Misconduct, Suspension and Police Involvement Guidance

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Employment matters are rarely straightforward.  There is often something in a set of facts which causes lawyers to proceed with caution.  In Crawford and another v Suffolk Mental Health Partnership NHS Trust [2012] the Court of Appeal considered how employers should deal with facts where the allegations of misconduct could affect an employee’s future career.  This case also considered when it was appropriate to suspend or involve the Police.

The case centred around two nurses dismissed for ‘assault, negligence and professional misconduct’ for allegedly tying a patient to a chair.  The employees were dismissed but the Court of Appeal held that failures in a disciplinary process led to the unfair dismissal of the two nurses.  The critical procedural defect was that the chair of the disciplinary hearing had conducted an ‘experiment’ on his own to see if the explanation of the nurses’ behaviour could be legitimate – the chair should have involved the nurses in the ‘experiment’.

The judgment of this case addressed a number of points.  First, where a misconduct dismissal is likely to result in the loss of an individual’s future career in their chosen profession, the investigation, disciplinary process and appeal carried out by the employer must be particularly fair and thorough, and the evidence of misconduct particularly clear and cogent.

Second, the Court provided some helpful guidance around when to suspend.  The Court stressed the need for no knee-jerk reaction to allegations of misconduct.  Suspension should only be invoked if necessary after a careful consideration of all the circumstances of the case.  If this is not the case then it may be a breach of the duty of trust and confidence towards the employee.

Third, an employer should not refer allegations of misconduct by an employee to the Police without the most careful consideration and a genuine and reasonable belief that the allegations, if established, could be properly classed as criminal.  The judgment noted that “employers should not subject employees to that burden [of criminal proceedings] without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet “criminal” being applied to the employee’s conduct”