O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust

The employee, Ms O’Brien, was a long-serving ward manager at the employer. In 2018 concerns were raised about lateness on shift and an instance of claiming unworked overtime. Rather than raising these issues with Ms O’Brien, her manager initiated a fact-finding process and sought advice on possible fraud. Before any of this was put to her, Ms O’Brien suffered a major health crisis and went on a prolonged period of sick leave during which time she suffered from PTSD.

On Ms O’Brien’s return to work (a year since the concerns were raised) the employer instigated a formal disciplinary investigation. By this stage, the PTSD suffered by Ms O’Brien had materially affected her ability to recall events and respond effectively to the allegations. However, the employer continued with the disciplinary process (which continued over a long period) and Ms O’Brien was eventually dismissed for misconduct.

Ms O’Brien brought unfair dismissal and disability discrimination claims.

Although the Tribunal acknowledged that the delay had significantly impaired her ability to defend herself, it nonetheless found the dismissal fair.

The employee appealed.

The EAT said the Tribunal had taken the wrong approach. Although the Tribunal accepted that the long delay had harmed Ms O’Brien’s ability to defend herself -particularly given how her PTSD affected her memory – it failed to factor those findings into its assessment of whether the dismissal was fair under s98(4) of the Employment Rights Act 1996.

Having acknowledged the substantial disadvantage caused by the long delay, the Tribunal was required to consider whether the employer’s handling of the investigation and disciplinary process still fell within the range of reasonable responses (given the employee’s impeded ability to respond) It did not do so, and its reasoning could not support the conclusion of a fair dismissal. The fairness finding was therefore overturned and sent back to the Tribunal for reconsideration.

This decision reinforces the importance of raising and addressing conduct concerns without delay, particularly where an employee may have an underlying condition that affects their memory or recall. It also serves as a useful reminder that the ACAS Code of Practice requires issues to be handled promptly, and that delays may particularly place a disabled employee at a disadvantage. Where a disability could affect an employee’s ability to engage with a formal process, employers should consider whether an informal route – or other adjustments – could be a reasonable adjustment. Employers should not assume that later formal processes will cure earlier procedural issues.