An employment appeal tribunal has found that a former ward manager at Cheshire and Wirral Partnership NHS Foundation Trust was right to appeal an unfair dismissal following a disciplinary investigation.
C O’Brien was employed as a ward manager by the trust from 2009. Concerns were raised by her colleagues that she had not been present on the ward at the start of certain shifts and that she had claimed overtime she had not worked on one occasion.
Rather than raising this with her, O’Brien’s manager undertook fact finding and sought potential fraud advice. O’Brien then experienced a major health emergency and had a lengthy absence from work.
When O’Brien returned, the trust began a formal disciplinary investigation. This took place over an extended period and she was dismissed for misconduct in March 2021. O’Brien, who suffered from mental wellbeing issues such as PTSD, anxiety, and depression, brought claims of disability discrimination, failure to make reasonable adjustments and unfair dismissal before an employment tribunal.
It dismissed most of her claims, but accepted that as her disability affected her memory, her employer should have raised the concerns when they arose. It found that the adjustment claim was out of time and that the dismissal was fair.
O’Brien then appealed to the employment appeal tribunal (EAT). Judge Auerbach held that the tribunal had not properly assessed how the employer’s delay and failure to act impacted O’Brien’s ability to defend herself, as per section 98(4) of the Employment Rights Act 1996 and the Acas Code.
The reasonable adjustment issue was remitted for reconsideration of whether it is just and equitable to extend time. The unfair dismissal finding was quashed and remitted for new determination of liability, including Acas Code consideration and the impact of delay on fairness.
The EAT held that the tribunal had approached the time-limit question on the wrong basis, and that its reasoning focused on a different adjustment claim relating to flexible working, rather than speaking to O’Brien informally at an early stage.
Judge Auerbach said: “For all these reasons, I quash the finding that the claimant was not unfairly dismissed.”
Cheshire and Wirral Partnership NHS Foundation Trust was contacted for comment prior to publication.
