Olinga Tahzib obtains reinstatement order for porter dismissed by NHS Trust
Judgment has recently been published in the case of Mr D Mills v East Sussex Healthcare NHS Trust, 2300298/2017. The case – involving the dismissal of an employee following allegations that he sexually assaulted a patient at an NHS Trust – provides helpful guidance to employers dealing with allegations of misconduct which result in police investigations and criminal prosecution.
The Claimant worked as a porter at Eastbourne District General Hospital. In May 2015 a patient raised allegations that the Claimant had sexually assaulted her. The allegations led to a police investigation and ultimately to a criminal trial in February 2017 at which the Claimant was acquitted.
Before the trial, however, the Claimant had been dismissed by the Trust. Following the police’s decision to charge the Claimant, he had been suspended with effect from 26 August 2015. In January 2016, the Trust had instigated a review into whether it could continue to afford the cost and disruption to service caused by the Claimant’s absence. The investigation concluded that it could not and the Claimant was dismissed.
In finding that the Claimant had been unfairly dismissed, Employment Judge Fowell stated as follows:
‘My clear view, having heard all the evidence, is that the approach taken by the respondent was fundamentally misconceived. The claimant was dismissed because the Trust decided to suspend him over the disciplinary allegations and they then concluded that this suspension was unsustainable. The period of suspension was in their control. At any stage they could have decided that it would take too long for the trial to be heard and to carry out their own investigation. The reasons they did not do so were because of the views of the police and their own safeguarding team. They appear to have acted on the assumption that this was an absolute bar to carrying out an investigation, that it would be somehow unlawful to do so. That is not the case.’
The Trust were ordered to reinstate the Claimant, who was also awarded a sum reflecting the payment that he would have received but for his dismissal.
Barristers: Olinga Tahzib