Mrs M Hodgson (Counsel) For the v Respondent — 2020

The claimant, a healthcare assistant with service from 4 September 2007, was dismissed after a 25 June 2018 incident on Olive Ward at Bromley Road Hospital involving Patient X. It was not disputed that Patient X punched the claimant first. The tribunal accepted that the respondent’s stated reason for dismissal was misconduct, but it found that the investigation and disciplinary process were defective and inadequate in several respects.

On unfair dismissal, the tribunal held that the respondent did not investigate with the rigour and even-handedness a reasonable employer would have used. It criticised the failure to interview potentially relevant witnesses such as OA and EY, the withholding of BA’s later interview, the failure to consider Patient X’s hospital examination, and the fact that RG had spoken to LM and Patient X before the hearing without telling the claimant what had been said. The tribunal also found that the claimant was dismissed for alleged falsification of the IRIS report without that specific allegation being put to him in the disciplinary hearing, and that the appeal did not correct these defects. The claim of unfair dismissal therefore succeeded.

On wrongful dismissal, the tribunal was not satisfied that the claimant used unreasonable or excessive force in response to Patient X’s assault. It noted that none of the respondent’s three witnesses to the disciplinary and appeal process had been present for the incident, and that the evidence contained significant differences as to what happened in the short time available. The tribunal also rejected the contention that the claimant deliberately falsified the IRIS report by referring to OA as present, finding that this may have been a matter of interpretation and that the respondent had not proved a repudiatory breach of contract. The claim of wrongful dismissal therefore succeeded.

On remedy, the tribunal made a Polkey reduction of 50% to any compensatory award, concluding that there was a 50% chance the claimant would still have been dismissed even if the investigation and process had been fair. It did not make any reduction for contributory fault. A separate remedy hearing was listed for 18 September 2020, so this judgment did not determine the final monetary award.