Before dismissing an employee, employers must ensure that they follow a fair procedure, including a thorough investigation. In Oxford University Hospital NHS Foundation Trust v Khan and Ali, the Employment Appeal Tribunal (EAT) held that it was unfair to dismiss two employees before the trust had completed its investigation of the circumstances surrounding the incident that led to their dismissal.


Basic facts

After allegedly assaulting a work colleague, Mr Da Cruz, the trust decided that Mr Khan should be dismissed. Mr Ali was also dismissed because he was allegedly present at the time of the assault but had failed to intervene. The decision to dismiss the two men was, however, taken before the trust had seen the finalised notes of the investigation meeting with a witness, Mr Singh. Both men lodged complaints of wrongful and unfair dismissal.


Tribunal decision

The employment judge concluded that the assault by Mr Khan was an act of gross misconduct and that he had not been wrongfully dismissed. Conversely, the judge held that Mr Ali’s failure to intervene did not constitute gross misconduct and he had, therefore, been wrongfully dismissed. As the trust had failed to complete the investigation before taking the decision to dismiss the men, both dismissals were procedurally unfair.

The trust appealed, arguing that Mr Singh’s evidence was of no real significance and any procedural defect in the dismissal process had been remedied at the appeal stage. It also appealed against the finding that Mr Ali was wrongfully dismissed, arguing that it was perverse for the judge not to have concluded that he was involved in a “joint enterprise” with Mr Khan.

Mr Khan cross-appealed against the wrongful dismissal finding, arguing that the judge had failed to take two important points into account. The first was that Mr Da Cruz had been motivated to falsely accuse him of assault because Mr Khan had previously complained to him about sitting on the counter in the trust’s canteen in breach of health and safety rules. Secondly, another colleague had given evidence that Mr Da Cruz had boasted that he was out to get Mr Khan.


EAT decision

Dismissing the cross-appeal, the EAT held that this was the kind of case in which it should not intervene as it had only seen some of the information that had been before the employment judge who had also had the benefit of hearing live evidence from a number of witnesses.

In terms of the cross-appeal, the EAT held that it was clearly open to the tribunal judge to conclude that Mr Khan had assaulted Mr Da Cruz whom he had found to be a reliable witness. Mr Da Cruz had immediately reported the assault, had been visibly distressed and had shown his injuries to others. Although the judge had not mentioned that the claimants had suggested that there was a possible motive for Mr Da Cruz to fabricate the allegation of assault, he did not have to refer to every piece of evidence. In any event, the claimants had called a witness who had supported their suggestion, but whose evidence the judge had rejected.

In terms of the trust’s appeal against the decision that Mr Ali had been wrongfully dismissed, the EAT held that it was not perverse for the judge to conclude that being present in the office and not intervening was not gross misconduct.

Nor was it perverse for the employment judge to have concluded that it was procedurally unfair for the trust to recommend dismissal before the evidence had been finalised, not least because the person appointed to investigate the matter had herself decided to look further into the allegations made by Mr Khan and Mr Ali about Mr Da Cruz’s motivation.