Conduct dismissals and conflicting accounts - Court of Appeal

This article was first published in Company Secretary's Review in July 2010

Employers faced with conflicting evidence are not obliged to believe one employee and to disbelieve another.

In Salford Royal NHS Foundation Trust v Roldan, Ms Roldan, a nurse from the Philippines, worked with a health care assistant, Ms Denton. Ms Roldan was suspended pending an investigation after Ms Denton complained that she had ill-treated a patient. The senior manager carrying out the investigation interviewed Ms Roldan, Ms Denton and took into account the statement prepared by Ms Roldan's supervisor.

The senior manager concluded that Ms Roldan’s recollection was inconsistent and vague and that of Ms Denton was consistent and precise and recommended that the matter should proceed to a disciplinary hearing. The disciplinary panel found Ms Roldan's evidence unconvincing and preferred Ms Denton's evidence. They summarily dismissed Ms Roldan on the grounds of gross misconduct, which had significant consequences. Not only did Ms Roldan lose her job, she also lost her work permit and the right to remain in the UK. She was also the subject of a criminal investigation by the police. Ms Roldan brought a claim for unfair dismissal and race discrimination.

While the race discrimination claim was unsuccessful, the employment tribunal upheld the claim for unfair dismissal. The tribunal observed that since the consequences for Ms Roldan included potential criminal charges and deportation, the employer had to be particularly even handed and fair in the way it conducted the investigation.

The tribunal had concerns that, because the investigating manager and the disciplinary panel believed Ms Denton had no reason to lie, they did not question the reliability of her evidence. For example, Ms Denton referred to Ms Roldan looking "through the window" to see if anybody was watching her. The tribunal considered that further enquiry should have been made into whether or not Ms Roldan would be able to do this, given that the investigating manager admitted that it would not have been possible as the blinds would have been closed. The tribunal found the dismissal unfair as the employer should have made further enquiries into Ms Denton's evidence, and should have cast its net wider in looking for witnesses who may have observed Mrs Roldan's interaction with the patient. Whilst the Employment Appeal Tribunal overturned the decision, the Court of Appeal restored the finding of unfair dismissal.

The Court of Appeal remarked in particular about the approach of employers to allegations of misconduct where the evidence consists of conflicting accounts. The Court noted that employers should remember that they must form a genuine belief on reasonable grounds that the misconduct has occurred. But they are not obliged to believe one employee and to disbelieve another. There will be cases where it is perfectly proper for employers to say that they are not satisfied that they can resolve the conflict of evidence and accordingly do not find the case proved. The Court provided an example of an employer that may tend to believe that a complainant is giving an accurate account of an incident but at the same time it may be wholly out of character for the employee to have acted in the way alleged. In such a case, the Court noted that it would be perfectly proper for the employer to give the alleged wrongdoer the benefit of the doubt, without feeling compelled to come down in favour of one side or the other.

Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522

For more information, please contact Louise Fernandes-Owen.