Claimant v F NHS Trust — 2020

The claimant had been employed by the respondent NHS Trust as a Team Administrator from 5 May 2009. After his daughter was diagnosed with gonorrhoea in June 2017, the claimant and his wife were tested, the claimant was arrested, and both police and local authority safeguarding investigations followed. The tribunal recorded that the claimant’s work was administrative, that he did not have face-to-face contact with service users, and that he had access to patient records. It also recorded that the medical and safeguarding investigations were inconclusive and that no finding was made in the judgment about whether the claimant sexually abused his daughter.

The respondent suspended the claimant, obtained an investigation report, invited him to a disciplinary hearing, and later dismissed him. The tribunal found that the reason for dismissal was the perceived risk his continued employment might pose to vulnerable service users, which was capable of amounting to some other substantial reason. However, the tribunal found that the investigation did not examine the actual work-related risk, the claimant was not told that this was the allegation he needed to answer, and he was never given a proper opportunity to respond to that point at the disciplinary hearing. The panel relied in part on an enhanced DBS certificate, but the tribunal noted that such a check was not in fact required for administrative staff and that there had been confusion about its significance.

Applying the guidance in Leach v Ofcom and s.98(4) ERA 1996, the tribunal held that the respondent had not acted reasonably in dismissing the claimant. It found that the appeal did not cure the earlier shortcomings, that there had been no adequate analysis of the actual risk posed by the claimant’s role, and that no proper consideration had been given to steps short of dismissal such as changing his duties. The unfair dismissal claim was therefore upheld. The judgment did not determine remedy and instead listed the case for a one-day remedy hearing unless the parties agreed compensation.