The Acas Code of Practice is clear – misconduct investigations should begin without delay. Slow handling can seriously undermine the fairness of a disciplinary process and expose employers to legal risk.
O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust
In the case O’Brien v Cheshire and Wirral Partnership NHS Foundation Trust, Ms O’Brien was dismissed in 2021 for allegedly failing to work contracted hours and falsely claiming overtime three years earlier.
However, these concerns were not formally raised with her by the Trust until almost a year after her alleged false overtime claims and failure to work contracted hours. During that time, she experienced significant ill health, including PTSD and memory difficulties.
She brought claims for unfair dismissal and disability discrimination. Although the employment tribunal rejected them, the Employment Appeal Tribunal overturned that decision, finding that the original tribunal had:
- failed to properly assess whether the Trust’s delay in raising the allegations made the dismissal unfair, particularly as it affected Ms O’Brien’s ability to respond.
- failed to consider whether the Trust should have engaged with her informally andearlier as a reasonable adjustment linked to her disability.
The case has now been sent back for reconsideration.
What should HR learn from this case?
Delays in starting investigations can:
- make it harder for employees to recall events
- damage mental health and increase stress
- weaken evidence and witness recollection
- lead to findings of unfair dismissal or discrimination.
Crucially, beginning an investigation does not mean disciplinary action is inevitable – it is simply a neutral, fact-finding step.
Practical tips for HR
- Raise concerns with employees promptly
- Gather statements while memories are fresh
- Document early conversations and decisions
- Take health issues and/or disabilities into consideration and make adjustments to the process if necessary.
Acting quickly helps ensure a fair procedure, protects employee wellbeing and improves the reliability of evidence. For HR teams, timely action is not just best practice – it may determine whether a dismissal stands up to legal scrutiny.
Further reading
- Tactical resignations during disciplinary investigations? What you need to know – Hunter Law
- Employee who lied by omission, fairly dismissed – Hunter Law
- Misconduct and disability: Dismissal can be fair – Hunter Law
- Asleep on the job – but unfairly dismissed – Hunter Law
If you enjoyed this blog then perhaps you’d like to sign up to our monthly newsletter. We’ll keep you updated on what’s new in employment law.
The team at Hunter Law is here for you. We can handle your HR issues, finesse your policies, and keep you up-to-date on evolving legislation. Please get in touch with our legal team, we’d love to help.
