In a case which underlines the high standards expected of employers when investigating alleged misconduct, a mental health nurse who was accused of assaulting a patient and sacked from his post has succeeded in his claim of unfair dismissal (Pennine Care NHS Foundation Trust v Mundangepfupfu).

Mr Mundangepfupfu, who cared for acute mental patients, was alleged to have held the patient by his arm and then his neck. He accepted that he may have touched the patient on the neck or throat area. However, he said that it was the patient who had attacked him and that he had reacted instinctively and in self-defence.

In addition, he was accused of disobeying a reasonable management instruction in failing to attend work on an alternative ward the day after the incident and also faced an unconnected allegation that he had failed to prevent a female patient from engaging in sexual behaviour in his presence. Following a disciplinary process, he was found guilty of gross misconduct and dismissed.

In upholding his unfair dismissal claim, an Employment Tribunal (ET) found that the incident involving the male patient had been wrongly labelled as a ‘physical assault’ and that had undermined the fairness of the internal investigation. The Employment Appeal Tribunal rejected the employer’s challenge to that conclusion on the basis that the ET had reached permissible conclusions on the evidence. The ET was also entitled to find that the employer’s investigation of the incident involving the female patient had been inadequate.

However, the ET had erred in its consideration of whether the instruction to work on another ward was reasonable. The same ET was directed to reconsider that matter and also to decide whether any deduction should be made to Mr Mundangepfupfu’s damages award to reflect any contributory fault on his part.