Mr A Olalere v Guys and St Thomas NHS Foundation Trust — 2022

The tribunal heard an unfair dismissal claim by Mr A Olalere against Guys & St Thomas NHS Foundation Trust. The claimant confirmed that he did not pursue a claim for outstanding pay. The tribunal found that Ms Gadd and Mr White dismissed him for conduct after a disciplinary process arising from seven allegations about specimen labelling, login sharing, entering AGP areas, reporting of sickness absence, leaving a patient with a tourniquet on the arm while taking a personal call, delayed reporting of a sample-processing error, and raising his voice in front of staff and patients.

The tribunal accepted that the employer had a genuine and reasonable belief in misconduct. It found that the investigation was thorough, that the claimant was given the investigation report and supporting evidence, that he had a disciplinary hearing and an appeal, and that he had a fair opportunity to respond and to call witnesses. The tribunal held that the process complied with the ACAS Code and applied the section 98(1), section 98(2)(b) and section 98(4) ERA 1996 framework, together with the Burchell approach and Iceland Frozen Foods.

The tribunal accepted that some of the allegations would not by themselves have amounted to gross misconduct, but it accepted Mr White’s evidence that allegations 3 and 5 could each amount to gross misconduct. It found that the cumulative misconduct, particularly the patient safety concerns, was enough to destroy trust and confidence between the parties and that dismissal with notice was within the band of reasonable responses. The unfair dismissal claim was therefore dismissed. The tribunal added that, had it needed to consider Polkey or contributory fault, it would have found a large element of fault that would have reduced compensation substantially.