UK: When Misconduct Arises, Think of the Consequences

Last Updated: 29 July 2010
Article by Nicholas Robertson and Christopher Fisher

Originally published 28 July 2010

Keywords: Employment, unfair dismissal, disciplinary hearing, employee misconducts

The standard of investigation to be carried out by employers before dismissing an employee for misconduct has come under the spotlight again in a recent Court of Appeal case. Where the consequences of dismissal for the employee are serious, employers must conduct a particularly careful and even-handed investigation into the alleged misconduct.


Ms Roldan was an experienced Filipino nurse employed by Salford NHS Trust. In September 2007, Ms Denton, who worked with Ms Roldan, complained that Ms Roldan had ill-treated a patient. Pending an investigation into this allegation, Ms Roldan was suspended. Ms Roldan, Ms Denton and one other individual were interviewed as part of the investigation. The outcome of this was that Ms Denton's evidence was preferred to that of Ms Roldan, whose recollection of events was found to be inconsistent and vague.

The matter proceeded to a disciplinary hearing. The allegations against Ms Roldan were not set out in any precise way but in advance of the disciplinary hearing she was given the witness statements taken by the Trust during the investigation. Ms Roldan was summarily dismissed for gross misconduct; her subsequent appeal was not upheld. Ms Roldan was also prosecuted following a criminal investigation into the allegations. Although she was eventually acquitted, she lost her work permit and her right to remain in the UK. She brought a claim for unfair dismissal against the Trust.

The Employment Tribunal found that Ms Roldan had been unfairly dismissed. Since the consequences of the dismissal for her included potential criminal charges and deportation, the Tribunal's view was that the Trust had to be particularly even handed and fair in the way it conducted the investigation. The Tribunal did not consider that this had happened. In particular, it had concerns about the way in which the Trust had conducted the disciplinary procedure, specifically the failure to question the reliability of Ms Denton's evidence which the Tribunal considered to be open to challenge in certain respects. The case ended up in the Court of Appeal.

Consequences of Dismissal are Relevant to the Standard of Investigation

The Court of Appeal restored the Tribunal's original finding of unfair dismissal. The key factors in the decision were:

  • The Trust had not properly informed Ms Roldan of an earlier incident that formed part of the grounds for her dismissal – this was a material procedural flaw as the fact that there was more than one incident would "inevitably colour the gravity of the charge";
  • Given that the case turned on a conflict of evidence – between the statements of Ms Roldan and Ms Denton - the Trust ought to have tested the evidence where it was possible to do so. For example, by speaking to additional witnesses who may have been able to support or refute Ms Denton's evidence. This had not been done.
  • The Tribunal was entitled to hold that Ms Roldan's dismissal was unfair in the circumstances, in particular taking into account her unblemished employment record with the Trust in the four years she had worked for them and the risk that her career would be blighted by the dismissal. Specifically, the Appeal Court acknowledged that the dismissal would result in her deportation and destroy her opportunity to build a career in the UK.


In order to establish that a dismissal is on the grounds of conduct, an employer must be able to show that:

  • at the time of dismissal, it believed the employee to be guilty of misconduct;
  • at the time of dismissal, it had reasonable grounds for believing that the employee was guilty of that misconduct; and
  • at the time that it formed that belief, it had carried out as much investigation as was reasonable in the circumstances.

This case confirms that what is reasonable in the circumstances includes assessing the potential consequences of the dismissal for the employee. Where a dismissal may have a substantial effect on an employee's future career, the employer must make sure that a very thorough investigation has been carried out.


  • If you are dealing with alleged misconduct and consider that a subsequent dismissal could lead to criminal charges, potential deportation or other career blighting consequences for the employee, it is especially important to conduct a fair and even handed investigation. The investigation should include questioning the evidence submitted and obtaining multiple witness statements where possible.
  • When faced with a conflict of evidence in relation to allegations of misconduct, there is no obligation to believe one individual and to disbelieve another - particularly where there is little or no evidence to provide corroboration one way or another. In this scenario, you may not be able to resolve the conflict and so decide that the case is not proved. This may mean giving the employee accused of misconduct the benefit of the doubt – particularly in situations where the alleged misconduct is out of character and the employee in question has an unblemished record.
  • Where an employee is being investigated for misconduct (or any disciplinary allegation), he or she must be given clear details of the charges to be faced. It is generally not sufficient to only provide witness statements.

Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522

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Mayer Brown is a global legal services organization comprising legal practices that are separate entities ("Mayer Brown Practices"). The Mayer Brown Practices are: Mayer Brown LLP, a limited liability partnership established in the United States; Mayer Brown International LLP, a limited liability partnership incorporated in England and Wales; and JSM, a Hong Kong partnership, and its associated entities in Asia. The Mayer Brown Practices are known as Mayer Brown JSM in Asia.

This Mayer Brown article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.

Copyright 2010. Mayer Brown LLP, Mayer Brown International LLP, and/or JSM. All rights reserved.

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