Salford Royal NHS Foundation Trust v Roldan
When deciding whether a dismissal has been fair, tribunals have to consider whether, in the circumstances, the employer acted reasonably or unreasonably. In Salford Royal NHS Foundation Trust v Roldan, the Court of Appeal said that when deciding this question tribunals must take into account the seriousness of the consequences of dismissal for the employee.
Basic facts
Ms Roldan, a Filippino, was an experienced nurse employed in the hospital’s high dependency unit. On 22 September 2007 a newly-recruited health care assistant, Ms Denton, complained that she had ill-treated a patient. After a disciplinary hearing in October, Ms Roldan was summarily dismissed for gross misconduct.
She appealed in January 2008, accepting that some of the criticisms had been valid but rejecting others. However, the appeal body chose to believe the evidence of Ms Denton and confirmed her dismissal.
The consequences were far-reaching for Ms Roldan as not only did she lose her job, but also her work permit and the right to remain in the UK. She was also subject to a criminal investigation by the police.
She claimed unfair dismissal.
Tribunal and EAT decisions
The tribunal agreed she had been unfairly dismissed because the investigation carried out by the Trust had been inadequate and she had not been given all the details of the allegations against her in that an earlier incident (which Ms Roldan could not recall) had been taken into account.
It said that, in cases like this, there was an onus on the Trust to be “particularly even handed and fair in the way they conducted the investigation” because the consequences for Ms Roldan was so serious, in that they included potential criminal charges and deportation.
The Trust appealed to the EAT and won. As a result the case was remitted for a fresh hearing, but Ms Roldan then appealed to the Court of Appeal against that decision.
Court of Appeal decision
The Court of Appeal said the tribunal had directed itself correctly in accordance with the principles established in Burchell v British Home Stores. In that event, it said that appeal tribunals should not interfere with the original decision unless there was real evidence for it, or unless the tribunal’s conclusion had been perverse.
As the law required tribunals to consider whether the investigation carried out by the employer was reasonable “in all the circumstances of the case”, that had to include the consequences of dismissal. In this case, that included the fact that Ms Roldan’s career would be blighted and that she would be deported. As a result, the Trust should have carried out a more thorough investigation and in particular, as there was a conflict of evidence between Ms Roldan and Ms Denton, it should have done more to test the evidence against Ms Roldan where possible.
The Court noted that the when there are "diametrically conflicting accounts of an alleged incident with no, or very little, other evidence to provide corroboration one way or the other", employers do not have to “believe one employee and to disbelieve another”. In those circumstances “it would be perfectly proper in such a case for the employer to give the alleged wrongdoer the benefit of the doubt without feeling compelled to have to come down in favour of on one side or the other”.