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17 February 2012
Court of Appeal
Laws, Elias and Kitchin LJJ
Suspension should not be an automatic reaction to allegations against employees.
Two nurses were suspended after allegations that they assaulted a patient suffering from dementia who had become aggressive. It was alleged they had tied the patient to a chair with a sheet. The Claimants agreed they had tied the chair to a table but denied tying him to the chair. They gave an explanation of how the sheet had become wrapped around the patient's chest. After a disciplinary investigation, they were dismissed for gross misconduct. An employment tribunal, upheld by the Court of Appeal, concluded that the dismissals were unfair because in concluding that the sheet could not have become wrapped around the patient in the way the Claimants had suggested, they had relied on an experiment conducted by the person conducting the disciplinary hearing. But that experiment was not discussed with the Claimants, who could have demonstrated had they been present how the sheet could have become wrapped around the patient.
The case is interesting because of the Court of Appeal's comments about the use of suspension. Suspending and then forbidding the Claimants from contacting anyone involved should not be a ‘knee-jerk reaction' and any employer who suspends without good reason is likely to breach the obligation of mutual trust and confidence. Suspension is belittling, demoralizing and psychologically damaging; and in this case it was difficult to believe that a reasonable employer could have considered there was any risk of the treatment of which the Claimants had been accused being repeated.
The Court of Appeal was equally scathing about the Trust's decision to notify the police. Although tying a patient to a chair might technically be regarded as an assault, so was physically restraining a patient, something that had been done previously to this patient. Such restraint was obviously justified where the patient, as in this case, was spitting, kicking and punching.
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