(1) Mrs J Clark (2) Mrs C Ingham v Liverpool & Broadgreen University Hospitals NHS Trust — 2020

Mrs Ingham and Mrs Clark were dismissed without notice on 7 August 2018 after an incident on Ward 5X on 3 March 2018, when a patient in Bay 8 fell while they were away on a smoke break. The tribunal found that night-shift break arrangements were informal, there was no written break policy at the material time, and staff commonly sorted out breaks between themselves, although they were generally expected to notify the nurse in charge when leaving the ward.

On the unfair dismissal claim brought by Mrs Ingham, the tribunal applied section 98(4) ERA 1996 and the Burchell test. It held that the respondent genuinely believed she had committed misconduct, but that the investigation was not reasonable because it failed to establish the time of the fall accurately, did not make further enquiries into the conflicting accounts and records, and was delayed. The tribunal found the fall occurred between 10.30pm and 10.45pm, not around midnight, and said that the mistaken timing assumption affected the disciplinary and appeal decisions. It also found that the respondent placed too much weight on the seriousness of the injury rather than the seriousness of Mrs Ingham’s conduct.

The tribunal concluded that Mrs Ingham’s dismissal was unfair and that, had a fair procedure been followed, there was no real chance she would have been dismissed. It found that her conduct was blameworthy in that she left the ward without telling the nurse in charge, but it did not amount to wilful neglect or serious negligence. The tribunal applied a 20% ACAS Code uplift and a 50% reduction for contributory fault, but it did not determine a monetary award because remedy was listed for a later hearing.

For both claimants’ breach of contract claims, the tribunal held that their conduct did not amount to gross misconduct. It found that they believed the patients were safe, that the ward staffing that night allowed a judgment call to be made, and that the respondent’s focus on the injury itself, rather than the nature of the conduct, was misplaced. The tribunal therefore held that dismissing Mrs Ingham and Mrs Clark without notice breached their contracts of employment.