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Practical tips for handling complex cases of potential misconduct

A nurse who nearly died after contracting Ebola while volunteering in West Africa has been charged by the Nursing and Midwifery Council with intending to conceal her high temperature on her return to the UK.

Pauline Cafferkey was allowed by Public Health England to travel to Glasgow following her arrival at Heathrow, rather than being immediately transferred to a designated hospital, thereby increasing the risk to the public of the virus spreading. At the time, Public Health England did not have sufficient nurses stationed at Heathrow, so volunteers returning from Sierra Leone were asked to take and record each other's temperatures. A health professional who came back at the same time as Cafferkey reportedly described the organisation's screening checks as "shambolic".

The nursing council published details of the allegation online (which it later removed from its website and for which it apologised to Cafferkey). The nurse was accused of failing to tell the doctor who was recording her temperature that she had taken paracetamol earlier, which lowers temperature, and for allowing an incorrect temperature to be recorded.

This case involves a professional regulatory body and charges of professional misconduct, but it highlights the difficulties many employers face when handling complex and nuanced cases of potential misconduct. No case is ever entirely cut and dried but some – like this one – are virtual minefields for employers, raising difficult ethical issues.

Can an employer, for example, rely on an employee's reporting in circumstances like this, and can they really blame employees when their own systems were inadequate? There is a risk that making allegations will be viewed as an attempt to scapegoat the individual and deflect blame. Nonetheless, if an employer genuinely believes an employee is guilty of misconduct then it can pursue disciplinary proceedings, but it will have to work harder to satisfy an employment tribunal that treating the issue as misconduct is reasonable when its own failings contributed to errors occurring.

It's also impossible to ignore the fact that Cafferkey was undertaking courageous and harrowing humanitarian work. Does this mean that she should not be disciplined at all, or lessen the misconduct to such an extent that she should suffer no sanction? Realistically the answer is probably ‘no’, since an act of misconduct or error of professional judgment is still an error despite the circumstances. Arguably it's particularly vital that standards are not allowed to bend in difficult circumstances where the temptation to break rules may be greater. However, an employer will always have to assess whether an employee's actions are not what would reasonably be expected of any employee in the same situation. It's also important to remember that an employer may not be able to reach a finding of misconduct if there is any risk employees could be considered not truly responsible for their actions because of a disturbed mental state.

If an employer is exposed to separate liability, for example, from those endangered by an employee's actions, does an employer need to be seen to ‘do something? This case prompts different reactions and, where opinion is divided, it is likely to be difficult for an employer to reach a decision which is both robust and seen to be fair by everyone affected. However, the risk of harm is a crucial component in assessing the seriousness of any misconduct.

An employer should make a neutral, unbiased assessment of the employee's conduct, and apply consistent standards, and there are a number of practical steps which may help this process. Employers should:

  • Progress investigations quickly. While difficult issues should be carefully investigated, delay is damaging for the employee concerned and reflects badly on the organisation
  • Bear in mind their duties to the person accused. Organisations should ensure he or she is treated fairly and reasonably throughout. Even if an employee is eventually cleared of allegations, he or she could argue that the employer's handling of the process amounted to constructive dismissal
  • Make the organisation’s standards known. What is and is not acceptable should be clearly communicated, and employees warned of the consequences of breaching those standards. It will then be much easier to satisfy a tribunal that disciplining an employee was reasonable
  • Be consistent when taking disciplinary action, but remember that mitigating circumstances (such as provocation, extreme workplace pressure or unclear expectations) may mean a different sanction is appropriate
  • Maintain strict confidentiality during a disciplinary process. Allegations that are proven to be untrue, or are misleading out of context, can be damaging.

Added: 07-09-2016

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