The consequences of delay: when to raise misconduct concerns

The recent decision by the Employment Appeal Tribunal (the EAT) in O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust has highlighted the important role of early management of employee misconduct. At its most serious, the case serves as a warning to employers that failing to act could leave them vulnerable to claims by employees.

The case

The case concerned Ms O’Brien who had been employed as a Ward Manager since 2009 by Cheshire and Wirral Partnership NHS Foundation Trust (the Trust).

In March 2019, Ms O’Brien experienced a serious health issue that required surgery. As a result, she was absent from work from 31 March 2019 until September 2019. Upon her return, Ms O’Brien made it clear that the health event had significantly affected her. In particular, the PTSD she subsequently suffered had caused lasting issues with her memory and reduced her ability to recall events.

Importantly, shortly before this, the Trust discovered that Ms O’Brien had not worked her contracted weekly hours and had also falsely claimed overtime. The missed hours occurred between September and December 2018 and were reported to her line manager around December 2018 or January 2019.

Despite this, it was not until a meeting held on 7 October 2019, after her return, that Ms O’Brien was informed that a formal investigation would commence in respect of these allegations. Ms O’Brien was, thereafter, interviewed in the March, June, July and August of 2020 and an investigation report was produced on 13 November 2020. Following the conclusion of the disciplinary hearing on 30 March 2021, Ms O’Brien was dismissed, with the two charges against her being upheld.

Following her dismissal, Ms O’Brien brought claims of unfair dismissal and disability discrimination (specifically, a failure to make reasonable adjustments) to the Employment Tribunal (the ET). The ET accepted that the delay in addressing the misconduct issues had disadvantaged her by making it harder for her to defend herself, commenting that:

“The delay would have impacted upon anybody’s ability to recall why they had not been on the ward at the relevant time, but the disadvantage was more significant for the claimant with her disability or disabilities.”

Nonetheless, it concluded that her dismissal for conduct was fair.

Further, the ET also found that the Trust had failed to comply with the duty to make reasonable adjustments. Specifically, this was due to their failure to first follow an informal procedure by discussing the allegations with Ms O’Brien before commencing their investigation.

The appeal

Seeking to challenge the decision, Ms O’Brien brought an appeal before the EAT.

In their judgment, the EAT found that the ET, in reaching their conclusions, had not properly factored the impact of the delay on Ms O’Brien. Although the ET had acknowledged the difficulties the delay caused, the EAT held that those findings had not been meaningfully reflected in its decision as to procedural fairness. Consequently, the EAT allowed the appeal and remitted the case to the ET for reconsideration.

Implications for employers

This case serves as an important reminder of the risks that can arise when misconduct concerns are not addressed promptly.  The Acas Code of Practice requires matters to be dealt with promptly, and to be mindful that delays may disadvantage a disabled employee.

It also reinforces the need for employers to take particular care when managing disciplinary issues involving employees with disabilities, ensuring that the process is adapted appropriately to meet their needs as a failure to do so may result in unfair processes.

If you have any questions about how to handle workplace misconduct and disciplinary processes, please do contact a member of our Employment Team.