When considering whether to dismissal for misconduct, a question that often comes up is how much investigation should the employer carry out first? It’s commonly known that under the ‘Burchell’ test:
- the employer must establish that he believed the employee was guilty of misconduct;
- the employer must have had reasonable grounds for that belief;
- the employer must have carried out as much investigation into the matter as was reasonable in all the circumstances.
In the recent Court of Appeal case of Salford NHS Trust v Roldan, Ms Roldan was a staff nurse, when a colleague complained that she had ill-treated a colleague, discarding cleaning wipes on a patients face and slapping his hand. She was suspended, and informed that serious complaints had been made. In the investigation the colleague was interviewed, as was Ms Roldan and her supervisor. The complainant’s recollection was precise and consistent, but Ms Roldan’s recollection was inconsistent and vague. Ms Roldan was dismissed following a disciplinary hearing, who then appealed saying amongst other things that the wipes had gone in the patients face by accident, but that the patient had assaulted her.
The appeal took the form of a re-hearing with all the witnesses giving evidence again. The appeal was rejected. The consequences for the appellant were very significant; not only did she lose her job, but in addition she lost her work permit and the right to remain in the United Kingdom, as well as being the subject of a criminal investigation by the police for which she was prosecuted but acquitted.
One of the grounds of appeal was whether the investigation was adequate. On the facts, the Court of Appeal considered that further investigation should have been carried out:
- The more serious the consequences of dismissal for the employee, the more careful an investigation is required. In this case, a more careful investigation was needed because the consequence of dismissal was that Ms Roldan could be deported; ‘This is particularly so given that here was a woman who had given service to the employers over 4 years, apparently without complaint, and there was a real risk that her career would be blighted by this dismissal. It would certainly lead to her deportation and destroy her opportunity for building a career in this country’. More could have been done to check the allegations made.
- An employer faced with a conflict of evidence between two witnesses is not obliged to believe one employee and to disbelieve the other. If it is unable to resolve the conflict, it is perfectly proper to give the alleged wrongdoer the benefit of the doubt.
At first reading, the Trust’s investigation and complete re-hearing at appeal seemed quite thorough. However employers would be wise to consider the full consequences of a disciplinary dismissal, and investigate as exhaustively as possible if deportation, prosecution or being placed on a barred list might follow.