Mr. T E Merson v Royal Devon University NHS Foundation Trust — 2024

Mr Merson was employed by Royal Devon University NHS Foundation Trust as a Clinical Operating Department Practitioner Manager and had around 19 years' service. The tribunal found that, by the time of dismissal on 26 May 2023, the respondent knew that he had been arrested and was on police bail in relation to allegations of rape and voyeurism, but he had not been charged. The respondent relied on some other substantial reason, pointing to reputational damage, patient safety and the bail conditions. The tribunal accepted that patient-safety concerns arising from contact with patients could be a reasonable concern, but it found that the case was not one where the respondent was faced with a finding or even a charge against the claimant.

The tribunal found that Mr Stevenson, the dismissing manager, did not properly consider suspension. It found that the main issue which drove the decision was concern about public reaction if it became known that the trust was employing someone under investigation for a serious sexual offence, and that he had reached that view before the dismissal meeting. It also found that Mr Corbridge, the HR manager, had a significant earlier involvement in the surrounding events and had guided Mr Stevenson towards dismissal and away from suspension, which meant the decision was not an unfettered one. The tribunal accepted that the trust had not formed a view on the merits of the rape and voyeurism allegations, but it found that the dismissing manager was influenced by the safeguarding team and by concern about reputational harm.

The tribunal held that the bail conditions themselves did not require dismissal. It found that the respondent could have worked around them by allowing Mr Merson to work from another site, and that the respondent had not called evidence to show that he could not perform his role satisfactorily from elsewhere. It also found that redeployment had been recommended in a risk assessment and that the respondent had not properly explored suspension, including any possibility of suspension on different pay terms. The tribunal further held that the claimant was not given any right of appeal, which it considered unreasonable in the circumstances of a long-serving employee.

For those reasons the tribunal concluded that the dismissal was unfair and that the claim succeeded. It recorded that the remedy hearing would deal with issues such as contributory fault and Polkey, and no monetary award was made in this liability judgment.