Mrs Julie Higham v NM Health Innovation Limited — 2022

Mrs Julie Higham, an experienced practice nurse, was dismissed after disciplinary proceedings concerning five allegations: two matters about cervical smear procedures, a failure to complete smear audits, a data protection breach involving her smear log, and an allegedly incorrect patient record for Patient SH. The tribunal accepted that the respondent had a genuine belief in misconduct and that its investigation was reasonable overall, applying the Burchell test and section 98 of the ERA 1996. It found, however, that allegations 2 and 3 were not made out on the evidence, and that allegation 1, even if established, amounted to mistakes rather than gross misconduct.

The tribunal found allegation 4 was a genuine error: the claimant had taken the smear log home and burned it by mistake, causing a data breach, but the respondent had not assessed the seriousness of the breach and the information was limited to NHS numbers and dates. Standing alone, the conduct was not serious enough to justify summary dismissal. The decisive finding was allegation 5. The tribunal preferred the respondent's evidence that the claimant had altered Patient SH's record to state that no smear had been performed when, on the tribunal's findings, a smear had been taken and then discarded. That conduct was found to be intentional falsification of a patient record and gross misconduct, so dismissal was within the range of reasonable responses.

The dismissal was nevertheless procedurally unfair because Mrs Chester heard the appeal. The tribunal held that she could not objectively be considered impartial, in part because Mrs Muttucumaru had investigated the case and Mrs Chester was her twin sister and had assisted with aspects of the investigation. Even so, the tribunal found the outcome would have been the same if an independent appeal chair had heard the appeal. It therefore upheld the unfair dismissal claim on procedural grounds only, but reduced any compensatory award to nil under Polkey and made no basic award because the dismissal was entirely caused by the claimant's own blameworthy conduct.

On the wages claim, the tribunal accepted the claimant's reliance on Gisda Cyf v Barratt and held that dismissal was not effective when the letter was sent on 30 June 2021, but when it was received on 2 July 2021. The claimant was therefore entitled to one day's net pay of £150.08, and the respondent was ordered to pay that sum subject to the usual tax and National Insurance deductions.