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The recent case of Salford Royal
NHS Foundation Trust v Roldan [2010] has provided a steer
in the practical manner in which Employers deal with
disciplinary and dismissal proceedings.
Facts of the case
Ms Rolden, a nurse with the
Salford Royal NHS Trust, was suspended pending an
investigation of a complaint received from a healthcare
worker, Ms Denton, that Ms Rolden had mistreated a patient.
Following investigatory
interviews, which were limited to Ms Denton and Ms Rolden
and her supervisor, the NHS Trust concluded that Ms
Rolden’s recollections of the events were quite vague in
comparison to her complainant.
The disciplinary panel concluded
that Ms Rolden’s evidence was therefore unreliable and
accepted Ms Denton’s evidence as they felt there to be no
reason why she would lie. Following this, Ms Rolden was
summarily dismissed. The Employment Tribunal found this to
be unfair dismissal on the grounds that the investigation failed
to question the reliability of Ms Denton’s evidence.
Although at the Employment Appeal
Tribunal this decision was overturned, the Court of Appeal
restored the Employment Tribunal’s finding of unfair
dismissal.
Existing law
The law is that in deciding
whether a dismissal for reasons of alleged misconduct is
fair or unfair, requires there to be an investigation of
whether “the employer acted reasonably or unreasonably in
treating it as a sufficient reason for dismissing the
employee, and [that] shall be determined in accordance with
equity and the substantial merits of the case”.
Case law has established factors
that need to be considered when determining this and
one of the factors to be taken into account is whether the
employer carried out as much investigation into the matter
as was reasonable “in all the circumstances of the case”.
This test is sometimes summarised to state that the
employer must reasonably believe in the employee’s guilt.
Going Forward
The Court of Appeal pointed out
that “all the circumstances” included the fact that the
employee was an employee who had given service to the
employer for over 4 years and, significantly, that there
would be a real risk that her career would be blighted by
the dismissal if it was found to have been fair - as it
could lead to her deportation and therefore destroy the
opportunity for building her career.
This decision also added that in
cases of unfair dismissal the tribunal’s approach to
conflicts of evidence when investigating claims should not
be too relaxed, especially where the consequences of
dismissal for an employee could be potentially
severe. There must, be a ‘genuine belief’ on
reasonable grounds that the misconduct has occurred, as a
result of carrying out the fullest possible investigation
into the circumstances.
There will of course be instances
where it is perfectly proper for an employer to say that it
is not satisfied that it can resolve the conflict of
evidence accordingly and in such instances it appears that
it would be more appropriate for the employer to give the
employee the benefit of the doubt and not feel obliged to
rule in favour of either party.
However if faced with conflicting
evidence, employers should refrain from deciding that a
case is not sufficiently proved and therefore choose to
impose a warning. This could lead to appeals or even
constructive dismissal issues which would cause further
problems for the employer.
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