The recently-decided Tykocki v Royal Bournemouth & Christchurch Hospitals NHS Foundation Trust (UKEAT /0081/16/JOJ) case provides good supporting authority for claimant litigators dealing with cases involving a dismissal for gross misconduct. As such, it bears analysis to draw out the elements that tend to heighten the bar that employers will have to have surmount to render the dismissal fair.
Mrs Tykocki was a Health Care Assistant who had worked for the respondent for 25 years. She was the subject of a complaint of assault by a patient. This was investigated, and a decision was made to dismiss for gross misconduct. There was an appeal hearing in which, extraordinarily, the patient was present and the claimant’s trade union representative was permitted to ask questions of the patient.The decision-maker decided to uphold the dismissal. Mrs Tykocki then made a claim for unfair dismissal.
The tribunal directed itself to the Burchell test and concluded that the respondent had a genuine belief in the misconduct, that they had reasonable grounds to believe this and that a reasonable investigation had taken place. The claim was dismissed; this was appealed and the appeal was upheld in the EAT.
The crux of the judgment is at para 33 where Judge Eady QC says;
“I simply cannot be sure that the ET applied the test of reasonableness to the full circumstances, that it properly asked whether there had been a fair investigation – applying the standard of the reasonable employer and allowing for a band of reasonable responses – given the errors that the Respondent made, in particular the failure to provide the nurses’ statements to the Claimant and to allow for her input on those before reaching a decision, and the failure to similarly allow for her submissions, and for the possibility of further investigation, given the new allegation raised by the patient on appeal.”
Further, Judge Eady says earlier in the judgment at para 29;
“the nurses could add little to the evidence of the actual incident… The claimant was entitled, however, to question whether their evidence might have been seen to add something to the broader picture… Their evidence taken in the broader sense might have been seen as exculpatory”.
While the required level of investigation and disclosure to the employee, in any particular case, will be very “fact-specific” (para 31), Judge Eady’s findings in paras 33 and 29 can be seen as placing a very high bar on an employer in undertaking a fair investigation of a gross misconduct allegation. It could serve as authority for the proposition that, in cases involving serious misconduct that may have the effect of ending the employee’s career, an employer is obliged to disclose to the employee any evidence which could be, even tangentially or theoretically, exculpatory (including witness statements in full). What is clear is that the level of thoroughness required by an employer in the investigation of any such case has been strengthened by Tykocki.
This case also provides authority for the proposition that a fairly-conducted appeal hearing cannot be taken as remedying the defects in the original investigation and disciplinary process (para 30).
A point well-made by the CIPD in their summary of Tykocki was to raise the question of what misconduct will reach the threshold requiring the level of scrutiny envisaged in Tykocki? The ambiguity here is certainly something that can be used to the claimant’s advantage; essentially, any accusation of gross misconduct could be ‘career ending’, all the more so if an employee has worked with one employer for a long period and thus cannot do without a reference from them. Thus the argument can be advanced in pleadings that the failure to provide a Tykocki level of disclosure of evidence and thoroughness of investigation will have rendered a gross misconduct dismissal unfair, even where the factual particulars (and even seriousness, to the extent of possible criminality) are not on all fours with Tykocki.
It will be interesting to see how EAT jurisprudence on this subject develops, but I would be surprised if there wasn’t some pushback and distinguishing / limiting cases in the near future.
Order of the Coif 