S Unthank v Spire Healthcare Limited — 2021

The claimant was employed by Spire Healthcare Limited from 4 April 2004 until his dismissal on 31 October 2018 for alleged gross misconduct. The respondent said the claimant had taken direct payments from a patient for services rendered under the guise of the respondent. The claimant said he had an agreement with a former hospital director, Ms Dineen, allowing him to see occasional private clients at the hospital, and that if he had not been dismissed he would have been made redundant on 31 July 2018.

The tribunal accepted that misconduct was a potentially fair reason for dismissal, but found the respondent's investigation and disciplinary process were unreasonable. It found that key witnesses were not asked sufficient questions about whether the claimant saw private clients or whether an agreement existed, additional allegations were raised without adequate investigation and later withdrawn, and the decision-maker did not properly address evidence from witnesses who knew of or had seen the alleged agreement. The tribunal also found that the respondent placed central reliance on the absence of the agreement from the claimant's personnel file despite evidence and complaints that the file was incomplete.

The tribunal concluded that the respondent had not carried out as much investigation as was reasonable in the circumstances, that the disciplinary decision was affected by a closed mindset, and that the appeal did not rectify the deficiencies. It therefore held that there were no reasonable grounds for the belief that the claimant had taken direct payments from patients under the guise of the respondent, and the unfair dismissal complaint succeeded.

On the wrongful dismissal / breach of contract claim, the tribunal decided for itself whether the claimant had committed gross misconduct. It found that he had not. The tribunal accepted that it was more likely than not that the claimant had agreement to see occasional private clients at the hospital, and held that the respondent was not entitled to terminate his employment without notice.

No Polkey deduction was made because the tribunal found that a fair process would have led either to a conclusion that there was an agreement or that dismissal was not the appropriate sanction. No contributory conduct reduction was made because the respondent did not pursue the argument and the tribunal found no culpable or blameworthy conduct causing or contributing to the dismissal. The tribunal awarded £55,320.48, comprising a £11,424 basic award and a £43,896.48 compensatory award, including £12,769.15 notice pay, £500 loss of statutory rights and £40,435.65 loss of enhanced redundancy payment, less £9,808.32 wages earned.