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Misconduct allegations: The more the merrier?

In considering whether a decision to dismiss an employee is fair, an employment tribunal (ET) will consider whether the employer had a fair reason to dismiss and whether a fair procedure was carried out.

When dealing with a number of allegations of misconduct, is an employer entitled to look at the allegations “in the round” and base its decision upon the cumulative effect of all of the allegations added together?

Pennine Care NHS Trust v Mundangepfupfu

Mr Mundangepfupfu was a qualified nurse who was employed by Pennine Care NHS Trust (“the Trust”) from 2003 until his dismissal in 2013. Mr Mundangepfupfu was dismissed for gross misconduct. The allegations relied upon by the Trust to justify his dismissal were physical assault of a patient; refusal to follow a reasonable management instruction; and failure to safeguard a patient.

The physical assault charge related to an incident during which a patient alleged that Mr Mundangepfupfu had attacked him. Mr Mundangepfupfu argued that it was in fact the other way round and that it was the patient that had attacked him – his response being instinctive self-defence. He accepted that in doing so he may have touched the patient’s neck/throat area. Following that incident, his Manager decided that Mr Mundangepfupfu should move to another ward, which he did not want to do because of the incident that had just occurred, and also because he had previously suffered racial abuse on that ward. He therefore left his shift leaving the ward with no qualified member of staff on duty. Whilst investigating these matters, the Trust received a further complaint against Mr Mundangepfupfu which related to the safeguarding of a patient.

Ultimately the Trust found that all 3 charges were made out against Mr Mundangepfupfu and decided that the appropriate sanction was dismissal. That decision was upheld on appeal and Mr Mundangepfupfu brought proceedings against the Trust in the ET.

The Employment Tribunal

The ET found that the Trust had considered all of the allegations “in the round” and was unable to say what would have happened if there had only been one or two acts of misconduct. Each allegation was relevant when considering whether the Trust acted reasonably in dismissing Mr Mundangepfupfu.

On the assault charge, the ET concluded that the Trust’s decision was unfair. Mr Mundangepfupfu was charged with “physical assault of a patient”. He accepted that he may have touched the patient’s neck or throat in defending himself, but no finding was made on this point. There was a crucial difference between accidentally putting your hand on someone’s throat and assaulting someone, and this was not investigated. What is more, the Trust made no effort to look for evidence that may have proved Mr Mundangepfupfu’s innocence, and had failed to approach all potential witnesses or consider all of the witness statements.

In relation to the reasonable management instruction charge, the mitigating circumstances were not taken into account, which called into question whether or not the instruction was in fact reasonable in the first place. On the safeguarding issue, the investigation was flawed, and whilst Mr Mundangepfupfu may have shown a lack of professionalism, it was likely that this would not have amounted to gross misconduct but rather misconduct attracting some lesser sanction.

The dismissal was therefore unfair. The Trust appealed.

Decision

The Employment Appeal Tribunal upheld the ET’s finding of unfair dismissal and dismissed the appeal.

Specifically, the EAT questioned whether labelling the first charge as one of “physical assault of a patient” properly reflected the circumstances, and may have been better described as a “situation during which the Claimant had to defend himself and, in so doing, as he accepted, his hands came into contact with the patient’s neck or throat”. It recognised that this too could be an act of gross misconduct, but that there was a difference between the two.

In its view, the real issue was whether the label of “assault” gave rise to any unfairness, and it considered that it may well have given rise to the risk of unfairness. Once Mr Mundangepfupfu admitted touching the patient’s neck area, the Trust took the view that this amounted to a physical assault and did not allow for any other way of seeing the issue. This impacted on the scope and reasonableness of the investigation.

Whilst the EAT cast doubt on the ET’s decision on the reasonable management instruction allegation, it agreed that given the seriousness of the allegation (originally framed as one of sexual abuse) this warranted more extensive investigation and therefore the investigation on that point was flawed.

Comment

This case serves as a reminder to employers on the importance of properly investigating each allegation put to an employee, and being able to show that any allegation relied upon for the purposes of a dismissal is justified. Employers should avoid relying on the effect of all of the allegations added together “as a whole”, because in doing so any allegation which is unfounded may make the employee’s dismissal unfair.

The case also highlights the importance of correctly labelling the allegations of misconduct put to an employee. Employers should apply their minds as to how they describe alleged offences of misconduct, and keep these under review, so that if it changes during the course of the process, it is updated and investigated accordingly, with the employee given an opportunity to defend themselves against the allegations.

If you have any queries in relation to dealing with disciplinary matters or any other HR or employment issue please contact Joanne Holborn, Tom Scaife or Caroline Rayner on 01228 552600 or 01524 548494.

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