Employer obliged to conduct fair investigation

When a senior staff nurse walked past a dining room and saw two nurses tying a patient’s chair to a table and securing him in the chair with sheets she was understandably concerned. However, this minor incident resulted in a Dickensian list of people and elusive managerial titles; an unimaginable number of investigations, experiments, the police; and the suspension for six months of the nurses who have won their claim of unfair dismissal.

As the judgment said, what you are about to read is the story of “defensive management responses which focus solely on their own interests.” The whole tale included totally unsustainable findings of assault when there was “obvious justification”, calling the police which was “little short of astonishing”, bad treatment of staff that might have been “a breach of the duty of trust and confidence.”

Over zealous employers are usually trying to obey the rules and protect their staff, but this case offers lessons for everyone investigating allegations against long-serving employees.

What happened in the hospital

Ms Jeffery sees something strange

The West Suffolk Hospital in Bury St Edmunds has a special ward for patients suffering from depression, anxiety, or dementia. In The Westgate Ward on Monday 22nd September 2008 Ms Paula Jeffrey, a senior staff nurse, was writing a report about a patient, JE. During the day shift he had been treated badly, cared for in “a less than best way.”

After she finished the report she left the hospital. On her way out she saw JE in the dining room. There were two nurses with him. They were the only two nurses looking after seventeen patients.  JE had spent the day hitting, swearing, throwing, spitting, kicking, and being abusive.

Ms Jeffery thought she saw JE tied to the chair with sheets. He was trying to get out. The chair was tied to the table with a sheet, and there was another sheet tied across his stomach. She was shocked.

However, Ms Jeffery did not say anything to the nurses; and she did not report this until Thursday 25th September.

She told the Ward Manager, Mrs Jackson. Mrs Jackson told Ms Jeffrey to make a statement. She did so. And she talked to her Line Manager, Mrs Howlett.

On the Friday the two nurses, Ms Jeffrey, Mrs Howlett all had a meeting with Mrs Jackson and Ms Powell. Ms Powell is from Human Resources.

The two nurses, Mrs Crawford and Mr Preston, were suspended because of an “alleged assault.”

Mrs Jackson then raised the issue with consultants in the hospital. They were “not shocked, angry or even mildly emotional.”

An investigation

There is, at the West Suffolk Hospital in Bury St Edmunds, such a thing as the Vulnerable Adult Protection Committee. On 30th September they decided the police should be informed. On 30th October the police told them nothing more would be done.

An internal investigation was started. In January 2009 it concluded that the chair had been tied to the table, and that the nurses had attempted to tie JE to the chair with a sheet. The Trust’s disciplinary policy was recommended, as was “appropriate training.”

Next came the disciplinary hearing, headed by Mr Mansfield, the Service Manager for Rehabilitation and Recovery. The allegation was:

… the patient, JE, was observed in the dining room … seated in a chair near to a table with one bed sheet tied around the upper part of JE’s body and the chair and one bed sheet tied around the lower part of the chair encircling the arms of the chair. The sheet around the lower part of the chair was securing the chair to the table.

It was said that this deprived JE of dignity, and that it breached the professional code, the Trust’s disciplinary procedure (gross misconduct), and the Trust’s “Code of Conduct and the Prevention of Management Aggression Policy.

Gross misconduct is, “verbal or physical assault on a patient.”

Mr Mansfield wanted to test Mrs Crawford’s evidence about how the sheet was tied to JE. He went to the dining room with Ms Verzijl, a senior HR advisor, and tested how Mrs Crawford had described tying the sheet. Mrs Crawford was not told they were doing this.

Mr Mansfield decided that all the allegations were proved. He said that tying JE to the chair was “mechanical restraint … inappropriate restraint.”

He made three conclusions. under the various provisions of the disciplinary rules the tying up constituted assault, negligence, and professional misconduct.

An appeal

The two nurses made an internal appeal. This was heard by Mr Bolas, Director of Nursing; Mr Clarke, Director of Specialist Services; Mr Hulme, non-executive Director. They review Mr Mansfield’s decision to ensure that it was fair and reasonable, they did not hear witnesses or make a decision themselves.

