such decisions are taken should be recorded.
If you require advice on disciplinary matters or wish to discuss any specific situation, please do not hesitate to contact us on 01243 836840 or [email protected].