In Person For the v Respondent — 2022

The tribunal found that the claimant was unfairly dismissed. It accepted that the respondent had a genuine belief in misconduct and that the investigation and hearings were, in broad terms, thorough and fair. The dismissal was treated as arising from conduct, not some other substantial reason, and the tribunal applied section 98 ERA 1996, the Burchell approach, and the range of reasonable responses test in assessing fairness.

The key unfairness lay in the sanction and the way redeployment was handled. The tribunal held that the respondent's disciplinary policy did not permit a final written warning together with redeployment in the circumstances of the case, and that redeployment was being used as an alternative to dismissal even though the misconduct found was not serious enough to justify dismissal. It also found that the claimant was not properly consulted about the narrowing of redeployment to non-clinical roles, and that the process had conflated the disciplinary case with separate issues linked to restrictions arising from the earlier Miss McNamara complaint.

The tribunal further found that the later attempt to justify the outcome by reference to patient safety or broken relationships was inconsistent with the evidence and the reasons given at the time. Even taking the respondent's case at its highest, the conduct found after appeal consisted of a limited number of clumsy, thoughtless and inappropriate comments, and dismissal was not within the range of reasonable responses. The claim was therefore allowed. For compensation, the tribunal indicated that any award would be reduced by 20% for Polkey reasons and a further 20% for contributory conduct, but the amount was to be determined at a separate remedy hearing.