Mrs Crawford had explained that the purpose of tying JE up with three sheets was to make him feel like he was in bed. The panel concluded that on the balance of probabilities JE had been tied to the chair as alleged – assault, negligence, misconduct. They did not take account of Mrs Crawford’s explanation.

The letter rejecting the appeal said that there had been an assault.

What happened at the Employment Tribunal

Employment Tribunal finds unfair dismissal

The tribunal noted a number of oddities in the way the case had been handled. There was a delay of six months between suspension and dismissal. The investigation found that JE was tied to a chair, but by the end of the appeal the final allegation was of assault.

They noted five specific errors:

1. Some of its findings are impossible to sustain. Tying someone to a chair is not physical assault. The Trust accepts that the findings, including negligence, cannot be sustained.
2. There were procedural problems. They did not look at Ms Jeffrey’s first written statement. The statement differed from her evidence in some respects and might have influenced the findings.
3. The experiment on the chair by Mr Mansfield, without telling the appellants, was impermissible evidence.
4. No reasonable employer could have concluded that JE was tied to the chair.
5. The employers did not take context into account. No harm was done to JE, there were two nurses for seventeen patients, he was agitated and difficult, he was on a drip and needed to stay fairly still.

This led them to conclude that the Trust had insufficient evidence to conclude that JE had been tied to the chair, and that no reasonable employer could conclude that securing the chair to the table was assault.

Because the appellants did not report what they admitted were unusual circumstances damages were reduced by 25%.

Employment Appeals Tribunal overturns that decision

The Employment Appeals Tribunal found that the Tribunal had substituted its own view for that of the employer. It said that the Tribunal should not have criticised the terms of reference of the investigation, it should have focused on the disciplinary charges. The Appeals Tribunal also disagreed about Mr Mansfield: they said it was open to a reasonable employer to find that JE had been tied up in the way Ms Jeffrey suggested.

By calling the experiment with the chair by Mr Mansfield impermissible the Tribunal had substituted its own view for that of the employer. And they were not entitled to conclude that the Tribunal should have used Ms Jeffrey’s first statement.

Court of Appeal

Lord Justice Elias relied on the precedent of the case Roldan, which he had given judgement in. That case held that where the findings will affect the employee’s reputation or their ability to work in that field again, the employer must take seriously its obligations to conduct a fair investigation.

The conclusion he comes to is that Tribunal was entitled to look carefully at the procedures followed, contra the Appeals Tribunal. This is especially so because the ability of the appellant’s to work again in nursing is at stake.

The Tribunal was therefore entitled to conclude that the experiment carried out by Mr Mansfield was unfair. He also concluded that the failure to obtain ms Jeffrey’s statement was a failure a reasonable employer would not have made. At the least that statement is inconsistent with Mr Mansfield’s conclusion that the staff had taken no steps to remove JE from the chair.

The Tribunal did make an error when it concluded that no reasonable employer could have preferred the evidence the evidence of Ms Jeffrey to that of the staff members. Their conclusion is in effect that the finding of the investigation was a “perverse assessment of the evidence”, which is too high a hurdle to surmount.

But this error by itself does not invalidate the finding of unfair dismissal.

Elias LJ held that Mr Mansfield had “misunderstood and exaggerated” the nature of the wrongdoing. Irrespective of that it is not open to a reasonable employer to dismiss a staff member of twenty years for securing someone in their chair like this.

the evidence showed that during the previous shift JE had been pinned to the chair in virtually the same way, save that instead of achieving this mechanically by tying the chair to the table, it was done by two nurses holding it there. To treat the one as permissible and the other as justifying the dismissal of employees with twenty years service, simply it seems because it is not an approach permitted by the procedures, is in my view clearly perverse.

As such the finding of unfair dismissal was restored, with the 25% reduction in damages. However, it has to go back to the Tribunal to clarify this point:

It has to decide whether the dismissal would have taken place even if fair procedures had been employed, and if so, whether such a dismissal would have been fair. If the conclusion is that the dismissal would not have been fair, even if it would or might in fact have occurred, for example because the sanction would have been outwith the range of reasonable responses, then there would be no justification for reducing compensation on this ground at all, and the compensation awarded by the Tribunal would stand. But if there was a chance that a fair dismissal might have occurred in any event, that must be factored into the assessment of compensation.