In Crawford and anr v Suffolk Mental Health Partnership NHS Trust the Court of appeal restored a tribunal’s finding of unfair dismissal and in doing so commented that that suspension should not be a knee-jerk reaction, because if it is, it will be a breach of the duty of trust and confidence.
A complaint was made about how an agitated and aggressively behaving 87-year-old patient was handled by two nurses. They were suspended and the police were notified so the incident could be investigated. The police concluded that no further action would be taken. The Trust then conducted its own investigation, which led to disciplinary proceedings, and the whole process took some 6 months before the nurses’ dismissal.
A tribunal found that the dismissal was unfair. There were a number of procedural defects in the disciplinary process and the tribunal did not consider that the Trust had sufficient evidence based on an adequate investigation to support their belief that the patient was tied to a chair by the nurses, or that their had been physical assault. The EAT upheld the Trust’s appeal, finding that the tribunal had substituted its own view for that of the Trust, but the Court of Appeal reinstated the tribunal’s decision based on the major procedural errors identified. A significant point of interest in this case is Lord Justice Elias’ (LJE) comments on the circumstances surrounding suspension of employees and calling in the police.
LJE commented that it appears to be the almost automatic response of many 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, and quite irrespective of the likelihood of the complaint being established. Even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It 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. Employees 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.
LJE then went on to comment that it was little short of astonishing that it was ever thought appropriate to refer this matter to the police. In his view, it almost defies belief that anyone who gave proper consideration to all the circumstances could have thought that they were under any obligation to take that step. There is a need to act transparently and not conceal wrongdoing, but employers 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.
Strong words indeed from LJE, and comments, which it would be wise for all employers to take on board.
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