A recent judgement in the Employment Appeal Tribunal (EAT) reaffirmed that the tribunal is required to focus on the appropriate test for the breakdown of trust and confidence and to not substitute in their own view.
Employers should be aware and able to provide evidence of a lack of trust in an employee.
Mrs Farren was employed as a Staff Nurse at Grantham & District Hospital, part of the United Lincolnshire Hospitals NHS Foundation (the Trust) since September 2006, until her summary dismissal in October 2014. Mrs Farren had been working on a night shift in May 2014 and it is during this shift that she administered the prescription drug diazepam to members of the family of a boy who had had passed away. Mrs Farren did not have the required prescription before administering the drug to the family – this was in breach of the Respondent's Policy for Medicines Management (the Policy) and also the Nursing and Midwifery Council Standards for medicines management.
Mrs Farren argued that although her record keeping was wholly inadequate, she submitted that the diazepam was prescribed by a doctor and that she had not administered the drug in breach of policy. This version of events was not confirmed by the prescribing doctor who stated that he had prescribed the drug after being approached by Mrs Farren who had informed him that she had already given the drug to the patients and required the doctor to write up a prescription. After an investigation into the incident, Mrs Farren was dismissed.
Following her summary dismissal, Mrs Farren brought a claim for unfair dismissal and sought an order for reinstatement or re-engagement.
At first instance the employment tribunal upheld the claim for unfair dismissal. The tribunal reasoned that although Mrs Farren had administered drugs without a prescription which gave the Trust a potentially fair reason, the decision to dismiss her was unfair. The tribunal found that there had been an assumption of guilt and this meant that the resulting investigation was procedurally unfair.
In defence, the Trust argued that it could no longer trust Mrs Farren following the incident because she had been dishonest in her conduct and handling of the situation and they placed a great deal of weight on the Policy.
The tribunal considered that whilst Mrs Farren should not be reinstated in her previous role due to the emphasis the Trust placed on the Policy but she should be reinstated in an alternative environment. This was because due to her experience and professional record, she could be trusted as an employee.
The tribunal ordered that she be re-engaged at a similar grade at the hospital outside of A&E. However, the tribunal also found that Mrs Farren contributed to her dismissal by one third and ordered a deduction of one third to the back-pay that she was owed.
The Trust appealed the decision.
At the EAT, the focus was shifted onto whether the issue of trust and confidence had been properly addressed by the tribunal. The EAT noted that the tribunal needs to consider whether:
The EAT stated that the tribunal had erred in its decision because instead of testing whether the Trust's view as to the breakdown of trust and confidence was genuine and rational, the tribunal had reached its own conclusions. The EAT remitted the case to the tribunal.
In this case, the EAT reaffirmed that it is important for the employer to satisfy the test for breakdown of trust and confidence. Employers will need to be able to show that when dismissing for a breakdown of trust and confidence, that they genuinely believed that it had broken down and that this belief was not irrational. As a result of this, an employer should expect the integrity of their view to be tested and should be able to show that an order for reinstatement or re-engagement of the dismissed employee will be unjust.
The EAT also stated that the tribunal would look at the case in a very fact specific way, examining whether it was practicable to order the employer to reinstate or re-engage that particular employee. This means that the tribunal will take a very fact specific approach to the case and an employer will need to consider this when handling a dismissal for breakdown in trust and confidence.
This publication is intended for general guidance and represents our understanding of the relevant law and practice as at December 2016. Specific advice should be sought for specific cases. For more information see our terms & conditions.