Mr J Khan v South West London & St George’s Mental Health NHS Trust — 2021

The Tribunal first dealt with limitation. Although the claimant presented his claim after the ordinary three-month period running from the dismissal on 13 February 2020, it found that there was ambiguity about the termination date because the claimant believed the dismissal took effect when the appeal outcome letter was issued in July 2020, and the respondent had not raised the jurisdiction point earlier. The Tribunal extended time under s.111 ERA 1996 and proceeded to the merits.

On the facts, the respondent had a legitimate concern about timesheets used for bank shifts, but the Tribunal found that the response became unreasonable. It held that the claimant was not promptly or properly informed, was not interviewed at the outset, and was subjected to a counter-fraud process that was prolonged, poorly recorded, and framed as an exercise to substantiate fraud rather than to investigate with an open mind. The Tribunal also found failures to follow the respondent’s disciplinary policy and the ACAS approach to prompt investigation.

Applying s.98 ERA 1996 and the Burchell guidance, the Tribunal held that the dismissal fell outside the range of reasonable responses. It found that the investigation was prejudiced against the claimant, that key matters were not properly put to him, and that there was confusion about the alleged signatories and the dates in issue. The unfair dismissal claim therefore succeeded.

The wrongful dismissal claim also succeeded. The Tribunal held that the facts did not amount to gross misconduct, so the claimant was entitled to notice pay. No remedy was determined at the liability hearing, and the Tribunal listed a remedy hearing and noted that reinstatement or re-engagement remained open to the claimant.