I referred to the case of Thomson v Imperial College Healthcare NHS Trust about a week ago in respect of disability related misconduct dismissals. The case has been more widely reported in respect of its unfair dismissal findings, however.
The ACAS Code of Practice on Disciplinary and Grievance Procedures, which is intended to provide “basic practical guidance to employers, employees and their representatives and sets out principles for handling disciplinary and grievance situations in the workplace” surprisingly has very little guidance on choice of decision makers.
To the extent that there is guidance it sets out that:
- A different person should normally carry out an investigation and disciplinary hearing; and
- A decision to dismiss should only be taken by a person with the authority to dismiss; and
- An appeal manager should normally be a different person to the person who made the decision.
And that’s it!
In Thomson all these guidelines were complied with: The claimant, a senior Hospital official had an independent Dr sit on the disciplinary case who was specifically chosen because other local staff of the requisite authority to hear the case were involved in the case. The selection of the hearing manager was also made in line with the employer’s disciplinary policy, and an independent appeal manager was appointed. However, in Thomson the claimant alleged that the hearing manager, Dr Palazzo, was too inexperienced to hear the case (which was alleged to be a potential gross misconduct case and involved alleged disability discrimination) even though no complaints were made by the claimant before at the disciplinary hearing itself. At the first tier tribunal found, as a matter of fact, that “Dr Palazzo told us that he had never before chaired a disciplinary hearing. Nor had he been trained in the conduct of disciplinary proceedings.”
In its judgement the Tribunal (ET) concluded “It is self-evident in our view that this employer did not act reasonably in giving the case to Dr Palazzo. To do so was not fair to the decision-maker. But more importantly, it denied the Claimant a fair hearing. As a minimum, fairness entails, amongst other things, a decision by someone equipped with ability and experience commensurate with the demands of the case … It is no answer to say that Dr Palazzo was within the class of persons who were eligible to chair the disciplinary hearing under the Respondents’ written procedures. Fairness does not depend on a ‘box-ticking’ approach to procedures. An unfair process does not become reasonable simply because it does not conflict with a written procedure … and we hold that the defect here identified is sufficient to place this case outside the range of permissible action open to the Respondents and accordingly renders the dismissal unfair as a matter of process.”
In paragraph 40 of the EAT judgement the Tribunal’s reasoning was affirmed:
In our judgment the Employment Tribunal did not err in finding that the involvement of Dr Palazzo as chair of the disciplinary panel hearing the proceedings against the Claimant rendered the dismissal procedurally unfair. Although he was in the category of those qualified to chair such a panel it seems that there was no evidence that he had training or experience to carry out that duty.
The failure to include any guidance on who is an appropriate person to hear dismissal or grievance cases does I think highlight a major gap in the ACAS guidance that reflects real issues in workplace disciplinary matters. For example, twice in the last week I have had to make formal objections on the choice of decision makers in disciplinary matters for union members, despite the employer being a big employer well able to identify independent decision makers.
In this regard Thomson does strike me as a helpful case. Where the matter under consideration is a serious one that could result in a gross misconduct finding or discrimination complaints it may be advisable for reps to out the question of experience firmly on the agenda by asking a decision maker what training they have received and what experience they have on these matters with a view to potentially using this as a future ground of appeal.
In Thomson it is clear that this inexperience was not just a procedural matter (although the dismissal was found unfair on these grounds alone as well) but this inexperience was a key factor in the Dr Pallazzo dismissing for ‘gross misconduct’ when he himself accepted the alleged misconduct was not capable of amounting to gross misconduct under the Respondent’s disciplinary policy. This does raise the prospect that where the choice of decision maker is the ground of an unfair dismissal claim any victory will be a pyrrhic one as the Tribunal may come to the view that had a fair choice of decision maker been made the outcome (dismissal) would be the same and limit any compensation award.
Thomson v Imperial College Healthcare NHS Trust  UKEAT 0218_14_3001